UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DONALD JAY GOSS; LINDA SUE 

GOSS, 

 Plaintiffs - Appellants, 

v. 

BOARD OF COUNTY 

COMMISSIONERS OF CREEK 

COUNTY, State of Oklahoma; CREEK 

COUNTY SHERIFF JOHN DAVIS, in his 

official capacity, 

 Defendants - Appellees. 

Nos. 14-5128, 15-5004 

(D.C. No. 4:13-CV-00374-CVE-TLW) 

(N.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, BACHARACH, and PHILLIPS, Circuit Judges. 

_________________________________ 

Donald and Linda Goss1

 appeal the district court’s grant of summary judgment 

against their 42 U.S.C. § 1983 claims arising from what they assert was an illegal 

search warrant resulting in their wrongful arrest and illegal confinement. They also 

 *

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

unanimously that oral argument would not materially 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 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

 For ease of understanding, this order refers to the Gosses by their first names 

throughout. 

FILED 

United States Court of Appeals

Tenth Circuit 

April 26, 2016

Elisabeth A. Shumaker 

Clerk of Court

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appeal the district court’s awarding costs to the defendants. Exercising jurisdiction 

under 28 U.S.C. § 1291, we affirm the district court. 

I. Background 

On March 31, 2012, Jesse Thompson, an informant in Tulsa County, 

Oklahoma, told Deputy Jesse Brewer, an investigator with the Tulsa County Metro 

Drug Task Force, that he had smoked marijuana the day before with a man named 

Larry2

 at a mobile home in Mannford, Oklahoma. Thompson told Deputy Brewer that 

Larry had a large amount of marijuana on a coffee table in the mobile home. 

Thompson said that he had bought marijuana from Larry about 40 times at a 

particular mobile home in the trailer park. Thompson rode along with Deputy Brewer 

and showed him the mobile home where he had bought the marijuana. The mobile 

home’s street address was 283 Navajo Place. Because the mobile home was in Creek 

County, and thus outside Deputy Brewer’s jurisdiction, Deputy Brewer called 

Lieutenant Les Ruhman of the Creek County Sheriff’s Office, eventually speaking to 

Deputy Scott Forrester. While on the telephone with and being directed by Deputy 

Brewer, Deputy Forrester drove past the mobile home to confirm its location and 

description. 

Unfortunately, the affidavit Deputy Forrester submitted to obtain a search 

warrant misstated the mobile home’s address as 238 Navajo Place (instead of 283 

 2

 Deputy Brewer initially gave Deputy Scott Forrester only Larry’s first name. 

Later, at the request of the judge who issued the search warrant, Deputy Forrester 

called Deputy Brewer for more information from the informant about Larry. Deputy 

Brewer then relayed that Larry’s last name was Tatro. 

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Navajo Place), but the affidavit also contained accurate information about the mobile 

home’s true location: 

The residence is a singlewide mobile home, comprised of light color 

siding. The front door of the residence face [sic] east, to access the first 

door you go through a covered screened in porch. 

Directions to the residence are from the intersection of Basin Road and 

Keystone loop go West to the “Y” intersection one mile. Turn South on 

Keystone loop to Creek Lane, continue South to Navajo Place, turn 

West. The residence is located as the fourth residence on the South side 

of the road. The residence number is marked on a box on the front of the 

residence. 

R. vol. 2 at 381. The affidavit declares that most of its contents came from Deputy 

Brewer’s interview with informant Thompson. 

On March 31, 2012, a state judge issued a search warrant for 283 Navajo 

Place. In the search warrant itself, Deputy Forrester provided the correct address as 

283 Navajo Place (rather than 238). In addition, he included within the search 

warrant an identical description of the mobile home and its location. The search 

warrant authorized the search for and seizure of the following items: 

marijuana, fruits, instrumentalities, monies, records indicating the sales 

of illegal drugs and proof of residency . . . located at, and . . . now being 

kept, possessed, and concealed by the above named defendant [Tatro], 

or by other persons in whose possession he has placed it for the purpose 

of concealment, at or upon or within a certain vehicle and/or house, 

building or premises, the curtilage thereof and the appurtenances 

thereunto belonging . . . . 

