PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CLYDE ALLEN RIFE, 

 Plaintiff - Appellant, 

v. 

OKLAHOMA DEPARTMENT OF 

PUBLIC SAFETY; JOE JEFFERSON, 

State Trooper; CHAD DALE; 

JONATHON WILLIS; MCCURTAIN 

COUNTY JAIL TRUST, 

 Defendants - Appellees. 

No. 16-7019 

(D.C. No. 6:14-CV-00333-FHS) 

(E.D. Okla.) 

_________________________________ 

ORDER

_________________________________ 

Before LUCERO, McKAY, and BACHARACH, Circuit Judges. 

_________________________________ 

This matter is before the court on appellees McCurtain County Jail Trust, Chad 

Dale and Jonathon Willis’s Petition for Rehearing En Banc, as well as the separate 

Petition for Rehearing and Petition for Rehearing En Banc filed by appellee Joe 

Jefferson. We also have the appellant’s response to those petitions. 

Upon consideration, panel rehearing is granted in part and only to the extent of the 

changes made to the amended opinion attached to this order. In all other respects panel 

rehearing is denied by the original panel members. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 12, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

The petitions, the response, as well as the amended opinion were also circulated to 

all the judges of the court who are in regular active service. As no judge on the original 

panel or the en banc court requested that a poll be called, the requests for en banc 

consideration are denied. 

The Clerk is directed to file the attached amended opinion effective the date of this 

order. 

Entered for the Court 

ELISABETH A. SHUMAKER, Clerk 
PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CLYDE ALLEN RIFE, 

 Plaintiff - Appellant, 

v. 

OKLAHOMA DEPARTMENT OF 

PUBLIC SAFETY; JOE 

JEFFERSON, State Trooper; CHAD 

DALE; JONATHON WILLIS; 

MCCURTAIN COUNTY JAIL 

TRUST, 

 Defendants - Appellees. 

No. 16-7019 

_________________________________ 

Appeal from the United States District Court 

for the Eastern District of Oklahoma 

(D.C. No. 6:14-CV-00333-FHS)

_________________________________ 

Daniel E. Smolen (Robert M. Blakemore, with him on the briefs), Smolen, 

Smolen & Roytman, PLLC, Tulsa, Oklahoma, for Plaintiff-Appellant. 

Stephen L. Geries (Ammon J. Brisolara, with him on the brief), Collins 

Zorn & Wagner, Oklahoma City, Oklahoma, for McCurtain County Jail 

Trust, Chad Dale, and Jonathon Willis, Defendants-Appellees. 

Devan A. Pederson, Assistant Attorney General, Oklahoma Attorney 

General’s Office, Oklahoma City, Oklahoma, for Oklahoma Department of 

Public Safety, and Joe Jefferson, Defendants-Appellees. 

_________________________________ 

Before LUCERO, McKAY, and BACHARACH, Circuit Judges. 

_________________________________ 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 12, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

BACHARACH, Circuit Judge. 

_________________________________ 

This case began with the plaintiff, Mr. Clyde Rife, sitting on a 

motorcycle next to a road, unable to recall the date, the time, or even what 

he had been doing in a town he had just visited. When approached by a 

state trooper, Mr. Rife said that he was fine. Nonetheless, the trooper 

questioned Mr. Rife and concluded that he was intoxicated on pain 

medication and had been in a motorcycle accident. These conclusions led 

the trooper to arrest Mr. Rife for public intoxication. Authorities later 

learned that Mr. Rife had not been intoxicated; he had suffered a head 

injury in a motorcycle accident. 

Mr. Rife ultimately sued the trooper and the Oklahoma Department of 

Public Safety, alleging in part that he had been wrongfully arrested. For 

this allegation, we ask: Did probable cause exist to arrest Mr. Rife? The 

district court said “yes,” and we agree. 

The rest of the case involves what happened after the arrest. After 

the arrest, the trooper drove Mr. Rife to jail. Along the way, Mr. Rife 

groaned and complained of pain in his heart and chest. Upon arriving at the 

jail, Mr. Rife was put in a holding cell. The scene was observed by a 

cellmate, who said that Mr. Rife had repeatedly complained about pain. 

Nonetheless, Mr. Rife was not provided medical attention. 
3 

The lack of medical care led Mr. Rife to sue (1) the trooper, two jail 

officials, and the entity operating the jail for deliberate indifference to 

serious medical needs and (2) the Oklahoma Department of Public Safety 

for negligent failure to provide medical care. On these claims, we ask: Did 

the failure to provide medical attention constitute (1) deliberate 

indifference to Mr. Rife’s serious medical needs or (2) negligence? The 

district court thought no one could reasonably infer either deliberate 

indifference or negligence. We disagree, concluding that both could be 

reasonably inferred from the evidence. 

These conclusions lead us to affirm in part, to reverse in part, and to 

remand for further proceedings. 

I. Mr. Rife’s Claims 

Mr. Rife sued the trooper (Joe Jefferson), the two jail officials 

(Jonathon Willis and Chad Dale), the entity operating the jail (McCurtain 

County Jail Trust), and the Oklahoma Department of Public Safety.1

 With 

regard to the arrest, Mr. Rife makes two claims: 

1. Trooper Jefferson is liable under § 1983 for arresting Mr. Rife 

without probable cause.

 

1

 The Oklahoma Department of Public Safety is a state agency. See

Okla. Stat. tit. 47, § 2-101. Trooper Jefferson worked for the Oklahoma 

Highway Patrol, which is a division of the Oklahoma Department of Public 

Safety. 
4 

2. The Oklahoma Department of Public Safety incurs vicarious 

liability for the wrongful arrest under the Oklahoma 

Governmental Tort Claims Act.2

For the lack of medical attention after the arrest, Mr. Rife makes 

three claims: 

1. Trooper Jefferson, Mr. Willis, and Mr. Dale are liable under 42 

U.S.C. § 1983 for deliberate indifference to serious medical 

needs. 

