UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ GERALDINE DUBOIS, guardian of the person and estate of Gregory Steven DuBois, Plaintiff - Appellee,

v. S. BROWN; MITCH GOODMAN, Defendants - Appellants, and
THE BOARD OF COUNTY COMMISSIONERS OF MAYES COUNTY, OKLAHOMA; FRANK CANTEY; CHUCK WARD; JEFFERY BARTLETT; EMILY GARCIA; MIKE REED, Defendants.

––––––––––––––––––– –––––––––––––––– GERALDINE DUBOIS, guardian of the person and estate of Gregory Steven DuBois, Plaintiff - Appellee,

v. JEFFERY BARTLETT, Defendant - Appellant, and No. 16-5031 (D.C. No. 4:12-CV -00677-JED-PJC) (N.D. Okla.)

No. 16-5032 (D.C. No. 4:12-CV -00677-JED-PJC) (N.D. Okla.) FILED United States Court of Appeals Tenth Circuit 

### November 22, 2016
Elisabeth A. Shumaker Clerk of Court2 THE BOARD OF COUNTY COMMISSIONERS OF MAYES COUNTY, OKLAHOMA; FRANK CANTEY; CHUCK WARD; S. BROWN; MITCH GOODMAN; EMILY GARCIA; MIKE REED, Defendants.

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before KELLY , GORSUCH , and MATHESON , Circuit Judges.

________________ _________________ Plaintiff Geraldine DuBois, as the guardian of Gregory Steven DuBois (DuBois), brought suit under 42 U.S.C. § 1983 for constitutionally inadequate medical care while DuBois was a pretrial deta inee at the Mayes Coun ty Jail (the Jail). The defendants include supervisor Mitc h Goodman and jailers Steve Brown and Jeffrey Bartlett. In this interlocutory appeal, Goodman, Brown, and Bartlett challenge the district court’ s denial of their motions for summary judgment based on qualified immunity. In Goodman’s and Brown’ s appeal (No. 16-5031), we dismiss in part and affirm in part. In Bartlett’s appeal (No. 16-5032), we reverse and remand for the district court to enter judgmen t for Bartlett based on qualified immunity.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 BACKGROUND DuBois was detained at the Jail from April 8, 2011, until July 16, 2011. The Jail’s medical provider was a nurse practi tioner, who saw him on April 10 and again on May 7. During his time at the Jail, Du Bois complained of stomach pain, and he testified that he vomited almost daily. Late on May 17, other inmates in DuBo is’ cell locked him out because he was sick. DuBois told Br own that he was not feeling well and that he felt like he might be having a gallstone attack. DuBois wa s moved to another cell because of the lockout situation. Minutes later, Brown and Bartlett were notified by inmates in the new cell that DuBois was vomiting blood. They responded and observed a brown liquid substance on the toilet and floor. They moved DuBo is to an observation cell, but he was not examined by the nurse practiti oner or any other medi cal personnel. On June 11, DuBois was pl aced in an isolation cell for medical reasons, and he remained there for eight days without medi cal examination. He then was placed in the general population, but only for 24 hours , as he was returned to isolation on June 20 because he continue d to vomit. He remained in the isolation cell until July 15, but again never was refe rred for medical examination. Late on July 15, DuBois began vomiting blood. The Jail’s log indicates that at 22:00 the jailer on duty called Goodman to report on the situation. At 23:15, the jailer witnessed DuBois continue vomiting. He sought transpor t to the hospital for DuBois and called the Jail Administrator and the Jail’s nurse practitioner. The Jail Administrator came to tran sport DuBois, who arrived at the emergency room at4 approximately 00:15 on July 16. He soon wa s transferred via helicopter to another hospital. Ultimately he was diagnosed with a perforated colon, caused by previously unknown colon cancer. Due to complicati ons from loss of blood and hemorrhagic shock on July 15-16, DuBois’ right leg was amputated on July 19. Ms. DuBois sued Goodman, Brown, a nd Bartlett (as well as other defendants not involved in these appeals) for violati ng DuBois’ constitutional right to adequate medical care. Defendants each moved for summary judgment on the ground of qualified immunity, which put the burden on Ms. DuBois to “show (1) a reasonable jury could find facts supporti ng a violation of a constitu tional right, which (2) was clearly established at the time of the defendant’s conduct.” Henderson v. Glanz , 813 F.3d 938, 952 (10th Cir. 2015). The district court denied the defendants’ motions, concluding there we re genuine issues of mate rial fact as to whether defendants were deliberately indifferent to DuBois’ serious medical needs. Goodman and Brown appeal in No. 16-5031, a nd Bartlett appeals in No. 16-5032. DISCUSSION In an interlocutory appeal of a denial of qualified immunity, our jurisdiction is limited to abstract questions of law. Henderson , 813 F.3d at 947. Accordingly, “[o]n interlocutory appeal, we may review: (1) whether the facts that the district court ruled a reasonable jury could find would su ffice to show a le gal violation, or (2) whether that law was clear ly established at the time of the alleged violation.” Id. at 948 (internal quotation ma rks omitted). But under Johnson v. Jones , 515 U.S. 304, 313 (1995), “this court has no interlocutory jurisdiction to review whether or not the5 pretrial record sets forth a genui ne issue of fact for trial.” Henderson , 813 F.3d at 948 (internal quotation marks om itted). Therefore, “if a di strict court concludes that a reasonable jury could find certain specified facts in favor of the plaintiff, . . . we usually must take them as tr ue—and do so even if our own de novo review of the record might suggest otherwis e as a matter of law.” Lewis v. Tripp , 604 F.3d 1221, 1225 (10th Cir. 2010). A limited exception to this general rule, however, is that “when the ‘version of events’ the district court holds a re asonable jury could credit ‘is blatantly contradicted by the record,’ we may assess the ca se based on our own de

