Lance v. Pittsburg County Board of County Commissioners et al

Filing 209

ORDER by Judge Ronald A. White granting defendants Board, Edward Morgan, Mike Smead, Daniel Harper, Dakota Morgan and Stephen Sparks, Joel Kerns and Chris Morris' motions for summary judgment ( 129 Motion for Summary Judgment ; 130 Motion for Summary Judgment ; 131 Motion for Summary Judgment ; 135 Motion for Summary Judgment ; 136 Motion for Summary Judgment and 137 Motion for Summary Judgment) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DUSTIN LANCE,
Plaintiff,
v.
1. BOARD OF COUNTY
COMMISSIONERS OF PITTSBURG
COUNTY, OKLA.
2. CHRIS MORRIS, Sheriff of Pittsburg
County, Okla. in his official capacity
3. MIKE SMEAD, in his individual capacity,
4. DAKOTA MORGAN, in his individual
capacity,
5. EDWARD MORGAN, in his individual
capacity,
6. STEPHEN SPARKS, in his individual
capacity,
7. MCALESTER REGIONAL HEALTH
CENTER AUTHORITY, d/b/a McAlester
Regional Hosptal,
8. GARY R. LEE, M.D.,
9. JOEL KERNS, former sheriff of Pittsburg
County, in his individual capacity, and
10. DANIEL HARPER, in his individual
capacity,

Case No. CIV-17-378-RAW

Defendants.

ORDER AND OPINION 1
This action was originally filed in the District Court of Pittsburg County, Oklahoma. It
was removed to this court on October 10, 2017. With leave to amend, Plaintiff filed two
amended complaints, on December 8, 2017 and on September 7, 2018. In his Second Amended

1

For clarity and consistency herein, when the court cites to the record, it uses the
pagination assigned by CM/ECF.

Complaint, Plaintiff alleges that Defendants were indifferent and failed to provide him with
constitutionally adequate medical care in response to an emergent health condition.
Plaintiff brings the following claims:
I. Indifferent training and supervision pursuant to 42 U.S.C. § 1983 against Defendants
Kerns and Morris 2;
II. Deliberate indifference to serious medical needs pursuant to § 1983 and the
Oklahoma Constitution against Defendants Smead, Dakota Morgan, Edward
Morgan, 3 Sparks, Harper, and the Board of County Commissioners of Pittsburg
County, Oklahoma (“Board”); and
III. Unconstitutional policies or practices to deny adequate medical care pursuant to §
1983 against Defendants Kerns and Morris. 4
Plaintiff requests judgment in his favor and damages in excess of $5,000,000.00. Now
before the court are motions for summary judgment filed by former Sheriff Joel Kerns [Docket
No. 129], by Edward Morgan [Docket No. 130], by Mike Smead [Docket No. 131], by the Board
[Docket No. 135], by Sheriff Chris Morris [Docket No. 136], and by Daniel Harper, Dakota
Morgan, and Stephen Sparks [Docket No. 137]. 5

2

Defendants Kerns and Morris are the former and current sheriffs of Pittsburg County,
respectively. Plaintiff sued Defendant Kerns, the former sheriff, in his individual capacity. He
sued Defendant Morris, the current sheriff, in his official capacity. At times Plaintiff refers to
Defendant Morris as “County,” and at other times as “Morris.” The court refers to him as
“Morris.”
3
Edward Morgan is also known as “Tyler” Morgan. Docket No. 130, at 10.
4
Plaintiff also brings a claim for violation of the emergency medical transportation and
active labor act pursuant to 42 U.S.C. § 1395DD (“EMTALA”) against the McAlester Regional
Health Center Authority (“MRHC” or “hospital”) and Dr. Lee.
5
Also at issue is a motion for summary judgment filed by MRHC [Docket No. 128]. As
the issues in MRHC’s motion are distinct from the issues here, a separate Order will be entered
on it simultaneously with this Order.
2

I.

Standard of Review
The court will grant summary judgment “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.” Fed.
R. Civ. P. 56(a). The court’s function is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). In applying the summary judgment standard, the court
views the evidence and draws reasonable inferences therefrom in the light most favorable to the
nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir.
2006). At this stage, however, Plaintiff may not rely on mere allegations, but must have set
forth, by affidavit or other evidence, specific facts in support of the Complaint. Id.
“Conclusory allegations that are unsubstantiated do not create an issue of fact and are
insufficient to oppose summary judgment.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136
(10th Cir. 2003) (citation omitted).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion
by: (A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or (B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
While at the summary judgment stage evidence need not be submitted in a form that
would be admissible at trial, the substance of the evidence must be admissible. For example, the
court disregards “inadmissible hearsay statements contained in affidavits, as those statements
could not be presented at trial in any form.” Id. (emphasis in original). “[A]ffidavits must be
based upon personal knowledge and set forth facts that would be admissible in evidence;

3

conclusory and self-serving affidavits are not sufficient.” Hall v. Bellmon, 935 F.2d 1106, 1111
(10th Cir. 1991). Similarly, “[t]estimony which is grounded on speculation does not suffice to
create a genuine issue of material fact to withstand summary judgment.” Bones v. Honeywell
Int’l, Inc., 366 F.3d 869, 876 (10th Cir. 2004).
Additionally, unauthenticated documents “cannot support a summary judgment motion,
even if the documents in question are highly probative of a central and essential issue in the
case.” Bell v. City of Topeka, Kan., 496 F.Supp.2d 1182, 1185 (D. Kan. 2007) (citation omitted).
“To determine whether genuine issues of material fact make a jury trial necessary, a court
necessarily may consider only the evidence that would be available to the jury.” Argo, 452 F.3d
at 1199.
Qualified Immunity
The affirmative defense of qualified immunity “gives government officials breathing
room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. alKidd, 563 U.S. 731, 743 (2011). “When properly applied, it protects ‘all but the plainly
incompetent or those who knowingly violate the law.’” Id. (citing Malley v. Briggs, 475 U.S.
335, 341 (1986)).
When a defendant raises a qualified immunity defense in response to a motion to dismiss
or a motion for summary judgment, 6 the burden shifts to the plaintiff and the court employs a
two-part test. Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012); Brown v. Montoya, 662 F.3d
1152, 1164 (10th Cir. 2011). The burden is a heavy one. Perry v. Durborow, 892 F.3d 1116,
1120 (10th Cir. 2018). A plaintiff must show that: (1) the defendant violated a constitutional

6

“The legally relevant factors for a qualified immunity decision will be different at the
summary judgment state – no longer can the plaintiffs rest on facts as alleged in the pleadings.”
Stonecipher v. Valles, 759 F.3d 1134, 1148, n.9 (10th Cir. 2014).
4

right, and (2) the constitutional right was clearly established at the time of the defendant’s
alleged misconduct. Id.
“A plaintiff may show clearly established law by pointing to either a Supreme Court or
Tenth Circuit decision, or the weight of authority from other courts, existing at the time of the
alleged violation.” Knopf v. Williams, 884 F.3d 939, 944 (10th Cir. 2018) (citation omitted). A
law is not clearly established unless existing precedent has “placed the statutory or constitutional
question beyond debate.” Id. (citation omitted). This is an objective test. Brown, 662 F.3d at
1164.
The court must not “define clearly established law at a high level of generality.”
Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (citing Ashcroft, 563 U.S. at 742); Knopf, 884 F.3d
at 944 (citing Ashcroft, 563 U.S. at 742). A prior case need not have identical facts. Perry, 892
F.3d at 1126; Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017). Still, the “clearly established
law must be ‘particularized’ to the facts of the case.” Knopf, 884 F.3d at 944 (citation omitted).
A plaintiff must establish both prongs to defeat a qualified immunity defense. Id. Only if
a plaintiff first meets this two-part test does the defendant bear the traditional summary judgment
burden to show that there are no genuine disputes of material fact and that he or she is entitled to
summary judgment as a matter of law. Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir.
2011). The court has discretion to decide which of the two prongs to address first in light of the
circumstances of the case. Brown, 662 F.3d at 1164.

