Jensen, Madison Jody the Estate of v. Duchesne County et al

Filing 131

MEMORANDUM DECISION AND ORDER denying Defendant Kennon Tubbs' 101 Motion to Dismiss; and denying Defendant Logan Clark's 104 Motion for Judgment on the Pleadings. Signed by Judge Dale A. Kimball on 7/22/2019. (eat)

______________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

ESTATE OF MADISON JODY JENSEN,
Plaintiff,

MEMORANDUM DECISION AND
ORDER

vs.
Case No. 2:17CV1031DAK
DUCHESNE COUNTY, ET AL.,
Judge Dale A. Kimball
Defendants.

This matter is before the court on Defendant Kennon Tubbs, M.D.’s Motion to Dismiss
Plaintiff’s Second Amended Complaint [ECF Docket No. 101] and Defendant Logan Clark’s
Motion for Judgment on the Pleadings [ECF Docket No. 104]. On July 11, 2019, the court held
a hearing on the motion. At the hearing, Ryan B. Hancey represented Plaintiff Estate of Madison
Jody Jensen, Cortney Kochevar represented Defendant Kennon Tubbs, and Kathleen Abke
represented Defendant Logan Clark. Counsel for other Defendants were present and observed
the proceedings. After hearing argument, the court took the matter under advisement. After
carefully considering the memoranda and other materials submitted by the parties, as well as the
law and facts relating to the motions, the court issues the following Memorandum Decision and
Order.

BACKGROUND1
On Sunday, November 27, 2016, Jared Jensen called the Duchesne County Sheriff’s
Office after he observed his 21-year-old daughter, Madison, exhibiting erratic behavior and he
found what he believed to be drug paraphernalia and residue in her room. Deputy Jared Harrison
of the Duchesne County Sheriff’s Office responded to the call and spoke to Madison. Madison
told Harrison that she was “coming off” heroin, had last used four days earlier, and had disposed
of her heroin supply that day. She also admitted to recently smoking marijuana and told Harrison
she was taking Tramadol, Wellbutrin, and Clonidine as prescribed by her physician. Harrison
arrested Madison for internal possession of drugs and possession of drug paraphernalia and took
her to the Duchesne County Jail (the “Jail”). He also took her prescription medications.
Madison was booked into the Jail at 1:34pm on November 27, 2016. During the booking
process, Madison filled out an inmate mental health questionnaire where she disclosed that she
suffered from anxiety and depression for which she had been prescribed and was taking
Wellbutrin. Madison also noted that she was taking Tramadol for pain and Clonidine for high
blood pressure. She also reported that she had a history of using heroin, pills, marijuana, and
admitted that she had recently used heroin.
According to Jail policy or custom, Deputy Elizabeth Richens, a booking officer, placed
the intake questionnaire in a medical box designated for the jail nurse. At the time, Duchesne
County employed a Jail nurse, Jana Clyde, who was responsible for overseeing the health and
safety of the Jail inmates. In addition to the Jail nurse, Duchesne County contracted with an