Id. at 383. 

 At about 9:00 p.m. that night, when officers arrived at the mobile home at 283 

Navajo Place, Linda answered the door, and the officers served her with the search 

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warrant. The caption on the search warrant read, “The State of Oklahoma, Plaintiff, 

vs. Larry Tatro[,] Defendant” (“Tatro” was hand-printed after striking “Unknown 

Last Name”). Id. Linda told the deputies that she did not know anyone named Larry 

Tatro. Donald, who had been on a fishing trip, arrived home during the execution of 

the search warrant and parked his truck (which had his boat attached) a couple of 

homes down the street from 283 Navajo Place. 

 Deputies found no one named Larry Tatro in the mobile home. Although the 

deputies deployed a drug dog, the dog did not alert to the presence of illegal 

substances. Even so, in executing the search, the law-enforcement officers found 

behind a living-room sofa a gallon plastic bag containing white residue and a 

powdery substance. Because Deputy Forrester thought the bag’s contents smelled 

like methamphetamine, he field tested a sample from the bag. According to Deputy 

Forrester, the powdery substance tested positive for methamphetamine. In addition to 

searching the mobile home, the officers also searched a travel trailer that was parked 

“three, four feet” away from the screened-in porch of the mobile home. Id. at 354.

They also searched the truck, boat, and boat trailer. They seized several items, 

including firearms found in the home and boat. After the positive field test, the 

deputies arrested the Gosses for possessing methamphetamine, maintaining a place 

where illegal drugs were kept, and possessing a firearm during the commission of a 

felony.

 From April 1, 2012, until late on April 3, 2012, the Gosses were detained in 

the Creek County Criminal Justice Center (the jail). The Gosses each raise claims 

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relating to the conditions of their confinement. Linda bases her claims on the jail’s 

providing her ill-fitting clothing—a 6XL size, the largest the jail said it had—whose 

top “[b]arely” fit and whose pants failed to cover her backside. R. vol. 1 at 198. 

During her confinement, she was housed in a pod that had one shower and one toilet. 

Although the jail staff did not restrict her use of the toilet, her use was somewhat 

constrained by the need to share the limited facility with the other inhabitants in her 

pod. Because Linda has diabetes, she is sometimes unable to regulate her urination. 

While waiting in line to use the bathroom, she urinated on herself several times. 

Linda wore the same set of clothing throughout her three-day stay at the jail, and she 

never asked for a new set.

 Donald bases his claims on being deprived of his prescribed medications to 

treat a number of medical ailments, including post-traumatic stress disorder (PTSD), 

pain, nerve damage, and depression. During his confinement, Donald repeatedly 

requested his medications, but the jail staff never provided them to him. Also during 

his jailing, another detainee assaulted Donald while he was in the shower. Donald 

never requested any medical attention for any injuries caused by the assault.

 On June 4, 2012, the Oklahoma State Bureau of Investigation (OSBI) ran a 

more precise drug test, which established that the bag’s contents did not contain 

methamphetamine. Because OSBI had set its testing at the most sensitive testing 

threshold level, it declined to retest the sample. Soon afterward, local authorities 

dropped the charges against the Gosses. Ultimately, law enforcement returned some 

personal property to the Gosses—their truck, boat, and trailer. But the Gosses claim 

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that law enforcement never returned certain personal property seized from inside the 

truck and boat, and that law enforcement had drilled holes in the boat, rendering it 

unusable. 

In the Gosses’ Second Amended Complaint, they asserted four claims under 

42 U.S.C. § 1983 against Sheriff John Davis in his official capacity and the Board of 

County Commissioners: (1) failure to train and supervise two named deputies, 

(2) unlawful search and seizure, (3) unlawful and degrading detention, and 

(4) malicious prosecution. In addition, they asserted seven state-law claims: 

(5) trespass, (6) assault, (7) assault and battery, (8) false arrest and imprisonment, 

(9) conversion or taking of personal property without compensation or due process, 

(10) property damage, and (11) negligent and intentional infliction of emotional 

distress. The district court granted summary judgment to the defendants on all federal 

claims and declined to exercise supplemental jurisdiction over the remaining state 

claims. In a separate order, the district court awarded costs to the defendants. The 

Gosses appeal the grant of summary judgment against their federal claims and the 

unfavorable costs award. 

