Boyett v. County of Washington

FILED
United States Court of Appeals
Tenth Circuit

June 19, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

SANDRA BOYETT, individually and
as personal representative for the
Estate of RAYMOND BOYETT;
JESSICA (BOYETT) PETERSON; and
BRANDY (BOYETT) SORENSON,

Plaintiffs-Appellants, No. 06-4315
v. (D. of Utah)
COUNTY OF WASHINGTON, a (D.C. No. 2:04-CV-1173-PGC)
political subdivision of the State of
Utah; WASHINGTON COUNTY
PURGATORY CORRECTIONAL
FACILITY, a political subdivision of
the State of Utah; WASHINGTON
COUNTY SHERIFF, a political
subdivision of the State of Utah; KIRK
SMITH, Sheriff of Washington
County, individually and officially;
ROB TERSIGNI, Chief Deputy Sheriff
of Washington County, individually
and officially; FRED KEIL,
Correctional Officer, individually and
officially; RAY KOUNALIS,
Correctional Officer, individually and
officially; GENE REDFORD,
Correctional Officer, individually and
and officially; JAMES HANSON,
Nurse, individually and officially;
DESTINY HUMMER, Nurse,
individually and officially; DARRYL
McCOY, Nurse, individually and
officially; RANDY McKINNON,
Nurse, individually and officially;
DAVE PATT, Nurse, individually and
officially; SABRINA STEEL, Nurse,
 individually and officially; JON
WORLTON, Clinical Social Worker,
Nurse, individually and officially,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before HENRY, Chief Judge, EBEL, and TYMKOVICH, Circuit Judges.

Raymond Boyett died in Washington County, Utah’s Purgatory

Correctional Facility a week after being arrested for failing to appear in court for

traffic offenses. Before his death, Boyett suffered from—and was treated for—a

variety of physical and mental ailments including alcoholism, liver disease,

anxiety, and depression. The instant appeal stems from a lawsuit filed by

Boyett’s surviving family members under 42 U.S.C. § 1983 alleging prison

officials caused or contributed to Boyett’s death by (1) failing to timely treat

injuries, (2) withholding medications and forcibly injecting antipsychotic drugs,

and (3) allowing him to be assaulted by unknown guards or medical personnel.

*
This order and judgment is not binding precedent except under the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.

-2-
 The district court granted summary judgment to all individual Defendants

on the basis of qualified immunity. The court also granted summary judgment to

Defendant Washington County on the claim of municipal liability. We agree with

the district court’s decisions, concluding the Boyett family has failed to

demonstrate a genuine issue of material fact about whether Defendants were

deliberately indifferent to Boyett’s serious medical needs, inflicted excessive

force, or otherwise violated his federal rights. We also affirm the district court’s

decision to decline supplemental jurisdiction over the Boyett family’s state law

claims.

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

I. Background

A. Factual Background

Boyett died in his cell at the Purgatory Correctional Facility around 5:10

a.m. on September 6, 2003. He had been detained in the facility since August 27.

While there, Boyett, age 54, was treated by nurses, a social worker, and a

physician’s assistant for various physical and mental ailments. After Boyett’s

death, Dr. Leis, the Utah state medical examiner, performed an autopsy. Dr. Leis

concluded the cause of death was occlusive coronary artery disease, with cirrhosis

serving as a contributing factor.

Boyett’s incarceration at the Purgatory Correctional Facility on August 27

was his second in the span of a week. On August 20, he had been booked into the

-3-
facility for a DUI. Prior to booking, a doctor at the Dixie Regional Medical

Center (DRMC) examined Boyett and concluded he was healthy enough for jail.

The doctor listed alcohol intoxication and recent hernia surgery under

“Diagnosis,” and recommended Boyett continue his regular dose of the

prescription drug Methadone. After spending one day in jail, Boyett was

released.

On August 27, Boyett returned to the correctional facility after being

picked up on an arrest warrant. Boyett’s medical history chart at the facility

contained the information supplied by the doctor at the DRMC pertaining to the

recent surgery and the Methadone. The chart also indicated Boyett suffered from

dental problems, tendon problems, liver disease, hepatitis C, anxiety, and

depression. Boyett had also previously broken his neck and continued to live

with broken vertebrae. On August 27, Boyett was taking the prescription drugs

Celexa, Xanax, and Methadone.

On August 31, four days into his detention, Boyett’s health began to

deteriorate. Boyett told Correctional Officer Pitcher he was internally bleeding

and going comatose. Pitcher alerted Nurse McKinnon who, along with fellow

nurse Hanson, examined Boyett. They determined he was not internally bleeding

or lapsing into a coma.

The next day, Physician’s Assistant Steele further examined Boyett and

took a verbal medical history from him to update the facility’s files. Steele and

-4-
Boyett discussed his recent hernia surgery, his five fractured neck vertebrae, and

his alcohol withdrawal and Methadone treatment. After conducting a physical

exam of Boyett, Steele concluded his hernia repair had healed. Steele prescribed

500 mg of Naprosyn and 25 mg of Elavil for Boyett’s neck and back pain, as well

as 0.1 mg of Clonidine to replace his prescription Methadone since Methadone

was not allowed in Utah jails.

A day later, on September 2, Boyett again asked to see medical personnel.

Boyett told Nurse Hummer he was going to die because of his liver disease.

Hummer noted that Boyett had recently seen a doctor and was taking prescribed

medications; there was nothing further she thought she could do.