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Because the court is analyzing a motion to dismiss and motion for judgment on the
pleadings, the following facts are from Plaintiff’s Second Amended Complaint.
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independent medical provider, Dr. Kennon Tubbs, M.D., to provide on-site medical care to sick
inmates at the Jail one day a week and to be on call twenty-four hours a day, seven days a week
to assist with medical issues as they arose. Dr. Tubbs subcontracted with physician assistant,
Logan Clark, to perform some of Dr. Tubbs’ medical care duties at the Jail. The specific details
of their subcontract arrangement are unknown.
Jail personnel placed Madison in a cell in the Jail’s “H Block” with fellow inmate Maria
Hardinger. Madison complained to Hardinger of feeling sick and vomited within ten minutes.
She continued to vomit and suffer from diarrhea throughout the day and night. On Monday,
November 28, 2016, Richens took Madison to visit Clyde in the Jail’s medical office. Madison
told Clyde she had been vomiting and believed she had a stomach bug. Clyde told Madison to
save her vomit and diarrhea for Clyde to observe. Richens told Clyde that Madison had used
heroin a few days before and had tested positive for opiates when she was booked into jail.
Clyde took Madison’s vital signs and observed that Madison’s blood pressure was high.
Clyde gave Madison a Gatorade and called Clark. Clyde informed Clark that Madison had been
vomiting. Clyde claims she told Clark about all three of Madison’s prescription medications and
he only approved administration of the Clonidine. Clark, however, claims that Clyde only
mentioned the Clonidine.
The rest of that day, Madison continued to feel ill, stayed in her cell, and did not eat her
meals. Jail staff knew she was not eating. When Madison attempted to drink water, she
vomited. She and Hardinger used the call button in their cell several times to notify Jail staff that
Madison was ill and vomiting. The Jail staff responded that they were aware Madison was ill but
they did not provide any specific medical care for her symptoms. Around 6:00 p.m., Madison
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was able to leave her cell to take a shower but she continued to be ill.
The following day, Monday, November 29, 2016, Madison continued to vomit, stayed in
bed, and did not eat her meals. Richens took Madison to Clyde’s office again that morning and
noted that she looked noticeably weaker and paler than the previous day. Richens informed
Clyde that Madison was still vomiting, but it is unclear what care was given. Later that day,
Hardinger pushed the call button and informed the deputy in the control room that Madison was
continuing to vomit so violently that it was causing a mess. The deputy told her she could leave
her cell to retrieve cleaning supplies to clean up the mess but to stop pushing the call button.
Clyde claims that no jail personnel ever informed her that Madison and Hardinger were pushing
the call button or reporting anything.
During the evening of Tuesday, November 29, 2019, Richens took Madison to see
Detective Monty Nay. Madison was dizzy and having a hard time walking. Nay observed
Madison and told Richens to watch her closely. Richens knew that Madison had not been eating.
Richens moved Madison to a medical observation cell where jail staff could more easily observe
her condition. Richens informed Clyde that Madison was being moved to an observation cell,
and Clyde agreed to the move. Richens observed Madison lying in bed and vomiting several
times. Richens requested that Clyde provide Madison with Gatorade.
Clyde gave Richens a medical request form for Madison to fill out to see Clark on
Thursday. Madison filled out the medical request form. She misdated the form and stated that
she had been “puking for 4 days straight, runs, diarrhea, can’t hold anything down not even
water.” Richens gave the form to Clyde, who reviewed it. Neither Clyde nor Richens contacted
Clark or Dr. Tubbs to inform them that Madison had been moved to a medical observation cell or
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that she filled out a medical request form.
On Wednesday, November 30, 2019, Clyde attached Madison’s medical request form to a
medical file for Clark to review when he arrived at the Jail on December 1, 2019. Clyde visited
Madison’s cell once that day to pass her a Gatorade, but did not inquire as to her condition or
take her vital signs. Deputy Caleb Bird took Madison’s medication to her cell and she was
unable to get out of bed to take it. Bird entered her room to give her the medication even though
it was against jail policy. Bird told Clyde that Madison was too weak to get out of bed. Clyde
told Bird that she knew Madison was vomiting and withdrawing from heroin. Again, no jail
personnel contacted Clark or Dr. Tubbs about Madison’s condition on November 30, 2019.
On December 1, 2019, Jail employees reported that Madison had been vomiting through
the night. Sergeant Purdy asked Clyde if she could give Madison a Gatorade, and Clyde agreed.
Purdy put a Gatorade on the food pass of Madison’s cell. When Lieutenant Jason Curry, the Jail
Commander, arrived on his shift that day, he talked to Clyde about Madison. Curry asked Clyde
if Madison’s symptoms were caused by heroin withdrawals, and Clyde told him she believed
Madison had the stomach flu.
The last time an officer checked on Madison was at 10:08 a.m. Just before 1:00 p.m., the
Jail’s video camera system recorded Madison drinking some water and then vomiting a brown
liquid substance. At 12:59 p.m., she had a seizure-like episode which caused her to roll off her
cell bed and onto the floor. Her body continued to twitch for a couple of minutes and then she
laid flat on the ground. At 1:28 p.m., Physician’s Assistant Clark and Nurse Clyde found
Madison deceased in her cell.
Clark had arrived at the Jail around 9:00 a.m. that day. He visited the Jail every Thursday
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and stayed until he had seen all the inmates who needed to be seen. Clark reviewed the files and
determined the order in which he would see them. He would generally treat the patients in the
medical observation cells last. According to Clark, Clyde did not provide him with Madison’s
medical file or medical request form on the morning of December 1, 2019. But, according to
Clyde, she and Clark reviewed and discussed Madison’s medical request form before Clark saw
any inmates that day. Clark claims that after he had treated the other inmates, Clyde told him
about Madison and they went to check on her when they found her deceased.
The Jail requested that an outside agency conduct an independent investigation into the
incident. The Uintah County Sheriff’s Office investigated the matter. Clark and Clyde told the
investigator that they knew Madison was withdrawing from heroin and that she had been placed
on the Jail’s heroin withdrawal protocol. However, the Jail had no heroin withdrawal protocol at
the time.
On December 2, 2016, Michael Belenky, M.D., of the Utah Office of Medical Examiner,
performed a medical examination of Madison’s body and determined the immediate cause of
death to be cardiac arrhythmia from dehydration due to opiate withdrawal. Madison had
gallstones, which was evidence of extreme dehydration, and her weight was 112 pounds,
seventeen pounds less than her booking weight.
Clyde states that she was not given a Jail policies and procedures manual when she was
hired or anytime prior to Madison’s death. She also did not receive any training from any other
defendant on the Jail’s medical policies and procedures. According to Sheriff Boren, Dr. Tubbs
and Clark were responsible for training Clyde regarding her responsibilities as Jail Nurse. Clyde
believed that she was not required to take an inmate’s vital signs each day even if she knew the
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inmate was exhibiting obvious symptoms of severe dehydration. But according to Clark, Clark
had advised Clyde to take and record vital signs of inmates who were experiencing heroin or
opiate withdrawal symptoms or vomiting and experiencing diarrhea.
There appears to have been no written policy, procedure, or custom at the time of
Madison’s death to record or track the vital signs, liquid intake, vomiting, or diarrhea of an
inmate known to be exhibiting signs of severe dehydration. There was also no policy, procedure,
or custom as to how to treat an inmate exhibiting symptoms of severe dehydration. Although
Clyde knew she could contact Clark and Dr. Tubbs with medical questions, she was not expected
to contact them when an inmate was vomiting, experiencing diarrhea, or exhibiting signs of
dehydration. According to Sheriff Boren, before Madison’s death, the fact that an inmate was
vomiting and/or experiencing diarrhea or other flu-like symptoms would not necessarily be
considered a serious medical condition. Before Madison’s death, the Jail did not employ on-site
personnel who could administer intravenous fluids to inmates exhibiting signs of severe
dehydration.
Madison’s estate filed the present § 1983 civil rights lawsuit against Duchesne County
and several of the individual Jail officers and medical staff. Among several other claims, the
Second Amended Complaint contains supervisory liability claims against Defendants Tubbs and
Clark for failure to implement policies, procedures, and training on how to respond to inmates
suffering from opiate withdrawal and severe dehydration. The Second Amended Complaint also
contains an individual deliberate indifference claim against Clark for his failure to see Madison
within four hours of his arrival at the jail on the date of her death.

