Smith v. Allbaugh

987 F.3d 905

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 10, 2021
• Docket: 20-6029
• Status: Published

Opinion

FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 10, 2021

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

CHRISTINA SMITH, individually and as next friend of her son, Joshua England,

Plaintiff - Appellee,

v. No. 20-6029

JOE ALLBAUGH; CARL BEAR,

Defendants - Appellants,

and

ROBERT BALOGH; WENDELL MILES; LAURA HAYS; LAURA NOBLE; OKLAHOMA DEPARTMENT OF CORRECTIONS OFFICERS JOHN DOES #1-10; RICHARD ROE, Case Manager,

Defendants. _________________________________

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:19-CV-00470-G) _________________________________

Devan A. Pederson (and Kari Y. Hawkins, Assistant Attorney General, Litigation Division of Oklahoma Attorney General’s Office, with him on the briefs), Oklahoma City, Oklahoma, for Defendants-Appellants.

Katherine Rosenfeld (and Emma L. Freeman of Emery, Celli, Brinckerhoff & Abady, LLP, New York, New York; Henry A. Meyer, III of Mulinix, Goerke & Meyer, PLLC, Oklahoma City, Oklahoma; Paul DeMuro of Frederic, Dorwart, Lawyers, PLLC, Tulsa, Oklahoma, with her on the brief), for Plaintiff-Appellee. _________________________________ Before HARTZ, KELLY, and PHILLIPS, Circuit Judges. _________________________________

KELLY, Circuit Judge. _________________________________

Defendants-Appellants Joe Allbaugh, the Director of the Department of

Corrections at the time this claim arose, and Carl Bear, the Warden of Joseph Harp

Correctional Center (collectively, Defendants) appeal from the district court’s order

denying their motion to dismiss on grounds of qualified immunity. Smith v.

Allbaugh, No. CIV-19-470-G, 2020 WL 889165 (W.D. Okla. Feb. 24, 2020).

Defendants also challenge Plaintiff-Appellee Christina Smith’s standing in this case.

Exercising jurisdiction under 28 U.S.C. § 1291 based upon the denial of qualified

immunity, Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), we reverse.

Background

Ms. Smith is the mother of Joshua England. Aplt. App. 39. Her claims arise

from the death of Mr. England from a ruptured appendix in May 2018, while Mr.

England was housed at the Joseph Harp Correctional Center (JHCC), an Oklahoma

Department of Corrections (ODOC) facility in Lexington, Oklahoma. Aplt. App 40–

43.

A. Mr. England’s course of treatment

Mr. England was a 21-year-old prisoner at JHCC who was a few months away

from release. On May 22, he submitted a sick call request to the prison health clinic,

complaining of severe abdominal pain and bloody vomit. He was treated with Pepto-

Bismol and told to return if the pain did not subside. The nurse did not examine Mr.

2 England’s abdomen. On May 23, Mr. England submitted a second sick call request,

complaining of pain so severe that he could barely breath and could not eat. He also

reported bloody stool and presented with an elevated pulse and blood pressure. He

was seen by the prison’s physician assistant (PA) and nurse. He was given

magnesium citrate (a laxative) and was sent away without an abdominal examination

or a referral to a physician. Mr. England submitted a third sick call request that same

day, complaining of intense pain, but the nurse refused to see him.

On May 26, Mr. England submitted a fourth sick call request, again identifying

extreme stomach pain and difficulty breathing. Mr. England complained that he

could not lie down due to the pain. Mr. England saw the PA and nurse at the prison

health clinic and presented with an elevated pulse and reported a pain level of nine

out of ten. The nurse and PA did not give Mr. England a complete abdominal

examination and inaccurately wrote in Mr. England’s medical chart that he only had

been experiencing his symptoms for two days. The ODOC physician was notified of

Mr. England’s condition and ordered that Mr. England be given Ibuprofen, drink lots

of fluids, and eat fibrous foods.

On May 29, Mr. England submitted a fifth sick call request, noting that he was

short of breath and that his stomach hurt. He had also lost twelve pounds in less than

two weeks. Mr. England’s heart rate was recorded at 158 beats per minute. Mr.

