Davenport v. Pata

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 20, 2025
• Docket: 24-6117
• Status: Unpublished

Opinion

Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 20, 2025 _________________________________ Christopher M. Wolpert Clerk of Court BRYAN WAYNE DAVENPORT,

Plaintiff - Appellant,

v. No. 24-6117 (D.C. No. 5:20-CV-00358-J) BECKY PATA; LT. FNU BEEM; (W.D. Okla.) TURN KEY HEALTH CLINICS, LLC; CPT. FNU GARNER,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before McHUGH, BALDOCK, and EID, Circuit Judges. _________________________________

Pro se appellant Bryan Wayne Davenport is an Oklahoma prisoner who

brought a 42 U.S.C. § 1983 suit concerning his medical treatment while he was a

pretrial detainee at Cleveland County Detention Center (CCDC). The district court

dismissed the claims against all but one defendant—nurse practitioner Becky Pata—

and then later granted summary judgment to Ms. Pata. Mr. Davenport appeals only

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 2

the grant of summary judgment to Ms. Pata. 1 Exercising jurisdiction under 28 U.S.C.

§ 1291, we reverse the judgment in favor of Ms. Pata and remand for further

proceedings.

BACKGROUND

Mr. Davenport was diagnosed with human immunodeficiency virus (HIV) in

2013. He was prescribed antiretroviral medications to keep his HIV from developing

into Acquired Immunodeficiency Syndrome (AIDS). He was not consistently taking

those medications, however, in the months before he arrived at CCDC.

Mr. Davenport was detained at CCDC starting on June 28, 2019. Turn Key is

contracted to provide medical care at CCDC. At intake, Mr. Davenport informed

Turn Key staff of his HIV status, but he also stated he was not taking any

prescription medications. On July 19, he filed a sick call request marking the box for

“HIV/Aids” and stating, “[I] have not been started on my[ ]med.” R. vol. V at 192.

Three days later, on July 22, he had an appointment with Ms. Pata, at which he told

her about his HIV status, his medications, and his doctor and hospital information.

According to Mr. Davenport, Ms. Pata responded that she did not want to start

treatment for HIV. She did not order blood work, did not order antiretroviral

medications, and did not refer him to a doctor. According to Ms. Pata, she assessed

his condition as being stable and ordered that he be scheduled for an off-site

1 Mr. Davenport’s opening brief does not challenge the dismissal of the claims against the other defendants. See Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed abandoned or waived.” (internal quotation marks omitted)). 2 Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 3

consultation with a specialist. But the consultation did not happen. Ms. Pata asserts

that scheduling was handled by other Turn Key personnel, who for unknown reasons

failed to make an appointment for Mr. Davenport.

Having received no treatment for his HIV, Mr. Davenport filed suit in

April 2020. As relevant to this appeal, he claimed Ms. Pata violated his Fourteenth

Amendment right to care for his serious medical condition. In early July 2020,

Ms. Pata was served with the suit and claims she learned for the first time that

Mr. Davenport had never been scheduled for his off-site consultation. She ordered a

consultation, and the consultant directed Turn Key to obtain blood work. Ms. Pata

saw Mr. Davenport in clinic that same day and began trying to persuade him to allow

Turn Key to do the blood work. At the visit, Mr. Davenport complained of nausea,

vomiting, diarrhea, and a skin infection, which Ms. Pata diagnosed as a fungal rash.

He also complained that he had been suffering “painful small sores, like pimples, in

his mouth,” although he did not have any at that time. Id. at 81. He was reluctant to

accept treatment from Turn Key personnel rather than an off-site specialist, but on

July 22, he allowed Turn Key personnel to draw blood. Lab results indicated that his

CD4 count had lowered and his viral levels of HIV had increased, but the HIV had

not progressed to AIDS. In August 2020, Mr. Davenport began taking an

antiretroviral medication, and in September 2020, he saw the off-site specialist.

After he began taking the antiretroviral medication, his HIV levels declined to

nondetectable.

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The claim survived a motion to dismiss and the parties engaged in discovery.