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DISCUSSION
Tubbs brings a motion to dismiss and Clark brings a motion for judgment on the
pleadings on the Estate’s § 1983 supervisory liability claim. Clark also brings his motion for
judgment on the pleadings with respect to the individual § 1983 deliberate indifference claim the
Estate asserts against him.
I. § 1983 Supervisory Liability Claim
Tubbs and Clark argue that the Estate has not alleged a plausible § 1983 supervisory
liability claim against them. The Estate claims that Tubbs and Clark should be liable for
supervisory liability based on their failure to implement policies and failure to train Nurse Clyde
and other jail staff on how to treat opiate withdrawal and severe dehydration. To establish a claim
of supervisory liability under § 1983, Plaintiff must show direct personal responsibility, an
affirmative link between the supervisor and the constitutional violation, and the requisite state of
mind. Keith v. Koerner, 843 F.3d 833, 838 (10th Cir. 2016).
A plaintiff meets the “personal involvement” prong by alleging “a complete failure to
train, or training that is so reckless or grossly negligent that future misconduct is almost
inevitable.” Id. Alternatively, a plaintiff may meet this prong by alleging that the supervisor
“failed to implement and enforce policies that would have prevented” the violation. Id. There is
a question as to what duties Tubbs delegated to Clark with respect to creating policies,
procedures, and training. However, the Estate’s Second Amended Complaint adequately alleges
that the County contracted with Tubbs and Clark to establish medical policies and protocols,
Tubbs and Clark failed to establish policies and protocols, Tubbs and Clark knew other jails had
policies and protocols, and Tubbs and Clark knew policies and protocols were necessary for the
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safety of the Jail inmates.
Under the “causation” prong, a plaintiff must allege the supervisor “set in motion a series
of events that the defendant knew or reasonably should have known would cause others to
deprive the plaintiff of his constitutional rights.” Id. at 847. A complete failure to train cannot
be established by allegations of “general deficiencies” in a particular training program. Keith v.
Koerner, 843 F.3d 833, 838 (10th Cir. 2016). Rather a plaintiff “must identify a specific
deficiency in the [entity’s] training program closely related to his ultimate injury, and must prove
that the deficiency in training actually caused his jailer to act with deliberate indifference to his
safety.” Id.
Tubbs and Clark argue that Plaintiff’s failure-to-train theory fails on the basis of
causation because Clyde was aware that she should contact Tubbs or Clark if any inmate had an
urgent or concerning symptom. The Second Amended Complaint alleges that Clyde knew she
could contact Tubbs or Clark if an inmate had concerning symptoms and she frequently
communicated with Tubbs about inmates’ various medical needs. However, the Second
Amended Complaint also alleges that Clyde should have been trained in when to call and trained
to know what symptoms or conditions might be serious. The Sheriff stated that Jail staff did not
know conditions such as Madison’s were serious. The Jail was dependent on Tubbs and Clark to
provide policies and protocols for staff to follow, but they did not provide any. Simply telling
staff to call when they saw concerning symptoms is inadequate when staff are not trained in what
symptoms should be concerning. At the pleading stage, these allegations are sufficient to allege
that Tubbs’ and Clark’s failure to provide protocols and training set in motion a series of events
that led to Madison’s lack of treatment.