England was instructed to wait at the clinic to see a provider, but Mr. England

returned to his cell as he was unable to bear the pain while waiting. The nurse and

other JHCC employees went to Mr. England’s cell, but Mr. England told them that he

3 could not walk back to the clinic. Mr. England was delirious at this point. The nurse

forced Mr. England to sign a Waiver of Treatment/Evaluation form. Mr. England

died in his cell that afternoon from a ruptured appendix with acute peritonitis.

B. Procedural History

Ms. Smith filed suit “individually and as next friend of her son, Joshua

England” on May 24, 2019. Aplt. App. 13. Ms. Smith asserted § 1983 claims

against Defendants as well as other state-law claims. Aplt. App. 62–68. Ms. Smith

alleged supervisory liability based on theories of a failure to promulgate, implement

or enforce certain medical care policies, and a failure to hire qualified medical

providers and supervise them. Aplee. Br. at 2; Aplt. App. 52–53, 62–63. On July 9,

2019, Defendants moved to dismiss, asserting a variety of defenses including

qualified immunity on the federal claims. Aplt. App. 71–85. The district court

denied Defendants’ motion to dismiss in the entirety, holding that Defendants were

not entitled to qualified immunity. Aplt. App. 114–136. The district court held that

Ms. Smith sufficiently pleaded deliberate indifference to serious medical needs,

supervisory liability on the part of Defendants, and that the law was clearly

established. Smith, 2020 WL 889165 at *6–8.

Ms. Smith was not appointed Personal Representative of Mr. England’s Estate

until May 22, 2020. Aplee. Br. 9. On May 29, 2020, Plaintiff filed a motion to

amend the complaint pursuant to Fed. R. Civ. P. 15 and substitute herself in that

capacity as the real party in interest pursuant to Fed. R. Civ. P. 17(a)(3). That motion

is pending.

4 Discussion

“We review the district court’s denial of a motion to dismiss based on

qualified immunity de novo, accepting as true all well-pleaded factual allegations in

the complaint and viewing the allegations in the light most favorable to the non-

moving party.” A.N. by & through Ponder v. Syling, 928 F.3d 1191, 1196 (10th Cir.

2019) (citation omitted).

A. Subject Matter Jurisdiction

The district court had jurisdiction over this action. On appeal, Defendants

argue that the district court lacked jurisdiction over this action because Ms. Smith

was not the legal administrator of Mr. England’s estate when she filed her initial

complaint. Aplt. Br. 29–30. But this is a question of who is the real party in interest,

rather than a jurisdictional issue. See First Am. Title Ins. Co. v. Nw. Title Ins.

Agency, 906 F.3d 884, 890 (10th Cir. 2018). And Ms. Smith was certainly a proper

plaintiff. “Federal courts are to apply state law in deciding who may bring a § 1983

action on a decedent’s behalf.” Williams v. Bradshaw, 459 F.3d 846, 848 (8th Cir.

2006); see also Pope v. Ward, No. 95-7129, 1996 WL 460023, *1 (10th Cir. Aug. 14,

1996) (unpublished); 42 U.S.C. § 1988(a). Under Oklahoma state law, a decedent’s

next of kin may bring a wrongful death action, even if that person has not yet been

appointed personal representative. Okla. Stat. tit. 12, §§ 1053–54. It is undisputed

that Ms. Smith is Mr. England’s next of kin.

Defendants argue that Ms. Smith filed suit as “next friend” of Mr. England,

instead of “next of kin.” Aplt. Reply Br. 3. However, if (as is doubtful) the

5 description of her status was defective, that can be readily cured. See Fed. R. Civ. P.

17(a)(3).

B. Constitutional Violation

A public official or employee is entitled to qualified immunity unless “clearly

established” federal rights of which a reasonable person would have known are

shown to have been violated. Hunter v. Bryant, 502 U.S. 224, 227 (1991). Once a

defendant asserts the defense of qualified immunity, the plaintiff must demonstrate

that “(1) the defendant violated a constitutional right and (2) the constitutional right

was clearly established.” Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012)

(citation omitted).

Ms. Smith alleged that Defendants violated Mr. England’s Eighth and

Fourteenth Amendment constitutional rights based on two theories of supervisory

liability: (1) failure to implement/promulgate sufficient policies and procedures that

would have prevented the constitutional violations at issue, Aplt. App. 52–53; and (2)

failure to hire and supervise qualified JHCC medical staff, Aplt. App. 62–63. Both

theories rely on Ms. Smith’s underlying allegations of constitutional violations

committed by the JHCC medical staff for deliberate indifference to Mr. England’s

medical needs. Aplt. App. 62–63. Defendants argue that Ms. Smith failed to state a

claim for the underlying deliberate indifference claim, as well as for supervisory

liability. Aplt. Br. 9–17.

