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DUSTIN LANCE v. CHRIS MORRIS, Sheriff of Pittsburg County, Oklahoma, in his official capacity; MIKE SMEAD, in his individual capacity; DAKOTA MORGAN, in his individual capacity EDWARD MORGAN, in his individual capacity; DANIEL HARPER, in his individual capacity and MCALESTER REGIONAL HEALTH CENTER AUTHORITY, d/b/a McAlester Regional Hospital; BOARD OF COUNTY COMMISSIONERS OF PITTSBURG COUNTY, OKLAHOMA; STEPHEN SPARKS, in his individual capacity; JOEL KERNS, former Sheriff of Pittsburg County, in his individual capacity
Case Number: 19-7050
Judge: Robert Edwin Bacharach
Court: UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
On appeal from The United States District Court for the Eastern District of Oklahoma - Muskogee
Plaintiff's Attorney: United States Attorney’s Office
Denver, CO - Criminal defense lawyer represented defendant with a violation of the Fourteenth Amendment’s Due Process Clause.
The parties attribute the priapism to a pill that Mr. Lance obtained
from another inmate. He took the pill on a Thursday evening and awoke the
next morning with an erection that would not go away.
After awaking, Mr. Lance used his cell’s intercom to call Edward
Morgan, admitting consumption of another person’s pill and stating that
the pill had caused an erection that would not go away.
According to the plaintiff, Edward Morgan responded by stating that
he would put Mr. Lance in lockdown for taking the pill in violation of jail
policy. But no one came to put Mr. Lance in lockdown, so he called again;
this time, he requested medical attention.
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Over the next three days, Mr. Lance made more requests for medical
care, reporting a persistent erection, an intense pain, and a need for
2. Mr. Lance’s Trip to the Hospital After Three Days of Intense
The three-day period ended on a Monday when the detention center’s
nurse came on duty. She examined Mr. Lance’s engorged penis and saw
that it was purple and might be permanently damaged. Alarmed, she asked
jail guards to take Mr. Lance to a local hospital. At the hospital, an
emergency physician examined Mr. Lance and provided medication. But
the medication did not help, and the physician said that Mr. Lance needed
to go to another hospital about 90 miles away.
Rather than go to the second hospital, the guards returned Mr. Lance
to the McAlester jail. When they returned, jail officials obtained a judicial
order releasing Mr. Lance on his own recognizance. His father came to the
jail that afternoon and later drove Mr. Lance to the second hospital,
arriving at about 7:15 p.m.
After they arrived, a urologist operated. But Mr. Lance suffered
permanent injuries, which will probably include impotence for the rest of
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3. Mr. Lance’s Claims Against the Sheriff and Jail Guards
For the claims against the jail guards, Mr. Lance alleged denial of
medical care under the Fourteenth Amendment’s Due Process Clause based
on a failure to timely respond to requests for medical treatment. For the
claims against the sheriff, Mr. Lance alleged the adoption of policies
violating his constitutional right to medical treatment for serious medical
The jail guards and sheriff moved for summary judgment. The sheriff
denied a constitutional violation, and the four jail guards urged qualified
immunity. The district court granted the motions for summary judgment.
4. The Standard of Review
For these rulings, we engage in de novo review. Talley v. Time, Inc.,
923 F.3d 878, 893 (10th Cir. 2019). Summary judgment is required when
“the movant shows that there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law.” Estate of
Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (quoting Fed. R. Civ.
P. 56(a)). We consider the evidence in the light most favorable to Mr.
Lance and draw all reasonable inferences in his favor. Id.
5. The Four Jail Guards’ Defense of Qualified Immunity
Drawing reasonable inferences in favor of Mr. Lance, we consider
whether he created a genuine issue of material fact on qualified immunity
for the jail guards.
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A. The Elements of Qualified Immunity
Because the jail guards asserted qualified immunity, the burden fell
on Mr. Lance. Estate of Ceballos v. Husk, 919 F.3d 1204, 1212–13 (10th
Cir. 2019). To meet that burden, Mr. Lance needed to show the violation of
a constitutional or statutory right and the clearly established nature of that
right. Donahue v. Wihongi, 948 F.3d 1177, 1186 (10th Cir. 2020).
B. Violation of the Constitutional Right to Medical Care
The Fourteenth Amendment’s Due Process Clause entitles pretrial
detainees to the same standard of medical care that the Eighth Amendment
requires for convicted inmates. Strain v. Regalado, 977 F.3d 984, 989
(10th Cir. 2020). Under that standard, jail guards cannot act with
deliberate indifference to a pretrial detainee’s serious medical needs. Id.