On September 3, Boyett complained to Purgatory staff about his liver,

hepatitis, insomnia, and general health. Officer Jessop and his supervisor

concluded that because no nurses were then on duty, they could only make a log

entry of the incident. Later that same day, Boyett injured himself in a fall down a

flight of stairs. Officer Keil was first on the scene and did not notice any

bleeding or other obvious injuries. Nurse McCoy also responded and treated

Boyett for a small cut on his arm. Boyett was transferred to a medical

observation cell, where he could receive more attention from the nursing staff.

McCoy stated Boyett fell as a result of becoming dizzy. This could have resulted

from Boyett taking more than his prescribed dose of Clonidine. Medical logs

show that at 11:58 p.m., Boyett told officers he had fallen for a second time. But

-5-
when Nurse Hanson responded, he determined Boyett had not fallen; Boyett

simply wanted someone to check on him.

The next day, Boyett submitted an inmate request form seeking a liver

transplant from his mother. 1 Boyett was also observed banging his head against

the door of his cell during the swing shift (3:00 p.m. – 11:00 p.m.). Because of

these disturbing actions, Nurse Hanson injected Boyett with 100 mg of Thorazine,

an antipsychotic. Hanson determined Boyett was a danger to himself and would

be calmed by the injection.

On September 5, Officer Redford checked on Boyett in his medical

observation cell. Redford determined Boyett’s mental condition was deteriorating

and notified the facility’s licensed clinical social worker, Jon Worlton. Worlton

reviewed Boyett’s medical history, interviewed Boyett, and spoke with Boyett’s

wife on the telephone. Worlton determined Boyett was psychotic and should be

given additional injections of Thorazine. A few hours later, when Officer

Kounalis noticed a bloody spot on the back of Boyett’s head, he and Officer

Redford took Boyett to the infirmary for medical treatment.

Nurse Hanson determined Boyett’s head laceration was not serious and

washed the wound with clean water. After consultation with Worlton, Hanson

also injected Boyett with a second 100 mg of Thorazine to prevent Boyett from

1
Boyett’s inmate request form stated, “I need a request to have my
mother’s liver transplanted into me and then bury my mother here in LaVerkin,
UT.” R., Vol. 5 at 1549.

-6-
harming himself. At 7:45 p.m., Nurse Hummer injected Boyett with a third dose

of Thorazine. Staffers then transported Boyett to a suicide watch cell in the

booking area of the facility, leaving only a suicide gown and a mattress in the

cell.

Early the next morning, at approximately 5:10 a.m., Officer Vernon noticed

Boyett lying on the floor and not moving. The officer opened the cell and found

Boyett was dead.

Dr. Leis, Utah’s Deputy Chief Medical Examiner, conducted an autopsy on

Boyett’s body 24 hours later. Boyett’s left anterior descending coronary artery

was 90% occluded. Dr. Leis concluded the cause of death was occlusive coronary

artery disease, with cirrhosis contributing significantly to death. The autopsy

report also found Boyett’s drug and medication levels were within normal limits.

Also shortly after Boyett’s death, Washington County Sheriff Kirk Smith

began an investigation into the circumstances surrounding the death. FBI agents

provided additional assistance. It is not clear from the record, however, what

additional information—if any—the investigation revealed.

B. Procedural History

The Boyett family brought several causes of action against Washington

County and county employees who came into contact with Boyett during his

incarceration. Plaintiffs sought damages for federal civil rights violations and

state law torts Defendants allegedly committed before and after Boyett’s death.

-7-
The principal claims were that jail officials failed to provide adequate medical

care, used excessive force, and operated under defective supervisory policies.

In this appeal, the Boyett family challenges: (1) the district court’s grant of

summary judgment to individual Defendants on the basis of qualified immunity;

(2) the district court’s grant of summary judgment on municipal liability; and (3)

the district court’s dismissal of the state law claims.

II. Qualified Immunity

A. Standard of Review

The district court granted qualified immunity to Defendants on the Boyett

family’s claims of deliberate indifference to medical needs, excessive force, and

supervisory liability. We review the grant of qualified immunity de novo. See,

e.g., Serna v. Colo. Dep’t of Corrs., 455 F.3d 1146, 1150 (10th Cir. 2006).

Officials granted qualified immunity have immunity from suit and from the

concomitant burdens of litigation. See Saucier v. Katz, 533 U.S. 194, 200–01

(2001). To overcome a grant of qualified immunity, plaintiffs must satisfy a

heavy two-part burden by showing: (1) “the defendant’s actions violated a

constitutional or statutory right” and (2) “the right was clearly established at the

time of the defendant’s unlawful conduct.” Serna, 455 F.3d at 1150 (quoting

Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). Plaintiffs must “go

beyond the pleadings and designate specific facts so as to make a showing

-8-
sufficient to establish the existence of an element essential to [their] case.”

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

The threshold inquiry in every qualified immunity case is: “Taken 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, 533 U.S. at 201;

see also Williams v. Berney, 519 F.3d 1216, 1220 (10th Cir. 2008) (“Only if the

plaintiff can show a constitutional violation do the courts ask whether the

constitutional right was clearly established.” (quotation omitted)). If no

constitutional right has been violated, our inquiry necessarily ends.

