Olsen v. Layton Hills Mall

words; that tax and mail fraud are spe- the vinced evasion other embezzlement. closely for tax because the victims of characteristic the related cific offense the mail fraud are not the relates to defendant’s tax evasion and evasion count regard- same, conduct behav- decision and the offenses involve distinct subsequent iors, of those monies purposes tax treatment the of the enhancements are ing the companies, different, the and this from harms embezzled the attributable to embodied within the de- Accordingly, conduct is not each crime are dissimilar. the of the mail conceal correctly fendant’s use district court declined to the from the The victims. embezzlement tax mail the evasion and fraud group this is not a situation of court finds in this counts case. counting. double We AFFIRM.

Rec., II, Ruling Objections to the vol. (citation at 9-10 omit- Report

Presentence

ted). the agree with district

We reasoning and note as

court’s we well 2T1.1(b)(1), §in the tax

the enhancement pur serves different guideline,

evasion than enhancement pose OLSEN; Olsen; Kipp Clair D. Carl 2F1.1(b)(1)(K), guideline, § the mail fraud Olsen, Plaintiffs- Donna R. which is another reason there was no yet Appellants, counting in impermissible double this case. Flinn, See United States F.3d (10th Cir.1994) (no counting double MALL; Copper The LAYTON HILLS provisions

where enhancement serve dif Rivet; Gregg; Cassi Interna I.P.C. purpose for the purposes). ferent The Security, Corporation; a Utah tional 2F1.1(b)(1)(k) § increase to ac under City, Layton municipal corpo a Utah of the crime in count for the seriousness ration; County, body politic; money amount involved. terms Bradley individual; King, J. an Steven increase under purpose individual, Brown, Defendants-Ap 2T1.1(b)(1) § is to account for fact that pellees. generally derived income is [cjriminally No. 01-4130. establish, that the loss difficult to so tax in such cases will tend to be substantial of Appeals, United States Court ly of understated. An enhancement for Tenth Circuit. tax laws part

fenders who violate the as Dec. activity of criminal pattern which they portion derive substantial

of their also to implement income serves 994(f)(2). § mandate 28 U.S.C. § Background.

U.S.S.G. 2T1.1 3Dl(c)

Applicaton § Note elabo- subsection, applicability

rates on the only

emphasizing applies where the “closely

two are related.” counts U.S.S.G. comment, (n.5). 3D1.2(c), are con- We Brown, UT, Valley City,

David W. West Plaintiffs-Appellants. for Wallace, Plant, Wallace, Robert R. Kannell, Christensen & Lake City, Salt UT, for Davis Defendant-Appellee County; Morse, Snow, Christensen & Andrew W. (Richard Vazquez Martineau A. with him brief), UT, City, on the Salt Lake Defendants-Appellees Layton City and Bradley King. J. * HARTZ,

Before ALDISERT PORFILIO, Judges. Circuit ALDISERT, Judge. Circuit appeal Kipp This Carl Olsen from summary judgments Appellees in favor of Bradley Layton City J. King, Officer County requires Davis us to examine properly whether district court shield- officer municipalities ed a and two * Aldisert, Ruggero designation. J. Senior United States Cir- Circuit, Judge sitting by cuit for the Third computer suf- reader nonetheless declined obsessive-compulsive an disorder typing the clerk’s error —the claims. More because of ferer’s U.S.C. rejection unbeknownst to either reason for we must determine whether specifically, 1) Appellant or the clerk at the time of granting court in: the district erred attempted transaction. quali- the basis of summary judgment on Officer on immunity Appellee fied Appellant charge then tried to the items unlawful Fourth Amendment Appellant’s bearing with a Discover Card credit card 2) claims; and arrest and excessive force Olsen, the name of his father Clair who summary judgment on the basis granting him to use the previously had authorized qualified immunity Officer Appellant card. was unaware his claim for Appellant’s Eighth Amendment had asked for a new mother Donna Olsen indifference to a serious medical deliberate prior billing card to be issued because of namely, sparked by attack panic concerns. The clerk called Discover Card need-— obsessive-compulsive disorder account, directly to authorize the but Dis- (“OCD”). Additionally, we must decide cover Card informed her that correctly grant- whether the district court fraudulently and using the card summary judgment Appellee Layton ed it. she should confiscate After Donna Ol- City underlying based on the absence of an complained sen had about several unautho- violation, Appellee constitutional and to charges rized Discover Card based on the absence of improperly in fact listed the account as policy regarding unconstitutional a failure notifying obtaining “fraudulent” without indifference, on, train or the deliberate her or Clair Olsen’s consent. Instead of Appellant’s to OCD. card, retaining the Discover the clerk re- her turned it to who advised Appellant, jurisdiction of the The district court had personal that he would return with a check pursuant action to 28 underlying U.S.C. pay purchases. to for the appeal timely §§ 1343. The was 1331 and en route from the Appellate Appellant under Rule Federal Rules of While was Mall home and back jurisdiction Layton court has Hills to his Procedure. This Rivet clerk contacted again, Copper the pursuant to U.S.C. Appellant’s attempted security mall about security Mall fraudulent credit card use. I. if notify Appellant to them asked the clerk A. About 30 minutes returned to the store. later, Appellant and his two sons indeed Kipp teenage took his two Carl Olsen Rivet, Appel- Copper came back to the Layton at Hills Mall on shopping sons paid personal lant for the items with Copper 1997. At the Rivet December clerk nonetheless con- check. The store store, charge to apparel Appellant tried security during the transaction. tacted mall City worth of items with his Guitar $114.46 to leave the mall Appellant When tried Cop- corporate Visa credit card. Because receipt, and a mall with his merchandise per Rivet’s electronic card reader could allegedly him for security guards stopped card, process the store clerk Cassie Discover card and held using fraudulent Gregg manually entered the card’s data. ar- him incident until the without punching After the account number cor- rived. rectly, Gregg inadvertently had entered Bradley Layton City King Police Officer Although date. the wrong expiration the arriving on responded Upon to the call. expired, and had not Visa card was valid re- scene, Appellant mall the card as King spoke to secu- listed stolen. Officer Tanner, Cindy King telephone told him asked Officer to peatedly who rity guard Arizona, parents City, his Bullhead fraudulently tried to use Appellant that that not fraudulent. Copper verify card at the Rivet. card was Discover King try to contact King Appellant that turn Officer refused asked Officer them, Protesting reasoning that he would be unable credit card. he that over the voices on nothing wrong, Appellant initial- to determine whether done had Appel- ultimately complied. He other end line were indeed but ly refused in- did not King’s super- parents. King lant’s Officer see Officer also demanded for or conducting investigation quire Appellant paid whether Without visor. own, King placed Appellant Copper received the Rivet items. Officer of his information based on the that under arrest King brought Appellant Officer gathered. Appellant charged he had squad Farmington car to take him to the financial with fraudulent use of a transac- (Davis City County) Appellant, Jail. who card, card, a stolen possession tion condi- medically diagnosed suffers from arresting officer. interference with an No- obsessive-compulsive tion of disorder this tably, King tacked on last Officer (“OCD”), alleges panic he had a attack immediately he effectuated charge before jail to the Officer en route and informed the arrest. King, King neglected but to address King pleas App. then to handcuff two attempted Appellant’s Officer for assistance. automatically King whose “muscles at 176. Officer could not recall Appellant, at the up” physical anything tensed confrontation. whether mentioned Appendix Although at 2. Of- Supplemental panic App. about attack. at 218. merely ficer claims that he “maneu- County facility, Ap- at the Once [Appellant] a storefront win- against vered pellant indicated on a medical screening gain[ necessary leverage [to] ] dow prebooking sheet and told officers him,” 216, Appellant handcuff con- App. required had OCD and medication to stave trarily contends that Officer used panic App. off attacks. at 268. Prebook- Appellant force he excessive when shoved ing erroneously officers noted on the sheet feet,” good “slamm[ing “a up him] that he suffered from Id. “CDC.” Davis against glass” the of a store window. Id. jail officers County Appellant’s took medi- Appellant alleges at 173. that Officer also him per cation from and search insisted — King pulled then his arm behind his back procedure he remove his shoes and —that position in an awkward to order hand- Appellant request, at the socks. recoiled him, to threatening [him] cuff to “take the because of refusing a fear of contamination Appel- if he at 172. ground” resisted. Id. dirty Ultimately, Appel- from the floor. that he physically lant claims never resist- demand, lant acceded the but incurred during exchange. ed the Id. at 172-173. panic another attack in Id. process. the at Having Appel- The successfully prebooking handcuffed officers also lant, King through Officer led him publicly Appellant fingerprinted forced to be with- Rivet, the mall to the where Copper heeding Offi- out his about concerns cleanliness. King questioned Gregg Layton County cer City Cassie about Neither nor Davis Appellant’s any use of the card. provides training handling Discover At individ- store, telephoned diagnosed the Officer also with the uals OCD. Id. 361- County Card in- spoke booking procedures Discover office and Heidi 364. Davis Crocker, who corporate screening procedure told him that their records an intake brings only and he parents, without his “psychiatric mental illness for undefined City 361-364, King, Layton and disorders,” against but allow Officer Id. at deputies” County. to Davis correctional “health trained sundry dealing with use their discretion Id. at 283.