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The Estate relies on Jenkins v. Woody to argue that failure to train regarding “proper
observation” and “when to report” inmates’ symptoms can be a basis for supervisory liability.
No. 3:15CV355, 2017 WL 342062, at *17 (E.D. Va. Jan. 21, 2017). Tubbs and Clark try to
distinguish Jenkins by arguing that the Jail staff in this case knew to call Tubbs and Clark. But
there are definite similarities between this case and Jenkins because the Clyde and the Jail staff in
this case apparently did not receive adequate training in when to call Tubbs and Clark.
Tubbs and Clark also argue that they could not have implemented a policy requiring
Clyde to assess or identify inmates medical needs because she was an LPN not an RN. As an
LPN, Clyde could not assess or identify health care needs. However, Clyde and non-medical
personnel could observe that Madison was repeatedly vomiting and unable to hold anything
down. Despite being capable of observing Madison’s condition and taking notes on it to provide
to Tubbs and Clark, Clyde was not trained to do so. The Second Amended Complaint alleges
that there were no policies or protocols for tracking symptoms or vitals of inmates in medical
observation cells.
Tubbs and Clark contend that they expected Clyde to alert them to inmates’ conditions so
that they could work with her to assess needs and strategies of care. But the Second Amended
Complaint alleges that she was not properly trained in when to alert them. As stated above, the
complete lack of training and protocols left Clyde and jail staff with no understanding as to what
conditions even required them to call Tubbs and Clark. And, neither Clyde nor other jail staff
knew any policies or protocols for documenting any information that may be necessary for Tubbs
and Clark in assessing an inmate’s medical needs. It can be inferred from the Second Amended
Complaint that if Clyde had known to regularly record Madison’s vital signs, she may have

