Maguire v. Patterson

Filing 226

MEMORANDUM DECISION AND ORDER granting 211 Motion for Summary Judgment. Signed by Judge Bruce S. Jenkins on 6/28/2018. (las)

FILED
2018 JUN 28 AM 11:03
CLERK
U.S. DISTRICT COURT

INTHE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH CENTRAL DIVISION

STEVE SPENCER, representative of
the ESTATE OF BRIAN
MAGUIRE,
Plaintiff,
v.
DR. RICHARD GARDEN, et al.,

MEMORANDUM DECISION
AND ORDER GRANTING
DEFENDANT MILLER'S
MOTION FOR SUMMARY
JUDGMENT

Case No. 2:10-cv-00626
Judge Bruce S. Jenkins

Defendants.
INTRODUCTION

This case is about the medical care provided to Brian Maguire, an inmate
who was incarcerated at the Utah State Prison. All defendants and all claims have
been dismissed except for one: the Fifth Claim for Relief stated in Plaintiffs
Amended Complaint. 1 In this claim, Maguire alleges that from 8:30 p.m. through
5:00 a.m. on the night of June 15-16, 2008, the "counting officer"-one of John
Does #5, #6, or #7-failed to contact medical to respond to Maguire's requests for
help, following a "man down call" in which he was treated for seizure symptoms,

1

See Am. Compl. (doc. 31 ).

and failed to document the requests. 2 Maguire later alleged that Sergeant Jerry
Miller was "John Doe #5." 3
Before, during, or after the "man down" incident, Maguire suffered a stroke.
He alleges that Sgt. Miller's failure to respond to alleged requests for help, failure
to take action before the man down, failure to affirmatively follow-up on
Maguire's condition, and failure to pass on information about Maguire's condition
to corrections officers taking over the next shift violated Maguire's Eighth
Amendment right to be free from cruel and unusual punishment, and that such
deliberate indifference caused or exacerbated his stroke.
Sgt. Miller moved for summary judgment, arguing that he was not
deliberately indifferent to any serious medical need, or, in the alternative, that the
rights asserted by Maguire were not clearly established on the date of the incident. 4
Maguire opposed the motion, and oral argument was held on June 15, 2018. At
oral argument, the Court determined that there is a lack of admissible evidence to
suggest that Defendant Miller acted with deliberate indifference to Plaintiff's
serious medical needs. For the reasons stated at the hearing, and for the reasons
stated herein, Defendant Miller's Motion for Summary Judgment will be granted.

2

Id. iii! 71-81.
Mot. for Leave to File Am. Compl. (doc. 86), ii 4.
4
Def.'s Mot. for Summ. J. (doc. 211).
3

2

FACTS AND PROCEDURAL BACKGROUND
The following facts, viewed in a light most favorable to Maguire, form the
basis of the Court's order: 5
Sergeant Jerry Miller was, at all relevant times, employed as a sergeant with
the Utah Department of Corrections. He was on duty in the Uinta 5 unit of the
Utah State Prison in Draper, Utah, at about 7:40 p.m. July 15, 2008 when a "man
down" call came out for Plaintiff Brian Maguire, an inmate housed in the unit. 6 At
that time, Maguire was displaying symptoms consistent with a seizure: he was
convulsing, shaking, couldn't control his hand, and "flopping around like a fish." 7
That led other inmates in the housing unit to call for assistance. 8
Sgt. Miller heard the man down call and responded. 9 Two prison med-techs
(EMTs) Craig Jensen and Rodger Macfarlane, who were already in the building,
responded. 10 By the time they arrived, Maguire was responsive and
communicative. 11 The med-techs took Maguire's vital signs, spoke with him, and

5

Additional background facts describing the circumstances of Maguire's incarceration,
conditions, and treatment are contained in the Memorandum Decision and Order Granting in Part
and Denying in Part Defendants' Motion for Summary Judgment (doc. 189), and the Tenth
Circuit's opinion on Defendants' appeal of that order, Spencer v. Abbott_ F. App'x _ , 2017
WL 6016309 (10th Cir. Dec. 5, 2017). Because those facts are not relevant to the claims against
Sgt. Miller, they will not be duplicated in this opinion.
6
See Utah Department of Corrections Initial Contact Report (doc. 211, Ex. 3).
7
E.g., Jensen Dep. 22:19-22; Deel. of Craig Jensen, Ex. 7, if 11; MacFarlane Dep 32:20-33:4.
8
See Utah Department of Corrections Initial Contact Report (doc. 212, Ex. 3).
9

Id.
Id.
11 Id.