novo view of which facts a reasonabl e jury could accept as true.” Id. at 1225-26 (quoting Scott v. Harris , 550 U.S. 372, 380 (2007)). No. 16-5031 The district court denied summary judgment because it found a genuine issue of material fact as to wh ether defendants were delibera tely indifferent to DuBois’ serious medical needs. Goodman and Brown dispute this conclusi on, arguing that the district court misconstrued th e evidence. To evade the limitations on our review, they invoke the “blatant contradiction” exce ption and urge us to review the record de novo. We decline to do so. The “blatant contradiction” exception is difficult to satisfy, and the record is not so devoid of support for the di strict court’s findings that it would be appropriate to apply the exception in this appeal. Accordingly, we lack jurisdiction to consider defe ndants’ challenges to the di strict court’s conclusions about evidence sufficiency. See Henderson , 813 F.3d at 949-50.6 Goodman and Brown further argue that th e law was not clearly established “in the particular circumstances they faced.” No. 16-5031, Aplt. Br. at 51. This argument, however, is not predicated upon an alyzing the facts as found by the district court, but on analyzing the facts as advo cated by defendants. We therefore lack jurisdiction to consider it. See Henderson , 813 F.3d at 948; Castillo v. Day , 790 F.3d 1013, 1018 (10t h Cir. 2015). We do have jurisdiction to consider Goodman’s argument that Ms. DuBois improperly seeks to impose s upervisory liability on him fo r the events of July 15 and 16. See Johnson v. Martin , 195 F.3d 1208, 1215 (10th Cir. 1999) (holding that defendants’ argument regardi ng supervisory liability was reviewable on interlocutory appeal). But we disagree w ith Goodman’s assertion that Ms. DuBois is suing him simply for being a supervisor. The facts found by the distri ct court were that a jailer reported to Goodman that DuBois was th rowing up blood at 22:00 on July 15, but then the jailer failed to take any action to secure medical trea tment for DuBois until 23:15, and DuBois did not arrive at the hospital until 00:15 on July 16. Based on these facts, the district cour t held that a reasonable jury could infer that Goodman did not direct that DuBois be given immediate medical care, thereby directly contributing to a two-hour delay in treatment and DuBois ’ loss of his leg. Rather than being rooted in supervisory liability , this assessment involves liability for Goodman’s own action or inaction—namely, what he did or did not direct the jailer to do. A supervisor’s direct participation in the re levant events is an appropriate ground for7 assessing liability. See Estate of Booker v. Gomez , 745 F.3d 405, 435 (10th Cir. 2014); Fogarty v. Gallegos , 523 F.3d 1147, 1162 (10th Cir. 2008). 1 Accordingly, we dismiss those por tions of No. 16-5031 that we lack jurisdiction to consider, and we otherwis e affirm the district court’s decision. No. 16-5032 Recognizing our jurisdictiona l limitations, Bartlett assu mes the facts identified by the district court and contends (1) thos e facts are not suffici ent to establish a constitutional violation, and (2) the law wa s not clearly established. We have jurisdiction to consider th ese purely legal questions. Henderson , 813 F.3d at 948; Estate of Booker , 745 F.3d at 409. Our review is de novo. Al-Turki v. Robinson , 762 F.3d 1188, 1192 ( 10th Cir. 2014). “[T]he Eighth Amendment’s prohibition against cruel and unusual punishment extends to the unnecessary and wanton inflic tion of pain caused by prison officials’ deliberate indifference to serious medical needs of prisoners.” Id. (internal quotation marks omitted). This princi ple also “applies to pretrial detainees through the due process clause of the F ourteenth Amendment.” Howard v. Dickerson , 34 F.3d 978, 980 (10th Cir. 1994). “A claim of deliber ate indifference includes both an objective and a subjective component.” Al-Turki , 762 F.3d at 1192. Here, Bartlett argues that the facts assessed by the district court fail to satisfy the subjective component.