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become concerned enough to contact Tubbs and Clark. If she had known to track fluid intake or
the number of times an inmate vomited, she may have become concerned enough to call. But she
had not been trained to keep track of vital signs or fluid intake and apparently did not know that
the situation was serious enough to call. These allegations and inferences in the Second
Amended Complaint are sufficient, at the pleading stage, to allege causation for a supervisory
liability claim.
Tubbs and Clark also argue that the Second Amended Complaint’s allegations regarding
the proper protocol for handling inmates’ medical request forms are inconsistent and conflicting.
However, those inconsistencies appear to have resulted from the Estate receiving conflicting
information from different witnesses. The inferences the court draws from these inconsistencies
are that there was a lack of actual policies and lack of adequate training. Rather than forming a
basis for finding a failure to allege a claim of deliberate indifference as Tubbs and Clark contend,
the court finds these inconsistencies as a basis for supporting the Estate’s claims.
Furthermore, Tubbs argues that the Estate has not established a supervisory liability claim
regarding Tubbs’ alleged failure to train Clark or the Jail staff because the Second Amended
Complaint only states that Tubbs was contractually required to train Jail nursing staff. However,
such an argument would turn on the actual terms of Tubbs’ contract with the County or Jail, not a
hyper-technical reading of the complaint. Tubbs’ contract, as well as his subcontract with Clark,
will need to be explored in discovery and the issue dealt with on summary judgment when actual
evidence is submitted to the court.
Finally, a plaintiff meets the “state of mind” prong of a supervisory liability claim by
alleging the supervisor “knowingly created a substantial risk of constitutional injury” or

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“consciously fail[ed] to act when presented with an obvious risk of constitutional injury of the
type experienced by the plaintiff.” Keith, 843 F.3d at 847-48. In identifying the relevant risk,
courts do not focus on the risk to a specific inmate by a specific employee; they instead analyze
whether the combined circumstances created a risk for inmates in the plaintiff’s situation. Id.
A supervisor cannot be held liable simply because he or she was “in charge of” a facility. Durkee
v. Minor, 841 F.3d 872, 878 (10th Cir. 2016).
The Second Amended Complaint clearly asserts that (1) Tubbs and Clark were
responsible for creating, implementing, and providing training on all medical protocols at the
Jail; (2) Tubbs and Clark subjectively knew that if they did not instigate a protocol regarding
what Jail staff should do upon learning an inmate was exhibiting obvious signs of severe
dehydration, an inmate would almost inevitably die from dehydration; (3) Tubbs and Clark were
deliberately indifferent to this risk by choosing not to instigate such a protocol even though they
knew other jail’s had such protocols; and (4) Madison died from obvious severe dehydration
because Tubbs and Clark were indifferent in failing to instigate such protocol. While the state of
mind prong may be difficult to establish at the summary judgment or trial phase, the court finds
that the allegations of the Second Amended Complaint are sufficient at the pleading stage to
allege that Tubbs and Clark knew of the risk that an inmate would have opiate withdrawals and
severe dehydration, knew of the need for policies and training on the issue, but failed to train the
staff to know that symptoms of opiate withdrawal and severe dehydration were serious enough to
call them about, and knew that someone could die from the condition without treatment.
At this stage of the litigation, the court concludes that the Estate has sufficiently alleged
the three elements necessary to state § 1983 supervisory liability claims against Tubbs and Clark.

