FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 29, 2020
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
MARTIN CROWSON,
Plaintiff - Appellee,
v. No. 19-4118
WASHINGTON COUNTY STATE OF
UTAH; CORY PULSIPHER, acting
Sheriff of Washington County; MICHAEL
JOHNSON,
Defendants - Appellants,
and
JUDD LAROWE; JON WORLTON,
Defendants.
–––––––––––––––––––––––––––––––––––
MARTIN CROWSON,
Plaintiff - Appellee,
v. No. 19-4120
JUDD LAROWE,
Defendant - Appellant,
and
WASHINGTON COUNTY STATE OF
UTAH; CORY PULSIPHER, acting
Sheriff of Washington County; MICHAEL
JOHNSON; JON WORLTON,
Defendants.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:15-CV-00880-TC)
_________________________________
Frank D. Mylar (Andrew R. Hopkins with him on the briefs), Mylar Law, P.C., Salt
Lake City, Utah, for Defendants - Appellants Michael Johnson, Washington County,
and Sheriff Cory Pulsipher.
Gary T. Wight (Shawn McGarry and Jurhee A. Rice with him on the briefs), Kipp and
Christian, P.C., Salt Lake City, Utah, for Defendant - Appellant Judd LaRowe, M.D.
Devi Rao, Roderick & Solange MacArthur Justice Center, Washington, D.C. (Megha
Ram, Roderick & Solange MacArthur Justice Center, Washington, D.C.; Ryan J.
Schriever, The Schriever Law Firm, Spanish Fork, Utah; David M. Shapiro, Roderick &
Solange, MacArthur Justice Center, Northwestern Pritzker School of Law, Chicago,
Illinois, on the briefs) for Plaintiff - Appellee Martin Crowson.
_________________________________
Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
Martin Crowson was an inmate at the Washington County Purgatory
Correctional Facility (the “Jail”) when he began suffering from symptoms of toxic
metabolic encephalopathy. Nurse Michael Johnson and Dr. Judd LaRowe, two of the
medical staff members responsible for Mr. Crowson’s care, wrongly concluded
Mr. Crowson was experiencing drug or alcohol withdrawal. On the seventh day of
medical observation, Mr. Crowson’s condition deteriorated and he was transported to
2
the hospital, where he was accurately diagnosed. After Mr. Crowson recovered, he
sued Nurse Johnson, Dr. LaRowe, and Washington County1 under 42 U.S.C. § 1983,
alleging violations of the Eighth and Fourteenth Amendments.
The district court denied motions for summary judgment on the issue of
qualified immunity by Nurse Johnson and Dr. LaRowe, concluding a reasonable jury
could find both were deliberately indifferent to Mr. Crowson’s serious medical needs,
and that it was clearly established their conduct amounted to a constitutional
violation. The district court also denied the County’s motion for summary judgment,
concluding a reasonable jury could find the treatment failures were an obvious
consequence of the County’s reliance on Dr. LaRowe’s infrequent visits to the Jail
and the County’s lack of written protocols for monitoring, diagnosing, and treating
inmates.
Nurse Johnson, Dr. LaRowe, and the County filed these consolidated
interlocutory appeals, which raise threshold questions of jurisdiction. Nurse Johnson
and Dr. LaRowe challenge the district court’s denial of qualified immunity, while the
1
Mr. Crowson also sued Cory Pulsipher, the acting Sheriff of Washington
County, in his official capacity. But official-capacity suits “generally represent only
another way of pleading an action against an entity of which an officer is an agent.”
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). “As long as the government
entity receives notice and an opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the entity.” Id. at 166. The
district court and the parties have treated Mr. Crowson’s Monell claims against
Sheriff Pulsipher accordingly. See, e.g., App., Vol. I at 209 n.1; Appellee Br. at 7 n.2.
We therefore refer only to Washington County.
3
County contends we should exercise pendent appellate jurisdiction to review the
district court’s denial of its summary judgment motion.2
For the reasons explained below, we exercise limited jurisdiction over
Nurse Johnson’s and Dr. LaRowe’s appeals pursuant to the exception to 28 U.S.C.
§ 1291 carved out for purely legal issues of qualified immunity through the collateral
order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). We hold
Nurse Johnson’s conduct did not violate Mr. Crowson’s rights and, assuming without
deciding that Dr. LaRowe’s conduct did, we conclude Dr. LaRowe’s conduct did not
violate any clearly established rights.
Our holding on Nurse Johnson’s appeal is inextricably intertwined with the
County’s liability on a failure-to-train theory, so we exercise pendent appellate
jurisdiction to the extent Mr. Crowson’s claims against the County rest on that
theory. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995).
However, under our binding precedent, our holdings on the individual defendants’
appeals are not inextricably intertwined with Mr. Crowson’s claims against the
County to the extent he advances a systemic failure theory. See id. We therefore
reverse the district court’s denial of summary judgment to Nurse Johnson and
2
Nurse Johnson and the County’s Opening Brief is cited herein as “County
Br.,” and their Reply Brief is cited as “County Reply.” Dr. LaRowe’s Opening Brief
is cited as “LaRowe Br.,” and his Reply brief is cited as “LaRowe Reply.”
Mr. Crowson’s Brief is cited as “Appellee Br.”
4
Dr. LaRowe, as well as to the County on the failure-to-train theory, and we dismiss
the remainder of the County’s appeal for lack of jurisdiction.
I. BACKGROUND
A. Factual History3
On June 11, 2014, Mr. Crowson was booked into the Washington County
Purgatory Correctional Facility for a parole violation. On June 17, due to a disciplinary
violation, Mr. Crowson was placed in solitary confinement, known as the “A Block.”
“On the morning of June 25, while still in solitary confinement, Jail Deputy Brett
Lyman noticed that Mr. Crowson was acting slow and lethargic.” App., Vol. I at 205.
Deputy Lyman asked Nurse Johnson to check Mr. Crowson. “As a registered nurse,
Nurse Johnson could not formally diagnose and treat Mr. Crowson.” App., Vol. I at 205.
Rather, Nurse Johnson assessed inmates and communicated with medical staff. The
medical staff available to diagnose were Jon Worlton, a physician assistant (“PA”),4 and
Dr. LaRowe, the Jail’s physician.
3
Because our interlocutory review of an order denying qualified immunity is
typically limited to issues of law, this factual history is drawn from the district
court’s recitation of the facts. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985).
4
There is some ambiguity concerning whether Jon Worlton was, in fact, a PA.
The district court found he was a PA. At oral argument, the County asserted that
Mr. Worlton was a nurse practitioner, not a PA, but suggested that accorded him
similar or greater medical training. In describing his education, Mr. Worlton stated,
“I’m a social worker. I have a master’s degree in social work. I also have a clinical
license, licensed clinical social worker.” App., Vol. II at 478. At oral argument
before this court, however, counsel for Mr. Crowson answered affirmatively when
asked whether Mr. Worlton was a PA and whether he could diagnose inmates. Where
neither party has challenged the district court’s finding that Mr. Worlton was a PA,
5
At all relevant times, PA Worlton was the Jail’s health services administrator and
also handled mental health care for the inmates. PA Worlton spent half to three quarters
of his time in clinical practice at the Jail, primarily in booking. Dr. LaRowe was
responsible for diagnosing and treating inmates, but he visited the Jail only one or two
days a week, for two to three hours at a time. Dr. LaRowe relied heavily on the Jail’s
deputies and nurses. Jail deputies checked on inmates who were in medical observation
cells at least once every thirty minutes, and the deputies would notify a Jail nurse when
an inmate was “not acting right” or “having problems.” App., Vol. I at 219 (quoting
App., Vol. II at 504). “Jail nurses—who, by law, could not diagnose inmates—generally
spent five to ten minutes with” inmates in medical observation cells once every twelve-
hour shift, “to take the inmate’s vital signs and conduct follow-up checks.” App., Vol. I at
219. If an inmate exhibited symptoms of a cognitive problem, the nurse would inform
Dr. LaRowe and PA Worlton. There are no written policies or procedures regarding
inmate medical care in the record.
When Nurse Johnson evaluated Mr. Crowson on June 25, he noted Mr. Crowson
had normal vital signs and some memory loss. Specifically, “Mr. Crowson was ‘dazed
and confused,’ and ‘unable to remember what kind of work he did prior to being
arrested.’” App., Vol. I at 213 (quoting App., Vol. II at 374). Nurse Johnson “admitted in
his declaration that, despite recording normal vital signs, he ‘was concerned
[Mr. Crowson] may be suffering from some medical problem.’” App., Vol. I at 213
and Mr. Crowson’s counsel affirmed that professional status at oral argument, we
presume it is true for purposes of our analysis.