6 a. Underlying Deliberate Indifference Claim

Ms. Smith stated a claim for deliberate indifference to Mr. England’s medical

needs. Under the Eighth Amendment, 1 “prison officials must ensure that inmates

receive adequate food, clothing, shelter, and medical care, and must ‘take reasonable

measures to guarantee the safety of the inmates.’” Farmer v. Brennan, 511 U.S. 825,

832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). This includes

a constitutional right to be free from “deliberate indifference to an inmate’s serious

medical need.” Mata v. Saiz, 427 F.3d 745, 749 (10th Cir. 2005). To establish

deliberate indifference based on prison officials failing to attend to an inmate’s

serious medical needs, a plaintiff must satisfy an objective and subjective component.

See id. at 751. Under the objective component, the deprivation must be “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.” Id.

(citation omitted). Under the subjective component, the prison official must have

acted with a culpable state of mind, namely “deliberate indifference.” Id. To

establish a culpable state of mind, Ms. Smith must show that the JHCC medical staff

“kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Id.

(citation omitted). Defendants do not contest that Mr. England’s medical condition

1 Section 1983 claims made under the Fourteenth Amendment for deliberate indifference are evaluated under the same standard as section 1983 claims made under the Eighth Amendment for deliberate indifference. See Quintana v. Santa Fe Cty. Bd. of Commissioners, 973 F.3d 1022, 1028 (10th Cir. 2020). 7 was sufficiently serious to satisfy the objective component of a § 1983 deliberate

indifference claim.

Ms. Smith plausibly alleged that the JHCC medical staff was deliberately

indifferent to serious medical needs. Mr. England made five sick call requests, each

time complaining of severe pain and physical symptoms such as bloody vomit and

stool and difficulty breathing. Further, the medical staff recorded physical symptoms

in their examination, noting that Mr. England lost twelve pounds within two weeks,

that Mr. England had an elevated heartrate, and even that he faced “possible death” a

few hours before he died. Aplt. App. 51, 54. Ms. Smith has plausibly pled that the

JHCC medical staff demonstrated deliberate indifference when they failed to perform

a complete abdominal exam despite Mr. England’s complaints of severe stomach

pain, when they failed to follow ODOC policies by failing to contact emergency

services, and when they coerced Mr. England to sign a waiver despite his physical

symptoms. Aplt. App. 45, 47, 49, 52–54.

Defendants argue that the JHCC medical staff was not deliberately indifferent

because they merely misdiagnosed him, which does not rise to the level of deliberate

indifference. Aplt. Br. 20. Defendants argue that Ms. Smith’s differing opinion as to

the course of treatment the medical staff chose for Mr. England is insufficient to

support a claim for an Eighth Amendment violation. Aplt. Br. 21. However, Ms.

Smith’s allegations do not amount to a differing opinion as to the course of treatment,

but a claim that JHCC medical staff “respond[ed] to an obvious risk with treatment

that is patently unreasonable.” Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006).

8 Indeed, Ms. Smith alleges that Mr. England presented with severe symptoms, but that

the medical staff prescribed woefully inadequate treatment in the form of Pepto-

Bismol, a laxative, Ibuprofen, and fibrous foods.

b. Supervisory Liability Claims

i. Failure to Implement/Promulgate Sufficient Policies and Procedures Claim We disagree with the district court that Ms. Smith sufficiently alleged claims

for a failure to implement/promulgate sufficient policies and procedures to prevent

the constitutional violation at issue here. To plead supervisory liability against the

Defendants for failure to implement/promulgate sufficient policies and procedures

that would have prevented the constitutional violation at issue here, Ms. Smith must

allege that “(1) the defendant promulgated, created, implemented or possessed

responsibility for the continued operation of a policy that (2) caused the complained

of constitutional harm, and (3) acted with the state of mind required to establish the

alleged constitutional deprivation.” Brown v. Montoya, 662 F.3d 1152, 1163–64

(10th Cir. 2011) (citation omitted). Further, plaintiff must plead facts sufficient to

support such a claim and may not stand on mere conclusory allegations. Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).