II.

State Law Claims
Plaintiff brought claims for deliberate indifference to serious medical needs in violation

of Article II, Section 7 of the Oklahoma Constitution through Bosh v. Cherokee Cnty.

5

Governmental Bldg. Auth. 305 P.3d 994 (Okla. 2013) against Defendants Smead, Dakota
Morgan, Edward Morgan, Sparks, Harper, and the Board.
In an Opinion issued on December 4, 2018, the Oklahoma Supreme Court declined to
extend its ruling in Bosh v. Cherokee Cnty. Governmental Bldg. Auth. 305 P.3d 994 (Okla. 2013)
“to include tort claims brought by inmates alleging violations of their rights to due process and to
be free from cruel or unusual punishments.” Barrios v. Haskell Cnty. Pub. Facilities Auth., et
al., 432 P.3d 233, 235-41 (Okla. 2018). The Court recognized that the Oklahoma Legislature
responded to its decision in Bosh by amending the Oklahoma Governmental Tort Claims Act “to
clarify that the State’s immunity from suit extended even to so-called ‘constitutional’ torts.” Id.
In his responses to Defendants’ summary judgment motions, Plaintiff states that based on
Barrios, he is no longer pursing any state law claims. Docket Nos. 163 at 14, 168 at 29, 169 at
24, 171 at 1, and 197 at 15. Accordingly, the motions are granted as to the state law claims. 7

III.

The Board
In his brief response to the Board’s motion for summary judgment, Plaintiff states that he

is no longer pursuing any claim against the Board. Docket No. 171 at 1. Accordingly, the
Board’s motion is granted. 8
IV.

Undisputed Material Facts 9

7

The court declines Plaintiff’s request to find the motions moot as to the state law claims.
Based on the briefing, they are granted.
8
Again, the court declines Plaintiff’s request to find the Board’s motion moot. Based on
the briefing, it is granted.
9
Where statements of material fact are admitted or undisputed, the court includes cites to
the listed fact number in the motion or response as “UMF.”
The court notes that the “statement of facts” in the motions filed by Sheriff Morris
[Docket No. 136] and by Dakota Morgan, Stephen Sparks, and Daniel Harper [Docket No. 137]
6

1. Plaintiff was booked into the Pittsburg County Criminal Justice Center (“PCCJC” or
“jail”) on November 11, 2016 on charges of burglary in the second degree, possession of
a controlled substance, and unlawful possession of paraphernalia. Docket Nos. 130, 131,
136, and 137, UMF# 1 (admitted in Plaintiff’s responses thereto).
2. During Plaintiff’s November 11, 2016 through December 18, 2016 incarceration at
PCCJC, Joel Kerns was the Sheriff of Pittsburg County and as Sheriff, he oversaw the
operation and supervision of the PCCJC. Docket Nos. 136 and 137, UMF #2 (admitted in
Plaintiff’s responses thereto).
3. PCCJC had a policy requiring all inmates be medically screened upon entering the
facility “and before being placed in the general population or housing area.” Docket Nos.
136 and 137, UMF #3 (admitted in Plaintiff’s responses thereto).
4. Pursuant to PCCJC policy, a medical questionnaire was completed for and signed by
Plaintiff. Docket Nos. 136 and 137, UMF #4 (admitted in Plaintiff’s responses thereto).
5. As indicated on the medical questionnaire, during Lance’s initial medical screening
Lance indicated he was not: taking any prescription medication, medical treatments, or
medical programs at that time; currently taking any medications prescribed by a doctor;
having anyone bring him medications to the PCCJC; or aware of any medical problems
that PCCJS should know about. Docket Nos. 136 and 137, UMF #5 (admitted in
Plaintiff’s responses thereto).

are identical. Appropriately, Plaintiff adopts his response to the “statement of facts” in the
former motion in his response to the latter motion.
The court further notes that although the facts and issues in the motions filed by Sheriff
Kerns [Docket No. 129] and Sheriff Morris [Docket No. 136] are quite different, Plaintiff filed a
combined response to the two motions.
7

6. Prior to Plaintiff’s arrest on November 11, 2016, Plaintiff had previously been
incarcerated at PCCJC and experienced no issues or problems during those previous
incarcerations. Docket Nos. 136 and 137, UMF #6 (admitted in Plaintiff’s responses
thereto).
7. Prior to Plaintiff’s arrest in November 2016, a doctor had never prescribed him
prescription drugs. Docket Nos. 136 and 137, UMF #7 (admitted in Plaintiff’s responses
thereto).
8. While incarcerated at the PCCJC from November 11, 2016 to December 19, 2016,
Plaintiff was housed in A-Pod per his request. Docket Nos. 136 and 137, UMF #8
(admitted in Plaintiff’s responses thereto).
9. While incarcerated at PCCJC on November 25, 2016, Plaintiff filled out a “medical
request” form requesting that his wisdom teeth be pulled. On November 28, 2016,
Plaintiff was taken to the Indian Clinic for dental treatment per his request. Docket Nos.
130 and 131, UMF #2; 136, and 137, UMF #9 (admitted in Plaintiff’s responses thereto).
10. Following Plaintiff’s dental work on November 28, 2016, Plaintiff was prescribed
ibuprofen and penicillin. Jail staff administered the prescribed ibuprofen and penicillin to
Plaintiff without incident. Docket Nos. 136 and 137, UMF #10 (admitted in Plaintiff’s
responses thereto).
11. On the evening of Thursday, December 15, 2016, shortly after dinnertime at around 5:00
p.m. or 6:00 p.m., Plaintiff took approximately three-fourths of a Trazadone pill given to
him by another inmate. Docket Nos. 130 and 131, UMF #3; 136, and 137, UMF #11
(admitted in Plaintiff’s responses thereto).

