Olsen v. Layton Hills Mall

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 11 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

CARL KIPP OLSEN; CLAIR D. OLSEN;
DONNA R. OLSEN,

Plaintiffs - Appellants,

v.

LAYTON HILLS MALL; THE COPPER
No. 01-4130
RIVET; CASSI GREGG; I.P.C.
INTERNATIONAL SECURITY, a Utah
Corporation; LAYTON CITY, a Utah
municipal corporation; DAVIS COUNTY,
a body politic; BRADLEY J. KING, an
individual; STEVEN BROWN, an
individual,

Defendants - Appellees,

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 1:99-CV-45-K)

David W. Brown, West Valley City, Utah, for Plaintiffs-Appellants.

Robert R. Wallace, Plant, Wallace, Christensen & Kannell, Salt Lake City, Utah, for
Defendant-Appellee Davis County; Andrew W. Morse, Snow, Christensen & Martineau
(Richard A. Vazquez with him on the brief), Salt Lake City, Utah, for Defendants-
Appellees Layton City and Bradley J. King.
Before HARTZ, ALDISERT* and PORFILIO, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal by Carl Kipp Olsen from summary judgments in favor of Appellees

Officer Bradley J. King, Layton City and Davis County requires us to examine whether

the district court properly shielded a police officer and two municipalities from an

obsessive-compulsive disorder sufferer’s 42 U.S.C. § 1983 claims. More specifically, we

must determine whether the district court erred in: 1) granting summary judgment on the

basis of qualified immunity to Appellee Officer King on Appellant’s Fourth Amendment

unlawful arrest and excessive force claims; and 2) granting summary judgment on the

basis of qualified immunity to Officer King on Appellant’s Eighth Amendment claim for

deliberate indifference to a serious medical need — namely, a panic attack sparked by his

obsessive-compulsive disorder (“OCD”). Additionally, we must decide whether the

district court correctly granted summary judgment to Appellee Layton City based on the

absence of an underlying constitutional violation, and to Appellee Davis County based on

the absence of an unconstitutional policy regarding a failure to train on, or the deliberate

indifference, to Appellant’s OCD.

*
Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit,
sitting by designation.

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 The district court had jurisdiction of the underlying action pursuant to 28 U.S.C.

§§ 1331 and 1343. The appeal was timely under Rule 4, Federal Rules of Appellate

Procedure. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

I.

A.

Carl Kipp Olsen took his two teenage sons shopping at Layton Hills Mall on

December 7, 1997. At the Copper Rivet apparel store, Appellant tried to charge $114.46

worth of items with his Guitar City corporate Visa credit card. Because Copper Rivet’s

electronic card reader could not process the card, store clerk Cassie Gregg manually

entered the card’s data. After punching in the account number correctly, Gregg had

inadvertently entered the wrong expiration date. Although the Visa card was valid and

had not expired, the computer reader nonetheless declined it because of the clerk’s typing

error — the reason for rejection unbeknownst to either the Appellant or the clerk at the

time of the attempted transaction.

Appellant then tried to charge the items with a Discover Card credit card bearing

the name of his father Clair Olsen, who had previously authorized him to use the card.

Appellant was unaware that his mother Donna Olsen had asked for a new card to be

issued because of prior billing concerns. The clerk called Discover Card directly to

authorize the account, but Discover Card informed her that Appellant was using the card

fraudulently and that she should confiscate it. After Donna Olsen had complained about

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several unauthorized charges in 1996, Discover Card had in fact improperly listed the

account as “fraudulent” without notifying or obtaining her or Clair Olsen’s consent.

Instead of retaining the Discover card, the clerk returned it to Appellant, who advised her

that he would return with a personal check to pay for the purchases.

While Appellant was en route from the Layton Hills Mall to his home and back

again, the Copper Rivet clerk contacted mall security about Appellant’s attempted

fraudulent credit card use. Mall security asked the clerk to notify them if Appellant

returned to the store. About 30 minutes later, Appellant and his two sons indeed came

back to the Copper Rivet, and Appellant paid for the items with a personal check. The

store clerk nonetheless contacted mall security during the transaction. When Appellant

tried to leave the mall with his merchandise and a receipt, mall security guards stopped

him for allegedly using a fraudulent Discover card and held him without incident until the

police arrived.

Layton City Police Officer Bradley King responded to the call. Upon arriving on

the scene, Officer King spoke to mall security guard Cindy Tanner, who told him that

Appellant tried to use fraudulently the Discover card at the Copper Rivet. Officer King

asked that Appellant turn over the credit card. Protesting that he had done nothing

wrong, Appellant initially refused but ultimately complied. He also demanded to see

Officer King’s supervisor. Without conducting an investigation of his own, Officer King

placed Appellant under arrest based on the information that he had gathered. Appellant

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was charged with fraudulent use of a financial transaction card, possession of a stolen

card, and interference with an arresting officer. Notably, Officer King tacked on this last

charge immediately before he effectuated the arrest.

Officer King then attempted to handcuff Appellant, whose “muscles automatically

tensed up” at the physical confrontation. Supplemental Appendix at 2. Although Officer

King claims that he merely “maneuvered [Appellant] against a storefront window [to]

gain[] the necessary leverage to handcuff him,” App. at 216, Appellant contrarily

contends that Officer King used excessive force when he shoved Appellant “a good 10,

12 feet,” “slamm[ing him] up against the glass” of a store window. Id. at 173. Appellant

also alleges that Officer King then pulled his arm behind his back in an awkward position

in order to handcuff him, threatening to “take [him] to the ground” if he resisted. Id. at

172. Appellant claims that he never physically resisted during the exchange. Id. at 172-

173.

Having successfully handcuffed Appellant, Officer King publicly led him through

the mall to the Copper Rivet, where Officer King questioned Cassie Gregg about

Appellant’s use of the Discover card. At the store, Officer King also telephoned the

Discover Card office and spoke to Heidi Crocker, who told him that their records listed

the card as stolen. Appellant repeatedly asked Officer King to telephone his parents in

Bullhead City, Arizona, to verify that the card was not fraudulent. Officer King refused

to try to contact them, reasoning that he would be unable to determine whether the voices

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on the other end of the line were indeed Appellant’s parents. Officer King did not inquire

whether Appellant had paid for or received the Copper Rivet items.

Officer King brought Appellant to his squad car to take him to the Farmington City

(Davis County) Jail. Appellant, who suffers from a medically diagnosed condition of

obsessive-compulsive disorder (“OCD”), alleges that he had a panic attack en route to the

jail and informed Officer King, but that King neglected to address Appellant’s two pleas

for assistance. App. at 176. Officer King could not recall whether Appellant mentioned

anything about a panic attack. App. at 218.

Once at the Davis County facility, Appellant indicated on a medical screening

sheet and told prebooking officers that he had OCD and required medication to stave off

panic attacks. App. at 268. Prebooking officers erroneously noted on the sheet that he

suffered from “CDC.” Id. Davis County jail officers took Appellant’s medication from

him and insisted — per search procedure — that he remove his shoes and socks.

Appellant recoiled at the request, refusing because of a fear of contamination from the

dirty floor. Ultimately, Appellant acceded to the demand, but incurred another panic

attack in the process. Id. at 178, 280. The prebooking officers also forced Appellant to

be fingerprinted without heeding his concerns about cleanliness. Neither Layton City nor

Davis County provides any training for handling individuals diagnosed with OCD. Id. at

275, 361-364. Davis County booking procedures incorporate an intake screening

procedure for undefined mental illness or “psychiatric disorders,” Id. at 361-364, but

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allow “health trained correctional deputies” to use their discretion in dealing with sundry

“mental disorders.” Id. at 283.

