Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit PUBLISH August 4, 2025 UNITED STATES COURT OF APPEALS Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
RALPH MARCUS HARDY,
Plaintiff - Appellee,
v. No. 24-1138
RABIE, Deputy; DEHERRERA, Detention Specialist,
Defendants - Appellants,
and
TWO UNKNOWN MASKED DEPUTIES; ADAMS COUNTY, a municipality; RICHARD REIGENBORN, Sheriff, in his individual capacity; GENE CLAPS, Sheriff, in his official capacity; OVERMYER, Deputy, ADA Coordinator,
Defendants. _________________________________
Appeal from the United States District Court for the District of Colorado (D.C. No. 1:22-CV-02843-WJM-MDB) _________________________________
Michael A. Sink (Kerri A. Booth, with him on the briefs), Adams County Attorney’s Office, Brighton, Colorado, for Defendants-Appellants. Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 2
Kevin E. Jason, NAACP Legal Defense & Educational Fund, Inc., New York, New York (Samuel Spital and Arielle Humphries, NAACP Legal Defense & Educational Fund, Inc., New York, New York, and Christopher Kemmitt, Molly Cain, and Kacey Mordecai, NAACP Legal Defense & Educational Fund, Inc., Washington, D.C., with him on the brief), for Plaintiff-Appellee. _________________________________
Before MATHESON, BACHARACH, and FEDERICO, Circuit Judges. _________________________________
FEDERICO, Circuit Judge. _________________________________
In 2021, Ralph Marcus Hardy was housed as an inmate at Adams
County Detention Facility (ACDF) in Colorado. During this time, he was
confined to a wheelchair. He alleges that after falling from his wheelchair
and suffering serious injury, jail officials refused to assist him despite his
repeated requests for medical attention.
Two of these jail officials, Deputy Dennis Rabie and Detention
Specialist Daniel DeHerrera, moved to dismiss Hardy’s claims against them
on the grounds that they had qualified immunity. The district court held
that Hardy plausibly alleged that Deputy Rabie and Detention Specialist
DeHerrera violated his clearly established Fourteenth Amendment rights,
and thus that they are not entitled to qualified immunity. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
2 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 3
I
A
The facts of this case are presented as alleged by Hardy in the light
most favorable to him, giving him the benefit of every reasonable inference
therefrom. See Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002). In
September 2022, Hardy was an inmate at ACDF on pretrial detention.
During this time, he was confined to the use of a wheelchair.1
On September 22, Hardy fell out of his wheelchair in his cell. He was
attempting to get around a barrier to the toilet in his cell and fell as he tried
to transfer himself. Hardy was then unable to pick himself back up from the
floor because of an “injury in his lower back, which is permanent in nature.”
Aplt. App. I at 24. Hardy’s cellmate pressed an “emergency distress button”
in the cell designed to call for help. Id. Hardy alleges that his cellmate
pressed the button three times over a period of 30 to 45 minutes, but no
help arrived.
Detention Specialist DeHerrera was on duty at the time in a control
tower and received signals from the emergency distress button. Instead of
notifying deputies of an emergency or responding himself, Detention
1 Hardy alleges that he was forced to use a wheelchair because of injuries sustained after two unknown sheriff’s deputies attacked him. This claim has not been raised on appeal. 3 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 4
Specialist DeHerrera allegedly ignored the emergency distress signals
coming from Hardy’s cell. Hardy was later told by another jail official,
Deputy Chavez (not named as a defendant), that Detention Specialist
DeHerrera’s unit does not respond to emergency distress calls because
“some inmates abuse the buttons, and they are not going to spend their
entire shift chasing buttons.” Id. at 26.
Hardy alleges that he “remained [on] the floor of his cell for nearly an
hour, or more in severe pain, and suffering, and had degradingly soiled
himself because of the pain and inability to move.” Id. at 24. After it became
clear that jail officials were not coming, Hardy’s cellmate helped him back
into his wheelchair. However, Hardy states that this “[put] him in more
pain” and that he was placed back in a “contorted seated position in the
wheelchair.” Id. at 24–25. As such, the efforts of Hardy’s cellmate caused
him to be “further injured[.]” Id.
Roughly ninety minutes after he fell, Deputy Rabie came to Hardy’s
cell as an escort for the inmate porters who were bringing him dinner.
Deputy Rabie opened the cell door and “found [Hardy] in the same contorted
position and in extreme pain.” Id. at 25. Deputy Rabie asked what had
happened to him, and Hardy explained that he had fallen and “verbally
declared a medical emergency.” Id. Deputy Rabie did not take Hardy to
4 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 5
receive medical care, and instead told him to “file a grievance” before closing
his cell. Id.
After an unspecified amount of time, there was a “shift change” and
Deputy Chavez came by Hardy’s cell with a nurse to pass out evening
medication. Deputy Chavez and the nurse then rendered medical attention.
B
Hardy filed this action pro se under 42 U.S.C. § 1983 against multiple
defendants including Deputy Rabie and Detention Specialist DeHerrera in
their individual and official capacities.2 In this appeal, we are only asked to
consider Hardy’s deliberate indifference claims with respect to Deputy
Rabie and Detention Specialist DeHerrera.
