ESTATE OF TOMAS BEAUFORD; TIFFANY MARSH, personally and as representative of the estate of Tomas Beauford v. MESA COUNTY, COLORADO; CORRECT CARE SOLUTIONS, LLC; CORRECTIONAL HEALTHCARE COMPANIES, INC.; CORRECTIONAL HEALTHCARE PHYSICIANS, P.C.; CORRECTIONAL HEALTHCARE MANAGEMENT, INC.; SHERIFF MATT LEWIS, in his official capacity; DEPUTY PETER M. DALRYMPLE; DEPUTY RICHARD D. PERKINSON; NURSE RENEE WORKMAN; NURSE VELDA HAVENS; NURSE AUDRA KEENAN; NURSE JEANNE ANNMARIE SCHANS; MICHAEL LEFEBRE, in his official and individual capacities; DR. KURT HOLMES, in his official and individual capacities
No. 21-1010
United States Court of Appeals for the Tenth Circuit
May 25, 2022
PUBLISH
Before McHUGH, MURPHY, and ROSSMAN, Circuit Judges.
PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
ESTATE OF TOMAS BEAUFORD; TIFFANY MARSH, personally and as representative of the estate of Tomas Beauford,
Plaintiffs - Appellants,
v.
No. 21-1010
MESA COUNTY, COLORADO; CORRECT CARE SOLUTIONS, LLC; CORRECTIONAL HEALTHCARE COMPANIES, INC.; CORRECTIONAL HEALTHCARE PHYSICIANS, P.C.; CORRECTIONAL HEALTHCARE MANAGEMENT, INC.; SHERIFF MATT LEWIS, in his official capacity; DEPUTY PETER M. DALRYMPLE; DEPUTY RICHARD D. PERKINSON; NURSE RENEE WORKMAN; NURSE VELDA HAVENS; NURSE AUDRA KEENAN; NURSE JEANNE ANNMARIE SCHANS; MICHAEL LEFEBRE, in his official and individual capacities; DR. KURT HOLMES, in his official and individual capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of Colorado
(D.C. No. 1:16-CV-00851-DDD-GPG)
David A. Lane (Darold W. Killmer, Michael Fairhurst, and Andy McNulty with him on the briefs), Killmer, Lane & Newman, LLP, Denver Colorado, for Plaintiffs - Appellants
Jacob Z. Goldstein (Eric P. Schoonveld, Theodore C. Hosna, and Casey Kannenberg with him on the brief), Hall Prangle & Schoonveld, LLC, Chicago, Illinois, for CHC Defendants - Appellees
Andrew B. Clauss (Chris W. Brophy with him on the brief), Dinsmore & Shohl LLP, Denver, Colorado, for Mesa County Defendants - Appellees
After midnight on April 16, 2014, Tomas Beauford suffered a fatal epileptic seizure in his cell while in pretrial custody at the Mesa County Detention Facility (“MCDF“). The administrator of Mr. Beauford‘s estate sued various Mesa County and medical defendants1 in federal district court in Colorado under
I. Background
A. Factual Background2
Mr. Beauford was a 24-year-old Black male who suffered from epilepsy. He also had a severe intellectual disability and several mental health disorders, including bipolar disorder, paranoid schizophrenia, attention hyperactivity disorder, and oppositional defiant disorder. Mr. Beauford‘s IQ was 52, and he functioned at the level of a five- or six-year-old child.
Mr. Beauford was prescribed many medications, including anti-seizure medicine, which he had a history of refusing. Mr. Beauford also had an implanted Vagus Nerve Stimulator (“VNS“) to control his epilepsy. A VNS is a “bodily implant that interferes with a seizure by sending a shock through the nervous system.” Aplt. App. vol. 12 at 3292. The device “has a microprocessor that automatically stimulates the vagus nerve every few minutes,” and it also can be activated by a magnetic bracelet. Id. It is undisputed that, at the time he was arrested, Mr. Beauford had a VNS bracelet, but it was not with him when he died.
1. Mr. Beauford‘s 2014 Detention at MCDF
On March 1, 2014, Mr. Beauford was arrested on charges of assault and unlawful sexual contact and booked into MCDF. He was housed alone in a single cell, located either in the booking area or in an administrative segregation area called Cedar Pod.
Mesa County contracted with a private company - defendant CHC - to provide medical services to inmates at MCDF. Defendant Dr. Kurt Holmes oversaw CHC‘s medical care services and defendant Michael LeFebre was the mental health supervisor at MCDF. CHC also employed defendant nurses Velda Havens, Audra Keenan, Jeanne Schans, and Renee Workman. Each of these defendants cared for Mr. Beauford in some capacity while he was detained at MCDF.3
During his detention, Mr. Beauford refused medications about fifty percent of the time. The defendant nurses encouraged him to take his medicine by offering his favorite snacks, such as Taco Bell burritos and Sprite. Dr. Holmes and Mr. LeFebre knew Mr. Beauford at times refused medication, including his anti-seizure medicine. But they took no action other than to advise the nurses they should continue to offer medication and to entice Mr. Beauford to take it.
Mr. Beauford‘s physical and mental condition deteriorated at MCDF. On March
2. The Night of April 15-164
By the evening of April 15, Mr. Beauford had been refusing all medications, including his anti-seizure medicine, for the past three days. That evening and through the early morning of April 16, defendant Deputies Dalrymple and Perkinson were on duty in Cedar Pod, along with Nurse Workman. Officers on the night shift conducted inmate security checks every half hour as required by MCDF policy. The exact time of each security check was recorded in the jail‘s computer system. While one officer performed the security check, the other officer staffed the pod station. Officers also assisted the on-duty nurse with medication rounds and took inmate head counts.
Deputies Dalrymple and Perkinson each conducted security checks from 6:00 p.m. to 7:20 p.m. on April 15 and observed no issue with any inmate. Aplt. App. vol. 8 at 2282-83. During a security check at 7:50 p.m., Deputy Perkinson stepped into Mr. Beauford‘s cell to pick up a dinner tray. He observed Mr. Beauford grunting underneath his blanket. Deputy Perkinson thought Mr. Beauford was probably masturbating and otherwise “seemed normal,” so he did not talk to him. Id. at 2283. “[A]ll seemed okay” with Mr. Beauford during the next security check at 8:20 p.m. Id.