2. The jail trust is liable under § 1983 for the deliberate 

indifference of jail employees. 

3. The Oklahoma Department of Public Safety is vicariously 

liable under the Oklahoma Governmental Tort Claims Act for 

Trooper Jefferson’s negligent failure to obtain medical 

attention.3

During the lawsuit, Mr. Rife discovered that the jail trust had 

destroyed a videotape that showed him in the jail’s booking area. 

According to Mr. Rife, the destruction of the videotape warranted 

spoliation sanctions consisting of denial of the summary judgment motions 

brought by Mr. Willis, Mr. Dale, and the jail trust. 

 

 

2

 The Oklahoma Governmental Tort Claims Act is codified at Okla. 

Stat. tit. 51, § 151 et seq. This law provides the exclusive tort remedy in 

Oklahoma for injured plaintiffs to recover against state entities. Tuffy’s, 

Inc. v. City of Okla. City, 212 P.3d 1158, 1163 (Okla. 2009). Under this 

law, state entities can generally incur liability for torts. Id. This liability 

may be based on the acts of state employees. Id. 

3

 Mr. Rife also sued under the Oklahoma Constitution, but those claims 

are not involved in this appeal. 
5 

II. The District Court’s Rulings 

 

The defendants moved for summary judgment, and the district court 

granted summary judgment to each defendant. 

On the wrongful arrest claims, the district court granted summary 

judgment to Trooper Jefferson and the Oklahoma Department of Public 

Safety, concluding that probable cause existed for Mr. Rife’s arrest. 

On the claims involving a failure to provide medical attention, the 

court granted summary judgment to all defendants, reasoning that the lack 

of medical attention had not resulted from deliberate indifference or 

negligence. 

In addition, the district court declined to sanction the jail trust, Mr. 

Willis, and Mr. Dale for destruction of the videotape, reasoning that Mr. 

Rife had failed to follow the proper procedure for requesting a spoliation 

sanction. 

III. Our Conclusions 

We affirm the district court’s orders in part, reverse in part, and 

remand for further proceedings. 

On the wrongful arrest claims against Trooper Jefferson and the 

Oklahoma Department of Public Safety, we affirm, agreeing with the 

district court that probable cause existed for the arrest. 

On the deliberate indifference claims, we reverse: A reasonable 

factfinder could find facts supporting the deliberate indifference claims 
6 

against Trooper Jefferson, Mr. Willis, Mr. Dale, and the jail trust. Thus, 

we reverse and remand for the district court to determine (1) whether Mr. 

Rife’s rights were clearly established and (2) whether a reasonable 

factfinder could find a causal link between the jail trust’s policies or 

customs and a constitutional violation. 

On the negligence claim against the Oklahoma Department of Public 

Safety, we reverse, concluding that a genuine dispute of material fact 

exists on the reasonableness of Trooper Jefferson’s failure to obtain 

medical attention. 

In addition, we affirm the district court’s denial of spoliation 

sanctions, concluding that Mr. Rife forfeited his present argument and has 

failed to identify evidence of bad faith. 

IV. Standard of Review 

 The district court concluded that the defendants were entitled to 

summary judgment. We review these conclusions de novo. Koch v. City of 

Del City, 660 F.3d 1228, 1237-38 (10th Cir. 2011). In applying de novo 

review, we consider the evidence in the light most favorable to Mr. Rife, 

resolving all factual disputes and drawing all reasonable inferences in his 

favor. Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014).

We apply not only this standard of review but also the substantive 

burdens on the underlying issues. One such issue is qualified immunity, 

which is raised by Trooper Jefferson, Mr. Willis, and Mr. Dale. The 
7 

threshold burden falls on the plaintiff, who must demonstrate that a 

reasonable factfinder could find facts supporting the violation of a 

constitutional right that had been clearly established at the time of the 

violation.4 Id. If this burden is met, the defendant must show that (1) there 

are no genuine issues of material fact and (2) the defendant is entitled to 

judgment as a matter of law. Koch, 660 F.3d at 1238. 

V. The Wrongful Arrest Claim Against Trooper Jefferson 

Invoking § 1983, Mr. Rife argues that Trooper Jefferson lacked 

probable cause, rendering the arrest a violation of the Fourth and 

Fourteenth Amendments. According to Mr. Rife, the district court 

disregarded evidence supporting this claim. Trooper Jefferson counters that 

 he had probable cause, 

 any possible factual mistake would have been objectively 

reasonable, and 

 

 the underlying right was not clearly established. 

The district court granted summary judgment to Trooper Jefferson, holding 

that he had probable cause to arrest Mr. Rife for public intoxication. We 

agree. 

 

 

4

 The defendants state that the plaintiff must show a violation of a 

clearly established constitutional right, not that a reasonable factfinder 

could find facts supporting such a violation. The difference in framing 

would not affect our analysis. 
8 

A. The Interaction Between Mr. Rife and Trooper Jefferson 

 

Trooper Jefferson’s police car had a dashcam, which captured almost 

the entire interaction between Mr. Rife and Trooper Jefferson. 

The dashcam begins with Trooper Jefferson checking on Mr. Rife, 

who was sitting on a motorcycle next to a road. Mr. Rife was confused 

with dried blood on his nose, and there were grass and grass stains on the 

motorcycle. Mr. Rife also had grass stains on his pants and shirt, 

indicating that he had been thrown from the motorcycle. 

Trooper Jefferson asked if Mr. Rife was okay, and Mr. Rife replied 

that he was fine. But Mr. Rife could not identify the day, approximate the 

time of day, or remember his social security number. He knew that he had 

been in Idabel, Oklahoma, earlier that day but could not remember what he 

had been doing there. His speech was slurred. 

The trooper suspected intoxication. Because the symptoms of head 

injuries and intoxication are similar, the trooper looked for signs of a head 

injury: unequal tracking of the pupils, unequal pupil size, and resting 

nystagmus. Mr. Rife did not exhibit these signs. 