To establish a violation of this right, a pretrial detainee must satisfy
objective and subjective prongs of the test. Id. 2
(1) The Objective and Subjective Prongs
The objective prong is satisfied if the medical need is sufficiently
serious. Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). A medical
need is sufficiently serious if
• a physician directed further treatment after diagnosing the
2 Mr. Lance argues that Kingsley v. Hendrickson, 576 U.S. 389 (2015)
abolished the subjective component for claims of denial of due process by
denial of medical care for pretrial detainees. We recently rejected that
argument in Strain v. Regalado, 977 F.3d 984, 993 (10th Cir. 2020).
Appellate Case: 19-7050 Document: 010110466863 Date Filed: 01/19/2021 Page: 6
• the need for a doctor’s attention would be obvious to a lay
Clark v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018). Medical delays can
be sufficiently serious if they cause substantial harm, such as “permanent
loss or considerable pain.” Requena v. Roberts, 893 F.3d 1195, 1216
(10th Cir. 2018) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir.
In district court, the jail guards conceded satisfaction of the
objective prong because the priapism had constituted a sufficiently serious
medical need. 3 But the parties disagree on the subjective prong, which
turns on the defendant’s state of mind. Mata v. Saiz, 427 F.3d 745, 751
(10th Cir. 2005). To satisfy this prong, the plaintiff must show that the
• was aware of a substantial risk of serious harm and
• chose to disregard that risk.
3 Several jail guards testified that priapism is a serious medical
condition that requires treatment. For example, Mr.Smead acknowledged
“that if somebody had an erection that wouldn’t go away[,] delaying
medical care could expose that inmate to medical or bodily harm.”
Appellant’s App’x vol. II, at 593. Similarly, Mr. Dakota Morgan admitted
that a prolonged erection warrants medical attention. Appellant’s App’x
vol. III, at 631–32. And Mr. Harper admitted that “medical would need to
be called” if a detainee experienced a prolonged, painful erection.
Deposition of Daniel Harper, Lance v. Pittsburg Cty. Bd. of Cty. Comm’rs,
No. 6:17-cv-00378-RAW (E.D. Okla. 2019), ECF No. 172, Ex. 17, at 48–
Appellate Case: 19-7050 Document: 010110466863 Date Filed: 01/19/2021 Page: 7
See Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir. 2005) (aware of a
“substantial risk of serious harm” (quoting Riddle v. Mondragon, 83 F.3d
1197, 1204 (10th Cir. 1996))); Martinez v. Beggs, 563 F.3d 1082, 1089
(10th Cir. 2009) (disregards the risk). A plaintiff may prove awareness of a
substantial risk through circumstantial evidence that the risk was obvious.
Farmer v. Brennan, 511 U.S. 825, 842–43 (1994).
On this prong, the district court reached different conclusions for the
four jail guards. For Edward Morgan, the court concluded that Mr. Lance
had not satisfied the subjective prong. For three other guards (Mike Smead,
Dakota Morgan, and Daniel Harper), the court concluded that the factfinder
could reasonably infer awareness of a substantial risk of serious harm and
knowing disregard of that risk.
In this appeal, Mr. Lance argues that the district court
• erroneously assessed the evidence on Edward Morgan and
• properly analyzed the evidence involving the other guards.
In contrast, the other guards maintain that a factfinder could not
reasonably infer awareness of a substantial risk and knowing disregard of
(2) Edward Morgan
After taking the pill, Mr. Lance awoke with an erection that would
not subside. Concerned, he called the control tower. According to Mr.
Lance, Edward Morgan answered. Mr. Lance said that he had taken a pill
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and developed an erection that would not go away. But he did not complain
of pain or say that he needed to see a doctor or nurse.
Later that day, Mr. Lance made more calls to the control tower,
reporting considerable pain and asking for medical treatment. But Mr.
Lance testified that the other calls had involved other guards, and there is
no evidence that Edward Morgan had heard those calls. Because Edward
Morgan had been contacted only once and given only limited information,
the district court concluded that he had not acted with deliberate
On appeal, Mr. Lance argues that the factfinder could reasonably
infer deliberate indifference from
• jail administrators’ recommendation for sergeants, such as
Edward Morgan, to move around in the booking area and pods,
• Edward Morgan’s presence in the control tower (where he
conducted sight checks) on Friday and Saturday nights, and
• repeated calls to the tower from Mr. Lance and other detainees.
