PUBLISH
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`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`December 29, 2020
`
`Christopher M. Wolpert
`Clerk of Court
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`
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`
`
`No. 19-4118
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`No. 19-4120
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`MARTIN CROWSON,
`
` Plaintiff - Appellee,
`
`v.
`
`WASHINGTON COUNTY STATE OF
`UTAH; CORY PULSIPHER, acting
`Sheriff of Washington County; MICHAEL
`JOHNSON,
`
` Defendants - Appellants,
`
`and
`
`JUDD LAROWE; JON WORLTON,
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` Defendants.
`
`–––––––––––––––––––––––––––––––––––
`
`MARTIN CROWSON,
`
` Plaintiff - Appellee,
`
`v.
`
`JUDD LAROWE,
`
` Defendant - Appellant,
`
`and
`
`WASHINGTON COUNTY STATE OF
`UTAH; CORY PULSIPHER, acting
`Sheriff of Washington County; MICHAEL
`
`
`
`
`
`
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`December 29, 2020
`
`Christopher M. Wolpert
`Clerk of Court
`
`
`
`
`
`No. 19-4118
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`No. 19-4120
`
`MARTIN CROWSON,
`
` Plaintiff - Appellee,
`
`v.
`
`WASHINGTON COUNTY STATE OF
`UTAH; CORY PULSIPHER, acting
`Sheriff of Washington County; MICHAEL
`JOHNSON,
`
` Defendants - Appellants,
`
`and
`
`JUDD LAROWE; JON WORLTON,
`
` Defendants.
`
`–––––––––––––––––––––––––––––––––––
`
`MARTIN CROWSON,
`
` Plaintiff - Appellee,
`
`v.
`
`JUDD LAROWE,
`
` Defendant - Appellant,
`
`and
`
`WASHINGTON COUNTY STATE OF
`UTAH; CORY PULSIPHER, acting
`Sheriff of Washington County; MICHAEL
`
`
`
`
`
`
`
`JOHNSON; JON WORLTON,
`
` Defendants.
`
`_________________________________
`
`Appeal from the United States District Court
`for the District of Utah
`(D.C. No. 2:15-CV-00880-TC)
`_________________________________
`
`Frank D. Mylar (Andrew R. Hopkins with him on the briefs), Mylar Law, P.C., Salt
`Lake City, Utah, for Defendants - Appellants Michael Johnson, Washington County,
`and Sheriff Cory Pulsipher.
`
`Gary T. Wight (Shawn McGarry and Jurhee A. Rice with him on the briefs), Kipp and
`Christian, P.C., Salt Lake City, Utah, for Defendant - Appellant Judd LaRowe, M.D.
`
`Devi Rao, Roderick & Solange MacArthur Justice Center, Washington, D.C. (Megha
`Ram, Roderick & Solange MacArthur Justice Center, Washington, D.C.; Ryan J.
`Schriever, The Schriever Law Firm, Spanish Fork, Utah; David M. Shapiro, Roderick &
`Solange, MacArthur Justice Center, Northwestern Pritzker School of Law, Chicago,
`Illinois, on the briefs) for Plaintiff - Appellee Martin Crowson.
`_________________________________
`
`Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
`_________________________________
`
`McHUGH, Circuit Judge.
`_________________________________
`
`Martin Crowson was an inmate at the Washington County Purgatory
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`Correctional Facility (the “Jail”) when he began suffering from symptoms of toxic
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`metabolic encephalopathy. Nurse Michael Johnson and Dr. Judd LaRowe, two of the
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`medical staff members responsible for Mr. Crowson’s care, wrongly concluded
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`Mr. Crowson was experiencing drug or alcohol withdrawal. On the seventh day of
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`medical observation, Mr. Crowson’s condition deteriorated and he was transported to
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`
`
`2
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`
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`the hospital, where he was accurately diagnosed. After Mr. Crowson recovered, he
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`sued Nurse Johnson, Dr. LaRowe, and Washington County1 under 42 U.S.C. § 1983,
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`alleging violations of the Eighth and Fourteenth Amendments.
