Clark v. Colbert

FILED
United States Court of Appeals
Tenth Circuit

July 17, 2018
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY CLARK,

Plaintiff - Appellant,
v. No. 17-7046
ROBERT COLBERT, in his official
and individual capacity as Sheriff of
Wagoner County, Oklahoma;
WAGONER COUNTY BOARD OF
COUNTY COMMISSIONERS;
DUSTIN DORR, in his individual
capacity; and VICKI HOLLAND, in
her individual capacity,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. NO. 6:16-CV-00115-JHP)

J. Spencer Bryan (Steven J. Terrill with him on the briefs), Bryan & Terrill Law,
PLLC, Tulsa, Oklahoma, for Appellant.

Stephen L. Geries, Collins Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for
Appellees Board of County Commissioners of the County of Wagoner and Vicki
Holland.

Randall J. Wood (Robert S. Lafferrandre and Jessica L. Dark with him on the
brief), Pierce Couch Hendrickson Baysinger & Green, L.L.P., Oklahoma City,
Oklahoma, for Appellee Robert Colbert.
Before TYMKOVICH, Chief Judge, BALDOCK and HOLMES, Circuit Judges.

TYMKOVICH, Chief Judge.

This case involves an encounter between law enforcement and a

schizophrenic individual suffering a psychotic episode. Officers from the

Wagoner County Sheriff’s Department responded to a call from Gary Clark’s

brother, who was having troubling restraining him. The Sheriff’s Department, in

turn, requested help from the neighboring Broken Arrow Police Department. The

Broken Arrow officers tried to subdue Clark through nonlethal means. Those

means failed. The officers thus resorted to lethal force, shooting Clark as he

charged them with a large kitchen knife. Clark ultimately survived his gunshot

wounds, but still has not fully recovered.

Clark now brings this lawsuit claiming numerous violations of his

constitutional, federal-statutory, and state-common-law rights. As relevant here,

the district court granted summary judgment to the Wagoner County Board of

Commissioners, Wagoner County Sheriff Robert Colbert, and former Wagoner

County Jail Nurse Vicki Holland on Clark’s claims against them.

We affirm. Given the undisputed facts, a reasonable jury could not find the

officers violated Clark’s Fourth Amendment right to be free from excessive force.

In addition, Clark has failed to adequately brief issues necessary to justify

reversal on his Oklahoma-tort and Americans with Disabilities Act (ADA) claims.

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Finally, Clark has not marshaled evidence sufficient to prove he received

constitutionally inadequate medical care while incarcerated.

I. Background

We recount the facts in greater detail as they relate to our analyses of the

specific claims at issue. In broad strokes, however, this lawsuit arises from the

arrest and detention of Gary Clark. Clark suffers from schizophrenia. His brother

helps him manage his illness. As part of this arrangement, Clark lives in a small

cottage on his brother’s property in Wagoner County, Oklahoma. On August 18,

2014, Clark’s brother went to check on Clark in the cottage. Caught in the midst

of a psychotic episode, Clark lunged at his brother with a large kitchen knife,

causing a small cut. Clark’s brother called the Sheriff’s Department. In the

ensuing confrontation between Clark and local law enforcement, the officers used

progressively severe tactics to secure Clark’s arrest. This culminated in the

officers shooting Clark as he charged them with the knife. Clark was taken to the

hospital for emergency care. He later received ongoing medical attention as he

recovered from his wounds in the Wagoner County Jail.

Following his release, Clark sued. He raised numerous claims stemming

from his arrest and incarceration, five of which relate to this appeal. First, Clark

alleged Wagoner County Sheriff Robert Colbert—in both his personal and official

capacities—violated Clark’s Fourth Amendment right against unreasonable

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seizures. Second, Clark claimed a right to recover against the Wagoner County

Board of Commissioners under Oklahoma tort law for the same police conduct.

Third, Clark claimed entitlement to relief from the County Board under the ADA

for the Board’s alleged failure to properly train its officers to accommodate

mentally ill arrestees. Finally, Clark claimed a right to recover from Nurse

Practitioner Vicki Holland for her allegedly inadequate treatment of his injuries in

the Wagoner County Jail.

