Capel et al v. Ottawa County Board of County Commissioners et al

Filing 217

OPINION AND ORDER by Judge Claire R Kelly : Defendants Floyd, Horn, Bray, Shoemaker, and Integris are not entitled to summary judgment of the Plaintiff's claims ; setting/resetting deadline(s)/hearing(s): The parties are ordered to confer and file with the Court a joint proposed scheduling order amending the dates in the Second Amended Scheduling Order, Dkt. 102 , on or before Friday, November 18, 2022 ( Miscellaneous Deadline set for 11/18/2022); denying 120 Motion fo r Summary Judgment; denying 131 Motion for Summary Judgment; denying 133 Motion for Summary Judgment; denying 134 Motion for Summary Judgment; denying 135 Motion for Summary Judgment (Re: 120 MOTION for Summary Judgment and Brief in Support, 131 MOTION for Summary Judgment and Brief in Support, 133 MOTION for Summary Judgment , 134 MOTION for Summary Judgment , 135 MOTION for Summary Judgment ) (clb, Dpty Clk)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
AUSTIN P. BOND, as Personal
Representative of the Estate of Terral
Ellis II, deceased, et al.,
Plaintiffs,

4:17-cv-00325-CRK-CDL

v.
The SHERIFF OF OTTAWA COUNTY
in his Official Capacity, et al.,
Defendants.
OPINION AND ORDER
This case involves a detainee Terrell Brooks Ellis II (“Ellis”) housed at a county
jail who died after requesting medical treatment. Ellis’ estate, Terral Ellis, Sr., and
Shelly Bliss (“Plaintiffs”) brought this action against the sheriff’s office managing the
jail, the nurse and detention officers who worked at the jail, and the emergency
medical ambulance services provider and its paramedics who responded to the jail.
Before the Court are five motions for summary judgment filed by defendants Jeremy
Floyd, 1 Theresa Horn, Johnny Bray, Charles Shoemaker, and Baptist Healthcare of
Oklahoma, LLC, d/b/a Integris Miami EMS, Kent Williams, and Jennifer Grimes

At the time of filing of his motion for summary judgment, Jeremy Floyd was the
elected Sheriff of Ottawa County, who Plaintiffs had sued in his official capacity. Def.
Floyd’s Mot. & Br. Summ. J. at 1, Dec. 13, 2019, ECF No. 120 (“Floyd Br.”). Since
Floyd filed his motion for summary judgment, he filed an unopposed motion to
substitute The Sheriff of Ottawa County in his Official Capacity in his place as
defendant, which the Court granted. See Minute Order, Feb. 6, 2020, ECF No. 169;
Def. Jeremy Floyd’s Unopposed Mot. Substitute Party, Jan. 31, 2020, ECF No. 164.
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(“Integris”). 2 Def. Floyd’s Mot. & Br. Summ. J., Dec. 13, 2019, ECF No. 120 (“Floyd
Br.”); Def. Theresa Horn’s Mot. Summ. J. and accompanying Br. in Supp., Dec. 18,
2019, ECF No. 131 (“Horn Br.”); Mot. Summ. J. Def. Johnny Bray and Supp. Br., Dec.
20, 2019, ECF No. 134 (“Bray Br.”); Mot. Summ. J. Def. Charles Shoemaker and Supp.
Br., Dec. 20, 2019, ECF No. 135 (“Shoemaker Br.”); Mot. Summ. J. Defs. Baptist
Healthcare of Okla., LLC d/b/a Integris Miami EMS, Kent Williams and Jennifer
Grimes, Dec. 18, 2019, ECF No. 133 (“Integris Br.”). Briefing was completed on
September 1, 2022. 3

Baptist Healthcare of Oklahoma, LLC, d/b/a Integris Miami EMS, Kent Williams,
and Jennifer Grimes (“Integris”) filed a joint motion for summary judgment. Mot.
Summ. J. Defs. Baptist Healthcare of Okla., LLC d/b/a Integris Miami EMS, Kent
Williams and Jennifer Grimes at 1, Dec. 18, 2019, ECF No. 133 (“Integris Br.”).
3 The Plaintiffs initially responded to each of the defendants’ motions for summary
judgment between January 17–22, 2020. See ECF Nos. 152–53, 157–59. The
defendants each filed their replies to those initial Plaintiffs’ responses between
January 30, 2020, and February 10, 2020. See ECF Nos. 162, 165, 174, 176–77.
Following a status conference on July 21, 2022, the Court ordered the Plaintiffs to
file amended responses to the pending motions and the defendants to file amended
replies supporting their motions, to comply with the local rules. Order, July 21, 2022.
ECF No. 204. The Plaintiffs filed their amended responses on August 11, 2022. Pls.’
Amend. Resp. Opp. [Floyd Br.], Aug. 11, 2022, ECF No. 205 (“Resp. Floyd Br.”); Pls.’
Amend. Resp. Opp. [Bray Br.], Aug. 11, 2022, ECF No. 206 (“Resp. Bray Br.”); Pls.’
Amend. Resp. Opp. [Horn Br.], Aug. 11, 2022, ECF No. 207 (“Resp. Horn Br.”); Pls.’
Amend. Resp. Opp. [Integris Br.], Aug. 11, 2022, ECF No. 208 (“Resp. Integris Br.”);
Pls.” Amend. Resp. Opp [Shoemaker Br.], Aug. 11, 2022, ECF No. 209 (“Resp.
Shoemaker Br.”). The defendants filed their amended replies on September 1, 2022.
Amend. Reply Br. by [Integris] Supp. Mot. Summ. J., Sept. 1, 2022, ECF No. 211
(“Integris Reply”); Reply Def. Johnny Bray to [Resp. Bray Br.], Sept. 1, 2022, ECF No.
212 (“Bray Reply”); Reply Def. Charles Shoemaker to [Resp. Shoemaker Br.], Sept. 1,
2022, ECF No. 213 (“Shoemaker Reply”); Def. Theresa Horn’s Amend. Reply Supp.
Her Mot. Summ. J., Sept. 1, 2022, ECF No. 214 (“Horn Reply”); Reply to [Resp. Floyd
Br.], Sept. 1, 2022, ECF No. 215 (“Floyd Reply”). Plaintiffs also filed a notice of
supplemental authority on January 22, 2021, see ECF No. 190, and a motion for a
hearing on defendants’ motions on January 20, 2022, see ECF No. 197, which the
Court denied on September 30, 2022, see ECF No. 216.
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JURISDICTION AND STANDARD OF REVIEW
Plaintiffs seek relief for violations of the Eighth and Fourteenth Amendments
and 42 U.S.C. § 1983 pursuant to 28 U.S.C. §§ 1331, 1343. Compl. ¶¶ 2–3, June 9,
2017, ECF No. 2. Plaintiffs also assert the Court’s supplemental jurisdiction over the
related state court claim for negligence pursuant to 28 U.S.C § 1367. Compl. ¶¶ 4,
65–78.
The Court shall grant summary judgment if there is no genuine dispute of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). When considering summary judgment, the court must view all facts
and inferences drawn from the record in the light most favorable to the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, only
disputes over material facts—those affecting the outcome of the case—preclude
summary judgment. Id. at 248.
The moving party need not affirmatively negate non-moving party’s claims but
rather need only point out there is an absence of evidence to support the non-moving
party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 325 (1986). The
burden then shifts to the non-moving party to show there is a genuine dispute over
material facts. Id. at 324.
Parties may show facts using any evidentiary materials listed in Federal Rule
of Civil Procedure 56(c), except the pleadings themselves. Celotex, 477 U.S. at 324.
While the form of the evidence need not be admissible, the content or substance of
the evidence must be admissible. Thomas v. Int’l Bus. Machines, 48 F.3d 478, 485