While Appellant was in custody, his parents called the jail to advise the officers

about his OCD condition and the possibility of attacks. Learning that the officers had

ignored Appellant’s requests for aid and withheld medication from him, the Olsens called

Discover Card to resolve the matter. Discover Card informed the Olsens that the

company did not know of any fraudulent activity and that no holds had been placed on the

card. Officer King’s supervisor, Officer Steven Brown, learned the same information

when he finally called Discover Card himself. Appellant posted a $2,950 bond and bailed

out of jail immediately before the charges had been dropped.

B.

Alleging violations of their Fourth and Eighth Amendment rights, Appellant and

his parents filed suit under 42 U.S.C. § 1983 in the district court against Defendants

Layton Hills Mall; The Copper Rivet, Inc.; Novus Corp./Discover Card; Cassie Gregg;

I.P.C. International Security Corporation; Davis County; Layton City; and Layton City

police officers Bradley King and Steven Brown. All Defendants filed Motions for

Summary Judgment. Appellant and his parents settled with Novus Corp./Discover Card.

The district court granted the remaining Defendants’ Motions for Summary Judgment on

June 4, 2001. Appellant and his parents filed Motions for Reconsideration on June 14,

2001, and June 25, 2001 — both of which the district court denied on June 29, 2001.

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Meanwhile, Appellant and his parents filed a timely pro se Notice of Appeal on June 26,

2001. Appellant pursues the appeal without his parents, and he brings it only against

Officer King, Layton City and Davis County.

C.

Appellant contends that the district court erred in granting summary judgment to

Officer King based on qualified immunity because the record is replete with unresolved

issues of material fact pertaining to the immunity analysis. He also argues that the district

court improperly granted summary judgment to Layton City because Appellant may well

convince a jury that Officer King’s conduct was the predicate act underpinning a

constitutional claim against the municipality for a failure to properly train police officers.

Finally, Appellant contends that summary judgment in favor of Davis County was

improper because a jury must decide whether the absence of procedures relating to OCD

sufferers may amount to a deliberate indifference to a serious medical need.

II.

This court reviews the legal issues surrounding the grant of summary judgment

based on qualified immunity de novo, considering all evidence in the light most favorable

to the nonmoving parties under Rule 56(c), Federal Rules of Civil Procedure. DeSpain v.

Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). Summary judgment is ultimately appropriate

when there is “no genuine issue as to any material fact and . . . the moving party is

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entitled to judgment as a matter of law.” Oliver v. Woods, 209 F.3d 1179, 1184 (10th

Cir. 2000).

This court, however, “review[s] summary judgment orders deciding qualified

immunity questions differently from other summary judgment decisions” because of the

purposes behind qualified immunity. Holland v. Harrington, 268 F.3d 1179, 1185 (10th

Cir. 2001). When a § 1983 defendant raises the defense of qualified immunity on

summary judgment, the burden shifts to the plaintiff to show that 1) the official violated a

constitutional or statutory right; and 2) the constitutional or statutory right was clearly

established when the alleged violation occurred. Farmer v. Perrill, 288 F.3d 1254, 1259

(10th Cir. 2002). First, “[t]aken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer's conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001). If so, we must subsequently ask “whether the

right was clearly established.” Id. If the plaintiff does not satisfy either portion of the

two-pronged test, the Court must grant the defendant qualified immunity. Gross v. Pirtle,

245 F.3d 1151, 1156 (10th Cir. 2001). If the plaintiff indeed demonstrates that the

official violated a clearly established constitutional or statutory right, then the burden

shifts back to the defendant, who must prove that “no genuine issues of material fact”

exist and that the defendant “is entitled to judgment as a matter of law.” Id. In the end,

therefore, the defendant still bears the normal summary judgment burden of showing that

no material facts remain in dispute that would defeat the qualified immunity defense.

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Farmer, 288 F.3d at 1259. When the record shows an unresolved dispute of historical fact

relevant to this immunity analysis, a motion for summary judgment based on qualified

immunity should be “properly denied.” Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th

Cir. 1991) (applying the qualified immunity analysis in the context of a closely related

Bivens action, in which material facts relating to the violation of a constitutional right

were in dispute at the summary judgment stage).

III.

A.

A police officer violates an arrestee’s clearly established Fourth Amendment right

to be free of unreasonable seizure if the officer makes a warrantless arrest without

probable cause. Tenn. v. Garner, 471 U.S. 1, 7 (1985). In the context of a warrantless

arrest in a § 1983 action, this court must grant a police officer qualified immunity “if a

reasonable officer could have believed that probable cause existed to arrest the plaintiff.”

Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir. 1995). “Probable cause exists if facts and

circumstances within the arresting officer's knowledge and of which he or she has

reasonably trustworthy information are sufficient to lead a prudent person to believe that

the arrestee has committed or is committing an offense.” Id. (quoting Jones v. City &

County of Denver, 854 F.2d 1206, 1210 (10th Cir. 1988)). Although the court may

determine whether probable cause existed at the time of the arrest by taking into account

factors such as whether the officer reasonably interviewed witnesses readily available at

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the scene, whether he investigated basic evidence or whether he inquired if a crime had

been committed at all before invoking the power of warrantless arrest and detention, none

of these factors is dispositive or indeed necessary to the inquiry. The primary concern is

whether a reasonable officer would have believed that probable cause existed to arrest the

defendant based on the “information possessed by the [arresting] offic[er].” Id. (quoting

Anderson v. Creighton, 483 U.S.635, 643 (1987)). When there are unresolved disputes of

historical fact relevant to whether the officer had probable cause and to what information

he possessed — and thus to whether he may properly claim qualified immunity, a court

may not grant summary judgment based on qualified immunity because the officer would

not have shown that no genuine dispute exists as to material fact. Farmer, 288 F.3d at

1259.

A decade-old case makes plain that we will not grant a defendant official qualified

immunity if material facts are in dispute. In Salmon v. Schwarz, 948 F.2d 1131 (10th Cir.

1991), we confronted an assertion of qualified immunity by an FBI agent arising out of a

Bivens action. FBI Special Agent Arturo Gonzalez applied for a warrant for the arrest of

Margarito Salmon, an alleged narcotics trafficker, based on a set of intercepted phone

calls to a “Margarito” whose last name was unknown in a complex scenario involving

two different “Margaritos.” Id. at 1139. Because “the facts . . ., considered collectively,

present[ed] an incomplete picture of the circumstances relevant as to whether probable

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cause existed for Salmon’s arrest,” we denied the agent’s motion for summary judgment

on qualified immunity grounds. Id. at 1137.

Although “deny[ing] summary judgment any time a material issue of fact remains

on [a Fourth Amendment] claim . . . could undermine the goal of qualified immunity to

‘avoid excessive disruption of government and permit the resolution of many

insubstantial claims on summary judgment,’” Saucier, 533 U.S. at 202 (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)), the case before us is not one in which Appellant

asserts that the sun rises in the west and demands a jury trial to resolve the issue. It is

Officer King’s submission that he based his probable cause determination on information

obtained from a mall security guard and from his call to Discover Card before he

effectuated an arrest. Appellant tells a different story. He testifies that Officer King

arrested him as soon as he handcuffed him — that is, before he made any reasonable

investigation into whether Appellant had fraudulently used the card. Indeed, Officer King

concedes that he spoke to mall security guards and that he “decided to take [Appellant]

into custody so [he] could investigate [the allegations] further and get a hold of the credit

card.” App. at 214. Appellant asserts that Officer King did not even ask him if he had in

fact paid for the merchandise or had a receipt. Officer King says that he does not recall

even seeing the merchandise, much less asking about the end result. Appellant contends

that Officer King could have ended (or, more appropriately, begun) the inquiry with a call

to Appellant’s parents in Bullhead City; Officer King says that his conversations with the

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mall security guard and the Discover Card representative gave him all the information he

reasonably needed to arrest Appellant.