6
(alteration in original) (quoting App., Vol. II at 317). Nurse Johnson ordered
Mr. Crowson moved to a medical observation cell following the examination. He also
“entered a request in the medical recordkeeping system for PA Worlton to conduct a
psychological evaluation.” App., Vol. I at 205.
When Jail Deputy Fred Keil moved Mr. Crowson to a medical observation cell, he
noticed that Mr. Crowson appeared “unusually confused.” App., Vol I at 205. After
conducting a visual body cavity search of Mr. Crowson, Deputy Keil ordered
Mr. Crowson to re-dress. Mr. Crowson put on his pants and then put his underwear on
over his pants.
Nurse Johnson checked Mr. Crowson again that afternoon. “Mr. Crowson’s pupils
were dilated but reactive to light” and “Mr. Crowson appeared alert and oriented.” App.,
Vol. I at 206. Nurse Johnson left the Jail at the end of his shift on June 25 without
conducting further assessments of Mr. Crowson or contacting Dr. LaRowe. PA Worlton
never received Nurse Johnson’s file notation requesting a psychological examination of
Mr. Crowson.
Nurse Johnson did not work at the Jail on June 26 and 27. There is no
documentation in the Jail’s medical recordkeeping system for these days to show that
medical personnel checked on Mr. Crowson.
On June 28, Nurse Johnson returned to work and visited Mr. Crowson in the early
afternoon. “Mr. Crowson seemed confused and disoriented and had elevated blood
pressure. He gave one-word answers to Nurse Johnson’s questions, and understood, but
could not follow, an instruction to take a deep breath.” App., Vol. I at 206. At this point,
7
“Mr. Crowson’s symptoms had persisted beyond the expected timeframe for substance
withdrawal.” App., Vol. I at 213.
Following the June 28 examination, Nurse Johnson called Dr. LaRowe and
informed him of some of his observations. But Nurse Johnson did not tell Dr. LaRowe
that Mr. Crowson had been in a medical observation cell for three days and had been in
solitary confinement for nine days before that. Dr. LaRowe ordered a chest x-ray and a
blood test. “The blood test, known as a complete blood count, could have detected an
acid-base imbalance in Mr. Crowson’s blood, a symptom of encephalopathy.” App., Vol.
I at 206.
Nurse Johnson attempted to draw Mr. Crowson’s blood, but he was unsuccessful
due to scarring on Mr. Crowson’s veins and Mr. Crowson’s unwillingness to hold still.
Nurse Johnson reported this unsuccessful blood-draw attempt to Dr. LaRowe. Ultimately,
the chest x-ray and blood test were never completed. Dr. LaRowe made no further
attempts to diagnose Mr. Crowson at that time.
On the morning of June 29, Nurse Johnson took Mr. Crowson’s vital signs and
noted an elevated heart rate. “Mr. Crowson was still acting dazed and confused, and was
experiencing delirium tremens, a symptom of alcohol withdrawal.” App., Vol. I at 206–
07. Nurse Johnson reported his observations to Dr. LaRowe, who prescribed Librium and
Ativan to treat substance withdrawal. Dr. LaRowe directed Nurse Johnson to administer a
dose of Ativan.5
5
Mr. Crowson’s circumstances prior to his incarceration suggest these
medications may have been harmful to him beyond worsening his encephalopathy.
8
“An hour later, Nurse Johnson checked on Mr. Crowson, who was sleeping, and
noted that his vital signs had returned to normal.” App., Vol. I at 207. He next checked on
Mr. Crowson later that afternoon. “He noted that Mr. Crowson was better able to
verbalize his thoughts and that his vital signs remained stable.” App., Vol. I at 207. But
Mr. Crowson continued to report memory loss, telling Nurse Johnson that he could not
remember the last five days. Nurse Johnson, believing Mr. Crowson was experiencing
substance withdrawal, told Mr. Crowson that he was in a medical observation cell, and he
was being given medication for his condition.
The following day (June 30), Nurse Ryan Borrowman was assigned to the medical
holding area. Nurse Borrowman did not see Mr. Crowson until July 1, when he noted that
Mr. Crowson’s “physical movements were delayed and that he struggled to focus and
would lose his train of thought.” App., Vol. I at 207. “[D]ue to the severity of [Mr.
Crowson’s] symptoms and the length of time he had been in a medical holding cell,
[Nurse Borrowman] immediately called Dr. LaRowe for further medical care.” App.,
Vol. II at 313. Upon Dr. LaRowe’s order, Mr. Crowson was transported to the Dixie
Regional Medical Center, where he was diagnosed with metabolic encephalopathy.
Dr. LaRowe never visited the Jail while Mr. Crowson was in the medical observation
cell.
He was hospitalized at Dixie Regional Medical Center “a few weeks before being
arrested and detained” at the Jail. App., Vol. I at 207. The amended complaint
indicates medical records from this hospitalization “‘would have revealed to Facility
staff that [he] should not have been given any drug categorized as a benzodiazepine’
(such as Librium).” App., Vol. 1 at 207–08. That prior hospitalization appears to
have been the result of a heroin overdose.
9
“According to the amended complaint, Mr. Crowson remained in the hospital until
July 7, 2014, and continued to suffer from ‘residual effects of encephalopathy, liver
disease, and other problems.’” App., Vol. I at 208 (quoting App., Vol. I at 39).
Mr. Crowson spent two months recovering at his mother’s house, experiencing severe
memory and focus problems, before returning to the Jail on September 7, 2014.
B. Procedural History
Mr. Crowson filed a Complaint on December 15, 2015, which he amended on
March 14, 2016. The Amended Complaint brings, inter alia, § 1983 claims against Nurse
Johnson and Dr. LaRowe alleging they were deliberately indifferent to Mr. Crowson’s
serious medical needs in violation of Mr. Crowson’s Eighth and Fourteenth Amendment
rights. The Amended Complaint also includes § 1983 claims against Washington County
pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658
(1978).6
In 2018, Nurse Johnson, Dr. LaRowe, and Washington County moved for
summary judgment. Nurse Johnson and Dr. LaRowe argued they were entitled to
qualified immunity. The County argued that none of its employees committed a
constitutional violation and that there is no evidence of a County policy or custom
that caused the alleged constitutional violation. On July 19, 2019, the district court
denied the motions in relevant part. The district court concluded a reasonable jury
could find Nurse Johnson and Dr. LaRowe were deliberately indifferent to
6
These are the only surviving claims and defendants. Other parties and claims
have been dismissed by various court orders and party stipulations.
10
Mr. Crowson’s medical needs, and that it was clearly established their conduct
amounted to a constitutional violation. The district court also concluded a reasonable
jury could find the treatment failures were an obvious consequence of the County’s
reliance on Dr. LaRowe’s infrequent visits to the Jail and the County’s lack of
written protocols for monitoring, diagnosing, and treating inmates. Nurse Johnson,
Dr. LaRowe, and Washington County filed these consolidated interlocutory appeals.
II. DISCUSSION
We begin our analysis by examining the individual defendants before turning
to the County. Mr. Crowson challenges our jurisdiction over this appeal, so each
discussion begins with the question of jurisdiction.
A. Individual Defendants
1. Jurisdiction
When examining the denial of summary judgment on the issue of qualified
immunity, “this court has jurisdiction to review (1) whether the facts that the district
court ruled a reasonable jury could find would suffice to show a legal violation, or
(2) whether that law was clearly established at the time of the alleged violation.”
Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013) (internal quotation
marks omitted). Generally, we lack jurisdiction to review factual disputes in this
interlocutory posture. Lynch v. Barrett, 703 F.3d 1153, 1159 (10th Cir. 2013) (“[I]f a
district court concludes a reasonable jury could find certain specified facts in favor of
the plaintiff, the Supreme Court has indicated we usually must take them as true—
11
and do so even if our own de novo review of the record might suggest otherwise as a
matter of law.” (quotation marks omitted)).
There is an exception to this jurisdictional limitation “when the ‘version of
events’ the district court holds a reasonable jury could credit ‘is blatantly
contradicted by the record.’” Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir.