II. Analysis

Clark contends the district court erred in granting summary judgment on his

claims of excessive force, Oklahoma tort liability, ADA liability, and inadequate

medical treatment.

We review district court grants of summary judgment de novo. White v.

York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In so doing, we ask the same

question the district court asked: Has discovery yielded a “genuine dispute” of

“material fact” or is the moving party “entitled to judgment” on the claim at issue

without any need to weigh evidence? Fed. R. Civ. P. 56(a); see Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine dispute arises where

the available evidence would allow a rational jury to accept either party’s

allegation of a particular fact. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th

Cir. 2013). But only facts that “could have an effect on the outcome” of a claim

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qualify as “material.” Id. (quoting EEOC v. Horizon/CMS Healthcare Corp., 220

F.3d 1184, 1190 (10th Cir. 2000)). We construe all evidence and draw all

inferences in the nonmovant’s favor at this stage. See, e.g., EagleMed LLC v.

Cox, 868 F.3d 893, 899 (10th Cir. 2017).

With that standard of review in mind, we turn to Clark’s claims.

A. The Excessive Force Claim

The Fourth Amendment prohibits state and federal governments from

making “unreasonable . . . seizures.” U.S. Const. amend. IV; see Terry v. Ohio,

392 U.S. 1, 8, 27 (1968) (applying the Fourth Amendment unreasonable seizure

provision to the states through the Fourteenth Amendment). When state police

violate this guarantee by using excessive force, federal law provides a right of

action to the victim. See 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 395

(1989); see also Cordova v. Aragon, 569 F.3d 1183, 1188 (10th Cir. 2009)

(applying Graham).

But an excessive force claim must clear the Fourth Amendment’s

“‘objective reasonableness’ standard.” Cordova, 569 F.3d at 1188. That standard

asks whether the police employed objectively reasonable force given the totality

of the circumstances. See Thomson v. Salt Lake Cty., 584 F.3d 1304, 1313 (10th

Cir. 2009). We apply this test with an eye toward “balancing . . . ‘the nature and

quality of the intrusion on the individual’s Fourth Amendment interests’ against

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the countervailing governmental interests at stake.’” Graham, 490 U.S. at 396

(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).

We look to the specific circumstances of the confrontation in evaluating

these interests. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per

curiam); Estate of Larsen v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008); Sevier

v. City of Lawrence, 60 F.3d 695, 699 (10th Cir. 1995). And the Supreme Court

has itself highlighted the importance of (1) “the severity of the crime at issue,”

(2) “whether the suspect poses an immediate threat to the safety of the officers or

others,” and (3) “whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham, 490 U.S. at 396. Nevertheless, the test is ultimately

holistic and open-ended. See Cty. of L.A. v. Mendez, 137 S. Ct. 1539, 1546

(2017); Tenorio v. Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015). Importantly,

though, the fact-finder must adopt “the perspective of a reasonable officer on the

scene, rather than [assuming] the 20/20 vision of hindsight.” Graham, 490 U.S.

at 396.

Clark has sued Sheriff Colbert in both his personal and official capacities

for the police officers’ use of force in this case. Clark’s failure to prove an

underlying constitutional violation, however, justifies summary judgment on both

claims. See, e.g., Porro v. Barnes, 624 F.3d 1322, 1325, 1328 (10th Cir. 2010).

The undisputed facts show that no Fourth Amendment violation occurred.

On the day of the incident, the Wagoner County Sheriff’s Department responded

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to Clark’s brother’s call for help first. Sheriff’s Deputies Robbie Lively and

Jason Hathcoat arrived at the Clark residence just before 4:00 p.m. They

confronted an irritated Clark standing on the front porch of his cottage with a

long kitchen knife in hand. Their attempts to communicate with Clark failed.

Rather than submit to arrest, Clark made obscene and threatening gestures toward

the officers. The Wagoner County deputies did not use force against Clark at this

time. Instead, after the arrival of Major Dustin Dorr, the Wagoner County force

requested assistance from the Broken Arrow Police Department.