The bottom line is that the district court failed to take into account several disputed

factual issues in granting summary judgment on the basis of qualified immunity to Officer

King on Appellant’s two Fourth Amendment claims. The parties do not even agree on

when the arrest took place — before or after King spoke to the store clerk. The court

ignored significant factual differences that render it impossible to make an initial

determination as to whether Officer King violated Appellant’s constitutional right to be

free from unreasonable seizure. Because we believe that a jury must resolve disputed

facts, the court erred in granting judgment on qualified immunity grounds as to the

unlawful arrest claim.

B.

A police officer violates an arrestee’s clearly established Fourth Amendment right

to be free of excessive force during an arrest if the officer’s arresting actions were not

“‘objectively reasonable’ in light of the facts and circumstances confronting [him].”

Graham v. Connor, 490 U.S. 386, 397 (1989); Cruz v. City of Laramie, 239 F.3d 1183,

1188 (10th Cir. 2001). This court assesses the reasonableness of an officer’s conduct

“from the perspective of a reasonable officer on the scene,” acknowledging that the

officer may be “forced to make split-second judgments” in certain difficult circumstances.

Medina v. Cram, 252 F.3d 1124, 1131 (10th Cir. 2001) (quoting Graham, 490 U.S. at

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396-397). This reasonableness standard — which is “clearly established” for the

purposes of § 1983 actions, Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995) —

implores the court to consider factors including the alleged crime’s severity, the degree of

potential threat that the suspect poses to an officer’s safety and to others’ safety, and the

suspect’s efforts to resist or evade arrest. Medina, 252 F.3d at 1131. Because the

reasonableness inquiry overlaps with the qualified immunity analysis, “a qualified

immunity defense [is] of less value when raised in defense of an excessive force claim.”

Id. (citing Quezada v. County of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991). Whether

an officer acted reasonably in using deadly force is “heavily fact dependent.” Romero v.

Board of County Comm’rs, 60 F.3d 702, 705 n.5 (10th Cir. 1995) (quoting Wilson, 52

F.3d at 1553).

Consequently, this court will not approve summary judgment in excessive force

cases — based on qualified immunity or otherwise — if the moving party has not quieted

all disputed issues of material fact. Allen v. Muskogee, 119 F.3d 837, 840-842 (10th Cir.

1997). In Zuchel v. Spinharney, 890 F.2d 273 (10th Cir. 1989), we agreed that a district

court could not justifiably pin a grant of summary judgment on qualified immunity while

disputed material facts remained as to whether an officer behaved in an “objectively

reasonable” fashion in shooting and killing a man. Specifically, we affirmed the district

court’s denial of a police officer’s motion for summary judgment on the basis of qualified

immunity in a § 1983 action involving excessive deadly force. After concluding that the

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victim’s right to be free from excessive force was a clearly established right, like the

Fourth Amendment right to be free from unreasonable seizures, we held that summary

judgment on the basis of qualified immunity was improper because, viewing the facts in

the light most favorable to the non-moving party, “genuine issues of material fact

preclud[ed] a judicial determination of whether [the officer’s] conduct was objectively

reasonable.” Id. at 275. A qualified immunity defense will not succeed in inducing a

court to grant summary judgment when “the facts . . ., considered collectively, present an

incomplete picture of the [relevant] circumstances.” Salmon, 948 F.2d at 1137.

We have held that summary judgment motions may not be granted on any

excessive force claims under § 1983 for which any genuine issue of material fact remains

— regardless of whether the potential grant would arise from qualified immunity or from

a showing that the officer merely had not committed a constitutional violation.

Muskogee, 119 F.3d at 839. In Muskogee, police officers killed a man when he refused

to drop his gun while threatening to commit suicide. Although eyewitness accounts

differed dramatically as to the officers’ actions prior to their shooting, the district court

nonetheless granted summary judgment on the ground that the officers had not committed

a constitutional violation. In reversing, we held that such material factual disputes

involving the “immediate connect[ion]” of an officer’s use of force in response to “a

suspect’s threat of force” prevent a court from granting summary judgment. Id. at 840.

Where a disputed issue of material fact remains, that ends the matter for summary

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judgment. The court may not move on to determine whether an officer’s actions were

“objectively reasonable.”

On the issue of excessive force, neither party’s asserted material facts jibe with

those of the other. Officer King says that Appellant behaved belligerently before he

attempted to handcuff him. Appellant and his children say that Appellant did nothing but

cooperate passively. Officer King contends that Appellant tried to resist the arrest by

“turn[ing] in to me, which just made me hold on to the control hold.” App. at 216.

Appellant maintains that he complied physically at all times. App. at 215. Appellant says

that Officer King pushed Appellant at least 10 feet into a store window to effectuate the

arrest. Officer King tells a far more subdued tale of “maneuver[ing] [Appellant] against a

storefront window [to] gain[] the necessary leverage to handcuff him.” Supp. App. at 2.

Officer King mentions nothing about manhandling Appellant during the arrest process.

Appellant asserts that Officer King “cocked [his arm] at an angle, . . . clear up the middle

of [his] back.” App. at 172-173. Although the district court erred in granting summary

judgment via qualified immunity, the overwhelming number of factual divergences

scream the obvious — that material disputed facts obviously remain as to the excessive

force claim. The court erred in granting summary judgment on the excessive force issue..

IV.

A plaintiff states a cognizable Eighth Amendment claim for denial of medical

attention if he “allege[s] acts or omissions sufficiently harmful to evidence deliberate

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indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). The

right to custodial medical care is clearly established. Id. at 104. Although “[p]retrial

detainees are protected under the Due Process Clause rather than the Eighth Amendment,

. . . this Court applies an analysis identical to that applied in Eighth Amendment cases

brought pursuant to § 1983.” Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999).

“Deliberate indifference” involves both an objective and a subjective component.

Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). The former is met if the

deprivation is “sufficiently serious” — that is, “if it is one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person would

easily recognize the necessity for a doctor's attention.” Hunt v. Uphoff, 199 F.3d 1220,

1224 (10th Cir. 1999). The latter is satisfied if an officer “knows of and disregards an

excessive risk to [a detainee’s] health or safety.” Sealock, 218 F.3d at 1209 (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Essentially, the officer must 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.” Garrett v. Stratman, 254 F.3d 946, 949-950

(10th Cir. 2001) (quoting Farmer, 511 U.S. at 837.).

Where disputed material facts implicate either of the two questions of whether a

serious medical need existed or whether an officer was deliberately indifferent to it, a

court may not grant summary judgment. LeMaster, 172 F.3d at 764. In LeMaster, we

reversed a district court’s grant of summary judgment on an inmate’s Eighth Amendment

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claim in a case in which “material issues of fact remain[ed] concerning [1)] how badly

appellant was hurt”; 2) whether a sheriff was “aware of facts from which an inference

could be drawn that a substantial risk of medical harm existed[,]” and 3) whether he drew

that inference. Id. Similarly, in DeSpain v. Uphoff, 264 F.3d 965 (10th Cir. 1999), we

reversed a district court’s grant of summary judgment where “[n]early every material fact

relating to [whether the impact of a prison flooding incident constituted a ‘sufficiently

serious’ medical need such that it would warrant attention and whether prison officials

were deliberately indifferent to it] was hotly contested.” Id. at 972.

Accordingly, we must only inquire whether a genuine issue of material fact existed

as to either the objective or subjective inquiry that would nullify a motion for summary

judgment.

A.