2010) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). In such circumstance, we
assess the facts de novo. Id. “A mere claim that the record ‘blatantly’ contradicts the
district court’s factual recitation . . . does not require us to look beyond the facts
found and inferences drawn by the district court. Rather, the court’s findings must
constitute ‘visible fiction.’” Lynch, 703 F.3d at 1160 n.2 (quoting Scott, 550 U.S. at
380–81). “The standard is a very difficult one to satisfy.” Cordero v. Froats, 613 F.
App’x 768, 769 (10th Cir. 2015) (unpublished).
Nurse Johnson and Dr. LaRowe argue this case is the unusual one where we
may review the facts de novo. Because we find reversal is warranted taking the
district court’s facts as true, we need not analyze whether we would be permitted to
consider the facts de novo.
2. Merits Analysis
“The doctrine of qualified immunity shields officials from civil liability so
long as their conduct ‘does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S.
7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). When a
§ 1983 defendant asserts qualified immunity, this affirmative defense “creates a
12
presumption that [the defendant is] immune from suit.” Perea v. Baca, 817 F.3d
1198, 1202 (10th Cir. 2016). “To overcome this presumption,” the plaintiff “must
show that (1) the officers’ alleged conduct violated a constitutional right, and (2) it
was clearly established at the time of the violation, such that ‘every reasonable
official would have understood,’ that such conduct constituted a violation of that
right.” Id. (quoting Mullenix, 577 U.S. at 11).
Mr. Crowson alleges Nurse Johnson and Dr. LaRowe violated his Eighth and
Fourteenth Amendment rights. “The Fourteenth Amendment prohibits deliberate
indifference to a pretrial detainee’s serious medical needs.” Strain v. Regalado, 977
F.3d 984, 987 (10th Cir. 2020). “[W]e apply the two-part Eighth Amendment inquiry
when a pretrial detainee alleges deliberate indifference to serious medical needs.”
Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1028 (10th Cir. 2020).
“This exercise requires both an objective and a subjective inquiry.” Id.7 “The
objective component is met if the deprivation is ‘sufficiently serious.’ . . . The
subjective component is met if a prison official ‘knows of and disregards an
excessive risk to inmate health or safety.’” Sealock v. Colorado, 218 F.3d 1205, 1209
(10th Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 837 (1970)).
7
Mr. Crowson argues the standard should be purely objective under Kingsley
v. Hendrickson, 576 U.S. 389 (2015). But during the pendency of this appeal, a panel
of this court held, in a published opinion, “deliberate indifference to a pretrial
detainee’s serious medical needs includes both an objective and a subjective
component, even after Kingsley.” Strain v. Regalado, 977 F.3d 984, 989 (10th Cir.
2020). We are bound by the holding in Strain. See Scalia v. Paragon Contractors
Corp., 957 F.3d 1156, 1162 (10th Cir. 2020).
13
As for the requirement it be clearly established that the conduct constituted a
violation, “‘the salient question . . . is whether the state of the law’ at the time of an
incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was
unconstitutional.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (alterations in original)
(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “[F]or the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to
be as the plaintiff maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir.
2018) (quotation marks omitted). We may not “define clearly established law at a
high level of generality.” Mullenix, 577 U.S. at 12 (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 742 (2011)). “Nevertheless, our analysis is not a scavenger hunt for prior
cases with precisely the same facts, and a prior case need not be exactly parallel to
the conduct here for the officials to have been on notice of clearly established law.”
Reavis ex rel. Estate of Coale v. Frost, 967 F.3d 978, 992 (10th Cir. 2020) (quotation
marks omitted).
a. Nurse Johnson
We assume without deciding that the harm suffered by Mr. Crowson meets the
objective component of the Eighth Amendment inquiry. Nurse Johnson argues he was
not deliberately indifferent under the subjective component. We agree.
“Our cases recognize two types of conduct constituting deliberate indifference.
First, a medical professional may fail to treat a serious medical condition properly”;
second, a prison official may “prevent an inmate from receiving treatment or deny
14
him access to medical personnel capable of evaluating the need for treatment.”
Sealock, 218 F.3d at 1211. Although medical personnel often face liability for failure
to treat under the first type of deliberate indifference, if “the medical professional
knows that his role . . . is solely to serve as a gatekeeper for other medical personnel
capable of treating the condition, . . . he also may be liable for deliberate indifference
from denying access to medical care.” Id. Mr. Crowson argues Nurse Johnson’s
conduct falls within this second type of deliberate indifference.
The district court agreed, finding Nurse Johnson was deliberately indifferent
on June 25 when he “placed Mr. Crowson in an observation cell and left his shift
without ensuring that Mr. Crowson would receive further care,” and on June 28 when
he “failed to tell Dr. LaRowe that Mr. Crowson had already been in a medical
observation cell for three days and in solitary confinement for nine days before that.”
App., Vol. I at 213. On appeal, Nurse Johnson argues the district court erred in
“infer[ring his] knowledge of an excessive risk of inmate harm” and claims that by
referring Mr. Crowson to PA Worlton, he “fulfilled any possible gatekeeper role.”
County Br. at 25, 28. Regarding his June 28 visit to see Mr. Crowson, Nurse Johnson
argues “he fully fulfilled his ‘gatekeeper’ role by simply communicating with
Dr. LaRowe” and that “the failure to pass on some information is in the form of
negligence and not ‘deliberate indifference.’” County Br. at 27, 29.
In response, Mr. Crowson claims Nurse Johnson’s June 25 attempted referral
to PA Worlton for a psychological evaluation, without also referring him to
Dr. LaRowe for a physical evaluation, “prevent[ed Mr. Crowson’s] physical
15
symptoms from being evaluated and treated.” Appellee Br. at 24. Mr. Crowson also
contends Nurse Johnson’s admitted concern that Mr. Crowson might be suffering
from a medical problem “indicate[s] that the risk of harm was obvious and that
[Nurse] Johnson was aware of the risk on June 25.” Id. at 25. Regarding the June 28
conduct, Mr. Crowson argues Nurse Johnson failed to pass on “critical information”
that Dr. LaRowe could have used to rule out withdrawal as a possible diagnosis. Id.
We address each instance of deliberately indifferent conduct found by the
district court.
i. The referral to PA Worlton for psychological evaluation
We agree with the district court that the evidence would allow a jury to
conclude Nurse Johnson was aware Mr. Crowson required medical attention. See
App., Vol. I at 213 (“Nurse Johnson himself noted that Mr. Crowson was ‘dazed and
confused,’ and ‘unable to remember what kind of work he did prior to being
arrested.’ He admitted in his declaration that, despite recording normal vital signs, he
‘was concerned [Mr. Crowson] may be suffering from some medical problem.’”
(alteration in original) (first quoting App., Vol. II at 374; then quoting App., Vol. II
at 317)). Nurse Johnson therefore knew Mr. Crowson had potentially alarming
symptoms and suspected there was a medical issue. That knowledge was sufficient to
trigger Nurse Johnson’s duty as a gatekeeper to provide Mr. Crowson access to
medical personnel who could provide care.
On June 25, Nurse Johnson assessed Mr. Crowson and “entered a request in
the medical recordkeeping system for PA Worlton to conduct a psychological
16
evaluation.” App. I at 205. Nurse Johnson then left the Jail, without also contacting
Dr. LaRowe. Upon Nurse Johnson’s return on June 28, he did contact Dr. LaRowe
about Mr. Crowson’s symptoms.
Although the initial referral to PA Worlton was for a psychological
examination, rather than a physiological one, that was consistent with Nurse
Johnson’s belief Mr. Crowson was suffering from psychological issues caused by the
ingestion of illicit drugs or alcohol. Further, nothing in the record or the district
court’s opinion suggests PA Worlton—if presented with clear signs of medical
distress—would have limited the examination of Mr. Crowson to psychological
issues. Indeed, as the health services administrator for the Jail, PA Worlton could
refer Mr. Crowson to Dr. LaRowe as necessary. And, unlike Dr. LaRowe, PA
Worlton spent much of his time at the Jail.