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`The district court denied motions for summary judgment on the issue of
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`qualified immunity by Nurse Johnson and Dr. LaRowe, concluding a reasonable jury
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`could find both were deliberately indifferent to Mr. Crowson’s serious medical needs,
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`and that it was clearly established their conduct amounted to a constitutional
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`violation. The district court also denied the County’s motion for summary judgment,
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`concluding a reasonable jury could find the treatment failures were an obvious
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`consequence of the County’s reliance on Dr. LaRowe’s infrequent visits to the Jail
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`and the County’s lack of written protocols for monitoring, diagnosing, and treating
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`inmates.
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`Nurse Johnson, Dr. LaRowe, and the County filed these consolidated
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`interlocutory appeals, which raise threshold questions of jurisdiction. Nurse Johnson
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`and Dr. LaRowe challenge the district court’s denial of qualified immunity, while the
`
`
`1 Mr. Crowson also sued Cory Pulsipher, the acting Sheriff of Washington
`County, in his official capacity. But official-capacity suits “generally represent only
`another way of pleading an action against an entity of which an officer is an agent.”
`Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. New York City
`Dept. of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). “As long as the government
`entity receives notice and an opportunity to respond, an official-capacity suit is, in all
`respects other than name, to be treated as a suit against the entity.” Id. at 166. The
`district court and the parties have treated Mr. Crowson’s Monell claims against
`Sheriff Pulsipher accordingly. See, e.g., App., Vol. I at 209 n.1; Appellee Br. at 7 n.2.
`We therefore refer only to Washington County.
`3
`
`
`
`
`
`County contends we should exercise pendent appellate jurisdiction to review the
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`district court’s denial of its summary judgment motion.2
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`For the reasons explained below, we exercise limited jurisdiction over
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`Nurse Johnson’s and Dr. LaRowe’s appeals pursuant to the exception to 28 U.S.C.
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`§ 1291 carved out for purely legal issues of qualified immunity through the collateral
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`order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985). We hold
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`Nurse Johnson’s conduct did not violate Mr. Crowson’s rights and, assuming without
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`deciding that Dr. LaRowe’s conduct did, we conclude Dr. LaRowe’s conduct did not
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`violate any clearly established rights.
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`Our holding on Nurse Johnson’s appeal is inextricably intertwined with the
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`County’s liability on a failure-to-train theory, so we exercise pendent appellate
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`jurisdiction to the extent Mr. Crowson’s claims against the County rest on that
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`theory. See Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995).
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`However, under our binding precedent, our holdings on the individual defendants’
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`appeals are not inextricably intertwined with Mr. Crowson’s claims against the
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`County to the extent he advances a systemic failure theory. See id. We therefore
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`reverse the district court’s denial of summary judgment to Nurse Johnson and
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`
`2 Nurse Johnson and the County’s Opening Brief is cited herein as “County
`Br.,” and their Reply Brief is cited as “County Reply.” Dr. LaRowe’s Opening Brief
`is cited as “LaRowe Br.,” and his Reply brief is cited as “LaRowe Reply.”
`Mr. Crowson’s Brief is cited as “Appellee Br.”
`
`
`
`
`4
`
`
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`Dr. LaRowe, as well as to the County on the failure-to-train theory, and we dismiss
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`the remainder of the County’s appeal for lack of jurisdiction.
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`I. BACKGROUND
`
`A. Factual History3
`
`On June 11, 2014, Mr. Crowson was booked into the Washington County
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`Purgatory Correctional Facility for a parole violation. On June 17, due to a disciplinary
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`violation, Mr. Crowson was placed in solitary confinement, known as the “A Block.”
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`“On the morning of June 25, while still in solitary confinement, Jail Deputy Brett
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`Lyman noticed that Mr. Crowson was acting slow and lethargic.” App., Vol. I at 205.
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`Deputy Lyman asked Nurse Johnson to check Mr. Crowson. “As a registered nurse,
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`Nurse Johnson could not formally diagnose and treat Mr. Crowson.” App., Vol. I at 205.
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`Rather, Nurse Johnson assessed inmates and communicated with medical staff. The
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`medical staff available to diagnose were Jon Worlton, a physician assistant (“PA”),4 and
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`Dr. LaRowe, the Jail’s physician.
`
`
`3 Because our interlocutory review of an order denying qualified immunity is
`typically limited to issues of law, this factual history is drawn from the district
`court’s recitation of the facts. See Mitchell v. Forsyth, 472 U.S. 511, 524–30 (1985).