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The Estate has alleged a complete failure in training or a failure to implement and enforce
policies that would have prevented the alleged constitutional violation. In addition, the Second
Amended Complaint adequately alleges an affirmative link between Tubbs’ and Clark’s failure to
act and Madison’s death. Tubbs and Clark failed to implement protocols or provide training on
what Jail should have done when an inmate was exhibiting obvious signs of severe dehydration
for extended periods of time, including monitoring fluid intake, checking vital signs, and when to
pass that information along to Tubbs and Clark. At the pleading stage, the Estate has adequately
alleged that proper protocols and training would have resulted in medical intervention that would
have saved Madison’s life. Tubbs’ and Clark’s assertions that Clyde should have called them is
not a sufficient basis for granting a motion to dismiss or motion for judgment on the pleadings.
At this stage, the court must accept all well-pleaded facts as true and construe all inferences in
favor of the Estate. As medical professionals, Tubbs and Clark knew of the opioid crisis and
knew the Jail would inevitably have inmates suffering from opiate withdrawal and severe
dehydration. Tubbs and Clark knew other jails had policies and they should have foreseen the
need for training and protocols on how to document it, deal with it, or at least on when to contact
them. These allegations meet the requirements for alleging a § 1983 supervisory liability claim
at the pleading stage. The court, therefore, denies Tubbs’ motion to dismiss and Clark’s motion
for judgment on the pleadings with respect to the Estate’s supervisory liability claims.
II. Individual Deliberate Indifference Claim Against Clark
Clark seeks judgment on the pleadings, arguing that Estate’s allegations against him in
the Second Amended Complaint fall short of demonstrating a plausible § 1983 deliberate
indifference claim against him. To state a claim for individual liability under § 1983, a plaintiff

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must allege “objective and subjective” deliberate indifference to a serious medical need. AlTurki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014). The objective prong is met if the
prisoner’s medical condition was “sufficiently serious.” Id. Clark concedes that the Estate meets
the objective prong in this case because Madison’s condition was so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.
With respect to the subjective prong, Clark asserts that the Estate has not alleged that
Clark knew of and disregarded an excessive risk to Madison’s health or safety when he was at
the Jail on the day of Madison’s death. The Second Amended Complaint demonstrates that
Clark and Clyde have conflicting recollections of the day Madison died. Clyde claims that she
gave Clark Madison’s inmate request when he arrived at the Jail around 9:00 a.m. and that she
went over Madison’s case with him. Clark denies knowing anything about Madison until he had
seen all the other patients and was about to leave the Jail around noon.
In any event, Clark argues that his actions in seeing Madison after seeing other inmates
does not rise to the level of deliberate indifference that “offends standards of decency” because
Clark generally saw the inmates in the medical cells after seeing the other inmates. Clark’s
arguments in this regard are better suited for summary judgment or trial. While Clark claims that
there is no allegation that he deliberately delayed caring for Madison, that is definitely the
inference the Second Amended Complaint gives. The Second Amended Complaint alleges that
Clyde informed Clark that Madison had been vomiting from Sunday to Thursday but he did not
immediately see her. While it was generally his procedure to see inmates in the medical cells
last, one can infer that in an emergency situation, he would not delay. Yet he chose to delay
treating Madison when he knew that many days of vomiting and no fluids could be life-

