                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                   October 1, 2007
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court



 PEGGY BEERS, Administrator for the
 Estate of D anny W ayne Barnes,

          Plaintiff-Appellant,

 v.                                                      No. 06-5104
                                               (D.C. No. 04-CV-860-CVE-SAJ)
 PA T BALLARD, Sheriff, W ashington                    (N . Dist. Okla.)
 County; JAM ES M . ABRAHAM ,
 General Administrator, W ashington
 County Jail,

          Defendant-Appellees.




                          ORDER AND JUDGMENT *


Before BR ISC OE, SE YM OU R, and M U RPH Y, Circuit Judges.


      Danny W ayne Barnes died in custody at the W ashington County Jail. His

estate, administered by Peggy Beers, and M s. Beers on behalf of M r. Barnes’

minor daughter (the Family) appeal the district court’s determinations in favor of

W ashington County Sheriff Pat Ballard and Jail Administrator Lieutenant James



      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with F ED . R. A PP . P. 32.1 and 10 TH
C IR . R. 32.1.
Abraham. W e affirm.

      M r. Barnes was convicted of driving under the influence in W ashington

County, Oklahoma and sentenced to five years imprisonment with all but sixty

days suspended. He suffered from a number of diagnosed ailments, including

high blood pressure, diabetes, anxiety, and back pain, for which he was treated

with four prescription medicines. W hile in custody, he expended his supply of

hydrocodone, a pain-reliever, and filed both a prisoner medication request form

and a grievance form discussing his failure to receive hydrocodone and blood

pressure medication. According to the jail medical log, M r. Barnes missed doses

of pain medication on eleven days between September 20, 2002 and October 2,

2002. He was consistently administered hydrocodone or oxycodone, a medicine

with similar pain relieving properties, from October 3 to October 19. M r. Barnes

intermittently missed other medications while incarcerated, including one dose of

actos and two doses of glucotrol, both diabetes medications, and one dose of

cozaar, a heart medication.

      On the morning of October 19, at 8:09 A.M ., an inmate trustee notified

Officers Travis H urd and Timothy Inda that M r. Barnes had collapsed in his jail

cell. Pursuant to prison policies, an officer may only enter an occupied jail cell in

the presence of one or more fellow officers. At the time of M r. Barnes’ collapse,

Officer Inda was unavailable to intervene because he was serving as a dispatcher.



                                         -2-
Officer H urd was the officer both present and available to enter M r. Barnes’ cell.

Unable to enter alone, he requested back-up assistance from the Bartlesville

Police Department. James Beisely, an officer patrolling nearby, was dispatched

to the prison soon thereafter. Attending to M r. Barnes after his arrival, Officer

Beisely performed CPR and requested an ambulance, which took M r. Barnes to a

nearby hospital. 1 He persisted in a vegetative state for several weeks and died

after the Family withheld further treatment. An autopsy revealed his death was

caused by “[h]ypoxic encephalopathy secondary to cardiac arrest associated with

acute myocardial infraction,” a cause of death characterized in layman’s terms by

the district court as cardiac arrest resulting in deprivation of adequate oxygen to

the brain. App. Appx. at 385-86.

      The Family filed a claim against Sheriff Ballard, Lt. Abraham, and the

Board of County Commissioners of W ashington County. They alleged under 42

U.S.C. § 1983 that defendants were deliberately indifferent to M r. Barnes’

medical needs in violation of the Eighth Amendment, and that their indifference

was the proximate cause of his coma and death. The district court granted


      1
        The Family asserts “a period of thirty-five (35) minutes lapsed” between
“the initial discovery of [M r. Barnes] until the ambulance arrived,” aplt. br. at 12,
while defendants claim “[t]he ambulance . . . arrived only nine (9) minutes after
the officers were first alerted to the ‘man down.’” Aple. Br. at 10. The district
court said “[t]he overwhelming evidence is that . . . 12 minutes passed between
notification of ‘man down’ . . . and arrival of EM T personnel.” Aplt. A pp. at 419.
As is evident from the following discussion, the exact length of delay is not
determinative.

                                         -3-
summary judgment to the Board, Lt. Abraham, and Sheriff Ballard except as to

the Family’s claim against Sheriff Ballard in his official capacity, which alleged

he failed to adequately train or supervise jail personnel with deliberate

indifference to a substantial risk of serious harm to M r. Barnes. After the

Family’s presentation of evidence, Sheriff Ballard was granted judgm ent as a

matter of law. On appeal, the Family contends the district court erred in (1)

granting qualified immunity to Sheriff Ballard and Lt. Abraham, (2) concluding

the Family failed to prove deliberate indifference and proximate causation, and

(3) denying the Family the opportunity to introduce evidence of the jail grievance

procedure.