Trooper Jefferson then performed a horizontal gaze nystagmus test, 

which could reveal up to 6 clues of impairment. Trooper Jefferson’s 

training stated that if a person exhibits 4 out of the 6 clues, there is an 80 

percent chance of intoxication. Mr. Rife exhibited all 6 clues. 
9 

To determine whether Mr. Rife was intoxicated, Trooper Jefferson 

conducted four additional tests. Mr. Rife failed these tests or was unable to 

complete them. Before one of the tests, Mr. Rife stated that he felt 

“floaty”; during another test, Mr. Rife lost his balance. 

These tests and observations led Trooper Jefferson to arrest Mr. Rife 

for public intoxication. Trooper Jefferson knew that Mr. Rife was not 

drunk but believed that he had taken too much pain medication. Many of 

Mr. Rife’s symptoms were consistent with intoxication from pain 

medication, including constricted pupils, lethargy, nystagmus, dizziness, 

and feeling “floaty.” 

At the time of arrest, Trooper Jefferson also knew that Mr. Rife had 

been in a motorcycle accident. Mr. Rife had repeatedly denied being in a 

motorcycle accident, but Trooper Jefferson said that Mr. Rife had 

obviously been in an accident. 

Though Trooper Jefferson knew that an accident had taken place, he 

did not believe that it had involved high speed or high impact. Trooper 

Jefferson reasoned that Mr. Rife did not have the type of visible injuries 

that would likely result from a high-speed or high-impact accident. For 

instance, Mr. Rife had no marks or scratches on his arms. Trooper 

Jefferson also noted that there was little damage to the motorcycle or 

saddlebags. 
10 

Trooper Jefferson drove Mr. Rife to jail. During the drive, Mr. Rife 

said that his chest hurt and groaned in pain. A few minutes later, Mr. Rife 

stated that his heart hurt and again groaned. 

Trooper Jefferson acknowledges that at some point, Mr. Rife 

complained that he felt sick. 

B. The District Court’s Alleged Discounting of Supporting 

Evidence 

Mr. Rife argues that the district court improperly discounted four 

evidentiary items: 

1. Trooper Jefferson reported that the arrest had been for public 

intoxication under Okla. Stat. tit. 37, § 537, but this statute 

involves intoxication from alcohol rather than medication. 

2. Trooper Jefferson knew that Mr. Rife was not under the 

influence of alcohol. 

3. Trooper Jefferson knew that Mr. Rife had been in a motorcycle 

accident and that certain medical conditions could mimic the 

symptoms of intoxication. Although Trooper Jefferson ruled 

out a head injury, he did not rule out shock or other medical 

conditions. 

4. Mr. Rife said that the only medication he had taken was for 

blood pressure. 

None of this evidence precludes the existence of probable cause. 

The first two evidentiary items are immaterial because probable 

cause need not be based on the statute mistakenly invoked by Trooper 

Jefferson. See Part V(D), below. Under Oklahoma law, Mr. Rife could be 
11 

guilty of a crime if he had been publicly intoxicated on pain medication 

rather than alcohol. See Parts V(C)-(D), below. 

The third evidentiary item is immaterial because probable cause does 

not require police officers to rule out all innocent explanations for a 

suspect’s behavior. See, e.g., Lingo v. City of Salem, 832 F.3d 953, 961 

(9th Cir. 2016) (“It is decidedly not the officers’ burden to ‘rule out the 

possibility of innocent behavior’ in order to establish probable cause.” 

(quoting Ramirez v. City of Buena Park, 560 F.3d 1012, 1024 (9th Cir. 

2009)); United States v. Reed, 220 F.3d 476, 478 (6th Cir. 2000) (“Officers 

are not required to rule out every possible explanation other than a 

suspect’s illegal conduct before making an arrest.”); United States v. 

Fama, 758 F.2d 834, 838 (2d Cir. 1985) (“The fact that an innocent 

explanation may be consistent with the facts alleged . . . does not negate 

probable cause.”). 

The fourth evidentiary item is also immaterial. Though Mr. Rife 

stated that the only medication he had taken was for his blood pressure, 

Trooper Jefferson could rationally have thought that Mr. Rife had forgotten 

what medication he had taken or had been lying. After all, Mr. Rife had 

denied being in a motorcycle accident, but obviously had been in an 

accident and was unable to remember many common things such as what 

day it was or what he had been doing in Idabel. 
12 

In these circumstances, we reject Mr. Rife’s argument that the 

district court improperly discounted the four evidentiary items. 

C. The Existence of Probable Cause 

Notwithstanding these evidentiary items, probable cause existed to 

arrest Mr. Rife for public intoxication. 

A warrantless arrest is permissible only if an officer has probable 

cause to believe that the arrestee committed a crime. Cortez v. McCauley, 

478 F.3d 1108, 1115 (10th Cir. 2007) (en banc). “Probable cause to arrest 

exists only when the facts and circumstances within the officers’ 

knowledge, and of which they have reasonably trustworthy information, are 

sufficient in themselves to warrant a man of reasonable caution in the 

belief that an offense has been or is being committed.” Id. at 1116 (quoting 

United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004)). The 

officer’s belief does not need to be certain or more likely true than false. 

United States v. Padilla, 819 F.2d 952, 962 (10th Cir. 1987). 

In Oklahoma, the crime of public intoxication involves being 

intoxicated in a public place. Okla. Stat. tit. 37, §§ 8, 537(A)(8). Mr. Rife 

does not question whether he was in a public place. Instead, he denies any 

plausible reason to think he was intoxicated. 

The “outward manifestations” of intoxication are “impaired mental 

judgment and physical responses.” Findlay v. City of Tulsa, 561 P.2d 980, 

984 (Okla. Crim. App. 1977). But these symptoms of intoxication “may 
13 

also be symptomatic of other physical impairments.” Id. That was the case 

here, for Mr. Rife’s symptoms could reasonably suggest intoxication, a 

head injury, or other medical conditions. 