Around 8:40 p.m., Deputy Perkinson and Nurse Workman were on medication rounds when they came to Mr. Beauford‘s cell and observed him “on the bed, and completely covered by a blanket.” Id. Deputy Perkinson first thought Mr. Beauford might be masturbating again. But “due to how he was shaking” and knowing that Mr. Beauford was an epileptic, Deputy Perkinson “had a second thought that Mr. Beauford may be seizing.” Id. Deputy Perkinson and Nurse Workman entered Mr. Beauford‘s cell and discovered he was having a seizure. Nurse Workman turned Mr. Beauford on his side and sat with him through the duration of the seizure, which lasted five more minutes. Deputy Perkinson and Nurse Workman then left Mr. Beauford‘s cell at 8:49 p.m. to finish medication rounds. Id. at 2383.
At 9:01 p.m., Deputy Dalrymple performed another security check. Id. He looked into Mr. Beauford‘s cell and saw
Deputy Perkinson and Nurse Workman returned to Mr. Beauford‘s cell at 9:21 p.m. Id. at 2284, 2383. Mr. Beauford refused to let Nurse Workman take his vitals and asked them to leave. Nurse Workman assured Deputy Perkinson that Mr. Beauford would be fine and she did not instruct the deputies to conduct extra monitoring of Mr. Beauford.
The deputies completed more security checks about every half-hour over the next several hours, and each time, observed Mr. Beauford laying on his bed, reading or sleeping. After doing a security round at 10:15 p.m., Deputy Perkinson moved off Cedar Pod to other duties, leaving Deputy Dalrymple as the only officer on the pod.5
During his security check at 11:55 p.m., Deputy Dalrymple saw Mr. Beauford laying on the floor of his cell, facedown, with his head under his desk. Id. at 2281, 2310. Deputy Dalrymple used his flashlight to illuminate Mr. Beauford and watched him for a few moments. He knew Mr. Beauford often slept in unusual positions in his cell and believed Mr. Beauford was breathing because he saw Mr. Beauford‘s covers rising and falling. Id. at 2282. Deputy Dalrymple then finished his security check and returned to the pod officer station.
On his next security round at around 12:15 a.m.,6 Deputy Dalrymple observed Mr. Beauford lying motionless in the same position on the floor of his cell. This time, however, Deputy Dalrymple “could not tell for sure” if Mr. Beauford was breathing. Id. at 2282-83. After completing his security check, Deputy Dalrymple alerted medical personnel he had observed Mr. Beauford lying on the floor of his cell. “About ten minutes passed between Deputy Dalrymple‘s observation and his call to the [MCDF] medical staff.” Aplt. App. vol. 12 at 3293. Around 12:25 a.m.,7 Deputy Dalrymple and Nurse Workman entered Mr. Beauford‘s cell and found him unresponsive.
Nurse Workman retrieved a medical kit while Deputy Dalrymple started CPR and other staff called 911. Deputies moved Mr. Beauford into the “dayroom area outside the cell door in order to have room for resuscitation.” Aplt. App. vol. 6 at 1548. Nurse Workman used a portable defibrillator and deputies performed chest compressions until paramedics arrived. These rescue efforts were unavailing. Mr. Beauford was pronounced dead at approximately 2:45 a.m. on April 16, 2014. Aplt. App. vol.
B. Procedural History
In 2016, the Estate filed the underlying lawsuit alleging8 (1)
The Mesa County Defendants moved for summary judgment on all claims asserted against them. The Medical Defendants moved for summary judgment on the
The district court granted the Mesa County Defendants’ summary judgment motion in its entirety. The court concluded Deputies Perkinson and Dalrymple were entitled to qualified immunity on the Estate‘s deliberate indifference claim because (1) the Estate failed to show the deputies violated Mr. Beauford‘s Fourteenth Amendment rights, and (2) no clearly established law put the deputies on notice that they could not rely on Nurse Workman‘s medical advice or that Deputy Dalrymple “needed to immediately call for help after seeing Mr. Beauford on the floor of his cell.” Aplt. App. vol. 12 at 3306-07 (district court‘s emphasis). The district court also granted summary judgment to the County on the Estate‘s ADA and Monell claims.
The district court granted in part the Medical Defendants’ motion.10 Finding the Medical Defendants ineligible for qualified immunity, the district court then determined there was insufficient evidence to show the Individual Medical Defendants were deliberately indifferent to Mr. Beauford‘s serious medical needs. And because none of the Individual Medical Defendants committed a constitutional violation, the district court further found the Entity Medical Defendants could not be liable under Monell.
The district court certified its interlocutory order for immediate review under
II. Discussion
A. Standard of Review
We review the grant of summary judgment de novo, and apply the same legal standard used by the district court under
We review summary judgment orders deciding qualified immunity questions differently from other summary judgment decisions. See Nelson v. McMullen, 207 F.3d 1202, 1205-06 (10th Cir. 2000) (“This difference arises from the unique nature of qualified immunity, which is designed to protect public officials from spending inordinate time and money defending erroneous suits at trial.“). The doctrine of qualified immunity shields government officials from liability where “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff, who must demonstrate on the facts alleged that (1) the defendant‘s actions violated his or her constitutional or statutory rights, and (2) the right was clearly established at the time of the alleged misconduct. See Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009). “If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment - showing ‘that
In the final analysis, even when qualified immunity is at issue, “the defendant still bears the normal summary judgment burden of showing that no material facts remain in dispute that would defeat the qualified immunity defense.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002). “When the record shows an unresolved dispute of historical fact relevant to this immunity analysis, a motion for summary judgment based on qualified immunity should be ‘properly denied.‘” Id. at 1312 (quoting Salmon v. Schwarz, 948 F.2d 1131, 1136 (10th Cir. 1991)).