8

12. Plaintiff traded his next morning’s breakfast for the Trazadone pill, which Plaintiff hoped
to use as a sleeping aid on the night of Thursday, December 15, 2016. Docket Nos. 130
and 131, UMF #4; 136, and 137, UMF #12 (admitted in Plaintiff’s responses thereto).
13. Plaintiff had taken smaller doses of Trazadone from this inmate on previous occasions
during his November 11, 2016 through December 19, 2016 stay at PCCJC, but before
December 15, 2016, he had never taken up to three-fourths of a Trazadone pill. Docket
Nos. 130 and 131, UMF #5; 136, and 137, UMF #13 (admitted in Plaintiff’s responses
thereto).
14. Plaintiff was not prescribed Trazadone and was not provided Trazadone through a “pill
pass” by jailers or any other employee of the PCCJC. Docket Nos. 130 and 131, UMF
#6; 136, and 137, UMF #14 (admitted in Plaintiff’s responses thereto).
15. Plaintiff knew that the pill he took was Trazadone. Docket Nos. 130 and 131, UMF #7;
136, and 137, UMF #15 (admitted in Plaintiff’s responses thereto).
16. Sometime after Plaintiff took the Trazadone pill, he fell asleep and then re-awoke in the
early hours of Friday, December 16, 2016 with an erection. He used the restroom, and as
he was unconcerned about his erection, he made no one aware of his condition. Docket
Nos. 130 and 131, UMF #8; 136, and 137, UMF #16 (admitted in Plaintiff’s responses
thereto).
17. Plaintiff claims he had a prolonged erection from the early hours of Friday, December 16,
2016 to the morning of December 19, 2016 when he was sent to the emergency room for
treatment. Docket Nos. 130 and 131, UMF #9 (admitted in Plaintiff’s responses thereto).
18. Plaintiff testified that he awoke maybe three times in the early morning hours of
December 16, 2016, but did not become alarmed until around breakfast time. Plaintiff

9

testified that early in the morning hours of December 16, 2016, he used the intercom
inside his cell and informed Edward “Tyler” Morgan that he had taken “that pill [he]
found on the floor” the previous night and had an erection. Docket Nos. 136 and 137,
UMF #s 17 and 18 (admitted in part and disputed in part 10 in Plaintiff’s responses
thereto); and Plaintiff’s Depo., Docket No. 138-2, at 16-24.
19. Plaintiff took the Trazadone approximately twelve hours before he notified anyone of his
hours-long erection. There is no evidence, however, that Plaintiff experienced any
painful or negative side-effects that would warrant reporting until sometime after 5:00
a.m. on December 16, 2016. Docket Nos. 136, 137, UMF #19; and 168.
20. Plaintiff’s unauthorized use of another inmate’s prescription Trazadone resulted in a
priapism, which is a prolonged erection without stimulation that will not dissipate or go
away without medical intervention. Docket Nos. 136 and 137, UMF #20 (admitted in
Plaintiff’s responses thereto).
21. Plaintiff testified that he was in so much pain that he removed his jail pants on Friday and
kept them off until he saw the nurse on Monday. Docket No. 168, UMF #17; Docket No.
172-11 at 38-39 and 137-39.
22. Plaintiff claims that from the morning of December 16, 2016 through the morning of
December 19, 2016, he made repeated requests for help utilizing the intercom system and
to each and every jailer he encountered. Plaintiff Depo., Docket No. 172-11 at 73, 93,
113-14, 118 and 124; Plaintiff Decl., Docket No. 172-19 at 1-2.

10

Defendants maintain Plaintiff used the intercom at approximately 6:00 a.m. In his
response, Plaintiff maintains it was sometime after 5:00 a.m., but before 6:00 a.m. Docket No.
168, at 8, responses to UMF #s 17, 18, and 19.
10

23. All Defendants deny that Plaintiff made anyone aware of his condition until about 9:20
a.m. on Monday, December 19, 2016, when a jailer became aware of Plaintiff’s condition
and immediately took him to Jail Nurse Doris Crawford. 11 Docket Nos. 136, and 137,
UMF #21 (“disputed as phrased” in Plaintiff’s responses thereto). As noted by Plaintiff,
however, there is evidence that other jailers knew, particularly Mike Smead. Nurse
Crawford’s Depo., Docket No. 172-13 at 70-72; Declarations of Plaintiff and other
inmates, Docket Nos 172-19, 172-8, 172-9, and 172-10.
24. Two inmates signed declarations stating that in December 2016, they observed Plaintiff
walking around the pod with a visible erection, that it was obvious he was in pain from it,
and that they heard and observed him reporting it to guards and asking them for help and
medical treatment. Declarations of Jones and Stewart, Docket Nos. 172-8 and 172-10.
25. None of the jailers contacted Nurse Crawford about Plaintiff from December 16-18,
2016. Docket No. 169, UMF. # 8.
26. During Plaintiff’s initial interview with Nurse Crawford, he was a little apprehensive in
telling her what medication he took and when he took it. Nurse Crawford Depo., Docket
No. 138-9 at 14 and PCCJC Progress Note, Docket No. 138-15.
27. After Plaintiff disclosed to Nurse Crawford that he had taken Trazadone and when he
took it, she examined his erection and immediately arranged his transport to MRHC’s
emergency room for further treatment. Docket Nos. 129, UMF #1; 136 and 137, UMF
#23 (admitted in Plaintiff’s responses thereto).

11

Doris Crawford was previously, but after Plaintiff’s Second Amended Complaint, is no
longer a Defendant to this action.
11

28. Plaintiff received no medical care for his condition at the jail until he saw Nurse
Crawford at 9:20 a.m. on December 19, 2016. Docket No. 169, UMF #9.
29. At approximately 9:30 a.m., Detention Officer Stephen Sparks transported Plaintiff to
MRHC, but was relieved by jailer Brandon Wilkins 12 while at the hospital and did not
bring Plaintiff back to the jail following his medical visit at the hospital. Docket Nos. 136
and 137, UMF #24 (admitted in Plaintiff’s responses thereto).
30. At 11:47 a.m. on December 19, 2016, Lance was seen at MRHC by Dr. Lee, who
diagnosed Plaintiff with priapism and treated him with injection, which failed to remedy
the priapism. Between 12:01 p.m. and 12:50 p.m., Dr. Lee referred Plaintiff to a
urologist in Tulsa at St. Francis Medical Center. Docket Nos. 136 and 137, UMF #25
(admitted in Plaintiff’s responses thereto). Dr. Lee directed that Plaintiff be transported
to St. Francis immediately, but did not indicate on the transfer request form the means by
which Plaintiff was to be transported. Docket Nos. 129, UMF #2 and 168, response to
UMF #2.
31. By 1:15 p.m., Plaintiff was returned to the PCCJC to be discharged on a medical
recognizance bond. Docket Nos. 136 and 137, UMF #26 (“disputed as phrased” in
Plaintiff’s responses thereto). Plaintiff adds that Dr. Lee unequivocally instructed the
jailers to immediately transport him to St. Francis. Note by Dr. Lee, Docket No. 172-6.