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(10th Cir. 1995). If a party fails to properly support an asserted fact or dispute an
opposing party’s asserted fact, the court may consider the fact undisputed for
purposes of the motion. Fed. R. Civ. P. 56(e)(2).
UNDISPUTED FACTS
The Court draws the following undisputed material facts from the record. 4
On October 17, 2015, Ellis complained of back pain reporting he believed his
back was broken. Horn 56-1 Statement ¶¶ 2–3; 5 Pls.’ 56-1 Statement (Horn) ¶¶ 2–
3. 6 Horn, the jail’s nurse, did not examine him at that time. Horn 56-1 Statement
¶¶ 2–3; Pls.’ 56-1 Statement (Horn) ¶¶ 2–3. Horn’s working hours appeared to be at
her discretion, and she was often not present during regular working hours. Pls.’ 561 Statement (Floyd) ¶ 22; 7 Floyd 56-1 Reply ¶¶ 22–25. 8

Several of the parties repeatedly failed to comply with LCvR 56-1 by filing a proper
statement of facts, even after the Court ordered the parties to re-file amended
responses and replies. Where a party failed to deny a properly supported fact offered
by an opposing party, the Court deems that fact as true. See Fed. R. Civ. P. 56(e)(2).
5 Horn included her statement of undisputed material facts pursuant to LCvR 56-1
in her motion brief, see Horn Br. at 1–8, and the Court refers to it as “Horn 56-1
Statement.”
6 Plaintiffs included their statement of undisputed material facts pursuant to LCvR
56-1 in their response brief, see Resp. Horn Br. at 1–14, and the Court refers to it as
“Pls.’ 56-1 Statement (Horn).”
7 Plaintiffs included their statement of undisputed material facts pursuant to LCvR
56-1 in their response brief, see Resp. Floyd Br. at 4–20, and the Court refers to it as
“Pls.’ 56-1 Statement (Floyd).”
8 Floyd included his statement of undisputed material facts pursuant to LCvR 56-1
in his reply brief, see Floyd Reply at 1–9, and the Court refers to it as “Floyd 56-1
Reply.”
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On October 19, 2015, Ellis complained of back pain to Horn directly, but this
time he believed he had kidney stones. Horn 56-1 Statement ¶ 4; Pls.’ 56-1 Statement
(Horn) ¶¶ 4–6. When Horn examined Ellis and identified a protrusion on his back as
a possible dislocated rib, she administered ibuprofen. Horn 56-1 Statement ¶ 5; Pls.’
56-1 Statement (Horn) ¶¶ 4–6.
On October 21, 2015, Ellis reported having a seizure to jail staff, 9 and Horn
instructed jail staff to call emergency services. Horn 56-1 Statement ¶ 7; Pls.’ 56-1
Statement (Horn) ¶ 7. Jail staff called emergency services, and paramedics Kent
Williams and Jennifer Grimes arrived. 10

Horn 56-1 Statement ¶ 8; Pls.’ 56-1

Statement (Horn) ¶¶ 8–11; Integris 56-1 Statement ¶¶ 2–3; 11 Pls.’ 56-1 Statement
(Integris) ¶¶ 2–3. 12 Ellis described experiencing a seizure and complained of back
pain and difficulty walking. Horn 56-1 Statement ¶ 10; Pls.’ 56-1 Statement (Horn)
¶¶ 8–11. Detention officer Bray and assistant jail administrator Shoemaker were
present at least part of the time when the responding paramedics examined Ellis.

For several undisputed facts, both Plaintiffs and defendants refer to statements
made by or to, or actions taken by, jail staff without identifying the individuals
involved.
10 Jennifer Grimes is now known as Jennifer Dillinger. Horn 56-1 Statement ¶ 8.
11 Integris included its statement of undisputed material facts pursuant to LCvR 561 in its motion brief, see Integris Br. at 4–7, and the Court refers to it as “Integris 561 Statement.”
12 Plaintiffs included their statement of undisputed material facts pursuant to LCvR
56-1 in their response brief, see Resp. Integris Br. at 2–5, and the Court refers to it
as “Pls.’ 56-1 Statement (Integris).”
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Bray 56-1 Statement ¶¶ 4–7; 13 Pls.’ 56-1 Statement (Bray) ¶¶ 4–7; 14 Shoemaker 561 Statement ¶¶ 8–9; 15 Pls.’ 56-1 Statement (Shoemaker) ¶¶ 8–9. 16 The paramedics
did not transport Ellis to the hospital at that time. See Horn 56-1 Statement ¶¶ 14–
15; Pls.’ 56-1 Statement (Horn) ¶¶ 14–15; Shoemaker 56-1 Statement ¶ 9; Pls.’ 56-1
Statement (Shoemaker) ¶¶ 8–9. The jail staff advised the paramedics that they
would place Ellis in a holding cell in view of the guard desk and would check him
every 15 minutes. Integris 56-1 Statement ¶ 10; Pls.’ 56-1 Statement (Integris) ¶¶
9–11. Further, the jail staff advised the paramedics that if Ellis’ condition changed,
they would call back emergency services immediately. Integris 56-1 Statement ¶ 11;
Pls.’ 56-1 Statement (Integris) ¶¶ 9–11.
Around 9:30–10:00 p.m. on October 21, 2015, detention officer Cartis Lawson
reported to Bray that Ellis said he could not feel his legs, and Bray called Horn. Bray
56-1 Statement ¶ 13; Pls.’ 56-1 Statement (Bray) ¶¶ 13–17; Horn 56-1 Statement ¶
16; Pls.’ 56-1 Statement (Horn) ¶ 16. Horn told Bray the paramedics had already
been to the jail earlier to check on Ellis. Bray 56-1 Statement ¶ 13; Pls.’ 56-1