B. Deliberate Indifference to Serious Medical Needs

1. Legal Framework

The Eighth Amendment provides prisoners the right to be free from cruel

and unusual punishments. This right is violated if prison officials show

“deliberate indifference to an inmate’s serious medical needs.” Mata v. Saiz, 427

F.3d 745, 751 (10th Cir. 2005). A prison official does not violate this standard,

however, “unless the official knows of and disregards an excessive risk to inmate

health or safety; the official 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.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting

Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Thus, to make out a

constitutional deprivation under the deliberate indifference standard, plaintiffs

-9-
must prove two elements: (1) objectively, the inmate’s medical needs were

“sufficiently serious,” and (2) subjectively, the prison official acted with a

“sufficiently culpable state of mind.” Id. at 1230–31; see also Mata, 427 F.3d at

751.

A medical need is sufficiently serious if it “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.” Sealock, 218 F.3d

at 1209 (quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). A prison

official has a sufficiently culpable state of mind if the official “knows of and

disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837;

see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (concluding “a complaint that

a physician has been negligent in diagnosing or treating a medical condition” does

not show deliberate indifference).

In cases involving allegations of missed diagnoses or delayed treatment,

plaintiffs may establish liability by showing:

(1) a medical professional recognizes an inability to treat the patient
due to the seriousness of the condition and his corresponding lack of
expertise but nevertheless declines or unnecessarily delays referral, e.g.,
a family doctor knows that the patient needs delicate hand surgery
requiring a specialist but instead of issuing the referral performs the
operation himself; (2) a medical professional fails to treat a medical
condition so obvious that even a layman would recognize the condition,
e.g., a gangrenous hand or a serious laceration; [or] (3) a medical
professional completely denies care although presented with
recognizable symptoms which potentially create a medical emergency,
e.g., a patient complains of chest pains and the prison official, knowing

-10-
 that medical protocol requires referral or minimal diagnostic testing to
confirm the symptoms, sends the inmate back to his cell.

Self, 439 F.3d at 1232 (citations omitted).

With these principles in mind, we turn to Plaintiffs’ allegations of

deliberate indifference.

2. Application

Plaintiffs claim the officer and nurse Defendants were deliberately

indifferent to Boyett’s serious medical needs during his time in the Purgatory

facility. They point to a plethora of acts and omissions by Defendants: (a) failure

to supply a qualified medical provider; (b) failure to provide the medicine and

care prescribed by Boyett’s treating physicians prior to incarceration; (c) failure

to respond to symptoms and complaints regarding internal bleeding; (d) failure to

respond to falls and seizures on September 3; (e) failure to treat Boyett’s head

laceration; (f) improper injection of antipsychotic medication; and (g) failure to

prevent Boyett’s death. 2

2
Plaintiffs’ brief is far from a model of clarity; nevertheless, we have
attempted to discern the main arguments. We believe any additional
claims—such as Defendants’ failing to follow medical conditions imposed upon
the jailing of Boyett, failing to provide adequate and proper medication, and
failing to examine Boyett’s medical records (Aplt. Br. 28)—are encompassed
within the seven broad claims we have laid out above.

-11-
 We address the claims in order.

a. Failure to supply a qualified medical provider

Plaintiffs have not shown how any individual officer or nurse failed to

supply a qualified medical provider to Boyett. As a preliminary matter, there is

no per se requirement that a jail provide its inmates around-the-clock access to a

medical doctor. While jailers are ultimately responsible for their inmates’

medical needs, Farmer v. Brennan, 511 U.S. at 833–34, they can provide that care

in a variety of ways, including access to trained personnel such as guards in the

first instance, nurses, and physicians’ assistants. The Eighth Amendment requires

nothing more as a general matter. See, e.g., Hoptowit v. Ray, 682 F.2d 1237,

1253 (9th Cir. 1982) (en banc) (reversing lower court’s order that a penitentiary

must hire two medical doctors to meet minimum standards of prison medical care

under the Eighth Amendment); McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir.

1990) (noting state prison officials retain “wide discretion in the operation of

prison facilities”). While access to a medical doctor may be necessary in certain

situations, e.g., Sealock, 218 F.3d at 1210–11, no constitutional violation occurs

unless medical care is intentionally or recklessly denied. E.g., Estelle, 429 U.S.

at 104–05 (discussing prison guards “intentionally denying or delaying access to

medical care or intentionally interfering with the treatment once prescribed”).

Here, Washington County supplied qualified nurses, a licensed clinical

social worker, and a licensed physician’s assistant to provide immediate medical

-12-
care to inmates. All of these individuals acted in accordance with the dictates of

the Eighth Amendment by promptly and diligently assessing Boyett’s medical

condition and taking reasonable steps in light of their evaluations. The record is

replete with examples of correctional officers notifying the nursing staff about

Boyett’s medical needs in a timely manner. Those nurses promptly responded to

the calls and treated Boyett in a professional way. Physician’s Assistant Steele

and Licensed Clinical Social Worker Worlton also supplied timely medical care to

Boyett. In fact, over a six-day period (August 31 to September 5), Boyett was

examined by at least six different staffers with medical training on no less than

eight separate occasions. These officials conducted examinations, treated

wounds, and administered medications based on their diagnoses.

In short, Plaintiffs have not demonstrated the existence of a genuine issue

of material fact pointing to deliberate indifference by any Defendant in failing to

provide a qualified medical provider to Boyett.

b. Failure to provide the medicine and care prescribed by Boyett’s treating
physicians prior to incarceration

Plaintiffs contend the decision by Washington County officials to take

away Boyett’s prescription Methadone when he entered the facility violated his

rights. 3 Boyett’s doctor had prescribed the Methadone to treat his alcohol

3
Boyett was also taking Celexa and Xanax before he entered the
Washington County facility. Plaintiffs have failed to show whether these were
prescribed by Boyett’s doctor and, if so, whether they were taken away by
(continued...)