12

Brandon Wilkins is not and never was a Defendant to this action.
12

32. While Nurse Crawford understood that Plaintiff needed to go to St. Francis as soon as
possible, she did not believe he required an ambulance. Docket Nos. 136 and 137, UMF
#27 (“disputed as phrased” in Plaintiff’s responses thereto). 13
33. At 2:42 p.m. Plaintiff was released from the PCCJC on a medical recognizance bond and
discharged to his father, who Nurse Crawford personally told to take Plaintiff to the
urologist “now.” Docket Nos. 136 and 137, UMF #28 (admitted in Plaintiff’s responses
thereto).
34. After being discharged, Plaintiff accompanied his father and stepmother on several
errands before his father drove him to St. Francis Medical Center in Tulsa, arriving at
7:16 p.m. Plaintiff underwent surgery for his priapism around 9:00 p.m. Docket Nos.
136 and 137, UMF #29 (admitted in Plaintiff’s responses thereto).
PCCJC Policies & Training
35. In December of 2016, PCCJC inmates were observed through direct supervision from a
jailer in a tower, through video surveillance in the tower, and by two jailers in the
booking area. Docket No. 168, UMF #11; Manual, Docket No. 172-2 at 45-46.
36. The tower post for the jailer supervising the housing unit Plaintiff occupied has large
glass windows allowing close supervision of the population and the physical condition of
the inmates. Docket No. 197, UMF #20; Tower photo, Docket No. 172-20.
37. Pursuant to PCCJC policy, jail staff kept a detailed log, often referred to as “the bible” of
the daily activity within the male tower. These logs show who was on duty per each shift
and further indicate itemized items for shift changes, site checks, medication pass, meal

13

Plaintiff argues this is irrelevant and that it is not supported by evidence that she was
qualified to render opinions about the need for transport by ambulance in cases of a 96-hour
priapism.
13

pass, any significant incidents, and anyone making any request to the jailers during these
time frames. There are no entries in these logs with regard to Plaintiff’s medical
condition until Monday, December 19, 2016 at 9:15 a.m. when Detention Officer Homer
McOwen takes “one male inmate from A-Pod to Booking.” Docket Nos. 136 and 137,
UMF #40 (“disputed as phrased” in Plaintiff’s responses thereto). Plaintiff argues that
the log contains a variety of entries that are unreliable and unverified.
38. The Booking Log for December 19, 2016 states that at 9:30 a.m. Sparks took Plaintiff to
the doctor. The Log further indicates that at 1:15 p.m. Plaintiff was back from MRHC
and at 2:45 p.m. Plaintiff was released on a medical personal recognizance bond. Docket
Nos. 136 and 137 (admitted in Plaintiff’s responses thereto).
39. The PCCJC had a policy in reference to Oklahoma State Jail Standards: “to provide
adequate medical care in a jail facility by maintaining an established healthcare plan that
states what is to be done in situations involving the health and medical care of inmates in
this facility.” Docket Nos. 129, UMF # 5 (admitted in Plaintiff’s responses thereto);
Docket Nos. 136 and 137, UMF #42 (“disputed as phrased” in Plaintiff’s response
thereto). Plaintiff argues the policy relates to medical care “in the facility” and that
PCCJC has a practice of disregarding physicians’ orders to transport inmates with
emergent medical needs and instead transporting them back to the jail to be released first.
Docket No. 168, responses to Kerns’ UMF #5 and Morris’ UMF #42, (citing Kerns
Depo., Docket No. 172-12 at 32-33 and 55-57).
40. Oklahoma has standards for jail facilities that require a prisoner count at the beginning of
each shift change and “at least one (1) visual sight check every hour which, shall include
all areas of each cell and such sight checks shall be documented.” OKLA. ADMIN. CODE.

14

§ 310:670:5-2(2) and (3). Oklahoma further requires that each prisoner be served three
meals per day. OKLA. ADMIN. CODE. § 310:670:5-7(1). 14
41. Pursuant to PCCJC policy, prior to sending a prisoner to the medical facility, an officer
must fill out a medical clearance form. “Instructions on the medical clearance form must
be followed. If the conditions that are prescribed cannot be carried out by the jail staff,
the shift supervisor will be notified immediately to attempt to get the prisoner OR’d.”
Docket No. 168, UMF #3; Manual, Docket No. 172-2 at 7.
42. Pursuant to PCCJC policy, the MRHC and the ambulance service provided PCCJC with
the necessary medical services to inmates and Sheriff’s Office personnel on an as needed
basis. Due to the close proximity to this facility, medical care was less than five minutes
away and available to use twenty-four hours daily. Docket Nos. 129, UMF # 5 (admitted
in Plaintiff’s response thereto); Docket Nos. 136 and 137, UMF #43 (“disputed as
phrased” in Plaintiff’s responses thereto). Plaintiff argues the policy is one in name
only. Docket No. 168, response to Morris’ UMF #43.
43. Once at the MRHC, if a doctor recommends an inmate be transported directly from the
ER to another hospital, the sheriff and his staff do not have the discretion to release the
inmate without the higher authority of the district attorney or a judge. Docket No. 168,
UMF #12 and 15; Manual, Docket No. 172-2 at 55-57.
44. The only medical services provided at the jail were through the nurse who was at the jail
Monday through Friday from 8:00 a.m. to 5:00 p.m. There was no physician on call. If
the nurse was not there, a jailer, usually a jail administrator, could call the attending

14

Plaintiff points out that under Oklahoma’s jail standards, from December 16 – 19, 2016,
the jailers would have had contact with Plaintiff a total of 97 times for site checks, meals, pill
passes, and head counts. Docket No. 169, UMF #18.
15

physician at MRHC. Docket No. 168, UMF #6; Kerns Depo., Docket No. 172-12 at 1314 and 18. While Nurse Crawford did not work on the weekends, she was on call if
situations arose that required consultation with her. Docket No. 131, UMF 11 (admitted
in Plaintiff’s response thereto).
45. Pursuant to PCCJC policy, inmates are informed upon admission to PCCJC the process
for gaining access to medical and healthcare services. This information is given to said
inmates in writing along with a copy of the jail rules. Docket Nos. 136 and 137, UMF
#44 (admitted in Plaintiff’s responses thereto). 15
46. Pursuant to PCCJC policy, inmates are informed that a medical request form can be filled
out and submitted to the jailers or to jail staff if an inmate needs medical care. Docket
Nos. 136 and 137, UMF #45 (admitted in Plaintiff’s responses thereto). 16
47. Pursuant to PCCJC policy, supervisors determine the immediacy of medical complaints
and take appropriate action. Docket Nos. 136 and 137, UMF #46 (admitted in Plaintiff’s
responses thereto); Docket No. 168, UMF #1.
48. Pursuant to PCCJC policy, jailers address an inmate’s medical request by using their own
discretion and common sense to assess the severity of the medical need, by immediately
referring all such requests up the “chain-of-command” to their shift sergeant, Nurse
Crawford, and the Jail Administrator. Docket Nos. 129, UMF # 6; 136 and 137, UMF #
47 (admitted in Plaintiff’s responses thereto); Docket No. 168, UMF #7.
49. Pursuant to PCCJC policy, jailers are responsible for ensuring that inmates who request
medical attention are given the proper form to fill out and that the appropriate supervisor

15
16

Plaintiff argues this is not relevant.
Plaintiff argues this is not relevant.
16

is notified so said supervisor can determine if the inmates requesting medical attention
require transport to the MRHC emergency room. Docket Nos. 136 and 137, UMF # 48
(admitted in Plaintiff’s responses thereto); Docket No. 168, UMF #2.
50. Pursuant to PCCJC policy, inmate prescription medication is administered in compliance
with the orders of a licensed physician or designated medical authority. Docket Nos. 136
and 137, UMF #49 (admitted in Plaintiff’s responses thereto).
51. Following policy was mandatory. Docket No. 168, UMF #4; Kerns Depo., Docket No.
172-12 at 10.
52. Sheriff Kerns testified that he agreed that any deviation from a policy could expose an
inmate to a greater risk. Docket No. 168, UMF #5; Kerns Depo., Docket No. 172-12 at
10-11.
53. The jailer Defendants knew and understood the procedure of reporting an inmate’s
medical needs as outlined by the PCCJC policies. Docket Nos. 129, UMF #7 (admitted in
Plaintiff’s response thereto); 136 and 137, UMF #50 (“disputed” in Plaintiff’s response
thereto). Plaintiff does not actually dispute the fact, but argues the jailers here did not
report Plaintiff’s medical needs.
54. The jailer Defendants recognized that if Plaintiff had, in fact, made a jailer aware of his
medical condition prior to Monday, December 19, 2016, but was not granted access to
medical care, such conduct would violate PCCJC policy. Docket Nos. 136 and 137,
UMF #51 (admitted in Plaintiff’s responses thereto).