The Broken Arrow officers arrived roughly ten minutes later. Upon their

arrival, the Broken Arrow officers began planning and implementing an arrest

strategy. As requested, they had brought with them an array of nonlethal

resources for accomplishing arrests. Broken Arrow Captain Patrick DuFriend

decided the officers would first fire on Clark with a pepperball launcher. This

device uses compressed gas to propel small, round projectiles that burst open on

impact, releasing a pepper-spray-like irritant from a distance. See Nelson v. City

of Davis, 709 F. Supp. 2d 978, 982 (E.D. Cal. 2010), aff’d, 685 F.3d 867 (9th Cir.

2012). In the event the pepperballs provoked Clark rather than subduing him,

Captain DuFriend directed the officers to use their tasers. The officers also had

firearms available for use if necessary.

At Captain DuFriend’s direction, the officers formed into a half-horseshoe

around Clark’s front porch. They again commanded Clark to drop his knife and

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submit to arrest. When Clark did not comply, Captain DuFriend directed another

Broken Arrow officer to begin firing pepperballs.

But the pepperballs did not subdue Clark. Instead, Clark charged the

officers with knife still in hand. The officers tried to tase Clark, but failed. They

thus discharged their firearms. Clark sustained several gunshot wounds, but was

ultimately apprehended and taken to the hospital for emergency care.

Clark concedes the use of the pepperball launcher is the only possible basis

for an excessive force finding in this case. See Aplt. Br. at 14. And indeed, the

officers used their tasers only after Clark charged them with a knife, and

employed lethal force only after the tasers failed. Accordingly, we focus our

inquiry on the reasonableness of deploying pepperballs in this scenario, given the

totality of the circumstances. We conclude no reasonable juror could find this

force excessive, and thus affirm summary judgment in Sheriff Colbert’s favor.

As an initial matter, Clark essentially argues that the officers had no reason

to use force at all in this situation, so any use of force would have been

unreasonable. See, e.g., Aplt. Br. at 34. Yet Clark’s failure to drop the knife and

submit to arrest—whether a manifestation of his illness or not—left the officers

little choice but to use some physical force against him. Even if Clark ultimately

was not guilty of a crime, his brother’s phone call indicated incapacitation was

necessary. And because Clark had already attacked his brother with a dangerous

weapon, the officers reasonably treated him as a threat to himself and others.

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Moreover, because Clark was not responding to verbal commands, the officers’

resort to physical coercion could not be categorically unreasonable. See A.M. ex

rel. F.M. v. Holmes, 830 F.3d 1123, 1151 (10th Cir. 2016); see also Estate of

Redd ex rel. Redd v. Love, 848 F.3d 899, 910 n.19 (10th Cir. 2017) (noting police

officers may, where necessary, “use their weapons to control a situation”).

The officers did not employ a particularly extreme means of coercion

either. On the contrary, they treated Clark with caution, using relatively mild,

nonlethal tactics in their initial efforts to subdue him. Clark argues even the

pepperballs were unreasonable because he was “contained.” Aplt. Br. at 22; see

id. at 34, 36. But the option to utilize more violent tactics as a contingency if a

suspect attempts to flee will not render unreasonable all less-severe physical

means of control.

If anything, the unattractiveness of more coercive alternatives makes the

officers’ decision more clearly reasonable. Using pepperballs likely seemed more

humane in the moment than waiting the situation out or spending valuable time

tracking down someone who could better communicate with Clark. Cf. Fisher v.

City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009) (noting police often must

make hurried decisions and need not limit themselves to the “least intrusive

means” available (quoting Marquez v. City of Albuquerque, 399 F.3d 1216, 1222

(10th Cir. 2005)). We will never know how long they would have had to wait for

Clark to change the status quo, or whether that change would be for better or

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worse. By promptly creating and implementing a plan of escalation, the officers

avoided the split-second decision of how to capture Clark if he did try to run. Cf.

City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775 (2015) (acknowledging the

danger of delay in the arrest context).