10

3

determined that he likely had a seizure. 12 Consistent with the common practice for
treating a seizure, the med-techs told Maguire to place his mattress on the floor to
ensure that he would not injure himself if he had another seizure that night and
suggested that he see a physician in the morning. 13 They told him that ifhe had
additional problems, to alert Sgt. Miller, and then they would come and talk to
him. 14 After the med-techs provided care, they left.

15

One of the tasks to be completed following- the incident was the "count" of
inmates at 8:30 p.m., about forty-five minutes after the end of the incident.

16

This

was a "stand-up" count where officers required the inmates to stand up to be
counted and had to match the inmates with a log book containing photographs of
their faces. 17 Two officers are responsible for completing the 8:30 count.

18

Though Sgt. Miller does not remember being part of the 8:30count,

19

documents indicate he played a role, and the Court accepts that he participated in
the count for the purpose of this motion. 20 When one of the counting officers came
to Maguire, the counting officer asked Maguire to get up. 21 Maguire told the

Id.
Id.
14
Maguire Dep. 30:6-16, 31 :13-14.
15
Maguire Dep. 30:18-22.
16
Miller Dep. 34:7-20, 37:18-38:3.
17 Id.
18
Miller Dep. 37:25-38:2.
19
MillerDep. 33:3-7.
20
See Uinta 5 Daily Log (doc. 212, Ex. 5).
21
Maguire Dep. 30:23-31:16.
12
13

4

counting officer "I can't stand up, I can't even sit up." 22 Though the counting
officer threatened to report Maguire for refusing a direct order, no sanction came
''because obviously [the counting officer] talked to the other officers that were
they, and they told him that it was a disputation where ... they had received
instructions from medical to leave me on the floor .... " 23
Maguire has never described any interaction with Sgt. Miller during the 8:30
incident. 24 Maguire never alleged that he asked Sgt. Miller-or anyone-for help
immediately following the man-down incident or at the 8:30 count.

25

It was not until 9 or 9:30 p.m. that Maguire himself believed he needed
further medical assistance. 26 Starting at the 10:30 p.m. count (the next count after
the 8:30 count), and continuing on through the night, Maguire specifically asked
the officer performing each count to get medical, because he was having cramping
muscle twitches. 27 Maguire did not yell for help, or call "man down" as had been
done before because he did not want to disturb any other sleeping inmates. 28 At
some point, perhaps by the 2:00 a.m. or 3 :00 a.m. count, the officers simply
stopped coming by Maguire's· cell. 29

22

Id. at 31 :4-5.
Id. at 31 :8-12.
24 Id.
23

25

Id.; see also id. at 32:3-12.
Id. at 194:9-24.
27
Maguire Dep. 31: 15-32:31.
28
Maguire Dep. 165:7-14.
29
Maguire dep. 33:7-34:2.
26

5

But Sgt. Miller was not there to hear any requests for aid, nor observe
Maguire's condition, because Sgt. Miller's shift ended at 10:00 p.m. that night. 30
After the 8:30 p.m. count, Miller had no more interaction with Maguire that day.