In his gatekeeping role, Nurse Johnson was required to inform medical staff
who could diagnose and treat a pretrial detainee exhibiting concerning symptoms. He
attempted to do so by requesting a psychological evaluation of Mr. Crowson, making
notations in Mr. Crowson’s file, and having discussions with PA Worlton about
Mr. Crowson’s condition.8
8
The district court’s statement that PA Worlton “never received Nurse
Johnson’s request for a psychological examination,” App., Vol. I at 206, does not
take into account PA Worlton’s deposition testimony that Nurse Johnson told
PA Worlton he was “concerned that [Mr. Crowson] had gotten involved in some
drugs or homemade alcohol on the block or something and he asked me to take a look
at him,” App., Vol. II at 482. On appeal, Mr. Crowson does not ask us to ignore that
testimony, but rather argues it is irrelevant because it related to Mr. Crowson’s
mental health rather than physical health, an argument we reject supra. However, the
17
It is true that Nurse Johnson could have done more. He could have ensured
that the referral reached PA Worlton, communicated the severity of Mr. Crowson’s
condition, or contacted Dr. LaRowe immediately. But Nurse Johnson did not “deny
[Mr. Crowson] access to medical personnel capable of evaluating the need for
treatment.” Sealock, 218 F.3d at 1211. He left a notation in Mr. Crowson’s file
regarding the referral to PA Worlton, who, as the health services administrator, was
not bound by Nurse Johnson’s presumption that the examination should focus on
psychological issues.
Because Nurse Johnson did not “completely refuse[] to fulfill [his] duty as
gatekeeper,” and instead, referred the “prisoner to a physician assistant for medical
treatment,” Mata v. Saiz, 427 F.3d 745, 758 (10th Cir. 2005), he was not deliberately
indifferent to his gatekeeper role. Id. Nurse Johnson’s attempted method of referral
may have been negligent, but it was not deliberately indifferent. See Farmer, 511
U.S. at 835 (“[D]eliberate indifference describes a state of mind more blameworthy
than negligence.”).
ii. June 28 referral to Dr. LaRowe
Mr. Crowson next claims he had been in custody too long still to be suffering
from withdrawal related to pre-incarceration drug use, and Nurse Johnson’s failure to
inform Dr. LaRowe on June 28 of how long Mr. Crowson had been in custody thus
electronic referral sufficed to fulfill Nurse Johnson’s duty, even if negligently made;
accordingly, we need not determine whether the district court’s findings of fact were
blatantly contradicted by the record.
18
constitutes deliberate indifference. Based on our decision in Sealock, we disagree.
There, the plaintiff was incarcerated and experiencing numerous medical symptoms.
Sealock, 218 F.3d at 1208. After repeated requests, he was moved to the infirmary
where he told the nurse “he had chest pain and couldn’t breathe.” Id. The nurse
informed the plaintiff “that he had the flu and that there was nothing she could do for
him until the physician’s assistant arrived at 8:00 a.m.” Id. Whether the nurse
informed the PA that the plaintiff was experiencing chest pains was a disputed fact—
the nurse testified she had, the PA testified she had not. Id. at 1212. According to the
PA, had he been informed of the chest pains, he would have called an ambulance to
take the plaintiff to the emergency room. Id. at 1208. Instead the PA prescribed
medication and the plaintiff was not treated for his actual condition—a heart attack—
until the next day. Id. We affirmed the district court’s grant of summary judgment to
the nurse, reasoning, “[a]t worst,” the nurse “misdiagnosed” the inmate and failed to
pass on information to the PA about the inmate’s chest pain. Id. at 1211. Although
the nurse omitted this critical symptom, we concluded it did not demonstrate that she
behaved with deliberate indifference. See id.
The same is true here. On June 28, Nurse Johnson did “alert Dr. LaRowe to
Mr. Crowson’s condition.” App., Vol. I at 213. Via that telephone call, Nurse
Johnson fulfilled his gatekeeping role “by communicating the inmate’s symptoms to
a higher-up.” Burke v. Regalado, 935 F.3d 960, 993 (10th Cir. 2019). To be sure,
Nurse Johnson could have volunteered information about the length of Mr.
Crowson’s detention that might have assisted Dr. LaRowe in reaching a diagnosis. As
19
in Sealock, however, Nurse Johnson did not act with deliberate indifference by
failing to do so. At worst, Nurse Johnson incorrectly concluded Mr. Crowson was
suffering withdrawal, based on an assumption that Mr. Crowson had obtained an
illicit substance while incarcerated, and Nurse Johnson then negligently failed to pass
along information concerning the length of Mr. Crowson’s incarceration.
***
In summary, Nurse Johnson did not violate Mr. Crowson’s Fourteenth
Amendment rights on June 25 or June 28. The referral to PA Worlton fulfilled Nurse
Johnson’s gatekeeping function by passing Mr. Crowson to the health services
administrator who was capable of making a further referral. Likewise, Nurse Johnson
was not deliberately indifferent to Mr. Crowson’s medical needs on June 28, despite
his failure to notify Dr. LaRowe of the length of Mr. Crowson’s detention. We
therefore reverse the district court’s denial of qualified immunity to Nurse Johnson.
b. Dr. LaRowe
Mr. Crowson contends that, by failing to obtain a blood test, Dr. LaRowe
exhibited deliberate indifference to Mr. Crowson’s serious medical condition. For
purposes of this analysis, we assume without deciding that Mr. Crowson has satisfied
the first requirement to overcome a claim of qualified immunity: violation of Mr.
Crowson’s constitutional right. We therefore proceed directly to the second prong of
the qualified immunity analysis: whether the violation was clearly established.9 See
9
Mr. Crowson asserts that Dr. LaRowe is a private contractor who is not
entitled to assert a defense of qualified immunity under Richardson v. McKnight, 521
20
Pearson, 555 U.S at 236 (holding courts are “permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the particular case at
hand.”).
The district court relied on our decision in Mata to conclude it was clearly
established that Dr. LaRowe’s failure to complete the blood test violated
Mr. Crowson’s constitutional rights. In doing so, the district court stated that
“Dr. LaRowe ‘did not simply misdiagnose’ Mr. Crowson, he ‘refused to assess or
diagnose [his] condition at all’ and simply assumed he was experiencing substance
withdrawals.” App., Vol. I at 216–17 (alteration in original) (quoting Mata, 427 F.3d
at 758). Dr. LaRowe argues he “is entitled to qualified immunity because no law
U.S. 399 (1997). Although Mr. Crowson concedes he did not raise this argument
before the district court, he requests we consider it as an argument for affirmance on
alternate grounds. Not only did Mr. Crowson fail to raise this argument before the
district court, his briefing on appeal treats it only perfunctorily. The entirety of his
legal argument relies on Richardson and consists of one sentence: “[T]he Supreme
Court has concluded that similarly-situated ‘private prison guards, unlike those who
work directly for the government, do not enjoy immunity from suit in a § 1983
case.’” Appellee Br. at 38 (quoting Richardson, 521 U.S. at 412). Mr. Crowson’s
one-sentence argument not only overlooks the limited nature of the Supreme Court’s
holding in Richardson, but also does not address the rule outlined in Richardson and
reiterated in Filarsky v. Delia, 566 U.S. 377 (2012), for determining when a private
party may assert a qualified immunity defense. Mr. Crowson also does not
acknowledge that other circuits are split on whether private health care providers
hired by the state may assert a qualified immunity defense. If we were to consider
this argument, the result would be deepening a circuit split without the benefit of
adequate adversarial briefing on the issue. We therefore decline to reach this
argument. See Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004).
21
characterized misdiagnosis of an inmate’s substance withdrawal as a constitutional
violation at the time he treated [Mr.] Crowson.” LaRowe Reply at 19.
In the district court’s view, Dr. LaRowe failed to assess or diagnose
Mr. Crowson because Dr. LaRowe did not ensure complete diagnostic testing before
prescribing medication for withdrawal. The district court reasoned that Dr. LaRowe
“did not misdiagnose Mr. Crowson, but rather failed to conduct diagnostic tests that
would have informed him of Mr. Crowson’s medical needs” because, “despite vague
and nonspecific symptoms, he prescribed medication based on his unverified
suspicion that Mr. Crowson was suffering from withdrawals.” App., Vol. I at 215–
216. We do not reconsider the facts found by the district court, but we are not bound
by the district court’s conclusion that those facts amounted to a failure to diagnose
rather than a misdiagnosis as a matter of law.
Although Dr. LaRowe failed to obtain complete diagnostic testing, he
ultimately prescribed medication to treat withdrawal. Thus, Dr. LaRowe apparently
determined Mr. Crowson’s symptoms were caused by withdrawal, and prescribed
medication to treat that condition. Although Dr. LaRowe’s diagnosis would have
been better informed by the blood test, we cannot conclude that Dr. LaRowe failed to
make a diagnosis at all.