II. Discussion 

A. Standard of Review for Federal Claims 

We review de novo the grant of summary judgment. Hinds v. Sprint/United 

Mgmt. Co., 523 F.3d 1187, 1195 (10th Cir. 2008). We view the evidence and all 

reasonable inferences from it in the light most favorable to the nonmoving party. 

Smothers v. Solvay Chems., Inc., 740 F.3d 530, 533 (10th Cir. 2014). Summary 

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judgment is appropriate “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). 

A § 1983 claim has two essential elements: (1) violation of a right “secured by 

the Constitution and laws of the United States” by (2) “a person acting under color of 

state law.” West v. Atkins, 487 U.S. 42, 48 (1988). A suit against persons in their 

official capacities functions as a suit against the municipal entity itself. See Monell v. 

Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978). For municipal actors to be acting 

under color of state law, they must have committed a constitutional violation while 

acting under an official policy or custom. Id. at 694. Thus, a municipal entity may be 

held liable only for an act it officially sanctioned or for the actions of an official with 

final policymaking authority. See City of St. Louis v. Praprotnik, 485 U.S. 112, 122–

23 (1988). An official policy can be shown through an official decision or statement 

or through “the existence of a widespread practice that, although not authorized by 

written law or express municipal policy, is so permanent and well settled as to 

constitute a custom or usage with the force of law.” Id. at 127 (quotation marks 

omitted). 

B. Warrant and Search 

The Gosses argue that the search warrant was defective because (1) Larry 

Tatro was not found in their home, (2) Deputy Forrester spoke to Deputy Brewer 

instead of speaking directly to informant Thompson, and (3) Deputy Forrester did not 

verify which of the two addresses was correct—283 Navajo Place as correctly stated 

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in the search warrant or 238 Navajo Place as incorrectly stated in the search-warrant 

affidavit. They also assert that the district court incorrectly drew factual inferences in 

the defendants’ favor. But what the Gosses classify as factual inferences that should 

have been drawn in their favor are in reality speculative assumptions that the district 

court was not required to credit.

Addressing the first argument, we conclude that Larry Tatro’s absence during 

the search did not affect the legality of the search warrant. The search warrant 

permitted the officers to search for “marijuana, fruits, instrumentalities, monies, 

records indicating the sales of illegal drugs and proof of residency . . . located at, 

and . . . now being kept, possessed, and concealed by the above named defendant 

[Tatro], or by other persons in whose possession he has placed it for the purpose of 

concealment . . . .” R. vol. 2 at 383 (emphasis added). 

Addressing the second argument, we conclude that Deputy Forrester was not 

obliged to speak to informant Thompson. Instead, he could permissibly rely on and 

report in his search-warrant affidavit Deputy Brewer’s account of what Deputy 

Brewer had learned from Thompson. Deputy Brewer had developed probable cause 

to search the Gosses’ residence. But because the mobile home was outside of his 

jurisdiction, he communicated the information to Deputy Forrester, who acted. We 

permit information to be imputed between police officers in the context of 

warrantless searches. See, e.g., United States v. Chavez, 534 F.3d 1338, 1347–48 

(10th Cir. 2008) (permitting a warrantless search under the automobile exception 

based on vertical collective knowledge); see also United States v. Lyons, 687 F.3d 

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754, 766 (6th Cir. 2012) (recognizing “the practical reality that effective law 

enforcement cannot be conducted unless police officers can act on directions and 

information transmitted by one officer to another” (quotation marks omitted)). 

Search-warrant affidavits often set forth information beyond that personally known 

by the affiant. Here, the affidavit set forth all bases of probable cause and the source 

of each basis. 