31

At the pill line the next morning, Maguire complained of left-sided
weakness. 32 He was taken to the infirmary, and prison medical staff sent him to
the hospital. 33 He was diagnosed as having a stroke. 34 He was returned to prison
and was regularly treated for the effects of the stroke. 35 Maguire was later also
diagnosed with terminal liver cancer, a condition unrelated to the stroke or
seizures. 36 He passed away in 2015 from the cancer. 37
Before he passed away, Maguire sued medical staff, the responding medtechs, and Sgt. Miller, alleging they were deliberately indifferent to his serious
medical needs, not only in responding to the man down call, but in a variety of
ways in treating a variety of Maguire's ailments. 38 In a previous order, a judge of
this Court granted summary judgment to most of the medical staff but denied

30

Miller Dep. 29:21-24 ..
Id.
32
Maguire Dep. 34:20-35:12 .
33
. Id. at 169:23-170:15.
34
UDOC Hard Chart 000001 (doc. 211, Ex. 8).
35
Maguire Dep. 170:16-19.
36
Id. at 43:11-23, 183:3-8.
37
See Statement Noting a Party's Death (doc. 173) at 1. Steve Spencer, the personal
representative of Maguire's estate, substituted as plaintiff in the action. Joint-Status Update (doc.
174) at 1. For consistency's sake, the Court will refer to the plaintiff as Maguire throughout the
opinion.
3
See Amended Complaint (doc. 31 ).
31

6

summary judgment to the two med-techs and Sgt. Miller. 39 The Tenth Circuit
reversed as to the med-techs, granting them summary judgment, but determined it
did not have jurisdiction to reach Sgt. Miller's appeal and dismissed it. 40
The only claim remaining is Maguire's deliberate indifference claim lodged
against Sgt. Miller. After remand, the parties engaged in limited discovery, and
Sgt. Miller then moved for summary judgment. In his motion, Sgt. Miller asserts
that, as a matter of law, he was not deliberately indifferent to any serious risk of
hann to Maguire. By raising the defense of qualified immunity, he also asserts that
any rights claimed to be violated by Maguire were not clearly established at the
time of the incident.

LEGAL STANDARD
Sgt. Miller's summary-judgment motion is governed by Federal Rule of
Civil Procedure 56. Summary judgment shall be granted to the moving party when
the record 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); see also

Jones v. Salt Lake County, 503 F.3d 1147, 1152-53 (10th Cir. 2007) (citing former
Federal Rule of Civil Procedure 56(c)). Sgt. Miller has the initial burden to
establish the absence of material fact to support the non-moving party's claims.

39

See Memorandum Decision and Order Granting in Part and Denying in Part Defendants'
Motion for Summary Judgment (doc. 189).
40
See Order and Judgment No. 16-4009 (doc. 201).
7

Jensen v. Kimble, I F.3d 1073, 1076 (10th Cir.1993) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). In so doing, he may cite to particular parts of
materials in the record supporting the fact, or may show that the cited materials "do
not establish the absence ... of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A)-(B).
If the non-movant fails to meet his burden as to one element of a claim, summary

judgment is appropriate on the claim. Celotex Corp., 477 U.S. at 323
Sgt. Miller has raised the defense of qualified immunity to Maguire's claims.
Qualified immunity shields government officials who perform discretionary
functions from § 1983 damages suits so long as "their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818) (1982)).
Qualified immunity "is 'an immunity from suit rather than a mere defense to
liability ... it is effectively lost if a case is erroneously permitted to go to trial' [and
was created] to ensure that 'insubstantial claims' against government officials
[will] be resolved prior to discovery." Pearson, 555 U.S.at 231 (quoting Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985)); Anderson v. Creighton, 483 U.S. 635, 640
n.2 (1987) (further citations and quotations omitted)). The doctrine protects "all

8

but the plainly incompetent or those who knowingly violate the law." Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011) (citations and quotations omitted).
When a state official asserts qualified immunity, she creates a rebuttable
presumption that she is immune from the plaintiffs§ 1983 claims. See Medina v.
Cram, 252 F.3d 1124, 1129 (10th Cir. 2001). Two elements exist in the qualified
immunity analysis-first, whether, under the facts alleged by the plaintiff, the
government officials violated a constitutional right, and second, whether the right
at issue was "clearly established" at the time of the defendant's alleged
misconduct. ... " Pearson, 555 U.S. at 231 (citing Saucier v. Katz, 533 U.S. 194,
201 (2001)).
Thus, if "at the time of the challenged conduct, the contours of a right are
sufficiently clear that every reasonable official would have understood that what he
is doing violates the right," the official is not qualifiedly immune. al-Kidd, 563
U.S. at 741. But if an official "might not have known for certain that the[ir]
conduct was unlawful[,] then the [official] is immune from liability." Ziglar v.
Abbasi,_ U.S._, 137 S. Ct. 1843, 1867 (2017). The Court may address either
prong of the qualified-immunity analysis first. Pearson at 236.