`
`4 There is some ambiguity concerning whether Jon Worlton was, in fact, a PA.
`The district court found he was a PA. At oral argument, the County asserted that
`Mr. Worlton was a nurse practitioner, not a PA, but suggested that accorded him
`similar or greater medical training. In describing his education, Mr. Worlton stated,
`“I’m a social worker. I have a master’s degree in social work. I also have a clinical
`license, licensed clinical social worker.” App., Vol. II at 478. At oral argument
`before this court, however, counsel for Mr. Crowson answered affirmatively when
`asked whether Mr. Worlton was a PA and whether he could diagnose inmates. Where
`neither party has challenged the district court’s finding that Mr. Worlton was a PA,
`5
`
`
`
`
`
`At all relevant times, PA Worlton was the Jail’s health services administrator and
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`also handled mental health care for the inmates. PA Worlton spent half to three quarters
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`of his time in clinical practice at the Jail, primarily in booking. Dr. LaRowe was
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`responsible for diagnosing and treating inmates, but he visited the Jail only one or two
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`days a week, for two to three hours at a time. Dr. LaRowe relied heavily on the Jail’s
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`deputies and nurses. Jail deputies checked on inmates who were in medical observation
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`cells at least once every thirty minutes, and the deputies would notify a Jail nurse when
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`an inmate was “not acting right” or “having problems.” App., Vol. I at 219 (quoting
`
`App., Vol. II at 504). “Jail nurses—who, by law, could not diagnose inmates—generally
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`spent five to ten minutes with” inmates in medical observation cells once every twelve-
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`hour shift, “to take the inmate’s vital signs and conduct follow-up checks.” App., Vol. I at
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`219. If an inmate exhibited symptoms of a cognitive problem, the nurse would inform
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`Dr. LaRowe and PA Worlton. There are no written policies or procedures regarding
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`inmate medical care in the record.
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`When Nurse Johnson evaluated Mr. Crowson on June 25, he noted Mr. Crowson
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`had normal vital signs and some memory loss. Specifically, “Mr. Crowson was ‘dazed
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`and confused,’ and ‘unable to remember what kind of work he did prior to being
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`arrested.’” App., Vol. I at 213 (quoting App., Vol. II at 374). Nurse Johnson “admitted in
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`his declaration that, despite recording normal vital signs, he ‘was concerned
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`[Mr. Crowson] may be suffering from some medical problem.’” App., Vol. I at 213
`
`
`and Mr. Crowson’s counsel affirmed that professional status at oral argument, we
`presume it is true for purposes of our analysis.
`6
`
`
`
`
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`(alteration in original) (quoting App., Vol. II at 317). Nurse Johnson ordered
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`Mr. Crowson moved to a medical observation cell following the examination. He also
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`“entered a request in the medical recordkeeping system for PA Worlton to conduct a
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`psychological evaluation.” App., Vol. I at 205.
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`When Jail Deputy Fred Keil moved Mr. Crowson to a medical observation cell, he
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`noticed that Mr. Crowson appeared “unusually confused.” App., Vol I at 205. After
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`conducting a visual body cavity search of Mr. Crowson, Deputy Keil ordered
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`Mr. Crowson to re-dress. Mr. Crowson put on his pants and then put his underwear on
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`over his pants.
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`Nurse Johnson checked Mr. Crowson again that afternoon. “Mr. Crowson’s pupils
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`were dilated but reactive to light” and “Mr. Crowson appeared alert and oriented.” App.,
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`Vol. I at 206. Nurse Johnson left the Jail at the end of his shift on June 25 without
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`conducting further assessments of Mr. Crowson or contacting Dr. LaRowe. PA Worlton
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`never received Nurse Johnson’s file notation requesting a psychological examination of
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`Mr. Crowson.
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`Nurse Johnson did not work at the Jail on June 26 and 27. There is no
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`documentation in the Jail’s medical recordkeeping system for these days to show that
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`medical personnel checked on Mr. Crowson.