The question presented, then, is whether it was clearly established that
reaching a diagnosis without blood test results violated the plaintiff’s rights where
the plaintiff’s symptoms were consistent with either withdrawal or encephalopathy.
For law to be clearly established, “[t]he precedent must be clear enough that every
22
reasonable official would interpret it to establish the particular rule the plaintiff seeks
to apply.” Brown v. Flowers, 974 F.3d 1178, 1184 (10th Cir. 2020) (alteration in
original) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)). “But
even when such a precedent exists, subsequent [controlling] cases may conflict with
or clarify the earlier precedent, rendering the law unclear.” Apodaca v. Raemisch,
864 F.3d 1071, 1076 (10th Cir. 2017). When “the question is within the realm of
reasonable debate,” the law is not clearly established. Id. at 1078.
The facts of this case fall between two lines of precedent. On the one hand, “[a]
medical decision not to order an X-ray, or like measures, does not represent cruel and
unusual punishment[;] [a]t most it is medical malpractice.” Estelle v. Gamble, 429
U.S. 97, 107 (1976). If he had never ordered it, then, Dr. LaRowe’s failure to obtain a
blood test would be at most medical malpractice. See id. Similarly, if Dr. LaRowe
had treated Mr. Crowson for withdrawal based on vague, nonspecific symptoms, that
alone would not be enough to prove deliberate indifference. See Self v. Crum, 439
F.3d 1227, 1234 (10th Cir. 2006) (“Where a doctor faces symptoms that could
suggest either indigestion or stomach cancer, and the doctor mistakenly treats
indigestion, the doctor’s culpable state of mind [i.e., deliberate indifference] is not
established even if the doctor’s medical judgment may have been objectively
unreasonable.”).
On the other hand, in Mata we concluded that a nurse who did a physical exam
and performed an EKG that produced normal results before sending an inmate away
was not deliberately indifferent because she “made a good faith effort to diagnose
23
and treat” the inmate. Mata, 427 F.3d at 760–61. Mata establishes that a medical
professional faced with symptoms of a serious medical condition must make some
effort to assess and treat the patient. See Quintana, 973 F.3d at 1033 (“[I]t [is] clearly
established that when a detainee has obvious and serious medical needs, ignoring
those needs necessarily violates the detainee’s constitutional rights.”). But Mata does
not require a medical professional to perform any diagnostic testing, let alone any
specific diagnostic testing, to avoid liability.
Here, Dr. LaRowe ordered diagnostic testing, was informed the testing could
not be completed, and did not make further attempts to test. Instead, he began
treatment for what he deemed the likely cause of Mr. Crowson’s symptoms. Even
where the blood test would have provided information that could have better
informed the diagnosis, the parties do not cite, and we have not found, any decision
from the Supreme Court or this court that would have put Dr. LaRowe on notice that
his conduct violated Mr. Crowson’s Fourteenth Amendment rights.
Mr. Crowson points to our decision in Mata and asserts that an official can be
liable if he “declined to confirm inferences of risk that he strongly suspected to
exist.” Mata, 427 F.3d at 752 (quoting Farmer, 511 U.S. at 843 n.8). But there is
nothing that suggests Dr. LaRowe strongly suspected Mr. Crowson was suffering
from encephalopathy. To the contrary, Dr. LaRowe suspected Mr. Crowson was
suffering from withdrawal, as is indicated by the medication he prescribed. And, like
the inmate in Estelle, Mr. Crowson’s symptoms were consistent with either diagnosis.
24
To conclude Mata put all reasonable doctors on notice that failing to obtain a
test result violates an inmate’s rights would place the notice at too high a level of
generality. As discussed, Mata does not require testing and, consequently,
Dr. LaRowe’s conduct falls into a grey area created by the holdings of Estelle and
Self on the one hand and Mata on the other. We therefore cannot conclude that every
reasonable official would have known it was a violation of Mr. Crowson’s
constitutional rights to proceed with a diagnosis in the absence of blood test results.
Rather, it fell within the realm of reasonable debate. See Apodaca, 864 F.3d at 1078.
***
For purposes of our analysis, we assume Dr. LaRowe violated Mr. Crowson’s
Fourteenth Amendment rights by treating him for withdrawal without first obtaining
the results from a previously ordered blood test. Because we have found no decisions
from the Supreme Court or this court that clearly establish the unconstitutionality of
such conduct, we conclude Dr. LaRowe is entitled to qualified immunity, and we
reverse the district court’s denial of summary judgment.
B. Institutional Defendant
Mr. Crowson also claims the County is liable because it “failed to enact
adequate policies and properly train its nurses despite relying on the nurses to
provide the bulk of medical care.” Appellee Br. at 49. To state a claim against a
municipal entity in this context, “plaintiffs must allege facts showing: (1) an official
policy or custom, (2) causation, and (3) deliberate indifference.” Quintana, 973 F.3d
at 1034. Under our precedent, any of the following constitute an official policy:
25
(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized by written
law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; (3) the decisions of
employees with final policymaking authority; (4) the ratification by such
final policymakers of the decisions—and the basis for them—of
subordinates to whom authority was delegated subject to these
policymakers’ review and approval; or (5) the failure to adequately train or
supervise employees, so long as that failure results from deliberate
indifference to the injuries that may be caused.
Waller v. City & County of Denver, 932 F.3d 1277, 1283 (10th Cir. 2019) (quotation
marks omitted).
Mr. Crowson argued to the district court that the County was “deliberately
indifferent to the risk of having nurses who were not trained and did not have policies
to follow.” App., Vol. I at 137. The district court treated this issue as encompassing
both a failure-to-train claim and a systemic-failure claim: “Mr. Crowson alleges that
Washington County is liable for its failure to train Jail nurses—specifically, for its
failure to promulgate written policies for Jail nurses to follow,” and cited the proper
standard for failure to train. App., Vol. I at 218. The district court found that the
“County’s healthcare policies at the time of Mr. Crowson’s incarceration seem
severely lacking.” App., Vol. I at 218. It further noted that there were “no written
policies in the record,” and that the Jail’s general practices for providing medical care
to inmates had to be pieced together from the deposition testimony of various
medical personnel. App., Vol. I at 218–19. The district court also considered Jail
policy that required Dr. LaRowe to rely heavily on the Jail’s deputies and nurses
because although he “was responsible for diagnosing and treating inmates, [he] only
26
visited the Jail one or two day[s] a week.” App., Vol. I at 219. These deficiencies
were compounded by the practices at the Jail. The district court observed:
When an inmate was placed in a medical observation cell, Jail deputies
observed inmates at least once every thirty minutes, and would notify a Jail
nurse when “this guy is not acting right or this guy is having problems.”
(Dep. of Michael Johnson at 32:4–10 (ECF No. 76-7).) Jail nurses—who,
by law, could not diagnose inmates—generally spent five to ten minutes
with the inmate once every twelve-hour shift, to take the inmate’s vital
signs and conduct follow-up checks. If an inmate exhibited symptoms of a
cognitive problem (as did Mr. Crowson), the nurse would inform
Dr. LaRowe and PA Worlton, who, in addition to his role as the Jail’s
health services administrator, handles mental health care.
App., Vol. I at 219.
The district court found that the Jail’s practices left the nurses “largely to their
own devices.” App., Vol. I at 219. This was particularly true as to brain injuries because
the “Jail has no guidelines or written policies” for assessing them. App., Vol. I at 219.
While Dr. LaRowe did provide training for alcohol withdrawal, Nurse Johnson “could
not remember a protocol or standards for assessing withdrawal symptoms,” and PA
Worlton testified the Jail did not have a written policy governing placement of inmates in
observation cells for detox or evaluation of the inmate thereafter. App., Vol. I at 219. The
district court also found it significant that Dr. LaRowe was unaware of any Jail policy for
nurses to follow in determining when an inmate should be transported to the hospital.
App., Vol. I at 219. From this evidence, the district court found: “Remarkably, it appears
from the record that Washington County failed to promulgate written policies pertaining
to the Jail’s core healthcare functions.” App., Vol. I at 220. And it further concluded that
a reasonable jury could find that Mr. Crowson’s injuries were “an obvious consequence
27
of the County’s reliance on a largely absentee physician, and an attendant failure to
promulgate written protocols for monitoring, diagnosing, and treating inmates.” App.,
Vol. I at 220. The district court, therefore, considered the problems created both by the
failure to train and by the failure to adopt written policies.