9

ANALYSIS
The only claim remaining in Plaintiffs Amended Complaint-the active
complaint in this case-is the Fifth Claim for Relief. 41 In it, Maguire alleges that,
from 8:30 p.m. through 5:00 a.m. on the night of June 15-16, the "counting
officer"-one of John Does #5, #6, or #7-failed to contact medical to respond to
Maguire's requests for help, and failed to document the requests. 42

Maguire later

clarified that Sergeant Miller is "John Doe #5."43
As set forth in detail below, the Court concludes that Sgt. Miller is entitled
to summary judgment because Maguire fails to identify admissible evidence that
suggests Miller acted in a manner that was deliberately indifferent to Maguire's
serious medical needs. The undisputed facts demonstrate that Miller adequately
responded to Maguire's medical needs until his shift ended at 10:00 p.m. Thus, the
court finds Miller is entitled to summary judgment on Maguire's Eighth
Amendment claim.

I.

Admissibility of the Maguire Affidavit

On summary judgment, a court may consider only evidence that could "be
presented in a form that would be admissible in evidence" at trial. Fed. R. Civ. P.
56(c)(2). Previously in this case, a fellow judge in this District concluded there

41

See Am. Compl. (doc. 31 ).
Id. ifif 71-81.
43
Mot. for Leave to File Am. Compl. (doc. 86), ii 4.
42

10

may be a jury question on whether Sgt. Miller was deliberately indifferent. The
Court noted that Maguire stated in an affidavit that "at every hourly count, at some
of which Maguire recognized [an officer later to be identified as Sgt. Miller,]
Maguire asked the counting officer to please call medical."44 That, combined with
Sgt. Miller's knowledge that Maguire had "(at the very least) a seizure" led to the
conclusion that a jury could find Sgt. Miller to be deliberately indifferent. 45
For this motion, Maguire argues that this affidavit, combined with other
evidence, indicates Sgt. Miller could have been deliberately indifferent to
Maguire's health because it s.upports the propositions that (a) Maguire asked for
help "at every hourly count" (with the inference that the statement includes the
8:30 count), and (b) that Sgt. Miller was present for counts after the 8:30 count.
In addition to arguing that the affidavit does not create an issue of fact, Sgt.
Miller objects to the inclusion of the affidavit as hearsay not subject to any
exception. Fed. R. Evid. 801, 802, 803, 804. Maguire acknowledges that the
affidavit is hearsay, but argues that the residual exception to the hearsay nlle,
found in Federal Rule of Evidence 807, should apply. The parties thus apparently
agree that the affidavit is hearsay not subject to any express exception.

44

Mem. Decision & Ord. (doc. 189) at 19; Aff. in Support of Request (included in the case at
docs. 17, 180-1, 251-1).
45 Id.
11

A. The Court Declines to Admit Maguire's Declaration Under the
Residual Hearsay Exception
Maguire requests that the Court apply the residual hearsay exception, now
codified at Federal Rule of Evidence 807, to allow the admission, and
consideration, of the affidavit. The residual exception "is to be used in
extraordinary circumstances .... " United States v. Farley, 992 F.2d 1122, 11226
(10th Cir. 1993) (discussing the exception codified in former Rule 803(24)). The
Tenth Circuit has warned lower courts to "use caution when admitting evidence
under Rule [807], for an expansive interpretation of the residual exception would
threaten to swallow the entirety of the hearsay rule." United States v. Tome, 61 F.
3d 1446, 1454 (10th Cir. 1995).
To be admissible, the proponent of the evidence must overcome a "heavy
burden" to demonstrate the materiality of the statement, that it demonstrates
"circumstantial guarantees of trustworthiness" that are "equivalent" to the
exceptions enumerated in Rules 803 and 804, that "it is more probative on the
point for which it is offered than any other evidence that the proponent can obtain
through reasonable efforts ... ", and that its admission will serve the interest of
justice. United States v. Trujillo, 136 F. 3d 1388, 1396 (10th Cir. 1998); Fed. R.
Evid. 807; see also United States v. Zamora, 784 F.2d 1025, 1031 (10th Cir. 1986);