1 Goodman also conclusorily asserts that he had no duty to DuBois because he was not on duty at the Jail on the evening of July 15, 2011. He does not supply any authority or otherwise devel op this argument, however, a nd therefore we consider it waived for inadequate briefing. See Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 841 (10th Cir. 2005).8 A prison official will not be liable in a conditions-of-confinement case “unless the official knows of and disregards an exce ssive risk to inmate health or safety; the official must both be aware of facts from which the infere nce could be drawn that a substantial risk of serious harm exists, and he must al so draw the inference.” Farmer
v. Brennan , 511 U.S. 825, 837 (1994); see also Verdecia v. Adams , 327 F.3d 1171, 1175-76 (10th Cir. 2003). “[A] n official’s failure to alle viate a significant risk that he should have perc eived but did not, while no cau se for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer , 511 U.S. at 838. “This subjective standard lies ‘som ewhere between the poles of negligence at the one end and purpose . . . at the other. ’ . . . The Supreme Court has analogized it to criminal recklessne ss, to the conscious disregard of a ‘substantial risk of serious harm.’” Blackmon v. Sutton , 734 F.3d 1237, 1244-45 ( 10th Cir. 2013) (quoting
Farmer , 511 U.S. at 836). “[T]he symptoms di splayed by the prisoner are relevant to the subjective component of deliberate indi fference. The question is: were the symptoms such that a prison employee kne w the risk to the prisoner and chose (recklessly) to disregard it?” Martinez v. Beggs , 563 F.3d 1082, 1089 (10th Cir. 2009) (internal quotation ma rks omitted). “In a qualified immunity appeal, we are required to consider those facts which the district court found were sufficient to support the denial of the motion for summary judgment.” Cortez v. McCauley , 478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). “[D]eliberate indi fference is assessed at the ti me of the alleged omission.” Estate of Booker , 745 F.3d at 433. It is undisputed that no one at the Jail was aware9 of DuBois’ colon cancer before July 16, 2011; our inquiry must focus on the symptoms in May and June that were known to Bartlett. The district court found the following facts to be supportable: DuBois was vomiting frequently while at the Jail; Bartlett knew about certain specific inst ances when DuBois vomited (May 17) or complained of stomach pain (June 8); on May 17, Bartlett obser ved a brown, liquid substance on the toilet and floor; Bartlett administered over-the -counter medication to DuBois on June 8 (Tyle nol) and June 9 (Tums); Bartlett knew by June 8 that DuBois continued to have the same type s of complaints over and over again; yet Bartlett failed to refer Du Bois for medical attention. 2 Even taking these facts in the light most favorable to Ms. DuBois, however, they are insufficient to establish the subjective prong of the deliberate indifference test as to Bartlett—that is, that Bartlett kne w of and disregarded a substantial risk of serious harm to DuBois’ health. No r easonable juror could conclude that the symptoms known to Bartlett obviously signifi ed a serious medical need that required treatment by a medical practitioner or that, in these circumstances, Bartlett’s failure to seek medical attention for DuBois rose to the level of recklessness. The facts as found by the district court w ould not allow a reasonable juro r to infer that Bartlett actually drew an inference of a substantia l risk of serious ha rm. His failure to

2 The district court also found that “B artlett was working during the time that Dubois was moved to the isolation cell for medical reasons, but Dubois did not receive any medical attention or evaluati on during that time.” No. 16-5032, Aplt. App., Vol. VII at 1256. The district cour t did not find that Ba rtlett was personally involved in the transfer, however, and theref ore an inference that Bartlett knew of the reasons for the move is speculative.10 alleviate a potential risk that he should have perceive d, but did not, would not establish deliberate indifference. See Farmer , 511 U.S. at 838; Verdecia , 327 F.3d at 1176-77. Further, as the district court also recognized, Bartlett left the Jail’s employ in late June (his employment undisputedly was terminated on June 20, 2011). Thus, Bartlett’s duty to seek medi cal attention for DuBois ende d several weeks before the July 15 medical emergency. For these reasons, we conclude that Ms . DuBois failed to establish that a reasonable jury could conclude that Ba rtlett acted with de liberate indifference. 3
Bartlett therefore is entitled to qualified immunity. See Verdecia , 327 F.3d at 1177. CONCLUSION In No. 16-5031, the appeal is dismisse d in part for lack of jurisdiction and affirmed in part. In No. 16- 5032, the district court’s denial of qualified immunity to Bartlett is reversed and this matter is remanded with inst ruction to enter judgment in favor of Bartlett.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge

3 This analysis focuses solely on Bartlett. We express no opinion as to whether the facts as found by the district court would allow a reasonable jury to find deliberate indifference on the pa rt of any other defendant.