“mental disorders.” C. custody, par- his was in Appellant While district contends the Appellant the jail to advise officers ents called the granting summary judg- erred in court possibili- and the his OCD condition about qualified on ment to Officer based that the officers Learning attacks. ty of replete the record is immunity because requests for aid ignored Appellant’s per- of material fact with unresolved issues him, Ol- medication the and withheld He immunity analysis. also taining to Discover Card to resolve sens called improperly court argues that the district informed the Ol- matter. Discover Card Layton granted summary judgment not know of company that the did sens convince Appellant may well City because no holds had activity fraudulent and that King’s conduct was the jury Officer King’s the card. Officer placed been on underpinning a constitutional predicate act Brown, Steven learned supervisor, Officer municipality for a failure against claim finally information when the same Finally, train officers. properly himself. called Discover Card summary judg- Appellant contends $2,950 jail and bailed out of posted bond improp- ment in favor of Davis charges had been immediately before jury er because a must decide whether dropped. procedures relating OCD absence indif- may amount to a deliberate sufferers

B. medical need. ference to serious their Fourth and Alleging violations of rights, Appellant Amendment II. parents filed suit under U.S.C. legal issues sur This court reviews Defen- against in the district court summary judgment grant of rounding the Mall; Copper Riv- Layton Hills dants novo, immunity de con qualified based Card; et, Inc.; Corp./Diseover Cas- Novus most fa light in the sidering all evidence Security Gregg; I.P.C. International sie under nonmoving parties vorable to the Layton City; County; Corporation; 56(c), Proce Federal Rules of Civil Rule Bradley Layton City police officers DeSpain Uphoff, dure. All Defendants King and Brown. Steven Cir.2001). Summary judgment Summary Judgment. for filed Motions there is “no when ultimately appropriate is parents settled with No- Appellant and his material fact and issue as to genuine The district Corp./Discover Card. vus judg moving party is entitled ... the Defendants’ remaining the granted court v. matter of law.” Oliver ment as a Summary Judgment on June Motions for (10th 1179, Woods, Cir. 1184 209 F.3d 4, filed parents and his Appellant 2001. 2000). 14, on Reconsideration' June Motions for however, court, “review[s] This

2001, 25, the 2001—both of which and June deciding quali 29, summary judgment 2001. court denied on June orders district differently from immunity questions Meanwhile, fied parents and his filed Appellant decisions” be summary judgment on other Appeal Notice of June timely pro se im- qualified purposes of the behind appeal the cause 26, pursues 1312 III. Harrington, v. 268 F.3d Holland

munity. Cir.2001). (10th §

1179, 1185 1983 When A. qualified the defense of raises defendant summary bur judgment, the immunity on A an ar police officer violates 1) plaintiff to show that to the den shifts clearly Amend restee’s established Fourth a constitutional or stat violated the official sei right ment to be free of unreasonable 2) the constitutional or right; and utory if the a warrantless zure officer makes clearly right was established statutory v. probable arrest without cause. Tenn. alleged violation occurred. the when Garner, 1, 7, 1694, 85 471 U.S. 105 S.Ct. Perrill, 1254, 1259 288 F.3d Farmer v. (1985). 1 In the context of a L.Ed.2d “[tjaken (10th Cir.2002). First, light the action, arrest in a 1983 this warrantless party asserting the most favorable to the grant qualified officer court must alleged show the offi injury, the facts do “if immunity a reasonable officer could a constitutional cer’s conduct violated probable have believed that cause existed Katz, 194, 201, v. 533 U.S. right?” Saucier plaintiff.” Fay, v. 45 to arrest the Romero (2001). 2151, If 121 S.Ct. 150 L.Ed.2d (10th Cir.1995). “Proba F.3d so, subsequently ask “whether we must if facts circumstances ble cause exists Id. If right clearly the established.” arresting knowledge within the officer’s satisfy portion either plaintiff the does not reasonably and of which he or she has test, two-pronged the Court must trustworthy are sufficient to information immunity. grant qualified the defendant prudent person lead a to believe that the Pirtle, 245 F.3d Gross has is committing arrestee committed or Cir.2001). If indeed plaintiff demon (quoting City an offense.” Id. Jones v. & clearly strates that the official violated Denver, 854 F.2d statutory established constitutional (10th Cir.1988)). Although the court shifts back right, then the burden probable determine whether cause existed defendant, prove genu who must that “no by at the time taking of the arrest into ine of material fact” exist and that issues account factors as whether the officer such judgment the defendant “is entitled to as a reasonably readily interviewed witnesses end, therefore, In the matter of law.” Id. scene, available at the whether he investi normal the defendant still bears the sum in gated basic evidence or whether he mary showing burden of that no judgment quired if a crime been at all committed in dispute material facts remain that would invoking power before of warrantless qualified immunity defeat defense. detention, none arrest of these factors Farmer, F.3d at 1259. When the rec dispositive necessary or indeed to the dispute ord shows unresolved histori inquiry. primary concern is whether immunity analysis, cal fact relevant to this a reasonable officer would have believed summary a motion judgment based probable cause existed to arrest qualified immunity “properly should be de pos defendant based on the “information Schwarz, nied.” Salmon [arresting] sessed Id. offic[er].” (10th Cir.1991) 1136 (applying qualified (quoting Creighton, Anderson v. 483 U.S. immunity analysis in the context of a close 643, 107 97 L.Ed.2d 523 S.Ct. action, (1987)). ly related in Bivens which material When there are unresolved dis relating facts to the violation of a putes constitu of historical fact relevant to whether right dispute tional were at the sum probable the officer had cause and to what mary judgment stage). possessed information he thus to —and