When Ms. Pata moved for summary judgment, Mr. Davenport did not respond. The

magistrate judge issued a report recommending that the district court grant the

motion. Mr. Davenport filed objections, notifying the district court that he had never

received a copy of the motion. The district court allowed him an extension to file a

response. Ultimately the district court granted summary judgment to Ms. Pata.

DISCUSSION

I. Standard of Review

We review a grant of summary judgment de novo. Johnson v. Sanders,

121 F.4th 80, 88 (10th Cir. 2024). Summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine

when the evidence is such that a reasonable jury could return a verdict for the

nonmoving party, and a fact is material when it might affect the outcome of the suit

under the governing substantive law.” Johnson, 121 F.4th at 88 (brackets and

internal quotation marks omitted).

In considering summary judgment, the court “must view the factual record and

make reasonable inferences therefrom in the light most favorable to the party

opposing summary judgment.” Id. (internal quotation marks omitted). “[C]redibility

determinations, the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a judge when ruling on a

motion for summary judgment.” Keith v. Koerner, 843 F.3d 833, 852 (10th Cir.

4 Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 5

2016) (internal quotation marks omitted). “Rather, the evidence of the non-movant is

to be believed, and all justifiable inferences are to be drawn in [his] favor.” Id.

(brackets and internal quotation marks omitted).

We liberally construe a pro se appellant’s filings, “but we will not act as his

advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

II. Legal Standards

“The Fourteenth Amendment prohibits deliberate indifference to a pretrial

detainee’s serious medical needs.” Crowson v. Washington Cnty., 983 F.3d 1166,

1178 (10th Cir. 2020) (internal quotation marks omitted). We apply the same

two-part inquiry as under the Eighth Amendment. See id. “This exercise requires

both an objective and a subjective inquiry. 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.” Id.

(ellipsis, citations, footnote, and internal quotation marks omitted).

“The Supreme Court has explained that deliberate indifference entails

something more than mere negligence. But it is satisfied by something less than acts

or omissions for the very purpose of causing harm or with knowledge that harm will

result.” Paugh v. Uintah Cnty., 47 F.4th 1139, 1154 (10th Cir. 2022) (citation and

internal quotation marks omitted). “[T]he Court has equated deliberate indifference

to recklessness, in which a person disregards a risk of harm of which he is aware.”

Id. (internal quotation marks omitted). “The official must be aware of the facts from

which the inference of a substantial risk of serious harm could be drawn and also

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draw that inference.” Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1137

(10th Cir. 2023).

A plaintiff need not show that a prison official acted or failed to act believing that harm actually would befall an inmate, but rather that the official merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist. Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence such as whether the risk was obvious. An official disregards risk when he fails to take reasonable measures to abate the risk.

Id. (citations and internal quotation marks omitted).

In the context of prison medical care, this court has “recognize[d] two types of

conduct constituting deliberate indifference.” Paugh, 47 F.4th at 1154 (internal

quotation marks omitted). One is “when medical professionals fail to treat a serious

medical condition properly,” including when the provider “fails to treat a medical

condition so obvious that even a layman would recognize the condition [or]

completely denies care although presented with recognizable symptoms which

potentially create a medical emergency.” Id. (internal quotation marks omitted). The

other is when a defendant fails to perform a duty as a gatekeeper—that is, when he or

she “prevent[s] an inmate from receiving medical treatment or den[ies] . . . access to

medical personnel capable of evaluating the need for treatment.” Id. (internal

quotation marks omitted).

III. Objective Prong

In moving for summary judgment, Ms. Pata argued that Mr. Davenport’s HIV

did not satisfy the objective prong because (1) he had not consistently taken HIV

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medications before arriving at CCDC, and (2) he had not suffered any permanent

harm or injury from not being treated for HIV from July 2019-July 2020. The district

court disagreed, concluding that Mr. Davenport satisfied the objective prong because

he had been diagnosed with HIV, he previously had been medicated for it, and

Ms. Pata believed that he required further care and monitoring from a specialist.

See, e.g., Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (“A medical

need is sufficiently serious if it is one that has been diagnosed by a physician as

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

recognize the necessity for a doctor’s attention.” (internal quotation marks omitted)).