B. Constitutional Right to Adequate Medical Care for Pretrial Detainees
The right to custodial medical care is well settled. See generally Estelle v. Gamble, 429 U.S. 97 (1976). “The Fourteenth Amendment‘s Due Process Clause entitles pretrial detainees to the same standard of medical care that the Eighth Amendment requires for convicted inmates.” Lance, 985 F.3d at 793; see also Clark v. Colbert, 895 F.3d 1258, 1267 (10th Cir. 2018) (explaining the Eighth Amendment includes “an entitlement to a certain minimum standard of medical care while incarcerated“). “Although pretrial detainees are protected under the Due Process Clause rather than the Eighth Amendment, this Court applies an analysis identical to that applied in Eighth Amendment cases brought pursuant to
Prison officials violate the Constitution when they act with “deliberate indifference to an inmate‘s serious medical needs.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005). “The deliberate indifference standard lies ‘somewhere between the poles of negligence at one end and purpose or knowledge at the other.‘” Id. at 752 (quoting Farmer v. Brennan, 511 U.S. 825, 836 (1994)). The contours of constitutional liability under the deliberate-indifference standard are familiar: there is both an objective and a subjective component. See Farmer, 511 U.S. at 834. “[T]he focus of the objective component is the seriousness of the plaintiff‘s alleged harm, while the focus of the subjective component is the mental state of the defendant with respect to the risk of that harm.” Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1044 (10th Cir. 2022).
To satisfy the objective component, the plaintiff must produce evidence that the prisoner‘s medical need was “sufficiently serious.” Farmer, 511 U.S. at 834 (citation omitted). “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.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (internal quotation marks omitted). A delay in medical care can also be sufficiently serious if “the delay resulted in substantial harm.” Mata, 427 F.3d at 751. “The substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Id. (internal quotation marks omitted).
The subjective prong requires a plaintiff to establish that a prison official had “a sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (internal quotation marks omitted). “In prison-conditions cases that state of mind is one of deliberate indifference to inmate health or safety.” Id. (internal quotation marks omitted). Deliberate indifference
“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, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Mata, 427 F.3d at 752 (citation omitted). “This is so because if a risk is obvious so that a reasonable man would realize it, we might well infer that the defendant did in fact realize it.” Id. (brackets and internal quotation marks omitted). But “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
C. Analysis
The district court concluded Mr. Beauford‘s epilepsy was a sufficiently serious medical condition that satisfied the objective component of the deliberate-indifference inquiry. The parties do not dispute this determination on appeal. Our analysis thus focuses on the Estate‘s contentions of error surrounding the subjective prong of the deliberate-indifference standard. We consider first the Estate‘s argument that the district court erred by concluding Deputies Perkinson and Dalrymple - the individual defendants who asserted a qualified immunity defense - did not violate Mr. Beauford‘s Fourteenth Amendment rights on the night of his death. We then consider the Estate‘s arguments about the subjective prong as it applies to the challenged conduct of the Individual Medical Defendants, who are ineligible for qualified immunity. See Tanner v. McMurray, 989 F.3d 860, 874 (10th Cir. 2021).12
1. Deputy Perkinson is entitled to qualified immunity, but the district court erred in granting summary judgment to Deputy Dalrymple.
Deputies Perkinson and Dalrymple were both on duty at MCDF the night Mr. Beauford died. We affirm the district court‘s ruling granting summary judgment to Deputy Perkinson, but we cannot reach the same conclusion with respect to Deputy Dalrymple.
a. Deputy Perkinson
The district court ruled that Deputy Perkinson was entitled to qualified immunity because the Estate‘s deliberate indifference claim against him was not supported by sufficient evidence. Deputy Perkinson sought the assistance of Nurse Workman, the district court explained, and reasonably relied on her medical expertise to treat and assess Mr. Beauford‘s
The Estate‘s contentions of error regarding Deputy Perkinson involve three specific incidents on the night of Mr. Beauford‘s death. First, the Estate argues Deputy Perkinson was deliberately indifferent for “fail[ing] to check on or even ask [Mr.] Beauford what was happening during the 7:50 p.m. [security] check” when he observed Mr. Beauford grunting under his blanket. Aplt. Opening Br. at 50.
To satisfy the subjective inquiry, the Supreme Court requires actual knowledge: “the official must 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 (emphases added). A “factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.” Id. at 842. But this exception requires that such risks present themselves as obvious to the so-called “reasonable man.” See Mata, 427 F.3d at 752 (citing Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)). Viewing the evidence in the light most favorable to the Estate, it would not have been “obvious” to Deputy Perkinson at 7:50 p.m. that Mr. Beauford was having a seizure and required emergency medical care such that a reasonable jury could infer deliberate indifference. See id.
Hours after Mr. Beauford died, Deputy Perkinson was interviewed and said only that Mr. Beauford was “under his blanket and grunting.” Aplt. App. vol. 8 at 2283. The Estate contends that, according to Deputy Perkinson‘s observation, Mr. Beauford was obviously experiencing a seizure. While it is possible Deputy Perkinson witnessed a seizure at 7:50 p.m., the Estate has pointed to no evidence showing Deputy Perkinson believed Mr. Beauford was seizing or otherwise drew the inference Mr. Beauford faced a substantial risk of serious harm to his health or safety. See Farmer, 511 U.S. at 837; cf. Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (“The Supreme Court [has] cautioned that ‘an inadvertent failure to provide adequate medical care’ does not rise to a constitutional violation.” (quoting Estelle, 429 U.S. at 105-06)). Thus, the Estate has not carried its burden to show that Deputy Perkinson‘s failure to check on Mr. Beauford during the 7:50 p.m. rounds amounted to deliberate indifference.
Deputy Perkinson recognized more troubling physical signs one hour later while on medication rounds with Nurse Workman. At that time, Mr. Beauford was in his cell and still “on the bed, and completely covered by a blanket.” Aplt. App. vol. 8 at 2283. Deputy Perkinson‘s “first thought was Mr. Beauford was again masturbating, however due to how he was shaking [Deputy] Perkinson had a second thought that Mr. Beauford may be seizing.” Id. (emphasis added). Deputy Perkinson and Nurse Workman entered Mr. Beauford‘s cell and discovered he was having a seizure. They stayed with Mr. Beauford until his seizure ended. And they both returned to check on him about thirty minutes later.