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`On June 28, Nurse Johnson returned to work and visited Mr. Crowson in the early
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`afternoon. “Mr. Crowson seemed confused and disoriented and had elevated blood
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`pressure. He gave one-word answers to Nurse Johnson’s questions, and understood, but
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`could not follow, an instruction to take a deep breath.” App., Vol. I at 206. At this point,
`7
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`
`
`
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`“Mr. Crowson’s symptoms had persisted beyond the expected timeframe for substance
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`withdrawal.” App., Vol. I at 213.
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`Following the June 28 examination, Nurse Johnson called Dr. LaRowe and
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`informed him of some of his observations. But Nurse Johnson did not tell Dr. LaRowe
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`that Mr. Crowson had been in a medical observation cell for three days and had been in
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`solitary confinement for nine days before that. Dr. LaRowe ordered a chest x-ray and a
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`blood test. “The blood test, known as a complete blood count, could have detected an
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`acid-base imbalance in Mr. Crowson’s blood, a symptom of encephalopathy.” App., Vol.
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`I at 206.
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`Nurse Johnson attempted to draw Mr. Crowson’s blood, but he was unsuccessful
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`due to scarring on Mr. Crowson’s veins and Mr. Crowson’s unwillingness to hold still.
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`Nurse Johnson reported this unsuccessful blood-draw attempt to Dr. LaRowe. Ultimately,
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`the chest x-ray and blood test were never completed. Dr. LaRowe made no further
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`attempts to diagnose Mr. Crowson at that time.
`
`On the morning of June 29, Nurse Johnson took Mr. Crowson’s vital signs and
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`noted an elevated heart rate. “Mr. Crowson was still acting dazed and confused, and was
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`experiencing delirium tremens, a symptom of alcohol withdrawal.” App., Vol. I at 206–
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`07. Nurse Johnson reported his observations to Dr. LaRowe, who prescribed Librium and
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`Ativan to treat substance withdrawal. Dr. LaRowe directed Nurse Johnson to administer a
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`dose of Ativan.5
`
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`5 Mr. Crowson’s circumstances prior to his incarceration suggest these
`medications may have been harmful to him beyond worsening his encephalopathy.
`8
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`
`
`
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`“An hour later, Nurse Johnson checked on Mr. Crowson, who was sleeping, and
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`noted that his vital signs had returned to normal.” App., Vol. I at 207. He next checked on
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`Mr. Crowson later that afternoon. “He noted that Mr. Crowson was better able to
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`verbalize his thoughts and that his vital signs remained stable.” App., Vol. I at 207. But
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`Mr. Crowson continued to report memory loss, telling Nurse Johnson that he could not
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`remember the last five days. Nurse Johnson, believing Mr. Crowson was experiencing
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`substance withdrawal, told Mr. Crowson that he was in a medical observation cell, and he
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`was being given medication for his condition.
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`The following day (June 30), Nurse Ryan Borrowman was assigned to the medical
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`holding area. Nurse Borrowman did not see Mr. Crowson until July 1, when he noted that
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`Mr. Crowson’s “physical movements were delayed and that he struggled to focus and
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`would lose his train of thought.” App., Vol. I at 207. “[D]ue to the severity of [Mr.
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`Crowson’s] symptoms and the length of time he had been in a medical holding cell,
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`[Nurse Borrowman] immediately called Dr. LaRowe for further medical care.” App.,
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`Vol. II at 313. Upon Dr. LaRowe’s order, Mr. Crowson was transported to the Dixie
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`Regional Medical Center, where he was diagnosed with metabolic encephalopathy.
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`Dr. LaRowe never visited the Jail while Mr. Crowson was in the medical observation
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`cell.
`
`
`He was hospitalized at Dixie Regional Medical Center “a few weeks before being
`arrested and detained” at the Jail. App., Vol. I at 207. The amended complaint
`indicates medical records from this hospitalization “‘would have revealed to Facility
`staff that [he] should not have been given any drug categorized as a benzodiazepine’
`(such as Librium).” App., Vol. 1 at 207–08. That prior hospitalization appears to
`have been the result of a heroin overdose.
`
`
`
`9
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`
`
`“According to the amended complaint, Mr. Crowson remained in the hospital until
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`July 7, 2014, and continued to suffer from ‘residual effects of encephalopathy, liver
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`disease, and other problems.’” App., Vol. I at 208 (quoting App., Vol. I at 39).