-13-
withdrawal symptoms, but because Methadone is a narcotic, he was not allowed

to keep it in the jail. To replace the Methadone, Physician’s Assistant Steele

prescribed 0.1 mg of Clonidine to be taken twice daily. Steele’s prescription of

substitute medication for Boyett does not demonstrate deliberate indifference.

See Callahan v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006) (“[A] prison

doctor remains free to exercise his or her independent professional judgment and

an inmate is not entitled to any particular course of treatment.” (quoting Dulany v.

Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997))); Perkins v. Kansas Dep’t of

Corrs., 165 F.3d 803, 811 (10th Cir. 1999) (“[A] prisoner who merely disagrees

with a diagnosis or a prescribed course of treatment does not state a constitutional

violation.”).

Plaintiffs also complain officials inadequately treated Boyett’s hernia

repair. On August 20, Boyett’s outside doctor told Washington County officials

Boyett had undergone surgery to repair a hernia about one month before entering

the facility. Boyett also informed officers and nurses of this fact. When

Physician’s Assistant Steele conducted a physical examination of Boyett on

September 1, she determined he was healed. Even if we assume the diagnosis was

both negligent and harmful, Steele’s conduct would not rise to the level of a

constitutional violation because there is no evidence she acted with the requisite

3
(...continued)
Washington County officials. Plaintiffs have therefore waived review of any
claim with regard to these drugs.

-14-
culpable state of mind. See Farmer, 511 U.S. at 835 (“[D]eliberate indifference

describes a state of mind more blameworthy than negligence.”). Plaintiffs have

failed to put forth evidence Steele knew of “a substantial risk of serious harm,”

and “consciously disregard[ed]” it. Self, 439 F.3d at 1231.

c. Failure to respond to symptoms and complaints regarding internal
bleeding

On August 31, at 12:49 p.m., Boyett told Officer Pitcher he thought he was

bleeding internally. Pitcher alerted Nurse McKinnon, but neither McKinnon nor

any other nurse responded. Three hours later, Boyett told Officer Ence he

thought he was hemorrhaging. Soon thereafter, Nurses McKinnon and Hanson

responded and Boyett told them he was going comatose and had spit-up blood.

After conducting a thorough examination of Boyett, McKinnon and Hanson

concluded Boyett was not lapsing into a coma or suffering from internal bleeding.

The nurses instructed Boyett to drink six to eight glasses of water per day.

Although the three-hour delay in responding to Boyett’s claims of internal

bleeding is troubling, it does not constitute deliberate indifference to a serious

medical need because the delay caused Boyett no harm. “[D]elay in medical care

can only constitute an Eighth Amendment violation if there has been deliberate

indifference which results in substantial harm.” Olson v. Stotts, 9 F.3d 1475,

1477 (10th Cir. 1993) (quotation omitted); see also Mata, 427 F.3d at 753 (noting

prisoner’s injury must be “sufficiently serious” to constitute deliberate

-15-
indifference). Boyett was not experiencing internal bleeding or any other medical

problem at that time. The autopsy performed after Boyett’s death showed no

evidence of internal bleeding or related ailments arising from this incident.

d. Failure to respond to falls and seizures on September 3

In treating Boyett after his fall on September 3, Washington County

officials did not violate Boyett’s constitutional rights. Nurse McCoy evaluated

Boyett soon after the fall and did not discover any serious injuries. Officer Keil,

who was also on the scene, did not notice any bleeding or other injuries. Because

officials thought the fall was due to a seizure or other medical condition, they

transferred Boyett to a medical observation cell for continued monitoring. After

Boyett was moved to the observation cell, nurses determined no additional

treatment was necessary.

The Purgatory staffers’ considered medical judgments did not violate

Boyett’s constitutional rights. No Eighth Amendment violation can arise from a

situation where “a doctor merely exercises his considered medical judgment” and

“resolves the question whether additional diagnostic techniques or forms of

treatment” are required. Self, 439 F.3d at 1232; see also Estelle v. Gamble, 429

U.S. 97, 107 (1976) (“A medical decision not to order an X-ray, or like measures,

does not represent cruel and unusual punishment. At most it is medical

malpractice and as such the proper forum is the state court.”). None of the

officials involved in the decisions to move Boyett to a special cell and refrain

-16-
from pursuing additional treatment evidenced deliberate indifference to his

medical needs. Indeed, the decision to move Boyett to a medical observation cell

evidenced concern for—not deliberate indifference to—Boyett’s health and well-

being.

e. Failure to treat Boyett’s head laceration

Officers Kounalis and Redford observed Boyett’s head laceration the

evening of September 5. The laceration likely stemmed from Boyett banging his

head against the door of his cell during the prior day’s swing shift (3:00 p.m. –

11:00 p.m.). Nurse Hanson treated Boyett’s laceration by washing it with clean

water, and determining sutures were not needed. Social worker Worlton also

evaluated Boyett at that time, and determined Boyett appeared psychotic and

should be given antipsychotic medication.

Although the Plaintiffs now complain Boyett should have been treated by a

doctor or given sutures for his head injury, these post-hoc opinions do not prove

Hanson and Worlton violated the Constitution. Because the injury was not so

serious that “even a lay person would easily recognize the necessity for a doctor’s

attention,” Sealock, 218 F.3d at 1209, Hanson and Worlton were not reckless in

their treatment. Hanson made an on-the-spot determination that the laceration did

not require sutures. “[T]he subjective component [of deliberate indifference] is

not satisfied, absent an extraordinary degree of neglect, where a [prison] doctor

merely exercises his considered medical judgment.” Self, 439 F.3d at 1232.

