UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ STACY WILLIS, as personal representative of the Estate of Mitchell Everett Willis, deceased, Plaintiff - Appellee,

v. JOHNATHON JOHNSO N, individually; JAMES NEWKIRK, individually, Defendants - Appellants, and OKLAHOMA COUNTY DETENTION CENTER; BOARD OF COUNTY COMMISSIONERS OF OKLAHOMA COUNTY, OKLAHOMA; P. D. TAYLOR, Oklahoma County Sheriff, individually and in hi s official capacity; OKLAHOMA COUNTY SHERIFF'S DEPARTMENT; JOHN WHETSEL, individually; KODY WARD, individually; TIFFANY WILLIAMSON, Defendants. No. 22-6039 (D.C. No. 5:18- CV-00323-D) (W.D. Okla.)

________________ _________________ ORDER *

________________ _________________

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### February 16, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 12 Before HOLMES , Chief Judge, TYMKOVICH , and CARSON , Circuit Judges.

________________ _________________ A district court’s qualified immunity ruling provides a limited exception to our general rule that a party may not appeal summary judgment denials. But our appellate jurisdiction depends on the appella nt accepting the district court’s factual findings for purposes of the appeal. Defendants Johnathon Johnson and James Newkirk appeal the district court’s summary judgment order denying them qualif ied immunity. In their briefing and at oral argument, Defendants argued their vers ion of the facts. At its core, their argument challenges the district court’s conclusion that Plaintiff Stacy Willis presented sufficient evidence to survive summary judgment . We thus dismiss their interlocutory appeal for lack of appellate jurisdiction. I. We take the following facts from the dist rict court’s opinion because we limit our qualified immunity review to consideri ng “whether the set of facts identified by the district court is sufficient to estab lish a violation of a clearly established constitutional right.” Attocknie v. Smith , 798 F.3d 1252, 1256 (10th Cir. 2015) (quoting Morris v. Noe, 672 F.3d 1185, 1189 (10th Cir. 2012)). We do not consider whether the district court correctly identified the set of facts that the summary judgment record is suffici ent to prove. Id. Law enforcement officers a rrested Mitchell Willis for public drunkenness and disorderly conduct. Early in his detention, Willis st arted a physical altercation Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 23 outside a receiving cell while officers tried to serve him lunch. Several officers had to intervene to subdue him. Officers plac ed him in handcuffs and ankle shackles. Detention center medical staff cleared him to go to a cell. He wa lked there under his
own power. Three officers, including Defendant Johnson , escorted Willis to his cell. Once inside the cell, they ordered Willis to lower himself to hi s knees. Willis complied. Johnson then assisted him to his stomach. At this point, Willis was face down in a prone position restrained by handcuffs a nd ankle shackles. The officers surrounded him to remove the handcuffs and shackles. To keep Willis on the floor Johnson used a three-point stabilization technique, which involves an officer placing his foot on the floor between a detainee’s neck and s houlder and lowering his shin across a detainee’s shoulder blade. During the unc uffing, another officer thought Johnson’s knee was in an incorrect position on Willis’s back and directed Johnson to reposition his knee. The officers removed the restraints and exited the cell. Over the next six hours, officers conducte d sight checks every fifteen minutes. The detention center assigned De fendant Newkirk to perform them. He began just as Johnson left the floor. When perform ing sight checks, the Oklahoma County Sheriff’s Office trained offi cers to look for movement in the cell and other signs of life. Officers were then to document in a logsheet what the inmate was doing during each check. In his first sight check, Newkirk documented that Wil lis was awake. Newkirk then went to lunch and anot her officer completed sight ch ecks in his absence. He Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 34 documented that Willis was “laying.” His ne xt two entries record Willis as “sitting.” That officer told investigators that Willis was seated on the floor with his back and shoulders against the wall. Upon his retu rn from lunch, Newkirk resumed the sight checks. He initially told investigators that Willis appeared to be lying on his stomach in the same position as when he left for l unch. At his deposition, Newkirk testified that Willis had moved cl oser to the door and wa s lying on his back. Video shows Newkirk completing his check s. For one sight check, he appears to look inside the cell three separate times. Several times, he kicked or knocked the cell door. He explained he w ould do this when a detainee a ppeared to be sleeping to get some sort of movement or reaction. Newkirk explained that if a kick or knock did not evoke a reaction, an officer shoul d then call for a nurse and a gurney. Newkirk told an investigator that Willis di d not respond to the knoc ks or kicks. He also told the investigator that it was difficult to de termine whether Willis was