The Gosses argue that the department violated their constitutional rights by not 

having a policy in place to verify tips like informant Thompson’s. But certainly in 

instances in which the Sheriff’s deputies obtain warrants, the warrant serves as a 

sufficient safeguard against unconstitutional actions taken based on informants’ tips. 

Addressing the third argument, we conclude that the affidavit’s incorrect 

reference to 238 Navajo Place—rather than the search warrant’s correct reference to 

283 Navajo Place—does not render the search warrant invalid. “A technically wrong 

address does not invalidate a warrant if it otherwise describes the premises with 

sufficient particularity so that the police can ascertain and identify the place to be 

searched.” United States v. Lora-Solano, 330 F.3d 1288, 1293 (10th Cir. 2003). The 

identical descriptions of how to get to the mobile home and the description of the 

mobile home itself provided in the search warrant and the affidavit meet this 

standard. 

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The district court correctly found, and defendants do not argue otherwise, that 

the seizure of the truck, boat, and their contents violated the Fourth Amendment.3

 But 

to establish a § 1983 violation on their official-capacity claims, the Gosses must also 

show that some government policy or custom inflicted the injury such that the 

government as an entity is responsible. Monell, 436 U.S. at 694. In an attempt to do 

so, the Gosses assert that “[b]ecause the District Court incorrectly weighed the 

evidence, the District Court never decided whether the seizure was due to poor 

training or to the lack of a policy, practice, or custom of the [department] which 

would have protected the Gosses.” Appellant’s Opening Br. at 30. Even if that were 

true, we see no evidence in the record supporting a claim that the defendants acted 

under a policy, practice, or custom that led to the seizure. Thus, this claim must fail. 

C. Prosecution and Handling of Evidence 

In the district court, the Gosses raised a constitutional-violation claim under 

Brady v. Maryland, 373 U.S. 83 (1963), based on the defendants’ alleged failure to 

produce exculpatory evidence. Because Brady protects a criminal defendant’s right to 

a fair trial, and the Gosses never went to trial, the Gosses cannot proceed with a 

Brady claim here. Becker v. Kroll, 494 F.3d 904, 924 (10th Cir. 2007). The Gosses 

acknowledge that this is “not actionable as a technical Brady violation.” Appellant’s 

Opening Br. at 36. 

 3

 The Gosses have not appealed the district court’s ruling on the search of their 

travel trailer. 

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The Gosses also raise a malicious-prosecution claim based on their allegation 

that Deputy Forrester falsified the field-test results to test positive for 

methamphetamine. Malicious prosecution is a cognizable claim under § 1983 because 

it implicates the Gosses’ Fourth Amendment right to be free from unreasonable 

seizures. Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996). 

Under our cases, a § 1983 malicious prosecution claim includes the 

following elements: (1) the defendant caused the plaintiff’s continued 

confinement or prosecution; (2) the original action terminated in favor 

of the plaintiff; (3) no probable cause supported the original arrest, 

continued confinement, or prosecution; (4) the defendant acted with 

malice; and (5) the plaintiff sustained damages. 

Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008) (citing Novitsky v. City of 

Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007)). 

In their motion for summary judgment, the Gosses argued four grounds in 

support of their malicious-prosecution claim: (1) Deputy Forrester did not disclose to 

the judge issuing the search warrant that the numbers given for the mobile home’s 

street address differed (having transposed two numbers) in the search warrant and its 

accompanying affidavit; (2) the search warrant did not mention the Gosses; (3) the 

department did not disclose exculpatory OSBI test results; and (4) Deputy Forrester 

did not disclose law enforcement’s attempt to obtain retesting of the suspected 

methamphetamine. On appeal, the Gosses argue that a genuine issue of material fact 

exists for their malicious-prosecution claim, namely, that the different results in the 

field test and the OSBI laboratory test provide a sufficient inference that Deputy 

Forrester falsified the test or planted the bag. Because the Gosses failed to argue this 

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in the district court, they cannot now raise it on appeal. See McKenzie v. U.S. 

Citizenship & Immigration Servs., 761 F.3d 1149, 1154 (10th Cir. 2014) (“Ordinarily 

we do not entertain arguments that are not raised before the district court . . . .” 