17

55. PCCJC jailers completed a state mandated training course that included lessons in basic
First Aid and CPR. Docket Nos. 129, UMF #10 (“disputed” in Plaintiff’s response
thereto); 136 and 137, UMF #52 (undisputed in Plaintiff’s responses thereto). 17
56. In addition to the state mandated course, the PCCJC also utilized mentoring or shadowing
on-the-job training practice whereby newly hired jailers would shadow or be mentored by
a more experienced jailer on policies and practices. Such shadowing or mentoring would
last anywhere from a month to two months. Docket Nos. 129, UMF #11 (admitted in
Plaintiff’s response thereto); 136 and 137, UMF #53 (undisputed in Plaintiff’s responses
thereto).
57. Sheriff Kerns testified that he was not aware of any additional or special training for the
jail staff regarding handling inmates with medical needs. Any such training would have
been under the normal jail standards or whatever the State provides. Docket No. 168,
UMF #8; Kerns Depo., Docket No. 172-2 at 32-22.
58. PCCJC held monthly safety meetings for jail staff. Docket Nos. 136 and 137 (undisputed
in Plaintiff’s responses thereto).
59. For every shift at PCCJC, a staff sergeant oversaw PCCJC and supervised the detention
officers on shift. Docket Nos. 136 and 137, UMF #51 (admitted in Plaintiff’s responses
thereto).

17

In his response to Sheriff Kerns’ motion, Plaintiff states that he disputes this fact, but
cites no support. He simply states that it is not supported by testimony of every jailer. This is
insufficient to dispute the fact. Additionally, Plaintiff does not dispute the very next listed fact
that in addition to the state mandated course, the PCCJC provided further on-the-job training. In
response to Sheriff Morris’ motion, Plaintiff states the fact is vague and not relevant.
18

Daniel Harper
60. In December of 2016, Daniel Harper was a jailer at PCCJC. Docket Nos. 136 and 137,
UMF #30 (admitted in Plaintiff’s responses thereto).
61. During the relevant period, December 15, 2016 to December 19, 2016, Harper worked
one shift, as a supervisor, from 6:00 p.m. Sunday, December 18, 2016 to 6:00 a.m.
Monday, December 19, 2016. Timesheets, Docket No. 172-1, at 5; Harper Depo.,
Docket No. 172-17 at 20-25.
62. Harper testified that he has no recollection of any interaction with Plaintiff. Harper
Depo., Docket No. 172-17 at 24.
63. Harper passed out breakfast trays at 5:29 a.m. on December 19, 2016. The meal trays are
placed on a rolling cart. The jailer takes the cart to each housing unit, waits for the
inmate to come up to the “bean hole,” and hands him a tray.

Harper Depo., Docket No.

172-17 at 25-26.
64. Harper testified that did he not hear of the Plaintiff’s medical condition while he was on
night shift the evening of December 18, 2016. Harper Depo., Docket No. 172-17 at 33.
65. Harper subjectively knew that a prolonged and painful erection required medical
attention. Harper Depo., Docket No. 172-17 at 48-49.
66. Harper was in the tower that night and was to perform welfare checks from the tower and
while cleaning. Harper Depo., Docket No. 172-17 at 30-31 and 39. Plaintiff argues that
his condition would have been obvious from the vantage point of the tower. Tower
photo, Docket No. 172-20.

19

Dakota Morgan
67. In December of 2016, Dakota Morgan was a Detention Officer at PCCJC. Docket Nos.
136 and 137, UMF #34 (admitted in Plaintiff’s responses thereto).
68. During the relevant period, December 15, 2016 to December 19, 2016, Dakota Morgan
worked three day shifts from 6:00 a.m. through 6:00 p.m. on December 15, 16, and 17.
Docket Nos. 136 and 137, UMF #36 (admitted in Plaintiff’s responses thereto);
Timesheets, Docket No. 172-1 at 11; Morgan Depo., Docket No. 172-16 at 9-10; Docket
No. 197, UMF #1.
69. Dakota Morgan testified that during his December 15-17 shifts, Plaintiff would have been
in his care and his responsibility. Docket No. 197, UMF #3; D. Morgan Depo., Docket
No. 172-16 at 29.
70. Dakota Morgan worked in the tower from noon until 6:00 p.m. on Friday, December 16,
2016. Docket No. 197, UMF #4; D. Morgan Depo., Docket No. 172-16 at 48. The
intercom that was in Plaintiff’s cell rings through to the tower. Docket No. 197, UMF #5;
D. Morgan Depo., Docket No. 172-16 at 32-33.
71. Plaintiff had no recollection of speaking with Dakota Morgan at any point during his
incarceration. Plaintiff Depo., Docket No. 172-11 at 236. Plaintiff, however, claims that
he contacted the person in the tower during the time Dakota Morgan was posted there and
told the person of his priapism and considerable pain. Plaintiff Decl., Docket No. 172-19
at 1-2.
72. Dakota Morgan testified that first he knew of Plaintiff after his return from the hospital.
D. Morgan Depo., Docket No. 172-16 at 28-29.

20

73. Dakota Morgan testified that he understood that an erection that would not go away
would be a serious medical issue. He testified that if informed of such, he would
immediately inform the sergeant and if he felt the sergeant was not handling it properly,
he would inform the nurse. Docket No. 197, UMF #2; D. Morgan Depo., Docket No.
172-16 at 15.
Stephen Sparks
74. During the relevant period, December 15, 2016 to December 19, 2016, Stephen Sparks
worked the day shift in the PCCJC kitchen – from 8:00 a.m. to 5:00 or 6:00 p.m. – on
December 18 and 19. Docket Nos. 136 and 137 (admitted in Plaintiff’s responses
thereto); Docket No. 197, UMF #17.
75. Sparks also worked as a transport jailer. Docket No. 197, UMF #18, Sparks Depo.,
Docket No. 172-18 at 10-11.
76. Other than to transport Plaintiff to MRHC on the morning of December 19, 2016, Sparks
testified that he did not interact with Plaintiff on December 18 or 19, 2016 and had no
knowledge of any medical condition of Plaintiff. Sparks Depo., Docket No. 172-18 at
29-30. 18
77. When Sparks took Plaintiff to the ER, he observed that Plaintiff was visibly in pain.
Docket No. 197, UMF #s 19 and 20; Sparks Depo., Docket No. 172-18 at 36 and 42.
Mike Smead
78. In December 2016, Mike Smead was a sergeant who worked on the day shift from 6:00
a.m. to 6:00 p.m. Docket No. 131 (admitted in Plaintiff’s response thereto); Docket No.
169, UMF #1.