breathing. Two hours after returning from lunch, Newkirk asked two others to look at Willis. One officer testif ied that Newkirk asked her to look at Willis’s position because he had been lying “in the same we ird position.” The other officer looked in the cell and walked off without checking to see if Willis was breathing. Neither officer gave a definitive answer as to Willis’s condition. Three hours later, a detention center nurse arrived to dispense medication to a different inmate on the same floor. Ne wkirk told the nurse that he had been concerned about Willis for some time. The nurse found Willis unresponsive and told Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 45 Newkirk to call for a gurney. Detention cent er staff tried to re suscitate Willis but failed. Newkirk’s last seventeen si ght check entries said “sleep.” The medical examiner concluded that W illis’s cause of death was blunt force trauma to his thoracic spine. An autopsy revealed a si gnificant injury to Willis’s back. His spine was separate d between the fifth and sixth thoracic vertebrae, which is about halfway from the top and bottom of the spine. His spin al cord was almost completely transected. After Willis’s death, his estate sued Defendants under 42 U.S.C. § 1983 for violating his constitutional ri ghts. Plaintiff alleged th at Defendant Johnson used excessive force during the removal of Willis ’s handcuffs and that Defendant Newkirk showed deliberate indifference to his me dical needs in the hour s that followed. Defendants filed motions for summary judgme nt. In separate or ders, the district court denied them. As to Defendant Johnson, the district court denied summary judgment because a review of the evidence in the light most favorable to Plaintiff revealed a fact question existed as to whether Johnson acted reasonably. The district court first concluded that Plaintiff produced legally sufficient evidence showing that a reasonable detention officer would have known that placing excessive pressure on Willis’s spine as he lay on his stomach crea ted a significant risk of spinal injury, which could lead to paralysis or death. In doing so, the distri ct court pointed to evidence that the three-point restraint was not a necessary use of force. Plaintiff’s correctional expert opined that the three-po int technique is used for stabilizing a Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 56 detainee during cuffing, not uncuffing. Th at report also cited testimony from the Oklahoma County Detention Ce nter’s training director that he did not teach officers to use the three-point stabil ization technique while uncuffi ng a detainee. The district court also concluded that Plaintiff put forth evidence suggesting Johnson was subjectively aware of the ri sks implicated by use of th e three-point stabilization technique at the time of Willis’s detention. Finally, the district court found that Plaintiff’s evidence could sh ow that Johnson’s knee cont acted Willis’s back with enough force to cause the spinal injuries Willis sustained. As to Defendant Newkirk, the district c ourt said that the f acts taken in a light most favorable to Plaintiff showed Newkir k subjectively perceived Willis’s need for medical care, that Newkirk knew an excessive risk to Willis’ s health existed, and that Newkirk disregarded that risk. Some of Pl aintiff’s evidence suggests that Willis did not move positions for nearly six hours during Newkirk’s sight checks. He asked three people over that period to look in W illis’s cell. He knocke d and kicked the cell door several times with no response. Newkirk had trai ning to call for a nurse and gurney when knocking does not evoke a reac tion. Yet Newkirk did not call for a gurney until after a nurse directed him to do so nearly three and a half hours after he first kicked the cell door. Both Defendants appeal their resp ective summary judgment rulings. II. We “typically do not have jurisdiction to review denials of summary judgment motions.” Cox v. Glanz, 800 F.3d 1231, 1242 (10th Ci r. 2015) (quoting Serna v. Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 67 Colo. Dep’t of Corr., 455 F.3d 1146, 1150 (10th Cir. 2006)). But if the denial of qualified immunity to a public official invol ves abstract issues of law, the public official may immediately appeal the deni al. Id. (quoting Fancher v. Barrientos, 723 F.3d 1191, 1198 (10th Cir. 2013)). When that happens, we have jurisdiction to review “(1) whether the facts that the dist rict court ruled a reas onable jury could find would suffice to show a legal violation, or (2) whether th at law was clearly established at the time of the alleged violation.” Id. (quoting Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10t h Cir. 2013)). “The distri ct court’s fa ctual findings and reasonable assumptions comprise the ‘ universe of facts upon which we base our legal review of whether defendants are enti tled to qualified immunity.’” Id. (quoting Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008)). And when the district court “concludes that a reasonable jury coul d find certain specified facts in favor of the plaintiff, . . . we usually must take them as true—and do so even if our own de