Before we reach the merits of Mr. Crowson’s claims against the County, we
must determine whether we have jurisdiction to consider those claims in this
interlocutory appeal. We have discretion to exercise pendent appellate jurisdiction
over the County’s appeal to the extent the issues it raises are “inextricably
intertwined” with the district court’s denial of qualified immunity to the individual
defendants. See Moore, 57 F.3d at 930 (quoting Swint v. Chambers Cnty. Comm’n,
514 U.S. 35, 51 (1995)). If resolution of the collateral qualified immunity appeal
“necessarily resolves” the County’s issues on appeal, then those otherwise
nonappealable issues are “inextricably intertwined” with the appealable decision. Id.
But “if our ruling on the merits of the collateral qualified immunity appeal [would]
not resolve all of the remaining issues presented by the [County],” then we lack
jurisdiction to consider the County’s appeal. Id.
To place the analysis of our jurisdiction over the claims against the County in
context, we pause to set forth the relevant legal background.
1. Legal Background
Mr. Crowson asserts two related claims against the County: (1) failure to train
its nurses; and (2) reliance on policies and procedures that were deliberately
28
indifferent to prisoners’ medical needs. Only the first of these claims is inextricably
intertwined with the claims of the individual defendants, as we shall now explain.
In Garcia v. Salt Lake County, 768 F.2d 303 (10th Cir. 1985), we addressed a
claim for deliberate indifference against a municipality under circumstances like the
present. There, the family of a pretrial detainee who died while housed in the Salt
Lake County Jail sued various officials and the county. Id. at 305. According to the
plaintiffs, the detainee’s death was the result of official policies and practices of the
county that were deliberately indifferent to the serious medical needs of persons
confined in the Salt Lake County Jail. Id. A panel of this court allowed the jury
verdict against the county to stand despite the absence of individual liability as to any
county employee. Id. The panel concluded that where the county’s policy, or lack of
policies, evinces deliberate indifference, the county can be liable even in the absence
of individual liability by any county actor. See id. at 306–07. We explained:
“Deliberate indifference to serious medical needs may be shown by proving there are
such gross deficiencies in staffing, facilities, equipment, or procedures that the
inmate is effectively denied access to adequate medical care.” Id. at 308. And even
where “the acts or omissions of no one employee may violate an individual’s
constitutional rights, the combined acts or omissions of several employees acting
under a governmental policy or custom may violate an individual’s constitutional
rights.” Id. at 310.
There is some tension in our subsequent caselaw with respect to this
conclusion in Garcia. In multiple cases we have made statements that suggest a claim
29
against a municipality may never lie where none of the municipality’s individual
officers are liable under § 1983. When examined more carefully, however, most of
these decisions can be harmonized with the Supreme Court’s and our prior decisions.
Demarcating the precise dividing line in our precedent, moreover, demonstrates why
our jurisdiction in this posture extends to only one of Mr. Crowson’s theories of
municipal liability.
To frame our prior decisions, it is important to begin with the Supreme Court’s
direction in Collins v. City of Harker Heights that “proper analysis requires us to
separate two different issues when a § 1983 claim is asserted against a municipality:
(1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if so,
whether the city is responsible for that violation.” 503 U.S. 115, 120 (1992). The
absence of an affirmative answer to either of these questions is fatal to a claim
against the municipality.
With respect to the first question, a claim under § 1983 against either an
individual actor or a municipality cannot survive a determination that there has been
no constitutional violation. Id. at 130 (affirming dismissal of action where none of
plaintiff’s allegations set forth a constitutional violation). In Washington v. Unified
Government of Wyandotte County, for example, we acknowledged that “a
municipality may be liable under § 1983 where the plaintiff identifies an
unconstitutional policy that caused the claimed injury.” 847 F.3d 1192, 1197 (10th
Cir. 2017). However, once we concluded the plaintiff had failed to show any
constitutional violation, we affirmed the district court’s decision rejecting the claims
30
against all defendants, including the county. Id. at 1197–1203; see also Lindsey v.
Hyler, 918 F.3d 1109, 1116–17 (10th Cir. 2019) (rejecting plaintiffs’ failure-to-train
claim against municipality upon concluding there was no constitutional violation);
Jennings v. City of Stillwater, 383 F.3d 1199, 1205 n.1 (10th Cir. 2004) (rejecting
claims against city after affirming summary judgment for individual actors due to the
lack of any constitutional violation); Livsey v. Salt Lake County, 275 F.3d 952, 958
(10th Cir. 2001) (rejecting claims against county because the individual officer had
not violated constitutional right to privacy or substantive due process of surviving
wife and children); Trigalet v. City of Tulsa, 239 F.3d 1150, 1152, 1154–55 (10th
Cir. 2001) (rejecting claims against county for failure to train and failure to adopt
appropriate policies where individual officers had not violated the constitutional
rights of driver killed by suspect fleeing police).
We turn next to the second question identified in Collins: whether the
municipality is responsible for the constitutional violation. Sometimes the
municipality’s failures are the driving force behind a constitutional violation by a
specific municipal employee. A failure-to-train claim is an example of these types of
§ 1983 claims against municipalities.
In Williams v. City & County of Denver, we “emphasize[d] the distinction
between cases in which a plaintiff seeks to hold a municipality liable for failing to
train an employee who as a result acts unconstitutionally, and cases in which the
city’s failure is itself an unconstitutional denial of substantive due process.” 99 F.3d
1009, 1019 (10th Cir. 1996), reh’g en banc granted on other grounds, opinion
31
vacated, 140 F.3d 855 (10th Cir. 1997), reh’g en banc sub nom. Williams v. Denver,
153 F.3d 730 (10th Cir. 1998) (unpublished).10 We explained that a city may not be
held liable for failure to train “when there has been no underlying constitutional
violation by one of its employees.” 99 F.3d at 1018. By contrast, where the claim is
premised upon a formally promulgated policy, well-settled custom or practice, or
final decision by a policymaker, we held “the inquiry is whether the policy or custom
itself is unconstitutional so as to impose liability on the city for its own
unconstitutional conduct in implementing an unconstitutional policy.” Id.
Although Williams has a complex subsequent history, nothing in that history
casts doubt on the determination that a failure-to-train claim may not be maintained
without a showing of a constitutional violation by the allegedly un-, under-, or
improperly-trained officer. See 99 F.3d at 1018; see also Myers v. Okla. Cnty. Bd. of
Cnty. Comm’rs, 151 F.3d 1313, 1317 (10th Cir. 1998) (stating that “failure[-]to[-
]train claims . . . require[] a predicate showing that the officers did in fact” violate
10
Although the opinion in Williams was vacated, it was not reversed by the en
banc court. See 153 F.3d 730 (10th Cir. 1998) (unpublished). Thus, its expressions on
the merits may have at least persuasive value. See Los Angeles County v. Davis, 440
U.S. 625, 646 n.10 (1979) (Powell, J., dissenting) (explaining, in regard to a Ninth
Circuit judgment vacated by the Supreme Court, that “the expressions of the court
below on the merits, if not reversed, will continue to have precedential weight and,
until contrary authority is decided, are likely to be viewed as persuasive authority if
not the governing law of the Ninth Circuit”); cf. Rio Grande Silvery Minnow v.
Bureau of Reclamation, 601 F.3d 1096, 1133 (10th Cir. 2010) (explaining that “since
the district court’s opinion[s] will remain ‘on the books’ even if vacated, albeit
without any preclusive effect, future courts [and litigants] will be able to consult
[their] reasoning” (alterations in original) (quoting Nat’l Black Police Ass’n v.
District of Columbia, 108 F.3d 346, 354 (D.C. Cir. 1997))).
32
the decedent’s rights). Thus, under Williams, our conclusion that the claim against
Nurse Johnson fails on summary judgment necessarily also defeats the failure-to-
train claim against the County, which is premised only upon the County’s failure to
train its nurses.
Where the claim against the municipality is not dependent upon the liability of
any individual actor, however, our precedent is less clear. Recall that in Garcia, we
held: “Deliberate indifference to serious medical needs may be shown by proving
there are such gross deficiencies in staffing, facilities, equipment, or procedures that
the inmate is effectively denied access to adequate medical care.” 768 F.2d at 308.