Bray included his statement of undisputed material facts pursuant to LCvR 56-1
in his motion brief, see Bray Br. at 2–11, and the Court refers to it as “Bray 56-1
Statement.”
14 Plaintiffs included their statement of undisputed material facts pursuant to LCvR
56-1 in their response brief, see Resp. Bray Br. at 1–8, and the Court refers to it as
“Pls.’ 56-1 Statement (Bray).”
15 Shoemaker included his statement of undisputed material facts pursuant to LCvR
56-1 in his motion brief, see Shoemaker Br. at 2–12, and the Court refers to it as
“Shoemaker 56-1 Statement.”
16 Plaintiffs included their statement of undisputed material facts pursuant to LCvR
56-1 in their response brief, see Resp. Shoemaker Br. at 1–13, and the Court refers
to it as “Pls.’ 56-1 Statement (Shoemaker).”
13

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Statement (Bray) ¶¶ 13–17. Horn then advised Bray to insist Ellis get up and move
around, and that he needed to use the bathroom himself. Bray 56-1 Statement ¶ 13;
Pls.’ 56-1 Statement (Bray) ¶¶ 13–17. She also advised Bray to give Ellis over-thecounter pain medication and that she would be in to see him in the morning. Bray
56-1 Statement ¶ 13; Pls.’ 56-1 Statement (Bray) ¶¶ 13–17.
Around 10:23 p.m. on October 21, 2015, Ellis reported to Bray and Lawson that
his legs were numb, and Bray responded to Ellis he had no injuries that would cause
his legs to go numb and prevent him from moving his legs. Bray 56-1 Statement ¶
17; Pls.’ 56-1 Statement (Bray) ¶¶ 13–17. Bray admits that Ellis’ condition was
worsening. Pls.’ 56-1 Statement (Bray) ¶¶ 13–17; Bray 56–1 Reply ¶¶ 13–17. 17 Bray
did not call emergency medical services for Ellis the evening of October 21, 2015. Pls.’
56-1 Statement (Bray) ¶¶ 13–17; Bray 56–1 Reply ¶¶ 13–17.
On October 22, 2015, around 8:28 a.m., Ellis is heard moaning in distress, and
the jail staff mocked him and told him that they were not going to call emergency
services. Integris 56-1 Statement ¶ 17; Pls.’ 56-1 Statement (Integris) ¶¶ 15–22; Pls.’
56-1 Statement (Shoemaker) ¶15; Shoemaker 56-1 Reply ¶¶ 15–17. Around 8:59 a.m.
on October 22, 2015, Ellis asks for water, but a member of the jail staff refuses,
saying, “don’t let him fool you.” Integris 56-1 Statement ¶ 18; Pls.’ 56-1 Statement
(Integris) ¶¶ 15–22.

Bray included his statement of undisputed material facts pursuant to LCvR 56-1
in his reply brief, see Bray Reply at 2–11, and the Court refers to it as “Bray 56-1
Reply.”
17

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Around 10:45 a.m. on October 22, 2015, Ellis again complained of being unable
to walk, that his legs were black and blue, and that he was in pain. Horn 56-1
Statement ¶ 18; Pls.’ 56-1 Statement (Horn) ¶ 18; Shoemaker 56-1 Statement ¶ 22;
Pls.’ 56-1 Statement (Shoemaker) ¶ 22. Shoemaker was near the cell Ellis was in
when Horn arrived to examine him. Shoemaker 56-1 Statement ¶ 22; Pls.’ 56-1
Statement (Shoemaker) ¶ 22. Instead of referring Ellis for medical treatment, Horn
mocked and threatened him for reporting his symptoms, implied he was faking his
illness, and told him she was tired of dealing with him. Horn 56-1 Statement ¶ 18;
Pls.’ 56-1 Statement (Horn) ¶ 18; Pls.’ 56-1 Statement (Shoemaker) ¶ 22; Shoemaker
56-1 Reply ¶ 22; 18 Integris 56-1 Statement ¶ 19; Pls.’ 56-1 Statement (Integris) ¶¶
15–22. Despite hearing Horn mock and threaten Ellis, Shoemaker did nothing to
assist Ellis. Pls.’ 56-1 Statement (Shoemaker) ¶ 22; Shoemaker 56-1 Reply ¶ 22.
Around 1:45 p.m. on October 22, 2015, Horn contacted emergency services
when she noticed Ellis’ discolored eyes and skin, low body temperature and pressure,
and difficulty speaking. Horn 56-1 Statement ¶¶ 19–20; Pls.’ 56-1 Statement (Horn)
¶¶ 19–20; Integris 56-1 Statement ¶ 20; Pls.’ 56-1 Statement (Integris) ¶¶ 15–22.
Ellis died at the hospital at 2:51 p.m. from sepsis/septic shock resulting from acute
bronchopneumonia. Horn 56-1 Statement ¶ 22; Pls.’ 56-1 Statement (Horn) ¶ 22;
Integris 56-1 Statement ¶ 22; Pls.’ 56-1 Statement (Integris) ¶¶ 15–22.

Shoemaker included his statement of undisputed material facts pursuant to LCvR
56-1 in his reply brief, see Shoemaker Reply at 1–11, and the Court refers to it as
“Shoemaker 56-1 Reply.”
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There was no physician providing care at the jail even though the jail’s Medical
Services Policy required medical care to be delivered under the direction of a licensed
physician. Pls.’ 56-1 Statement (Floyd) ¶¶ 22–23; Floyd 56-1 Reply ¶¶ 22–25. The
Medical Services Policy also required a schedule for sick call, but the jail did not
maintain scheduled sick call or a sick call list. Pls.’ 56-1 Statement (Floyd) ¶¶ 22–23;
Floyd 56-1 Reply ¶¶ 22–25. Although the sheriff’s office contracted with a physician’s
assistant to visit the jail once a week for inmate medical exams, visits were not
regularly scheduled, and the physician’s assistant only visited the jail when and if
Horn called her. Pls.’ 56-1 Statement (Floyd) ¶ 24; Floyd 56-1 Reply ¶¶ 22–25. The
jail’s Emergency Medical Care policy permitted detention officers to call emergency
services if the nurse was unavailable, but detention officers were trained not to call
emergency services unless Horn approved them doing so. Pls.’ 56-1 Statement (Floyd)
¶ 26; Floyd 56-1 Reply ¶¶ 26, 28. The jail’s Medical Services Policy required the jail
administrator to review annually statistics on inmate medical care and also required
the jail administrator and nurse to review at least quarterly the medical care’s
effectiveness and efficiency. Pls.’ 56-1 Statement (Floyd) ¶ 32; Floyd 56-1 Reply ¶¶
31–32. These audits/reviews were never done. Pls.’ 56-1 Statement (Floyd) ¶ 32;
Floyd 56-1 Reply ¶¶ 31–32.
DISCUSSION
Floyd, Horn, Bray, Shoemaker, and Integris filed motions for summary
judgment. For the following reasons, the Court denies the motions.

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I.