The Seventh Circuit Court of Appeals addressed a similar situation in 

Hirsch v. Burke, where a diabetic individual experiencing insulin shock 

was arrested for public intoxication. 40 F.3d 900, 901 (7th Cir. 1994). 

Before the arrest, the individual had trouble balancing himself, seemed 

incoherent, smelled of alcohol, had bloodshot eyes, and was unable to state 

his name or date of birth. Id. at 903. Unbeknownst to the officer, the 

individual was experiencing diabetic symptoms that mimicked intoxication. 

Id. Based on these facts, the Seventh Circuit upheld the district court’s 

finding of probable cause. Id. at 903-04. 

Similarly, in Qian v. Kautz, an individual with a pre-existing head 

injury was arrested for public intoxication. 168 F.3d 949, 951-52, 954 (7th 

Cir. 1999). The arresting police officer was unaware of the head injury, but 

was aware of five facts: 

1. The individual had lost control of a car and crashed. 

2. The individual was hunched over and having difficulty walking. 

3. There were no signs that the individual had hit anything in the 

car’s interior during the accident. 

4. The individual denied being injured and showed no physical 

signs of injury. 

5. The individual’s speech seemed slurred. 
14 

Id. at 954. The Seventh Circuit held that these facts were sufficient to 

create probable cause, noting that “the overall setting easily support[ed] 

[the officer’s] decision to arrest [the individual].” Id.

Some of the factors supporting probable cause in Hirsch are present 

here. Like the arrestee in Hirsch, Mr. Rife had trouble balancing himself 

and was unable to provide the police with basic information (such as the 

day or time). 

There are also parallels between the facts in our case and those in 

Qian. Like the arrestee in Qian, Mr. Rife had been in an accident, was 

hunched over, denied being injured, and had slurred speech. 

Additional evidence supports probable cause here that was not 

present in Hirsch or Qian. As explained above, Trooper Jefferson examined 

Mr. Rife to determine whether he had a head injury, checking for unequal 

tracking of the pupils, unequal pupil size, and resting nystagmus. Mr. Rife 

did not show any of these signs. After ruling out a head injury, Trooper 

Jefferson conducted other tests that suggested intoxication. 

In these circumstances, an officer could reasonably conclude that Mr. 

Rife was intoxicated from medication. 

D. Trooper Jefferson’s Reason for Making the Arrest 

Mr. Rife suggests that probable cause did not exist because Trooper 

Jefferson had relied on the wrong statute. In a report, Trooper Jefferson 
15 

stated that the arrest had been based on Okla. Stat. tit. 37, § 537. This law 

deals with intoxication from alcohol, not medication. 

But Trooper Jefferson’s mistake does not foreclose probable cause 

because an arresting officer’s “subjective reason for making [an] arrest 

need not be the criminal offense as to which the known facts provide 

probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). 

Probable cause existed for violation of a separate statute: Okla. Stat. 

tit. 37, § 8. Under this statute, a crime is committed when the intoxication 

is caused by either alcohol or another intoxicating substance. Findlay v. 

City of Tulsa, 561 P.2d 980, 984-85 (Okla. Crim. App. 1977). Thus, 

probable cause existed even though Trooper Jefferson relied on the wrong 

statute. 

VI. The Wrongful Arrest Claim Against the Oklahoma Department of 

Public Safety 

Mr. Rife invokes the Oklahoma Governmental Tort Claims Act, 

claiming that the Oklahoma Department of Public Safety is vicariously 

liable for the wrongful arrest. On this claim, the district court granted 

summary judgment to the Oklahoma Department of Public Safety, holding 

that the existence of probable cause vitiated tort liability. We agree with 

the district court. Because the arrest was supported by probable cause, the 

Oklahoma Department of Public Safety could not incur liability for a 

wrongful arrest. 
16 

VII. The Deliberate Indifference Claim Against Trooper Jefferson 

Mr. Rife brought a § 1983 claim against Trooper Jefferson, alleging 

deliberate indifference to serious medical needs. The district court granted 

summary judgment to Trooper Jefferson, concluding that he enjoyed 

qualified immunity because there was no evidence of a constitutional 

violation. This conclusion was erroneous, for Mr. Rife presented evidence 

that would reasonably allow factual findings supporting liability for 

deliberate indifference. 

A. The Legal Framework for Deliberate Indifference Claims by 

Pretrial Detainees 

The Fourteenth Amendment’s Due Process Clause entitles pretrial 

detainees to the same standard of medical care owed to convicted inmates 

under the Eighth Amendment. See Olsen v. Layton Hills Mall, 312 F.3d 

1304, 1315 (10th Cir. 2002). Thus, the Fourteenth Amendment is violated 

if state officials are deliberately indifferent to a pretrial detainee’s serious 

medical needs. See, e.g., Martinez v. Beggs, 563 F.3d 1082, 1088-91 (10th 

Cir. 2009) (analyzing whether police officers were deliberately indifferent 

to the serious medical needs of a pretrial detainee). 

The Supreme Court has established a two-pronged test for deliberate 

indifference claims. Under this test, a plaintiff must satisfy an objective 

prong and a subjective prong. Farmer v. Brennan, 511 U.S. 825, 834, 837-

40 (1994). The objective prong concerns the severity of a plaintiff’s need 
17 

for medical care; the subjective prong concerns the defendant’s state of 

mind. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). This 

appeal focuses largely on the subjective prong. 

The subjective prong is satisfied only if the defendant knew of an 

excessive risk to the plaintiff’s health or safety and disregarded that risk. 

Farmer, 511 U.S. at 837. In deciding whether this prong is satisfied, the 

factfinder may consider circumstantial evidence. Gonzales v. Martinez, 403 

F.3d 1179, 1183 (10th Cir. 2005). For example, the existence of an obvious 

risk to health or safety may indicate awareness of the risk. See Farmer, 

511 U.S. at 842 (“[A] factfinder may conclude that a prison official knew 

of a substantial risk from the very fact that the risk was obvious.”). But 

“the obviousness of a risk is not conclusive and a prison official may show 

that the obvious escaped him.” Id. at 843 n.8. 