18

Plaintiff argues this is not relevant.
21

79. During the relevant period, Smead worked the day shifts for December 15-17, 2016. He
did not work Sunday, December 18, 2016. Docket No. 131, UMF #24 (admitted in
Plaintiff’s response thereto); Docket No. 169, UMF #2.
80. Mike Smead testified that he was not aware of Plaintiff’s condition until it was reported
in the McAlester New Capital. Smead Depo., Docket No. 172-14 at 75. He testified that
he has no memory of being told. Id. at 87-88. He further testified that if he had been told
about an inmate having a prolonged erection, that he thinks it would stand out in his
memory. Id. at 88-89. He testified that if he had heard of an inmate having such a
condition, he would have contacted the nurse, and if he could not reach her, then the jail
administrator, and he would take the steps necessary to get the inmate medical treatment.
Id. at 89.
81. Plaintiff testified that he spoke with Smead around lunchtime, telling him that “I took a
pill, I’ve had a hard-on for longer than I should, and I needed to see the nurse.” Docket
No. 131, UMF #15 (admitted in Plaintiff’s response thereto) Plaintiff Depo., Docket No.
172-11 at 99. Plaintiff testified that he showed Smead his penis probably a couple of
times throughout the weekend and that he told him every time he saw him about his
condition. Plaintiff Depo., Docket No. 172-11 at 118 and 124.
82. Plaintiff testified that during the times he spoke with Smead about his condition, Smead
“kind of snickered,” but then would also try to be sympathetic and say he was trying to
get ahold of the nurse. Plaintiff Depo., Docket No. 172-11 at 155-56.
83. Nurse Crawford testified that when she asked Smead why no one called her, Smead
replied that he thought Plaintiff was just playing. Crawford Depo., Docket No. 172-13 at
70-71.

22

Edward “Tyler” Morgan
84. In December 2016, Edward Morgan was a sergeant who worked only night shifts from
6:00 p.m. to 6:00 a.m. the following day. Docket No. 130, UMF #10 (admitted in
Plaintiff’s response thereto).
85. During the night shift, sight checks of the male pods were generally done by the jailer in
the tower, not a jailer in the pod area. Docket No. 130, UMF #11 (admitted in Plaintiff’s
response thereto).
86. Plaintiff testified that Edward Morgan was the first jailer he told about his erection
problem, doing so via the intercom before or after breakfast on December 16, 2016.
Docket No. 130, UMF #14 and 15 (admitted in Plaintiff’s response thereto).
87. Plaintiff claims to have spoken to Edward Morgan only the one time in jail via the
intercom around breakfast time on December 16, 2016. Docket No. 130, UMF #17
(admitted in Plaintiff’s response thereto). Plaintiff testified that he knew it was “Tyler”
Morgan because he remembered his voice. Lance Depo. Docket No. 172-11 at 94.
88. Edward Morgan disputes that Plaintiff informed him of his condition via the intercom, as
he was not in the control tower. Edward Morgan Depo., Docket No. 172-15 at 73 and
95-98. Edward Morgan further testified that the fact that there is no notation in the tower
logbook suggests that Plaintiff did not use the intercom and inform any jailer. Id. at 98.
Edward Morgan testified that he was not aware of Plaintiff’s priapism until at least
December 29, 2016 when he returned to work after taking vacation days. Id. at 49-50
and 92.
89. The tower log shows that Edward Morgan moved an inmate and was passing out
medications on the December 15, 2016 night shift. Tower Log, Docket No. 130-7.

23

90. Edward Morgan testified that if informed of a medical problem, he would start with the
chain of command unless there was a pressing medical need and he had to act right then.
Id. at 99-100.
Sheriff Kerns
91. Sheriff Kerns was not aware of Plaintiff’s priapism on or before Monday, December 19,
2016, and was not involved in the assessment, diagnosis, transportation, or treatment of
Plaintiff. Docket No. 129, UMF # 3 (undisputed in Plaintiff’s response thereto). 19
92. Sheriff Kerns performed his duties maintained normal office hours in December 2016.
Kerns Depo., Docket No. 129-13 at 4-5; Edward Morgan Depo., Docket No. 126-6 at 5;
Sparks Depo., Docket No. 129-15 at 5. 20

V.

Claims Against Defendants Sued in their Individual Capacities 21
Plaintiff brought § 1983 claims against Edward Morgan, Mike Smead, Daniel Harper,

Dakota Morgan, and former sheriff Joel Kerns in their individual capacities. These Defendants
deny that they violated Plaintiff’s constitutional rights. They also assert the affirmative defense
of qualified immunity.
Plaintiff alleges that Defendants Smead, Harper, Dakota Morgan, and Edward Morgan
were deliberately indifferent to his serious medical needs in violation of his constitutional rights.

19

Plaintiff argues this fact is not relevant, as Sheriff Kerns’ personal involvement is not
required for supervisor liability.
20
While Nurse Crawford speculated that Kerns was absent in December following the loss
of his son and the November election, she also acknowledged that she did not actually know
whether he was in the office. Docket No. 129-7 at 11.
21
Plaintiff has abandoned his claim against Defendant Stephen Sparks based on evidence
that Sparks was not the transport jailer who returned him to the PCCJC. Plaintiff’s Resp., Docket
No. 197 at 1-2. Accordingly, Sparks’ motion for summary judgment is granted.
24

Specifically, he claims that despite knowledge of his condition, they did not get him any medical
help on December 16, 17, and 18, 2016. He also claims he should have been taken directly to St.
Francis from MRHC on December 19, 2016.
Plaintiff claims that Defendant Sheriff Kerns failed to provide supervision over the
PCCJC and that Sheriff Kerns adopted and enforced policies or practices that permitted jail staff
to ignore Plaintiff’s emergent medical needs and the physician’s order to immediately transport
him to St. Francis. He claims Sheriff Kerns’ failures were the moving force behind the jailers’
delaying and denying Plaintiff medical treatment.
Pretrial detainees are protected from deliberate indifference to their serious medical needs
under the Fourteenth Amendment rather than the Eighth Amendment. Lopez v. LeMaster, 172
F.3d 756, 759 n.2 (10th Cir. 1999). Nevertheless, the analysis is identical. Id. To prevail on a §
1983 claim of deliberate indifference to serious medical needs, proof of negligence or
“inadvertent failure to provide adequate medical care” is not enough. Self v. Crum, 430 F.ed
1227, 1230 (10th Cir. 2006). A plaintiff must show “acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs.” Id. (emphasis added).
To that end, a plaintiff must satisfy a two-pronged inquiry, comprised of an objective and
subjective component. Id. (citing Farmer v. Brennan, 511 U.S. 825 (1994)). “Under the
objective inquiry, the alleged deprivation must be ‘sufficiently serious’ to constitute a
deprivation of constitutional dimension.” Id. (citation omitted). Under the subjective inquiry,
the official “must have a ‘sufficiently culpable state of mind.’” Id. at 1230-31 (citation omitted).
An official “cannot be liable 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.” Id.