`
`Mr. Crowson spent two months recovering at his mother’s house, experiencing severe
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`memory and focus problems, before returning to the Jail on September 7, 2014.
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`B. Procedural History
`
`Mr. Crowson filed a Complaint on December 15, 2015, which he amended on
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`March 14, 2016. The Amended Complaint brings, inter alia, § 1983 claims against Nurse
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`Johnson and Dr. LaRowe alleging they were deliberately indifferent to Mr. Crowson’s
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`serious medical needs in violation of Mr. Crowson’s Eighth and Fourteenth Amendment
`
`rights. The Amended Complaint also includes § 1983 claims against Washington County
`
`pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658
`
`(1978).6
`
`In 2018, Nurse Johnson, Dr. LaRowe, and Washington County moved for
`
`summary judgment. Nurse Johnson and Dr. LaRowe argued they were entitled to
`
`qualified immunity. The County argued that none of its employees committed a
`
`constitutional violation and that there is no evidence of a County policy or custom
`
`that caused the alleged constitutional violation. On July 19, 2019, the district court
`
`denied the motions in relevant part. The district court concluded a reasonable jury
`
`could find Nurse Johnson and Dr. LaRowe were deliberately indifferent to
`
`
`6 These are the only surviving claims and defendants. Other parties and claims
`have been dismissed by various court orders and party stipulations.
`10
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`
`
`
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`Mr. Crowson’s medical needs, and that it was clearly established their conduct
`
`amounted to a constitutional violation. The district court also concluded a reasonable
`
`jury could find the treatment failures were an obvious consequence of the County’s
`
`reliance on Dr. LaRowe’s infrequent visits to the Jail and the County’s lack of
`
`written protocols for monitoring, diagnosing, and treating inmates. Nurse Johnson,
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`Dr. LaRowe, and Washington County filed these consolidated interlocutory appeals.
`
`II. DISCUSSION
`
`We begin our analysis by examining the individual defendants before turning
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`to the County. Mr. Crowson challenges our jurisdiction over this appeal, so each
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`discussion begins with the question of jurisdiction.
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`A. Individual Defendants
`
`1. Jurisdiction
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`When examining the denial of summary judgment on the issue of qualified
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`immunity, “this court has jurisdiction to review (1) whether the facts that the district
`
`court ruled a reasonable jury could find would suffice to show a legal violation, or
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`(2) whether that law was clearly established at the time of the alleged violation.”
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`Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013) (internal quotation
`
`marks omitted). Generally, we lack jurisdiction to review factual disputes in this
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`interlocutory posture. Lynch v. Barrett, 703 F.3d 1153, 1159 (10th Cir. 2013) (“[I]f a
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`district court concludes a reasonable jury could find certain specified facts in favor of
`
`the plaintiff, the Supreme Court has indicated we usually must take them as true—
`
`
`
`11
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`
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`and do so even if our own de novo review of the record might suggest otherwise as a
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`matter of law.” (quotation marks omitted)).
`
`There is an exception to this jurisdictional limitation “when the ‘version of
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`events’ the district court holds a reasonable jury could credit ‘is blatantly
`
`contradicted by the record.’” Lewis v. Tripp, 604 F.3d 1221, 1225–26 (10th Cir.
`
`2010) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). In such circumstance, we
`
`assess the facts de novo. Id. “A mere claim that the record ‘blatantly’ contradicts the
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`district court’s factual recitation . . . does not require us to look beyond the facts
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`found and inferences drawn by the district court. Rather, the court’s findings must
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`constitute ‘visible fiction.’” Lynch, 703 F.3d at 1160 n.2 (quoting Scott, 550 U.S. at
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`380–81). “The standard is a very difficult one to satisfy.” Cordero v. Froats, 613 F.
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`App’x 768, 769 (10th Cir. 2015) (unpublished).
`
`Nurse Johnson and Dr. LaRowe argue this case is the unusual one where we
`
`may review the facts de novo. Because we find reversal is warranted taking the
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`district court’s facts as true, we need not analyze whether we would be permitted to
`
`consider the facts de novo.
`
`2. Merits Analysis
`
`“The doctrine of qualified immunity shields officials from civil liability so
`
`long as their conduct ‘does not violate clearly established statutory or constitutional
`
`rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S.