(citing Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 

1167 (10th Cir. 2005))). 

Even if the Gosses had preserved the claim, it would still fail. The Gosses 

claim that the district court “weighed the evidence in favor of the Defendants and has 

rejected the evidence and reasonable inferences” that Deputy Forrester falsified the 

field test or planted the bag. Appellant’s Opening Br. at 37. That claim would fail on 

the fourth element, malice. The inferences the Gosses ask us to draw to find malice 

are not reasonable. According to the Gosses, the contradictory drug-test results show 

that Deputy Forrester acted with malice. We disagree for two reasons. First, it would 

make little sense for law-enforcement officers to plant a bag not containing illegal 

drugs. Second, because field tests need to be verified by more formal and accurate 

laboratory tests, it is hardly a reasonable inference that anytime the field test shows a 

false positive result, an officer must have planted the substance later tested. 

D. Linda’s Conditions of Confinement 

The Gosses next challenge Linda’s conditions of confinement because the jail 

provided her jail clothing that was too small and never provided her a second set of 

clothing after her medical condition caused her to urinate on herself several times 

during her three-day confinement. The rights of pretrial detainees are protected by 

the Fourteenth Amendment; for a § 1983 claim, the protections given to pretrial 

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detainees are the same as those given to prisoners under the Eighth Amendment. 

Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). To show a 

constitutional violation, the Gosses must show (1) that the deprivation is objectively 

“sufficiently serious” in that it deprives the inmate of “the minimal civilized measure 

of life’s necessities,” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v. 

Chapman, 452 U.S. 337, 347 (1981)); and (2) that the prison official acted with 

“deliberate indifference,” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate 

indifference requires that the official know of and disregard a substantial risk of 

serious harm. Farmer, 511 U.S. at 837. In other words, the official must know of 

facts that would allow the inference and must actually infer that there is that risk. Id.

For a condition in a jail to violate the Eighth Amendment, the condition must result 

in “unquestioned and serious deprivation of basic human needs” or “deprive inmates 

of the minimal civilized measure of life’s necessities.” Rhodes, 452 U.S. at 347. 

We do not need to determine whether the conditions were sufficiently serious 

to trigger liability, because the Gosses fail to show deliberate indifference. We see 

nothing in the record suggesting that Linda ever told jail officials that she had 

urinated on herself. Further, we note that Linda testified in her deposition that the jail 

staff did not restrict her use of the toilet. Nor has Linda offered any evidence that jail 

officials even knew of her medical issues. The Gosses claim that Linda did not ask 

for a new uniform, because she had been told that there was only one available in her 

size so reporting the problem would not have solved anything. While that may be 

true, it is irrelevant. Although Linda might have been able to show a sufficiently 

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serious violation if she had told the prison officials of her problem and not received a 

clean uniform, she does not even allege that she told them. 

The Gosses claim that Linda’s uniform “was too small to modestly cover her 

body.” Appellant’s Opening Br. at 30. Ill-fitting clothing alone is not sufficiently 

serious to rise to the level of a constitutional violation. For example, in Young v. 

Berks County Prison, 940 F. Supp. 121 (E.D. Pa. 1996), Young was incarcerated 

twice, the first time for about two-and-a-half months and the second time for about 

two years. Young, 940 F. Supp. at 122. Young required size 4XL clothing. Id. While 

the prison’s policy was to issue two sets of clothing to each inmate, it did not have 

two sets in his size. Id. For most of his incarceration, Young had only one set of 4XL 

pants, and when he had a second pair they were a size too small. Id. The one pair of 

4XL pants became dirty and ragged over the course of his incarceration, leading to its 

“eventually tear[ing] in such a way as to cause him some embarrassment.” Id. at 122–

23. Due to his laundry difficulties, Young often had to eat alone in his cell and 

occasionally had to miss therapeutic and rehabilitative activities. Id. at 123. 