-17-
 f. Improper injection of antipsychotic medication

The prison’s use of the antipsychotic drug Thorazine did not violate

Boyett’s constitutional rights. Washington County officials injected Boyett with

this antipsychotic on three occasions. Nurse Hanson administered the first 100

mg injection on September 4, after Hanson concluded Boyett appeared dangerous.

Hanson administered a second 100 mg dose on September 5 after he and Worlton

jointly determined Boyett appeared psychotic and was a danger to himself and

others. Nurse Hummer gave Boyett a third 100 mg injection of Thorazine a few

hours later on the evening of September 5.

Each of the three Thorazine injections were made pursuant to a doctor’s

standing order. While the standing order is not part of the record, Nurse Hummer

testified as to the policy’s contours. According to Hummer, Purgatory medical

staff had a standing order to inject an inmate with Thorazine when the following

three conditions were met: (1) the inmate was dangerous or threatening; (2)

injecting Thorazine was the best alternative available; and (3) an individualized

assessment of the inmate’s medical history weighed in favor of Thorazine

treatment. R., Vol. 2 at 524. The Thorazine policy exists primarily to prevent

inmates from harming themselves. The policy provides Washington County

officials the ability to quickly respond to a dangerous situation, and is

administered under the supervision of medical personnel and only given to inmates

showing signs of serious mental disturbance.

-18-
 That the policy allows Thorazine to be administered without inmate consent

does not by itself present a constitutional problem. First of all, the record does not

suggest that Boyett objected to the drug treatment or that it was administered

against his will. Moreover, as the Supreme Court has held, “given the

requirements of the prison environment, the Due Process Clause permits the State

to treat a prison inmate who has a serious mental illness with antipsychotic drugs

against his will, if the inmate is dangerous to himself or others and the treatment is

in the inmate’s medical interest.” Washington v. Harper, 494 U.S. 210, 227

(1990). This makes good sense, for where an inmate is a danger to himself or

others, an involuntary medication policy may be considerably more humane than a

policy disallowing the practice altogether. 4 Prison officials have a duty to care for

their inmate population, and using antipsychotic medications is an appropriate

medical response in certain situations. Cf. Hogan v. Carter, 85 F.3d 1113, 1118

(4th Cir. 1996) (concluding medical personnel, “acting in accordance with sound

medical judgment and with the prisoner’s best interests in mind,” may order an

emergency injection of Thorazine); Harper, 494 U.S. at 231 (“Though it cannot be

4
We note that if prison officials had not given Boyett the Thorazine
injections after witnessing his self-destructive behavior, Plaintiffs may have
alleged Defendants were deliberately indifferent in failing to protect Boyett from
himself. See Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir. 1996) (concluding if
prison doctor “had not ordered the single dose of Thorazine” to mentally
deteriorating prisoner “it is not unlikely that [doctor] would now be facing a
lawsuit by [prisoner] claiming that he was deliberately indifferent to his serious
medical needs”).

-19-
doubted that the decision to medicate has societal and legal implications, the

Constitution does not prohibit the State from permitting medical personnel to make

the decision under fair procedural mechanisms.”). The jail’s Thorazine policy

alone does not demonstrate deliberate indifference.

Although Plaintiffs argue a medical doctor should have made the Thorazine

decision, they have not shown how this is constitutionally compelled. As we have

noted, a prison need not have physicians on site around-the-clock. See Hoptowit,

682 F.2d at 1253; Perkins, 165 F.3d at 811. It is enough that a prison make

medical personnel, including doctors, available to help with ongoing medical

needs, or meet emergencies. In light of this reality, Washington County’s policy

provides for prompt action by on-site medical staff, including nurses, licensed

clinical social workers, and physicians’ assistants. Other medical personnel,

including doctors, are available as necessary. See R., Vol. 5 at 1481 (Physician’s

Assistant Steele testifying her supervising doctor “was available by phone twenty-

four hours a day if I had a question”).

Nor do we see a constitutional violation based on the manner in which the

Thorazine was administered. Boyett’s three Thorazine injections were given in

accordance with the standing order, which required (1) a determination of

dangerousness, (2) Thorazine being the best course of action, and (3) an

individualized assessment of the inmate. There is no dispute Nurse Hanson

administered the first injection after determining Boyett posed a danger to himself.

-20-
It also appears Hanson determined Thorazine was the best method of treatment and

an individualized assessment of Boyett’s medical history weighed in favor of

Thorazine treatment. Although strapping Boyett down to a bed or engaging in

some other treatment may also have been helpful, there is no indication Thorazine

was not the best treatment option. 5

The second and third injections also complied with the policy. The second

Thorazine injection was given by Nurse Hanson on September 5. This injection

came after consultation with Licensed Clinical Social Worker Worlton. Worlton

had spoken with Boyett’s wife regarding Boyett’s medical history and consulted

Boyett’s medical charts before determining Thorazine was the best course of

treatment. Nurse Hummer gave Boyett a third shot of Thorazine later that night.

Plaintiffs point to no record evidence sufficient to carry their burden of showing

Nurse Hummer ran afoul of the standing order.

