UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

IRVING J. MARQUEZ, Plaintiff-Appellee,

v. BOARD OF COUNTY COMMISSIONERS OF EDDY COUNTY; VICTOR E. MARTINEZ, JR.; DARREN JONES; RUTH ANN WALKER; SAL REY SALCIDO; DANETTE MARTINEZ, Defendants-Appellants. No. 12-2209 (D.C. No. 1:11-CV-00838-JAP-WDS) (D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , TYMKOVICH , and PHILLIPS , Circuit Judges.
The Board of County Commiss ioners, et al. (“Defendants”), 1 appeal the district court’s denial of their motion for par tial summary judgment based on qualified

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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.
1 Only individuals are entitled to qua lified immunity, the basis for the motion for partial summary judgment presented here on appeal. See Camuglia v. The City of (continued)

FILED United States Court of Appeals Tenth Circuit 

### October 28, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - immunity related to Irving J. Marquez’s de liberate indifference claims brought under 42 U.S.C. § 1983. Exercising jurisdicti on under 28 U.S.C. § 129 1, we affirm.
I. B ACKGROUND Mr. Marquez was pulled over after Sh eriff’s Deputy Victor Martinez saw Mr. Marquez’s truck swerve and nearly col lide with a tractor-trailer. While pulling to the side of the road, Mr. Marquez twic e collided with the guardrail. When he stepped out of his truck, he staggered and was unable to keep his balance. But despite Deputy Martinez’s suspicions , Mr. Marquez was not intoxicated— unbeknownst to Mr. Marquez, he had contracted West Nile Virus and was now suffering from its increasi ngly ill effects. Upon questioning by Deputy Martinez, Mr. Marquez denied he had been drinking or using dr ugs, but did mention he wa s sick and had taken an over-the-counter medication for his sympto ms. Mr. Marquez then submitted to a breathalyzer test, which registered zero, indicating no alcohol us e. After another officer, Deputy Darren Jones, arrived, the two officers sear ched the car and Mr. Marquez’s person for evidence that he had been using drugs, but found nothing. By that point Mr. Marquez was unable to stand without losing his balance and had trouble focusing on the office rs’ questions. He was al so sweating profusely.