Hardy claimed that Deputy Rabie and Detention Specialist
DeHerrera were deliberately indifferent to his medical needs under the
Fourteenth Amendment’s right to due process. Deputy Rabie and Detention
Specialist DeHerrera filed motions to dismiss under Federal Rule of Civil
2 In his amended and operative complaint, Hardy made four different
claims in total against various defendants: (1) failure to protect and excessive force against Adams County, the current and former sheriffs, and two unknown deputies; (2) deliberate indifference and cruel and unusual punishment against Adams County, the sheriffs, Deputy Rabie, Detention Specialist DeHerrera, and Deputy Jennifer Overmyer; (3) discrimination in violation of Title II of the Americans with Disabilities Act (ADA) against Adams County, the sheriffs, and Deputy Overmyer; and (4) retaliation in violation of the First Amendment against Adams County and the sheriffs.
5 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 6
Procedure 12(b)(6), arguing that they are entitled to qualified immunity.
The magistrate judge recommended denying their motion to dismiss,
finding that Hardy’s complaint sufficiently alleged that both defendants
acted with deliberate indifference. Over defendants’ objections, the district
court adopted the recommendations of the magistrate judge with respect to
the motion to dismiss claims against Deputy Rabie and Detention Specialist
DeHerrera. Deputy Rabie and Detention Specialist DeHerrera then filed
this timely appeal.
II
We review de novo the district court’s denial of a Rule 12(b)(6) motion
to dismiss based on qualified immunity. See Wilson v. Montano, 715 F.3d
847, 852 (10th Cir. 2013). “Dismissal of a pro se complaint for failure to
state a claim is proper only where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend.” Gaines, 292 F.3d at 1224 (quoting Curley v. Perry,
246 F.3d 1278, 1281 (10th Cir. 2001)). “In determining whether a dismissal
is proper, we must accept the allegations of the complaint as true and
construe those allegations, and any reasonable inferences that might be
drawn from them, in the light most favorable to the plaintiff.” Gaines, 292
F.3d at 1224. To state a claim, the plaintiff’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.
6 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 7
v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“In addition, we must construe a pro se appellant’s complaint
liberally.” Gaines, 292 F.3d at 1224. Nonetheless, this court has “repeatedly
insisted that pro se parties follow the same rules of procedure that govern
other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005) (quoting Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994)).
III
“The doctrine of qualified immunity shields government officials . . .
from liability for damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th
Cir. 2008) (quoting Boles v. Neet, 486 F.3d 1177, 1180 (10th Cir. 2007)). “A
§ 1983 defendant’s assertion of qualified immunity is an ‘affirmative
defense [that] creates a presumption that the defendant is immune from
suit.’” Truman v. Orem City, 1 F.4th 1227, 1235 (10th Cir. 2021) (alteration
in original) (quoting Est. of Smart by Smart v. City of Wichita, 951 F.3d
1161, 1168 (10th Cir. 2020)). “To survive a motion to dismiss based on
qualified immunity,” the burden is on the plaintiff to “allege sufficient facts
7 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 8
that show—when taken as true—the defendant plausibly violated his
constitutional rights, which were clearly established at the time of
violation.” Schwartz v. Booker, 702 F.3d 573, 579 (10th Cir. 2012).
Deputy Rabie and Detention Specialist DeHerrera argue both that
(1) Hardy has failed to allege facts showing that they violated his
constitutional rights, and (2) even if his rights were violated, those rights
were not clearly established. We consider each of these issues in turn.
We first ask whether Hardy’s constitutional rights were violated. Jail
officials violate a detainee’s constitutional rights through deliberate
indifference whenever they knowingly ignore a “substantial risk of serious
harm” to an inmate. Farmer v. Brennan, 511 U.S. 825, 828–29 (1994).
“Deliberate indifference has objective and subjective components.”
Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). To meet the
objective component, the harm suffered must be “sufficiently serious” to
implicate the Eighth Amendment’s prohibition of cruel and unusual
punishment.3 Id. Under the subjective component, “the [inmate] must show
3 As a pretrial detainee, Hardy is not protected by the Eighth Amendment’s prohibition of cruel and unusual punishment, but he nonetheless has the same rights through the Fourteenth Amendment Due Process Clause. See Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir. 1985).
8 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 9
that the defendants knew he faced a substantial risk of harm and
disregarded that risk, by failing to take reasonable measures to abate it.”
Id. (internal quotation marks and citation omitted).
“A medical need is considered sufficiently serious to satisfy the
objective prong if the condition ‘has been diagnosed by a physician as
mandating treatment or is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’” Al-Turki v. Robinson, 762
F.3d 1188, 1192–93 (10th Cir. 2014) (quoting Oxendine v. Kaplan, 241 F.3d
1272, 1276 (10th Cir. 2001)). Where, as here, an inmate is alleging that they
were harmed by a delay in eventual medical treatment, the objective
component of harm “may be satisfied by lifelong handicap, permanent loss,
or considerable pain.” Id. at 1193 (quoting Garrett v. Stratman, 254 F.3d
946, 950 (10th Cir. 2001)). Thus, this standard can be satisfied merely by
“an intermediate injury, such as the pain experienced while waiting for
treatment and analgesics.” Id. (citation omitted).
Hardy did not describe any specific injuries sustained from his fall,
nor does he name any subsequent treatment by a doctor. His complaint is
sparse and fails to describe any long-term consequences resulting from the
fall. The only indications of harm are his descriptions of dealing with
“severe pain” and discomfort and his generic statements that he was
9 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 10
“further injured” and sustained an “injury in his lower back, which is
permanent in nature.” Aplt. App. I at 24–25. Still, Hardy plausibly alleges
that he suffered extreme, though temporary, pain because of his fall.