Again, nothing in the record suggests that Boyett objected to any of the

injections. Thorazine is used in institutional settings and accepted by mentally

5
See Steven K. Erickson, The Myth of Mental Disorder: Transsubstantive
Behavior and Taxometric Psychiatry, 41 Akron L. Rev. 67, 101–02 (2008)
(describing “[t]he introduction of Thorazine” as “monumental to psychiatry”
because “it brought hope to the severely mentally ill in a manner that was
manifestly obvious”); Thomas G. Gutheil, M.D. and Paul S. Appelbaum, M.D.,
“Mind Control,” “Synthetic Sanity,” “Artificial Competence,” and Genuine
Confusion: Legally Relevant Effects of Antipsychotic Medication, 12 Hofstra L.
Rev. 77, 93–97 (Fall 1983) (noting cases in which a defendant was given
Thorazine to regain cognitive functionality, sanity, and/or competency to stand
trial).

-21-
unstable individuals in precisely Boyett’s circumstances. In fact, Plaintiffs

concede that, at least for the third treatment, “Boyett was not offensive or

combative, and in fact, he complied with the order of the jailers to sit still and

allow himself to be injected.” Aplt. Br. 22–23.

In sum, Plaintiffs have not shown how Washington County’s antipsychotic

injections policy or the injections in this case evidenced deliberate indifference to

Boyett’s medical needs. Plaintiffs have pointed to nothing in the record

suggesting Boyett objected to the medication or that the nurses unreasonably

believed that Thorazine was an inappropriate means of addressing Boyett’s

indications of mental illness.

g. Failure to prevent Boyett’s death

Finally, Plaintiffs contend prison officials deliberately failed to prevent

Boyett’s death. Purgatory officials found Boyett dead in his cell on the morning

of September 6. We have outlined above the steps taken by prison officials to

address Boyett’s medical ailments and complaints during the preceding week. On

this record, it is obvious jail officials responded reasonably to Boyett’s medical

condition prior to his death, and therefore did not violate Boyett’s constitutional

rights. “[P]rison officials who act reasonably cannot be found liable under the

Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 844–45.

Dr. Leis, the medical examiner, concluded Boyett died of occlusive coronary

artery disease. There is no reason to believe any prison official should have been

-22-
aware of this medical risk. Boyett had not documented the disease on his medical

history paperwork, nor had he shown any symptoms of the disease before he died.

Even if Boyett’s other medical conditions somehow contributed to his death,

Plaintiffs point to no evidence in the record that prison officials: (1) recklessly

misdiagnosed or ignored medical problems; (2) delayed providing medical

treatment; or (3) denied altogether access to medical personnel or medication. See

Self, 439 F.3d at 1232; Mata, 427 F.3d at 753. While Plaintiffs ask us to surmise

Boyett was not treated after a cell room assault perpetuated by either prison

officials or other inmates, there is no evidence of an assault or that prison officials

were aware of these injuries and failed to treat them.

* * *

In sum, Plaintiffs have failed to point to material disputed facts sufficient to

reverse the district court’s grant of summary judgment in favor of Defendants.

Plaintiffs have not shown prison officials were deliberately indifferent to Boyett’s

serious medical needs.

C. Excessive Force

1. Legal Framework

A claim arises under § 1983 if prison officials use force more excessive than

necessary to preserve safety and discipline in the prison facility. The core inquiry

for an excessive force claim is “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.”

-23-
Hudson v. McMillian, 503 U.S. 1, 7 (1992); see also Hovater v. Robinson, 1 F.3d

1063, 1068 (10th Cir. 1993) (“[A]n inmate has a constitutional right to be secure

in her bodily integrity and free from attack by prison guards.”).

An excessive force claim has two prongs: “(1) an objective prong that asks

if the alleged wrongdoing was objectively harmful enough to establish a

constitutional violation, and (2) a subjective prong under which the plaintiff must

show that the officials acted with a sufficiently culpable state of mind.” Smith v.

Cochran, 339 F.3d 1205, 1212 (10th Cir. 2003). To defeat summary judgment,

plaintiffs must support their claim with more than conjecture and speculation.

E.g., Self, 439 F.3d at 1236. “Unsubstantiated allegations carry no probative

weight” in summary judgment proceedings. Phillips v. Calhoun, 956 F.2d 949,

951 n.3 (10th Cir. 1992); see also Bones v. Honeywell Int’l, Inc., 366 F.3d 869,

875 (10th Cir. 2004) (“To defeat a motion for summary judgment, evidence,

including testimony, must be based on more than mere speculation, conjecture, or

surmise.”).

2. Application

Plaintiffs contend prison officials assaulted Boyett while he was in jail.

They point to the testimony of three expert witnesses: Drs. Lara, Lovell, and

Graham to support their theory. The district court excluded evidence from those

experts based on concerns about their reliability under Rule 702 of the Federal

Rules of Evidence and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579

-24-
(1993). After excluding the expert evidence, the district court concluded Plaintiffs

failed to establish an affirmative link between the prison guards and Boyett’s

injuries.

Plaintiffs’ theory is that Boyett’s rib, rectum, and head injuries were not

self-inflicted. They posit Officer Kounalis and perhaps another officer assaulted

Boyett sometime between 5:00 p.m. on September 5 and his death the next

morning. No direct evidence supports this theory; it rest entirely on (1) an expert

report theorizing the injuries could not be self-inflicted, and (2) circumstantial

inferences one of the prison guards must have been alone with Boyett and beat him

while no one else was looking. We agree with the district court the record does

not support Plaintiffs’ theory.