We reject these arguments, for a claim of deliberate indifference cannot be
based on speculation about what Edward Morgan might have seen or heard.
See Quintana v. Santa Fe Cty. Bd. of Comm’rs, 973 F.3d 1022, 1031 & n.3
(10th Cir. 2020); see also Self v. Crum, 439 F.3d 1227, 1235 (10th Cir.
2006) (rejecting an argument based on speculation that a defendant had a
culpable state of mind). Mr. Lance’s arguments entail only speculation
about Edward Morgan’s awareness of the condition.
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According to Mr. Lance, he had only one conversation with Edward
Morgan. In that conversation, Mr. Lance did not provide enough
information to suggest a serious medical need; and he cannot avoid
summary judgment with speculation that he or other detainees might have
had other conversations with Edward Morgan.
Apart from speculation, Mr. Lance lacked evidence about what
Edward Morgan might have seen. For example, Mr. Lance points out that
guards sometimes entered the pods. But the summary-judgment record
doesn’t contain any evidence suggesting that Edward Morgan had entered
the pods when working the late shift on Friday or Saturday night.
We addressed a similar gap in the complaint in Quintana v. Santa Fe
Cty. Bd. of Comm’rs, 973 F.3d 1022 (10th Cir. 2020). There a guard saw an
inmate who was allegedly suffering from a severe illness. Id. at 1030
(discussing the dismissal of a claim against Officer Valdo). But we upheld
the dismissal because the complaint hadn’t identified symptoms that the
guard would have seen. Id.
Here too we have only speculation that Edward Morgan might have
entered the pods and seen Mr. Lance suffering from priapism. But the
summary-judgment record contains no evidence on
• whether Edward Morgan entered the pods,
• whether he would have seen Mr. Lance, or
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• whether Edward Morgan’s observation would have reflected the
intensity or duration of Mr. Lance’s pain.
Mr. Lance also relies on Edward Morgan’s presence in the tower on
Friday and Saturday nights. For example, Mr. Lance presents statements
• he strolled the dayroom with a visible erection and
• his pain was obvious.
From the tower, Edward Morgan might have seen into the dayroom if there
had been adequate lighting. But Mr. Lance presented no evidence about
• the lighting in the dayroom during Edward Morgan’s shifts on
Friday and Saturday nights or
• Mr. Lance’s possible presence in the dayroom on Friday and
We thus conclude that Edward Morgan’s job responsibilities—
moving around the facility and conducting sight checks from the control
tower during the night shifts—do not show knowledge about Mr. Lance’s
priapism and need for treatment.
Mr. Lance also argues that Edward Morgan
• was in the tower from 11:00 on Friday night until 6:00 on
Saturday morning and
• must have received a call from Mr. Lance during that time
because Mr. Lance later testified that he had called the tower
every shift to report pain and request medical attention.
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For this argument, Mr. Lance relies on testimony about unclear log entries
and speculation that Edward Morgan entered the tower about 2:30 a.m. But
Mr. Lance admits that he talked only once with Edward Morgan and didn’t
complain of pain or ask for medical help.
Because Mr. Lance failed to satisfy the subjective prong, the district
court properly granted summary judgment to Edward Morgan.
(3) Mike Smead
On the two days after Mr. Lance took the pill, Mr. Mike Smead
worked from 6:00 a.m. to 6:00 p.m. Mr. Lance testified that
• he had told Mr. Smead about taking the pill, the existence of a
prolonged erection, and the need to see the nurse,
• he had shown his penis to Mr. Smead a couple of times and
complained about the condition whenever he saw Mr. Smead,
• Mr. Smead had seen Mr. Lance with his pants off and Mr.
Lance explained that he was tucking his pants underneath his
groin to diminish the pain when sitting down, and
• Mr. Smead had snickered when he saw Mr. Lance’s erection.
In addition to this testimony, Mr. Lance points to the nurse’s account of
her discussion with Mr. Smead on Monday. The nurse had asked Mr.
Smead why he had not reported the condition, and he responded: “I thought
he [Mr. Lance] was just playing.” Appellant’s App’x vol. II, at 565.
Mr. Smead argues that this evidence doesn’t show deliberate
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• he didn’t know when a prolonged erection would become a
• Mr. Lance hadn’t described the duration or cause of the
• there was no indication that the symptoms were alarming when
Mr. Smead had seen Mr. Lance.