New England Mut. Life Ins. Co. v. Anderson, 888 F.2d 646, 650-51 (10th Cir.
1989) (both interpreting former rule 804(b)(5) and noting the burden on the
12

proponent of the evidence to meet the exception). There is no doubt that the
affidavit is material. But Maguire fails to shoulder his burden on the remaining
three elements to meet the exception.
First, there are serious questions of the trustworthiness of the statement.
Though the statement was purported to be made under oath, that is "insufficient,
standing alone, to meet the requirement of circumstantial guarantees of
trustworthiness .... " Crawford ex rel. Crawford v. City ofKansas City, Kan., 952
F. Supp. 1467, 1473 (D. Kan. 1997). Here, there are circumstances that undermine
the affidavit's reliability. For example, Maguire does not mention Sgt. Miller by
name in the affidavit. Utilizing the document to identify Sgt. Miller as the one
responsible requires logical leaps and an overly-technical synthesis of numerous
facts. This reduces the trustworthiness of the affidavit.
Also, the affidavit was originally proffered to the Utah Department of
Occupational and Professional Licensing to support Maguire's claim of health care
misconduct. 46 This was a document created in anticipation oflitigation, affecting
Maguire's motivation to be completely truthful. E.g., Wilander v. McDermott
Int'!, Inc., 887 F.2d 88, 92 (5th Cir. 1989) (recognizing that statements "prepared
in anticipation of litigation" was a factor in determining the statement
untrustworthy). Beyond the inherent nature of the document, Maguire's focus in

46

See Aff. in Support of "Request." (doc. 215-1) at 1.

13

the document was clearly on the actions of the health care providers who treated
him before, during, and after the man-down call, rather than the custody staff.
Moreover, reading the affidavit as Maguire requests creates a conflict with
other evidence in the record. See United States v. Hall, 165 F.3d 1095, 1110-11
(7th Cir. 1999) (recognizing that whether a statement is "insufficiently
corroborated" is a consideration a district court may account for in determining
trustworthiness) ... The affidavit avers that "Officer #5" performed "at least" one of
the counts later in the evening. 47 It also avers that Officer #5 was at the man-down
scene. While Sgt. Miller was at the man-down call, evidence in the record suggests
he did not perform any count identified in the affidavit. Officer #5 was not referred
to in the 8:30 p.m. count (the only post-man-down count that could have involved
Sgt. Miller). Instead, Maguire sets forth the 8:30 p.m. count in a separate
paragraph, describing an interaction with a different officer (Officer 7). Also, Sgt.
Miller could not have performed any of the counts past 10:00 p.m. because there is
no evidence in the record to suggest Sgt. Miller worked past that time.
Accordingly, the affidavit creates a conflict with other record evidence.
All of these factors cast doubt on the reliability of a conclusory statement
that (a) Maguire asked for help at "every hourly count" (including the 8:30 p.m.
count) and (b) Sgt. Miller was involved in "some of' the counts (after 8:30 p.m.).

47

Id. at 8.