Floyd’s Motion for Summary Judgment
Floyd moves for summary judgment arguing that Plaintiffs cannot sustain

their claim for municipal liability against him because Sheriff Durborow, the sheriff
holding office at the time of the alleged violation against Ellis, did not personally
participate in the alleged constitutional violation, 19 Floyd Br. at 12, the sheriff’s office
did not maintain unconstitutional customs, policies, or practices, id. at 13–17, and
the sheriff’s office did not fail to properly train its employees, id. at 17–19. Plaintiffs
argue Floyd is not entitled to summary judgment because he does not contest that
Horn and the detention officers committed underlying violations of Ellis’
constitutional rights, Resp. Floyd Br. at 34–35, and the sheriff’s office maintained
unconstitutional policies or customs, id. at 35–44. For the following reasons, the
Court denies Floyd’s motion for summary judgment.
By bringing a claim against an individual defendant in his official capacity,
Plaintiffs bring a claim for municipal liability. See Porro v. Barnes, 624 F.3d 1322,
1328 (10th Cir. 2010) (bringing a § 1983 claim against individual defendants in their
official capacities is another way of claiming against the municipality they represent).
For a claim for municipal liability, Plaintiffs must show (1) the existence of a
municipal custom or policy, and (2) the custom or policy caused the violation alleged.

The Plaintiffs argue they need not establish that Sheriff Durborow personally
participated in the alleged constitutional violations because their claims are treated
as against the sheriff’s office. See Resp. Floyd Br. at 34 n.12. Because municipalities
are only liable for their own unconstitutional or illegal policies and not for torts
committed by its employees, Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir.
1998), Sheriff Durborow’s personal participation in the alleged constitutional
violation is not material.
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Jenkins v. Wood, 81 F.3d 988, 993–94 (10th Cir. 1996) (citing City of Canton v. Harris,
489 U.S. 378, 385 (1989)).

Municipalities are only liable for their own

unconstitutional or illegal policies and not for torts their employees commit. Barney
v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998).
However, for their claim of municipal liability, Plaintiffs must show the
sheriff’s office took a deliberate culpable action depriving Ellis of his federal rights.
See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997) (holding
that a plaintiff must show the municipality took the action with the “requisite degree
of culpability” and caused the deprivation of rights).
A municipal policy or custom can take the following forms:
(1) a formal regulation or policy statement; (2) an informal custom
“amounting to a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled
as to constitute a custom or usage with the force of law; (3) the decisions
of employees with final policymaking authority; (4) the ratification by
such final policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to these
policymakers’ review and approval; or (5) the failure to adequately train
or supervise employees, so long as that failure results from “deliberate
indifference” to the injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quoting
Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189–90 (10th Cir.
2010) (quoting City of St. Lois v. Praprotnik, 485 U.S. 112, 127 (1988) and City of
Canton v. Harris, 489 U.S. 378, 388–91 (1989))) (internal quotation marks omitted).
Where municipal policy itself violates federal law, a plaintiff need only prove the
existence of the unlawful policy. Barney, 143 F.3d at 1307. A jail’s policy of deficient

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medical care supports municipal liability for the official managing the jail. Burke v.
Regalado, 935 F.3d 960, 1001 (10th Cir. 2019).
Plaintiffs establish a genuine dispute regarding facts which, if proven, could
lead to a jury verdict in its favor. First, Plaintiffs establish a genuine dispute of fact
as to whether the sheriff’s office had an informal practice of disregarding prisoners’
health complaints. Despite a written policy to the contrary, there was no physician
providing care at the jail. Pls.’ 56-1 Statement (Floyd) ¶¶ 22–23; Floyd 56-1 Reply ¶¶
22–25. There was also no regularly scheduled sick call at the jail despite a written
policy requiring the jail to maintain scheduled sick call. Pls.’ 56-1 Statement (Floyd)
¶¶ 22–23; Floyd 56-1 Reply ¶¶ 22–25. Horn, the jail’s nurse, was often not at the jail
during regular working hours. Pls.’ 56-1 Statement (Floyd) ¶ 22; Floyd 56-1 Reply
¶¶ 22–25. Although the jail contracted with a physician’s assistant to conduct inmate
medical exams once per week, she did not regularly visit and only came to the jail
when, and if, Horn requested her assistance. Pls.’ 56-1 Statement (Floyd) ¶ 24; Floyd
56-1 Reply ¶¶ 22–25. The sheriff’s office trained detention officers that they could
only send an inmate to emergency services if Horn approved it. Pls.’ 56-1 Statement
(Floyd) ¶ 26; Floyd 56-1 Reply ¶¶ 26, 28. Based on these facts, a factfinder could
determine the jail’s informal practice was to disregard inmate’s health complaints.
Second, Plaintiffs establish a genuine dispute whether the sheriff’s office failed
to adequately train and supervise its staff involved in this incident. Although written
policy required the jail administrator and nurse to conduct quarterly and annual
audits of the effectiveness and efficiency of the medical delivery system, the jail

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administrator and nurse never performed these audits. Pls.’ 56-1 Statement (Floyd)
¶ 32; Floyd 56-1 Reply ¶¶ 31–32. These failures to follow the jail’s own policy support
a possible finding that the sheriff’s office did not properly supervise its staff.
Additionally, a factfinder could determine the informal practice of disregarding
inmate health complaints and the sheriff office’s failure to train and supervise its
staff caused Ellis’ lack of access to medical treatment. Thus, Plaintiffs can sustain
their claim that the sheriff office’s practices subject it to municipal liability for
denying medical treatment for Ellis’ medical needs.
II.

Horn’s Motion for Summary Judgment
Defendant Horn moves for summary judgment arguing Plaintiffs cannot show

she was deliberately indifferent to Ellis’ serious medical needs or, alternatively, that
she is entitled to qualified immunity. Horn Br. at 1, 10–17. Horn also argues
Plaintiffs are not entitled to punitive damages in any case. Id. at 18. Plaintiffs
respond Horn is not entitled to summary judgment because there is evidence showing
she was deliberately indifferent to Ellis’ medical needs, Pls.’ Br. at 1, 18–23, and Horn
is not entitled to qualified immunity, id. at 23–27. Plaintiffs also argue they can
sustain their claim for punitive damages. Id. at 27–28. For the following reasons,
the Court denies Horn’s motion for summary judgment.
A.

Deliberate Indifference and Qualified Immunity

The Supreme Court characterizes deliberate indifference as recklessness,
which lies between negligence at one end of the spectrum and purpose or knowledge
on the other. Farmer v. Brennan, 511 U.S. 825, 836 (1994). Deliberate indifference

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does not require an express intent to harm, only that the official acted or failed to act
despite her knowledge of a substantial risk of serious harm. Mata v. Saiz, 427 F.3d
745, 752 (10th Cir. 2005). Whether a jail official knew of and disregarded a substantial
risk is a question of fact often inferred from circumstantial evidence, such as if the
risk was obvious. Estate of Beauford v. Mesa Cnty., 35 F.4th 1248, 1263 (10th Cir.
2022).
Deliberate indifference to the medical needs of a prisoner violates the Eighth
Amendment’s prohibition of cruel and unusual punishment. Estelle v. Gamble, 429
U.S. 97, 104 (1976).