The Estate argues that despite observing Mr. Beauford suffer “an over-five-minute seizure, combined with an unusually long postictal [or, recovery] state,” Deputy Perkinson was deliberately indifferent because he “did not transport [Mr.] Beauford for emergent medical treatment at a hospital.” Aplt. Opening Br. at 50. The Estate also maintains Deputy Perkinson “unreasonably rel[ied] on [Nurse] Workman‘s obviously
The district court rejected this deliberate indifference claim, reasoning that Deputy Perkinson “recognized a potential risk, asked the medical health professional what to do about it, and followed her advice. Whether [he] might have done more doesn‘t alter the fact that what [he] did do is not a constitutional violation.” Aplt. App. vol. 12 at 3304. We agree.
Prison officials generally may rely on the advice and course of treatment prescribed by medical personnel. See McRaven v. Sanders, 577 F.3d 974, 981 (8th Cir. 2009) (“[A] prison official may rely on a medical professional‘s opinion if such reliance is reasonable.“); Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006) (“Except in the unusual case where it would be evident to a layperson that a prisoner is receiving inadequate or inappropriate treatment, prison officials may reasonably rely on the judgment of medical professionals.“) (citation omitted). Here, the evidence, viewed in the light most favorable to the Estate, shows Nurse Workman took the lead in providing medical care to Mr. Beauford, while Deputy Perkinson helped securely hold him on the bed and “calm him down.” Aplt. App. vol. 5 at 1390. They stayed with Mr. Beauford “until the seizure was over. And then when [Nurse Workman] decided it was okay to leave, [they] exited the cell.” Id. at 1390. When Deputy Perkinson returned later with Nurse Workman to check on Mr. Beauford, they found him uncooperative. Mr. Beauford said, “something to the effect [of] ‘no, leave me alone, let me go back to sleep.‘” Aplt. App. vol. 8 at 2284. Deputy
Perkinson performed two more security checks before rotating off Cedar Pod; both times Mr. Beauford was lying on his bed with the light off in his cell and did not appear to be “in any type of medical distress.” Id.
As the district court correctly determined, this series of events does not evince deliberate indifference by Deputy Perkinson to Mr. Beauford‘s serious medical needs sufficient to satisfy the subjective component of the Eighth Amendment inquiry. Sealock, 218 F.3d at 1209. Deputy Perkinson alerted Nurse Workman to Mr. Beauford‘s “shaking” out of concern that Mr. Beauford may be seizing. Aplt. App. vol. 8 at 2283. As a result, Mr. Beauford actually received medical care during a critical time. That his condition worsened hours later does not mean Deputy Perkinson acted with deliberate indifference at 8:40 p.m.
Finally, the Estate contends Deputy Perkinson acted with deliberate indifference by failing to relay to medical personnel that, as Deputy Dalrymple reported, Mr. Beauford was shaking at 9:00 p.m. Again, we disagree. The video surveillance footage shows Nurse Workman checking on Mr. Beauford after Deputy Dalrymple‘s security round. Aplt. App. vol. 8 at 2383. Even if Deputy Perkinson failed to relay the report as the Estate contends, this was immaterial under the circumstances.
The district court correctly determined the Estate failed to establish a constitutional violation. Thus, we affirm the grant of summary judgment to Deputy Perkinson under the first prong of the qualified immunity analysis.13
The district court also granted summary judgment to Deputy Dalrymple, concluding he, too, was entitled to qualified immunity on the Estate‘s deliberate indifference claim. We agree with the Estate that the district court erred. The Estate has carried its burden to meet the two-part qualified immunity test, see Gutteridge, 878 F.3d at 1238, and Deputy Dalrymple‘s motion for summary judgment based on qualified immunity should have been denied.
i. Constitutional Violation
As the district court acknowledged, there was a “ten-minute delay between when [Deputy Dalrymple] saw Mr. Beauford lying on the floor of his cell at 12:15 a.m. and when he alerted the nursing staff to this fact.” Aplt. App. vol. 12 at 3304. The district court excused Deputy Dalrymple‘s delay in calling for medical help, however, reasoning “the mere fact that an officer observes a prisoner laying on the floor in the middle of the night is not, itself, enough to make it obvious to any lay person that immediate medical attention is required.” Id. The district court concluded the Estate had failed to show a constitutional violation.
The Estate contends the district court erred in its deliberate-indifference analysis by focusing only on the “mere fact” that Deputy Dalrymple observed Mr. Beauford motionless on the floor of his cell. As the Estate points out, Deputy Dalrymple waited ten minutes to summon medical assistance even though, at approximately 12:15 a.m., he was unsure if Mr. Beauford was breathing. The district court‘s failure to account for this fact and view it in the light most favorable to the nonmovant, the Estate argues, is reversible error. We agree.
During the 11:55 p.m. security check, Deputy Dalrymple looked into Mr. Beauford‘s cell and noticed the light was shut off. Deputy Dalrymple used his flashlight to illuminate Mr. Beauford and watched him for a few moments. He observed Mr. Beauford lying on the floor, facedown, with his head under his desk. In an interview statement given shortly after Mr. Beauford‘s death, Deputy Dalrymple said he was not concerned at the time about Mr. Beauford‘s sleeping position because “he ha[d] seen Mr. Beauford sleep in strange positions both on the floor and bed” so it was not “that unusual for him.” Aplt. App. vol. 8 at 2282. He also stated he “believe[d] he saw Mr. Beauford‘s covers rising and falling indicating breathing.” Id.