But Mr. Lance satisfies the subjective prong through reports of pain, his
repeated requests for medical treatment, and other detainees’ insistence
that the need for medical attention was obvious. See McCowan v. Morales,
945 F.3d 1276, 1292 (10th Cir. 2019) (concluding that the subjective prong
was satisfied when a detainee repeatedly complained that he was in
excruciating shoulder pain and the officer disregarded the complaints for
about two hours); see also Mata v. Saiz, 427 F.3d 745, 755 (10th Cir.
2005) (concluding that a prisoner can satisfy the subjective prong through
evidence of pain caused by a delay in obtaining medical treatment).
Mr. Smead points out that he might not have recognized the severity
of Mr. Lance’s condition. But other detainees stated that Mr. Lance was
obviously continuing to suffer pain throughout the weekend. From the
other detainees’ accounts, “a factfinder [could] conclude that a [jail]
official knew of a substantial risk from the very fact that the risk was
obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994).
We addressed a similar issue in Rife v. Oklahoma Department of
Public Safety, 854 F.3d 637 (10th Cir. 2017). There a detainee alleged
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deliberate indifference to serious medical needs consisting of stomach
pain. Id. at 641–42, 652. The guards argued that they hadn’t known of the
pain because the detainee did not complain. Id. at 652. But another
detainee stated under oath that the plaintiff had groaned loudly, had
repeatedly complained, and had displayed obvious pain. Id. Given this
sworn account, we reversed the award of summary judgment to the jail
guards even though they had denied knowledge of the plaintiff’s pain. Id.
The same is true here because
• three detainees stated under oath that Mr. Lance had obviously
experienced pain throughout the weekend and
• Mr. Lance testified that he had reported his pain to Mr. Smead.
Given these sworn statements, Mr. Smead’s denial of awareness does not
justify summary judgment.
* * *
Like the district court, we conclude that a reasonable factfinder could
infer that Mr. Smead had been aware of a substantial risk of serious harm
and had knowingly disregarded that risk.
(4) Dakota Morgan
Among the jail guards was Mr. Dakota Morgan, who manned the
control tower on Friday afternoon. Mr. Lance stated that he had called the
control tower that afternoon and reported “[his] persistent erection, [his]
need for medical attention[,] and the considerable pain [he] was
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experiencing.” Appellant’s App’x vol. III, at 660. While in the control
tower, Dakota Morgan would have conducted sight checks of the pod where
Mr. Lance was housed.
Given this evidence, the district court concluded that a reasonable
factfinder could infer that Dakota Morgan had been aware of a substantial
risk and had knowingly disregarded that risk. We agree.
In arguing to the contrary, the defendants
• point out that Mr. Lance couldn’t remember talking to Dakota
• discount the statements from other detainees that Mr. Lance
appeared to be in pain, and
• contrast Mr. Lance’s behavior when suffering from priapism
with readily observable symptoms like “collapsing, vomiting,
paleness, sweating or a repeatedly stated belief [that] his
condition was life threatening.”
Appellees’ (Chris Morris, Daniel Harper, & Dakota Morgan) Resp. Br. at
36–37. But Mr. Lance satisfies the subjective prong through his report of
pain and his request to see a nurse or a doctor. See McCowan v. Morales,
945 F.3d 1276, 1292 (10th Cir. 2019); Mata v. Saiz, 427 F.3d 745, 755
(10th Cir. 2005).
Even though Mr. Lance couldn’t remember talking to Dakota
Morgan, a factfinder could reasonably infer that they had talked when Mr.
Morgan was in the control tower. After all, Mr. Lance testified that he had
called the control tower on Friday afternoon, complaining of pain and
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requesting medical treatment. And only one person manned the control
tower at any one time. On Friday afternoon, that person was Dakota
Morgan. So a reasonable factfinder could infer that Mr. Lance had
complained to Dakota Morgan about the pain.
The evidence suggests that Dakota Morgan not only responded to Mr.
Lance’s call but also saw into the pods through a large glass window
separating the tower from the common area.
See Durkee v. Minor, 841 F.3d 872, 876 (10th Cir. 2016) (rejecting a jail
guard’s summary-judgment argument that he hadn’t seen an inmate in the
visiting room partly because he could be seen through a large rectangular
window). Mr. Lance explained that any guard in the tower could see the
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dayroom, which was only about ten yards away. And the former sheriff
testified that guards in the tower could view a surveillance video from a
camera in the pod.
Given the evidence of the call on Friday afternoon and Dakota
Morgan’s view of the dayroom, a reasonable factfinder could infer that he
had been aware of a substantial risk of serious harm and had knowingly
disregarded that risk.