novo review of the record might suggest otherw ise as a matter of law.” Id. (quoting Lewis v. Tripp, 604 F.3d 1221, 1225 (10t h Cir. 2010)). Importantly, we lack jurisdiction to decide whether the pretrial r ecord contains a genuine issue of material fact for trial. Id. (citing Johnson v. Jones, 515 U.S. 304, 320 (1995)). In their opening brief on appeal, Defendant s complain that the district court assumed incorrectly that Johnson applied sufficient pressure to Willis’s spine to significantly injure it. 1 Without support, Defendants contend that c ourts should not

1 Again, at oral argument, Defendants c ontinued to challenge the facts as found by the district court. For example, Defendants argued that Johnson was following Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 78 limit themselves to cons idering facts only in favor of Pl aintiff, nor are those the only facts that courts should consid er. Defendants also argue that the district court failed to analyze the eviden ce from the perspective of a reasonable officer in a same or similar position. Defendants believe that the district court should have focused on Willis’s earlier comba tive actions and should have concluded that based on those actions, it wasn’t unreasonable for Johnson to anticipate or to be prepared for Willis to want to fight after loosening the handcuffs. Defendants’ argument amounts to a backdoor challenge to the district court’s factual analysis. As they did below, Defe ndants argue that their evidence establishes that Willis’s uncooperative and combative c onduct justified Johnson’ s use of force. But the district court held that Plaintiff presented evidence that, if true, would show Johnson used a technique that he knew was unnecessary to restrain Willis and that a reasonable officer would have known that technique posed a significant risk of paralysis and death. Defendants also con tinue to argue that Johnson’s knee could not have caused Willis’s back injury. But again, the district court found that Plaintiff put forth legally sufficient evid ence to prove that Johnson’s knee contacted Willis’s back with force sufficient to cau se the spinal injuries. 2 Because Defendants chose to

proper technique and denied evidence in the record that suggested that Johnson misapplied the three-point technique. Defendants did not believe whether he properly applied the three-point technique was a jury question.

2 At oral argument, when asked about th e district court’s factual finding that evidence in the record sugge sted that Johnson’s knee cont acted Willis’s back with force sufficient to ca use the spinal injuri es Willis sustained, Defendants’ attorney stated he didn’t believe such evidence existed in the record. Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 89 pursue on appeal whether a genuine issue of ma terial fact exists on these issues, we lack jurisdiction to hear the appeal. Defendants engage in the same flawed argument with Newkirk. They argue that the district court disreg arded the intervening actions of other detention officers and medical staff who had observed Willis laying, sitting, and awake while in his cell. They also argue that Plaintiff submitted no evidence to the district court that Willis’s medical needs were so obvious that Newkirk was de liberately indifferent to his medical care. Again, th ese evidentiary arguments fly in the face of the district court’s factual conclusion that Plaintiff produced legally sufficient evidence to show Newkirk subjectively perceive d and then disregarded a si gnificant risk to Willis’s well-being. And again, Defendants’ refusa l to accept the district court’s factual findings is fatal to our appellate jurisdiction. Ultimately, Defendants’ presentation of th e case assumes we wi ll be their jury. We cannot do that. Because Defendants chos e to grapple with the district court’s interpretation of the eviden ce rather than advance a le gal argument, we have no jurisdiction over this interlocutory appeal. APPEAL DISMISSED.

Entered for the Court

Joel M. Carson III Circuit Judge Appellate Case: 22-6039 Document: 010110813819 Date Filed: 02/16/2023 Page: 9