      W e review a district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court. Reeves v. Churchich, 484 F.3d

1244, 1250 (10th Cir. 2007).    Summary judgment should be granted “if the

pleadings . . . together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” F ED . R. C IV . P. 56(c). In conducting our review, “[w]e view the

evidence and draw reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir.

1997). W e also review de novo the district court’s order granting judgment as a

matter of law. Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1287 (10th Cir.

2006). W e will “uphold a [judgment as a matter of law] only if the evidence

                                          -4-
points but one way and is susceptible to no reasonable inferences supporting the

party for whom the jury found.” Weese v. Schukman, 98 F.3d 542, 547 (10th Cir.

2006). Finally, we review evidentiary rulings for an abuse of discretion. United

States v. Cestnik, 36 F.3d 904, 906 (10th Cir. 1994).

      W here a defendant asserts qualified immunity, the burden shifts to the

plaintiff to demonstrate that “the defendant violated one of his or her

constitutional or statutory rights,” and “that the infringed right at issue was

clearly established at the time of the allegedly unlaw ful activity such that a

reasonable law enforcement officer would have known that his or her challenged

conduct was illegal.” M artinez v. Carr, 479 F.3d 1292, 1295 (10th Cir. 2007).

Prison officials violate an inmate’s Eighth Amendment right to be free from cruel

and unusual punishment when they are deliberately indifferent to an inmate’s

serious medical needs. Estelle v. Gamble, 429 U .S. 97, 104 (1976). To establish

deliberate indifference, the plaintiff must show the medical need was objectively

serious, and that the prison official subjectively “kn[ew] of and disregard[ed] an

excessive risk to inmate health or safety.” Sealock v. Colo., 218 F.3d 1205, 1209

(10th Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).

      Even where there is a sufficiently serious medical need, however, delayed

“medical care only constitutes an Eight Amendment violation where the plaintiff

can show that the delay resulted in substantial harm.” Sealock, 218 F.3d at 1210.



                                          -5-
There are two potential “substantial harms” attributable to the delay in attending

to M r. Barnes after his collapse. First, M r. Barnes may have suffered from

greater or more prolonged pain, a cognizable substantial harm. See id. at 1210

n.5 ([T]here is factual evidence from which a jury could conclude that the delay

occasioned by . . . inaction unnecessarily prolonged appellant’s pain and

suffering.”); Oxendine v. Kaplan, 241 F.3d 1272, 1278 (10th Cir. 2001) ([T]he

delay . . . caused substantial harm due to the fact that . . . Oxendine experienced

considerable pain.”). Second, the time-frame for administering life-saving

treatment could have passed during the period of delay; if such treatment had a

realistic chance of success, the prison’s dilatory response could be said to have

proximately caused his death. See Lewis v. Wallenstein, 769 F.2d 1173, 1183 (7th

Cir. 1985) (“[C]ausal connection existed between” doctor’s fifteen minute delay

in attending to inmate and inmate’s death from cardiac arrest).

      But there is no evidence here that M r. Barnes suffered additional pain or

that the prison’s untimely response precluded possible life-saving treatment. A s

to pain, the Family acknowledges that M r. Barnes was already “unconscious” at

the time the prison officials were notified of his condition. Aplt. A pp. at 157.

W ith respect to his death, the Family asserts it “does not require a leap into the

realm of medical uncertainty to” conclude there was causation. Id. at 173. Yet,

large leap or short hop, plaintiffs must prove causation. The Family deposed M r.

Barnes’ primary care doctor, Dr. Jerry Jarrell, but he did not suggest untimely

                                          -6-
medical care precipitated M r. Barnes’ coma. No other medical expert testified

about the health effects of the delay and the Family introduced no evidence

associating M r. Barnes’ coma and death with a delay in treatment, or any

testimony suggesting the outcome would have differed with a quicker response.