(5) Daniel Harper
Another jail guard was Daniel Harper. The district court concluded
that the factfinder could reasonably infer that Mr. Harper had known about
Mr. Lance’s persistent erection, and we agree based on two facts:
1. Mr. Harper had distributed breakfast trays on Monday morning,
three days into Mr. Lance’s priapism.
2. Mr. Lance had asked for medical treatment whenever the meal
trays were delivered.
From these facts, a factfinder could reasonably infer that Mr. Lance
complained to Mr. Harper when he delivered the breakfast tray on Monday
morning. Mr. Lance has thus satisfied the subjective prong for the claim
against Mr. Harper.
C. Violation of a Clearly Established Right
Although Mr. Lance satisfied the objective and subjective prongs for
the claims against Mike Smead, Dakota Morgan, and Daniel Harper, they
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alternatively urge qualified immunity based on the lack of a clearly
A constitutional right is clearly established if all reasonable jail
guards would have understood that their conduct had violated the
Constitution. Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam). This
understanding may arise from a precedent or weighty authority from other
courts. Halley v. Huckaby, 902 F.3d 1136, 1144 (10th Cir. 2018).
Mr. Lance argues that our precedents have clearly established a jail
guard’s constitutional obligation to obtain medical care when (1) a
detainee experiences severe pain and (2) the jail guard controls access to
medical care. For this argument, Mr. Lance relies on McCowan v. Morales,
945 F.3d 1276 (10th Cir. 2019). There a detainee repeatedly complained
that he had reinjured his shoulder and was in “excruciating” pain. Id. at
1293. An officer ignored the detainee’s complaints and waited two hours
before providing access to medical care. Id. at 1292. We denied qualified
immunity, likening the facts to Olsen v. Layton Hills Mall, 312 F.3d 1304
(10th Cir. 2002). McCowan, 945 F.3d at 1293.
In Olsen, we had concluded that qualified immunity was unavailable
for an official who ignored reports of a detainee’s mental health problems
and a panic attack. 312 F.3d at 1309, 1317. Olsen’s reasoning led the
McCowan panel to conclude that “[t]his constitutional violation [had been]
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clearly established by August 2015,” which is when the McCowan plaintiff
had complained of shoulder pain. McCowan, 945 F.3d at 1292.
Mr. Lance also relies on another opinion involving a guard’s delay in
providing medical care to a prisoner: Sealock v. Colorado, 218 F.3d 1205
(10th Cir. 2000). There a prisoner was sweating, appeared pale, and
reported “crushing” chest pain, difficulty breathing, and vomiting. Id. at
1208. But a guard waited more than a day before sending the prisoner to
the hospital, where doctors discovered that he had suffered a major heart
attack. Id. We held that the prisoner had shown a guard’s deliberate
indifference in delaying medical treatment. Id. at 1210–11.
Finally, Mr. Lance relies on two other opinions stating that medical
delays may violate the constitution: Al-Turki v. Robinson, 762 F.3d 1188,
1195 (10th Cir. 2014) and Mata v. Saiz, 427 F.3d 745, 755 (10th Cir.
In response, the defendants make four arguments:
1. McCowan v. Morales, 945 F.3d 1276 (10th Cir. 2019), cannot
clearly establish the right because the opinion came after the
events here (December 2016).
2. Some of the cited opinions involve medical professionals and
did not supply notice of standards applicable to lay officers.
3. Some of the cited opinions involved conditions more serious
than Mr. Lance’s priapism.
4. “[Mr. Lance’s] articulation of qualified immunity yoked only to
‘pain,’ severe or not, however defined, would present a host of
practical problems in the jail context.”
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Appellees’ (Edward Morgan & Mike Smead) Resp. Br. at 30. We reject
First, even though McCowan v. Morales, 945 F.3d 1276 (10th Cir.
2019) came after the delay in treating Mr. Lance’s priapism, we held there
that the right had been clearly established in August 2015, before the
events involving Mr. Lance. Id. at 1294; see pp. 18–19, above.
Second, it’s not fatal that some of the cited opinions involved
medical professionals. We did address the liability of medical
professionals in Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir.
2014) and Mata v. Saiz, 427 F.3d 745, 755–61 (10th Cir. 2005). But those
opinions do not vitiate the duty of lay officials. In McCowan and Olsen, we
held that lay officials (just like medical professionals) can incur liability
for delays in providing medical treatment. See pp. 18–19, above.
Third, the scope of the constitutional duty isn’t diminished just
because some of our prior opinions involved potentially life-threatening
conditions. See, e.g., Sealock v. Colorado, 218 F.3d 1205, 1208 (10th Cir.