1313 King arrested He testifies that Officer qualified ry. claim may properly he whether is, him—that him soon as he handcuffed summary as grant a court immunity, investiga- he made reasonable immunity before be- qualified on judgment based had fraudu- Appellant into whether tion not have shown officer would cause the Indeed, King the card. Officer lently mate- used exists as to dispute genuine that no security spoke he to mall concedes that Farmer, at 1259. 288 F.3d fact. rial [Ap- to take guards and that “decided that we plain makes case A decade-old custody could investi- pellant] [he] into so qualified official a defendant grant will not get allegations] further gate [the dispute. if material facts are immunity at 214. App. the credit card.” hold of Schwarz, 1131 Salmon did not King that Officer Appellant asserts Cir.1991), of an assertion we confronted for the paid him if he had in fact even ask aris- agent an FBI immunity by qualified receipt. Officer or had merchandise Special FBI óf a Bivens action. ing out not recall even King says that he does for a war- applied Arturo Agent Gonzalez merchandise, asking much less seeing the Salmon, Margarito the arrest of rant for contends Appellant result: about the end trafficker, on a based alleged an narcotics (or, King could have ended that Officer to a “Mar- intercepted phone calls set inquiry begun) the appropriately, more unknown in a last name was garito” whose in Bull- parents Appellant’s with a call to different involving two complex scenario that his con- King says City; head Officer “the Id. at 1139. Because “Margaritos.” security guard with the mall versations ..., collectively, pres- considered facts gave representative and the Discover Card the cir- picture of incomplete ented] reasonably information he him all proba- as to whether cumstances relevant Appellant. to arrest needed arrest,” we for Salmon’s cause existed ble the district court line is that summary bottom motion for agent’s denied the disputed account several to take into immunity grounds. failed qualified judgment on summary judg- in granting factual issues Id. at 1137. immunity to qualified ment on basis judgment “denying] summary Although two Fourth Appellant’s on Officer fact remains material issue of any time a do not parties claims. The Amendment ... could claim Amendment] on Fourth [a took when the arrest agree on even immunity qualified goal undermine the to the King spoke after place—before disruption govern- ‘avoid excessive significant ignored court clerk. The store many resolution permit ment and the. impossi- that render factual differences summary judg- claims on insubstantial as to ” make an initial determination ble to Saucier, ment,’ 121 533 U.S. S.Ct. Appellant’s violated whether Officer Fitzgerald, (quoting Harlow free unrea- to be right constitutional 800, 818, L.Ed.2d U.S. Because we believe sonable seizure. (1982)), not one in the case before us is facts, the disputed resolve jury must the sun rises asserts that Appellant which quali- judgment in granting court erred jury trial to and demands a in the west to the unlawful immunity grounds as fied King’s sub- It is Officer resolve the issue. arrest claim. cause probable his mission he based obtained on information determination B. security and from guard from a mall an ar violates A officer he effectuated to Discover Card call before Amend- Fourth clearly established sto- restee’s tells different an arrest. 1314 justifiably that a court could not to be free of excessive force district right

ment arresting pin grant summary judgment quali- of on arrest if the officer’s during an “ ‘objectively immunity disputed fied while material not reasonable’ actions were remained as to whether an officer facts and circumstances facts light in of the Connor, “objectively in an reasonable” behaved confronting Graham [him].” 1865, 386, 397, shooting killing in a man. 109 104 fashion 490 S.Ct. U.S. (1989); we affirmed the district City Specifically, Cruz v. Lara L.Ed.2d 443 of (10th Cir.2001). mie, 1183, of a officer’s motion 1188 court’s denial 239 F.3d summary judgment the reasonableness of for on the basis This court assesses § in- immunity in a 1983 action perspective qualified conduct “from the an officer’s scene,” deadly After con- volving on the ac excessive force. of a reasonable officer free may cluding right the officer be that the victim’s to be knowledging judgments” clearly in from excessive force was a estab- split-second “forced to make right, like the Fourth Amendment certain difficult circumstances. Medina lished Cir.2001) (10th Cram, 1124, right be free from unreasonable sei- 252 F.3d 1131 396-397, zures, Graham, summary (quoting judgment 490 U.S. at 109 we held that on 1865). im- qualified immunity the basis of was This reasonableness stan because, “clearly in the proper viewing dard —which is established” for the facts actions, § purposes light non-moving 1983 Wilson v. most favorable to the Meeks, pre- of material fact party, “genuine 52 F.3d 1552 Cir. issues judicial fac of wheth- 1995) implores cluded] the court to consider determination — severity, objectively including alleged [the officer’s] tors crime’s er conduct qualified threat Id. at 275. A im- degree potential reasonable.” suspect poses safety munity to an officer’s and to defense will not succeed in induc- summary safety, suspect’s ing grant judgment others’ and the efforts to a court to Medina, ..., resist or evade arrest. 252 F.3d when “the facts considered collective- ly, present incomplete picture at in an 1131. Because reasonableness Salmon, quiry overlaps qualified immunity with the circumstances.” [relevant] analysis, qualified immunity [is] “a defense F.2d at 1137. in of less value when raised defense of summary judg We have held that Queza (citing excessive force claim.” Id. granted ment motions not be Bernalillo, County da v. 944 F.2d excessive force claims under (10th Cir.1991). Whether an officer any genuine which issue of material fact deadly reasonably using acted force is regardless of poten whether the remains — “heavily dependent.” fact Romero v. tial immu grant qualified would arise from Comm’rs,

Board nity showing or from a the officer (10th Cir.1995) Wilson, (quoting 705 n. 5 merely had not committed a constitutional 1553). 52 F.3d at Muskogee, violation. F.3d Consequently, Muskogee, police this court will not officers killed a man approve summary judgment drop gun he refused to while excessive when qualified immunity threatening Although force cases—based on to commit suicide. moving party eyewitness dramatically or otherwise—-if the has not differed accounts quieted disputed prior all issues of material fact. as to the officers’ actions to their Muskogee, Allen v. shooting, F.3d 840-842 the district court nonetheless (10th Cir.1997). Spinharney, summary judgment In Zuchel v. granted ground on the (10th Cir.1989), 890 F.2d 273 we that the a con- agreed officers had committed

1315 reversing, held we stitutional violation. IV. involv- disputes material factual

that such plaintiff cognizable A states a of an offi- ing “immediate connection]” denial of Eighth Amendment claim for to “a sus- response cer’s use of force if “allege[s] acts or medical attention he prevent force” a court pect’s sufficiently threat of omissions harmful to evidence summary judgment. Id. at 840. deliberate indifference to serious medical granting Gamble, 97, v. 429 needs.” Estelle U.S. fact disputed issue of material Where a (1976). 285, 106, 97 50 L.Ed.2d 251 S.Ct. remains, sum- that ends matter care right The to custodial medical is move mary may The court not judgment. 104, 97 clearly established. Id. at ac- whether an officer’s on determine Although “[p]retrial detainees 285. are “objectively tions reasonable.” were protected under the Due Process Clause Amendment, the Eighth rather' than ... force, the issue of excessive On applies analysis an identical to this Court jibe facts party’s neither asserted material applied that Amendment cases says King with the other. those of Officer Lopez §to brought pursuant 1983.” v. be belligerently that behaved Appellant (10th LeMaster, 756, n. 2 172 F.3d 759 Appel him. attempted fore he to handcuff Cir.1999). “Deliberate indifference” in say Appellant lant children that and his subjective objective an and a volves both nothing cooperate passively. did but Offi Colo., Sealock v. component. Appellant cer that tried King contends (10th Cir.2000). former 1209 The is me, by in to “turning] resist the arrest “sufficiently deprivation if the is seri met hold control just which made me on to the is, “if it has is one that been ous”—that App. Appellant hold.” at 216. maintains physician a diagnosed mandating as times. complied physically at all he or one that is so obvious that treatment App. Appellant says at 215. Officer lay easily recognize person even would King at into pushed Appellant least 10 feet necessity for a attention.” doctor’s to effectuate the arrest. store window (10th 199 1224 Uphoff, v. F.3d Hunt tale tells a far King Officer more subdued Cir.1999). if The satisfied an latter “maneuver[ing] [Appellant] against disregards an exces officer “knows gain[ the neces [to] ] storefront window safety.” risk to health [a detainee’s] sive sary leverage Supp. Sealock, to handcuff him.” F.3d at Farmer (quoting Brennan, 825, 837, nothing 114 S.Ct. App. mentions at Officer U.S. (1994)). Essential 128 L.Ed.2d 811 Appellant during the manhandling about facts from officer must be “aware of ly, the that Of process. arrest asserts inference drawn could be which angle, ficer “cocked at [his arm] exists, risk of serious harm substantial up [his] ... the middle back.” clear must also draw the inference.” Garrett App. Although 172-173. the district Stratman, 949-950 F.3d summary judg in granting court erred Cir.2001) Farmer, U.S. at (quoting qualified immunity, ment via the over 1970.). 837, 114 S.Ct. divergences whelming number factual disput material scream the obvious—that facts im disputed material Where obviously remain to the exces ed facts as questions either of the two plicate in grant sive force claim. court erred need existed or a serious medical whether deliberately indif ing judgment the excessive summary an officer was whether it, grant a court sum- force ferent issue. 1316 LeMaster, self-esteem, apathy, feelings 172 F.3d at fear and of