Deliberate indifference requires plaintiff to identify an

objectively serious medical condition a prison official subjectively knew of and
disregarded. Estate of Beauford, 35 F.4th at 1262; Prince v. Sheriff of Carter Cnty.,
28 F.4th 1033, 1044 (10th Cir. 2022). A medical condition is sufficiently serious if it
has been diagnosed as mandating treatment or is so obvious even a lay person would
easily recognize the need for medical treatment. Al-Turki v. Robinson, 762 F.3d 1188,
1192–93 (10th Cir. 2014).

However, medical malpractice does not constitute

deliberate indifference under the Eighth Amendment. Green v. Branson, 108 F.3d
1296, 1303 (10th Cir. 1997). A delay in providing medical treatment only violates the
Eighth Amendment if the delay caused substantial harm to the inmate. Oxendine v.
Kaplan, 241 F.3d 1272, 1276–77 (10th Cir. 2001). “[L]ifelong handicap, permanent
loss, or considerable pain” could constitute substantial harm. Garrett v. Stratman,
254 F.3d 946, 950 (10th Cir. 2001).

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Plaintiffs must show that the official knew of and disregarded a substantial
risk to inmate health or safety. Farmer, 511 U.S. at 837. A medical professional who
serves as a “gatekeeper for other medical personnel capable of treating the condition”
can be liable for deliberate indifference by denying access to medical care if she delays
or refuses to fulfill her role as gatekeeper for other medical personnel. Sealock v.
Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). Further, a prison official acting as a
“gatekeeper” to medical care is not deliberately indifferent if the official did not
completely refuse the gatekeeper role and instead referred the prisoner for treatment.
Crowson v. Washington Cnty., 983 F.3d 1166, 1180 (10th Cir. 2020) (holding that
nurse was not deliberately indifferent where he requested psychological evaluation
of inmate, made notations in his file, and discussed his condition with the physician’s
assistant), cert. denied Washington Cnty. v. Crowson, 142 S. Ct. 224 (2021).
However, even if an official was aware of the substantial risk and the inmate
ultimately suffered harm, the official may not be liable if he or she responded
reasonably to the risk. Farmer, 511 U.S. at 844.
When a defendant asserts the defense of qualified immunity, the burden shifts
to the plaintiff to show: (1) the defendant violated the plaintiff’s constitutional right,
and (2) that constitutional right was clearly established. Prince, 28 F.4th at 1043;
T.D. v. Patton, 868 F.3d 1209, 1220 (10th Cir. 2017). Plaintiffs demonstrate a clearly
established constitutional right if there is binding precedent that existed when the
alleged violation occurred “placed the statutory or constitutional question beyond
debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v. Luna, 577

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U.S. 7, 12 (2015)). To demonstrate a clearly established right, a plaintiff must
identify a case holding that the defendant, acting under similar circumstances as
defendant in the instant case, violated plaintiff’s constitutional rights. White, 137 S.
Ct. at 552 (“the clearly established law must be ‘particularized’ to the facts of the
case”); T.D., 868 F.3d at 1220 (the “contours” of the constitutional right must have
been sufficiently definite to inform any reasonable official in the defendant’s shoes
that he or she was violating that right) (quoting City of San Francisco v. Sheehan,
135 S. Ct. 1765, 1774 (2015)).
Here, Plaintiffs dispute two material facts—whether Horn was aware Ellis had
a significant medical condition, and whether Horn denied medical treatment to him
by failing to treat him or refer him for treatment. Horn presents facts tending to
show she was unaware of the seriousness of Ellis’ medical condition until
approximately 1:45 p.m. on October 22, 2015, when she discovered his condition had
changed due to his difficulty speaking and symptoms of respiratory distress. Horn
56-1 Statement ¶¶ 4–5, 7–14, 20. In response, Plaintiffs point to facts showing Horn
should have been aware of how serious Ellis’ medical condition was prior to 1:45 p.m.
on October 22, 2015. Specifically, when Horn examined Ellis on October 19, 2015,
she failed to take his vital signs, Pls.’ 56-1 Statement (Horn) ¶¶ 4–6, which tends to
show Horn recklessly failed to inform herself of Ellis’ condition. Further, around 4:29
p.m. on October 21, 2015, the jail dispatcher informed Horn that Ellis appeared to be
having a seizure.

Pls.’ 56-1 Statement (Horn) ¶ 7.

Although Horn notes the

paramedics Williams and Grimes examined Ellis following his seizure and stated

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they did not consider Ellis’ condition to be serious, Horn 56-1 Statement ¶ 14,
Plaintiffs counter that the paramedics failed to fully examine Ellis’ vital signs. Pls.’
56-1 Statement (Horn) ¶¶ 8–11.

A jury could conclude that, regardless of the

paramedics’ awareness of Ellis’ condition, Horn was aware of the seriousness of Ellis’
condition. Plaintiffs point to facts that put Horn’s knowledge in dispute. For example,
on the evening of October 21, 2015, several hours after Ellis’ seizure, Bray informed
Horn that Ellis’ condition had changed, that he was complaining he could not feel his
legs, and that the paramedics said to call them back if his condition changed. Pls.’
56-1 Statement (Horn) ¶ 16. Contrary to Horn’s assertion that jail staff informed her
around 9:45 a.m. on October 22, 2015, that Ellis was not complaining, Horn 56-1
Statement ¶ 17, there are several statements showing Ellis to be in distress. Pls.’ 561 Statement (Horn) ¶ 17. Around 10:45 a.m. on October 22, 2015, Ellis complained
to Horn that he was unable to move and that his legs were turning black. Pls.’ 56-1
Statement (Horn) ¶ 18. Plaintiffs’ expert witness stated that discoloration of the legs
or mottling indicates the presence of sepsis. Pls.’ 56-1 Statement (Horn) ¶ 18. Sepsis
follows other infections like acute pneumonia, which if properly treated would have
prevented Ellis’ death according to Plaintiff’s expert. Pls.’ 56-1 Statement (Horn) ¶
24. The expert opined it is basic to care for an otherwise healthy individual like Ellis
who has a significant change in his health and that there were many opportunities
for individuals at the jail to intervene. Pls.’ 56-1 Statement (Horn) ¶ 24. Plaintiffs
therefore point to several facts contradicting Horn’s allegation she was unaware of
the seriousness of Ellis’ condition.