Finally, the fact that Clark was experiencing a psychotic episode cannot

itself prevent summary judgment. Clark’s illness factors into our analysis only as

one circumstance in the totality. And though we have held police officers can

incur liability for “reckless” conduct that begets a deadly confrontation, see Allen

v. Muskogee, 119 F.3d 837, 841 (10th Cir. 1997), that is not what happened here.

No reasonable juror could find the officers’ use of pepperballs to be a reckless

provocation. Cf. id. (holding an excessive-force claim might be sustained if the

claimant could prove police ran—weapons drawn and screaming—up to an armed,

suicidal suspect). At best, the officers wrongly predicted how Clark would react

to the pepperballs. To say they should have known the plan would create a need

to shoot Clark is to indulge in the very sort of hindsight revision the law forbids.

See Graham, 490 U.S. at 396; cf. Sheehan, 135 S. Ct. at 1775 (discussing a

similar use of pepper spray that led to lethal force).

This analysis compels affirmance of the district court’s Fourth Amendment

ruling. For Sheriff Colbert to be liable in any capacity for a violation of Clark’s

constitutional rights, Clark must show his constitutional rights were, in fact,

violated. See 42 U.S.C. § 1983. He has failed to produce sufficient evidence of

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that fact. The officers in this case confronted an armed and irate suspect who had

already attacked his own brother. When he refused to submit to arrest, the

officers preferenced nonlethal means of arrest over more dramatic and violent

options. No reasonable juror could find the use of pepperballs objectively

unreasonable in violation of the Fourth Amendment.

We therefore affirm the district court’s disposition of the claims against

Sheriff Colbert. 1

B. The Oklahoma Tort Claim

The district court also held that Clark’s state tort claim was similarly

infirm. Clark argues the court erred in applying an exception to the Oklahoma

Government Tort Claims Act. But Clark’s limited critique of the district court’s

analysis cannot support reversal on appeal.

The Oklahoma Government Tort Claims Act provides “the exclusive

remedy for an injured plaintiff to recover against [an Oklahoma municipality] in

tort.” Nail v. City of Henryetta, 911 P.2d 914, 917 (Okla. 1996); see Okla. Stat.

tit. 51, § 152.1. The Oklahoma Supreme Court has defined a police officer’s duty

of care when making an arrest on behalf of a municipal government. That duty,

said the court, “is very specific: it is to use only such force in making an arrest as

a reasonably prudent police officer would use in light of the objective

1
As a result of this disposition, we do not reach the additional arguments
Clark has raised in support of his excessive force claims. See Aplt. Br. at 33–46.

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circumstances.” Morales v. City of Oklahoma City ex rel. Oklahoma City Police

Department, 230 P.3d 869, 880 (Okla. 2010) (emphases added) (bold omitted).

And under Oklahoma law, the officer’s perspective does not matter. See id.

(“[A]n officer’s subjective mistake of fact . . . is irrelevant.”). Instead, the

“objective facts” determine the reasonableness of police conduct. Id.

The district court found Clark’s evidence of Oklahoma tort liability

insufficient for multiple reasons. First, the claim failed the Oklahoma statute’s

discretionary function exception. Second, Clark could not hold the Wagoner

County Board liable for the commands and actions of another municipality’s

police force that it did not control. Finally, said the district court, “the use of the

pepperball gun . . . was objectively reasonable under the factual circumstances.”

App. 2750.

Clark’s appeal leaves much of this analysis undisturbed. In fact, Clark only

clearly asserts error with respect to the district court’s discretionary-function

analysis—his brief is silent as to the district court’s other two independent bases

for rejecting this claim. See Aplt. Br. at 32–33. And reading Clark’s Fourth

Amendment arguments to apply to the Oklahoma tort issue does not solve the

problem; Clark still does not explain why, contrary to the district court’s

conclusion, we should allow him to hold the County Board responsible for the

Broken Arrow officers’ actions.