On appeal, Ms. Pata does not challenge this determination. We therefore assume

without deciding that the objective prong is satisfied, and we proceed to the

subjective prong.

IV. Subjective Prong

The district court held that Mr. Davenport had not created a genuine issue of

material fact as to whether Ms. Pata was deliberately indifferent either as a health

care provider or as a gatekeeper. We disagree. When viewed in the light most

favorable to Mr. Davenport, the record contains sufficient evidence to allow a

reasonable factfinder to conclude that Ms. Pata was deliberately indifferent to

Mr. Davenport’s serious medical need.

A. Ms. Pata as Health Care Provider

In considering Ms. Pata in her capacity as a health care provider, the district

court held it was reasonable for her to refer Mr. Davenport to a specialist before

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prescribing medication for him. This observation, however, views the record in the

light most favorable to Ms. Pata, rather than to Mr. Davenport.

The record contains two sworn statements from Ms. Pata, a declaration under

penalty of perjury executed on August 31, 2020, and an affidavit executed on

September 27, 2023.2 See R. vol. IV at 521-29; R. vol. V at 123-33. Neither

statement asserts that in Ms. Pata’s medical judgment, a specialist should see

Mr. Davenport before she could begin treatment for his HIV. To the contrary, the

statements omit any explanation for why she did not order tests or prescribe

medications for Mr. Davenport in July 2019.3 Any inference that Ms. Pata acted

according to her medical judgment thus is unsupported and can be made only by

viewing the record in her favor rather than Mr. Davenport’s.

Mr. Davenport also identified other evidence that, if credited by a factfinder,

could support a finding that Ms. Pata was deliberately indifferent in not providing

treatment for HIV following the July 22, 2019, visit.

2 Ms. Pata attached the 2023 affidavit to her motion for summary judgment. Mr. Davenport attached the 2020 declaration to his response. Ms. Pata does not contest the authenticity of the 2020 declaration. 3 Further, the record indicates that ordering testing and prescribing medications was within Ms. Pata’s authority; that Mr. Davenport told her he had not been on medications for approximately five months when she saw him in July 2019; that guidelines from health authorities “recommend that all persons with HIV infection be offered effective [antiretroviral medications] as soon as possible,” R. vol. V at 112; and that to Ms. Pata’s knowledge, “[i]t is not unusual for it to take several months to schedule off-site specialty appointments,” R. vol. IV at 100. 8 Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 9

First, he offered evidence that Ms. Pata directly told him that she did not want

to treat his HIV. In his summary judgment response, Mr. Davenport stated, “On

July 22, 2019, when I first asked Pata to restart my HIV medication, in a ‘chronic

care clinic,’ Pata responded that she ‘didn’t want to start treatment,’ and for

eleven months she provided no HIV treatment.” R. vol. V at 45. In support of that

response, he supplied a declaration under penalty of perjury connecting the alleged

statement by Ms. Pata to his HIV. See id. at 212. The district court did not

acknowledge this evidence.4

Second, Ms. Pata alleges that she assessed Mr. Davenport as medically stable

on July 22, 2019. But she never explains how she adequately could assess his HIV

status without ordering blood tests and reviewing laboratory results.5 See Leavitt v.

Corr. Med. Servs., Inc., 645 F.3d 484, 489 n.3 (1st Cir. 2011) (“The parties state that

the CD4 cell count is the best estimate of an HIV-positive individual’s risk of

short-term progression to develop the clinical symptoms and risk of complications of

HIV.”).

Third, Mr. Davenport also presented evidence that Ms. Pata failed to comply

with Turn Key’s policies. The Turn Key job description assigns responsibility to a

4 Ms. Pata avers that she “never ignored or disregarded Mr. Davenport’s medical needs” and “never denied or delayed Mr. Davenport access to care.” R. vol. IV at 529. A court considering summary judgment, however, cannot resolve witnesses’ conflicting accounts. 5 In contrast, Ms. Pata avers she did request testing in July 2020 so she could “assess [Mr. Davenport’s] overall medical condition,” R. vol. IV at 525, and “to get a more complete picture of [his] clinical condition,” id. vol. V at 127. 9 Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 10

nurse practitioner to develop plans for care and treatment, implement such plans,

monitor patients’ status, and facilitate offsite consultations and testing. Turn Key

Policy J-20 provides that treatment plans “shall include, at a minimum . . . [t]he

frequency of follow-up for medical evaluation and adjustment of treatment modality”

and “[t]he type and frequency of diagnostic testing and therapeutic regimens.”