At about 12:15 a.m., Deputy Dalrymple conducted his next security round. He “only waited about 15 minutes“—instead of the usual 30 minutes—so he could “double check” on Mr. Beauford. Id. When interviewed on the night of Mr. Beauford‘s death, Deputy Dalrymple stated that, around 12:15 a.m., he looked inside Mr. Beauford‘s cell and “did not see any movement.” Id. He “knocked on the door trying to get a response, but did not get any.” Id. At this time, Deputy Dalrymple “could not tell for sure if Mr. Beauford was breathing or not, so he returned to his officer station and got on the intercom trying to raise Mr. Beauford with negative results.” Id. at 2282-83. Deputy Dalrymple said he “then got on the radio and asked for the nurse and another deputy to respond to help his check on Mr. Beauford.” Id. Approximately ten minutes later, at 12:25 a.m.,14 Deputy Dalrymple returned with Nurse Workman, and together they entered Mr. Beauford‘s cell.
Deputy Dalrymple‘s deposition testimony, however, suggests he may have
I decided to, at the time, you know, because of what happened earlier and with what Deputy Perkinson experienced with [Mr. Beauford] and previous briefings before, hearing that he had had medical events, I thought I would look into it a little bit more, which was why I did another security check starting at 12:15, you know, and walked around.
And noticed that Mr. Beauford, as I came to his cell, he was in the same position. I used my flashlight, thought that, you know, he was—and it looked like his chest was rising and falling. He wasn‘t uncontrollably shaking.
So I even knocked on the door a couple times. “Mr. Beauford?” “Mr. Beauford?” Got no response. It‘s not uncommon for inmates when they sleep, that they sleep hard and they don‘t hear you initially. So I continued on to finish the security check. Which prompted me to contact the nursing staff.
Because I was not there to observe him when he had his medical event with Deputy Perkinson, I contacted the medical staff and said, Okay, what‘s normal? You know, is this normal, or is this not normal? So I deferred to Nurse [Workman].
. . .
I go back with Nurse [Workman]. We go back to the cell. She looks in, and automatically—and looked at me and says, Start—muttered, Oh, shit, start CPR compressions.
Aplt. App. vol. 8 at 2310.
The focus of the subjective component of the deliberate indifference inquiry is the mental state of the defendant regarding the risk of harm. See Prince, 28 F.4th at 1044. Whether Deputy Dalrymple “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety,” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837), turns on his awareness, at approximately 12:15 a.m., that Mr. Beauford may not have been breathing, see Mata, 427 F.3d at 752 (whether a prison official knew of a substantial risk is a question of fact). According to his interview statement, Deputy Dalrymple was not sure whether Mr. Beauford was breathing at 12:15 a.m. Notwithstanding this uncertainty, Deputy Dalrymple waited ten minutes, completing his security check before seeking medical assistance for Mr. Beauford. But according to his deposition testimony, Deputy Dalrymple thought Mr. Beauford may have been breathing at 12:15 a.m. but was just nonresponsive. Any doubt about whether Mr. Beauford was in “obvious” medical distress is resolved by Nurse Workman‘s reaction when she arrived at Mr. Beauford‘s cell at around 12:25 a.m.: “She looks in [to Mr. Beauford‘s cell], and automatically . . . muttered, Oh, shit, start CPR compressions.” Aplt. App. vol. 8 at 2310 (emphasis added).
The standard of review requires us “to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.‘” Scott, 550 U.S. at 378 (alteration in original) (citation omitted). “In qualified immunity cases, this usually means adopting . . . the plaintiff‘s version of the facts,” id., unless it is “blatantly contradicted by the record, so that no reasonable jury could believe it,” id. at 380. When the facts in the summary judgment record, and all reasonable inferences to be drawn from those facts, are viewed in the Estate‘s favor, a reasonable jury could believe Deputy Dalrymple acted with deliberate indifference by waiting ten minutes to call for medical help even though he knew Mr. Beauford might not be breathing.
Whether Deputy Dalrymple was aware Mr. Beauford may not have been breathing at 12:15 a.m. raises a material factual dispute directly relevant to the qualified immunity analysis that precludes summary judgment. While we take no position on the merits, this genuine dispute of material fact undermines the district court‘s conclusion that the Estate has not satisfied its burden to show a constitutional violation at summary judgment. See Olsen, 312 F.3d at 1312 (“When the record shows an unresolved dispute of historical fact relevant to [the qualified] immunity analysis, a motion for summary judgment based on qualified immunity should be properly denied.“) (internal citation omitted)).
Accordingly, on de novo review, we conclude the Estate has satisfied its burden on the first prong of qualified immunity, and the district court erred in concluding otherwise.
ii. Clearly Established Law
We now turn to the second prong of the qualified immunity analysis. “‘[T]he salient question . . . is whether the state of the law’ at the time of an incident provided ‘fair warning’ to the defendants ‘that their alleged [conduct] was unconstitutional.‘” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (alterations in original) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). “[F]or the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Halley v. Huckaby, 902 F.3d 1136, 1149 (10th Cir. 2018) (citation omitted). Clearly established law should not be defined “at a high level of generality,” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)), and should be “particularized to the facts of the case,” White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks omitted). “It is not enough that a rule be suggested by then existing precedent; the ‘rule‘s contours must be so well defined it is clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.‘” City of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)).
The district court concluded the Estate failed to identify “a relevant case putting Deputy Dalrymple on notice that he needed to immediately call for help after seeing Mr. Beauford on the floor of his cell, which, as explained, was a common occurrence.” Aplt. App. vol. 12 at 3307 (district court‘s emphasis). But, as we explained, the district court‘s framing was factually incomplete and thus misdirected the clearly-established-law inquiry. The relevant case here is not one that would have required Deputy Dalrymple to summon assistance immediately because Mr. Beauford was lying on the floor of his cell. Rather, the question is whether Deputy Dalrymple should have been on notice that the Constitution does not permit a ten-minute delay in seeking medical help for an inmate who he knows may not be breathing.