25

at 1231. (citation omitted). “The fact that a serious medical need was ‘obvious’ could be
evidence of deliberate indifference, although a ‘prison official may show that the obvious
escaped him’ and avoid liability.” Id. (citation omitted).
Citing Kingsley v. Hendrickson, --- U.S. ---, 135 S.Ct. 2466 (2015), Plaintiff argues that
because he was a pretrial detainee protected under the Fourteenth Amendment, the court must
apply only the objective component of the traditional analysis to determine whether Defendants
were deliberately indifferent to his medical needs. The Tenth Circuit has noted that Kingsley
involved “an excessive-force claim where there was no question about the intentional use of
force against the prisoner,” and the analysis therein “may not apply to a failure to provide
adequate medical care or screening, where there is no such intentional action.” Crocker v.
Glanz, 752 Fed.Appx. 564, 569 (10th Cir. 2018) (unpublished).
While the Tenth Circuit has not yet definitively ruled on the issue, 22 the court believes
that the subjective element – the defendant’s state of mind, that he acted deliberately – is
necessary to prove a claim of deliberate indifference to serious medical needs under either a
Fourteenth Amendment or an Eighth Amendment analysis. Like the Northern District of
Oklahoma, this court will follow existing Tenth Circuit precedent. See Burke v. Regalado, No.
18-CV-231-GKF-FHM, 2019 WL 1371144, *4 (N.D. Okla. Mar. 26, 2019) (“Because Kingsley
did not address the standard applicable to a pretrial detainee’s denial of medical care claim, this
court follows existing Tenth Circuit precedent as to the appropriate standard.”).

22

The Tenth Circuit has since noted the split amongst the Circuits on this issue, but has not
yet definitively ruled on it. Burke v. Regalado, --- F.3d ---, No. 18-5042 and 18-5043, 2019 WL
3938633 at * 14, n. 9 (10th Cir. Aug. 20, 2019); Estate of Vallina v. County of Teller Sheriff’s
Office, 757 Fed.Appx. 643, 646-47 (10th Cir. 2018) (unpublished).
26

Plaintiff has produced evidence that he suffered from a priapism at the jail from the early
morning hours of Friday, December 16, 2016 until he was sent to MRHC on the morning of
Monday, December 19, 2016. He testified and two other inmates also declared that he told every
guard with whom he came into contact about his condition and need for medical assistance. He
has presented evidence that under the rules and practices of the jail, he would have come in
contact with guards on numerous occasions during the weekend. He has presented evidence that
he took off his pants and walked around his cell without them over the weekend.
Defendants do not argue the objective prong of the test for deliberate indifference to a
serious medical need, conceding that Plaintiff has submitted sufficient evidence that the
deprivation was “sufficiently serious” to constitute a deprivation of constitutional dimension.
Instead, Defendants argue that there is not evidence to support the subjective prong of the
deliberate indifference test. They each deny knowledge of his condition. They also argue that
they did not violate a clearly established constitutional right. The court, of course, considers the
claims against and defenses of each Defendant separately.
Edward “Tyler” Morgan – Sergeant 23
In December 2016, Edward Morgan worked night shifts from 6:00 p.m. to 6:00 a.m.
Plaintiff claims that sometime in the early morning of December 16, 2016, the first jailer he told
of his condition was Edward Morgan over the intercom. Plaintiff claims he recognized Edward
Morgan’s voice. Plaintiff claims to have spoken to Edward Morgan only the one time. Lance
Depo., Docket No. 172-11 at 60 and 234. He told Edward Morgan that he had taken a pill he

23

Plaintiff makes no claims against Edward Morgan with regard to being taken directly
from MRHC to St. Francis.
27

found on the floor and had an erection he could not “get rid of.” Lance Depo., Docket No. 17211 at 42-43, 51-52, 59 and 93-95. While Edward Morgan disputes these allegations, viewing the
evidence in the light most favorable to Plaintiff, for purposes of the motion for summary
judgment, the court accepts them as true.
Taking the facts in the light most favorable to Plaintiff, he has not shown that Edward
Morgan was deliberately indifferent to his serious medical needs. He has failed to prove the
subjective prong of the deliberate indifference test. In the early morning hours of December 16,
2016, Plaintiff’s erection had persisted for a few hours at most. Plaintiff told Edward Morgan
that he took a pill and had an erection. There is no evidence that Plaintiff told Edward Morgan
when the erection began, how long it had lasted, or that he was in considerable pain. Plaintiff
has not presented evidence sufficient to show that Edward Morgan was deliberately indifferent to
his serious medical needs.
As the court finds that Edward Morgan did not violate Plaintiff’s constitutional rights,
Edward Morgan is also entitled to qualified immunity. Moreover, under these particularized
facts, Plaintiff has failed to show Edward Morgan violated any clearly established constitutional
right. Accordingly, Edward Morgan’s motion for summary judgment is granted.
Mike Smead – Sergeant 24
In December 2016, Mike Smead worked day shifts from 6:00 a.m. to 6:00 p.m. Smead
worked on December 15, 16, and 17. He did not work on Sunday, December 18. Viewing the
evidence in the light most favorable to Plaintiff, for purposes of this motion, the court accepts as
true the following facts: Plaintiff told Smead that he took a pill, had a prolonged erection, and

Plaintiff makes no claims against Mike Smead with regard to being taken directly from
MRHC to St. Francis.
24

28

needed to see the nurse. Additionally, Plaintiff showed Smead his penis a couple of times and
told Smead about his condition every time he saw Smead. Plaintiff has raised material issues of
fact as to whether Smead was deliberately indifferent to his serious medical needs.
Nevertheless, as Smead has asserted the defense of qualified immunity, Plaintiff has the
heavy burden to show not only that his constitutional right was violated, but that the right was
clearly established. Plaintiff need not identify a case with identical facts, but must identify a case
where an official acting under similar circumstances as Smead was held to have violated the
Constitution. Perry, 892 F.3d 1123-26. In response to Smead’s assertion of qualified immunity,
Plaintiff argues that a detainee’s right to medical care is clearly established.
Plaintiff further argues that severe pain triggers a duty for a medical professional to
respond. See Al-Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014). Al-Turki is the most
analogous case cited by Plaintiff. In that case, the plaintiff, a diabetic, had pain so severe, he had
collapsed, vomited, and believed he was dying. Ultimately, it was determined that his pain was
caused by a kidney stone, so the defendant nurse argued it was not serious. The Circuit Court
held that the pertinent question for determining entitlement to qualified immunity depends on the
facts known at the time. In Al-Turki, at the time the defendant chose to ignore the plaintiff’s
request for medical treatment, the “situation she confronted” was a diabetic inmate who had
collapsed on the floor, repeatedly vomited, and complained of severe abdominal pain.
In this case, Plaintiff told Smead that he had taken a pill and had a prolonged erection.
Plaintiff does not point to any case where an official acting under similar circumstances as
Smead was held to have violated the Constitution. Plaintiff has not met his heavy burden.
Accordingly, Smead is entitled to qualified immunity, and his motion is granted.

