from the United States District Court for the Eastern
District of Oklahoma (D.C. No. 6:14-CV-00333-FHS) (E.D.
E. Smolen (Robert M. Blakemore, with him on the briefs),
Smolen, Smolen & Roytman, PLLC, Tulsa, Oklahoma, for
Stephen L. Geries (Ammon J. Brisolara, with him on the
brief), Collins Zorn & Wagner, Oklahoma City, Oklahoma,
for McCurtain County Jail Trust, Chad Dale, and Jonathon
A. Pederson, Assistant Attorney General, Oklahoma Attorney
General's Office, Oklahoma City, Oklahoma, for Oklahoma
Department of Public Safety, and Joe Jefferson,
LUCERO, McKAY, and BACHARACH, Circuit Judges.
matter is before the court on appellees McCurtain County Jail
Trust, Chad Dale and Jonathon Willis's Petition for
Rehearing En Banc, as well as the separate Petition
for Rehearing and Petition for Rehearing En Banc filed
by appellee Joe Jefferson. We also have the appellant's
response to those petitions.
consideration, panel rehearing is granted in part and only to
the extent of the changes made to the amended opinion
attached to this order. In all other respects panel rehearing
is denied by the original panel members.
petitions, the response, as well as the amended opinion were
also circulated to all the judges of the court who are in
regular active service. As no judge on the original panel or
the en banc court requested that a poll be called, the
requests for en banc consideration are denied.
Clerk is directed to file the attached amended opinion
effective the date of this order.
BACHARACH, Circuit Judge.
case began with the plaintiff, Mr. Clyde Rife, sitting on a
motorcycle next to a road, unable to recall the date, the
time, or even what he had been doing in a town he had just
visited. When approached by a state trooper, Mr. Rife said
that he was fine. Nonetheless, the trooper questioned Mr.
Rife and concluded that he was intoxicated on pain medication
and had been in a motorcycle accident. These conclusions led
the trooper to arrest Mr. Rife for public intoxication.
Authorities later learned that Mr. Rife had not been
intoxicated; he had suffered a head injury in a motorcycle
Rife ultimately sued the trooper and the Oklahoma Department
of Public Safety, alleging in part that he had been
wrongfully arrested. For this allegation, we ask: Did
probable cause exist to arrest Mr. Rife? The district court
said "yes, " and we agree.
rest of the case involves what happened after the arrest.
After the arrest, the trooper drove Mr. Rife to jail. Along
the way, Mr. Rife groaned and complained of pain in his heart
and chest. Upon arriving at the jail, Mr. Rife was put in a
holding cell. The scene was observed by a cellmate, who said
that Mr. Rife had repeatedly complained about pain.
Nonetheless, Mr. Rife was not provided medical attention.
lack of medical care led Mr. Rife to sue (1) the trooper, two
jail officials, and the entity operating the jail for
deliberate indifference to serious medical needs and (2) the
Oklahoma Department of Public Safety for negligent failure to
provide medical care. On these claims, we ask: Did the
failure to provide medical attention constitute (1)
deliberate indifference to Mr. Rife's serious medical
needs or (2) negligence? The district court thought no one
could reasonably infer either deliberate indifference or
negligence. We disagree, concluding that both could be
reasonably inferred from the evidence.
conclusions lead us to affirm in part, to reverse in part,
and to remand for further proceedings.
Mr. Rife's Claims
Rife sued the trooper (Joe Jefferson), the two jail officials
(Jonathon Willis and Chad Dale), the entity operating the
jail (McCurtain County Jail Trust), and the Oklahoma
Department of Public Safety. With regard to the arrest, Mr.
Rife makes two claims:
1. Trooper Jefferson is liable under § 1983 for
arresting Mr. Rife without probable cause.
2. The Oklahoma Department of Public Safety incurs vicarious
liability for the wrongful arrest under the Oklahoma
Governmental Tort Claims Act.
lack of medical attention after the arrest, Mr. Rife makes
1. Trooper Jefferson, Mr. Willis, and Mr. Dale are liable
under 42 U.S.C. § 1983 for deliberate indifference to
serious medical needs.
2. The jail trust is liable under § 1983 for the
deliberate indifference of jail employees.
3. The Oklahoma Department of Public Safety is vicariously
liable under the Oklahoma Governmental Tort Claims Act for
Trooper Jefferson's negligent failure to obtain medical
the lawsuit, Mr. Rife discovered that the jail trust had
destroyed a videotape that showed him in the jail's
booking area. According to Mr. Rife, the destruction of the
videotape warranted spoliation sanctions consisting of denial
of the summary judgment motions brought by Mr. Willis, Mr.
Dale, and the jail trust.
The District Court's Rulings
defendants moved for summary judgment, and the district court
granted summary judgment to each defendant.
wrongful arrest claims, the district court granted summary
judgment to Trooper Jefferson and the Oklahoma Department of
Public Safety, concluding that probable cause existed for Mr.
claims involving a failure to provide medical attention, the
court granted summary judgment to all defendants, reasoning
that the lack of medical attention had not resulted from
deliberate indifference or negligence.
addition, the district court declined to sanction the jail
trust, Mr. Willis, and Mr. Dale for destruction of the
videotape, reasoning that Mr. Rife had failed to follow the
proper procedure for requesting a spoliation sanction.
affirm the district court's orders in part, reverse in
part, and remand for further proceedings.
wrongful arrest claims against Trooper Jefferson and the
Oklahoma Department of Public Safety, we affirm, agreeing
with the district court that probable cause existed for the
deliberate indifference claims, we reverse: A reasonable
factfinder could find facts supporting the deliberate
indifference claims against Trooper Jefferson, Mr. Willis,
Mr. Dale, and the jail trust. Thus, we reverse and remand for
the district court to determine (1) whether Mr. Rife's
rights were clearly established and (2) whether a reasonable
factfinder could find a causal link between the jail
trust's policies or customs and a constitutional
negligence claim against the Oklahoma Department of Public
Safety, we reverse, concluding that a genuine dispute of
material fact exists on the reasonableness of Trooper
Jefferson's failure to obtain medical attention.
addition, we affirm the district court's denial of
spoliation sanctions, concluding that Mr. Rife forfeited his
present argument and has failed to identify evidence of bad
Standard of Review
district court concluded that the defendants were entitled to
summary judgment. We review these conclusions de novo.