Here, the contours of the right are clearly established such that any reasonable officer in the situation Deputy Dalrymple confronted at 12:15 a.m. would know that delay could violate the Constitution. See Estate of Booker v. Gomez, 745 F.3d 405, 434 (10th Cir. 2014) (denying qualified immunity where officers delayed seeking medical care for three minutes after their use of force left inmate “limp and unconscious“); Estate of Owensby v. Cincinnati, 414 F.3d 596, 603 (6th Cir. 2005) (holding that arresting officers’ six-minute delay in seeking medical care for arrestee who died of asphyxiation could evince deliberate indifference); McRaven, 577 F.3d at 983 (denying qualified immunity where officer “made no attempt to resuscitate” the prisoner “for seven minutes before paramedics arrive[d]“); Bozeman, 422 F.3d at 1273 (“We also conclude that the Officers, who knew [the prisoner] was unconscious and not breathing and who then failed for fourteen minutes to check [his] condition, call for medical assistance, administer CPR or do anything else to help, disregarded the risk facing [him] in a way that exceeded gross negligence.“); Tlamka, 244 F.3d at 633 (“Based on the obvious and serious nature of [the inmate‘s] condition, the corrections officers’ alleged failure to even approach [the inmate] during the maximum 10-minute period
For these reasons, we also conclude the Estate has satisfied its burden on the second prong of the qualified immunity test—to show Deputy Dalrymple violated a clearly established constitutional right.
iii. Summary Judgment Ruling
Because Deputy Dalrymple asserted a qualified immunity defense at summary judgment, the burden shifted to the Estate to demonstrate on the facts alleged that (1) Deputy Dalrymple acted with deliberate indifference to Mr. Beauford‘s serious medical needs in violation of the Fourteenth Amendment, and (2) that the right was clearly established at the time of the alleged misconduct. See Riggins, 572 F.3d at 1107. As we have explained, the Estate has carried its burden to meet this two-part test. See Gutteridge, 878 F.3d at 1238. Even when qualified immunity is at issue, the defendant still must show that no material facts remain in dispute that would defeat the qualified immunity defense. Whether Deputy Dalrymple was aware that Mr. Beauford was not breathing is a material fact in genuine dispute. We cannot imagine a more material fact in the context of the Estate‘s deliberate indifference claim than whether Deputy Dalrymple knew of the risk that Mr. Beauford was not breathing. The district court failed to account for this dispute, which a reasonable jury could resolve in favor of the Estate. Under these circumstances, we must reverse the district court‘s grant of summary judgment to Deputy Dalrymple.
2. The district court did not err by granting summary judgment to the Individual Medical Defendants.
a. The Estate‘s Claims Against Dr. Holmes and Mr. LeFebre
We turn now to the Estate‘s contentions of error surrounding the district court‘s grant of summary judgment in favor of the medical staff at MCDF,15 beginning with Dr. Holmes and Mr. LeFebre—the two defendants who oversaw the care Mr. Beauford received during his detention. The district court ruled the evidence was insufficient to establish Dr. Holmes or Mr. LeFebre acted with deliberate indifference to Mr. Beauford‘s serious medical needs. The Estate challenges this ruling on appeal, contending Dr. Holmes and Mr. LeFebre were deliberately indifferent by depriving Mr. Beauford of access to his VNS bracelet and failing to forcibly medicate him, transfer him to another facility, and ensure he received appropriate psychiatric care. Viewing the facts in the light most favorable to the Estate, we discern no error in the district court‘s ruling.
“[A]bsent an extraordinary degree of neglect,” the subjective component of the deliberate-indifference test is not satisfied “where a doctor merely exercises his considered medical judgment.” Self, 439 F.3d at 1232. “So long as a medical professional
Applying de novo review, we disagree with the Estate that Dr. Holmes and Mr. LeFebre acted with deliberate indifference.16 Rather, the evidence supports the conclusion they exercised medical judgment. For example, the Estate insists Dr. Holmes and Mr. LeFebre should have pursued a forcible medication order because Mr. Beauford only took his anti-seizure medication half the time. But as the district court properly found, the evidence shows Mr. Beauford “had responded for the most part to less-intrusive methods of encouragement.” Aplt. App. vol. 12 at 3314. But see Estate of Wright v. Lake City, No. 2:13-CV-333 JVB, 2017 WL 3896270, at *5 (N.D. Ind. Sept. 6, 2017) (concluding doctors should have considered “more aggressive measures” where inmate was “repeatedly refus[ing] medication and treatment against his own interest,” but “the medical staff did little more than chart [the inmate‘s] downward spiral“). And despite his refusals, Mr. Beauford continued to receive medical care.
Likewise, as Defendant CHC correctly observes on appeal, Dr. Holmes and Mr. LeFebre considered—but ultimately decided against—transferring Mr. Beauford to another facility or referring him to a psychiatrist. Both defendants explained that inmates were considered for transfers or referrals when they exhibited certain behaviors that posed a risk to themselves or others. But in their view, Mr. Beauford never exhibited such behaviors. Aplt. App. vol. 6 at 1614, 1737. Given this explanation, a reasonable jury could not infer conscious disregard for Mr. Beauford‘s serious medical needs. Self, 439 F.3d at 1232-34.
And regarding access to the VNS bracelet, our de novo review of the record confirms the district court‘s conclusion: Mr. LeFebre was the only medical defendant who definitively knew Mr. Beauford had a VNS bracelet when he came to the jail. And it is undisputed he believed Mr. Beauford was allowed to have access to the bracelet but chose not to wear it. Aplt. App. vol. 6 at 1736. The Estate has shown no evidence to suggest Dr. Holmes was also aware the bracelet existed, let alone that he or Mr. LeFebre took particular steps to deprive Mr. Beauford of it.
Although the Estate disagrees with Dr. Holmes and Mr. LeFebre, a “mere difference of opinion over matters of expert medical judgment or a course of medical treatment fails to rise to the level of a constitutional violation.” Strain v. Regalado, 977 F.3d 984, 996 (10th Cir. 2020) (quoting Johnson v. Leonard, 929 F.3d 569, 576 (8th Cir. 2019)). Nor will we “freely substitute [our] judgment” for that of Dr. Holmes or Mr. LeFebre or “otherwise second-guess [their] course of treatment with the benefit of hindsight.” Id. (alteration in original) (quoting Redmond v. Crowther, 882 F.3d 927, 938 (10th Cir. 2018)).