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Even if Horn had been aware Ellis’ condition was serious, Plaintiffs must still
show there is a genuine dispute whether Horn denied Ellis medical treatment or
failed to properly refer him for treatment. Horn provides several facts tending to
support her assertion that she responded reasonably to Ellis’ condition. See Horn 561 Statement ¶¶ 3, 5, 7, 19–20. In response, Plaintiffs allege several facts that Horn
denied or delayed providing Ellis access to treatment for his medical condition. When
Bray called Horn the evening of October 21, 2015, to report Ellis’ condition had
changed, Horn failed to call emergency services, despite the paramedics instructing
jail staff to call them back if Ellis’ condition changed. Pls.’ 56-1 Statement (Horn) ¶
16. On the morning of October 22, 2015, Horn instructed Shoemaker not to assist
Ellis in getting water or using the bathroom, even if he requested help. Pls.’ 56-1
Statement (Horn) ¶ 17.

Around 10:45 a.m. on October 22, 2015, when Ellis

complained of paralysis and discoloration of his legs, the undisputed facts are that
Horn mocked Ellis, cursed at him, insisted there was nothing wrong with him, and
threatened to shackle him to the “D ring,” a ring attached to the floor. Horn 56-1
Statement ¶ 18; Pls.’ 56-1 Statement (Horn) ¶ 18. Horn did not call the paramedics
until approximately 1:45 p.m. on October 22, 2015. Horn 56-1 Statement ¶¶ 19–20.
Thus, Plaintiffs raise facts that dispute Horn’s assertion she provided Ellis
appropriate medical treatment or referred him for treatment timely. See Farmer,
511 U.S. at 837 (jail staff are deliberately indifferent when aware of and disregard a
substantial risk to inmate health or safety); Sealock, 218 F.3d at 1211 (a medical
professional serving as gatekeeper for medical treatment is liable for deliberate

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indifference by denying access to medical care if she delays fulfilling her role as
gatekeeper).

A factfinder could reasonably find Horn was both aware of the

seriousness of Ellis’ medical condition and failed to either treat him or refer him to
another medical professional.
Horn argues she is entitled to qualified immunity.

Horn Br. at 14–17.

Plaintiffs have shown a clearly established constitutional right to adequate medical
care for a serious medical need. See Resp. Horn Br. at 25–26 (citing Estelle, 429 U.S.
at 103–04 (“deliberate indifference to serious medical needs of prisoners constitutes”
a violation of the Eighth Amendment); Mata, 427 F.3d at 749 (“there is little doubt
that deliberate indifference to an inmate’s serious medical need is a clearly
established constitutional right”); Sealock, 218 F.3d at 1211 (“deliberate indifference
occurs when prison officials prevent an inmate from receiving treatment or deny him
access to medical personnel capable of evaluating the need for treatment”)). As
discussed above, there is a genuine dispute whether Horn was aware of the
seriousness of Ellis’ condition and whether she refused to properly treat him or
delayed referring him to another medical professional for proper treatment. Thus,
Horn is not entitled to qualified immunity.
B.

Punitive Damages

A jury may assess punitive damages in a § 1983 action when there are facts
showing the defendant was motivated by evil motive or intent or was recklessly or
callously indifferent to the federal rights of others. Eisenhour v. Cnty., 897 F.3d 1272,
1280–81 (10th Cir. 2018) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). Reckless

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or callous indifference means acting “in the face of a perceived risk that [one’s] actions
will violate federal law.” Id. at 1281 (quoting Kolstad v. American Dental Ass’n, 527
U.S. 526, 536 (1999)).

Further, availability of punitive damages turns on the

defendant’s mental state rather than the degree of harm. Id. at 1281 (citing Kolstad,
527 U.S. at 538).
Horn argues Plaintiffs are not entitled to punitive damages because they
cannot show evidence she acted with reckless or callous disregard for Ellis’ rights.
Horn Br. at 18. However, there is a genuine dispute of fact whether Horn acted with
reckless or callous indifference towards Ellis’ rights by failing to provide him
adequate medical treatment. The record shows Ellis repeatedly reported his pain
and other symptoms. Horn 56-1 Statement ¶¶ 2–5, 9–10, 16, 18; Pls.’ 56-1 Statement
(Horn) ¶¶ 2–6, 8–11, 16, 18. On the morning of October 22, 2015, Horn not only
denied Ellis medical treatment, but she also mocked him and threatened him for
reporting those symptoms. Horn 56-1 Statement ¶ 18; Pls.’ 56-1 Statement (Horn) ¶
18. A reasonable factfinder could determine that mocking Ellis instead of providing
him medical treatment constitutes not only deliberate indifference but also reckless
or callous disregard for his rights.
III.

Bray and Shoemaker’s Motions for Summary Judgment
Bray and Shoemaker filed similar motions for summary judgment, arguing

they were unaware Ellis had a developing serious medical condition, relied on Horn
and the paramedics who examined Ellis, and that Plaintiffs have failed to establish
their conduct caused the harm to Ellis. Bray Br. at 1, 14–20; Shoemaker Br. at 1, 12–

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21. Bray and Shoemaker further argue they are protected by qualified immunity.
Bray Br. at 1–2, 21–23; Shoemaker Br. at 1, 22–25. Bray and Shoemaker also argue
Plaintiffs are not entitled to punitive damages. Bray Br. at 1–2, 24; Shoemaker Br.
at 1, 25. Plaintiffs respond that a reasonable jury could determine that Bray and
Shoemaker violated Ellis’ constitutional rights and that qualified immunity protects
neither Bray nor Shoemaker. Resp. Bray Br. at 10–18; Resp. Shoemaker Br. at 17–
24. For the following reasons, the Court denies Bray and Shoemaker’s motions for
summary judgment.
A.

Deliberate Indifference and Qualified Immunity

As discussed, deliberate indifference requires a plaintiff to identify an
objectively serious medical condition a jail official subjectively knew of and
disregarded.

Estate of Beauford, 35 F.4th at 1262; Prince, 28 F.4th at 1044.

Detention officers are deliberately indifferent when they intentionally interfere with
access to medical care, Estelle, 429 U.S. at 104–05, but not if they refer the inmate
for treatment.

Crowson, 983 F.3d at 1180.

A delay may violate the Eighth

Amendment if the delay causes substantial harm to the inmate. Oxendine, 241 F.3d
at 1276–77.
As discussed, when a defendant asserts the defense of qualified immunity, the
burden shifts to the plaintiff to show: (1) the defendant violated the plaintiff’s
constitutional right, and (2) that constitutional right was clearly established. Prince,
28 F.4th at 1043; T.D., 868 F.3d at 1220.