R. vol. V at 110. Viewing the record in the light most favorable to Mr. Davenport, a

factfinder could conclude that Ms. Pata did not develop or implement a plan of care

for HIV; did not evaluate Mr. Davenport’s HIV status; did not properly facilitate an

offsite consultation for HIV; and did not facilitate testing for HIV.

Of course, “a failure to adhere to administrative regulations does not equate to

a constitutional violation.” Hovater v. Robinson, 1 F.3d 1063, 1068 n.4 (10th Cir.

1993). Nor does negligent conduct, even negligent conduct that may constitute

medical malpractice. See Paugh, 47 F.4th at 1154. But evidence that an official

failed to follow policy may nevertheless be relevant to proving deliberate

indifference. See Tafoya v. Salazar, 516 F.3d 912, 919 (10th Cir. 2008) (“The

knowing failure to enforce policies necessary to the safety of inmates may rise to the

level of deliberate indifference.”); see also United States v. Buntyn, 104 F.4th 805,

811 (10th Cir. 2024) (holding, in a criminal case, that “a jury could consider

violations of company policy in finding deliberate indifference and willfulness”).

In short, Mr. Davenport identified sufficient evidence for a factfinder to

conclude that Ms. Pata was aware of facts from which she could draw the inference

of a substantial risk and that she drew that inference. See Leavitt, 645 F.3d at

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498-99, 505 (vacating summary judgment in favor of physician assistant who failed

to review test results and provide medications to HIV-positive prisoner, where

physician assistant knew that prisoner had HIV, he had not had access to

antiretroviral medications for at least a month, his CD4 count was abnormally low on

previous tests, he was complaining of symptoms, and he told the provider that he

needed his antiretroviral medications). The district court therefore erred in granting

summary judgment on the question whether Ms. Pata was deliberately indifferent in

her capacity as a health care provider.

B. Ms. Pata as Gatekeeper

Regarding Ms. Pata’s capacity as a gatekeeper, the district court accepted as an

undisputed fact that she referred Mr. Davenport to an HIV specialist. In doing so, it

again viewed the evidence in the light most favorable to Ms. Pata, rather than to

Mr. Davenport. Although Ms. Pata points to a note she placed in Mr. Davenport’s

file about making a referral, it is undisputed the note had no effect. And

Mr. Davenport identified evidence that could support a conclusion that Ms. Pata did

not properly request a consultation by an outside specialist in July 2019.

Mr. Davenport submitted Turn Key Policy J-18, which Ms. Pata admitted is

the proper procedure for requesting an off-site/specialty service. Policy J-18 directs

health care providers to fill out a “Specialty Service/Consultation Request” form to

request an off-site specialty consultation. Policy J-18 provides that the provider will

send the form to the Chief Medical Officer (CMO) for review. Upon approval by the

CMO, “the nurse supervisor will schedule the requested services.” R. vol. V at 90.

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Ms. Pata, however, did not fill out the Specialty Service/Consultation Request form

in July 2019. Based on Policy J-18, it is a reasonable inference in favor of

Mr. Davenport that an offsite specialty consultation would not occur unless or until

Ms. Pata filled out the form to obtain the CMO’s approval, so that the nurse

supervisor could schedule the requested services.

Ms. Pata asserted in discovery that it was not necessary for her to fill out the

form because “all HIV patients are referred to a specialist.” Id. at 98. A factfinder,

however, would not be required to accept this assertion. Policy J-18 does not contain

an exception on its face for HIV patients. Also, the very events underlying this

lawsuit contradict this assertion: Mr. Davenport was known to be HIV-positive, but

he was not referred to a specialist until well after he filed suit. In addition,

Ms. Pata’s own statement of undisputed material facts indicates that she followed the

Policy J-18 procedure to provide treatment to Mr. Davenport in July 2020.