14

Cf United States v. Fernandez, 892 F.2d 976, 983 (11th Cir. 1989) (recognizing
that corroborating evidence must be "extraordinarily strong" to support admission
of hearsay evidence under former 804(b)(5)).
Second, turning to the relevant probity of the evidence, Maguire cannot
demonstrate that he could not have elicited this evidence from another source-in
particular Maguire's deposition. Counsel for Maguire was at Maguire's
deposition, which was taken to perpetuate his testimony, knowing Maguire had an
unrelated, terminal illness. Maguire's counsel did not ask about the affidavit, nor
attempt to put it into context. The only time Sgt. Miller's name came up in
Maguire's deposition (other than a discussion about a discovery issue) was when
he was discussing the man-down incident. 48 Maguire knew about Sgt. Miller at the
time, and he never clarified that he saw Sgt. Miller at all later that night. Counsel
for Maguire could have reasonably obtained the testimony contained in the
affidavit, but did not do so. This element favors exclusion.
Third, and finally, the interests of justice and the rules of evidence are not
promoted by admission. Stringing separate general statements in a DOPL
affidavit-which contradict the remainder of the record and are, at least,
inconsistent with Maguire's own deposition-and admitting those statements under
the residual hearsay rule would not advance justice.

48

Maguire Dep. 30:6-17, 162:4-163:24.
15

The Court will therefore exclude the affidavit. Phillips, 2007 WL 2156412,
at

* 4 (granting motion in limine to exclude affidavit of witness to altercation

between plaintiff and police officer, where affiant had died, no deposition had been
taken, and requirements of residual hearsay exception had not been met). 49

II.

Eighth Amendment Legal Standards.

The Eighth Amendment's protection against cruel and unusual punishment
includes a mandate that "prison officials must ensure that inmates receive adequate
... medical care .... " Farmer v. Brennan, 511 U.S. 825, 832 (1994). However, not
all denials of medical care are actionable under the Eighth Amendment. "[A]n
inadvertent failure to provide adequate medical care cannot be said to constitute"
an Eighth Amendment violation. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Thus, a prison official may be liable only if he or she was deliberately indifferent
to a serious medical need. Id. at 104-06.
Any Eighth Amendment claim must be evaluated under an objective and
subjective prong: "Was the deprivation sufficiently serious?" and, if so, "Did the
49

Maguire also argues that Sgt. Miller waived any arguments about the admissibility of
the affidavit. The argument has not been waived. Sgt. Miller never had the opportunity, at the
trial court level, to challenge its use. And Maguire provides no legal authority for the
proposition that Sgt. Miller's decision not to challenge the admissibility of Maguire's affidavit
on appeal somehow waives Sgt. Miller's ability to challenge the admissibility of it in further
proceedings. While a failure to assert an objection to declarations at the trial level may waive the
issue on appeal, see, e.g., Associated Press v. Cook, 513 F.2d 1300, 1303 (10th Cir. 1975), there
is no waiver for subsequent proceedings. See King v. Metcalf Homes Ass 'n, Inc., 385 F. Supp. 2d
1137, 1140 n.2 (D. Kan. 2005) (considering hearsay statements on summary judgment because
the defendant did not object, but permitting defendants to object at trial).
16

officials act with a sufficiently culpable state of mind?" Wilson v. Seiter, 501 U.S.
294, 298 (1991); accord Perkins v. Kan. Dep 't of Corr., 165 F.3d 803, 809 (10th
Cir. 1999). A medical need is "sufficiently serious" "'if it is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor's attention.'"
Sealock v .. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000) (quoting Hunt v. Uphoff,
199 F.3d 1220, 1224 (10th Cir. 1999) (further citations and quotations omitted).
The subjective component requires the plaintiff to show that prison officials
were consciously aware that the prisoner faced a substantial risk of harm and
wantonly disregarded the risk "by failing to take reasonable measures to abate
it .... " Farmer, 511 U.S. at 847. Delay in receiving treatment is cognizable only if
the delay was caused by deliberate indifference, and there was a substantial harm
as a result of the delay. Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir.1993); Mata v.
Saiz, 427 F.3d 745, 751 (10th Cir. 2005).
'"Gatekeeper' prison officials may be liable for a deliberate indifference
claim where they intentionally deny or delay access to medical care, or
intentionally interfere with treatment." Dawson v. Lloyd, No. 15-1367, 642 F.
App'x 883, 884 (10th Cir. Mar. 8, 2016) (ord. &j. not selected for publication);
see also Estelle, 439 U.S. at 104-05 (noting that deliberate indifference can

17

manifest when "prison guards ... intentionally deny[] or delay[] access to medical
care). 50

III.