More recently, however, we reached a contrary conclusion. See Martinez v. Beggs,
563 F.3d 1082 (10th Cir. 2009).
In Martinez, an estate brought § 1983 claims against individual jailers and
against the Sheriff acting in his official capacity for the county after a man died in
police custody. Id. at 1084. The decedent’s estate alleged the individual defendants
were deliberately indifferent to the decedent’s serious medical needs, resulting in a
violation of his constitutional rights. Id. We affirmed the district court’s summary
judgment in favor of the individual defendants because there was no evidence they
had subjective knowledge of the decedent’s serious medical condition. Id. at 1090–
91. And therefore, we held the Sheriff acting in his official capacity could not be
“liable for the actions of the officers he trained and supervised” in the absence of a
constitutional violation by any of his officers. Id. at 1091.
33
So far, then, Martinez tracks our precedent. But next, the panel considered the
estate’s claim that even “if no single individual county employee is found liable, the
county may still be liable for a ‘systemic injury’ caused by ‘the interactive behavior
of several government officials, each of whom may be acting in good faith.’” Id. at
1092. We rejected that claim, stating, “[t]o the extent this argument suggests that the
county can be liable, even if no individual government actor is liable, it is precluded
by our prior precedent.” Id.
In support, we cited Olsen v. Layton Hills Mall, 312 F.3d 1304 (10th Cir.
2002). Although Olsen did acknowledge that municipalities could not be held liable
absent an underlying violation by their officers, id. at 1317–18, the claim asserted in
that case was for failure to train rather than for a systemic lack of policies and
procedures. Compare Garcia, 768 F.2d at 310. And in Olsen, we ultimately reversed
the grant of summary judgment for the officer while affirming the grant of summary
judgment for the city on a wholly different ground—that the plaintiff had not
produced evidence of deliberate indifference on the city’s part. 312 F.3d at 1312–13,
1317–19.
In Martinez, however, we went beyond Olsen in holding that a § 1983
deliberate indifference claim against a municipality based on systemic failures cannot
survive in the absence of a constitutional violation by at least one individual
defendant. 563 F.3d at 1092. That holding does not turn on whether the injury was
caused by a constitutional violation for which the municipality was responsible, as
34
mandated by Collins. See 503 U.S. at 120. Instead, it directs that no claim against the
municipality can prevail in the absence of a liable individual.
We are unable to reconcile the holdings in Martinez and Garcia. However,
Garcia is the earlier published decision, and “when faced with an intra-circuit
conflict, a panel should follow earlier, settled precedent over a subsequent deviation
therefrom.” Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996). This rule does
not hold if our earlier precedent has been reconsidered. See id. But we have not
overruled Garcia; to the contrary, we have relied on it recently. See Quintana, 973
F.3d at 1033–34 (marshaling Garcia to reject the district court’s conclusion that a
§ 1983 claim premised on deficient medical intake protocol could not lie absent “a
viable claim against an individual defendant,” because it “does not square with
circuit precedent holding that municipal liability under Monell may exist without
individual liability”). Furthermore, we are not the only circuit to cite Garcia recently
in the context of this theory of municipal liability. See Griffith v. Franklin County,
975 F.3d 554, 581–82 (6th Cir. 2020) (expressing willingness to entertain Garcia’s
theory of municipal liability, but declining to decide the issue because plaintiff failed
to establish a constitutional violation); Barnett v. MacArthur, 956 F.3d 1291, 1301–
02 (11th Cir. 2020) (allowing § 1983 claim against county to proceed despite a jury
finding that the individual officer did not violate the plaintiff’s constitutional rights,
while determining Garcia’s theory of municipal liability to be “not a controversial
concept”), petition for cert. filed sub nom Lemma v. Barnett, No. 20-595; Horton by
Horton v. City of Santa Maria, 915 F.3d 592, 604 & n.11 (9th Cir. 2019) (holding
35
that city could be liable for deliberate indifference to safety of pretrial detainee even
where no individual officer had violated a clearly established constitutional right).
We are also unconvinced that subsequent pronouncements from the Supreme
Court permit us to depart from our published decision in Garcia. See Haynes, 88 F.3d
at 900 n.4. We decided Garcia in 1985. The following year, the Supreme Court held
that “[i]f 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.” City of Los Angeles
v. Heller, 475 U.S. 796, 799 (1986). But in City of Los Angeles v. Heller, the issue
was whether damages could be awarded “against a municipal corporation based on
the actions of one of its officers when in fact the jury has concluded that the officer
inflicted no constitutional harm.” Id.
The subsequent development of our municipal liability caselaw confirms that
Heller did not undermine Garcia. In Apodaca v. Rio Arriba County Sheriff’s
Department, we cited Heller in holding, “[w]hen there is no underlying constitutional
violation by a county officer, there cannot be an action for failing to train or
supervise the officer.” 905 F.2d 1445, 1447 (10th Cir. 1990) (emphasis added). Three
years later, we stated this rule more broadly: “A municipality may not be held liable
where there was no underlying constitutional violation by any of its officers.” Hinton
v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993) (citing Heller, 475 U.S. at
799). But again, we made this statement in the context of the city’s failure to train
“regarding, or to adopt any written policies regulating, the use of force.” Id. at 777.
36
Relying on Heller, we explained that “where a municipality is ‘sued only because [it
was] thought legally responsible’ for the actions of its officers, it is ‘inconceivable’
to hold the municipality liable if its officers inflict no constitutional harm, regardless
of whether the municipality’s policies might have ‘authorized’ such harm.” Id. at 782
(alteration in original) (quoting Heller, 475 U.S. at 799). “As in Heller, Hinton’s
excessive force claim against the City of Elwood seeks to hold the city liable solely
because of the actions of its individual officers.” Id.
As previously discussed, in Collins the Supreme Court recognized a type of
§ 1983 claim against a municipality that may survive even in the absence of a
constitutional violation by a municipal employee. See 503 U.S. 115. There, the
widow of a municipal employee who died after entering a manhole to service a sewer
line, sued the city, claiming the decedent “had a constitutional right to be free from
unreasonable risks of harm to his body, mind and emotions and a constitutional right
to be protected from the city of Harker Heights’ custom and policy of deliberate
indifference toward the safety of its employees.” Id. at 117. The widow’s
constitutional claim was based on “the substantive component of the [Due Process]
Clause that protects individual liberty against ‘certain government actions regardless
of the fairness of the procedures used to implement them.’” Id. at 125 (quoting
Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Court noted this claim fairly
advanced two theories: “that the Federal Constitution imposes a duty on the city to
provide its employees with minimal levels of safety and security in the workplace, or
that the city’s ‘deliberate indifference’ to [the decedent’s] safety was arbitrary
37
government action that must ‘shock the conscience’ of federal judges.” Id. at 126.
After rejecting the first theory as inconsistent with substantive due process precedent,
the Court rejected the widow’s second theory because her claim was “analogous to a
fairly typical state-law tort claim,” id. at 126–128. As such, it did not meet the
requirement of arbitrary government action that shocks the conscience. Id.
Importantly, the analysis in Collins was not driven by the absence of a finding of
liability with respect to any individual city employee.
We dissected the meaning of Collins for § 1983 municipal liability in
Williams. See 99 F.3d 1009. There, an estate sued the City and County of Denver for
the death of a motorist as a result of a collision with a police officer who sped
through an intersection against the light and without using a siren. Id. at 1012. The
estate brought a failure-to-train claim, as well as a substantive due process claim
based solely on the city’s own actions. Id. at 1018. “In light of Collins,” a panel of
this court held a municipality “may be liable for its own unconstitutional policy even
if [the individual defendant] is ultimately exonerated,” by drawing a “distinction
between cases in which a plaintiff seeks to hold a municipality liable for failing to
train an employee who as a result acts unconstitutionally, and cases in which the
city’s failure is itself an unconstitutional denial of substantive due process.” Id. at
1019. We further held the standard for a substantive due process violation is whether
the conduct was conscience-shocking; mere recklessness is insufficient. Id. at 1015.
The en banc court granted the municipal defendants’ petition for rehearing to
address: (1) the proper standard for determining whether the conduct of the officer
38
violated the decedent’s constitutional rights, (2) whether under that standard the
constitutional determination should be made by a judge or a jury, and (3) whether the
municipality could be found liable “by its own conduct or policies in hiring and/or
failing to train [the officer], even if the officer’s conduct did not violate the
constitutional rights of decedent.” Williams v. City & County of Denver, 140 F.3d
855, 855 (10th Cir. 1997).