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threatening. Moreover, Clark’s subjective deliberate indifference is not necessarily demonstrated
by his decision to see others before Madison, it is from his decision to delay Madison’s medical
treatment knowing her condition. Given the alleged report from Clyde, he could have
immediately sent her somewhere to receive intravenous fluids. In addition, the parties can
explore the medical needs of the other inmates he saw during discovery. It is not necessary to
allege them all in the complaint to state a claim.
Deliberate indifference cases often arise when a plaintiff alleges that jail staff delayed
necessary medical treatment. Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005); Kellum v. Mares,
657 F. App’x 763, 768 (10th Cir. 2016) (unpublished). Given the context and circumstances of
the case, even a short delay is sufficient to support a deliberate indifference claim. Estate of
Booker v. Gomez, 745 F.3d 405, 432 (10th Cir. 2014). Booker illustrates the importance of
considering the context and the totality of the facts surrounding the alleged delay in medical care.
As such, it supports the need for discovery in this case. In Sanders v Creek Cty. Bd. of Cty.
Commissioners, the court determined that the plaintiff plausibly alleged that she “suffered from a
serious medical need in the form of rapidly declining mental state and diarrhea, which medical
personnel noted but failed to address,” and “the alleged delay or failure in alleviating [the
plaintiff]’s known deteriorating health conditions states a claim for deliberate indifference.” No.
17-CV-492-JHP-FHM, 2018 WL 3580770, *6 (N.D. Okla. July 25, 2018). Similarly, the court
finds that the Estate has alleged a plausible deliberate indifference claim against Clark. Clark’s
arguments are more suited to summary judgment than a motion for judgment on the pleadings.
Accordingly, the court denies Clark’s motion for judgment on the pleadings on the Estate’s
individual deliberate indifference claim against him.

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III. Qualified Immunity
The parties dispute whether Tubbs and Clark are entitled to assert a qualified immunity
claim. The Estate argues that Tubbs and Clark are not entitled to qualified immunity because
they merely contracted to provide medical services to the Jail. See Estate of Grubbs v. Weld Cty.
Sheriff’s Office, No. 16-CV-714-PAB-STV, 2017 WL 951149, *5 (D. Colo. Mar. 8, 2017)
(noting weight of authority declining to extend qualified immunity “to employees of a private
company providing medical services to inmates”). Whereas, Tubbs and Clark claim that they are
entitled to qualified immunity because they were performing quintessential functions of
government actors, such as a private doctor who was contracted by a prison to perform
executions. See The Estate of Lockett v. Fallin, 841 F.3d 1098, 1108 (10th Cir. 2016) (finding
“the purposes of qualified immunity support its application here: carrying out criminal penalties
is unquestionably a traditional function of government”).
However, this case is still at the pleading stage, and the court is unaware of the
contractual relationship between the County, Jail, Tubbs, and Clark. There is apparently a
contract between Tubbs and the County or Jail, but it is not in evidence. The court is unaware of
whether there is a contract between Clark and Tubbs or Clark and the County or Jail. Therefore,
the court has no evidence as to the actual duties Tubbs and Clark contracted to perform and there
are questions of facts as to their contractual responsibilities. Moreover, on the merits of the
Estate’s claims, there are substantial questions of fact as to what policies, procedures, and/or
training were in place and the level of culpability of these defendants. The court recognizes that
qualified immunity can be raised early in proceedings. But, given the lack of evidence before the
court on these issues, the court concludes it would be premature to determine whether qualified

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immunity is in fact an available defense for these defendants and, if so, whether they are entitled
to its application in this case.
CONCLUSION
Based on the above reasoning, Defendant Kennon Tubbs, M.D.’s Motion to Dismiss
Plaintiff’s Second Amended Complaint [ECF Docket No. 101] is DENIED and Defendant Logan
Clark’s Motion for Judgment on the Pleadings [ECF Docket No. 104] is DENIED.
DATED this 22nd day of July, 2019.
BY THE COURT:

____________________________________
DALE A. KIMBALL,
United States District Judge

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