As to the objective inquiry of whether Appellant’s OCD-induced panic attack

during the ride to jail was “sufficiently serious,” Appellees downplay OCD by comparing

it in gravity and prevalence to mere “sexual addiction” — held by the Court in Riddle v.

Mondragon not to rise to the level of “sufficiently serious.” 83 F.3d 1197, 1204 (10th

Cir. 1996); Appellee Officer King’s Brief at 33.

Appellant had been diagnosed with and treated for OCD over a period of at least

15 years before the December 1997 incident. App. at 165-166, 183, 292. Moreover,

OCD does not reside in the minds of a handful of unlucky sufferers; Appellant’s very

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real, diagnosed affliction greatly outweighs the “[v]ague allegations of eroded self-

esteem, apathy, fear and feelings of differentness” that did not satisfy Estelle’s objective

prong in Riddle. 83 F.3d at 1204.

According to the National Institute of Mental Health, OCD impacts more than two

percent of the population — outpacing both schizophrenia and bipolar disorder in terms

of frequency of affliction. National Institute of Mental Health, Obsessive-Compulsive

Disorder, at http://www.nimh.nih.gov/publicat/ocd.cfm (last visited Oct. 9, 2002). See

also 3 AMERICAN PSYCHIATRIC ASSOCIATION, TREATMENTS OF PSYCHIATRIC DISORDERS

2097 (1989) (reporting that, as early as 1984, “[t]he lifetime prevalence of OCD in the

general population [was] more than two percent”). Seeping into mainstream

consciousness, the disorder profoundly affected a successful writer in the 1997 Academy

Award nominated film As Good As It Gets, and the popular cable television show Monk

revolves around a detective who suffers from OCD. AS GOOD AS IT GETS (Gracie Films

1997); MONK (USA Network, Inc. 2002). Although our task is not to determine whether

Appellant’s OCD is “sufficiently serious,” it is hardly inconceivable that a jury could find

precisely that. Accordingly, the objective portion teeters on a disputed material fact that

makes it wholly improper for the district court to have granted summary judgment.

B.

Assuming, arguendo, that OCD indeed qualifies as “sufficiently serious,” the

subjective second prong also teems with disputed material facts that render summary

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judgment inappropriate at this stage. With regard to whether Officer King “kn[ew] of and

disregard[ed] an excessive risk to [Appellant’s] health or safety,” Sealock, 218 F.3d at

1209 (quoting Farmer, 511 U.S. at 837), neither party agrees on the material fact of

whether Officer King even knew of Appellant’s condition — much less on whether he

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

serious harm exist[ed, or on whether he] dr[e]w the inference.” Garrett, 254 F.3d at 949-

950 (quoting Farmer, 511 U.S. at 837). Appellant claims that he incurred a OCD-related

panic attack on the ride to the jail and that he twice told Officer King about the attack,

only to receive no response. App. at 176. Officer King could not recall whether

Appellant mentioned anything about a panic attack, though he did “believe that

[Appellant] stated something to the fact that he’d had [health] problems in the past.”

App. at 218.

According to the fourth edition of The Diagnostic and Statistical Manual of Mental

Disorders-IV — a definitive source for the classification of mental illnesses — the

essential features of the disorder are “obsessions or compulsions cause marked distress,

are time consuming . . ., or significantly interfere with the person's normal routine,

occupational (or academic) functioning, or usual social activities or relationships.”

AMERICAN PSYCHIATRIC ASSOCIATION, THE DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS § 300.3 (4th ed. 1994) [hereinafter DSM-IV]. Obsessions are

“recurrent and persistent thoughts, impulses, or images that are experienced, at some time

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during the disturbance, as intrusive and inappropriate and that cause marked anxiety or

distress.” Id. Compulsions are “repetitive behaviors (e.g., hand washing, ordering,

checking) or mental acts (e.g., praying, counting, repeating words silently) that the person

feels driven to perform in response to an obsession, or according to rules that must be

applied rigidly.” Id.

When the OCD sufferer attempts to stave off a compulsion, “there is a sense of

mounting tension . . . .” AMERICAN PSYCHIATRIC ASSOCIATION, THE DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL DISORDERS § 300.3 (3d rev. ed. 1987). Moreover,

anxiety is a common feature associated with the disorder. Id. Thus, OCD does not

manifest itself as visibly as a bloody nose; rather, like a heart attack victim who remains

on his feet, its characteristics are subtler and consequently more capable of being

described by the sufferer than noticed by an outsider.

Although the simple act of placing an innocent man — as was the case here — in a

police car may unquestionably produce anxiety, Appellant’s allegation that he twice told

Officer King that he was having a panic attack, coupled with Officer King’s admission

that Appellant mentioned prior health problems, together signify that Officer King may

have known of — and disregarded — an excessive risk to Appellant’s health. This is for

a jury to decide. Just as our task is not to determine whether Appellant’s alleged OCD

and panic attacks rose to the level of “sufficiently serious,” our task is not to decide

whether Officer King was indeed ignorant to Appellant’s apparent pleas for assistance.

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 As in LeMaster, the point is that “material issues of fact remain concerning”

whether Officer King was “aware of facts from which an inference could be drawn that a

substantial risk of medical harm existed” and whether he drew that inference. LeMaster,

172 F.3d at 764. Strongly contradictory factual assertions as to the nature of OCD and as

to Officer King’s response to Appellant’s pleas make summary judgment improper on

Appellant’s Eighth Amendment claim.

V.

We will not hold a municipality “liable [for constitutional violations] when there

was no underlying constitutional violation by any of its officers.” Hinton v. City of

Elwood, 997 F.2d 774, 782 (10th Cir. 1993). When an officer deprives a citizen of a

constitutional right, however, municipal governments may incur liability under § 1983

when “the action that is alleged to be unconstitutional implements or executes a policy,

statement, ordinance, regulation or decision officially adopted and promulgated by that

body’s officers.” Monell v. Dep’t of Social Services, 436 U.S. 658, 690 (1978). Because

vicarious liability will not open a municipality to liability simply when one of its officers

has committed a constitutional violation, Monell, 436 U.S. at 694, “[i]t is only when the

‘execution of the government’s policy or custom . . . inflicts the injury’ that the

municipality may be held liable under § 1983.” City of Canton v. Harris, 489 U.S. 378,

385 (1989) (internal citation omitted). In the absence of an explicit policy or an

entrenched custom, “the inadequacy of police training may serve as a basis of § 1983

- 22 -
liability . . . where the failure to train amounts to a deliberate indifference to the rights of

persons with whom the police come into contact.” Id.

Indeed, we have confirmed that this deliberate indifference standard may be

satisfied “when the municipality has actual or constructive notice that its action or failure

is substantially certain to result in a constitutional violation, and it consciously and

deliberately chooses to disregard the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299,

1307 (10th Cir. 1999). Although a single incident generally will not give rise to liability,

Okla. City v. Tuttle, 471 U.S. 808, 823 (1985), “deliberate indifference may be found

absent a pattern of unconstitutional behavior if a violation of federal rights is a ‘highly

predictable’ or ‘plainly obvious’ consequence of a municipality’s action.” Barney, 143

F.3d at 1307 (internal citations omitted). The official position must operate as the

“moving force” behind the violation, and the plaintiff must demonstrate a “direct causal

link” between the action and the right violation. Bd. of County Comm’rs v. Brown, 520

U.S. 397, 399 (1997). That is, “[w]ould the injury have been avoided had the employee

been trained under a program that was not deficient in the identified respect?” City of

Canton, 489 U.S. at 391. With regard to any attempted showing of “deliberate

indifference” by a municipality, the existence of “material issues of material fact

preclude[s] summary judgment.” Cruz v. City of Laramie, 239 F.3d 1183, 1191 (10th

Cir. 2001).