The rehearing in Williams was subsequently abated pending the Supreme
Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), which
directly considered whether the substantive due process analysis in Williams was
correct. Id. at 839–840 (citing Williams as part of the circuit split the case was
accepted on certiorari to resolve). In Lewis, the Court explained it had “always been
reluctant to expand the concept of substantive due process.” Id. at 842 (quoting
Collins, 503 U.S. at 125). Thus, “[w]here a particular Amendment provides an
explicit textual source of constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims.” Id. (alteration
in original) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality
opinion)). Where such explicit protection is not provided by another amendment,
however, “the substantive component of the Due Process Clause is violated by
executive action only when it ‘can properly be characterized as arbitrary, or
conscience shocking, in a constitutional sense.’” Id. at 847 (quoting Collins, 503 U.S.
at 128). Thus, the Court’s decision in Lewis is consistent with the substantive due
39
process standard we applied in Williams. Id. at 839–40 (reversing a decision on the
other side of a circuit split from Williams).
While the Williams rehearing was pending, the Supreme Court also decided
Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997).
There, the Court ruled that to hold a municipality liable under § 1983, “a plaintiff
must show that the municipal action was taken with the requisite degree of
culpability and must demonstrate a direct causal link between the municipal action
and the deprivation of federal rights.” Id. at 404. In response to these intervening
Supreme Court decisions, we vacated the district court’s judgment in Williams and
remanded for the district court to consider their effect. Williams v. Denver, 153 F.3d
730, 1998 WL 380518, at *1 (10th Cir. June 26, 1998) (unpublished).
We returned to the relevant question in Trigalet v. City of Tulsa. See 239 F.3d
1150. There, “we consider[ed] whether a municipality can be held liable for the
actions of its employees if those actions do not constitute a violation of a plaintiff’s
constitutional rights.” Id. at 1154. We held “even if it could be said that Tulsa’s
policies, training, and supervision were unconstitutional, the City cannot be held
liable where, as here, the officers did not commit a constitutional violation.” Id. at
1155–56.
Under Trigalet, there is no question that where the actions of a municipality’s
officers do not rise to the level of a constitutional violation and the claim against the
municipality is based on it serving as the driving force behind those actions, liability
cannot lie. But the question here, and in Garcia, is different: whether, even where no
40
individual action by a single officer rises to a constitutional violation, a municipality
may be held liable where the sum of actions nonetheless violates the plaintiff’s
constitutional rights. Garcia answers that question in the affirmative. And the
Supreme Court’s subsequent decision in Heller does not cast doubt on Garcia; in
Heller the theory of municipality liability was predicated on the actions of one officer
who was determined not to have violated the plaintiff’s constitutional rights.
Because Garcia is not undermined by a subsequent Supreme Court decision,
and it also predates Martinez, Garcia is controlling here. See Haynes, 88 F.3d at 900
n.4.
Moreover, assuming the expansion of the Collins analysis outside the
substantive due process context is appropriate, the reasoning of Garcia remains
sound. A core principle of Monell liability is that municipal entities are liable for
only their own actions and not vicariously liable for the actions of their employees.
See Schneider v. City of Grand Junction Police Dep’t, 717 F.3d 760, 770 (10th Cir.
2013). Because municipalities act through officers, ordinarily there will be a
municipal violation only where an individual officer commits a constitutional
violation. But, as in Garcia, sometimes the municipal policy devolves responsibility
across multiple officers. In those situations, the policies may be unconstitutional
precisely because they fail to ensure that any single officer is positioned to prevent
the constitutional violation. Where the sum of multiple officers’ actions taken
pursuant to municipal policy results in a constitutional violation, the municipality
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may be directly liable. That is, the municipality may not escape liability by acting
through twenty hands rather than two.
The general rule in Trigalet is that there must be a constitutional violation, not
just an unconstitutional policy, for a municipality to be held liable. In most cases, this
makes the question of whether a municipality is liable dependent on whether a
specific municipal officer violated an individual’s constitutional rights. But Garcia
remains as a limited exception where the alleged violation occurred as a result of
multiple officials’ actions or inactions.
With this legal background in place, we now proceed to the question of
whether our resolution of the claims against the individual defendants forecloses the
County’s liability. We conclude that it does with respect to the failure-to-train claim,
but not as to the theory based on a systemic failure of medical policies and
procedures. Accordingly, we reverse the district court’s denial of summary judgment
to the County on the failure-to-train claim, but we lack jurisdiction over the claim
against the County based on its allegedly deficient policies and procedures.
2. Dr. LaRowe
Recall that we did not decide whether Dr. LaRowe violated Mr. Crowson’s
constitutional rights, instead concluding that even if we assume a violation, the right
was not clearly established. Leaving the question of a constitutional violation by
Dr. LaRowe unresolved does not impact our jurisdiction over the claims against the
County on interlocutory appeal because Mr. Crowson’s failure-to-train claim respects
only the nurses employed at the Jail. Mr. Crowson does not allege the County failed
42
to train Dr. LaRowe. And to the extent Mr. Crowson argues the County’s policies
constituted deliberate indifference to his rights, that claim does not depend upon an
individual employee (or contractor, in Dr. LaRowe’s case) having independently
violated his rights. Accordingly, neither of the two claims against the County are
inextricably intertwined with the claim against Dr. LaRowe.
3. Nurse Johnson
We have concluded Nurse Johnson did not violate Mr. Crowson’s
constitutional rights. As a result, we have pendent appellate jurisdiction only if we
also conclude Mr. Crowson’s claims against the County are dependent upon
Nurse Johnson violating his constitutional rights.11 Id. Put another way, if
Mr. Crowson’s claims against the County can succeed despite our holding that
Nurse Johnson did not violate his rights, we lack jurisdiction over those claims. See
id.
The County contends that to succeed on his municipal liability claims,
Mr. Crowson must “show an underlying constitutional violation by at least one
Washington County employee and that the underlying constitutional violation was
directly caused by a county policy.” County Br. at 48. But as previously explained,
we agree with Mr. Crowson that even if we conclude Nurse Johnson and Dr. LaRowe
“did not violate the Constitution individually, . . . their combined acts may be
11
We lack jurisdiction to consider the County’s attacks on the other elements
of either Monell claim. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir.
1995).
43
sufficient for Monell liability” such that Mr. Crowson still has a claim for municipal
liability irrespective of whether Nurse Johnson violated his rights. Appellee Br. at 48.
In a similar vein, Mr. Crowson argues the claims against the County “depend[] on the
actions of policymakers” and their alleged “systemic failures” which are distinct
“from the claims against the individual defendants.” Appellee Br. at 48–49.
Mr. Crowson does assert a failure-to-train claim that, for the reasons discussed
above, is dependent upon a predicate violation by Nurse Johnson. This claim is
therefore inextricably intertwined with our decision that Nurse Johnson did not
violate Mr. Crowson’s rights. Accordingly, we exercise jurisdiction over the failure-
to-train claim and reverse. But Mr. Crowson also asserts a claim arising out of the
County’s systemic failure. For the reasons explained above, we lack jurisdiction over
this claim.
***
Our conclusion that Nurse Johnson did not violate Mr. Crowson’s
constitutional rights does not completely resolve Mr. Crowson’s claims against the
County. The absence of a constitutional violation by Nurse Johnson forecloses
Mr. Crowson’s failure-to-train claim. However, it does not resolve the broader claim
that the County’s policy of failing to properly train nurses and guards, combined with
its policy of relying on a largely absentee physician, evidenced deliberate
indifference to Mr. Crowson’s serious medical condition. Because this claim is not
inextricably intertwined with the claim against any individual defendant, we lack
jurisdiction over it in this interlocutory appeal. We therefore dismiss the County’s
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appeal with respect to the systemic failure claim, and we remand for proceedings
consistent with this opinion. In doing so, we express no view as to the merits of this
claim. We simply decide we lack jurisdiction to consider it.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s denial of
summary judgment to Nurse Johnson and Dr. LaRowe. We REVERSE the district
court’s denial of summary judgment to the County on the failure-to-train theory of
liability, DISMISS the County’s appeal for lack of appellate jurisdiction as to the
systemic failure theory, and REMAND for further proceedings consistent with this
opinion.
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Crowson v. Washington County State, Utah
Combined Opinion