Additionally, Young was the subject of ridicule by other inmates because of these 

difficulties. Id. Even under those circumstances—unquestionably worse than Linda’s 

experience with too-small clothing—the district court found no violation. Instead, the 

court noted that “Young’s injury [from clothing that was too small] was an indignity 

incidental to prison life that does not rise to the level of a constitutional violation.” 

Id. at 124. 

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Although we certainly sympathize, and wonder how the jail could not do 

better, we simply cannot conclude that Linda’s clothing issues present a 

constitutional violation. The district court properly granted summary judgment on the 

claims relating to Linda’s conditions of confinement. 

E. Donald’s Conditions of Confinement 

The Gosses also challenge Donald’s conditions of confinement, alleging that 

jail officials deprived him of medical care and failed to protect him from other 

inmates. “Prison officials violate the Eighth Amendment’s prohibition against cruel 

and unusual punishment when they act deliberately and indifferently to serious 

medical needs of prisoners in their custody.” Hunt v. Uphoff, 199 F.3d 1220, 1224 

(10th Cir. 1999). “Deliberate indifference has both an objective and subjective 

component.” Id. To meet the objective component, “[t]he medical need must be 

sufficiently serious.” Id. A medical need is sufficiently serious “if the condition ‘has 

been diagnosed by a physician as mandating treatment or is so obvious that even a 

lay person would easily recognize the necessity for a doctor’s attention.’” Al-Turki v. 

Robinson, 762 F.3d 1188, 1192–93 (10th Cir. 2014) (quoting Oxendine v. Kaplan,

241 F.3d 1272, 1276 (10th Cir. 2001)). “Where the necessity for treatment would not 

be obvious to a lay person, the medical judgment of the physician, even if grossly 

negligent, is not subject to second-guessing in the guise of an Eighth Amendment 

claim.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (citing Green v. Branson, 

108 F.3d 1296, 1303 (10th Cir. 1997)). To satisfy the subjective component, the 

plaintiff must show that the defendant knew that the plaintiff “faced a substantial risk 

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of harm and disregarded that risk, ‘by failing to take reasonable measures to abate 

it.’” Hunt, 199 F.3d at 1224 (quoting Farmer, 511 U.S. at 847). The substantial-harm 

requirement “may be satisfied by lifelong handicap, permanent loss, or considerable 

pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001). 

Although the district court concluded that the claim failed for lack of 

substantial harm, we cannot agree on that point. Donald claims that he asked for his 

medications and he never received them. He needed his medications to treat PTSD, 

pain, nerve damage, and depression. Donald testified that he regularly took all but 

one of his prescribed medications, and that he took that one as needed. Donald 

concedes that his doctor told him that he had suffered no permanent damage, but he 

also recalls that his doctor later told him that he “had to go through more pain than 

[he] should have” by not taking his medications. R. vol. 4 at 888. Donald’s 

conditions were “diagnosed by a physician as mandating treatment,” which was then 

withheld. Al-Turki, 762 F.3d at 1192 (quotation marks omitted). That is enough to 

raise an issue of material fact at the summary-judgment stage. 

But Donald’s claim fails because he produced no evidence of an official 

custom or policy that led to the denial of medical care. The Gosses have not shown 

that the sheriff in his official capacity is responsible for any violation, because they 

have failed to provide evidence that the sheriff, as an official with final policymaking 

authority, promulgated an official policy that harmed Donald. City of St. Louis, 485 

U.S. at 122–23. Nor have the Gosses shown that the sheriff allowed “the existence of 

a widespread practice that, although not authorized by written law or express 

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municipal policy, is so permanent and well settled as to constitute a custom or usage 

with the force of law.” Id. at 127 (quotation marks omitted). Thus, summary 

judgment on this claim was proper. 

We must also affirm the district court’s dismissal of Donald’s inmate-safety 

claim. We acknowledge that “prison officials have a duty . . . to protect prisoners 

from violence at the hands of other prisoners.” Farmer, 511 U.S. at 833 (alteration in 

original) (quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir. 