Defendants concede that, accepting all of Hardy’s allegations as true,
Detention Specialist DeHerrera’s actions caused Hardy sufficiently serious
harm to meet the objective prong because he spent ninety minutes in pain
before Deputy Rabie arrived. However, they argue that Deputy Rabie’s
actions cannot be tied to “any meaningful delay in receiving medical
treatment” and thus he did not objectively violate Hardy’s constitutional
rights. Reply Br. at 13–14. “Certainly, not every twinge of pain suffered as
the result of delay in medical care is actionable.” Sealock v. Colorado, 218
F.3d 1205, 1210 (10th Cir. 2000). We must determine whether Hardy has
pleaded sufficiently serious pain to present an objective harm related to
Deputy Rabie’s actions.
Our case law on this subject generally concerns painful events that
last for hours or days. See McCowan v. Morales, 945 F.3d 1276, 1291 (10th
Cir. 2019) (“[The plaintiff] does assert that [the defendant’s] delay in getting
[the plaintiff] to the detention center resulted in [the plaintiff] suffering up
to several hours of excruciating pain.”); Al-Turki, 762 F.3d at 1193 (“This
severe pain and fear of death lasted for several hours, during which Plaintiff
was provided with neither the medical treatment that could have reduced
10 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 11
his pain nor the medical diagnosis that could have removed his fear of
death.”); Sealock, 218 F.3d at 1210 (“The pain and suffering imposed by [the
defendant’s] failure to get him treatment lasted several hours.”); Mata v.
Saiz, 427 F.3d 745, 754 (10th Cir. 2005) (“In the present case, [the plaintiff]
presented evidence that she did in fact suffer severe pain for several days.”).
Hardy’s complaint alleges that when Deputy Rabie opened his cell
door, he found Hardy “in extreme pain.” Aplt App. I at 25. The complaint
does not describe what happened between Deputy Rabie closing his cell door
and him getting assistance from Deputy Chavez “[a]fter the shift change[.]”
Id. at 26. However, he does state that Deputy Rabie “left [Hardy] in pain
and suffering” implying that his pain was ongoing during this unspecified
amount of time. Id. Even in the absence of a specific timeline, it is
reasonable to infer from the alleged facts that some meaningful amount of
time passed between shift changes. And under our standard of review, we
must construe “any reasonable inferences” that might be drawn from
Hardy’s allegations “in the light most favorable to” him. Gaines, 292 F.3d
at 1224.
There is no precise amount of suffering that makes a delay in medical
care actionable. Whether pain and suffering are sufficiently serious for a
deliberate indifference claim depends on context, and “[e]ven a brief delay
[in medical treatment] may be unconstitutional.” Mata, 427 F.3d at 755. We
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read Hardy’s complaint to demonstrate much more than a mere “twinge of
pain” from Deputy Rabie’s actions, Sealock, 218 F.3d at 1210, and so he has
sufficiently pleaded objective harm. See Mata, 427 F.3d at 753 (“[T]he
purpose [of the objectivity component] is to limit claims to significant, as
opposed to trivial, suffering[.]”).
Further, our case law has described objective harm in multiple ways.
Objective harm has been characterized as either “(1) the alleged harm to
the prisoner or (2) the prisoner’s symptoms at the time of the prison
employee’s actions.” Id. The latter is not about the ultimate harm or risk of
harm, but how that harm would appear to an objective observer. See Prince
v. Sheriff of Carter Cnty., 28 F.4th 1033, 1045 (10th Cir. 2022) (“Yet because
we conclude that [the plaintiff’s] earlier symptoms should prompt a
layperson to seek immediate medical attention, the risk of death was an
incorrect inquiry.”).
Regardless of the actual amount of time in pain caused by the delay,
Hardy alleged that he displayed signs of extreme pain and suffering that
would be obvious to a layperson in Deputy Rabie’s position. Jail officials are
not given a free pass to deliberately ignore an inmate’s serious medical
needs simply because a shift change was forthcoming that allowed another
jail official to come by and render medical attention later. See Al-Turki, 762
F.3d at 1194 (“The main flaw in Defendant’s argument is that she is
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focusing on the facts we now know about the duration and cause of
Plaintiff’s pain, while the pertinent question for determining her
entitlement to qualified immunity depends on the facts that were known at
the time.”). As such, Hardy has made a sufficient showing of objective harm.
Because the objective prong has been met for both defendants, we now
consider whether Detention Specialist DeHerrera was subjectively aware of
a serious risk of harm to Hardy. The subjective component requires a
defendant to “both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837. Defendants argue that Detention
Specialist DeHerrera could not have subjectively known that Hardy was at
any risk of harm.