B. Application of Standards Involving Medical Professionals 

Our court applies specialized standards to deliberate indifference 

claims against medical professionals. See Self v. Crum, 439 F.3d 1227, 

1231-33 (10th Cir. 2006) (discussing these standards). We have not applied 

these standards to deliberate indifference claims against laypersons such as 

police officers. Nonetheless, the district court analyzed whether Trooper 

Jefferson was deliberately indifferent under the standards for medical 

professionals. Mr. Rife takes a different approach, urging liability of 
18 

Trooper Jefferson based on cases involving laypersons. This approach is 

correct because Trooper Jefferson was not a medical professional. 

C. The District Court’s Discounting of Supporting Evidence 

Mr. Rife contends that the district court improperly discounted four 

evidentiary items: 

1. Mr. Rife said that his chest and heart hurt and made groaning 

noises. 

2. Mr. Rife stated that he felt sick. 

3. Trooper Jefferson saw dried blood on Mr. Rife’s nose. 

4. An expert witness testified that someone on a motorcycle is 

more likely to be injured in an accident than someone in an 

automobile. 

Trooper Jefferson denies any evidence that Mr. Rife complained of 

heart or chest pain or groaned in pain. We disagree. The dashcam recorded 

Mr. Rife’s complaints and groans. The district court should have 

considered this evidence, along with the complaint of feeling sick, the 

presence of dried blood on Mr. Rife’s nose, and the expert testimony that 

personal injury is more likely in motorcycle accidents than in automobile 

accidents.5

 

5

 Trooper Jefferson seems to acknowledge that the district court 

discounted the testimony that personal injury is more likely in motorcycle 

accidents than in automobile accidents. But he argues that “this abstract 

proposition is immaterial given the other evidence suggesting that Rife was 

not injured.” Response Br. of the Oklahoma Department of Public Safety 

and Trooper Jefferson at 18. This argument fails. To the extent that there is 
19 

D. Trooper Jefferson’s Conscious Disregard of a Substantial 

Health Risk 

Trooper Jefferson argues that Mr. Rife failed to present sufficient 

evidence of a conscious disregard of a substantial health risk. We disagree. 

Mr. Rife argues that his need for medical attention was obvious. This 

argument is supported by ten evidentiary items: 

1. Trooper Jefferson knew that Mr. Rife had been involved in a 

motorcycle accident. 

2. According to an expert witness, injury is more likely in a 

motorcycle accident than in an automobile accident. 

3. Trooper Jefferson saw grass stains on Mr. Rife’s pants and on 

the back of his shirt. These stains indicated that Mr. Rife had 

been thrown from the motorcycle. 

4. Mr. Rife did not know what day it was, what time it was, what 

his social security number was, or what he had done in Idabel. 

5. There was dried blood on Mr. Rife’s nose. 

6. Mr. Rife had constricted pupils, lethargy, nystagmus, and 

dizziness. 

7. Mr. Rife said that he felt “floaty.” 

8. Mr. Rife stated that he felt sick. 

9. Mr. Rife complained that his chest hurt and he made groaning 

noises, suggesting that he was in pain. 

 

conflicting evidence on the obviousness of the injury, we must view the 

evidence favorably to Mr. Rife. See Part IV, above. 
20 

10. Shortly thereafter, Mr. Rife complained that his heart hurt and 

again groaned.6

 

These facts could lead a reasonable factfinder to infer that Trooper 

Jefferson had recognized the need for medical attention. Nonetheless, 

Trooper Jefferson admittedly did not obtain medical attention for Mr. Rife. 

Trooper Jefferson denies that a court could find deliberate 

indifference, pointing to six alleged facts: 

1. Trooper Jefferson never saw Mr. Rife exhibit signs of pain or 

injury. 

2. All of Mr. Rife’s symptoms were consistent with intoxication 

from pain medication. 

3. Mr. Rife denied being in an accident. 

4. When Trooper Jefferson approached Mr. Rife and asked how he 

was doing, Mr. Rife replied that he was fine. 

5. Upon examination, Mr. Rife did not exhibit signs of a head 

injury. 

6. The damage to the motorcycle was relatively minor. 

 

6

 Trooper Jefferson argues that “even assuming, arguendo, that Rife 

did, almost inaudibly, say that his chest or heart hurt, this would not be 

enough, given the totality of the other circumstances of this case, to show 

that Jefferson acted with deliberate indifference.” Response Br. of the 

Oklahoma Department of Public Safety and Trooper Jefferson at 33. This 

argument is flawed in two respects. First, Mr. Rife did not whisper these 

statements; a factfinder could reasonably infer that the statements were 

loud enough for Trooper Jefferson to hear. Second, other evidentiary items 

indicated a need for immediate medical attention. For both reasons, this 

argument fails. 
21 

The first alleged fact is inaccurate. For instance, the videotape shows 

Mr. Rife groaning and complaining that his heart and chest hurt. In 

addition, Trooper Jefferson acknowledges that Mr. Rife complained of 

feeling sick. And throughout the episode, Mr. Rife had dried blood on his 

nose. 

The second alleged fact is at least debatable, for the summary 

judgment record does not contain evidence of an inconsistency between 

Mr. Rife’s symptoms (such as pain in the chest or heart) and intoxication 

from pain medication. And even if the symptoms had been consistent with 

intoxication, the symptoms could also have suggested serious injury from 

the apparent motorcycle accident. 