Koch v. City of Del City, 660 F.3d 1228, 1237-38
(10th Cir. 2011). In applying de novo review, we consider the
evidence in the light most favorable to Mr. Rife, resolving
all factual disputes and drawing all reasonable inferences in
his favor. Estate of Booker v. Gomez, 745 F.3d 405,
411 (10th Cir. 2014).
apply not only this standard of review but also the
substantive burdens on the underlying issues. One such issue
is qualified immunity, which is raised by Trooper Jefferson,
Mr. Willis, and Mr. Dale. The threshold burden falls on the
plaintiff, who must demonstrate that a reasonable factfinder
could find facts supporting the violation of a constitutional
right that had been clearly established at the time of the
violation. Id. If this burden is met, the
defendant must show that (1) there are no genuine issues of
material fact and (2) the defendant is entitled to judgment
as a matter of law. Koch, 660 F.3d at 1238.
The Wrongful Arrest Claim Against Trooper Jefferson
§ 1983, Mr. Rife argues that Trooper Jefferson lacked
probable cause, rendering the arrest a violation of the
Fourth and Fourteenth Amendments. According to Mr. Rife, the
district court disregarded evidence supporting this claim.
Trooper Jefferson counters that
. he had probable cause,
. any possible factual mistake would have
been objectively reasonable, and
. the underlying right was not clearly
established. The district court granted summary judgment to
Trooper Jefferson, holding that he had probable cause to
arrest Mr. Rife for public intoxication. We agree.
The Interaction Between Mr. Rife and Trooper
Jefferson's police car had a dashcam, which captured
almost the entire interaction between Mr. Rife and Trooper
dashcam begins with Trooper Jefferson checking on Mr. Rife,
who was sitting on a motorcycle next to a road. Mr. Rife was
confused with dried blood on his nose, and there were grass
and grass stains on the motorcycle. Mr. Rife also had grass
stains on his pants and shirt, indicating that he had been
thrown from the motorcycle.
Jefferson asked if Mr. Rife was okay, and Mr. Rife replied
that he was fine. But Mr. Rife could not identify the day,
approximate the time of day, or remember his social security
number. He knew that he had been in Idabel, Oklahoma, earlier
that day but could not remember what he had been doing there.
His speech was slurred.
trooper suspected intoxication. Because the symptoms of head
injuries and intoxication are similar, the trooper looked for
signs of a head injury: unequal tracking of the pupils,
unequal pupil size, and resting nystagmus. Mr. Rife did not
exhibit these signs.
Jefferson then performed a horizontal gaze nystagmus test,
which could reveal up to 6 clues of impairment. Trooper
Jefferson's training stated that if a person exhibits 4
out of the 6 clues, there is an 80 percent chance of
intoxication. Mr. Rife exhibited all 6 clues.
determine whether Mr. Rife was intoxicated, Trooper Jefferson
conducted four additional tests. Mr. Rife failed these tests
or was unable to complete them. Before one of the tests, Mr.
Rife stated that he felt "floaty"; during another
test, Mr. Rife lost his balance.
tests and observations led Trooper Jefferson to arrest Mr.
Rife for public intoxication. Trooper Jefferson knew that Mr.
Rife was not drunk but believed that he had taken too much
pain medication. Many of Mr. Rife's symptoms were
consistent with intoxication from pain medication, including
constricted pupils, lethargy, nystagmus, dizziness, and
time of arrest, Trooper Jefferson also knew that Mr. Rife had
been in a motorcycle accident. Mr. Rife had repeatedly denied
being in a motorcycle accident, but Trooper Jefferson said
that Mr. Rife had obviously been in an accident.
Trooper Jefferson knew that an accident had taken place, he
did not believe that it had involved high speed or high
impact. Trooper Jefferson reasoned that Mr. Rife did not have
the type of visible injuries that would likely result from a
high-speed or high-impact accident. For instance, Mr. Rife
had no marks or scratches on his arms. Trooper Jefferson also
noted that there was little damage to the motorcycle or
Jefferson drove Mr. Rife to jail. During the drive, Mr. Rife
said that his chest hurt and groaned in pain. A few minutes
later, Mr. Rife stated that his heart hurt and again groaned.
Jefferson acknowledges that at some point, Mr. Rife
complained that he felt sick.
The District Court's Alleged Discounting of Supporting
Rife argues that the district court improperly discounted
four evidentiary items:
1. Trooper Jefferson reported that the arrest had been for
public intoxication under Okla. Stat. tit. 37, § 537,
but this statute involves intoxication from alcohol rather
2. Trooper Jefferson knew that Mr. Rife was not under the
influence of alcohol.
3. Trooper Jefferson knew that Mr. Rife had been in a
motorcycle accident and that certain medical conditions could
mimic the symptoms of intoxication. Although Trooper
Jefferson ruled out a head injury, he did ...