mary judgment. LeMaster, we reversed a district satisfy differentness” that did not Estelle’s 764. summary on an grant judgment court’s in objective prong Riddle. 83 F.3d at in Amendment claim inmate’s 1204. of fact re- case in which “material issues According to the National Institute of [1) concerning badly appel mainfed] ] how Health, impacts Mental more than OCD 2) hurt”; lant was whether a sheriff was percent population outpacing two — from which an inference “aware facts in schizophrenia bipolar both disorder be drawn that a substantial risk of could frequency terms of of affliction. National 3) existed!,]” medical harm and whether he Health, Institute of Mental Obsessive- Similarly, that inference. Id. in DeS drew Disorder, Compulsive at (10th Uphoff,

pain 264 F.3d 965 Cir. http://www.nimh.nih.gov/pubhcat/ocd.cfm 1999), grant we reversed a court’s district (last visited Oct. See also 3 Ameri- 2002). summary judgment “[n]early where ev CAN PSYCHIATRIC TREATMENTS OF ASSOCIATION, ery relating material fact [whether (1989) (report- Psychiatric Disorders impact prison flooding of a incident consti that, ing early as as lifetime “[t]he ‘sufficiently tuted serious’ medical need in prevalence general popula- of OCD the , such that it attention and would warrant percent”). Seep- tion more than two [was] were prison deliberately whether officials consciousness, ing into mainstream the dis- hotly it] indifferent to was contested.” Id. profoundly order affected a successful at 972. Academy writer in the 1997 Award nomi- only Accordingly, inquire we must Gets, film nated As Good As It and the genuine whether a of material fact issue popular cable television show Monk re- objective subjec existed as to either the volves around detective who suffers from inquiry nullify tive would a motion for (Gracie OCD. As Good As Films It Gets summary judgment. (USA Inc.2002). 1997); Network, Monk Although our task is not to determine A. Appellant’s “sufficiently whether is OCD objective inquiry As of whether serious,” it hardly inconceivable that a Appellant’s panic OCD-induced attack dur- jury could precisely According- find that. jail ing “sufficiently the ride to seri- ly, objective portion teeters on a dis- ous,” Appellees downplay by compar- OCD puted wholly material fact that makes it ing gravity it in prevalence to mere improper for the district court to have “sexual addiction”—held the Court granted summary judgment. Mondragon Riddle v. not to rise to the of “sufficiently level serious.” 83 F.3d B. Cir.1996); Appellee Offi- King’s cer at Brief 33. Assuming, arguendo, that OCD indeed serious,” diagnosed qualifies had been with and “sufficiently as the sub- period jective treated for prong OCD over of at least second also teems with dis- years before puted the December 1997 inci- material facts that summary render 165-166, 183, App. dent. at judgment inappropriate stage. More- at this over, regard OCD does not reside the minds of With whether Officer sufferers; unlucky a handful Appellant’s disregarded] “kn[ew] of and an excessive real, very diagnosed greatly affliction out- risk to [Appellant’s] safety,” health or Sealock, weighs “[v]ague allegations of eroded at (quoting Farm- 1970), the OCD er, attempts neither sufferer 114 S.Ct. When 511 U.S. compulsion, “there is a stave off a sense of wheth on the material fact party agrees Psychiat- mounting tension....” American of Appellant’s knew Officer even er Diagnostic Association, The he was and Statis- less on whether ric condition—much 300.3 Manual of Mental Disorders tical of from which the inference “aware facts ed.1987). (3d Moreover, anxiety rev. is a of a substantial risk be drawn that could feature with common associated the disor- existfed, he] harm or on whether serious Thus, not der. Id. does manifest OCD Garrett, 254 F.3d the inference.” dr[e]w nose; rather, visibly bloody as a itself as Farmer, at 511 U.S. (quoting at 949-950 attack who remains on like a heart victim 1970). 837, 114 that Appellant claims feet, its are subtler and characteristics on panic incurred a attack he OCD-related de- consequently capable being more jail and that he twice told the ride the by by the than an scribed sufferer noticed attack, only to re King about the Officer outsider. at response. App. no 176. Officer ceive Although simple placing act. King Appellant could not recall whether man—as was the case here—in a innocent attack, panic anything about mentioned may unquestionably produce car that though [Appellant] “believe did anxiety, allegation that he Appellant’s fact something stated to the that he’d King having told Officer that he was twice past.” at problems App. [health] attack, coupled King’s with Officer panic prior admission that mentioned According the fourth edition of The problems, signify that Offi- together health Diagnostic and Statistical Manual King may of cer have knoum of—and disre- definitive Mental Disorders-TV —a source garded risk to Appellant’s excessive —an of mental illnesses—(cid:127) for classification jury is for a to decide. health. This Just are the essential features disorder task is not to determine whether as our or marked compulsions “obsessions cause alleged panic and attacks Appellant’s OCD distress, ..., consuming sig- serious,” “sufficiently are time or to the level of rose person’s not whether nificantly interfere with the nor- our task is to decide Officer (or academic) routine, ignorant Appellant’s was indeed occupational mal apparent pleas assistance. functioning, or social or re- usual activities PsyohiatriC Asso- lationships.” American LeMaster, is that “mate- point As in Diagnostic ciation, and Statistical concerning” issues of fact remain rial (4th § 300.3 of Mental DisordeRS Manual “aware of facts whether Officer was ed.1994) [hereinafter DSM-IV]. Obses- could drawn which an inference be persistent are and sions “recurrent harm a substantial risk of medical thoughts, impulses, images or that are ex- he drew that infer- and whether existed” during some time the distur- perienced, LeMaster, at 764. Strong- ence. 172 F.3d bance, inappropriate as intrusive and ly contradictory as to the factual assertions anxiety cause marked or distress.” King’s to Officer nature OCD and as Compulsions “repetitive are behaviors Id. Appellant’s pleas make sum- response ordering, checking) hand or (e.g., washing, mary judgment improper Appellant’s praying, counting, acts re- Amendment claim. (e.g., mental silently) person peating words Y. perform response driven to to an feels obsession, according municipality or must will hold a rules that We when violations] Id. “liable constitutional applied rigidly.” [for be underlying rights there no constitutional vio federal a ‘highly predictable’ is ‘plainly consequence of its obvious’ lation officers.” Hinton v. of a munici Elwood, pality’s Barney, action.” City 143 F.3d at 1307 (internal omitted). Cir.1993). citations The official deprives an officer citi When position must operate “moving as the however, right, mu zen of a constitutional violation, behind plain force” and the liability incur un nicipal governments tiff must demonstrate a link” “direct causal alleged “the action that der 1983when right between the action and the violation. implements to be unconstitutional or exe Brown, Bd. Comm’rs 520 U.S. statement, ordinance, regu policy, cutes a 397, 399, 117 S.Ct. 137 L.Ed.2d 626 officially adopted lation or decision (1997). is, That the injury “[w]ould have body’s promulgated by that officers.” Mo been employee avoided had the been Services, Dep’t nell v. Social 436 U.S. of trained under a that program was not 658, 690, 2018, 98 S.Ct. 56 L.Ed.2d 611 deficient in the respect?” City identified (1978). liability Because vicarious will not Canton, 391, 489 U.S. at 109 S.Ct. 1197. of open municipality liability simply a regard to any attempted showing With of when one of its officers has committed a “deliberate indifference” a municipality, Monell, violation, constitutional 436 U.S. at the existence of “material of issues materi 694, 2018, only 98 S.Ct. when the “[i]t al precluded] summary fact judgment.” government’s policy ‘execution of the or Laramie, City Cruz v. of injury’ custom ... inflicts the that (10th Cir.2001). 1191 municipality be held liable under Harris, § City 1983.” Canton of A. 378, 385, U.S. L.Ed.2d Because has failed to (internal (1989) omitted). citation allege facts that showing Layton City man explicit policy absence of an or ifested deliberate rights indifference to the custom, inadequacy entrenched “the po of of OCD sufferers who are taken into custo lice training may § serve as a basis of 1983 dy, we affirm will the district grant court’s liability ... where the failure to train summary judgment Layton City. Al amounts to a deliberate indifference to the though Appellant may indeed show that rights persons with whom the Officer has committed the prerequi come into contact.” Id. underlying site Eighth Amendment viola Indeed, we have confirmed tion, Appellant has not taken the subse that this deliberate indifference standard quent step of linking possible violation may be municipality satisfied “when the municipality to a custom or policy. The has actual or constructive notice that its teachings of progeny pro Monell and its action or failure is substantially certain to scribe the liability attachment of vicarious violation, result in a constitutional and it to a municipality merely because the mu consciously deliberately and chooses to dis nicipality employed the individual who regard the risk harm.” Barney v. Pul committed a constitutional violation. It is 1299, 1307 Cir.1999). sipher, 143 F.3d absolutely necessary to that show “the ‘ex Although single generally incident will government’s ecution of the policy or cus give not rise liability, City Okla. ... tom the injury’ inflict[ed] [in order to Tuttle, 808, 823, 471 U.S. 105 S.Ct. hold municipality a] ... liable under (1985), 85 L.Ed.2d 791 “deliberate Canton, indiffer City 1983.” 489 U.S. at ence may (internal be pattern omitted). found absent a of 109 S.Ct. 1197 citation unconstitutional if behavior a violation regard of With to Layton City, Appellant has showing of deliberate indiffer- make out more than Officer alleged nothing quash violation. committed a constitutional ence—more than sufficient tied the vio- adequately Appellant has summary judgment motion. municipality custom— a broader