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 In light of this incomplete argument, we must affirm. Our rules of appeal

“require[] appellants to sufficiently raise all issues and arguments on which they

desire appellate review in their opening brief.” Becker v. Kroll, 494 F.3d 904,

929 n.6 (10th Cir. 2007) (citing Fed. R. App. P. 28(a)(9)(A)). Accordingly, we

will not question the reasoning of a district court unless an appellant “actually

argue[s]” against it. Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992); see

Harsco Corp. v. Renner, 475 F.3d 1179, 1190 (10th Cir. 2007). By offering an

incomplete challenge to the district court’s analysis, Clark has effectively

abandoned his appeal of its ruling. Cf. Jackson v. Univ. of Pittsburgh, 826 F.2d

230, 237 (3d Cir. 1987) (concluding an aspect of judgment was not actually

appealed when it was not mentioned in opening brief).

For this reason, we cannot reverse the district court on Clark’s Oklahoma

tort claim. To be clear, we neither endorse nor reject the district court’s

unchallenged conclusions. We merely decline to reverse the district court on the

basis of arguments Clark has not raised in this court.

C. The ADA Claim

Clark’s challenge to summary judgment on his ADA claim fails for the

same reason: Clark has not demonstrated error with respect to the district court’s

determination that the City of Broken Arrow is the only proper defendant for

Clark’s ADA claim.

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 Clark claims the Wagoner County Board violated the ADA by not properly

training its police officers to handle mentally ill arrestees like himself. According

to Clark, this failure-to-train predictably led the officers to forgo reasonable

accommodation of Clark’s mental illness while arresting him. As a result, Clark

argues, he suffered “greater injury or indignity,” during his arrest than other

arrestees would have. Gohier v. Enright, 186 F.3d 1216, 1221 (10th Cir. 1999).

This theory of liability depends on several legal conclusions we have yet to

actually embrace. To begin, we have never squarely held the ADA applies to

arrests. See J.H. ex rel. J.P. v. Bernalillo Cty., 806 F.3d 1255, 1260–61 (10th Cir.

2015); cf. Gohier, 186 F.3d at 1221 (noting, in dicta, that the arrest context is not

categorically beyond the ADA’s scope). Likewise, we have never held a

municipality incurs liability under the ADA for failing to adequately train its

employees. See J.V. ex rel. C. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1297

(10th Cir. 2016). 2 But we need not confront either of those open questions to

resolve this appeal, as Clark has failed to rebut the district court’s conclusion that

the ADA does not transfer liability through the Broken Arrow officers to the

Wagoner County Board in this case.

2
It would be difficult for Clark to prove the necessary elements of a failure-
to-train claim where, as here, the defendant municipality was not responsible for
training the officers who committed the allegedly discriminatory acts. Cf. Aplt. Br.
at 29.

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 The ADA mandates that “no qualified individual with a disability shall, by

reason of such disability, . . . be subjected to discrimination by any [public]

entity.” 42 U.S.C. § 12132. To enforce this directive, Congress incorporated the

remedies of the Civil Rights Act. See id. at § 12133. Accordingly, when a public

entity discriminates on the basis of disability, the ADA provides a right of action

to any victim of such discrimination. See Barnes v. Gorman, 536 U.S. 181, 185

(2002). But the Wagoner County Board clearly did not discriminate against Clark

directly. Instead, if it discriminated against Clark at all, it did so through the

actions of the Broken Arrow officers who formulated the arrest strategy and fired

the pepperballs.

To be sure, federal regulations specify that the ADA’s terms still apply

when a municipality discriminates “through contractual, licensing, or other

arrangements.” 28 C.F.R. § 35.130(b)(1). Even still—as Clark himself

recognizes, see Aplt. Br. at 16—an invocation of this provision requires proof that

those who actually discriminated acted as agents of the defendant public entity.

See Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996). Of course, there is

no federal body of agency law readily applicable to ADA claims. To fill this

intersticial gap in the regulation, we must therefore incorporate state law to the

extent it does not frustrate the ADA’s “specific objectives.” Kamen v. Kemper

Fin. Servs., Inc., 500 U.S. 90, 98 (1991); see United States v. Kimbell Foods, Inc.,

440 U.S. 715, 727–29 (1979).

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 Under Oklahoma law, “[a]n agency relationship generally exists if two

parties agree that one is to act for the other.” Garrison v. Bechtel Corp., 889 P.2d

273, 283 (Okla. 1995). And of course, the principal must enjoy “some degree of

control over the conduct and activities of the agent.” McGee v. Alexander, 37

P.3d 800, 807 (Okla. 2001). Indeed, this “right to control” is “[t]he essential

factor in any agency relationship.” Murray Cty. v. Homesales, Inc., 330 P.3d 519,

526–27 (Okla. 2014) (emphasis added). Crucially, though, the parties’

conduct—not their subjective beliefs—establishes the bond between principal and

agent. See Farmers Nat’l Grain Corp. v. Young, 102 P.2d 180, 185 (Okla. 1940);

see also Holmes v. McKey, 383 P.2d 655, 665 (Okla. 1962) (explaining how an

agency relationship can be expressly agreed to or implied through other conduct).

The district court identified Clark’s only apparent evidence of an agency

relationship: Sheriff Colbert giving Captain DuFriend “command of the

operation,” App. 2731, by telling Captain DuFriend to “[d]o what [he had] to do,”

Aplt. Br. at 7 (quoting App. 514); cf. App. 817 (disputing the fact that Captain

DuFriend acted independently and not under Sheriff Colbert’s supervision).

Considered out of context, this fact and subsequent events may have been enough

for Clark to survive summary judgment. And indeed, Captain DuFriend believed

he was acting under Colbert’s authority, if not formally as an agent of Wagoner

County. The district court went on, however, to explain that—according to

Oklahoma law governing police action—this hand-off was not consistent with an

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agreement to allow the Broken Arrow police to act on behalf of the Wagoner

County Board. See App. 2735, 2748–50 (discussing Okla. Stat. tit. 11, § 34-

104(B) and Okla. Stat. tit. 21, § 99a).

As with the Oklahoma tort claim, Clark has not challenged this analysis on

appeal. Instead, he merely asserts—without authority—that the “initiating agency

. . . is the entity properly called to answer for the execution of [law enforcement]

service.” Aplt. Br. at 17. We have said many times that we need not consider

broad assertions unaccompanied by authority or reference to the record. Adler v.

Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998). Indeed, a party

forfeits any issue so sparsely presented, as “[w]e need not . . . manufacture”

arguments for the litigants before us. Eateries, Inc. v. J.R. Simplot Co., 346 F.3d

1225, 1232 (10th Cir. 2003) (quoting Sil–Flo, Inc. v. SFHC, Inc., 917 F.2d 1507,

1513 (10th Cir.1990)).

We therefore cannot disturb the district court’s ruling on the ADA claim in

the face of Clark’s insubstantial challenge. See, e.g., LaFleur v. Teen Help, 342

F.3d 1145, 1153 (10th Cir. 2003). Again, we reserve judgment on the district

court’s legal analysis. We hold only that Clark’s briefing before us does not

suffice to justify reversal. 3

D. The Medical Needs Claim

3
Again, this disposition obviates the need to address Clark’s other challenges
to the district court’s ADA ruling. See Aplt. Br. at 18–32.

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 Finally, Clark contends the district court erred in granting summary

judgment on his medical needs claim against Nurse Practitioner Vicki Holland.

We disagree.

The Eighth Amendment forbids government infliction of “cruel and unusual

punishment[].” U.S. Const. amend. VIII. The federal courts have read this

language to include an entitlement to a certain minimum standard of medical care

while incarcerated. See Estelle v. Gamble, 429 U.S. 97, 101–05 & n.6 (1976). Of

course, the Eighth Amendment itself “does not apply until after an adjudication of

guilt.” Garcia v. Salt Lake Cty., 768 F.2d 303, 307 (10th Cir. 1985).

Nevertheless, the Fourteenth Amendment guarantees pretrial detainees “the

degree of protection against denial of medical attention which applies to

convicted inmates.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009)

(quoting Garcia, 768 F.2d at 307). Accordingly, to prove liability against

Holland, Clark must show “deliberate indifference to [his] serious medical

needs.” Estelle, 429 U.S. at 104.