`
`7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). When a
`
`§ 1983 defendant asserts qualified immunity, this affirmative defense “creates a
`12
`
`
`
`
`
`presumption that [the defendant is] immune from suit.” Perea v. Baca, 817 F.3d
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`1198, 1202 (10th Cir. 2016). “To overcome this presumption,” the plaintiff “must
`
`show that (1) the officers’ alleged conduct violated a constitutional right, and (2) it
`
`was clearly established at the time of the violation, such that ‘every reasonable
`
`official would have understood,’ that such conduct constituted a violation of that
`
`right.” Id. (quoting Mullenix, 577 U.S. at 11).
`
`Mr. Crowson alleges Nurse Johnson and Dr. LaRowe violated his Eighth and
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`Fourteenth Amendment rights. “The Fourteenth Amendment prohibits deliberate
`
`indifference to a pretrial detainee’s serious medical needs.” Strain v. Regalado, 977
`
`F.3d 984, 987 (10th Cir. 2020). “[W]e apply the two-part Eighth Amendment inquiry
`
`when a pretrial detainee alleges deliberate indifference to serious medical needs.”
`
`Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1028 (10th Cir. 2020).
`
`“This exercise requires both an objective and a subjective inquiry.” Id.7 “The
`
`objective component is met if the deprivation is ‘sufficiently serious.’ . . . The
`
`subjective component is met if a prison official ‘knows of and disregards an
`
`excessive risk to inmate health or safety.’” Sealock v. Colorado, 218 F.3d 1205, 1209
`
`(10th Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 837 (1970)).
`
`
`7 Mr. Crowson argues the standard should be purely objective under Kingsley
`v. Hendrickson, 576 U.S. 389 (2015). But during the pendency of this appeal, a panel
`of this court held, in a published opinion, “deliberate indifference to a pretrial
`detainee’s serious medical needs includes both an objective and a subjective
`component, even after Kingsley.” Strain v. Regalado, 977 F.3d 984, 989 (10th Cir.
`2020). We are bound by the holding in Strain. See Scalia v. Paragon Contractors
`Corp., 957 F.3d 1156, 1162 (10th Cir. 2020).
`13
`
`
`
`
`
`As for the requirement it be clearly established that the conduct constituted a
`
`violation, “‘the salient question . . . is whether the state of the law’ at the time of an
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`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
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`established, there must be a Supreme Court or Tenth Circuit decision on point, or the
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`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.
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`2018) (quotation marks omitted). We may not “define clearly established law at a
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`high level of generality.” Mullenix, 577 U.S. at 12 (quoting Ashcroft v. al-Kidd, 563
`
`U.S. 731, 742 (2011)). “Nevertheless, our analysis is not a scavenger hunt for prior
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`cases with precisely the same facts, and a prior case need not be exactly parallel to
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`the conduct here for the officials to have been on notice of clearly established law.”
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`Reavis ex rel. Estate of Coale v. Frost, 967 F.3d 978, 992 (10th Cir. 2020) (quotation
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`marks omitted).
`
`a.
`
`Nurse Johnson
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`We assume without deciding that the harm suffered by Mr. Crowson meets the
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`objective component of the Eighth Amendment inquiry. Nurse Johnson argues he was
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`not deliberately indifferent under the subjective component. We agree.
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`“Our cases recognize two types of conduct constituting deliberate indifference.
`
`First, a medical professional may fail to treat a serious medical condition properly”;
`
`second, a prison official may “prevent an inmate from receiving treatment or deny
`14
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`
`
`
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`him access to medical personnel capable of evaluating the need for treatment.”
`
`Sealock, 218 F.3d at 1211. Although medical personnel often face liability for failure
`
`to treat under the first type of deliberate indifference, if “the medical professional
`
`knows that his role . . . is solely to serve as a gatekeeper for other medical personnel
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`capable of treating the condition, . . . he also may be liable for deliberate indifference
`
`from denying access to medical care.” Id. Mr. Crowson argues Nurse Johnson’s
`
`conduct falls within this second type of deliberate indifference.
`
`The district court agreed, finding Nurse Johnson was deliberately indifferent
`
`on June 25 when he “placed Mr. Crowson in an observation cell and left his shift
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`without ensuring that Mr. Crowson would receive further care,” and on June 28 when
`
`he “failed to tell Dr. LaRowe that Mr. Crowson had already been in a medical
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`observation cell for three days and in solitary confinement for nine days before that.”