Hardy only alleged that Detention Specialist DeHerrera was in a
control tower where he would have seen that the emergency call button was
pressed three times in Hardy’s cell. Although many details are missing, this
allegation is still sufficient to show subjective awareness of a serious risk of
13 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 14
harm.4 Deliberate indifference does not always require a direct refusal to
give an inmate medical attention. A jail official exhibits deliberate
indifference if he “knows that his role in a particular medical emergency is
solely to serve as a gatekeeper for other medical personnel capable of
treating the condition, and if he delays or refuses to fulfill that gatekeeper
role due to deliberate indifference[.]” Sealock, 218 F.3d at 1211. According
to Hardy, Deputy Chavez told him that Detention Specialist DeHerrera
chose not to respond to signals from emergency buttons.5 As such, he has
4 There is an inherent information asymmetry in cases such as this
where an inmate cannot know what is happening outside of their cell. We maintain our pleading standards even in such cases on the understanding that “[n]ot only do prisoners ordinarily know what has happened to them; but they will have learned how the institution has defended the challenged conduct when they pursue the administrative claims that they must bring as a prerequisite to filing suit.” Gee v. Pacheco, 627 F.3d 1178, 1185 (10th Cir. 2010). Hardy has pursued administrative remedies and describes speaking to Deputy Chavez about the incident in his pleading. As such, his placement of Detention Specialist DeHerrera as the one monitoring the emergency call buttons appears to be more than mere speculation. 5 Defendants argue that “[a]s a non-deputy stationed in the tower, [Detention Specialist DeHerrera] would never be called upon to leave the tower to ‘chase[e] buttons.’” Op. Br. at 35–36. But they do not offer any support for this statement, and we lack a Martinez report that might allow us to better understand ACDF operations. See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991) (A Martinez report “aids the court in its broad reading of the pro se litigant’s pleadings . . . by supplementing a plaintiff’s often inadequate description of the practices that he contends are unconstitutional.”). Hardy’s complaint states that he learned from Deputy Chavez that Detention Specialist DeHerrera did not respond to buttons, and so the allegation is not conclusory.
14 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 15
alleged facts showing that Detention Specialist DeHerrera served as a
gatekeeper to medical care by monitoring the emergency call buttons, and
that he chose not to fulfill that duty.6
Seeing an emergency button go off from a cell multiple times
reasonably indicates that some kind of emergency requiring a response is
happening in that cell. See Velez v. Johnson, 395 F.3d 732, 736 (7th Cir.
2005) (“For one thing, [the inmate] pushed an ‘emergency call button,’ a
clear indication that an emergency was at hand.”). That is not to say that
ignoring an emergency button always constitutes subjective awareness of a
serious risk of harm. If, for instance, Hardy or his cellmate had a known
history of abusing his emergency call button and pressing it at random,
Detention Specialist DeHerrera might have inferred that a button being
6 Defendants urge us to extend Lance v. Morris, where we found that
one defendant in a control tower who spoke with an inmate about a medical issue did not display deliberate indifference when he refused to get him medical attention. 985 F.3d 787, 794–96 (10th Cir. 2021). But in that case, unlike here, the defendant was able to speak with the prisoner, and the prisoner did not initially request medical attention or describe any pain. Id. at 795. (“According to [the plaintiff], he had only one conversation with [the defendant]. In that conversation, [the plaintiff] did not provide enough information to suggest a serious medical need[.]”). But later on, the plaintiff spoke to a different defendant in the control tower and requested medical attention. Id. at 797. This court found that the second defendant in Lance was subjectively made aware of a substantial risk of serious harm. Id. Here, Detention Specialist DeHerrera only knew that Hardy’s cell was signaling for some kind of emergency distress, and he had no reason to presume there was not an actual emergency. 15 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 16
pressed in that cell did not indicate an actual medical emergency. But
nothing in Hardy’s complaint would lead us to believe that type of history
was present here. We can also reasonably infer that Detention Specialist
DeHerrera would have seen that the button was pressed if he was in fact in
the control tower. And Hardy has alleged that Detention Specialist
DeHerrera ignored the signal both because help never arrived and because
Deputy Chavez told him so. As such, Hardy has sufficiently pleaded that
Detention Specialist DeHerrera was subjectively aware of a serious risk of
harm and nonetheless refused to fulfill his role as a gatekeeper to medical
care.
As for Deputy Rabie, Defendants argue that it would not have been
clear to him that Hardy needed medical attention. Deputy Rabie did not
know that the emergency button had been pressed and only came by Hardy’s
cell to bring him dinner. Defendants argue that by this time, Hardy was
sitting down in his wheelchair again and had been cleaned up by his
cellmate, and thus it would not be clear that he had fallen. Hardy’s
complaint frames things differently.
Hardy repeatedly states that he was “obviously in pain” and sitting in
a “contorted position” and that “anyone [would] see that [Hardy] was
injured in some way[.]” Aplt. App I at 25–26. To support this factual picture,
16 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 17
Hardy alleges that Deputy Rabie did in fact ask, “what happened to him.”
Id. at 25. Hardy responded that he had fallen out of his wheelchair and
“verbally declared a medical emergency[.]” Id.
According to the complaint, Deputy Rabie was independently aware
that something was wrong, Hardy said he was having a medical emergency,
and Hardy explained why he was having an emergency. Further, Deputy
Rabie had no way of knowing that Hardy would be seen by a nurse after the
shift change, so that fact could not have affected his subjective perception.
See Mata, 427 F.3d at 756 (“Events occurring subsequent to [a] complete
denial of medical care . . . have no bearing on whether [a defendant] was
deliberately indifferent at the time she refused to treat [a plaintiff].”).
Taking these alleged facts in the light most favorable to Hardy, as we must,
we conclude that Deputy Rabie was subjectively aware of a serious risk of
harm and then “disregarded that risk, by failing to take reasonable
measures to abate it.” Callahan, 471 F.3d at 1159.
Now that we have determined that Hardy’s constitutional rights were
violated, we consider whether these rights were clearly established. To
overcome qualified immunity, a right must be clearly established such that “a
reasonable official would understand that what he is doing violates that right.”