That standard includes an objective component and a subjective component.

Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005); see generally Self v.

Crum, 439 F.3d 1227, 1230–33 (10th Cir. 2006) (discussing the standard in

detail). The former turns on the seriousness of the need. “A medical need is

[objectively] serious 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

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recognize the necessity for a doctor’s attention.” Garden, 430 F.3d at 1304

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

subjective component, only “a prison official” who “knows of and disregards an

excessive risk to inmate health or safety” acts with deliberate indifference. Id.

(quoting Sealock, 218 F.3d at 1209).

Clark’s medical needs claim arises from the treatment he received while in

Wagoner County’s custody. Eleven days after his arrest, Clark recovered enough

from his injuries to be admitted into the Wagoner County Jail. Throughout his

detention at the jail, Nurse Practitioner Vicki Holland 4 oversaw Clark’s long-term

recovery process, treating him a total of ten times over roughly eleven months.

Given the undisputed facts as detailed below, no reasonable juror could find

Holland’s treatment violated Clark’s constitutional rights.

After Holland’s first examination, she made note of Clark’s injuries. Some

of the gunshot wounds “were seeping,” but there was “no active bleeding” nor

any “signs or symptoms of infection.” App. 86. She thus instructed jail and

medical staff to bathe Clark daily, “wash the [gunshot] wounds with soap and

water[,] and place dry dressings over the two wounds which were still draining.”

4
Nurse Holland is an Advanced Practice Registered Nurse-Certified Nurse
Practitioner. This means she “performs in an expanded role in the delivery of health
care” beyond that of a Registered Nurse due to advanced educational achievement,
knowledge, and specialization. Okla. Stat. tit. 59, § 567.3a(6). She is a primary care
provider with a national certification in family medicine.

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Id. Holland also prescribed a daily dose of Aspirin “to suppress blood clot

presentations[,] and ordered [Clark] to continue all other medications prescribed

from the hospital.” Id.

Holland then saw Clark four more times over the next month. Her second

visit occurred less than a week after the first. At that time, she noted “[t]he

[gunshot] wounds on [Clark’s] back and abdomen were all healing well with

minimal clear drainage.” App. 87. But “the incision on [Clark’s] right femur was

red and warm to the touch and had [begun] draining with a foul odor.” Id.

Holland therefore placed Clark on a week-long course of two medications. Daily

baths and dressing changes were to continue as well.

A week later, Holland observed Clark’s surgical incision, though “still

draining,” “had less redness and appeared to be much better.” Id. She thus

required Clark to continue his treatment for another week. When Holland

returned the next week, Clark “reported that he was feeling good, but that his

right leg was stiff.” Id. Holland “removed the staples on the upper portion of

[Clark’s] surgical incision,” but not “from the incision around the knee due to

some continuing redness and drainage.” Id. Holland ordered Clark to continue

taking antibiotics for another week, and continue dry dressing his wounds with

daily bandage changes. A week after that, Holland “removed all the remaining

staples on [Clark’s] surgical incision on his right knee.” Id. She noted “less

redness on the knee, but . . . a large amount of thick white substance.” Id.

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Nevertheless, “[a]ll other wounds were healing well.” Id. Clark was then “moved

out of the lock-up observation cell,” and the frequency of check-ups thereafter

reduced. Id.

Holland next examined Clark about a month later. At that time, Clark “was

complaining of right knee swelling due to an increase in his activities.” App. 88.

Holland did not prescribe any additional treatment. Two weeks later, Clark

“complained of swelling in his right knee with no increase in pain.” Id. Holland

“ordered [Clark] be provided with a warm pack for his knee twice daily.” Id.

Suspecting, on account of his pale skin color, that Clark was also suffering from

anemia, Holland ordered Clark to stop taking Ibuprofen and instead “started him

on daily B12 and iron supplements.” Id.