The other four alleged facts are insufficient to avoid a genuine 

dispute of material fact. Mr. Rife denied being in a motorcycle accident, 

but the trooper repeatedly stated that he knew that Mr. Rife had been in a 

motorcycle accident. Similarly, Mr. Rife may have initially claimed that he 

was fine, but he later complained of chest pain and heart pain, said that he 

felt sick, and remarked that he felt “floaty.” These statements, when 

combined with Mr. Rife’s other evidence, could adequately support 

liability for deliberate indifference even if Mr. Rife had not exhibited signs 

of a head injury or incurred major damage to his motorcycle. 
22 

 Together, the evidence could reasonably support a finding that 

Trooper Jefferson knew of a substantial risk to Mr. Rife’s health and 

consciously disregarded that risk. 

E. Whether the Underlying Right Was Clearly Established 

In district court, Trooper Jefferson argued that Mr. Rife’s right to 

medical care had not been clearly established, but the district court did not 

rule on this argument. In this situation, “[t]he better practice . . . is to 

leave the matter to the district court in the first instance.” Greystone 

Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th 

Cir. 2011) (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg Ins. Co., 593 

F.3d 1188, 1198 (10th Cir. 2010)). Thus, we remand to the district court 

for consideration of whether the underlying constitutional right was clearly 

established. 

VIII. The Negligence Claim Against the Oklahoma Department of 

Public Safety 

Mr. Rife again invokes the Oklahoma Governmental Tort Claims Act, 

alleging that the Oklahoma Department of Public Safety is vicariously 

liable for Trooper Jefferson’s negligent failure to obtain medical attention. 

The district court granted the Oklahoma Department of Public Safety’s 

motion for summary judgment, reasoning that Trooper Jefferson’s actions 

were reasonable as a matter of law. 
23 

On appeal, Mr. Rife argues that the district court improperly 

discounted evidence supporting the negligence claim. We agree and reverse 

the order granting summary judgment to the Oklahoma Department of 

Public Safety. 

A. The District Court’s Discounting of Supporting Evidence 

Mr. Rife contends that the district court improperly discounted 

evidence supporting the negligence claim, pointing to the same evidence 

that the district court improperly discounted for the deliberate indifference 

claim against Trooper Jefferson. See Part VII(C), above. We agree that the 

district court improperly discounted evidence supporting the negligence 

claim. This discounting of evidence constituted error because the district 

court had to view the evidence favorably to Mr. Rife. See Part IV, above. 

B. The Reasonableness of Trooper Jefferson’s Failure to 

Obtain Medical Attention 

The Oklahoma Department of Public Safety argues that Trooper 

Jefferson acted reasonably, relying on five of the alleged facts that Trooper 

Jefferson uses to defend against the deliberate indifference claim: 

1. Mr. Rife had no visible injuries. 

2. Mr. Rife did not complain of any injuries. 

3. All of Mr. Rife’s symptoms were consistent with intoxication 

from pain medication. 

4. Mr. Rife denied being in an accident. 

5. Trooper Jefferson ruled out a head injury. 
24 

This argument fails. The first two alleged facts are inconsistent with 

some of the evidence. For example, the first is inaccurate because Mr. Rife 

had dried blood on his nose. The second is inaccurate because Mr. Rife 

complained of chest pain and heart pain and said that he felt sick. 

The third alleged fact is questionable and immaterial. It is 

questionable because there is no summary judgment evidence stating that 

some of Mr. Rife’s symptoms (such as pain in one’s chest or heart) are 

consistent with intoxication from pain medication. This alleged fact is also 

immaterial: Regardless of whether Mr. Rife had been intoxicated, a 

factfinder could reasonably find that Trooper Jefferson had recognized a 

substantial risk to Mr. Rife’s health and consciously disregarded that risk. 

The fourth and fifth alleged facts are also immaterial. Though Mr. 

Rife denied being in an accident and Trooper Jefferson ruled out a head 

injury, the trooper repeatedly said that he knew an accident had taken 

place. 

In our view, the five alleged facts do not preclude a finding of 

negligence. 

IX. The Deliberate Indifference Claim Against Mr. Willis and Mr. 

Dale 

 

Mr. Rife alleges that Mr. Willis and Mr. Dale are liable under § 1983 

for deliberate indifference to serious medical needs. Mr. Willis and Mr. 
25 

Dale counter that they did not violate a constitutional right and that the 

underlying right was not clearly established. 

The district court granted summary judgment to Mr. Willis and Mr. 

Dale based on qualified immunity, reasoning that there was no evidence of 

a constitutional violation. We disagree, concluding that the district court 

erred by (1) treating Mr. Willis and Mr. Dale like medical professionals 

and (2) misunderstanding a key piece of evidence—the declaration by Mr. 

Rife’s cellmate. 

A. The Use of Standards Applicable to Medical Professionals 

The district court analyzed whether Mr. Willis and Mr. Dale were 

deliberately indifferent under the standards for medical professionals. 

These standards do not apply because Mr. Willis and Mr. Dale were not 

medical professionals. See Part VII(B), above. 

B. Mr. Rife’s Interaction with Mr. Willis and Mr. Dale 

 

When Mr. Rife and Trooper Jefferson arrived at the jail, Trooper 

Jefferson told Mr. Willis and Mr. Dale that Mr. Rife had been arrested for 

public intoxication. But no one mentioned the motorcycle accident or said 

that Mr. Rife might have been injured. 

Mr. Willis and Mr. Dale booked Mr. Rife into the jail. During the 

book-in, Mr. Rife was dazed, slurring his words and showing confusion 

about where he was or what he was doing. 
26 

As part of the book-in, Mr. Dale completed a medical questionnaire 

for Mr. Rife. According to this questionnaire, Mr. Rife did not show signs 

of trauma or illness that required immediate medical attention. Mr. Willis 

and Mr. Dale suspected that Mr. Rife was drunk, though Mr. Willis was not 

sure what substance Mr. Rife was on. Mr. Willis and Mr. Dale could not 

smell alcohol on Mr. Rife’s breath. 

Suspecting intoxication, Mr. Willis decided to place Mr. Rife on 

medical observation, fearing that he might throw up in his sleep. This 

placement required jail personnel to check on Mr. Rife every fifteen 

minutes. 