29

Daniel Harper – Jailer 25
During the relevant period, Daniel Harper worked one night shift on from 6:00 p.m. on
Sunday, December 18 to 6:00 a.m. on Monday, December 19. Harper passed out breakfast trays
before his shift ended on Monday, December 19. He also worked in the tower that night and was
to perform welfare checks from the tower and while cleaning. Plaintiff does not make any
allegations with regard to speaking to Harper specifically. 26 Viewing the facts in the light most
favorable to Plaintiff, however, there is a genuine issue of material fact as to whether Harper
knew of Plaintiff’s persistent erection and was deliberately indifferent to Plaintiff’s serious
medical needs.
Nevertheless, as Harper has asserted the defense of qualified immunity, Plaintiff has the
heavy burden to show not only that his constitutional right was violated, but that the right was
clearly established. Plaintiff does not point to any case where an official acting under similar
circumstances as Harper was held to have violated the Constitution. Plaintiff has not met his
heavy burden. Accordingly, Harper is entitled to qualified immunity, and his motion is granted.
Dakota Morgan – Detention Officer 27
During the relevant period, Dakota Morgan worked two day shifts from 6:00 a.m. to 6:00
p.m. on Friday and Saturday, December 16 and 17. 28 Dakota Morgan worked in the tower from
noon until 6:00 p.m. on Friday, December 16. Plaintiff argues that he called the tower during
that time complaining of his condition and pain. Plaintiff further argues that consistent with

Plaintiff makes no claims against Daniel Harper with regard to being taken directly from
MRHC to St. Francis.
26
Lance Depo., Docket No. 172-11 at 30-32.
27
Plaintiff makes no claims against Dakota Morgan with regard to being taken directly
from MRHC to St. Francis.
28
Dakota Morgan also worked a day shift on Thursday, December 15, but would have been
finished with his shift by the time Plaintiff took the trazadone.
25

30

Oklahoma’s jail standards, Dakota Morgan would have performed a total of seven sight checks
from noon to 6:00 p.m. on December 16, 2016, and that there is no evidence that Dakota Morgan
failed to conduct these hourly sight checks. Docket No. 197, UMF #s 9 & 10. While Plaintiff
did not have any specific testimony about speaking with Dakota Morgan, 29 viewing the facts in
the light most favorable to Plaintiff there is a genuine issue of material fact as to whether Dakota
Morgan knew of Plaintiff’s persistent erection and was deliberately indifferent to Plaintiff’s
serious medical needs.
Nevertheless, as Dakota Morgan has asserted the defense of qualified immunity, Plaintiff
has the heavy burden to show not only that his constitutional right was violated, but that the right
was clearly established. Plaintiff does not point to any case where an official acting under
similar circumstances as Dakota Morgan was held to have violated the Constitution. Plaintiff
has not met his heavy burden. Accordingly, Harper is entitled to qualified immunity, and his
motion is granted.
Joel Kerns – Former Sheriff
Plaintiff claims that Kerns failed to adequately train the jailer Defendants, that he failed
to provide any supervision or oversight, and that he adopted and enforced unconstitutional
policies or practices that permitted the jailer Defendants to ignore his medical needs and his
physician’s orders. Kerns had no personal contact with Plaintiff or direct and contemporaneous
knowledge of Plaintiff’s treatment by jail officials during the relevant period.
Thus, for Plaintiff to prevail on his supervisory claims against Kerns, he must show an
“affirmative link” between Kerns and a constitutional violation. Cox v. Glanz, 800 F.3d 1231,
1248 (10th Cir. 2015). To show an “affirmative link” between Kerns and the alleged

29

Lance Depo., Docket No. 172-11 at 236.
31

constitutional harm, Plaintiff must show: “(1) personal involvement, (2) sufficient causal
connection, and (3) culpable state of mind.” Id. (citing Dodds v. Richardson, 614 F.3d 1185,
1195 (10th Cir. 2010)). Plaintiff has failed to establish all three prongs.
First, as to the failure to get Plaintiff medical care over the weekend, Plaintiff has not
shown that any policy or practice caused the failure. In fact, the policies instructed jailers to go
up the chain of command as necessary to get inmates needed medical assistance. The Defendant
jailers were trained by state standards and also given on-the-job mentoring. Plaintiff has failed to
show any personal involvement by Kerns, supervisory or otherwise, in the alleged constitutional
violation. Plaintiff failed to show any causal connection between Kerns’ training, supervision,
policies or practices and the alleged constitutional violation. Plaintiff has also failed to show that
Kerns was deliberately indifferent to any such failure.
Second, Plaintiff argues that his constitutional rights were violated because he was not
taken by ambulance directly from MRHC to St. Francis. Plaintiff argues that Kerns’s policies
and practices caused this violation of his rights. Dr. Lee directed that Plaintiff be transported to
St. Francis immediately, but did not indicate on the transfer request form the means by which
Plaintiff was to be transported. Plaintiff was transported back to the jail to be released on a
medical recognizance bond. The total amount of time between Dr. Lee’s direction and Plaintiff
being released from the jail was less than two hours. When Plaintiff was released, Nurse
Crawford told his father that he needed to be transported directly to St. Francis. Rather than
transport him directly to St. Francis, his father ran errands and took him to St. Francis nearly five
hours later.
“Where a prisoner claims that harm was caused by a delay in medical treatment, he must
‘show that the delay resulted in substantial harm’ in order to satisfy the objective prong of the

32

deliberate indifference test.” Al-Turki, 762 F.3d at 1193. Plaintiff has not shown that the less
than two-hour delay in releasing him on the medical recognizance bond resulted in substantial
harm. Moreover, Plaintiff has failed to show any personal involvement, sufficient causal
connection, or culpable state of mind.
Sheriff Kerns has also asserted the defense of qualified immunity. Plaintiff, therefore,
has the heavy burden to show not only that his constitutional rights were violated, but that the
rights were clearly established. Plaintiff must show that “clearly established law . . . would . . .
have put a reasonable official in [Kerns’] position on notice that his supervisory conduct would”
violate Plaintiff’s constitutional rights. Perry, 892 F.3d 1123. Plaintiff has not pointed to any
case where an official acting under similar circumstances as Kerns was held to have violated the
Constitution. Plaintiff has not met his heavy burden. Accordingly, Kerns is entitled to qualified
immunity, and his motion is granted.

VI.

Official Capacity Claims Against Sheriff Morris
Plaintiff brings a claim against Sheriff Morris in his official capacity under § 1983 for

indifferent training and supervision and for unconstitutional policies or practices to deny
adequate medical care. For Plaintiff to prevail, he must show an underlying constitutional
violation and that such violation was caused by a policy, practice, or custom of the PCCJC or
that an official with final policy-making authority, i.e. former Sheriff Kerns, personally
participated in the alleged violation. Board of Cnty. Comm’rs. Of Bryan Cnty., Okl. V. Brown,
530 U.S. 397, 402-06 (1997).

33

As the court held above, Plaintiff has failed to show that any violation was caused by a
policy, practice or custom of the PCCJC or that former Sheriff Kerns personally participated in
any alleged violation. Accordingly, Sheriff Morris’ motion for summary judgment is granted.

VII.

Conclusion
For the reasons set forth herein, the motions for summary judgment are disposed of as

follows:
•

The motion by the Board [Docket No. 135] is GRANTED.

•

The motion by Edward Morgan [Docket No. 129] is GRANTED.

•

The motion by Mike Smead [Docket No. 131] is GRANTED.

•

The motion by Daniel Harper, Dakota Morgan, and Stephen Sparks [Docket No. 137] is
GRANTED.

•

The motion by Joel Kerns [Docket No. 129] is GRANTED.

•

The motion by Chris Morris [Docket No. 136] is GRANTED.

IT IS SO ORDERED this 20th day of September, 2019.

______________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

34