- 23 -
 A.

Because Appellant has failed to allege facts showing that Layton City manifested

deliberate indifference to the rights of OCD sufferers who are taken into custody, we will

affirm the district court’s grant of summary judgment to Layton City. Although

Appellant may indeed show that Officer King has committed the prerequisite underlying

Eighth Amendment violation, Appellant has not taken the subsequent step of linking the

possible violation to a municipality custom or policy. The teachings of Monell and its

progeny proscribe the attachment of vicarious liability to a municipality merely because

the municipality employed the individual who committed a constitutional violation. It is

absolutely necessary to show that “the ‘execution of the government’s policy or custom . .

. inflict[ed] the injury’ [in order to hold a] municipality . . . liable under § 1983.” City of

Canton, 489 U.S. at 385 (internal citation omitted). With regard to Layton City,

Appellant has alleged nothing more than that Officer King committed a constitutional

violation. Appellant has not adequately tied the violation to a broader municipality

custom — that is, deliberate indifference to OCD in the Layton City police department’s

mental health training scheme. We may not infer from Appellant’s otherwise respectable

assertion of the frequency of OCD that the municipality “ha[d] actual or constructive

notice that its action or failure [was] substantially certain to result in a constitutional

violation, and [they] consciously and deliberately [chose] to disregard the risk of harm.”

Barney, 143 F.3d at 1307. Because Appellant has not alleged facts bridging the

- 24 -
individual violation to a broader municipal custom, no genuine issue of material fact sits

in dispute because none has been raised on this claim. Accordingly, we affirm the district

court’s decision to grant summary judgment to Layton City.

B.

Davis County, however, is quite a different story. We reverse the district court’s

grant of summary judgment to Davis County because Appellant has alleged the necessary

facts that may establish that Davis County manifested deliberate indifference by failing to

train its jail’s prebooking officers to recognize OCD and handle sufferers appropriately.

“[T]he inadequacy of police training [with respect to OCD] may serve as a basis of §

1983 liability . . . where the failure to train amounts to a deliberate indifference to the

rights of persons with whom the police come into contact.” City of Canton, 489 U.S. at

385. If “the [Davis County] ha[d] actual or constructive notice that its action or failure

[was] substantially certain to result in a constitutional violation, and it consciously and

deliberately ch[ose] to disregard the risk of harm,” Barney, 143 F.3d at 1307, Appellant

could make out a showing of deliberate indifference — more than sufficient to quash a

summary judgment motion.

Appellant has alleged facts showing that prebooking officers receive absolutely no

training on OCD. They look only “for inmates that have a complete change of

behavior . . . odd behaviors, aggressive behaviors, suicidal indicators.” Id. If a

prebooking officer is unsure how to address an inmate who complains of a panic attack,

- 25 -
he or she must refer to a policy manual. App. at 279. The prebooking officers’ field of

mental health knowledge is contained in the manual on booking procedures that indeed

addresses mental health needs and delineates an initial screening process. App. at 362-

364. The prebooking officers, however, are left with discretion in determining whether

an inmate suffers from a psychological disorder requiring medical attention.

Significantly, no discussion of OCD appears within it.

It hardly bears repeating, but OCD does not rival Halley’s Comet in its infrequency

of appearance. OCD occurs in more than two percent of the population, causing “marked

distress [and] significant interferenc[ence] with the person’s normal routine . . . .” Supra

Part IV (citations omitted). Although a jury shall decide exactly to what extent it has

burst into the mainstream, one could hardly deem it an obscure disorder.

At the jail, Appellant reported his OCD for the standard medical screening sheet; it

appeared as “CDC.” Besides the facts that Appellant also disclosed his panic attack

syndrome, a prebooking officer “seems” to recall Appellant’s having asked for his

medication because he was having a panic attack. App. at. 280. The prebooking officers,

however, took away Appellant’s medication, even after he informed them that he required

it.

Given the frequency of the disorder, Davis County’s scant procedures on dealing

with mental illness and the prebooking officers’ apparent ignorance to his requests for

medication, a violation of federal rights is quite possibly a “‘plainly obvious’

- 26 -
consequence” of Davis County’s failure to train its prebooking officers to address the

symptoms. Barney, 143 F.3d at 1307 (internal citations omitted). And this is for a jury to

decide. That OCD is relatively common and that the county had procedures in place for

dealing with inmates with psychiatric disorders suggest that the municipality may have

had constructive notice of the illness’ prevalence and consequences. Accordingly,

Appellant has raised a genuine issue of material fact as to whether the county had notice

of and was deliberately indifferent in its failure to train prebooking officers on OCD.

C.

Moreover, the parties are at loggerheads over whether Appellant even suffered an

injury directly resulting from the alleged deliberate indifference. Although Davis County

contends that its prebooking officers’ actions in no way could have sparked an injury or

the recurrence of OCD, Appellant argues that forcing him to remove his footwear without

regard for his condition or need for medication triggered the onset of the disorder. Davis

County asserts that prebooking officers noticed nothing so out of the ordinary as to

warrant medical attention or a variance from routine policy. Appellant alleges that they

cavalierly ignored his pleas and his condition. This conflict gives rise to another disputed

issue of material fact. Deliberate indifference in this case is a question for the jury.

In sum, we conclude that disputed material facts exist as to whether Davis County

expressed deliberate indifference to an OCD-sufferer’s rights via a failure to train and

- 27 -
whether any deliberate indifference could operate as a causal link to his alleged injuries.

We reverse the grant of summary judgment to Davis County.

*****

For the foregoing reasons, we REVERSE the grant of summary judgment in favor

of Officer King and Davis County. We AFFIRM summary judgment in favor of Layton

City.

- 28 -
No 01-4130 - Olsen v. Layton Hills Mall

HARTZ, Circuit Judge, concurring in part and dissenting in part:

I concur in the affirmance of the summary judgment in favor of Layton City. I

also agree that we must set aside the summary judgment in favor of Officer King on Mr.

Olsen’s Fourth Amendment excessive-force claim. I respectfully dissent, however, from

the majority’s view that Olsen is entitled to pursue his Eighth Amendment/Due Process

claim against King and Davis County. I will first address the Fourth Amendment claim

and then the Eighth Amendment claim. (To be precise, both claims are under the

Fourteenth Amendment, which imposes on the states the substance of the Fourth and

Eighth Amendments. See Cooper Indus. v. Leatherman Tool Group, Inc., 532 U.S. 424,

433-34 (2001) (Eighth Amendment is incorporated into Fourteenth Amendment); Wolf v.

Colorado, 338 U.S. 25, 27-28 (1949) (incorporating Fourth Amendment into Fourteenth

Amendment).)

I. Fourth Amendment Claim

I agree that Mr. Olsen’s testimony raises a genuine issue of material fact regarding

whether Officer King used excessive force during Olsen’s detention. If the jury believes

Olsen’s account of being thrown against the store window, despite his having offered no

resistance to King, it could reasonably find that King violated Olsen’s Fourth Amendment

rights by using excessive force.
 The majority opinion, however, appears to go further in finding additional possible

Fourth Amendment violations by King. To the extent that it does, I disagree. Because I

am not sure precisely what is the majority opinion’s view of the pertinent law, I shall set

forth my own analysis, without attempting to compare it to the majority’s.