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Here, Plaintiffs dispute two material facts regarding Bray and Shoemaker’s
liability—whether they were aware Ellis had a significant medical condition and
whether they failed to seek medical treatment for him. Bray and Shoemaker present
facts tending to show they were unaware of the seriousness of Ellis’ medical condition.
Bray 56-1 Statement ¶¶ 4, 7, 10–12, 14–18; Shoemaker 56-1 Statement ¶¶ 8, 11–15,
18–19, 22. In response, Plaintiffs point to facts showing both Bray and Shoemaker
should have been aware of how serious Ellis’ medical condition was. Specifically,
Bray was present when the paramedics arrived on October 21, 2015, and knew Ellis
reported seizure symptoms. Pls.’ 56-1 Statement (Bray) ¶¶ 5–7. Bray admits the
paramedics instructed him to call them if Ellis’ condition changed, Pls.’ 56-1
Statement (Bray) ¶ 11, demonstrating he knew Ellis had a medical condition that
could get worse. Around 9:34 p.m. on October 21, 2015, Ellis told Bray his legs were
numb. Pls.’ 56-1 Statement (Bray) ¶¶ 13–17. Around 10:11 p.m., Ellis asked Bray to
call an ambulance. Pls.’ 56-1 Statement (Bray) ¶¶ 13–17. Bray admitted that Ellis’
condition on the evening of October 21, 2015, was deteriorating. Pls.’ 56-1 Statement
(Bray) ¶¶ 13–17.

Shoemaker was also present on October 21, 2015, when the

paramedics examined Ellis for seizure symptoms. Shoemaker 56-1 Statement ¶¶ 8–
9. Shoemaker was aware Ellis had been asking for help and that his condition had
deteriorated from the evening of October 21, 2015, to the morning of October 22, 2015.
Pls.’ 56-1 Statement (Shoemaker) ¶¶ 8–9. Shoemaker was present the morning of
October 22, 2015, when Ellis exhibited symptoms of distress and repeatedly asked for
help. Pls.’ 56-1 Statement (Shoemaker) ¶¶ 15, 20. Shoemaker later stated he did not

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believe Ellis was faking his symptoms. Pls.’ 56-1 Statement (Shoemaker) ¶ 18.
Shoemaker was present at approximately 10:42 a.m. on October 22, 2015, when Ellis
reported he could not feel his legs and that they were discolored. Pls.’ 56-1 Statement
(Shoemaker) ¶ 22. Thus, Plaintiffs raise facts tending to show Bray and Shoemaker
were aware of the seriousness of Ellis’ medical condition.
Even if Bray and Shoemaker had been aware Ellis’ condition was serious,
Plaintiffs must still show there is a genuine dispute whether they failed to seek
medical treatment for Ellis. Bray and Shoemaker provide several facts tending to
support their assertion that they relied on Horn or the paramedics and were therefore
relieved from their duty to seek proper treatment for Ellis. Bray 56-1 Statement ¶¶
4, 13–18; Shoemaker 56-1 Statement ¶¶ 15–17, 21–22, 24–25. In response, Plaintiffs
assert facts showing Bray and Shoemaker’s reliance on Horn was unreasonable and
that Bray and Shoemaker failed to obtain proper treatment for Ellis. Specifically, a
detention officer that Plaintiffs allege to be Bray told the paramedics on October 21,
2015, that Ellis was faking his illness and advised them not to take Ellis to the
hospital unless his condition was life threatening. Pls.’ 56-1 Statement (Bray) ¶¶ 5–
7. When Ellis reported his legs were numb the evening of October 21, 2015, Bray told
him he did not have any injuries that would cause him to be unable to move his legs.
Pls.’ 56-1 Statement (Bray) ¶¶ 13–17. When Horn told Bray on the evening of October
21, 2015, that she would not be in to examine Ellis until the following day, Bray still
did not call emergency services, despite the paramedics instructing him to do so if
Ellis’ condition changed. Pls.’ 56-1 Statement (Bray) ¶¶ 13–17. On the morning of

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October 22, 2015, when Ellis repeatedly asked for help, Shoemaker refused to help
him and instead informed him that he did not believe him and that he would not call
emergency services. Pls.’ 56-1 Statement (Shoemaker) ¶¶ 15–16, 18. Shoemaker
repeatedly ignored Ellis’ cries for help. Pls.’ 56-1 Statement (Shoemaker) ¶¶ 18–20.
When Horn mocked and threatened Ellis in response to his complaint that he couldn’t
feel his legs and they were discolored, Shoemaker did nothing to help Ellis. Pls.’ 561 Statement (Shoemaker) ¶ 22. Thus, Plaintiffs raise facts disputing Bray and
Shoemaker’s assertions that they sought medical care for Ellis. A factfinder could
reasonably find Bray and Shoemaker knew Ellis’ condition was serious yet denied
him access to treatment.
Bray and Shoemaker are not entitled to qualified immunity. Plaintiffs have
shown there is a clearly established constitutional right to adequate medical care and
to be free from denial of care for a serious medical need. Further, there is a genuine
dispute whether Bray and Shoemaker were deliberately indifferent to Ellis’ serious
medical needs by delaying or denying him access to proper medical treatment, in light
of Horn’s refusals to properly treat Ellis or refer him to another medical provider.
B.

Punitive Damages

Bray and Shoemaker also argue they are entitled to summary judgment of
Plaintiffs’ claim for punitive damages because there is no evidence Bray and
Shoemaker deliberately intended to cause Ellis any harm. Bray Br. at 24; Shoemaker
Br. at 25. However, Bray and Shoemaker were aware Ellis had a seizure and was
continuing to experience symptoms when they allegedly delayed seeking medical

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treatment for him. Bray 56-1 Statement ¶ 4, 13; Pls.’ 56-1 Statement (Bray) ¶¶ 4,
13–17; Bray 56–1 Reply ¶¶ 4, 13–17; Shoemaker 56-1 Statement ¶¶ 8, 22; Pls.’ 56-1
Statement (Shoemaker) ¶¶ 8–9, 22; Shoemaker 56-1 Reply ¶¶ 8, 22. Because there
is a genuine dispute whether Bray and Shoemaker were deliberately indifferent to
Ellis’ medical needs, which a factfinder could find constitutes reckless or callous
indifference, summary judgment on the Plaintiffs’ punitive damages claims against
Bray and Shoemaker fails.
IV.

Integris’ Motion for Summary Judgment
Integris argues the Court should conclude as matter of law that the conduct of

jail staff is an intervening and superseding cause regardless of any breach of care on
its part. Integris Br. at 4. Plaintiffs oppose the motion for summary judgment
arguing that, because the conduct of the jail staff was foreseeable to Integris, their
conduct cannot be an intervening cause. Resp. Integris Br. at 7–9. For the following
reasons, the Court denies Integris’ motion for summary judgment.
Medical providers owe a duty of care to patients. Franklin v. Toal, 19 P.3d 834,
837 (Okla. 2001). Providers who fail to comply with the standard of care may be liable
for negligence. Id. For a defendant to be liable for negligence, defendant’s conduct
must proximately cause the harm at issue. Thompson v. Presbyterian Hosp., Inc.,
652 P.2d 260, 263 (Okla. 1982). The proximate cause of an injury must be the
“efficient” cause that sets in motion the chain of circumstances leading to an injury.
Thur v. Dunkley, 474 P.2d 403, 405 (Okla. 1970). If the negligence complained of
merely creates a condition permitting the injury to occur and a subsequent

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independent act causes the injury, then the existence of such condition is not the
proximate cause of the injury because the intervening act causes the injury. Id.
The intervention of a new, independent, and efficient cause, which was neither
anticipated nor reasonably foreseeable, breaks the “causal connection” between an
act of negligence and the resulting injury.