Mr. Willis and Mr. Dale moved Mr. Rife to the holding cell. Mr. 

Rife’s entry into the cell was observed by his new cellmate, Mr. Timothy 

May, who submitted a declaration recounting what he saw and heard: Mr. 

Rife moaned loudly, showed obvious pain, and repeatedly complained of 

stomach pain. 

C. Mr. Rife’s Release and Collapse

The following morning, Mr. Rife was released. Upon release, Mr. 

Rife walked about 100 feet to a bail bondsman’s office. During the walk, 

Mr. Rife stated that he did not feel well. 

When Mr. Rife reached the office, he sat in a chair. When he later 

tried to stand up, he passed out. 
27 

D. The District Court’s Consideration of the Cellmate’s 

Declaration 

Mr. Rife contends that the district court improperly discounted the 

declaration of Mr. May. In Mr. Rife’s view, the declaration supports the 

existence of serious pain and the obvious need for medical attention upon 

entry into the holding cell. 

The district court stated that Mr. May’s declaration is unclear about 

whether Mr. Rife had been in obvious pain when entering the holding cell. 

We disagree with this characterization, for Mr. May’s declaration states: “I 

woke up when Mr. Rife entered the holding cell because he was making 

loud moaning and groaning noises. He was obviously in pain. He kept 

saying that his stomach hurt and continued to make loud moaning and 

groaning noises.” Appellant’s App’x at 1650. This account unambiguously 

indicates that Mr. Rife was obviously in pain when he entered the holding 

cell. In our view, the district court misunderstood Mr. May’s declaration.7

E. Conscious Disregard of a Substantial Risk to Mr. Rife’s 

Health 

Mr. Willis and Mr. Dale argue that they did not consciously disregard 

a substantial risk to Mr. Rife’s health or safety. But a reasonable factfinder 

could reach a different conclusion. 

 

7

 If the declaration had been ambiguous, the district court should have 

resolved the ambiguity in Mr. Rife’s favor. See Part IV, above. 
28 

According to Mr. May, Mr. Rife was repeatedly moaning in pain and 

complaining of stomach pain when entering the holding cell. This evidence 

could lead a reasonable factfinder to infer (1) an obvious need for medical 

attention and (2) Mr. Willis and Mr. Dale’s awareness of a substantial risk 

to Mr. Rife’s health. 8

Mr. Willis and Mr. Dale did not obtain medical attention for Mr. 

Rife. Thus, the factfinder could reasonably infer that Mr. Willis and Mr. 

Dale had disregarded the obvious risk to Mr. Rife. 

According to Mr. Willis and Mr. Dale, Mr. Rife never complained of 

pain. But Mr. May states under oath that Mr. Rife entered the holding cell 

while making loud moaning and groaning noises, “obviously” suffering 

from pain, and repeatedly complaining of stomach pain. Id. Mr. Willis and 

Mr. Dale were present at the time. 

Viewing Mr. May’s sworn account favorably to Mr. Rife, as we 

must,9

 we consider the inferences that could reasonably be drawn. Mr. May 

stated that Mr. Rife was moaning loudly and kept complaining of stomach 

pain. Because Mr. Willis and Mr. Dale were present, the factfinder would 

 

8

 Mr. Willis and Mr. Dale argue that at most, Mr. May’s declaration 

indicates awareness of a stomach ache. But a factfinder could reasonably 

infer that Mr. Willis and Mr. Dale knew that Mr. Rife was in considerable 

pain, for Mr. May stated that Mr. Rife had moaned and had repeatedly 

complained of stomach pain. 

9

 See Part IV, above.
29 

reasonably infer that they heard the moaning and pain complaints. And if 

the need for medical attention appeared obvious to Mr. May, the factfinder 

could reasonably infer that the need for medical attention would also have 

been obvious to Mr. Willis and Mr. Dale. See Farmer v. Brennan, 511 U.S. 

842 (1994) (“[A] factfinder may conclude that a prison official knew of a 

substantial risk from the very fact that the risk was obvious.”) After all, 

Mr. Willis and Mr. Dale had already decided to require “medical 

observation” of Mr. Rife even before he entered the holding cell. See 

Blackmore v. Kalamazoo County, 390 F.3d 890, 899 (6th Cir. 2004) 

(stating that the jailers’ placement of an inmate in an observation cell 

supported an inference of deliberate indifference to the inmate’s 

complaints of severe stomach pain). 

Mr. Willis and Mr. Dale argue that at book-in, they did not see any 

injuries to Mr. Rife. But a factfinder could reasonably downplay the lack 

of visible injuries in light of Mr. Rife’s disorientation and moaning of pain 

when entering the holding cell. 

Mr. Willis and Mr. Dale also note that (1) Mr. Rife did not ask for 

medical attention and (2) neither Mr. Rife nor Trooper Jefferson mentioned 

a motorcycle accident. Nevertheless, other evidence would allow a 

reasonable factfinder to infer that Mr. Willis and Mr. Dale had been aware 

of a substantial risk to Mr. Rife’s health. 
30 

Mr. Rife did not seek medical attention immediately after his release. 

Pointing to this fact, Mr. Willis and Mr. Dale contend that it would be 

unreasonable to expect them to recognize the need for medical attention 

when Mr. Rife did not recognize that need. For two reasons, we conclude 

that a factfinder could justifiably infer that Mr. Willis and Mr. Dale had 

recognized the need for medical attention even if Mr. Rife had not. First, 

Mr. Willis and Mr. Dale state that Mr. Rife was confused and apparently 

intoxicated when arriving at the jail. Second, even after Mr. Rife was 

released, he remained disoriented from a traumatic brain injury. Thus, a 

factfinder could reasonably infer that Mr. Willis and Mr. Dale had 

recognized the need for medical attention regardless of what Mr. Rife had 

thought.10

F. Whether the Underlying Right Was Clearly Established 

In district court, Mr. Rife argued that the underlying right was 

clearly established for purposes of qualified immunity. The district court 

did not reach this issue. 