The starting point is to determine what legal basis, if any, King had to detain

Olsen. The core charge against Olsen was fraudulent use of a credit card under Utah

Code Ann. § 76-6-506.2. The statute makes it a crime for a person “knowingly, with

intent to defraud, [to] obtain or attempt to obtain credit[,] or purchase or attempt to

purchase goods, property, or services, by the use of a false, fictitious, altered, counterfeit,

revoked, expired, stolen, or fraudulently obtained financial transaction card.” (emphasis

added.) Because the statute prohibits a mere attempt, it does not matter whether Olsen

actually obtained any merchandise or eventually paid for any merchandise that was

obtained.

In my view, King had probable cause to arrest Olsen for the credit card offense

when the mall security guard informed him of what had happened when Olsen tried to use

the credit card. After all, Olsen had attempted to buy merchandise with a card that

Discover Card had reported to be fraudulent. (In fact, he had attempted to use the

Discover Card immediately after his Visa Card had been rejected. The rejection may

have resulted from an error by the store clerk in entering the card’s expiration date, but

this error was not known at the time. Cf. United States v. Shareef, 100 F.3d 1491, 1505

-2-
(10th Cir. 1996) (“A mistaken premise can furnish grounds for a Terry [v. Ohio, 392 U.S.

1 (1968),] stop, if the officers do not know that it is mistaken and are reasonable in acting

upon it.” (internal quotation marks omitted)).)

Even though the information received by King was double hearsay, an officer can

rely on such information if each level of hearsay was itself reliable. See United States v.

McCoy, 478 F.2d 176, 179 (10th Cir. 1973). Here, both levels of hearsay were reliable.

The initial report was by the store clerk, an identified citizen with no apparent axe to

grind. See United States v. Neff, 300 F.3d 1217, 1221 (10th Cir. 2002) (discussing

presumptive reliability of citizen informants). And the security officer was herself a

reliable source. See Gramenos v. Jewel Cos., 797 F.2d 432, 439 (7th Cir. 1986) (“Police

have reasonable grounds to believe a guard at a supermarket.”). Not only did the security

officer have no apparent reason to lie, she had a strong motive to be restrained in accusing

a customer of crime—both because of her employer’s desire to keep customers and

because of the potential liability to the security officer and her employer if the store’s

detention of the customer was unfounded. See id.

Of course, it is good police practice to ask the suspect for an explanation of

apparently criminal conduct. But the arresting officer has no obligation to believe the

suspect, see Romero v. Fay, 45 F.3d 1472, 1474 (10th Cir. 1995) (officer lawfully kept

suspect in custody despite suspect’s protestations of innocence), and failure to inquire

does not void the officer’s probable cause, see id. at 1477-78 (once officer had probable

-3-
cause to arrest, his failure to investigate further did not negate probable cause finding,

absent showing that initial determination was itself unreasonable); See generally Wayne

R. LaFave et al., 2 Search and Seizure § 3.2(d) at 47-49 (2d ed. 1996).

If I am correct that King had probable cause to arrest Olsen upon receiving the

security officer’s report, then King could lawfully handcuff Olsen and take him to the

store clerk for further investigation. The sole possible Fourth Amendment violation

(although hardly a trivial one) would be the use of excessive force in throwing Olsen

against the store window.

Yet even if I am incorrect about the existence of probable cause, the report from

the security officer unquestionably gave King reasonable suspicion to detain Olsen for

further investigation. We thus may examine the constitutionality of King’s conduct on

the assumption that he lacked probable cause but had reasonable suspicion. In this

regard, it is important to recognize that it is irrelevant whether King thought he had

probable cause to arrest or whether he thought he was effecting an arrest. The issue is

whether King had sufficient information to justify what he did with the suspect. As a

leading authority states:

The police conduct should be judged in terms of what was done
rather than what the officer involved may have called it at the time. If an
officer tells the suspect he is under arrest but then conducts only a frisk and
finds a weapon, a later determination that grounds for arrest were lacking
should not render inadmissible the discovered weapon if there were in fact
grounds for a stop and the frisk. Obviously the result would be otherwise if
the search exceeded that permissible under Terry.

-4-
Wayne R. LaFave et al., 2 Criminal Procedure § 3.8(b) (2d ed.1999); see Maryland v.

Macon, 472 U.S. 463, 470-71 (1985) (“Whether a Fourth Amendment violation has

occurred turns on an objective assessment of the officer’s actions in light of the facts and

circumstances confronting him at the time, and not on the officer’s actual state of mind at

the time the challenged action was taken.”) (internal citation and quotation marks

omitted); Neff, 300 F.3d at 1222 (“In measuring the actions of a police officer under the

Fourth Amendment, . . . we look at the objective facts, not the officer’s state of mind.”).

But cf. George Dix, Nonarrest, Investigatory Detention in Search and Seizure Law, 1985

Duke L.J. 849, 922 (1985) (whether officer announces that suspect is under arrest may be

relevant to “the intrusiveness experienced by a detainee”).

Given reasonable suspicion to believe Olsen had committed a crime, King had the

right to detain Olsen for a reasonable time to investigate the matter. It was appropriate

for King to follow up on the security officer’s report by questioning the store clerk and

calling Discover Card, and it was certainly lawful for King to continue to detain Olsen

during this limited period of time.

Of course, King could not employ excessive force during the detention. If a jury

believed Olsen’s account, it could properly find that King violated Olsen’s Fourth

Amendment rights by throwing him against a store window.

In addition, if King had only reasonable suspicion, but not probable cause, then the

use of handcuffs may have constituted excessive force for the investigative detention. The

-5-
use of handcuffs is not a per se violation of the rights of a person being detained for

investigation based on reasonable suspicion. Neff, 300 F.3d at 1220 (“[A] Terry stop does

not become unreasonable just because police officers use handcuffs . . . .”). Nevertheless,

unlike when there is probable cause for an arrest, there must be justification for their use,

such as specific reason to fear violence or escape. See id. at 1220-21.

If the handcuffing of Olsen was improper in this case, he would have a cause of

action under the Fourth Amendment for such use of excessive force. That violation,

however, would not vitiate the lawfulness of extending the investigative detention to

enable King to interview the store clerk and call Discover Card. (The handcuffing could

also affect the lawfulness of any interrogation of Olsen, but that is not an issue before us.)1

1
I recognize that language in some of this court’s opinions suggests that excessive
use of force, such as the unnecessary use of handcuffs, converts an investigative detention
into an arrest. Our first opinion so stating was United States v. Perdue, 8 F.3d 1455 (10th
Cir. 1993), in which we wrote, “[E]ffectuating a Terry stop by pointing guns at a suspect
may elevate a seizure to an ‘arrest’ in most scenarios.” Id. at 1463. But a more precise
statement of the proposition appeared earlier in the opinion, where we said, “An
encounter between police and an individual which goes beyond the limits of a Terry stop,
however, may be constitutionally justified only by probable cause or consent.” Id. at
1462. In other words, to say that certain police conduct converts a stop into an arrest is
only to say that the conduct could only be justified, if at all, by probable cause. Opinions
that have followed Perdue have addressed only whether the use of excessive force
rendered the detainee’s statements or consent to search inadmissible. See, e.g., United
States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir. 1994). The analysis in these
opinions would be essentially the same if we had said simply that the officers had used
excessive force in a Terry stop, rather than saying that the stop became an arrest. See,
e.g., id. at 1055-56. Indeed, prior to Perdue, we had criticized the approach of some
courts in deciding that the degree of force used by officers could convert a stop into an
arrest. See United States v. Merritt, 695 F.2d 1263, 1274 (10th Cir. 1982). In any event,
none of the Perdue line of cases stands for the proposition that the continued detention of
(continued...)

-6-
Once King had interviewed the store clerk and called Discover Card, he unquestionably

had probable cause to arrest Olsen.