Application of the Eighth Amendment Standard.

A. Miller Was Not Deliberately Ind~fferent.
Assuming Maguire's condition could be considered sufficiently serious to
trigger Eighth Amendment protection, Maguire's claim fails on the subjective
element. The court will analyze in detail the various times at which Miller may
have interacted with Maguire below. In short, Plaintiff simply fails to point to
admissible evidence that indicates Miller exhibited deliberate indifference during
time periods discussed below, even if those interactions are aggregated.

1. Prior to and during the "Man Down" Call.
Sgt. Miller was not deliberately indifferent to any of Maguire's needs before
the "man down" call. Plaintiff implicitly acknowledges this because he argues
Miller's first instance of deliberate indifference occurred during the "man down"
call. 51 Further, there is no evidence that Sgt. Miller acted with deliberate
indifference during the "man down" call. There is no dispute that Sgt. Miller
50

The Tenth Circuit usually refers only to lower-level medical staff as "gatekeepers." See Rife v.
Okla. Dep 't of Pub. Scifety, 854 F. 3d 637, 647 (10th Cir. 2017); Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005). But not always. See Estate ofBooker v. Gomez, 745 F. 3d 405, 430-31 (10th
Cir. 2014) (applying the "gatekeeper" standards from Mata to a deliberate-indifference claim to
nonmedical corrections officers who used force on an inmate and then delayed getting the inmate
medical treatment). But regardless of the nomenclature, for purposes of this case the test is the
same-did the official actually know of a risk ofhann and consciously disregard the risk. See id.
51
See doc. 215 at 28-30.
18

responded to the "man down" call, and that medical arrived shortly thereafter. 52
There is no dispute that the med-techs believed Maguire to have had a seizure and
instructed the security staff to allow Maguire to put his mattress on the floor. There
is no dispute that custody staff-including Miller-followed those instructions.
Therefore, Miller did not act with deliberate indifference leading up to, or during,
the med-tech's assessment and treatment. See, e.g., Randall v, Ed, of Cnty.

Comm'rs, 184 F. App'x 723, 727 (10th Cir. June 13, 2006) (ord. &j. not selected
for publication) (concluding that jail officials were not deliberately indifferent to
plaintiff's medical needs when they followed physician's instructions ~egarding
insulin and blood glucose testing requirements); Ellison v. Scheipe, 570 F. Supp.
1361, 1363 (E.D. Pa. 1983) ("[P]rison officials cannot be required to second guess
the medical judgment of' medical professionals.); Tantlinger v. Duchaine, Civil
Action No. 14-cv-2503, 2016 WL 8201447, at* 6 (D. Colo. Aug. 19, 2016) (ord.
not selected for publication) (citing cases and concluding that the weight of
authority suggests that there is no duty for non-medical prison officials to secondguess the judgment of trained medical staff). Based on the foregoing, Plaintiff fails
to identify evidence that Sgt. Miller acted with deliberate indifference during the
"man down" call.

52

See generally e.g., Initial Contact Report, Ex. 3.
19

2. Between the "Man Down" Call and the 8:30 p.m. Count.
Maguire's condition did not change from the time he was told to put his
mattress on the floor until the 8:30 p.m. count. Maguire did not ask Sgt. Miller for
help during that time. There is no evidence Miller interacted with Maguire or was
otherwise deliberately indifferent to any risks between the "man down" call and
the 8:30 p.m. count.

3. At the 8:30 p.m. Count.
Assuming Sgt. Miller was part of the 8:30 p.m. count, Plaintiff points to no
admissible evidence that suggests that Sgt. Miller ignored any serious risk of harm
to Maguire during that count. As an initial matter, it is doubtful whether Sgt.
Miller participated in the 8:30 count. In his deposition, Maguire suggested that the
officer performing the 8:30 count was not Sgt. Miller, but instead an Officer Mau,
and Maguire suggested that the officer performing the 8:30 count did not know
Maguire was permitted to stay on the floor. 53 Sgt. Miller knew Maguire was
allowed to stay on the floor. Also, Maguire did not mention Sgt. Miller in this
encounter, even though he knew who Sgt. Miller was.