As noted above, “[t]he better practice on issues raised [below] but 

not ruled on by the district court is to leave the matter to the district court 

in the first instance.” Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. 

 

10 Mr. Rife contends that he was mistreated throughout the night. We 

need not address whether this contention could affect the claims against 

Mr. Willis or Mr. Dale. 
31 

Co., 661 F.3d 1272, 1290 (10th Cir. 2011) (quoting Apartment Inv. & 

Mgmt. Co. v. Nutmeg Ins. Co., 593 F.3d 1188, 1198 (10th Cir. 2010)); see 

also Part VII(E), above. As a result, we remand to the district court to 

determine in the first instance whether the underlying right was clearly 

established. 

X. The Deliberate Indifference Claim Against the Jail Trust 

Mr. Rife brings a § 1983 municipal liability claim against the jail 

trust. According to Mr. Rife, the jail trust’s policies and customs led the 

jail officials to act with deliberate indifference. The jail trust moved for 

summary judgment, making two arguments: 

1. There was no underlying violation of Mr. Rife’s constitutional 

rights that could support a § 1983 claim against the jail trust. 

2. Even if a jail employee had committed a constitutional 

violation, it had not resulted from the jail trust’s policy or 

custom.11 

The district court granted the jail trust’s motion for summary judgment, 

reasoning that there had not been an underlying constitutional violation. 

 

11 Municipal liability under § 1983 cannot be based on respondeat 

superior or vicarious liability. Monell v. New York City Dep’t of Soc. 

Servs., 436 U.S. 658, 694 (1978). Rather, a plaintiff must establish that 

(1) a policy or custom of the municipality exists and (2) the policy or 

custom caused the constitutional violation. See Kramer v. Wasatch Cty. 

Sheriff’s Office, 743 F.3d 726, 758 (10th Cir. 2014) (“As to institutional 

liability under § 1983, the County can only be liable for the actions of 

Sergeant Benson if it had a custom, practice, or policy that encouraged or 

condoned the unconstitutional behavior[] . . . .”). 
32 

We have already held that a reasonable factfinder could infer facts 

supporting a constitutional violation by Mr. Willis and Mr. Dale, who were 

employees of the jail trust acting in the course of employment. Thus, Mr. 

Rife has defeated the sole basis for the district court’s award of summary 

judgment to the jail trust. 

Nonetheless, the jail trust urges affirmance based on an alternate 

ground: the absence of substantial harm from the delay in medical 

attention. See Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). 

To support this argument, the jail trust points to medical testimony that the 

delay did not affect Mr. Rife’s medical care. But Mr. Rife rebutted that 

testimony with evidence of substantial pain while he waited for medical 

attention. Id. Thus, we cannot affirm based on the jail trust’s argument.

But the jail trust raises two other alternate grounds for affirmance: 

(1) the absence of causation and (2) the absence of a clearly established 

constitutional right. The district court did not rule on these arguments, and 

we remand for the district court to address these issues in the first 

instance.12 Greystone Constr., Inc. v. Nat’l Fire & Marine Ins. Co., 661 

 

12 The district court concluded that Mr. Rife’s interactions with two 

unidentified jail officials could not create liability on the part of the jail 

trust. The district court seemed to hold that the jail trust could incur 

liability only if the jail officials could be identified. We need not 

determine whether this holding was correct because constitutional 

violations by Mr. Willis and Mr. Dale could support liability of the jail 
33 

F.3d 1272, 1290 (10th Cir. 2011); see Part VII(E), above; see also Kramer 

v. Wasatch Cty. Sheriff’s Office, 743 F.3d 726, 758 (10th Cir. 2014) 

(stating that the county could incur liability under § 1983 for a sergeant’s 

actions only if the county “had a custom, practice, or policy that 

encouraged or condoned the unconstitutional behavior”). 

XI. The District Court’s Denial of Sanctions 

Mr. Rife argues that there was a videotape of him in the booking area 

of the jail and that the jail trust intentionally destroyed the videotape.13

According to Mr. Rife, destruction of the videotape constitutes unlawful 

spoliation of evidence, justifying sanctions in the form of an adverse 

inference against the jail trust, Mr. Willis, and Mr. Dale. 

In district court, Mr. Rife did not ask for an adverse inference. Thus, 

Mr. Rife has forfeited this argument. See Anderson v. Spirit Aerosystems 

Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016). On appeal, we may 

consider forfeited arguments under the plain-error standard. Id. at 1239. 

But Mr. Rife has not asked us to apply this standard. Thus, we cannot 

reverse based on this argument. See Richison v. Ernest Grp., Inc., 634 F.3d 

 

trust. Thus, we need not decide whether the jail trust could incur liability 

based on the misconduct of unidentified jail officials. 

13 The jail trust, Mr. Willis, and Mr. Dale contend that the videotape 

did not show the booking process. Instead, they state that the videotape 

“showed Rife walk[ing] into the booking area and call[ing] the [bail] 

bondsman the next morning.” Response Br. of the Jail Trust, Mr. Willis, 

and Mr. Dale at 37. 
34 

1123, 1130-31 (10th Cir. 2011) (stating that a failure to argue plain error 

on appeal “marks the end of the road for an argument for reversal” newly 

presented on appeal). 

 Even if Mr. Rife had not forfeited this argument, we could not grant 

the sanction he is seeking. For an adverse inference sanction, the aggrieved 

party must show bad faith. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 

1136, 1149 (10th Cir. 2009) (“[I]f the aggrieved party seeks an adverse 

inference to remedy the spoliation, it must also prove bad faith.”); 

Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) (“[An] 

adverse inference must be predicated on the bad faith of the party 

destroying the records.”). But both here and in district court, Mr. Rife 

failed to identify any evidence of bad faith. 

 For these reasons, we uphold the district court’s denial of sanctions. 

XII. Disposition 

We affirm in part, reverse in part, and remand for further 

proceedings consistent with this opinion.