lation to alleged showing facts Appellant has is, indifference to OCD deliberate absolutely prebooking officers receive department’s men- Layton City police They only look “for training no on OCD. may not training scheme. We tal health complete change that have a inmates respecta- Appellant’s otherwise infer behaviors, aggressive behavior ... odd frequency of OCD that ble assertion behaviors, If a suicidal indicators.” Id. construc- actual or municipality “ha[d] unsure how to ad- prebooking officer is action failure [was] notice that its tive complains panic an inmate who of a dress to result a constitu- substantially certain violation, attack, [they] consciously policy he or she must refer to tional deliberately disregard risk prebooking [chose] 279. The App. manual. 143 F.3d at 1307. Be- Barney, of harm.” knowledge field of mental health officers’ alleged facts Appellant has not cause booking in the manual on is contained violation to a bridging the individual mental procedures that indeed addresses custom, genuine is- municipal no broader an initial needs and delineates health dispute fact sits in because of material sue screening App. at 362-364. The process. claim. Ac- has been raised on this none officers, however, are left with prebooking the district court’s cordingly, we affirm in- determining in whether an discretion judgment to grant summary decision to a disor- psychological mate suffers from Layton City. Signifi- requiring der medical attention. cantly, appears no discussion of OCD B. within it. however, a County, quite is Davis does hardly repeating, It bears but OCD the district story. We reverse different Halley’s infrequency in its summary not rival Comet grant judgment of court’s has al occurs in more than County Appellant appearance. because of OCD Davis estab necessary causing facts leged percent population, two of the County manifested deliber lish Davis significant interfer- [and] “marked distress jail’s failing to train its ate indifference normal rou- person’s with the encfence] recognize OCD and officers prebooking (citations omit- Supra ...” Part IV tine. in appropriately. “[T]he handle sufferers ted). exactly decide Although jury shall respect to police training adequacy [with into the main- what extent it has burst §of may serve as a basis OCD] stream, it an ob- hardly could deem one failure to train liability ... where the scure disorder. to the indifference amounts to a deliberate reported his OCD jail, Appellant At the with whom the rights persons sheet; screening the standard medical for Canton, City into contact.” come Besides the facts appeared as “CDC.” If [Davis “the U.S. at 109 S.Ct. panic at- also disclosed notice County] actual or constructive ha[d] officer prebooking syndrome, tack substantially action or failure [was] that its having asked Appellant’s “seems” to recall viola to result in a constitutional certain having a because he was for his medication tion, consciously deliberately and it prebook- App. at. 280. harm,” panic attack. the risk of disregard eh[ose] however, officers, away Appel- took ing Appellant could Barney, 143 F.3d at medication, sum, disputed conclude that mate- even after informed we lant’s required it. rial facts exist as to whether Davis them that he expressed deliberate indifference to an disorder, frequency Given rights via a failure to train OCD-sufferer’s County’s procedures scant on deal and whether deliberate indifference prebooking illness and the ing with mental link operate alleged could as a causal to his to his apparent ignorance requests officers’ injuries. grant We reverse the of sum- medication, rights a violation of federal for mary judgment County. to Davis “ ‘plainly obvious’conse quite possibly County’s train of Davis failure to quence” * * * * * prebooking officers address its reasons, foregoing For we RE- (in symptoms. Barney, 143 F.3d at 1307 summary grant judgment VERSE the omitted). And this is for a ternal citations County. in favor of Officer and Davis relatively jury to decide. That OCD is summary judgment AFFIRM in favor We county proce and that common Layton City. place dealing dures in with inmates psychiatric suggest with disorders that the HARTZ, in Judge, concurring Circuit constructive municipality may have had in part dissenting part: prevalence notice of the illness’ and conse I concur the affirmance of the sum Accordingly, quences. Appellant has mary judgment Layton City. in favor of I genuine of material fact as raised issue agree also that we must set aside the county to whether the had notice of and summary judgment in favor of Officer deliberately indifferent its failure to King on Mr. Olsen’s Fourth Amendment prebooking train officers on OCD. I respectfully