2000) (potential heart attack). We’ve not required a life-threatening
condition to trigger a constitutional duty to provide adequate medical care.
For example, we’ve held that guards acted with deliberate indifference by
waiting two hours to treat shoulder pain even though the pain wasn’t lifeAppellate Case: 19-7050 Document: 010110466863 Date Filed: 01/19/2021 Page: 20
threatening. McCowan v. Morales, 945 F.3d 1276, 1293–94 (10th Cir.
2019); see pp. 18–19, above.
Fourth, we reject the jail guards’ argument about the impracticality
of a standard based on pain. Mr. Lance’s arguments are grounded in the
controlling law, which establishes that a delay in providing medical care
may be sufficiently serious if the delay leads to substantial pain. See pp. 7,
For these four reasons, we conclude that Mr. Lance’s evidence shows
that Mike Smead, Dakota Morgan, and Daniel Harper violated a clearly
established constitutional right. The district court thus erred in granting
their motions for summary judgment.
6. The County Policies
Mr. Lance sued the sheriff based on two of the county’s policies:
1. failing to train non-medical personnel on how to respond to
medical emergencies when the nurse was off site
2. releasing detainees who needed further medical attention rather
than driving them to a second hospital
On both claims, the district court granted summary judgment to the sheriff,
• the county’s policy on training had been adequate and
• the sheriff had not acted with deliberate indifference by
releasing detainees needing further hospitalization because Mr.
Lance was not harmed by the delay.
We disagree with these conclusions.
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A. Failure to Train
To recover for a failure to train, Mr. Lance needs to prove three
1. the existence of a county policy or custom involving deficient
2. the policy or custom’s causation of an injury
3. the county’s adoption of a policy or custom with deliberate
Waller v. City & Cty. of Denver, 932 F.3d 1277, 1283–84 (10th Cir. 2019).
On appeal, Mr. Lance contends that a factfinder could reasonably infer
satisfaction of the first and third elements. 4
On the first element, the sheriff argues that Mr. Lance failed to
identify a policy that was obvious and “closely related” to his injury. See
Lopez v. LeMaster, 172 F.3d 756, 760 (10th Cir. 1999) (setting out the test
for the first element), abrogated in part on other grounds, Brown v.
Flowers, 974 F.3d 1178, 1182 (10th Cir. 2020). We disagree.
The county adopted a policy stating that “[s]upervisors will
determine the immediacy of medical complaints and take the appropriate
action.” Appellant’s App’x vol. II, at 404. But Mr. Lance presented
4 On the second element (causation), Mr. Lance needed to show that
“the injury [would] have been avoided had the employee been trained
under a program that was not deficient in the identified respect.” City of
Canton v. Harris, 489 U.S. 378, 391 (1989). But the sheriff has never
challenged the evidence of causation on the failure-to-train claim.
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evidence that the county hadn’t trained employees how to determine “the
immediacy of medical complaints,” particularly when medical personnel
were away from the detention center. A reasonable factfinder could infer
that this deficiency in the training was both obvious and closely related to
Mr. Lance’s injury.
The former sheriff testified that county employees had taken courses
in first aid and CPR, had shadowed more experienced employees, and had
attended monthly safety meetings. But Mr. Lance presented evidence that
the employees had obtained no training on when to call a nurse or a doctor
when one was not on site. For example, two officers (Edward Morgan and
Daniel Harper) reported that they had not obtained any training on when a
medical condition involved an emergency. Edward Morgan testified:
Q. Was there any training that you were provided in being able to
assess the inmates from a medical standpoint?
A. No, sir, none.
Q. Are the jailers allowed to independently determine whether a
medical issue is serious?
. . . .
Q. Okay. And you’d agree that there’s no training that provides
them the ability to assess somebody independently, right?
A. Correct. Yes, sir.
Q. Would that be the same for the sergeant also?
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Appellees’ (Daniel Harper, Dakota Morgan, & Chris Morris) Supp. App’x
at 144. 5 Given this evidence, the factfinder could reasonably infer that the
county had provided deficient training on how to detect a medical
On the third element, the plaintiff must show deliberate indifference.
See p. 22, above. Deliberate indifference can exist when a county fails to
train jail guards on how to handle recurring situations presenting an
obvious potential to violate the Constitution. Allen v. Muskogee, 119 F.3d
837, 842 (10th Cir. 1997). But how can we tell, after the fact, that a
5 In responding to the summary-judgment motion, Mr. Lance also
submitted this deposition testimony from Stephen Sparks on the lack of
Q. Are the individual jailers allowed to independently
determine whether somebody is going through a serious
Q. And why not?
. . . .