Thompson, 652 P.2d at 263–64.

Nonetheless, not every intervening act severs the causal link between the negligence
and the injury. Johnson v. Hillcrest Health Ctr., Inc., 70 P.3d 811, 819 (Okla. 2003).
When a cause combines with another act, or several events coincide to cause a single
injury, the court can hold each negligent actor accountable. Id. Concurrent causes
are those “acting contemporaneously,” which together cause an injury that would not
have resulted without both actions. City of Okmulgee v. Hemphill, 83 P.2d 189, 191
(Okla. 1938).
The question of proximate cause becomes an issue of law when there is no
evidence from which a jury could “reasonably” find the required causal nexus between
the negligent act and the injury. Henry v. Merck & Co., 877 F.2d 1489, 1495 (10th
Cir. 1989).

The court may find a cause is not the proximate cause where an

intervening act broke the causal nexus. Id. A true intervening act must meet a threeelement test; it must be: “(1) independent of the original act, (2) adequate of itself to
bring about the result and (3) one whose occurrence was not reasonably foreseeable.”
Thompson, 652 P.2d at 264.

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The first element, an independent, intervening act, is one that is “not logically
compelled by, and does not naturally flow from,” the original negligence. Henry, 877
F.2d at 1495. The intervening act may be linked to the original act but cannot be
“invited by nor an ordinary response to” the original act. Id.
The second element, whether an act is adequate to bring about the result,
necessarily requires a determination, as a matter of law, as to causation. Thus,
granting judgment as a matter of law based on an intervening cause should only be
done after cause-in-fact is established. See W. Page Keeton, et al., Prosser and
Keaton on the Law of Torts § 44, at 301 (5th ed. 1984) (discussing that causation is
not an issue in actions involving intervening cause because causation does not arise
until a plaintiff establishes cause-in-fact); see, e.g., Waste Mgmt., Inc. of Tenn. v. S.
Cent. Bell Tel. Co., 15 S.W.3d 425, 432 (Tenn. Ct. App. 1997) (stating that intervening
acts appear as a legal question only at issue once plaintiff establishes causation-infact).
The third element is that the occurrence of the intervening act must not be
reasonably foreseeable. If there is “room for reasonable difference of opinion as to
whether such act was [wrongful] or foreseeable, the question should be left for the
jury.” Trask v. Franco, 446 F.3d 1036, 1047 (10th Cir. 2006) (quoting Restatement
(Second) of Torts § 453 cmt. b (1965)).
Here, genuine disputes of material fact as to the three elements of whether the
conduct of the jail staff is a supervening cause preclude summary judgment for
Integris. See Anderson, 477 U.S. at 248. Although Plaintiff only contests the element

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of foreseeability, see Resp. Integris Br. at 8–9, none of the elements have been
established. Plaintiffs present a disputed material fact tending to show the conduct
of the jail staff was foreseeable. Plaintiffs claim a detention officer, believed to be
Bray, told the paramedics Ellis was “faking” his condition and if the illness was not
“life-threatening” not to take him to the hospital. Pls.’ 56-1 Statement (Integris) ¶¶
4–5. A jury could conclude, based on the fact that Bray told the paramedics Ellis was
“faking” his illness, that the paramedics should have foreseen the jail staff’s
mistreatment and thus should have taken him to the hospital.
Integris has also not established the lack of a genuine dispute of fact as to the
other two elements. While Plaintiffs assume, without discussing, that the acts of the
jail staff are independent and causal, see Resp. Integris Br. at 7–8, Horn, Shoemaker,
Bray, and Floyd dispute that their conduct was the cause of Ellis’ injury and challenge
Integris’ facts regarding their conduct. Horn denies committing any wrongdoing
towards Ellis. Def. Theresa Horn’s First Am. Partial Answer Pls.’ Compl. ¶ 1, Oct.
20, 2017, ECF No. 53. Horn also denies Ellis died while in the jail’s custody. Id. ¶
22. Further, Horn denies telling Ellis he was faking and that she did not refer him
to a physician. 20 Id. ¶¶ 23–32. Bray and Shoemaker deny having any responsibility
or liability for the violation of Ellis’ constitutional rights. Answer Def. Shoemaker to
Pls.’ Compl. ¶ 1, Aug. 2, 2018, ECF No. 69 (“Shoemaker Answer”); Answer Def. Bray

Although Horn states in her answer that she did not fail to refer Ellis to a physician,
see Compl. ¶¶ 23–32, she did not deny Plaintiffs’ undisputed fact that she failed to
provide medical care to Ellis after mocking and threatening him around 10:44 a.m.
on October 22, 2015. See Pls.’ 56-1 Statement (Horn) ¶ 18; Horn Reply.
20

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to Pls.’ Compl. ¶ 1, Aug. 2, 2018, ECF No. 70 (“Bray Answer”). Bray and Shoemaker
deny that jail staff told Ellis the jail would not pay for the emergency services visit,
or that anyone was “deliberately indifferent” to him. Shoemaker Answer ¶ 30; Bray
Answer ¶ 30. Floyd asserts he committed “no wrongdoing” toward Ellis. Def. Jeremy
Floyd’s First Am. Partial Answer Pls.’ Compl. ¶ 1, Oct. 20, 2017, ECF No. 51. These
arguments embrace the ultimate issue of the liability of the other defendants.
Therefore, because causation in fact of the harm done to Ellis has not been
established, the questions of causation and intervening cause are for the factfinder,
and Integris’ motion for summary judgment fails.
CONCLUSION
Thus, Floyd, Horn, Bray, Shoemaker, and Integris are not entitled to summary
judgment of the Plaintiffs’ claims. It is,
ORDERED that Defendant Floyd’s Motion for Summary Judgment is denied;
and it is further
ORDERED that Defendant Theresa Horn’s Motion for Summary Judgment is
denied; and it is further
ORDERED that the Motion for Summary Judgment of Defendant Johnny
Bray is denied; and it is further
ORDERED that the Motion for Summary Judgment of Defendant Charles
Shoemaker is denied; and it is further

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ORDERED that the Motion for Summary Judgment by Defendants Baptist
Healthcare of Oklahoma, LLC d/b/a Integris Miami EMS, Kent Williams and Jennifer
Grimes is denied; and it is further
ORDERED that the parties confer and file with the Court a joint proposed
scheduling order amending the dates in the Second Amended Scheduling Order, see
ECF No. 102, on or before Friday, November 18, 2022.
/s/ Claire R. Kelly
Claire R. Kelly, Judge *
Dated:

November 4, 2022
New York, New York

Judge Claire R. Kelly, of the United States Court of International Trade, sitting by
designation.
*

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