Truman, 1 F.4th at 1235 (citation omitted). “A right is clearly established when
17 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 18
a Supreme Court or Tenth Circuit decision is on point, or if the clearly
established weight of authority from other courts shows that the right must be
as the plaintiff maintains.” Id. (citation and internal quotation marks omitted).
However, we need not find “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.” Id. (citation omitted). What we look for is whether
“courts have previously ruled that materially similar conduct was
unconstitutional, or if ‘a general constitutional rule already identified in the
decisional law [applies] with obvious clarity to the specific conduct’ at issue.”
Buck, 549 F.3d at 1290 (alteration in original) (quoting United States v. Lanier,
520 U.S. 259, 271 (1997)).
As a threshold matter, Deputy Rabie and Detention Specialist
DeHerrera argue that Hardy can only demonstrate clearly established law
based on four cases that he cited to the district court.7 They argue that the
magistrate judge and the district court improperly relied on four additional
cases that were never raised by Hardy, and that our analysis is similarly
7 Quintana v. Santa Fe Cnty. Bd. of Commissioners, 973 F.3d 1022
(10th Cir. 2020); Al Turki v. Robinson, 762 F.3d 1188 (10th Cir. 2014); Est. of Booker v. Gomez, 745 F.3d 405 (10th Cir. 2014); Mata v. Saiz, 427 F.3d 745, 754 (10th Cir. 2005).
18 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 19
confined.8 Although plaintiffs bear the burden of showing that their rights
were clearly established, see Buck, 549 F.3d at 1277, that does not mean that
courts must blind themselves to relevant law once that argument is made.
Indeed, in Elder v. Holloway, the Supreme Court held that a plaintiff did not
need to put relevant cases into the district court record for those cases to be
considered on appeal when deciding whether the law was clearly established.
510 U.S. 510, 515 (1994).
Although Elder concerned the Ninth Circuit limiting the scope of its own
review, the principle applies equally to the proper scope of the district court’s
review. Whether a legal right is clearly established “presents a question of
law[.]” Id. at 516. “A court engaging in review of a qualified immunity
judgment should therefore use its ‘full knowledge of its own [and other
relevant] precedents.’” Id. (alteration in original) (quoting Davis v. Scherer, 468
U.S. 183, 192 n.9 (1984)). Hardy has not waived any argument with respect to
qualified immunity, and so, reviewing de novo, we will consider all relevant
precedent. See Cortez v. McCauley, 478 F.3d 1108, 1122 n.19 (10th Cir. 2007)
(“While it is true that Plaintiffs should cite to what constitutes clearly
established law, we are not restricted to the cases cited by them.”); Cox v.
8 Prince v. Sheriff of Carter Cnty., 28 F.4th 1033 (10th Cir. 2022); Lance, 985 F.3d 787; Burke v. Regalado, 935 F.3d 960 (10th Cir. 2019); Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000). 19 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 20
Glanz, 800 F.3d 1231, 1247 (10th Cir. 2015) (looking for case law not raised by
the plaintiff to determine whether her rights were clearly established “[i]n the
interest of thoroughness”).
Availing himself of our entire case law on appeal, Hardy raises numerous
on-point cases that apply to his circumstances. We conduct a brief survey of
the case law here, starting with Sealock, where we held that prison officials
violate an inmate’s constitutional rights when they deliberately ignore
requests for necessary medical attention and cause that inmate significant
pain and suffering. 218 F.3d at 1209. In that case, the plaintiff woke up in the
middle of the night and complained to prison officials of “a crushing pain in his
chest” and said that he “might be having a heart attack.” Id. at 1208. Prison
officials could see the plaintiff “was sweating, vomiting[,] and appeared very
pale[,]” but told him that they wouldn’t take him to a hospital because it was
“snowing outside and it would take time to warm up the prison van for
transportation.” Id. at 1208, 1210. The plaintiff was eventually treated for a
heart attack and made a full recovery, but this court still found that the official
who refused to take him to a hospital overnight acted with deliberate
indifference. Id. at 1210.
The Tenth Circuit has since applied this principle to cases where
plaintiffs suffered from less obvious instances of illness, but still experienced
significant pain due to a delay in requested medical care. In Mata, the plaintiff
20 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 21
went to a prison infirmary in the evening because she was feeling severe chest
pain. 427 F.3d at 750. The nurse on duty did not give her a medical assessment
and told her to return the next morning when the infirmary was open. Id. This
court found that the nurse “refused to fulfill her duty as gatekeeper in a
potential cardiac emergency.” Id. at 758.
In Olsen v. Layton Hills Mall, a plaintiff told jail officials when being
booked that he had OCD and needed medication to avoid panic attacks. 312
F.3d 1304, 1310 (10th Cir. 2002). His medication was taken from him, and
when he informed a jail official that he was having a panic attack and
requested help, the official did nothing in response. Id. This court refused to
grant the official qualified immunity on summary judgment, finding that he
“may have known of—and disregarded—an excessive risk to [the plaintiff’s]
health.” Id. at 1317.
More recently, in McCowan, we considered whether a police officer was
deliberately indifferent to a plaintiff’s medical needs when the plaintiff
complained of severe shoulder pain. 945 F.3d at 1280. The officer held the
plaintiff at a police station and delayed taking the plaintiff to a detention
center where he could get medical care, causing him to suffer “up to several
hours of excruciating pain.” Id. at 1291. Even though the plaintiff did not
specifically request medical care, this court found that he had plausibly alleged
21 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 22
that the officer was deliberately indifferent because the plaintiff repeatedly
stated he was in severe pain. Id. at 1292.