In short, the only potential grounds I can see for a Fourth Amendment claim here

are (1) the use of excessive force in throwing Olsen against the store window (which is a

proper claim whether there was probable cause for an arrest or only reasonable suspicion

for an investigative detention); and (2) the use of excessive force in handcuffing Olsen (if

there was not probable cause for an arrest (contrary to my view) and there was no specific

justification for the use of handcuffs).

II. Eighth Amendment Claim

I agree that Mr. Olsen’s Eighth Amendment claims against Layton City must fail.

Contrary to the majority opinion, however, I would also affirm the summary judgment in

favor of Officer King and Davis County on the Eighth Amendment claims against them.

This is not a reflection on the seriousness of Olsen’s medical condition. The record

indicates that his OCD has caused him great suffering. Yet even viewing the evidence in

the light most favorable to his claim, he has not produced sufficient evidence that the

defendants violated the Eighth Amendment.

I begin with King. The sole basis for Olsen’s Eighth Amendment claim against

King arises out of King’s driving Olsen to jail. According to Olsen, twice during the trip

he told King that he was having a panic attack. He does not claim that he told King he

1
(...continued)
Olsen in itself became unlawful if excessive force was used.

-7-
suffered from OCD. He does not claim that he told King he needed medical attention. He

does not claim that he told King he needed to take his medication. Indeed, although

Olsen’s briefs on appeal assert that King should have provided treatment for Olsen’s panic

attack, they do not state specifically what King should have done differently.

The custodial drive to jail apparently caused Olsen to suffer. But “only the

unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). King could be

liable only if he “kn[ew] of and disregard[ed] an excessive risk to [Olsen’s] health or

safety,” id. at 837, caused by his continuing to drive to jail rather than taking some other

action (unidentified by Olsen on appeal) consistent with his duties as a police officer. The

evidence simply does not support a finding that King had such culpable knowledge.

To assess the claim against Davis County, we look to what happened at the jail.

Upon arrival at the Davis County Jail at 6:52 p.m., Olsen was brought into a pre-booking

area, where he was asked a series of medical questions as part of a screening process.

According to the screening sheet, he suffered from (1) diagnosed restlessness, (2) OCD

(recorded incorrectly as “CDC”), (3) panic attack syndrome, (4) mild cardiovascular

problems, (5) hypertension, and (6) a cold; and he had prescriptions for Biaxin and

antihistamine. Olsen did not sign the authorization for medical examination and/or

treatment while incarcerated, which appears at the bottom of the screening sheet.

-8-
 Olsen testified that after the completion of the medical screening sheet, he was

asked if he had anything in his pockets. He stated that he had two medications for OCD,

Diazepam and Chlorpromazine. He took Diazepam once a day and had taken a pill before

his arrest. He took Chlorpromazine twice a day but had not yet taken a pill that day. The

jail officer told him that he had to turn over the medication.

While Olsen was still in the pre-booking area, the officers conducted a pat-down

search. As part of the search, Olsen was asked to remove his belt, shirt, shoes, and socks.

The officers inspect shoes and socks because they are common places to hide weapons.

Olsen informed the officers that he did not want to take off his shoes and socks because he

had OCD and was germophobic. According to Olsen, he was having a panic attack at this

time, though his deposition testimony does not reveal whether he told the officers he was

having a panic attack while he was being searched.

In the interest of their safety, the officers insisted that Olsen comply with their

request that he take off his shoes and socks. Nevertheless, they provided him a chair to sit

on so that his feet would not have to touch the floor. An officer testified that this was an

accommodation, which made the search less safe because Olsen could more easily assault

the officers from a seated position. After he took off his shoes and socks, the officers

searched them, and gave Olsen his socks back. Olsen remained sock-footed for the

remainder of his time in jail.

-9-
 The officers then took Olsen into the booking area, where he was to check his

possessions and be photographed and fingerprinted. While he was checking his

possessions, Olsen told the officers that he had medicine for his OCD with him and that he

needed it because he was having a panic attack. The officers, however, would not allow

him to have the medicine, and they took it from him.

Olsen was then fingerprinted. Typically, before fingerprinting a prisoner, the

officers ask the prisoner to wash his hands so that all oils and grease are removed, thereby

ensuring a good quality print. Olsen protested. Again telling the officers that he was

germophobic, he expressed his concern that there might be a lot of germs around the sink

where he was to wash his hands. Contrary to their normal policy, the officers allowed

Olsen to forego hand washing, and fingerprinted his unwashed hands. Additionally,

although the officers ordinarily require prisoners to wash their hands after fingerprinting,

they did not make Olsen do so.

After fingerprinting, Olsen was allowed into a day room where he placed phone

calls and watched television. He was released on bail at 9:15 p.m., less than two-and-a-

half hours after arriving at the jail.

Olsen asserts in his brief that he requested “medical attention” from the Davis

County Sheriff’s Department and that jail personnel denied his requests. But the only

evidentiary support he provides for this assertion is a citation to a 60-page portion of his

deposition testimony. Such an overbroad reference can be (and should be) disregarded by

-10-
the court. See Gross v. Burggraf Const. Co, 53 F.3d 1531, 1546 (10th Cir.1995). In any

event, the record does not support the assertion. At most, Olsen informed county officials

that as a result of his OCD, (1) he could not do certain things—namely, take off his shoes

or wash his hands, and (2) he needed his medication. He never testified that he asked for

medical assistance.

The Davis County prisoner intake policy has several provisions regarding the

medical needs of prisoners. The Admission Search Procedure contains the following

directive:

A. Pre-booking Preparation . . . .
3. . . . The intake floor receiving deputy will do the following:
a. A medical check will be made to insure the prisoner is not in need
of immediate care. . . .

App. 359. The section on Access to Treatment states:

To communicate to prisoners the availability of health services within the Davis
County Jail and the method of obtaining the services[:]

Information about health care services will be communicated to all prisoners upon
their arrival to jail. The instructions will be given verbally and/or written.
A. Access to treatment information will include, but not be limited to:
1. Doctor’s sick call
2. Emergency medical care
3. Mental health needs
4. Dental clinic

B. This information will be communicated to each prisoner:

-11-
 1. Verbally
a. At the time of intake screening

App. 361. Another provision addresses medication:

. . . Prisoners claiming to be on medication:

a. Obtain the following information:
1) Purpose of medication
2) Dosage
3) Description of medication
4) Name of physician prescribing
5) Date of prescription
6) Last dose
7) Pharmacy

b. The nurse will verify above information by calling:
1) Prescribing physician
2) Hospital
3) Family to obtain:
a) Prescription number, date, physician, name of
medication.
b) Purpose of medication

App. 362. (Although this provision appears under the title, “Prisoners with communicable

disease,” the parties apparently agree that it applies more generally.) Finally, the section

entitled “Receiving Screening” twice deals with medical and psychiatric needs. First:

Intake screening will be performed on all prisoners presented for
incarceration at the Davis County Jail. Screening prevents prisoners

-12-
 who pose a health or safety threat to themselves or others from being
admitted to the facility’s general population.

Observation of inmates during the screening may prevent
suicide, detect symptoms of drug withdrawals, recognize the
signs of trauma the inmate may have received, and if he/she
requires medical attention . . . .

A. Receiving screening will be conducted during the initial
booking process of the Davis County Jail and will be
performed by medical staff and/or health trained correctional
deputies. The screening will include:

1. Initial screening for emergency medical or psychiatric needs.
....
3. Documenting medical history
4. Documenting prisoner’s behavior and
appearance.

B. Receiving screening will be documented on the medical screening
form . . . .

C. Prisoners posing immediate health or safety threats to
themselves or others are treated as follows: [what
follows is not in the record].