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`App., Vol. I at 213. On appeal, Nurse Johnson argues the district court erred in
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`“infer[ring his] knowledge of an excessive risk of inmate harm” and claims that by
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`referring Mr. Crowson to PA Worlton, he “fulfilled any possible gatekeeper role.”
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`County Br. at 25, 28. Regarding his June 28 visit to see Mr. Crowson, Nurse Johnson
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`argues “he fully fulfilled his ‘gatekeeper’ role by simply communicating with
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`Dr. LaRowe” and that “the failure to pass on some information is in the form of
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`negligence and not ‘deliberate indifference.’” County Br. at 27, 29.
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`In response, Mr. Crowson claims Nurse Johnson’s June 25 attempted referral
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`to PA Worlton for a psychological evaluation, without also referring him to
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`Dr. LaRowe for a physical evaluation, “prevent[ed Mr. Crowson’s] physical
`15
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`
`
`
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`symptoms from being evaluated and treated.” Appellee Br. at 24. Mr. Crowson also
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`contends Nurse Johnson’s admitted concern that Mr. Crowson might be suffering
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`from a medical problem “indicate[s] that the risk of harm was obvious and that
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`[Nurse] Johnson was aware of the risk on June 25.” Id. at 25. Regarding the June 28
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`conduct, Mr. Crowson argues Nurse Johnson failed to pass on “critical information”
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`that Dr. LaRowe could have used to rule out withdrawal as a possible diagnosis. Id.
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`We address each instance of deliberately indifferent conduct found by the
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`district court.
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`i. The referral to PA Worlton for psychological evaluation
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`We agree with the district court that the evidence would allow a jury to
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`conclude Nurse Johnson was aware Mr. Crowson required medical attention. See
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`App., Vol. I at 213 (“Nurse Johnson himself noted that Mr. Crowson was ‘dazed and
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`confused,’ and ‘unable to remember what kind of work he did prior to being
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`arrested.’ He admitted in his declaration that, despite recording normal vital signs, he
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`‘was concerned [Mr. Crowson] may be suffering from some medical problem.’”
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`(alteration in original) (first quoting App., Vol. II at 374; then quoting App., Vol. II
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`at 317)). Nurse Johnson therefore knew Mr. Crowson had potentially alarming
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`symptoms and suspected there was a medical issue. That knowledge was sufficient to
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`trigger Nurse Johnson’s duty as a gatekeeper to provide Mr. Crowson access to
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`medical personnel who could provide care.
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`On June 25, Nurse Johnson assessed Mr. Crowson and “entered a request in
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`the medical recordkeeping system for PA Worlton to conduct a psychological
`16
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`
`
`
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`evaluation.” App. I at 205. Nurse Johnson then left the Jail, without also contacting
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`Dr. LaRowe. Upon Nurse Johnson’s return on June 28, he did contact Dr. LaRowe
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`about Mr. Crowson’s symptoms.
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`Although the initial referral to PA Worlton was for a psychological
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`examination, rather than a physiological one, that was consistent with Nurse
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`Johnson’s belief Mr. Crowson was suffering from psychological issues caused by the
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`ingestion of illicit drugs or alcohol. Further, nothing in the record or the district
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`court’s opinion suggests PA Worlton—if presented with clear signs of medical
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`distress—would have limited the examination of Mr. Crowson to psychological
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`issues. Indeed, as the health services administrator for the Jail, PA Worlton could
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`refer Mr. Crowson to Dr. LaRowe as necessary. And, unlike Dr. LaRowe, PA
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`Worlton spent much of his time at the Jail.
