UNITED STATES COURT 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 Commissioners, et al. (“Defendants”),1 appeal the district 

court’s denial of their motion for partial summary judgment based on qualified 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist 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 doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1

 Only individuals are entitled to qualified 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
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immunity related to Irving J. Marquez’s deliberate indifference claims brought under 

42 U.S.C. § 1983. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. 

I. BACKGROUND

 Mr. Marquez was pulled over after Sheriff’s Deputy Victor Martinez saw 

Mr. Marquez’s truck swerve and nearly collide with a tractor-trailer. While pulling 

to the side of the road, Mr. Marquez twice 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 increasingly ill effects. 

Upon questioning by Deputy Martinez, Mr. Marquez denied he had been 

drinking or using drugs, but did mention he was sick and had taken an 

over-the-counter medication for his symptoms. Mr. Marquez then submitted to a 

breathalyzer test, which registered zero, indicating no alcohol use. After another 

officer, Deputy Darren Jones, arrived, the two officers searched 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 officers’ questions. He was also sweating profusely. 

 

Albuquerque, 448 F.3d 1214, 1223 (10th Cir. 2006). Thus, although the Board of 

County Commissioners is named as an appellant, only the individuals’ appeals are 

before us. 
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The officers decided to administer a field sobriety test, which Mr. Marquez 

promptly failed on account of losing his balance and not being able to follow finger 

movements. Deputy Martinez decided to arrest Mr. Marquez for driving under the 

influence, reasoning that he had never seen a sober person fail a field sobriety test. 

Though they had ruled out alcohol to explain the way he was acting, the officers 

discussed the possibility that Mr. Marquez had been smoking methamphetamine. 

They also discussed the possibility he had a medical condition, asking him if he had 

high blood pressure or diabetes, but Mr. Marquez denied having any medical 

conditions. 

Mr. Marquez was handcuffed, placed in the 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 prevent 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 alcohol). But despite being at a hospital and 

observing Mr. Marquez’s worsening condition, the officers did not have him 

medically evaluated. 

The officers took Mr. Marquez to the sheriff’s department to file paperwork, 

where Mr. Marquez’s condition continued to deteriorate. He was unable to stand 

without assistance. The officers then took Mr. Marquez to a detention center, where 

Deputies Martinez and Jones told the intake officers that Mr. Marquez was under the 
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influence of some drug. An intake officer noticed Mr. Marquez’s condition and 

called for medical attention. 

A nurse, Ruth Ann Walker, was thus brought in and observed Mr. Marquez’s 

inability to stand, balance, focus, or speak intelligibly. Deputy 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 worsened. Although he had not been 

medically screened, as detention center policy required in such circumstances, the 

officers booked Mr. Marquez into custody. By that point he was unable to walk, 

stand, answer questions, dress himself, sign paperwork, or even take a booking photo 

without assistance. 

After two-and-a-half hours of observing Mr. Marquez’s deteriorating 

condition, the intake officers called Ms. Walker and this time she took 

Mr. Marquez’s vital signs. She discovered he was running a 104 degree fever and 

she immediately had him transported to a hospital, where he was eventually treated 

for West Nile Virus. However, as a result of the brain swelling caused by the delay 

in treating his fever, Mr. Marquez suffered permanent, life-altering injuries. 

Mr. Marquez filed suit under § 1983 alleging that the Defendants deprived him 

of his Fourteenth Amendment due process rights when, as a pretrial detainee in the 

Defendants’ custody, they were allegedly deliberately indifferent to his serious 

medical needs. He also brought a number of state-law claims. Following discovery, 
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the Defendants moved for summary judgment on the § 1983 claims arguing they 

were protected by qualified immunity. 

The district court denied summary judgment, finding that qualified immunity 

was unavailable because Mr. Marquez presented evidence the Defendants recklessly 

disregarded his obvious symptoms. The court concluded that given all the overt 

signs that Mr. Marquez had a serious medical problem, a jury could reasonably 

conclude that the Defendants were aware of but indifferent to a serious medical risk. 

The Defendants now appeal. 

II. DISCUSSION

 We review the district court’s denial of summary judgment for qualified 

immunity de novo. Fancher v. Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013). 

When a defendant asserts qualified immunity 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 pretrial 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 plaintiff brings such a “deliberate indifference” claim, he must 

demonstrate that (1) the deprivation was objectively sufficiently serious and (2) the 

defendants disregarded a known or obvious risk to the plaintiff’s serious medical 
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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 that they could not have been deliberately indifferent. 

Before turning to the merits of the Defendants’ appeal, however, we must first 

address the extent of our jurisdiction. When a district court denies qualified 

immunity to public officials, the decision “is immediately appealable under the 

collateral order doctrine to the extent it involves abstract issues of law,” including the 

determination that the law the defendant allegedly 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, “such as the existence 

of a genuine issue of material fact for a jury to decide, or that a plaintiff’s evidence is 

sufficient to support a particular factual inference.” Fogarty v. Gallegos, 523 F.3d 

1147, 1154 (10th 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 footage—including a discussion of a possible 

medical condition—demonstrates both their good faith and confusion about the 

source of Mr. Marquez’s conduct. It does not, they assert, demonstrate their 
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awareness of a potential serious medical problem, as the district court found such 

evidence reasonably suggests. The Defendants also argue that the district court did 

not give proper weight to the officers’ attempts to identify the source of 

Mr. Marquez’s behavior as evidence they were unaware of Mr. Marquez’s medical 

risk. They further claim the court misinterpreted evidence 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 factual 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-guessing 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 district court’s version of the facts are 

wholly unsupported by the record, 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 credit 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, for the record amply supports 

the court’s version of the facts. 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 
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similar to those of an intoxicated person, their conduct cannot amount to deliberate 

indifference. But such a conclusion is contradicted by other evidence in the record. 

In light of Mr. Marquez’s unmistakable physical and mental deterioration, the lack of 

any indication that drugs or alcohol were the cause, and the failure of the Defendants 

to act despite numerous opportunities to seek medical attention (violating detention 

center policies in doing so), a jury could reasonably conclude that they were 

deliberately indifferent to Mr. Marquez’s serious medical risk. 

Lastly, the Defendants argue that the district court improperly applied a 

narrow legal standard that was not “clearly established.” Aplt. Brief-in-Chief at 25. 

The Defendants specifically contend that the district court applied a faulty standard 

in which the Defendants’ failure to understand that Mr. Marquez needed medical 

treatment could still amount to deliberate indifference. But the Defendants 

incorrectly assume the truth of their premise that the Defendants did 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 affirmatively with record support. 
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 The judgment of the district court is therefore affirmed. 

 Entered for the Court 

 Paul J. Kelly, Jr. 

 Circuit Judge