Albuquerque , 448 F.3d 1214, 1223 (10th Cir. 2006) . Thus, although the Board of County Commissioners is named as an a ppellant, only the individuals’ appeals are before us.- 3 - The officers decided to administer a fi eld sobriety test, which Mr. Marquez promptly failed on account of losing his ba lance and not being able to follow finger movements. Deputy Martinez decided to arrest Mr. Marquez for driving under the influence, reasoning that he ha d never seen a sober person fa il a field sobriety test. Though they had ruled out alcohol to expl ain the way he was acting, the officers discussed the possibility that Mr. Marquez had been smoking methamphetamine. They also discussed the possi bility he had a medical cond ition, asking him if he had high blood pressure or diabetes, but Mr. Marquez denied having any medical conditions. Mr. Marquez was handcuffed, placed in th e squad car, and told he would have to submit to a blood test. On the way to the medical center for blood testing, Deputy Jones had to hold onto Mr. Marquez to pr event him from falling over. When they arrived at the medical center, a medical technician drew Mr. Marquez’s blood (later revealed to be negative for drugs and alc ohol). But despite be ing at a hospital and observing Mr. Marquez’s wors ening condition, the offi cers did not have him medically evaluated. The officers took Mr. Marquez to the sheriff’s departme nt to file paperwork, where Mr. Marquez’s condition continued to deteriorate. He was unable to stand without assistance. The offi cers then took Mr. Marquez to a detention center, where Deputies Martinez and Jones to ld the intake officers th at Mr. Marquez was under the- 4 - influence of some drug. An intake o fficer noticed Mr. Marquez’s condition and called for medical attention. A nurse, Ruth Ann Walker, was thus br ought in and observed Mr. Marquez’s inability to stand, balance, focus, or speak intelligibly. De puty Martinez told Ms. Walker that Mr. Marquez was coming down from a drug high. She did not take his vital signs. Instead, she instructed the intake officers to accept Mr. Marquez into custody and to call her if his condition wo rsened. Although he had not been medically screened, as detention center po licy required in such circumstances, the officers booked Mr. Marquez into custody. By that point he was unable to walk, stand, answer questions, dres s himself, sign paperwork, or even take a booking photo without assistance. After two-and-a-half hours of obs erving Mr. Marquez’s deteriorating condition, the intake officers called Ms. Walker and this time she took Mr. Marquez’s vital signs. She discovere d he was running a 104 degree fever and she immediately had him trans ported to a hospital, where he was eventually treated for West Nile Virus. Howe ver, as a result of the brai n swelling caused by the delay in treating his fever, Mr. Ma rquez suffered permanent, life-altering injuries. Mr. Marquez filed suit under § 1983 alle ging that the Defendants deprived him of his Fourteenth Amendment due process ri ghts when, as a pretri al detainee in the Defendants’ custody, they we re allegedly deliberately i ndifferent to his serious medical needs. He also brought a number of state-law claims. Following discovery,- 5 - the Defendants moved for summary judgme nt on the § 1983 claims arguing they were protected by qu alified immunity. The district court denied summary j udgment, finding that qualified immunity was unavailable because Mr. Marquez presen ted evidence the Defendants recklessly disregarded his obvious symptoms. The c ourt concluded that given all the overt signs that Mr. Marquez had a serious me dical problem, a jury could reasonably conclude that the Defendants were aware of but indifferent to a serious medical risk. The Defendants now appeal.
II. D ISCUSSION We review the district court’s de nial of summary judgment for qualified immunity de novo. Fancher v. Barrientos , 723 F.3d 1191, 1199 (10th Cir. 2013). When a defendant asserts qualified immun ity at the summary judgment stage, the plaintiff owns the burden of showing that the defendant violated a constitutional right that was clearly established at the time of the alleged violation. Becker v. Bateman , 709 F.3d 1019, 1022 (10th Cir. 2013). It has long been established that the Fourteenth Amendment prohibits officials from failing to provide medical care to a pret rial detainee with a serious medical need of which they are aware. Garcia v. Salt Lake Cnty ., 768 F.2d 303, 307 (10th Cir. 1985). Thus, when a plaintif f brings such a “deliberate indifference” claim, he must demonstrate that (1) the deprivation was ob jectively sufficiently serious and (2) the defendants disregarded a known or obvious risk to the pl aintiff’s serious medical- 6 - needs. See Farmer v. Brennan , 511 U.S. 825, 834, 842 (1994). Mere negligence is not enough. Id . at 835. Here, the Defendants do not dispute the first prong, that the alleged deprivation was serious. The Defendants instead argue that under the second prong, they were not aware that Mr. Marquez was suffering a serious medical condition. As such, they assert th at they could not have been deliberately indifferent. Before turning to the merits of the De fendants’ appeal, however, we must first address the extent of our jurisdiction. When a district court denies qualified immunity to public offici als, the decision “is immedi ately appealable under the collateral order doctrine to the extent it invol ves abstract issues of law,” including the determination that the law the defendant alle gedly violated was clearly established at the time of the alleged violation. Fancher , 723 F.3d at 1198. However, we lack jurisdiction to review the district court’s factual conclusions, “s uch as the existence of a genuine issue of material fact for a jury to decide, or that a pl aintiff’s evidence is sufficient to support a partic ular factual inference.” Fogarty v. Gallegos , 523 F.3d 1147, 1154 (10t h Cir. 2008). Most of the Defendants’ arguments on appeal dispute the district court’s interpretation of the facts. For example, the Defendants contend that the officers’ conduct shown on the dash camera footag e—including a discussion of a possible medical condition—demonstr ates both their good faith and confusion about the source of Mr. Marquez’s c onduct. It does not, they assert, demonstrate their- 7 - awareness of a potential serious medical pr oblem, as the district court found such evidence reasonably suggests. The Defendants also argue th at the district court did not give proper weight to the officers’ attempts to iden tify the source of Mr. Marquez’s behavior as evidence they were unaware of Mr. Marquez’s medical risk. They further claim th e court misinterpreted eviden ce showing that the officers were not fully convinced Mr. Marquez was under the influence of alcohol or drugs. But these are all precisely the sort of fact ual disputes, not legal issues, that we are precluded from reviewing at this stage. See Clanton v. Cooper , 129 F.3d 1147, 1153 (10th Cir. 1997) (“[W]e must scrupulously avoid second-gu essing the district court’s determinations regarding whether [the plaintiff] has presented evidence sufficient to survive summary judgment”). We thus lack jurisdiction to consider these arguments. To the extent the Defendants assert the di strict court’s version of the facts are wholly unsupported by the r ecord, such review is within our limited jurisdiction. See Lewis v. Tripp , 604 F.3d 1221, 1225 (10th Cir. 2010) (“[W]hen the version of events the district court holds a reasonable jury could cred it is blatantly contradicted by the record, we may assess the case based on our own de novo review of which facts a reasonable jury could accept as true .” (internal quotation marks omitted)). However, we are not convinced the district court erred, fo r the record amply supports the court’s version of the fact s. The Defendants claim that because it is undisputed that Mr. Marquez did not request medical attention, that he was immediately transported to a hospital once his fever was discovered, and that his symptoms were- 8 - similar to those of an intoxicated person, their conduct cannot am ount to deliberate indifference. But such a conclusion is cont radicted by other evid ence in the record. In light of Mr. Marquez’s unm istakable physical and mental deterioration, the lack of any indication that drugs or alcohol were the cause, and th e failure of the Defendants to act despite numerous opportunities to se ek medical attention (violating detention center policies in doing so), a jury coul d reasonably conclude that they were deliberately indifferent to Mr. Ma rquez’s serious medical risk. Lastly, the Defendants argue that the district court improperly applied a narrow legal standard that wa s not “clearly established.” Aplt. Brief-in-Chief at 25. The Defendants specifically contend that the district court applie d a faulty standard in which the Defendants’ failure to unde rstand that Mr. Marquez needed medical treatment could still amount to deliberate indifference. But the Defendants incorrectly assume the trut h of their premise that th e Defendants di d not understand Mr. Marquez’s risk of harm. The question the district court decided was not whether their failure to identify Mr . Marquez’s serious risk of harm amounted to deliberate indifference but rather, in light of the evidence, whether a jury could reasonably conclude the Defendants did understand the serious risk. The former is a fictitious legal question that the district court did not ask. The latter is a factual question that the district court answered affirm atively with record support.- 9 - The judgment of the district court is therefore affirmed.

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