App. 363. Later it states:

2. It must be a matter of judgement weather [sic] or not to accept
such a prisoner. Remember, however, that the screener cannot
diagnose the condition, and it might be more serious than
seems apparent. So when using judgment and common sense,
it is determined the prisoner may have a problem, do not
accept him until he has been medically cleared.

-13-
 ....
O. Prisoners exhibiting behavior indicative of psychiatric disorders or
suicide threat (delusions, hallucinations, communication difficulties,
speech and posturing, impaired level of consciousness,
disorganization, memory defects, depression or evidence of self
mutilations) will not be accepted without medical clearance.

App. 364.

From the above evidence, I do not see how an Eighth Amendment claim against

Davis County can be sustained. Mr. Olsen fails on two grounds. First, the county is liable

in damages only if an employee committed a constitutional violation. See City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986); Myers v. Oklahoma County Bd. of County

Comm’rs, 151 F.3d 1313, 1320 (10th Cir. 1998). But, as I will explain below, there was

no constitutional violation. Second, even if an employee committed such a violation,

Olsen’s sole theory of county liability is that the county failed to train the jail employees to

deal with prisoners suffering from OCD. Such failure-to-train liability can be imposed,

however, only if the failure reflected the county’s “‘deliberate indifference’ to the rights of

its inhabitants.” Canton v. Harris, 489 U.S. 378, 389 (1989). Olsen has failed to provide

evidence of such deliberate indifference. I will now address each ground in more detail.

To establish a constitutional violation, Olsen must show that at least one jail

employee “kn[ew] of and disregarded an excessive risk to [Olsen’s] health or safety.”

Farmer, 511 U.S. at 837. (The requisite state of mind was referred to in Wilson v. Seiter,

501 U.S. 294, 302-03 (1991), as “deliberate indifference.” Use of that term, however, can

-14-
cause confusion because the same term has a different meaning in the related context of

municipal liability for constitutional violations by employees. As this court has explained:

“In the prison conditions context, deliberate indifference is a subjective standard requiring

actual knowledge of a risk by the official. In the municipal liability context, deliberate

indifference is an objective standard which is satisfied if the risk is so obvious that the

official should have known of it.” Barney v. Pulsipher, 143 F.3d 1299, 1307, n.5 (1998)

(emphasis added).) There is nothing in the record on appeal, however, to show that any

staff member had the culpable state of mind required for an Eighth Amendment violation.

When Olsen complained about taking off his shoes and socks because of his fear of

germs on the floor, jail personnel accommodated him by finding a chair so that his feet

would not touch the ground. Although the officers could have accommodated Olsen

further by not requiring him to remove his shoes and socks, there was a clear security

purpose in checking those articles of clothing for such items as weapons or drugs. The

Eighth Amendment does not require jails to forego reasonable security measures. Cf. Bell

v. Wolfish, 441 U.S. 520, 546 (1979) (“The fact of confinement as well as the legitimate

goals and policies of the penal institution limits . . . retained constitutional rights.”).

Similarly, the officers accommodated Olsen in the fingerprinting process by not making

him wash his hands. The Eighth Amendment did not mandate that the jail refrain from

fingerprinting him.

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 A similar analysis applies to taking medication from Olsen. Jail procedures

required medical personnel to verify any prescription needs before a prisoner could be

given medication. This practice makes obvious sense. Otherwise, prisoners could take

unlawful or dangerous drugs, and prisons could be held responsible for not preventing

such self-destructive behavior. The problem here is that the verification procedure was not

completed during Olsen’s incarceration of more than two hours. Such a delay in the

context of this case may justify a finding of negligence by the county jail. But it is another

matter altogether to find on this record that a county employee possessed the necessary

culpable state of mind. The record is devoid of any evidence regarding the jail’s actions

after Olsen’s Chlorpromazine was seized. One can only speculate regarding who was

responsible for the delay and what that person’s state of mind was. In my view, the record

would not support a jury finding that some jail employee “kn[ew] of and disregard[ed] an

excessive risk to [Olsen’s] health or safety.” Farmer, 511 U.S. at 837. Therefore, the

summary judgment against Olsen on this claim must be sustained. See Revell v. Hoffman,

309 F.3d 1228, 1232 (10th Cir. 2002) (stating standard for summary judgment).

Moreover, even if a jail employee violated Olsen’s rights under the Eighth

Amendment, Olsen has not provided sufficient evidence to sustain his claim against Davis

County. He asserts that OCD is so common that the county had an obligation to train jail

personnel in how to handle prisoners suffering from the condition. The county intake

policy, however, has provisions that would seem to respond reasonably to the medical

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needs of prisoners. To prevail against the county, Olsen must show that “‘the need for

more or different training is so obvious, and the inadequacy so likely to result in the

violation of constitutional rights, that the policymakers of the [county] can reasonably be

said to have been deliberately indifferent to the need’ for additional training.” Jenkins v.

Wood, 81 F.3d 988, 994 (10th Cir. 1996) (quoting Harris, 489 U.S. at 390).

The question, then, is whether it was “obvious” that under the jail’s policies, absent

further training, jail personnel were likely to violate the Eighth Amendment rights of

inmates with OCD by knowingly disregarding “excessive risk[s] to [their] health or

safety.” Farmer, 511 U.S. at 837. In my view, the record in this case does not establish

such obviousness. Olsen’s evidence concerns only the prevalence of OCD in the general

population. He presents no evidence regarding prison populations. In particular, he

presents no evidence regarding how often OCD manifests itself in ways that require

special attention in a prison setting, the experience of prisons in dealing with inmates

suffering from this affliction, or whether special training of jail personnel is necessary to

avoid serious harm. Olsen’s germophobia and severe reaction to jail conditions may, for

all the record shows, be a rare occurrence among those who suffer from OCD.

In Allen v. Muskogee, 119 F.3d 837, 842 (10th Cir. 1997), we said that “evidence of

a single violation of federal rights, accompanied by a showing that a municipality has

failed to train its employees to handle recurring situations presenting an obvious potential

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for such a violation, is sufficient to trigger municipal liability.” Here, there is no evidence

of such “recurring situations” in the Davis County jail.

We have also said that “[t]he deliberate indifference standard may be satisfied when

the municipality has actual or constructive notice that its action or failure to act is

substantially certain to result in a constitutional violation, and it consciously or deliberately

chooses to disregard the risk of harm.” Barney, 143 F.3d at 1307 (emphasis added). I

assume that “constructive notice” of a fact can arise when the fact is widely known by

those in the particular field of endeavor. See Harris, 489 U.S. at 390 n.10 (police

administrator’s need to train officers in use of deadly force is plainly obvious). In Allen

itself the plaintiff had properly relied on an expert who testified that the municipality’s

procedures were “out of synch with the rest of the police profession.” 119 F.3d at 844. If

this is a proper interpretation of “constructive notice,” then Davis County could have

constructive notice of an OCD problem (so that the problem is “obvious”) based on

information from outside the experience of its own jail. The record before us, however,

contains no evidence of “best practices” in other prisons with respect to treating persons

with OCD, nor does it refer to literature on the subject directed to prison administrators or

other law enforcement personnel.

All the record contains is medical literature. But a matter cannot be considered

“obvious” to jail administrators simply because it is well known to medical professionals

or families of those affected by a particular disorder. Prison officials do not have

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constructive notice of what appears in medical literature. Because Olsen relies only on

medical literature, and provides no evidence regarding what was known by Davis County

jail administrators or by jail administrators in general, or even what happens in jails in

general, he has not established the obviousness required for liability of Davis County.

In sum, although there are disputed facts in the record, there are no disputed

material facts that could justify setting aside the district court’s summary judgment on

Olsen’s Eighth Amendment claims. I therefore respectfully dissent from the reinstatement

of those claims against King and Davis County.

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