1998)). To show a violation, a plaintiff must show both an objective and subjective 

element: that the plaintiff “is incarcerated under conditions posing a substantial risk 

of serious harm” and that the jail official was deliberately indifferent to the plaintiff’s 

safety. Benefield v. McDowall, 241 F.3d 1267, 1271 (10th Cir. 2001) (quoting 

Farmer, 511 U.S. at 834). To be deliberately indifferent, the defendant “must both be 

aware of facts from which the inference could be drawn that a substantial risk of 

serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. 

Here, we see no evidence that Donald faced an objectively serious risk of harm 

during his detention, for example, any direct threats from other inmates or a pattern 

of harmful altercations between inmates. Nor do we see any evidence of subjective 

knowledge of a potential attack against Donald that might support a claim against 

prison officials for deliberate indifference to his safety. 

F. Costs 

The Gosses also challenge the imposition of costs against them. Under Fed. R. 

Civ. P. 54(d)(1), a court should ordinarily award costs to the prevailing party. 

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Rodriguez v. Whiting Farms, Inc., 360 F.3d 1180, 1190 (10th Cir. 2004) (citing 

Cantrell v. Int’l Bhd. of Elec. Workers, 69 F.3d 456, 458–59 (10th Cir. 1995)). We 

review the award of costs for an abuse of discretion. In re Williams Sec. Litig.-WCG 

Subclass, 558 F.3d 1144, 1148 (10th Cir. 2009). 

On appeal, a party may not challenge an award of costs unless the party sought 

review in the district court of the clerk of court’s award of costs. See Bloomer v. 

United Parcel Serv., Inc., 337 F.3d 1220, 1220–21 (10th Cir. 2003) (per curiam). 

Here, in the district court, the Gosses’ argument in full reads as follows: “COME 

NOW the Plaintiffs, pursuant to F.R.C.P. 54(d)(1), LCvR54.1 and the District 

Court’s Guidelines for Taxation of Costs, and hereby objects to the Court Clerk’s 

ruling on costs and moves the District Court to review the same.” R. vol. 7 at 1460. 

Looking solely at what the Gosses filed with the district court in seeking review of 

the clerk’s costs award, the district court declared that because “Plaintiffs’ onesentence motion contains no argument to support overturning the Court Clerk’s 

order,” the Gosses had “failed to overcome the presumption in favor of awarding 

costs to the prevailing party.” Id. at 1465. 

The Gosses argue that the district court overlooked their argument made in 

response to the defendants’ bill of costs. The Gosses filed that response while the 

costs issue was still before the Clerk of Court. The response raised two broad issues: 

first, that costs would cause a great economic hardship on them, and, second, that 

some of the imposed costs should not be awarded. Raising the issue before the Clerk 

of Court does not qualify as raising it before the district court. To find that approach 

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sufficient would run contrary to the logic of Bloomer, which required that the district 

court review the clerk’s award before allowing appellate review. Bloomer, 337 F.3d 

at 1220–21. To now hold that presenting an argument to the clerk—but not to the 

district court itself—is sufficient to preserve an issue on appeal would be inapposite. 

Because the Gosses did not present any arguments on costs to the district court, the 

arguments they make here are waived. 

G. Board as a Necessary Party 

The Gosses sued both the sheriff in his official capacity and the Board of 

County Commissioners of Creek County. Under Oklahoma state law, a party sues a 

county by suing the board of county commissioners. Okla. Stat. tit. 19, § 4 (2015); 

Green Constr. Co. v. Okla. City, 50 P.2d 625, 627 (Okla. 1935). Here, the district 

court concluded that the Board was not a proper party to this case, because the 

Gosses did not identify any county policies, customs, or other bases on which to hold 

the Board responsible for the sheriff’s or deputies’ actions. On appeal, the Gosses 

assert that the Board is a necessary party because the suit against the sheriff in his 

official capacity is a suit against the municipal entity he represents, the sheriff’s 

department, which operates under the Board’s control. Because none of the Gosses’ 

claims have survived summary judgment, we do not now rule on whether the district 

court correctly held that the Board of County Commissioners is not a proper party. 

III. Conclusion 

For the reasons stated above, we affirm the district court. 

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Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

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