See R. vol. IV at 103 (asserting that after she saw Mr. Davenport in July 2020,

Ms. Pata “made a specialty request to have Mr. Davenport transported to OU

Infectious Disease to have his labs drawn. This request was approved by Ms. Pata’s

Medical Director, and the nurse began attempting to coordinate with OU Infectious

Disease to schedule this appointment.”).6

6 In Crowson, we held that a nurse discharged his gatekeeper duty when he requested a psychological evaluation by placing a note in the detainee’s file. 983 F.3d at 1180. But the nurse also spoke with other providers about the detainee’s condition. See id. Crowson thus is distinguishable. 12 Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 13

Whether Ms. Pata referred Mr. Davenport for specialty treatment thus is a

question of material disputed fact. A factfinder could conclude that Ms. Pata did not

properly request an outside consultation and thus failed to fulfill her gatekeeper

duty—especially if that factfinder credits Mr. Davenport’s assertion that Ms. Pata

told him that she did not want to treat his HIV. Accordingly, the district court erred

in granting summary judgment to Ms. Pata in her capacity as a gatekeeper.

See Leavitt, 645 F.3d at 499-500 (“The district court was too quick to decide that [the

defendant’s] version was credible and [the plaintiff’s] not. This is precisely the sort

of genuine and material dispute that ought to be resolved by a jury.”).

V. Substantial Harm

After considering the objective and subjective components of deliberate

indifference, the district court separately addressed whether Mr. Davenport suffered

substantial harm from the lack of treatment for his HIV from July 2019-July 2020. It

was unnecessary, however, for the district court to reach the question of substantial

harm in deciding Ms. Pata’s motion.

Substantial harm is relevant to establishing the objective prong in a case in

which the plaintiff claims a delay in care. See, e.g., Paugh, 47 F.4th at 1155 (“[A]

plaintiff can also satisfy the objective component based on a delay in medical care if

the delay resulted in substantial harm.” (ellipsis and internal quotation marks

omitted)); Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (“[A] delay in medical

care only constitutes an Eighth Amendment violation where the plaintiff can show

the delay resulted in substantial harm.” (internal quotation marks omitted)). But the

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district court had already held that Mr. Davenport’s HIV satisfied the objective

component. Moreover, as we understand it, Mr. Davenport claims a denial of care,

not merely a delay in care. See Aplt. Opening Br. at CM/ECF p. 9 (stating that the

district court erroneously interpreted his claim as “a mere delay in treatment” but

“[i]n truth, [his] allegations center on a complete and callous denial of necessary

medical treatment”). Mr. Davenport did not receive any care for HIV until after he

filed this action, and in total, the failure to provide care lasted for nearly a year. The

cases the district court relied on in its substantial-harm discussion are distinguishable

in that they involved much shorter lapses in treatment—seven days and five days in

Smith v. Carpenter, 316 F.3d 178, 181 (2d Cir. 2003), and ten days in Doe v. Board

of County Commissioners, No. CIV-13-108-F, 2014 WL 11353290, at *1 (W.D.

Okla. July 28, 2014) (unpublished).7

CONCLUSION

We reverse the summary judgment in favor of Ms. Pata and remand for further

proceedings. We affirm the remainder of the judgment. We grant Mr. Davenport’s

motion to proceed without prepayment of costs or fees and remind him that he must

continue making partial payments until the obligation is fully paid. See 28 U.S.C.

7 Even if Mr. Davenport’s allegations became a claim for delay of care after Ms. Pata learned of the suit and began providing care for his HIV, the substantial harm requirement “may be based on an intermediate injury, such as the pain experienced while waiting for treatment and analgesics. Or it may be based on the inmate’s ultimate harm. The plaintiff selects what harm to claim.” Paugh, 47 F.4th at 1155 (citations and internal quotation marks omitted). 14 Appellate Case: 24-6117 Document: 47-1 Date Filed: 06/20/2025 Page: 15

§ 1915(a)(1) (excusing only “prepayment” of fees). We deny his motion for

appointment of counsel on appeal.

Entered for the Court

Carolyn B. McHugh Circuit Judge