excessive-force claim. dis sent, however, majority’s from the view C. that is pursue Eighth Olsen entitled to his against Process claim Amendment/Due Moreover, parties logger- are at County. and Davis I will first ad heads over whether even suf- dress the Fourth Amendment claim and injury directly resulting fered an from the (To Eighth then the Amendment claim. alleged Although deliberate indifference. precise, be both claims are under County prebooking contends that its Amendment, imposes Fourteenth which on in way officers’ actions no could have states substance of the Fourth and or sparked injury the recurrence of Cooper Amendments. See Indus. OCD, Appellant argues forcing that him to Inc., Group, v. Leatherman Tool 532 U.S. regard remove his footwear without for his 424, 433-34, 1678, 121 S.Ct. 149 L.Ed.2d triggered condition or need for medication (2001) (Eighth incorpo Amendment is the onset of the disorder. Davis Amendment); rated into Fourteenth Wolf prebooking asserts that officers noticed Colorado, 25, 27-28, 338 U.S. 69 S.Ct. nothing ordinary so out of the war- as to (1949) 1359, 93 L.Ed. 1782 (incorporating rant medical attention or a variance from Fourth Amendment into Fourteenth policy. Appellant alleges they routine Amendment).) cavalierly ignored pleas his and his condi- gives tion. This conflict rise another I. Fourth Amendment Claim disputed issue of material fact. Deliberate question agree indifference in this case is a I Mr. testimony Olsen’s rais- jury. genuine regard- es a issue of material fact by the store clerk in enter from an error King used excessive whether Officer ing date, expiration but this jury ing If the the card’s during Olsen’s detention. force being thrown error was not known at the time. account believes Olsen’s Cf. window, hav- despite Shareef, States v. 100 F.3d against the store United (10th Cir.1996) (“A King, it could premise no resistance to mistaken ing offered Ohio, reasonably Terry find that violated Olsen’s for a grounds [v. can furnish by using exces- rights Amendment Fourth 392 U.S. 88 S.Ct. 20 L.Ed.2d (1968),] sive force. know stop, if the officers do not it mistaken and are reasonable however, appears majority opinion, The (internal acting quotation it.” marks upon finding possible additional go further omitted)).) by To King. Amendment violations Fourth does, disagree. I Be- extent that the information received though Even I what is the precisely cause am sure hearsay, an officer can by King was double pertinent majority opinion’s view of the if each level of rely such information law, analysis, my I shall set forth own hearsay was itself reliable. See United compare it to the attempting without (10th 176, 179 McCoy, States v. 478 F.2d majority’s. Cir.1973). Here, hearsay both levels initial was report were reliable. The starting point is to determine what clerk, the store an identified citizen with basis, any, King if had to detain legal grind. axe to See United apparent no was charge against The core Olsen Olsen. 1217, 1221 Neff, 300 F.3d States of a credit card under fraudulent use Utah Cir.2002) reliabili- (discussing presumptive The statute Ann. 76-6-506.2. Code informants). security ty of citizen And the person “knowingly, makes it a crime for a officer herself a reliable source. See defraud, intent obtain or at- [to] with Cos., Gramenos v. Jewel eredit[,] or or tempt purchase to obtain (“Police (7th Cir.1986) have reasonable purchase goods, property, or attempt grounds guard supermar- to believe a at a false, fictitious, services, by the use of a ket.”). security officer only Not did the counterfeit, revoked, altered, expired, sto- lie, reason to she had apparent have no len, fraudulently financial obtained accusing in added.) strong motive to be restrained (emphasis transaction card.” Be- of her of crime—both because customer prohibits attempt, the statute a mere cause and keep desire to customers employer’s actually not matter whether Olsen it does liability to the potential because of eventually merchandise or obtained if the security employer and her officer any merchandise that was ob- paid for was un- detention of the customer store’s tained. founded. id. See view, King had cause to my probable course, to good police practice it is for credit card offense Of arrest Olsen explanation ap- security suspect mall informed ask the for guard when the the arrest- criminal conduct. But happened parently him had when Olsen of what all, believe the obligation officer has no ing the credit card. After tried to use Fay, 45 F.3d suspect, see Romero attempted buy had merchandise Olsen Cir.1995) (officer kept lawfully re- 1474 with a card that Discover Card had (In fact, pro- custody despite suspect’s suspect he had ported to be fraudulent. innocence), in- failure to use the Discover Card imme- testations attempted to probable void the officer’s quire had re- does not diately after his Visa Card been (once cause, had 1477-78 officer see id. at jected. rejection may have resulted al., arrest, Wayne his failure to R. LaFave et Criminal Proce- cause probable 3.8(b) (2d ed.1999); § Maryland dure see negate probable did not investigate further Macon, 463, 470-71, U.S. showing absent that initial finding, cause (1985) (“Whether 2778, 86 L.Ed.2d 370 unreasonable); was itself determination Fourth Amendment violation has occurred al., Wayne R. LaFave et generally See objective on an turns assessment 3.2(d) (2d at 47-49 Search and Seizure in light officer’s actions of the facts and ed.1996). time, him confronting circumstances at the King probable had If I am correct and not on the officer’s actual state of upon receiving Olsen cause to arrest challenged mind at the time the action was then could security report, King officer’s (internal taken.”) quotation citation and him lawfully handcuff Olsen take omitted); at 1222 Neff, marks investigation. clerk for further the store (“In measuring the actions of a offi- Fourth Amendment vio- possible The sole Amendment, cer under the Fourth ... we one) hardly a trivial would (although lation facts, objective look at the not the officer’s throwing the use of force in be excessive mind.”). Dix, George state of But cf. against Olsen the store window. Nonarrest, Investigatory Detention in Law, Search and Seizure 1985 Duke L.J. Yet even if I am incorrect about the (1985) (whether 849, 922 officer announces cause, probable report existence of suspect is arrest be rele- under security unquestionably from the officer vant to “the experienced intrusiveness gave King suspicion to detain reasonable detainee”). investigation. Olsen for further We thus suspicion reasonable to believe Given Ol- constitutionality may examine the crime, King sen had committed a had the King’s assumption that he conduct on the right to detain Olsen for a reasonable time probable lacked cause but had reasonable to investigate appro- the matter. It was suspicion. regard, important In this priate King up security to follow on the recognize that it is irrelevant whether report by officer’s questioning store King thought probable cause to Card, calling clerk and Discover and it was thought arrest or whether he he was ef- certainly lawful for to continue to fecting an arrest. The issue is whether during period detain Olsen this limited justify had sufficient information to time. what he suspect. did with the As a lead-

ing authority states: course, King employ Of exces- could during jury sive force the detention. If a The police judged conduct should be account, properly believed Olsen’s it could what terms of was done rather than King find that violated Olsen’s Fourth may

what the involved officer have rights by throwing Amendment him called it at the If an time. officer tells against a store window. the suspect he is under arrest but then addition, only a weap- King only conducts frisk and finds a In if had reasonable on, cause, a later grounds suspicion, probable determination that but not then the lacking may for arrest were not ren- use of handcuffs have constituted ex- should weapon der inadmissible the discovered cessive force for investigative the deten- if there in grounds stop per were fact for a tion. The use of a handcuffs not se Obviously and the frisk. rights person being the result violation of the of a would if investigation be otherwise the search exceed- detained for based on reason- ed that permissible Terry. suspicion. Neff, under able 300 F.3d at 1220 (if (“[A] not handcuffing unrea- in Olsen there was stop does not become Terry (contrary probable cause for an police officers use arrest just because sonable view) handcuffs_”). Nevertheless, my justifi- there was no specific unlike handcuffs). arrest, an cation for of the use probable when there is cause use, their justification for there must be Eighth II. Amendment Claim fear violence or