These are only some of the many Tenth Circuit cases where we have
found that prison officials display deliberate indifference by ignoring an
inmate’s reasonable requests for medical attention. See also Burke v. Regalado,
935 F.3d 960, 994 (10th Cir. 2019) (denying qualified immunity for jail officials
who left plaintiff immobile in his cell and failed to render medical aid after
plaintiff told them he was paralyzed); Prince, 28 F.4th at 1047–48 (10th Cir.
2022) (denying qualified immunity to a nurse who did not give prescribed
medical care to an inmate). Even when inmates do not request medical
attention, it is “clearly established that when a detainee has obvious and
serious medical needs, ignoring those needs necessarily violates the detainee’s
constitutional rights.” Quintana v. Santa Fe Cnty. Bd. of Commissioners, 973
F.3d 1022, 1033 (10th Cir. 2020).
As such, we have on point precedent involving materially similar conduct
to the actions of Deputy Rabie, who spoke with Hardy, observed his condition
and symptoms, and heard him ask for medical assistance. Defendants can only
distinguish these cases by raising immaterial factual differences, such as the
fact that none of them “involve back pain from a fall that had already been
otherwise resolved.” Op. Br. at 56–57. Given the alleged facts, however, we
22 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 23
have no trouble concluding that Deputy Rabie was on notice that his actions
violated Hardy’s constitutional rights.
But these cases provide fewer clear parallels when it comes to Detention
Specialist DeHerrera, who was only aware that Hardy (or his cellmate) was
pressing the cell’s emergency distress button. For Detention Specialist
DeHerrera, we look to other precedents involving remote requests for medical
help.
In Al-Turki, we considered the case of an inmate who used an intercom
in his cell to call for help. 762 F.3d at 1191. The plaintiff, who was known to
have diabetes, told a correctional officer that “he was experiencing severe pain
and nausea, and he asked to go to the medical center.” Id. That officer then
called the nurse on duty at the medical center, who said that “she would not
see [the plaintiff] because it was too late and because [his] complaint was not
an emergency.” Id. The plaintiff made two more requests for medical care, both
of which were also ignored. Id. The next morning, he passed two kidney stones
and completely recovered from his pain. Id. at 1192. This court found that the
23 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 24
nurse in Al-Turki was not entitled to qualified immunity.9 Id. at 1195.
Although she could not actually observe the plaintiff, “Defendant was aware
that severe abdominal pain, particularly in someone with diabetes, may be a
sign of any number of serious, life-threatening conditions.” Id. at 1194.
Further, “Defendant was also aware that she was the only medical staff person
on duty and that her decision to ignore Plaintiff’s request for medical treatment
would leave him without medical assistance.” Id. The defendant violated the
plaintiff’s constitutional rights because she was deliberately indifferent to
what would have appeared to be a medical emergency based on the facts as she
knew them at the time. Id.
We considered another intercom case in Lance v. Morris, this time
involving an inmate who developed a painful and potentially dangerous
priapism. 985 F.3d 787, 792 (10th Cir. 2021). Over three days, the plaintiff
reported his symptoms to multiple jail officials. Id. At first, he used his
intercom to call the jail’s control tower and told one defendant “that he had
taken a pill and developed an erection that would not go away. But he did not
9 Defendants note that the correctional officer in Al-Turki was granted
qualified immunity. But any comparison between the correctional officer in that case and Detention Specialist DeHerrera is unwarranted because the officer in Al-Turki did contact the medical center, and thus fulfilled his gatekeeper duties. 762 F.3d at 1191. Deputy Rabie and Detention Specialist DeHerrera are thus more analogous to the nurse, who did nothing in response to the plaintiff’s request for aid. 24 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 25
complain of pain or say that he needed to see a doctor or nurse[,]” so the
defendant did not respond. Id. at 794. This court found that this defendant did
not act with deliberate indifference because of what he learned during the call.
Id. However, the plaintiff also called the control tower the next day while a
different defendant was on duty in the tower. Id. at 797. This time, the plaintiff
reported “his persistent erection, his need for medical attention, and the
considerable pain he was experiencing.” Id. (internal brackets and quotation
marks omitted). Based on those facts, this court refused to grant summary
judgment as to this defendant based on qualified immunity, given “the
evidence of the call” to the control tower requesting medical attention as well
as the defendant’s “view of the [plaintiff’s cell]” through a window. Id. at 798.
While these cases do not involve emergency call buttons, they
demonstrate that it is deliberate indifference for jail officials to ignore calls for
help even where those officials have limited information. The defendants in Al-
Turki and Lance had more information than Detention Specialist DeHerrera.
Both could get reports of symptoms over the intercom, and the defendant in
Al-Turki knew the plaintiff had diabetes, while the defendant in Lance could
partially see into the plaintiff’s cell. But they also had far less information than
the defendants in our other deliberate indifference cases involving jail officials
who could interact with the plaintiffs firsthand. Even so, this court determined
that they exhibited deliberate indifference by not taking further action in light
25 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 26
of the information that they had available to them. According to Hardy’s
complaint, Detention Specialist DeHerrera was only able to know if the
emergency call button was pressed in Hardy’s cell, nothing more. When
Detention Specialist DeHerrera saw that it had been pressed multiple times,
Hardy claims that he chose to do nothing.