54

Accordingly, it is doubtful

this encounter actually involved Sgt. Miller. Nonetheless, the July 15, 2008, Daily
Log for Uinta 5 (Maguire's cell block) indicates that Sgt. Miller, along with

53

54

Maguire Dep. 31 :6-12.
Cf id.
20

another officer, conducted the 8:30 p.m. head count. 55 Thus, viewing the facts in
the light most favorable to Plaintiff, the court presumes Sgt. Miller performed, or
at least overheard the exchange that occurred during, the 8:30 count.
Yet even if Sgt. Miller was the officer who performed the 8:30 count, or was
present and heard the encounter, Sgt. Miller was not deliberately indifferent to any
serious need of Maguire's because Maguire did not request any help during the
8:30 count. 56 At most, Maguire told the officer performing the 8:30 count (whether
Miller himself or his colleague): "I can't stand up, I can't even sit up." 57
Notwithstanding this statement, Maguire testified in his deposition that it was not
until 9:00 p.m., or 9:30 p.m., that he believed he needed additional help, and he did
not begin asking for help until the 10:30 p.m. count. 58
The Eighth Amendment does not require Sgt. Miller to read the mind of an
inmate-who had, forty-five minutes earlier, been seen by medical staff-and
summon additional help, when the inmate had the ability to ask for help and chose
not to. The encounter during the 8:30 count cannot support any deliberate
indifference claim against Sgt. Miller.

55

Miller Dep. 33:3-7, 36:2-4; doc. 212, Ex. 5 (Uinta 5 Log).
See id.; see also id. at 32:3-23.
57
Maguire Dep.at 31 :4-5.
58
Id. 164:9-24, 165:24-166:18.
56

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4. After the 8:30 Count.
Likewise, Sgt. Miller was not deliberately indifferent to any serious risk of
harm to Maguire from the 8:30 p.m. count until Miller went off shift at 10:00 p.m.
because Sgt. Miller was unaware that Maguire needed additional help. 59 There is
no evidence in the record that Sgt. Miller interacted with Maguire after the 8:30
p.m. count. While we may not know the exact minute Sgt. Miller left Uinta 5 that
night, there is no evidence to suggest he worked past 10:00 p.m. Further, we know
that policy prohibited him from working past 10:00 p.m. 60 Also, the undisputed
facts show that Sgt. Miller did not participate in the 10:30 p.m. count. 61 Thus, there
is no admissible evidence that suggests Sgt. Miller had any contact with Maguire
after the 8:30 count. Without any subjective knowledge, Miller could not have
known about, and deliberately disregarded, any serious risk of harm.

IV.

Clearly Established Law

Because the Court has determined that there was no constitutional violation,
it need not determine whether any rights were clearly established.

CONCLUSION
Maguire has not met his burden to demonstrate that Sgt. Jerry Miller was
deliberately indifferent to any serious risk of harm to Maguire, and Sgt. Miller is
59

Miller Dep. 29:21-24.
Miller Dep. 50:12-51 :7.
61
Cf Uinta 5 Daily Log, Ex. 5 to Mot. for Summ. J. (noting that Officers Co01ns and Simons
completed the 10:30 p.m. count.)
60

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entitled to qualified immunity. Because this motion disposes of the last remaining
claim, Maguire's case will be closed.
ORDER

For the reasons stated above, it is hereby
ORDERED that Defendant Miller's Motion for Summary Judgment (doc. 211) is
GRANTED. All claims against Defendant Miller are DISMISSED and this case

is DISMISSED. Let judgment be entered accordingly. Because all claims have
been resolved, the Clerk shall CLOSE the case.

Dated this ·~<{day of June, 2018.

BY THE COURT

23