[A.]: Because we didn’t have the proper training to determine
whether it was a serious emergency or not.
Deposition of Stephen Sparks, Lance v. Pittsburg Cty. Bd. of Cty.
Comm’rs, No. 6:17-cv-00378-RAW (E.D. Okla. 2019), ECF No. 172, Ex.
18, at 27. But this deposition excerpt does not appear in the appellate
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problem would recur often enough to require training? See Carr v. Castle,
337 F.3d 1221, 1230 (10th Cir. 2003) (discussing “the omniscience of
hindsight” to determine whether additional training could have helped
police officers in an encounter). Given the difficulty of answering after the
fact, the Second Circuit Court of Appeals has devised a three-part test:
1. [T]he county’s policymakers know “‘to a moral certainty’ that
[their] employees will confront a given situation.”
2. “[T]he situation either presents the employee with a difficult
choice of the sort that training or supervision will make less
3. “[T]he wrong choice . . . will frequently cause the deprivation
of a citizen’s constitutional rights.”
Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992) (quoting
City of Canton v. Harris, 489 U.S. 378, 390 n.10 (1989)); see also Okin v.
Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir.
2009) (same test).
We are persuaded by the logic of this test, for it provides a sensible,
workable way to determine whether a particular problem is likely to recur
enough to alert county officials to an obvious deficiency in the training. In
applying the three-part test, we conclude that a factfinder could reasonably
infer deliberate indifference.
First, a factfinder could reasonably determine that county
policymakers had known “to a moral certainty” that jail guards would need
to independently assess detainees’ medical conditions. The only medical
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professional on site was a nurse, who worked 8–5 during the workweek.
But medical emergencies will obviously occur sometimes on evenings and
weekends, when the nurse was off duty. Given the inevitability of medical
emergencies after hours, jail guards would frequently need to decide
whether a medical condition warranted an after-hours call to the nurse.
Second, a factfinder could reasonably determine that training would
have helped jail guards make the difficult decision of whether to call the
nurse when she was off duty. The defendants themselves underscore the
difficulty of deciding whether to call the nurse when detainees complain of
pain after hours and on weekends. For example, Edward Morgan and Mike
Smead argue on appeal:
A generalized and inherently private and subjective sensation,
like pain, is difficult to posit as a “condition” of which others
are to be aware . . . . Pain is also variable with limited passage
of time and variable with individuals, in terms of pain tolerance
and anxiety or reaction to pain.
Appellees’ (Edward Morgan & Mike Smead) Resp. Br. at 30.
Given the difficulty of assessing the seriousness of a pain complaint,
jail guards were directed to notify the shift sergeant whenever a medical
problem arose that might require the nurse’s involvement. Appellant’s
App’x vol. III, at 644; see also Appellees’ (Chris Morris, Daniel Harper, &
Dakota Morgan) Resp. Br. at 50 (arguing on appeal that “jailers were
required to submit [detainees’] medical request form[s] up their chain-ofcommand, i.e., to their shift sergeant”).
Appellate Case: 19-7050 Document: 010110466863 Date Filed: 01/19/2021 Page: 26
But the sergeants themselves lacked training on how to make the
difficult decision of whether to contact the nurse. For example, Mr. Smead
was a sergeant who urged summary judgment based in part on his own lack
of medical knowledge on whether a condition would constitute a medical
[Mr. Smead] 6 was a Sergeant, a shift supervisor jailer, and not a
medical professional. He cannot be imputed with medical
knowledge. Apart from the obvious medical emergencies, such
as excessive bleeding or someone unconscious, it was not his
decision whether something constituted a medical emergency or
required medical care. He was not certain on the timeframe of
when a persistent erection could become harmful or a medical
Appellant’s App’x vol. I, at 200 (citation omitted). And Mr. Smead argues
on appeal that “[i]n 2016, [he], as a layperson sergeant, did not have an
informed or medically correct understanding of how long an erection could
persist before it was harmful or a medical emergency.” Appellees’ (Edward
Morgan & Mike Smead) Resp. Br. at 4–5 (citing Appellees’ (Edward
Morgan & Mike Smead) Supp. App’x at 133); see also id. at 20 (Mr. Smead
arguing on appeal that he “did not know how long an erection could persist
before it thereby became a medical emergency”).