This court has established a “general constitutional rule” against
ignoring an inmate’s requests for emergency medical attention that applies
with “obvious clarity” to Detention Specialist DeHerrera’s actions. Buck, 549
F.3d at 1290. Defendants urge against finding that a rule applies with obvious
clarity “absent a high degree of factual similarity[.]” Op. Br. at 46. The
Supreme Court has indeed cautioned courts “not to define clearly established
law at a high level of generality” and to look to the “violative nature of
particular conduct[.]” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation
omitted). However, the question is not whether there is factual similarity, but
whether “the unlawfulness of the officer’s conduct ‘does not follow immediately
from the conclusion that [the rule] was firmly established.’” D.C. v. Wesby, 583
U.S. 48, 64 (2018) (alteration in original) (quoting Anderson v. Creighton, 483
U.S. 635, 641 (1987)).
We differ from the dissent because we consider this question in light of
the information available to Detention Specialist DeHerrera at the time he was
in the control tower. In that context, the unlawfulness of his conduct flows
26 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 27
naturally from our clearly established law on deliberate indifference.
Detention Specialist DeHerrera ignored a call from an emergency distress
button that could have been “a sign of any number of serious, life-threatening
conditions.” Al-Turki, 762 F.3d at 1194. Under these circumstances, and as a
gatekeeper to medical care and emergency response, Detention Specialist
DeHerrera would have been on notice that ignoring requests for emergency
assistance was a violation of an inmate’s constitutional rights. The Tenth
Circuit has made it “sufficiently clear that every reasonable official would have
understood that” this particular conduct was unlawful.10 Mullenix, 577 U.S. at
11 (citation omitted).
IV
Neither Detention Specialist DeHerrera nor Deputy Rabie can claim
qualified immunity based on the allegations contained in Hardy’s complaint.
Accordingly, we AFFIRM the ruling of the district court and REMAND for
further proceedings consistent with this opinion.
10 We also note that the Seventh Circuit has made this same determination regarding emergency call buttons. See Velez v. Johnson, 395 F.3d 732, 736 (7th Cir. 2005). Although we do not consider this enough to demonstrate a clearly established weight of authority from other circuits, it is nonetheless persuasive that our sister circuit found this constitutional right to be clearly established based solely on the principles of deliberate indifference outlined by the Supreme Court in Farmer v. Brennan. Id. (citing 511 U.S. 825, 833 (1970)). 27 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 28
Ralph Marcus Hardy v. Deputy Rabie and Deputy DeHerrera, No. 24-1138 BACHARACH, J., concurring in part and dissenting in part.
The district court denied the motions to dismiss by Deputies Rabie
and DeHerrera, and the majority upholds these rulings. I agree with the
district court and the majority on the claims involving Deputy Rabie, but
not those involving Deputy DeHerrera. In my view, Deputy DeHerrera’s
alleged violation of the Constitution wouldn’t have been clearly
established; and the absence of a clearly established violation would
trigger qualified immunity. So I would reverse the denial of Deputy
DeHerrera’s motion to dismiss.
1. The plaintiff must overcome qualified immunity based on his allegations in the complaint.
Mr. Hardy claims deliberate indifference to a serious medical
condition. For this claim, the district court had to credit Mr. Hardy’s well-
pleaded factual allegations. Sanchez v. Guzman, 105 F.4th 1285, 1299
(10th Cir. 2024). These allegations state that
• Mr. Hardy fell from his wheelchair,
• his cellmate pressed the emergency button in their cell,
• Deputy DeHerrera ignored the emergency signal from Mr. Hardy’s cell, and
• Mr. Hardy suffered serious pain while waiting for medical attention.
Crediting these allegations, the district court needed to decide whether the
alleged facts had stated a facially plausible claim. Strain v. Regalado, 977 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 29
F.3d 984, 989 (10th Cir. 2020). Once the district court ruled, we would
conduct de novo review. Id.
But we conduct this review against the backdrop of Deputy
DeHerrera’s assertion of qualified immunity. Given the assertion of
qualified immunity, we consider the objective reasonableness of Deputy
DeHerrera’s conduct as alleged in the complaint. Hemry v. Ross, 62 F.4th
1248, 1253 (10th Cir. 2023). For this inquiry, we consider
• whether Mr. Hardy has alleged facts that would entail a violation of a constitutional right and
• whether this right had been clearly established.
Est. of Lockett ex rel. Lockett v. Fallin, 841 F.3d 1098, 1107 (10th Cir.
2016). A right is clearly established if the Supreme Court, the Tenth
Circuit, or the weight of out-of-circuit authority has
• held that “materially similar conduct was unconstitutional” or
• identified a rule that applies “with obvious clarity” to the facts.
Buck v. City of Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008)
(quoting United States v. Lanier, 520 U.S. 259, 271 (1997)).
2. Our precedents wouldn’t clearly establish a constitutional violation unless the defendant had seen or heard about a prisoner’s medical condition.
For the claim itself, Mr. Hardy could prevail only if
• he incurred a serious medical condition and
2 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 30
• Deputy DeHerrera knew of, and disregarded, an excessive risk to health.
DeSpain v. Uphoff, 264 F.3d 965, 975 (10th Cir. 2001). As the majority
explains, Mr. Hardy plausibly alleged a serious medical condition. Maj.
Op. at 10. For Deputy DeHerrera, we may assume for the sake of argument
that he knowingly disregarded an excessive risk to Mr. Hardy’s health.