such reason to specific as id. at 1220-21. escape. See agree Eighth I that Mr. Olsen’s Amend- against Layton City ment must fail. claims was handcuffing improp- If of the Olsen however, Contrary majority opinion, to the ease, he have a cause of er in this would summary judgment I would also affirm the Amendment for action under the Fourth King in favor of and Davis Officer That such of excessive force. viola- use against on the Amendment claims however, Eighth tion, the would not vitiate lawful- them. not a the seri- This is reflection on extending investigative deten- ness of the of medical The ousness Olsen’s condition. King tion to interview the store to enable (The record that his has caused indicates OCD call hand- clerk and Discover Card. Yet the great suffering. viewing him even also the of cuffing could affect lawfulness light evidence in the most favorable to Olsen, of but that is not interrogation claim, he us.)1 produced has not sufficient evi- King an in- before Once had issue dence that violated defendants called terviewed the store clerk and Dis- Eighth Amendment. Card, unquestionably proba- he cover ble cause to arrest Olsen. begin King. I The basis for with sole short, only against I Amendment claim potential grounds Olsen’s King’s King driving can a Amendment claim arises out of Olsen see for Fourth Olsen, (1) during the jail. According the use in twice here are of excessive force a trip King having that he throwing against the store window told was Olsen n (which that he panic claim there attack. He does claim proper is a whether was only He does probable for an or rea- told he suffered OCD. cause arrest claim he told he needed suspicion investigative for an de- not that sonable (2) tention); medical He does not claim the use of excessive force attention. only the use recognize language in some this Perdue have addressed whether I opinions suggests that excessive court's use force rendered the detainee's excessive force, unnecessary as the use of such hand or consent search inadmissible. statements cuffs, investigative converts detention into Melendez-Garcia, See, e.g., v. States United stating opinion Our first so an arrest. (10th 1994). analy Cir. F.3d Perdue, 8 F.3d 1455 United States essentially opinions would sis in be these wrote, 1993), "[E]ffectuating which Cir. we simply officers same if we had said that the stop by pointing guns suspect a Terry at stop, Terry had used excessive force in a an 'arrest' elevate seizure to most saying stop that the became an rather than precise at scenarios.” Id. 1463. But a more Indeed, See, pri- e.g., arrest. id. 1055-56. proposition appeared statement earlier Perdue, approach we had criticized said, opinion, in the where we "An encounter deciding degree of some courts in goes and an individual which between stop force used officers could convert however, Terry stop, beyond the limits Merritt, an arrest. See United States into only by constitutionally justified prob be (10th Cir.1982). In able cause or consent.” Id. at 1462. other event, the Perdue line of cases stands none of words, say police that conduct to certain con deten proposition for the that continued only say stop into an verts a arrest is that all, if tion of Olsen in itself became unlawful only justified, by could if at the conduct be probable Opinions used. cause. that have excessive force was followed day yet a not taken a needed to take his medi- mazine twice but had King he he told Indeed, jail him that although pill day. Olsen’s briefs on that The officer told cation. pro- that should have appeal assert he had to turn over the medication. attack, panic for Olsen’s vided treatment pre-booking was still in the While Olsen specifically what they do not state area, a pat-down the officers conducted differently. done should have search, part As Olsen was search. jail apparently The drive custodial shirt, shoes, belt, to remove his and asked “only But caused Olsen to suffer. shoes and inspect socks. officers unnecessary pain and infliction of wanton they places socks because are common implicates Amendment.” weapons. hide Olsen informed the officers Brennan, 825, 834, Farmer v. U.S. that he did not want to take off his shoes (inter (1994) 128 L.Ed.2d 811 S.Ct. and socks because he had OCD and was omitted). King nal could quotation marks Olsen, germophobic. According to he was only if be hable he and disre “kn[ew] time, having though a attack at this panic garded] an excessive risk to [Olsen’s] deposition testimony his does not reveal 837, 114 id. at safety,” health or having whether he told the officers was jail drive by continuing caused his panic being a attack while he was (un taking rather than some other action searched. appeal) identified Olsen on consistent safety, In the interest of their the offi- with his duties as a officer. The comply cers insisted that with their Olsen finding a simply support evidence does that he request take off his shoes and culpable knowledge. that King had such Nevertheless, him they provided socks. a against To assess the claim Davis Coun- chair to sit so his feet would not jail. ty, happened we look to what at the An have to touch the floor. officer testi- Upon arrival at the Davis Jail accommodation, fied this was an p.m., brought pre- 6:52 Olsen was into a which made search less safe because area, booking where he was asked a series easily Olsen could more assault the officers questions a part screening medical as position. from a seated After he took off process. According screening to the socks, his shoes and the officers searched (1) sheet, diagnosed he suffered from rest- them, gave and Olsen his socks back. Ol- (2) (recorded lessness, incorrectly OCD as sen remained sock-footed for the remain- (3) (4) “CDC”), panic syndrome, attack jail. der of time in his (5) problems, hyper- mild cardiovascular The officers then took into the Olsen (6) tension, cold; pre- and and he had area, booking where he was to check his scriptions for Biaxin and antihistamine. possessions photographed and be and fin- sign Olsen did not the authorization for gerprinted. checking While he was medical examination treatment and/or possessions, Olsen told the officers that he incarcerated, appears while which at the had medicine for his with him and OCD screening bottom of the sheet. having that he needed it because he was completion Olsen testified after the officers, however, panic attack. The would sheet, screening of the medical he was medicine, not allow him to have the asked if he had in his anything pockets. they took from him. He stated that he had medications for two OCD, Diazepam Chlorpromazine. Typical- He then fingerprinted. Olsen was Diazepam day ly, fingerprinting prisoner, took once and had taken a before pill Chlorpro- prisoner before his arrest. He took officers ask the to wash his hands removed, check will made to a. A medical be grease are that all oils so is not need of prisoner Ol- insure quality print. thereby ensuring good immediate care.... officers Again telling the protested. sen his expressed he germophobic, he was Treat- The section on Access to App. 359. germs lot of might there be a concern that ment states: to wash his sink where he was around the the avail- prisoners To communicate policy, Contrary to their normal hands. ability of health services within forego hand allowed Olsen the officers County and the method of Davis Jail unwashed his washing, fingerprinted obtaining the services[:] although the officers Additionally, hands. Information about health care services their prisoners to wash ordinarily require prisoners to all will be communicated they did not fingerprinting, after hands jail. their arrival to The instruc- upon do so. make Olsen verbally writ- given tions will be and/or allowed Olsen was fingerprinting, After ten. phone placed where he day

into a room information -will A. Access to treatment re- television. He was calls and watched include, not be limited to: but two- p.m., at 9:15 less than leased on bail call 1. Doctor’s sick jail. arriving after and-a-half hours medical care Emergency 2. he re in his brief that Olsen asserts 3. Mental health needs attention” from quested “medical 4. Dental clinic Department and Sheriffs B. This information will be communi- requests. denied his jail personnel prisoner: to each cated evidentiary support pro only But the Verbally is a citation to a vides for this assertion screening of intake deposition testimo a. At the time 60-page portion his reference can be ny. an overbroad Such addresses provision Another App. 361. be) (and disregarded by the court. should medication: Co, 53 F.3d Burggraf Const. See Gross claiming to be on medi- ... Prisoners Cir.1995). event, cation: the assertion. support the record does not following information: a. Obtain most, county officials At informed Olsen 1) of medication Purpose (1) OCD, he could that as a result take off his things namely, not do certain 2) Dosage — (2) hands, and he needed or wash his shoes 3) Description of medication that he He never testified his medication. 4) physician prescribing Name of asked for medical assistance. 5) prescription Date of policy intake County prisoner The Davis 6) Last dose regarding the medi- provisions has several 7) Pharmacy The Admission prisoners. cal needs of following verify above infor- Procedure contains b. The nurse will Search by calling: mation directive: 1) Prescribing physician Pre-booking Preparation.... A. 2) Hospital receiving depu-