Regarding Dr. Holmes, the Estate contends he was deliberately indifferent by failing to draw and test Mr. Beauford‘s blood to monitor for therapeutic levels of anti-seizure medication in his bloodstream. There is no dispute Mr. Beauford‘s blood was never drawn—that clearly violates CHC policy. But a policy violation, without more, is not a constitutional violation. See Mata, 427 F.3d at 760. And the Estate has identified no evidence suggesting Dr. Holmes disregarded Mr. Beauford‘s serious medical needs by failing to conduct these blood tests. This absence of evidence undermines an essential component of the Estate‘s deliberate indifference claim: Dr. Holmes‘s subjective intent. Given these evidentiary shortcomings, and because the decision to conduct specific testing generally falls within the bounds of medical judgment, see Self, 439 F.3d at 1232, we discern no error in the grant of summary judgment to Dr. Holmes.
Finally, the Estate asserts Mr. LeFebre violated Mr. Beauford‘s constitutional rights by housing him in “solitary confinement.”17 Aplt. Opening Br. at 65-66. The district court rejected this argument, concluding there was insufficient evidence Mr. Beauford was housed in a single cell “out of indifference to the effects on him, rather than because [MCDF] believed the benefits outweighed the costs.” Aplt. App. vol. 12 at 3325. We agree with the district court.
On appeal, the Estate advances conclusory assertions but points to no evidence from which a jury could reasonably infer Mr. LeFebre knew that a single-cell housing placement presented a substantial risk to Mr. Beauford‘s health and safety.18 For instance, Mr. LeFebre explained MCDF considered Mr. Beauford “a vulnerable inmate that would be taken advantage of by other inmates.” Aplt. App. vol. 6 at 1712. Placing Mr. Beauford in a single cell separated him from other inmates and ensured he was “housed in a safe environment.” Id.
Our de novo review confirms Mr. LeFebre‘s decision about Mr. Beauford‘s housing placement was an exercise of professional medical judgment and thus does not satisfy the subjective component of the deliberate indifference test. See Self, 439 F.3d at 1232.
Accordingly, we affirm the grant of summary judgment to Dr. Holmes and Mr. LeFebre.
b. The Estate‘s Claims Against the Nurses
The Estate also challenges the district court‘s ruling that defendant Nurses Workman, Havens, Keenan, and Schans were not deliberately indifferent to Mr. Beauford‘s serious medical needs. According
We reject this challenge. It is the Estate‘s burden under
For example, the Estate contends the nurses generally knew Mr. Beauford “had an implanted VNS device with a bracelet that was required for its activation” but they deprived him of access to it. Aplt. Opening Br at 54. For support, the Estate cites deposition testimony from Nurses Schans and Keenan. But that testimony reflects only these two defendants knew Mr. Beauford had an implanted VNS device, not a bracelet to activate it. And it says nothing about what Nurses Workman and Havens knew nor does it suggest either nurse actually deprived Mr. Beauford of his bracelet. The Estate also asserts the nurses “knew about [Mr.] Beauford‘s medication refusals” but “did nothing more than continu[e] to ineffectually offer [Mr.] Beauford his medications.” Aplt. Opening Br. at 57-58. This contention is general and vague, and it fails to account for the varying levels of involvement each nurse had in Mr. Beauford‘s care. We discern no error in the district court‘s grant of summary judgment to the nurses.
The Estate also challenges the district court‘s ruling regarding the subjective prong as it applies to Nurse Workman‘s conduct on the night Mr. Beauford died in custody. The Estate contends Nurse Workman acted with deliberate indifference by repeatedly failing to provide or to refer Mr. Beauford for adequate medical care—emergency or otherwise. The Estate highlights three occasions on the evening of Mr. Beauford‘s death when Nurse Workman allegedly should have, but failed, to do more: (1) after Mr. Beauford suffered a five-minute seizure at 8:40 p.m.; (2) when Deputy Dalrymple observed Mr. Beauford shaking in his cell around 9:00 p.m. and Nurse Workman opined he would be fine without checking on him; and (3) at 12:25 a.m. when she waited for another deputy to respond before entering Mr. Beauford‘s cell to discover he was dead.
Viewing the record in the light most favorable to the Estate, we agree Nurse Workman should have notified Dr. Holmes about Mr. Beauford‘s seizure at 8:40 p.m. An internal report documenting the incident states, “If [a] patient with a known seizure disorder has a seizure and it resolves without consequence call the provider” with a checkmark next to that statement, suggesting it was done. Aplt. App. vol. 7 at 1889. Yet the evidence is clear that Nurse Workman never notified Dr. Holmes. Rather, as we described, Nurse Workman and Deputy Perkinson entered Mr. Beauford‘s cell and cared for him until his seizure ended. Nurse Workman “made sure he was safe [and] breathing. When the seizure stopped, [she] made sure he wasn‘t injured.” Id. at 1831. She asked Mr. Beauford if he needed anything and tried
Although medical judgment and misdiagnosis can cross the line into a denial of care amounting to deliberate indifference, we conclude, under the circumstances here, that Nurse Workman‘s treatment of Mr. Beauford did not go so far. Cf. Mata, 427 F.3d at 758 (holding where medical provider had knowledge inmate was suffering chest pain, it would be more than malpractice or negligence not to call an ambulance). Here, the Estate fails to show how Nurse Workman disregarded Mr. Beauford‘s wellbeing, where the record shows she was with him during his seizure, remained with him immediately afterward, and returned thirty minutes later to check on him. And according to her observations of Mr. Beauford‘s condition, she believed his seizure had resolved and he was no longer in medical distress. See Self, 439 F.3d at 1233 (“[O]ur subjective inquiry is limited to consideration of the doctor‘s knowledge at the time [they] prescribed treatment for the symptoms presented, not to the ultimate treatment necessary.“).