6 The motion says “Morgan” rather than “Smead,” but the name
reflects a typographical error. The motion was Mike Smead’s, not Edward
Morgan’s. The same counsel represented both Mike Smead and Edward
Morgan, and a similar statement appears in Edward Morgan’s motion for
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Third, a factfinder could reasonably determine that the jail guards’
lack of training would frequently lead to disregard of serious pain
complaints, violating detainees’ constitutional right to medical care. Here,
for example, Mr. Smead testified that he would regard a lengthy erection as
a medical issue after one or two days. Mr. Smead’s standard departs from
the medically informed view, for the urologist testified that medical
attention was necessary when Mr. Lance’s erection had persisted for four
hours. Even the former sheriff admitted that he would “want to joke about”
a detainee’s priapism lasting multiple days. Appellees’ (Daniel Harper,
Dakota Morgan, & Chris Morris) Supp. App’x at 97. A factfinder could
thus reasonably infer that constitutional violations would frequently occur
because jail guards would mistakenly choose not to call the nurse when
detainees complain of a subjective sensation like pain.
For these reasons, we conclude that the district court erred in
granting summary judgment to the sheriff on the failure-to-train claim.
B. The Policy Requiring Release Before Further
Mr. Lance also challenges the grant of summary judgment on his
claim involving the county’s policy on release before further
hospitalization. Mr. Lance maintains that he presented evidence on each of
the three elements: (1) a county policy or custom, (2) causation, and
(3) deliberate indifference. Waller v. City & Cty. of Denver, 932 F.3d
Appellate Case: 19-7050 Document: 010110466863 Date Filed: 01/19/2021 Page: 28
1277, 1283–84 (10th Cir. 2019); see p. 22, above. The sheriff challenges
the existence of evidence on each element.
For the first element, the plaintiff points to evidence that a physician
directed guards to take Mr. Lance directly to a hospital about 90 miles
away, where a urologist was waiting to operate. The county argues that this
evidence conflicts with the physician’s discharge form. But this conflict
creates a fact issue, which we must resolve favorably to Mr. Lance on
summary judgment. See Part 4, above.
Mr. Lance also presents evidence of the policy itself, explaining that
the county would not allow transfers of detainees from one medical facility
to another. The county instead required detainees to be returned to the
detention center for release on their own recognizance.
For the second element, Mr. Lance observes that this policy delayed
needed treatment from a specialist. After unsuccessful treatment at the
local hospital, county employees returned Mr. Lance to the detention
facility at about 1:00 p.m. Roughly 6 hours later, Mr. Lance finally arrived
at the second hospital. Mr. Lance testified that his pain had intensified
during this 6-hour period.
For the third element, Mr. Lance contends that the policy showed
deliberate indifference. We agree. The factfinder could reasonably infer
that delays in specialized treatment would inevitably result from the
county’s policy. See Olsen v. Layton Hills Mall, 312 F.3d 1304, 1318 (10th
Appellate Case: 19-7050 Document: 010110466863 Date Filed: 01/19/2021 Page: 29
Cir. 2002) (stating that a municipality is deliberately indifferent when it
obtains actual or constructive notice that an action is substantially certain
to cause a constitutional violation and the municipality chooses to
disregard this risk).
The sheriff disagrees, arguing that the county had policies in place to
ensure appropriate medical care from outside sources. For this argument,
the sheriff cites testimony from the nurse that
• she did not believe that Mr. Lance had needed immediate
transportation to the second hospital and
• officials decided on a case-by-case basis whether to release
inmates from the jail.
The sheriff’s argument does not support the grant of summary
judgment. Although the policy may have been applied differently in other
circumstances, a factfinder could reasonably attribute the delay in Mr.
Lance’s treatment to the decision to release him rather than take him to the
second hospital. See Ramos v. Lamm, 639 F.2d 559, 577–78 (10th Cir.
1980) (upholding a finding of deliberate indifference based partly on
deficiencies in the prison’s resources for transporting prisoners to civilian
medical facilities). Mr. Lance languished in pain while he waited for
transportation to the second hospital. That pain resulted directly from the
jail guards’ refusal to drive Mr. Lance to the second hospital.
* * *
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We conclude that the district court erred in granting summary
judgment to the sheriff on the claim involving a policy requiring release
before further hospitalization
Outcome: We affirm the grant of summary judgment to Edward Morgan in his
individual capacity. But we reverse the grant of summary judgment on
• the individual-capacity claims against Mike Smead, Dakota
Morgan, and Daniel Harper; and
• the official-capacity claim against Chris Morris