Even with that assumption, however, a constitutional violation wouldn’t be
clearly established because Mr. Hardy doesn’t allege that
• anyone discussed the fall with Deputy DeHerrera or
• Deputy DeHerrera observed Mr. Hardy.
The missing allegations resemble the circumstances in Lance v.
Morris, 985 F.3d 787 (10th Cir. 2021). There a prisoner developed a
priapism, which is a persistent, painful erection. Id. at 792. The prisoner
called the control tower, stating that he had developed an erection that
wouldn’t go away. Id. at 794. But the prisoner didn’t complain of pain or
say that he needed to see a doctor or nurse. Id. We concluded that even
though the condition was serious, the guard in the control tower hadn’t
acted with deliberate indifference in the absence of evidence about what he
might have seen or heard. Id. at 795.
Granted, we held that another officer wasn’t entitled to qualified
immunity at the summary-judgment stage given evidence that the officer
had talked to the prisoner about the priapism and could see into the cell.
3 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 31
Id. at 797–98; see Maj. Op. at 24–25. Here, however, there’s no allegation
that Deputy DeHerrera saw Mr. Hardy or heard that he was in medical
distress. So this holding in Lance wouldn’t clearly show a need for medical
care when the defendant hadn’t talked to the inmate or seen into his cell.
Mr. Hardy and the district court have pointed to numerous other
cases recognizing constitutional violations. In all of these cases, however,
the defendants had either observed the injured prisoners or been told about
their medical conditions. These cases consist of
• Sealock v. Colorado, where we denied qualified immunity to both a defendant who witnessed the symptoms of a heart attack and a defendant who had been told the plaintiff was experiencing chest pains, 218 F.3d 1205, 1210–12 (10th Cir. 2000),
• Olsen v. Layton Hills Mall, where we denied qualified immunity when the plaintiff notified the official of a panic attack, 312 F.3d 1304, 1316–17 (10th Cir. 2002),
• Mata v. Saiz, where we denied qualified immunity when a nurse had personally observed, and spoken with, the plaintiff, 427 F.3d 745, 756–59 (10th Cir. 2005),
• Al-Turki v. Robinson, where we denied qualified immunity when the official had been told repeatedly about the plaintiff’s severe pain, 762 F.3d 1188, 1191 (10th Cir. 2014), 1
• Estate of Booker v. Gomez, where we denied qualified immunity when the officials had placed the plaintiff in a 1 The majority also relies on this case, pointing to the treatment of a prison nurse. Maj. Op. at 23–24 & n.9. But the nurse was told that plaintiff had experienced severe abdominal pain and had requested medical care. Al- Turki, 762 F.3d at 1191. According to the complaint, Deputy DeHerrera had no comparable information as to the nature of the emergency request from Mr. Hardy’s cell. 4 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 32
chokehold, tasered him, and put him in a holding cell, 745 F.3d 405, 414–15, 434 (10th Cir. 2014),
• McCowan v. Morales, where we denied qualified immunity when the plaintiff had repeatedly informed the official of a shoulder injury, 945 F.3d 1276, 1292 (10th Cir. 2019),
• Quintana v. Santa Fe County Board of Commissioners, where we denied qualified immunity when an official had known that the plaintiff was vomiting blood, 973 F.3d 1022, 1030–31 (10th Cir. 2020),
• Paugh v. Uintah County, where we denied qualified immunity when the officials were aware of symptoms that had obviously been serious, 47 F.4th 1139, 1157–65 (10th Cir. 2022), and
• Prince v. Sheriff of Carter County, where we denied qualified immunity when the official had (1) heard the plaintiff using incoherent phrases and (2) ignored a doctor’s orders concerning the treatment, 28 F.4th 1033, 1046 (10th Cir. 2022).
In all of these cases, the prison official knew of the medical conditions by
• observing the injured or ill prisoners or
• being told about the conditions.
The same is true of the opinions that Mr. Hardy cites from other
circuits: In each opinion, the guard had either observed the prisoner in
medical distress or been told about it. See Williams v. City of Yazoo, 41
F.4th 416, 423–24 (5th Cir. 2022) (stating that the plaintiff had adequately
alleged the defendants’ knowledge of the medical condition based on what
they had been told and their knowledge of the plaintiff’s diagnosis);
Phillips v. Roane Cnty., 534 F.3d 531, 540–41 (6th Cir. 2008) (observing
that the plaintiff was being held in a cell that the officials would have
5 Appellate Case: 24-1138 Document: 37-1 Date Filed: 08/04/2025 Page: 33
understood as reserved for inmates undergoing medical crises); Schaub v.
VonWald, 638 F.3d 905, 915–16 (8th Cir. 2011) (holding that an official
was aware of serious medical needs when notified by a doctor).
We lack any allegations about a similar observation or statement to
Deputy DeHerrera about Mr. Hardy’s need for medical attention. To the
contrary, Mr. Hardy argues only that Deputy DeHerrera saw and ignored an
emergency notification from Mr. Hardy’s cell. But Mr. Hardy hasn’t cited
any opinions recognizing a constitutional violation without the official’s
observation or notification of a prisoner who is injured or sick. As a result,
Deputy DeHerrera’s alleged constitutional violation wouldn’t have
involved a clearly established constitutional right. And in the absence of a
clearly established right, I would reverse the denial of Deputy DeHerrera’s
motion to dismiss.