Ms. Smith fails to assert sufficient facts to support a causal link between

Defendants’ actions and the constitutional violation. Ms. Smith asserts five policies

and procedures that Defendants failed to promulgate or enforce. She pleads two

policies that Defendants failed to “enforce”: (1) a policy requiring facility nurses and

9 staff to immediately inform the facility medical provider when facing complaints of

difficulty breathing or complaints relating to the abdomen; and (2) a policy requiring

facility nurses and staff to immediately contact emergency services if an inmate

complained of severe difficulty breathing or experienced a sudden onset of altered

medical status. Aplee. Br. 18. However, Ms. Smith only alleges that JHCC medical

staff failed to follow such procedures, Aplt. App. 52–53, not that Defendants failed to

enforce these policies. Indeed, Ms. Smith fails to plead any facts tending to show

that Defendants were aware of prior instances of these policies not being followed

and that they failed to rectify those situations.

Ms. Smith further pleads that Defendants failed to “promulgate, implement,

and/or enforce policies” (1) “requiring medical staff to inform a physician and/or

refer an inmate to a hospital when an inmate complained of difficulty breathing,

experienced acute stomach pain, or showed obvious signs of medical distress;” (2)

“requiring a facility physician to conduct an in-person examination of a critically ill

patient or arrange for their transfer to a facility where a physician’s examination was

available;” and (3) “regarding necessary protocols when an inmate lacks capacity to

refuse medical treatment.” Aplee. Br. 18. However, the first two policies are the

same policies that Ms. Smith argues should have been enforced above. As for the

final policy, Ms. Smith attaches a copy of the Waiver of Treatment/Evaluation Form

in the complaint that states protocols that must be followed by the medical staff when

completing the form. Aplt. App. 55. Again, while the medical staff may not have

followed the protocol, Ms. Smith fails to allege facts that Defendants knowingly

10 failed to enforce the policy and therefore fails to assert a causal link between their

actions and the constitutional violation.

Ms. Smith also failed to plead sufficient factual allegations to support

deliberate indifference on the part of these defendants. First, Ms. Smith alleges that

Defendants “were aware that the policies and procedures they created, promulgated,

implemented, and/or enforce[d]—or failed to create, promulgate, implement, or

enforce—resulted in grossly deficient medical care to inmates at Joseph Harp.” Aplt.

App. 59. However, such conclusory allegations, without sufficiently pleaded

supporting facts, are insufficient to state a claim. Iqbal, 556 U.S. at 679. Second,

Ms. Smith alleges that Mr. Allbaugh referred to JHCC as a “sinking ship.” Aplt.

App. 59–60. However, such a broad statement is inadequate to demonstrate that Mr.

Allbaugh knew there were specific policies being violated and failed to enforce them.

It is likewise inadequate to demonstrate awareness of an absence of specific policies

to prevent the violation of inmates’ constitutional rights.

ii. Improper Hiring/Supervision Claim We also disagree with the district court that Ms. Smith sufficiently pled that

Defendants improperly hired, supervised, and retained certain medical staff

employees. This court has held that a supervisory liability claim will not succeed in

the absence of some “direct causal link between the [defendant’s] action and the

deprivation of federal rights.” Schneider v. City of Grand Junction Police Dep’t, 717

F.3d 760, 770 (10th Cir. 2013) (citation omitted). Ms. Smith’s allegations center on

the hiring of two medical staff members at JHCC: Robert Balogh and Wendell Miles,

11 respectively the physician and PA employed by the ODOC and assigned to JHCC.

Aplt. App. 41, 58–59. Ms. Smith alleges that Defendants were liable given the past

drug use and related discipline of Mr. Balogh and Mr. Miles. Aplt. App. 58, 63.

However, Ms. Smith does not allege that Mr. Balogh and Mr. Miles’ violation of Mr.

England’s Eighth Amendment rights was caused by their drug use.

As we have concluded that Ms. Smith failed to sufficiently plead that Mr.

Allbaugh and Mr. Bear committed a constitutional violation, we need not address

whether any such violation was of a clearly established constitutional right. See

Morris, 672 F.3d at 1191.

Accordingly, the district court’s order is REVERSED as to the denial of

qualified immunity for Defendants-Appellants Joe Allbaugh and Carl Bear.