It is certainly possible that M r. Barnes would have suffered the same fate even

with expeditious care. In this factual vacuum, we decline to speculate whether

someone with M r. Barnes’ preexisting medical problems and acute heart condition

would have fared better w ith prompter treatment. 2



      2
        Lewis v. Wallenstein, 769 F.2d 1173, 1183 (7th Cir. 1985), provides an
example of the kind of evidence that can demonstrate causation in a delayed
treatment, deliberate indifference case like the one at hand. In Wallenstein, a
doctor deliberately delayed responding to multiple emergency calls and attended
to a prisoner in cardiac arrest ten to fifteen minutes after he was first notified.
The patient/prisoner died from the heart condition. At trial, a physician testified.
       a twenty-seven-year-old person with no prior heart disease [like
       the decedent] found unconscious but with a feeble pulse has an
       excellent chance of being resuscitated if advanced cardiac life
       support is provided within two minutes. [The physician] found
       his opinion supported by a study, the data of which established
       that if basic life support is provided within five minutes and
       advanced cardiac life support within eight to ten minutes, the
       patient’s chance for survival would be 10-30% . Finally, [he]
       testified that a person with a feeble pulse is not yet in full cardiac
       arrest; the chance of successful resuscitation in such a case is
       greatly enhanced.
Id. at 1183. The resulting loss of a 10-30% chance of survival was
“sufficient evidence to support . . . a direct causal relationship between [the
doctor]’s deliberate indifference and [the patient]’s death.” Id. at 1184.
       In this case, the Family could have presented a medical professional
to testify about causation. The district court denied summary judgment to
defendants because the Family “present[ed] genuine issues of material fact
as to whether the alleged delay in treatment for inmate’s cardiac arrest may

                                         -7-
      The Family also contends M r. Barnes’ missed diabetes, blood pressure, and

pain medication “subject[ed] him to future cardiovascular harm.” Aplt. Br. at 21.

There is no indication that the few skipped doses precipitated his cardiac arrest,

see Aplt. App. at 234 (Dr. Jarrell testified that higher blood sugar results in

“higher incidence of cardiovascular events . . . referring to years [of elevated

blood sugar], not hours or days.”), and there is therefore no causal link between

the missing medications and M r. Barnes’ death.

      The Family also asserts the missed doses of pain medication “subject[ed]

him to unnecessary pain.” Aplt. Br. at 21. M r. Barnes documented his pain in the

medical and grievance forms he submitted to prison officials. See Aplt. App. at

287 (listing “back & hand pain”); id. at 285 (stating that “pain hurtin[g]”). The

causation defect that derailed the Family’s previous claims is thus not present

here. But, as noted above, the harm caused by a delay in treatment must be

“substantial” to present an Eight Amendment violation. See Garrett v. Stratman,

254 F.3d 946, 950 (10th Cir. 2001) (The “substantial harm requirement may be

satisfied by lifelong handicap, permanent loss, or considerable pain.”). W here

pain is the claimed harm, “‘not every twinge . . . suffered as a result of delay in

medical care is actionable,” Sealock, 218 F.3d at 1210; “w hen the pain



have decreased decedent’s chance of survival,” thus leaving the question of
causation for trial. Aplt. App. at 395. In their case in chief, however, the
Family failed to present testimony that would resolve this material fact
issue in their favor.

                                          -8-
experienced during the delay is substantial, the prisoner sufficiently establishes

the objective element of the deliberate indifference test.” Kikumura v. Osagie,

461 F.3d 1269, 1292 (10th C ir. 2006) (quotation omitted). In previous cases, w e

have held that twelve hours of tormenting, debilitating pain accompanied by

severe vomiting, see id. at 1293, and “considerable pain [experienced] while [a]

finger continued to rot,” Oxendine, 241 F.3d at 1278, constituted substantial

harm.

        The record here does not suggest the discomfort M r. Barnes suffered as a

result of his missed medication was of sufficient severity to be substantial. The

record is simply too barren to reach that conclusion. For example, D r. Jarrell

made no comment as to the nature and severity of M r. Barnes’ original pain

complaints. His deposition does not indicate w here M r. Barnes placed his

discomfort on a pain scale or w hether this was a minor recurring discomfort or a

debilitating pain. Because pain medications are widely prescribed to allay both

minor and severe pain, the prescription alone provides little indication of the pain

severity. M r. Barnes was certainly in some distress while imprisoned, see aplt.

app. at 285 (complaining pain was interrupting his sleep), but the record simply

does not support a conclusion that the pain was “substantial.”

        Given that the Family cannot meet the first, objective prong of the

deliberate indifference analysis, they failed to satisfy the first prong of the



                                          -9-
qualified immunity test. Furthermore, as evidenced by the above discussion, they

also failed to prove deliberate indifference and proximate causation. Finally, w e

are not persuaded the district court abused its discretion when it denied the

Family an opportunity to offer evidence of the W ashington County Jail’s

grievance procedure.

      Accordingly, we A FFIR M .

                                       ENTERED FOR THE COURT



                                       Stephanie K. Seymour
                                       Circuit Judge




                                         -10-