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`In his gatekeeping role, Nurse Johnson was required to inform medical staff
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`who could diagnose and treat a pretrial detainee exhibiting concerning symptoms. He
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`attempted to do so by requesting a psychological evaluation of Mr. Crowson, making
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`notations in Mr. Crowson’s file, and having discussions with PA Worlton about
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`Mr. Crowson’s condition.8
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`8 The district court’s statement that PA Worlton “never received Nurse
`Johnson’s request for a psychological examination,” App., Vol. I at 206, does not
`take into account PA Worlton’s deposition testimony that Nurse Johnson told
`PA Worlton he was “concerned that [Mr. Crowson] had gotten involved in some
`drugs or homemade alcohol on the block or something and he asked me to take a look
`at him,” App., Vol. II at 482. On appeal, Mr. Crowson does not ask us to ignore that
`testimony, but rather argues it is irrelevant because it related to Mr. Crowson’s
`mental health rather than physical health, an argument we reject supra. However, the
`17
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`
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`It is true that Nurse Johnson could have done more. He could have ensured
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`that the referral reached PA Worlton, communicated the severity of Mr. Crowson’s
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`condition, or contacted Dr. LaRowe immediately. But Nurse Johnson did not “deny
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`[Mr. Crowson] access to medical personnel capable of evaluating the need for
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`treatment.” Sealock, 218 F.3d at 1211. He left a notation in Mr. Crowson’s file
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`regarding the referral to PA Worlton, who, as the health services administrator, was
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`not bound by Nurse Johnson’s presumption that the examination should focus on
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`psychological issues.
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`
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`Because Nurse Johnson did not “completely refuse[] to fulfill [his] duty as
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`gatekeeper,” and instead, referred the “prisoner to a physician assistant for medical
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`treatment,” Mata v. Saiz, 427 F.3d 745, 758 (10th Cir. 2005), he was not deliberately
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`indifferent to his gatekeeper role. Id. Nurse Johnson’s attempted method of referral
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`may have been negligent, but it was not deliberately indifferent. See Farmer, 511
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`U.S. at 835 (“[D]eliberate indifference describes a state of mind more blameworthy
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`than negligence.”).
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`ii. June 28 referral to Dr. LaRowe
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`Mr. Crowson next claims he had been in custody too long still to be suffering
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`from withdrawal related to pre-incarceration drug use, and Nurse Johnson’s failure to
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`inform Dr. LaRowe on June 28 of how long Mr. Crowson had been in custody thus
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`electronic referral sufficed to fulfill Nurse Johnson’s duty, even if negligently made;
`accordingly, we need not determine whether the district court’s findings of fact were
`blatantly contradicted by the record.
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`
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`18
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`
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`constitutes deliberate indifference. Based on our decision in Sealock, we disagree.
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`There, the plaintiff was incarcerated and experiencing numerous medical symptoms.
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`Sealock, 218 F.3d at 1208. After repeated requests, he was moved to the infirmary
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`where he told the nurse “he had chest pain and couldn’t breathe.” Id. The nurse
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`informed the plaintiff “that he had the flu and that there was nothing she could do for
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`him until the physician’s assistant arrived at 8:00 a.m.” Id. Whether the nurse
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`informed the PA that the plaintiff was experiencing chest pains was a disputed fact—
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`the nurse testified she had, the PA testified she had not. Id. at 1212. According to the
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`PA, had he been informed of the chest pains, he would have called an ambulance to
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`take the plaintiff to the emergency room. Id. at 1208. Instead the PA prescribed
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`medication and the plaintiff was not treated for his actual condition—a heart attack—
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`until the next day. Id. We affirmed the district court’s grant of summary judgment to
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`the nurse, reasoning, “[a]t worst,” the nurse “misdiagnosed” the inmate and failed to
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`pass on information to the PA about the inmate’s chest pain. Id. at 1211. Although
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`the nurse omitted this critical symptom, we concluded it did not demonstrate that she
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`behaved with deliberate indifference. See id.
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`The same is true here. On June 28, Nurse Johnson did “alert Dr. LaRowe to
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`Mr. Crowson’s condition.” App., Vol. I at 213. Via that telephone call, Nurse
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`Johnson fulfilled his gatekeeping role “by communicating the inmate’s symptoms to
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`a higher-up.” Burke v. Regalado, 935 F.3d 960, 993 (10th Cir. 2019). To be sure,
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`Nurse Johnson could have volunteered information about the length of Mr.
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`Crowson’s detention that might have assisted Dr. LaRowe in reaching a diagnosis. As
`19
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`in Sealock, however, Nurse Johnson did not act with deliberate indifference by
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`failing to do so. At worst, Nurse Johnson incorrectly concluded Mr. Cr
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