One of the proffered medical experts, Dr. Lara, stated Boyett died as a result

of: (1) trauma received prior to his death; (2) oversedation from major

tranquilizers of a patient with compromised liver functions; and (3) denial of basic

emergency care. Dr. Lara posited Boyett was suffering from liver failure,

traumatic injuries (i.e., chest trauma, rectal tear, and internal bleeding), and

probable overwhelming sepsis. Dr. Lara also stated videos taken of Boyett before

his death showed he was able to lift his arms and move about in a manner that

would have been impossible had Boyett been suffering from the injuries

discovered at his death.

-25-
 Another medical expert, Dr. Lovell, opined Boyett’s injuries were more

likely caused by the guards than by Boyett himself. Dr. Lovell’s expert report

stated, “The severe wound on posterior scalp is in such a position that it was more

likely than not caused by an external blow rather than a fall.” R., Vol. 11 at 3390.

Dr. Lovell also stated the linear tear in Boyett’s anus “was undoubtedly

penetration with a blunt foreign body.” Id. Nevertheless, Dr. Lovell ultimately

agreed with the medical examiner that Boyett died of “cardiac arrest.” Id. at 3391.

A former state medical examiner, Dr. Graham, performed an autopsy on

Boyett’s body more than one month after Dr. Leis’s official autopsy had been

completed. Dr. Graham’s autopsy report contained an “anatomical summary”

listing the most important findings of the autopsy. Those findings were: (1)

multiple cutaneous contusions and abrasions, including forehead, left hand, right

foreleg, right and left foot; (2) multiple rib fractures (L 8, 9, 10, 11), lacerations

(parietal pleura), and intercostal hematomas; (3) laceration (anus); (4) multiple

scalp contusions; (5) coronary artery atherosclerosis-stenosis; (6) cirrhosis of the

liver; (7) pulmonary emphysema; and (8) hematoma (omentum). R., Vol. 11 at

2766. According to Plaintiffs, the conclusion that Washington County officials

inflicted serious and deadly injury upon Boyett flows inescapably from the

medical observations of these three experts. We disagree.

Even if all three of these experts’ testimony and reports were admitted into

evidence, there would be no genuine issue of material fact regarding Defendants’

-26-
use of excessive force. None of these experts supplies evidence tending to show

either the mechanism or perpetrator of Boyett’s injuries. Plaintiffs have failed in

their burden of showing an affirmative link between the injuries complained of and

the conduct of the Defendants. See Serna, 455 F.3d at 1152–53 (requiring plaintiff

to show an “affirmative link” between the defendant’s actions and a constitutional

violation); Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003)

(same).

Plaintiffs attempt to overcome their lack of evidence by presenting a theory

analogous to the common law notion of res ipsa loquitur. “A res ipsa loquitur

case is ordinarily merely one kind of case of circumstantial evidence, in which the

jury may reasonably infer both negligence and causation from the mere occurrence

of the event and the defendant’s relation to it.” Restatement (Second) of Torts

§ 328D, cmt. b (1965). The problem with reliance on this theory is that it can, at

most, help Plaintiffs show negligence. Plaintiffs have the burden of proving more

than negligence, however; Plaintiffs must prove force was applied to Boyett’s

body “maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 7. A

finding of negligent medical care provides no help in that regard.

Evaluating all three of these experts’ testimony, along with the rest of the

evidence in the record, we conclude the expert testimony and circumstantial

evidence fail to raise a material question of fact as to whether Officer Kounalis or

another officer assaulted Boyett. The reports focus on the extent and severity of

-27-
the injuries, while almost entirely omitting their causes (other than to suggest they

were not self-inflicted). While the injuries are undoubtedly troubling, and their

origins a mystery, the experts provide no evidence on the crucial question of

whether one of the Defendants committed them. 6 In fact, Plaintiffs point to no

evidence in the record tending to show that either Kounalis or another officer was

alone with Boyett at a time they could have committed the injuries.

In contradistinction to Plaintiffs’ unsupported theory, the record evidence

suggests Boyett was never physically abused. The evidence shows: (1) Officer

Kounalis discovered Boyett’s head injury at 5:00 p.m. on September 5; (2)

Officers Kounalis and Redford transported Boyett to the infirmary for treatment;

(3) Boyett did not complain of rib or rectum injuries to anyone at that time; (4)

Boyett was on powerful pain medication (500 mg of Naprosyn) for other ailments;

(5) Boyett was given a Thorazine injection and placed in a suicide watch cell at

7:45 p.m.; (6) the suicide watch cell, located directly behind the booking station, is

the most public place in the prison; (7) the suicide watch cell was monitored at all

times by two officers at the booking station; and (8) Boyett was observed walking

around his cell and using the toilet several times between midnight and 3:00 a.m. 7

6
Evidence in the record suggests Boyett fell down some stairs on
September 3 and may have injured his ribs and rectum then. The record also
suggests Boyett’s head wound was caused by Boyett repeatedly beating his head
against the observation cell’s wall or bars.
7
Plaintiffs suggest Defendants conspired to conceal the beating, but this
(continued...)

-28-
The evidence does not show how any Defendant had the time or opportunity to

inflict severe wounds upon Boyett in the hours immediately preceding his death.

In sum, the Boyett family has not pointed to sufficient record evidence to

support their theory Officer Kounalis or another Defendant inflicted fatal injuries

on Boyett the night of September 5. At the summary judgment stage, Plaintiffs

must point to facts that show a particular Defendant caused the injuries with a

culpable state of mind. See, e.g., Bones, 366 F.3d at 875 (“To defeat a motion for

summary judgment, evidence, including testimony, must be based on more than

mere speculation, conjecture, or surmise.”). They have failed to do so here.