Yet the Estate insists “there is ample evidence from which a jury could conclude that promptly calling paramedics was the only medically acceptable option for [Nurse] Workman, yet she consciously chose not to” do so. Aplt. Opening Br. at 48-49 (internal quotation marks omitted). We are not persuaded. A conclusory assertion that ample evidence exists does not make it so. The Estate offers no record citations to support its argument nor have we discerned that any such evidence exists in our independent review. At most, the Estate‘s argument reflects a difference of opinion over whether Mr. Beauford should have been sent to a hospital—a scenario that cannot support deliberate indifference. See Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (“[E]vidence that some medical professionals would have chosen a different course of treatment is insufficient to make out a constitutional claim.“).
The Estate‘s other two arguments concerning Nurse Workman also fail. First, the evidence shows Nurse Workman checked on Mr. Beauford after Deputy Dalrymple reported seeing him shaking in his cell. Given Nurse Workman‘s more recent visit to Mr. Beauford‘s cell, we conclude she was not deliberately indifferent when opining his condition was “fine.” Aplt. App. vol. 8 at 2282. The Estate next contends that “[r]ather than responding emergently, [Nurse] Workman waited for another deputy to arrive before going into [Mr. Beauford‘s] cell” at 12:25 a.m. Aplt. Opening Br. at 48. But a written summary of the video surveillance footage states otherwise: “At 0028 hrs. on 041614 Deputy Dalrymple and Nurse Workman return to [Mr. Beauford‘s cell] and enter the cell, Deputy Dalrymple stays in the cell as Nurse Workman leaves for about a minute, then Nurse Workman returns carrying an item and many other deputies arrive to the scene at about 0030 hrs. on 041614.” Aplt. App. vol. 8 at 2283. The Estate‘s arguments are contradicted by the record.
We affirm the grant of summary judgment for the defendant nurses.
D. The Estate‘s Municipal Liability Claim under § 1983
A municipality cannot be liable under Monell v. Department of Social Services of New York, 436 U.S. 658, 691 (1978), ”solely because it employs a tortfeasor—or, in other words, a municipality cannot be held
At its core, the Estate‘s Monell claim against Mesa County and the Entity Medical Defendants is the alleged customs and practices at MCDF of providing an unconstitutional level of care to detainees. The district court granted summary judgment to the entity defendants because none of their agents committed an underlying constitutional violation.
Because we reverse the district court‘s ruling as to Deputy Dalrymple, we must reverse and remand the grant of summary judgment on the Estate‘s Monell claim to allow the district court an opportunity to assess whether there is a viable claim for municipal liability against Mesa County. See Lowe v. Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).
As for CHC, we agree with the district court that summary judgment was proper. This Court has extended Monell liability to private entities.19 See Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003). Because none of the Individual Medical Defendants committed a constitutional violation, the Entity Medical Defendants cannot be liable under Monell.20 See Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006). The Estate‘s argument to the contrary is unavailing.
E. Remaining Contentions
1. The Estate‘s ADA Claim
The district court granted summary judgment to Mesa County on the Estate‘s ADA claims. We reject the Estate‘s challenge to that ruling.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
To state a claim under Title II, the Estate must show: (1) Mr. Beauford is a “qualified individual with a disability“; (2) he was “excluded from participation in or denied the benefits of [MCDF‘s] services, programs, or activities“; and (3) “such exclusion, denial of benefits, or discrimination was by reason of his disability.” Id.
In granting summary judgment to Mesa County on the Estate‘s ADA claim, the district court found the Estate “produced no evidence of any specific service [Mr. Beauford] wanted access to and was denied” and, consequently, the Estate was “ask[ing] the court to assume that [Mr. Beauford] was necessarily denied access to the Detention Facility‘s services or programs because he was segregated” in single cell housing in Cedar Pod. Aplt. App. vol. 12 at 3327-28. The district court characterized the Estate‘s arguments as “conclusory and insufficient” and rejected them. Id. at 3327. We do the same.
On appeal, the Estate merely reprises the arguments it made in the district court, without persuasively explaining why the district court erred. The gist of the Estate‘s argument is Mr. Beauford‘s mere placement in administrative segregation was a de facto denial of access to all MCDF‘s programs, services, and benefits available to detainees not in administrative segregation. But to show a violation under Title II, the Estate must identify evidence in the record of a specific service, program, or activity requested by, but denied to, Mr. Beauford. See Hockaday v. Colo. Dep‘t of Corr., 766 F. App‘x 572, 575 (10th Cir. 2005). The Estate has not made this showing or explained why it is relieved of the burden imposed on it by applicable law to do so.21
Thus, the district court did not err in granting summary judgment to the County on the Estate‘s ADA claims.
2. Mesa County‘s Personal Jurisdiction Arguments
The Mesa County Defendants raised a lack of personal jurisdiction defense in district court. The district court did not address the merits of this argument, however, concluding any challenge to personal jurisdiction was moot because all claims against the County had been dismissed on summary judgment.
On appeal, the County again advances the lack of personal jurisdiction defense. The district court never obtained jurisdiction over Mesa County or the Mesa County Sheriff, the argument proceeds, because the Estate “failed to properly sue the board of county commissioners of Mesa County and sued the wrong sheriff.” Cnty. Answer Br. at 38.22 Because we reverse in part the grant of summary judgment to the Mesa County Defendants, the personal jurisdiction question is no longer moot, as the district court assumed.23 We
“Until the court has established personal jurisdiction [over a party], any assertion of judicial power over the party violates due process.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 706 (1982). However, unlike subject-matter jurisdiction, the defenses of lack of personal jurisdiction and service are waived if not timely asserted. See
By the time the County raised personal jurisdiction as a defense, it had been actively defending against the Estate‘s lawsuit for years. Under the circumstances, we conclude the County and the Mesa County Sheriff waived any personal jurisdiction or service defenses.24
III. Conclusion
We affirm the grant of summary judgment to Deputy Perkinson and the Individual and Entity Medical Defendants on the Estate‘s
We reverse the district court‘s grant of summary judgment to Deputy Dalrymple and to the Mesa County Defendants on the Estate‘s municipal liability claim. The case is remanded for further proceedings consistent with this opinion.