Thereafter, Holland saw Clark sporadically to address several conditions

not obviously related to his gunshot wounds. These included a possible hernia on

his left side, “a bulge in the center of his abdomen,” and an abscess under his

arm. Id. At one of these meetings, months after coming to jail and months before

his release, Clark “indicated he was feeling ok.” Id. With regard to his gunshot

and surgical wounds, Holland noted only that Clark had “a soft hernia on one of

his incisions,” and his “color had improved,” though not entirely. Id. She at one

point ordered “an additional supplement of B12.” Id. These were the last

documented interactions between Clark and Holland, and at no point before or

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after Holland’s treatment did Clark “file any requests to staff or grievances

regarding his medical care.” App. 89.

Upon his release, however, Clark followed up with Dr. Dumais—the

surgeon who originally operated on his leg. Dr. Dumais identified a failure in

Clark’s “distal fixation.” App. 1820. Clark’s briefing does not explain this

diagnosis, but we gather it means the metal plate and screws installed above his

right knee to help heal his shattered femur had somehow bent or shifted. Though

the severed bone had reunified, the portion just above the knee was now

somewhat misaligned.

These facts do not support a medical needs claim.

To begin, Holland’s treatment of the gunshot and surgical wounds

themselves cannot further Clark’s case for liability. On the contrary, Holland

oversaw the gradual healing of all three wounds. And Clark does not argue the

infection of his leg supports the claim. See Aplt. Br. at 46–55. Nor could he,

because at no point could a reasonable juror conclude it posed an “obvious” and

“excessive risk to [his] health or safety.” Sealock, 218 F.3d at 1209. And though

Clark says his injuries required physical therapy, see Aplt. Br. at 52–53, Clark

offers no evidence of such a diagnosis, nor would a reasonable juror conclude the

need was obvious based on Clark’s wounds and hospital discharge instructions.

More importantly, Clark does not rebut the district court’s conclusion that his

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complaint never alleged a deprivation of physical therapy as a basis for the

medical needs claim. See App. 2527.

Clark thus stakes his entire claim on Holland’s failure to deliver him to Dr.

Dumais for a follow-up appointment consistent with Clark’s discharge

instructions. See Aplt. Br. at 51–52. But so-called “gatekeeper liability,” Aplt

Br. at 51, will not lie here. A reasonable juror might conclude Holland knew of

but declined to follow the instructions. See App. 2459, 2480–81. But a

gatekeeper “claim is . . . actionable only in cases where the need for additional

treatment or referral to a medical specialist is obvious.” Self, 439 F.3d at 1232

(emphasis added). The instruction to follow up with Dr. Dumais does not amount

to a diagnosis of a particular condition or a prescription of specific care. And

Clark never requested to see Dr. Dumais, nor did he present symptoms obviously

beyond Holland’s ken. Cf. Mata v. Saiz, 427 F.3d 745, 750, 756 (10th Cir. 2005)

(evidence that a practical nurse ignored an inmate’s severe chest pain sufficed to

prevent summary judgment). Moreover, even if Holland’s conduct was at a

certain point “unreasonable,” App. 2636, a failure to exercise reasonable

professional judgment does not a constitutional violation make. Estelle, 429 U.S.

at 106. Clark must instead prove Holland’s decision to treat Clark herself rather

than release him to Dr. Dumais was in conscious “disregard[] [of] an excessive

risk to [his] health or safety.” Garden, 430 F.3d at 1304 (emphasis added)

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(quoting Sealock, 218 F.3d at 1209). His proffered evidence simply does not

suffice to make that showing.

In short, neither the objective nor subjective requirements of a medical

needs claim can be met on these facts. Nonetheless, Clark contends the Supreme

Court’s decision in Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), “held open

the possibility that an objective-only standard should apply to” his medical needs

claim. Aplt. Br. at 46; see id. at 49. Yet he does not argue that Kingsley actually

displaced any precedent regarding medical care during pretrial detention. We

thus have no occasion to revisit the applicable law. See In re Smith, 10 F.3d 723,

724 (10th Cir. 1993) (per curiam).

III. Conclusion

For the foregoing reasons, we AFFIRM the district court on all issues.

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