3.... The intake floor 3) Family to obtain: following: ty will do the a) number, date, phy- are treated follows: Prescription [what others as follows is not in the sician, record]. of medication. name App. 363. Later it states: b) of medication Purpose judgement 2. It must be a matter of (Although provision ap- this 362. App. or accept weather not to such [sic] title, “Prisoners with com- under the pears Remember, however, that prisoner. disease,” parties apparently the municable diagnose cannot the screener Fi- generally.) more agree applies condition, might and it be more seri- “Receiving section entitled nally, apparent. than seems when ous So sense, deals with medical and Screening” using judgment twice and common may prisoner it 'is determined the needs. First: psychiatric him problem, accept have do not screening performed will be Intake medically until he has been cleared. all for incarceration prisoners presented County Screening pre- Jail. the Davis exhibiting Prisoners behavior indic- 0. pose who health or prisoners vents psychiatric sui- ative disorders or safety threat to themselves or others (delusions, cide threat hallucina- facility’s being gen- admitted to the tions, difficulties, communication population. eral speech posturing, impaired and lev- during the Observation of inmates consciousness, disorganization, el of suicide, screening may prevent detect defects, memory depression or evi- withdrawals, drug recog- symptoms of mutilations) dence of self will not be signs nize the of trauma inmate accepted without medical clearance. received, if requires have he/she App. 364. medical attention.... evidence, From the above I do not see how an claim against Amendment Receiving screening A. will be conduct- County can be sustained. Mr. Olsen during booking pro- ed initial First, grounds. county fails on two County cess of the Davis Jail and damages only if employee liable com performed will be medical staff City mitted a constitutional violation. See health trained correctional and/or Heller, 796, 799, Angeles Los 475 U.S. screening in- deputies. will 1571, (1986); 106 S.Ct. 89 L.Ed.2d 806 clude: Myers County v. Oklahoma Bd. of 1. screening emergency Initial Comm’rs, Cir. psychiatric medical or needs. 1998). But, below, explain as I will there Second, was no constitutional violation. even if an employee committed such a Documenting history 3. medical violation, theory county Olsen’s sole lia bility county is that the failed to train the Documenting prisoner’s behavior jail employees prisoners to deal with suf appearance. fering from failure-to-train lia OCD. Such Receiving screening B. will be docu- however, bility imposed, can be if only mented on the screening medical “ county’s failure reflected the ‘deliberate form.... rights indifference’ to the inhabit its Harris, posing C. Prisoners immediate health ants.” Canton U.S. safety threats to themselves or 103 L.Ed.2d 412 (1979) (“The fact of confinement as (1989). evi- 447 provide to has failed Olsen legitimate goals policies of I well as the indifference. deliberate dence such limits ... retained penal in more the institution ground now address each will Similarly, the offi- rights.”). constitutional detail. finger- in the cers accommodated Olsen violation, a constitutional establish To by making not him wash printing process jail one that at least must show Olsen Eighth The did his hands. Amendment an disregarded of and employee “kn[ew] jail that the refrain from not mandate or safe to health [Olsen’s] excessive risk him. fingerprinting Farmer, 114 511 at S.Ct. ty.” U.S. (The analysis applies taking A to med- mind was similar requisite state of 1970. Seiter, procedures Jail re- 501 ication from Olsen. in v. U.S. referred to Wilson verify any 294, 302-03, quired personnel medical 111 115 L.Ed.2d S.Ct. could (1991), prisoner needs before a prescription indifference.” as “deliberate 271 makes term, however, practice medication. This given can cause con be of that Use Otherwise, prisoners obvious sense. could the term has a differ because same fusion dangerous drugs, mu unlawful or in context of take meaning the related ent responsible could be held for not prisons violations nicipal liability for constitutional self-destructive behavior. preventing court has ex such by employees. As this context, that the verification problem conditions The here is prison “In the plained: completed during not Ol- subjective procedure stan indifference is a deliberate than two hours. a risk sen’s incarceration more requiring knowledge actual dard context of this case municipal liability delay a the official. In the Such by the by the context, may justify finding negligence a objec indifference is an deliberate matter alto- county jail. if But it is another is satisfied the risk tive standard which county that a to find on this record gether that the official should have is so obvious necessary culpable possessed the Barney Pulsipher, employee known of it.” (1998) any devoid of 1299, 1307, of mind. The record is (emphasis n. 5 add state F.3d ed).) jail’s actions after regarding on evidence nothing in the record There is however, was seized. One Chlorpromazine to show that staff Olsen’s appeal, regarding who was re- only speculate culpable state of mind can member had per- that delay and what sponsible viola for Eighth for an Amendment required view, my of mind was. son’s state tion. support jury finding record would not taking off complained about When Olsen employee of and jail “kn[ew] that some his fear of shoes and socks because of to [Olsen’s] an excessive risk disregard[ed] floor, jail personnel accom- germs on the Farmer, 511 U.S. safety.” health or chair so that his by finding him modated Therefore, the sum- S.Ct. Al- ground. not touch the feet would claim mary against Olsen on this judgment could have accommo- though the officers sustained. See Revell must be Hoff- him requiring further dated Olsen (10th Cir.2002) man, 1228, 1232 socks, there was to remove his shoes and summary judgment). (stating standard for security purpose checking those clear Moreover, violat- jail employee if a weap- even clothing for such items as articles rights Eighth under ed Olsen’s The Amendment drugs. ons Amendment, provided has not suffi- Olsen jails forego reasonable require does not against his claim evidence to sustain security Wolfish, Bell v. cient measures. Cf. that OCD is so 520, 546, County. He asserts 60 L.Ed.2d U.S. violation, is sufficient obligation potential such county common Here, municipal liability.” there trigger in how to handle jail personnel train “recurring no evidence of such situa- the condition. suffering from prisoners however, County jail. tions” in the Davis has policy, intake county respond rea would seem provisions deliberate “[t]he have also said We prisoners. needs of medical to the sonably may be satisfied indifference standard county, must the Olsen against prevail To actual con- municipality when the has or “ different need for more or that ‘the show or failure to notice that its action structive obvious, inadequacy the and training is so result in a substantially act is certain to of consti in the violation likely to result so violation, consciously it constitutional policymakers the rights, tutional disregard the deliberately or chooses to reasonably be said to have [county] can the Barney, harm.” 143 F.3d at 1307 risk of to the need’ deliberately indifferent been added). I that “con- (emphasis assume Wood, training.” Jenkins v. for additional a fact can arise when structive notice” of (10th Cir.1996) (quoting 994 81 F.3d in the widely by fact is known those the 1197). Harris, 390, 109 489 U.S. at Harris, field of endeavor. See particular (police then, it was at 390 n. S.Ct. 1197 is whether U.S. question, to train officers in use jail's policies, ab- administrator’s need that under the “obvious” obvious). In jail personnel deadly plainly were force is training, further sent plaintiff properly Allen itself the re- Eighth the Amendment likely to violate an who testified that by knowingly expert lied on rights of inmates with OCD were “out of municipality’s procedures disregarding risk[s] [their] “excessive Farmer, profes- with synch the rest safety.” health or U.S. view, proper 119 F.3d at 844. If this is a my 1970. In the rec- sion.” 114 S.Ct. notice,” of “constructive interpretation in not establish such ord this case does County have constructive evidence concerns then Davis could obviousness. Olsen’s (so problem in of an only general notice OCD prevalence OCD “obvious”) based on information population. presents problem He no evidence re- jail. experience In outside the of its own garding prison populations. particular, from us, however, how The record before contains no presents regarding no evidence pris- in ways practices” itself in evidence of “best other often OCD manifests treating persons with prison respect attention in a set- ons with require special OCD, dealing in nor does it refer to literature on the ting, experience prisons affliction, subject prison directed to administrators suffering with inmates this training jail person- personnel. or other law enforcement special or whether harm. necessary nel is to avoid serious All the record contains is medical litera- and severe reaction germophobia Olsen’s ture. But a matter cannot be considered jail may, for all the record conditions jail simply be- “obvious” to administrators shows, those among be a rare occurrence profes- cause is well known medical who suffer from OCD. by or affected sionals families of those do not Muskogee, particular In Allen v. disorder. Prison officials in Cir.1997), appears notice of what we said that “evidence of have constructive accompa- medical literature. Because Olsen relies single rights, violation of federal literature, provides no by showing municipality only nied that a has on medical regarding re- what was known employees failed to train its to handle evidence jail by jail administrators curring presenting situations obvious in general, administrators or even what jails general,

happens he has required

established obviousness

liability County. of Davis sum, although disputed there are record,

facts in the disputed there are no

material facts that could justify setting summary judg-

aside the district court’s

ment on Olsen’s Amendment respectfully

claims. I therefore dissent

from the reinstatement of those claims

against King County. and Davis COMMISSION, TRADE

FEDERAL

Plaintiff-Appellee, KUYKENDALL, Sr., individually

H.G.

and as an officer of National Market Services,

ing Inc., corporation NPC Midwest, Magazine Inc. and Club

Billing Service, Inc.; Kuyken C.H.

dall; Marketing Diversified Service

Corporation, corpora an Oklahoma

tion; Marketing Inc., National Service corporation;

an Oklahoma NPC Cor

poration Inc., Midwest Okla corporation; Kuykendall,

homa H.G.

Jr.; Magazine Billings Service, Club corporation,

an Oklahoma Defen

dants-Appellants. 02-6101,

Nos. 02-6102.

United of Appeals, States Court

Tenth Circuit.

Dec.

Case Details

Case Name: Olsen v. Layton Hills Mall

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 11, 2002

Citation: 312 F.3d 1304

Docket Number: 01-4130

Court Abbreviation: 10th Cir.