D. Supervisory Liability

To hold a supervisor liable under § 1983, a plaintiff must show the

supervisor’s deliberate, intentional conduct amounted to a violation of plaintiff’s

constitutional rights. Government officials are not vicariously liable for the

misconduct of their subordinates. “There is no concept of strict supervisor

liability under § 1983.” Serna, 455 F.3d at 1151 (quoting Jenkins v. Wood, 81

F.3d 988, 994 (10th Cir. 1996)). The supervisor must be “personally involved” in

the constitutional violation. Id.

7
(...continued)
theory of group liability is not supported by the record. Instead, the record shows
extensive attention to Boyett’s medical needs for the entire period of his
incarceration. The jail-house documentation that exists shows Boyett was
monitored throughout the evening of his death, and no one had the opportunity to
assault him while he was in the prison’s suicide watch cell.

-29-
 Plaintiffs have failed to present any evidence Sheriff Smith or Chief Nurse

Patt used excessive force or evidenced deliberate indifference rising to the level

of a constitutional violation. They have not even attempted to show how these

county supervisors were personally involved in any constitutional violation.

Accordingly, we affirm the grant of summary judgment in favor of both

supervisor Defendants. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (noting summary judgment is appropriate when nonmovant “fails to make

a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial”).

III. Municipal Liability

Municipalities are not vicariously liable for the misconduct of their

employees. Municipal liability may be imposed under § 1983 only if the

municipality itself is responsible for the constitutional violation. City of Canton

v. Harris, 489 U.S. 378, 385 (1989). As relevant here, a municipality may be

responsible for a constitutional violation when: (1) individuals with final

decision-making authority for the municipality create an unconstitutional policy

or practice, or (2) the municipality’s failure to train its employees reflects a

deliberate indifference to constitutionally protected rights. See id. at 389. In

either case, the municipality must be the “moving force behind the constitutional

violation.” Id. (alterations omitted).

-30-
 Plaintiffs base their claims of municipal liability on two Washington

County policies. Neither violates the Constitution.

The first policy is the county’s supposed policy or practice of refusing to

treat the wounds and ailments of Purgatory Correctional Facility inmates. There

is no evidence of this policy or practice. Instead, the county’s policy was to have

a full-time nursing staff, as well as a part-time physician’s assistant, on site at the

facility. Other medical personnel, including Steele’s supervising physician, were

on call. In light of our conclusion that county employees appropriately evaluated

and treated all of Boyett’s known ailments while he was incarcerated, this policy

cannot support a claim of municipal liability.

The second policy is the county’s allegedly unconstitutional decision to

allow Purgatory officials to inject inmates with Thorazine in unknown amounts

and frequency and without keeping adequate records. Plaintiffs’ claim fails

because they have not shown that—if in fact a policy to underreport exists—the

policy was causally related to Boyett’s injuries. See, e.g., Harris, 489 U.S. at 391

(noting that “for liability to attach . . . the identified deficiency in a city’s training

program must be closely related to the ultimate injury”).

Boyett died either of a combination of trauma, broken ribs, and lack of

medical treatment (Plaintiffs’ theory) or a heart attack (Dr. Leis’s conclusion). In

neither case was the injection of an antipsychotic medication a cause of his

injuries or death. Indeed, Dr. Leis’s uncontroverted autopsy report showed no

-31-
elevated levels of any medications or other drugs in Boyett’s body, and none of

Plaintiffs’ expert witnesses opined that Thorazine directly caused Boyett’s death.

Nor do any of the Plaintiffs’ allegations, even if true, point to a policy of

deliberate indifference to Boyett’s serious medical needs. Plaintiffs have thus

failed to meet the threshold standard of culpability and causation required to hold

the county liable. Carr v. Castle, 337 F.3d 1221, 1231 (10th Cir. 2003)

(recognizing plaintiffs seeking to impose municipal liability must prove a

municipal policy “actually caused” their injuries); Lopez v. LeMaster, 172 F.3d

756, 760 (10th Cir. 1999) (holding plaintiff “must prove that the [county’s]

deficiency in training actually caused his jailer to act with deliberate indifference

to his safety”).

Plaintiffs’ two claims against Washington County fail for an additional,

independent reason: the lack of a constitutional violation by any of the county’s

employees. Without proof of an underlying constitutional violation by a county

employee, there can be no county liability based on a county policy. See City of

Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (“If a person has

suffered no constitutional injury at the hands of the individual police officer, the

fact that the departmental regulations might have authorized the use of

constitutionally excessive force is quite beside the point.”); Estate of Larsen ex

rel. Sturdivan v. Murr, 511 F.3d 1255, 1264 (10th Cir. 2008) (“[W]ithout the

-32-
predicate constitutional harm inflicted by an officer, no municipal liability

exists.”).

IV. State Law Claims

The district court declined to exercise supplemental jurisdiction over the

Plaintiffs’ state law claims. By failing to specifically point to any error in the

district court’s decision, they have waived review of this issue on appeal. See,

e.g., Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) (noting

appellant has the burden of drawing this court’s attention to error below and court

will not manufacture a party’s arguments on appeal).

V. Conclusion

For the reasons set forth above, we AFFIRM the district court’s decision.

Entered for the Court,

Timothy M. Tymkovich
Circuit Judge

-33-