                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 29, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                           FOR THE TENTH CIRCUIT


    GREGORY THOMAS FARHAT,

             Plaintiff-Appellee,

    v.                                                 No. 09-6280
                                                (D.C. No. 5:06-CV-00468-R)
    JIMMIE BRUNER,                                     (W.D. Okla.)

             Defendant-Appellant,

    and

    STEPHENS COUNTY BOARD OF
    COUNTY COMMISSIONERS;
    RAY YOUNG,

             Defendants.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH, and GORSUCH, Circuit
Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Defendant Jimmie Bruner, the former sheriff of Stephens County,

Oklahoma, brings this interlocutory appeal from the district court’s denial of her

motion for summary judgment as to qualified immunity and punitive damages. 1

Because Sheriff Bruner raises only disputed issues of fact, we lack jurisdiction

under the collateral order doctrine and dismiss her appeal.

                                  I. Background

      The events that gave rise to this civil rights lawsuit are detailed in our

prior, related decision dismissing for lack of jurisdiction the interlocutory appeal

of Sheriff Bruner’s co-defendant, Stephens County detention officer Ray Young.

See Farhat v. Young, 343 F. App’x 321 (10th Cir. 2009) (unpublished). In Farhat

v. Young, as is relevant here, we stated:

             On August 26, 2004, plaintiff Gregory Thomas Farhat was
      arrested for disturbing the peace by public intoxication, apparently
      due to methamphetamine and marijuana use. He was booked that
      afternoon into the Stephens County, Oklahoma, jail . . . . Mr. Farhat
      was placed in an isolation cell . . . which lacked running water. Two
      days later, at noon on August 28, he was found collapsed on the
      concrete floor with his neck and lips swollen. He was taken by
      ambulance to a hospital where he presented with sores on his face, a
      swollen face and lips, pneumothoraces with subcutaneous
      emphysema, suspected esophageal perforation, disorientation, sepsis
      cultured as Streptococcus (infection to the bloodstream), pressure
      sores on his buttocks, severe dehydration, rhabdomyolysis, renal
      failure, cognitive deficit (organic or traumatic brain injury), and


1
       We refer to the defendant as “Sheriff Bruner” because, even though she
retired at the end of 2008, she was sheriff at the time of the events pertinent to
this appeal. See John Walker, Bruner Set to Pass Baton of Responsibility to New
Sheriff, The Duncan Banner, Nov. 16, 2008, available at 2008 WLNR 21894258.

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      multiple organ failure syndrome. He spent part of his hospitalization
      in a coma and was released in late November 2004. His medical bills
      exceeded $507,000.

Id. at 323.

      Mr. Farhat filed suit, asserting a number of claims against Sheriff Bruner

and others, including a claim under 42 U.S.C. § 1983, alleging Sheriff Bruner, in

her individual capacity, established an unwritten policy or custom of denying

inmates and pretrial detainees medical care, and that she failed to train and

supervise her deputies “to ensure the health and safety of prisoners under [her]

control,” Aplt. App., Vol. I at 18; see also id., Vol. II at 415 (alleging that Sheriff

Bruner violated Mr. Farhat’s “clearly-established 14th Amendment guarantee that

medical care will be provided to pre-trial detainees”). Mr. Farhat sought actual,

compensatory, and punitive damages.

      Sheriff Bruner moved for summary judgment on all claims against her.

Only the district court’s denial of qualified immunity on Mr. Farhat’s § 1983

claim and the court’s refusal to dismiss Mr. Farhat’s request for punitive damages

are at issue in this appeal.

                                    II. Discussion

      “Qualified immunity protects governmental officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Weise v.

Casper, 593 F.3d 1163, 1166 (10th Cir. 2010) (quotations omitted). “The

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qualified immunity inquiry has two prongs: whether a constitutional violation

occurred, and whether the violated right was clearly established at the time of the

violation.” Id. at 1166-67 (quotation omitted).

      To make out a claim for supervisor liability under § 1983, a plaintiff must

show that an “affirmative link exists between the constitutional deprivation and

either the supervisor’s personal participation, [her] exercise of control or

direction, or [her] failure to supervise.” Fogarty v. Gallegos, 523 F.3d 1147,

1162 (10th Cir. 2008) (quotations omitted). “[D]irect participation is not

necessary.” Buck v. City of Alburquerque, 549 F.3d 1269, 1279 (10th Cir. 2008).

      Any official who ‘causes’ a citizen to be deprived of [his]
      constitutional rights can also be held liable. The requisite causal
      connection is satisfied if the defendant set in motion a series of
      events that the defendant knew or reasonably should have known
      would cause others to deprive the plaintiff of [his] constitutional
      rights.

Id. at 1279-80; Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988) (“[A]

sheriff is accountable in a § 1983 action whenever . . . [she] knew or should have

known of the misconduct, and yet failed to prevent future harm.” (quotation

omitted)). Stated differently, “[l]iability of a supervisor under § 1983 must be

predicated on the supervisor’s deliberate indifference, rather than mere

negligence. To be guilty of deliberate indifference, the defendant must know

[she] is creating a substantial risk of bodily harm.” Green v. Branson, 108 F.3d

1296, 1302 (10th Cir. 1997) (citation and quotations omitted).


                                          -4-
      In this case the district court acknowledged, as a threshold matter, that

genuine issues of material fact remain for trial regarding whether Sheriff Bruner’s

subordinate, co-defendant Young, was aware of a substantial risk of serious harm

to Mr. Farhat and nevertheless refused to assist him. The court then detailed,

among other evidence, “numerous complaints that medical needs were not being

met by the staff of the jail, . . . complaints that requests for medical care had been

ignored, and . . . asserti[ons] that prescribed medical care was withheld by jail

staff.” Aplt. App., Vol. II at 860. Ultimately, the district court denied Sheriff

Bruner qualified immunity, holding

      that there is sufficient evidence from which a jury could conclude
      that Sheriff Bruner knew her policies regarding medical treatment
      were insufficient to protect the rights of inmates and detainees and
      that she nevertheless failed to alter or amend her policies and
      training to protect the rights of such persons, and as a result,
      [Mr. Farhat] did not receive timely medical care.

Id. at 861.

      Before we can turn to the merits of Sheriff Bruner’s interlocutory appeal,

we must consider our jurisdiction. Whether we have jurisdiction over this

interlocutory appeal turns on the collateral order doctrine, which provides that “a

district court’s denial of a claim of qualified immunity, to the extent that it turns

on an issue of law, is an appealable ‘final decision’ within the meaning of

28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). Under the doctrine, “summary judgment


                                          -5-
determinations are appealable when they resolve a dispute concerning an abstract

issue of law–typically, the issue whether the federal right allegedly infringed was

clearly established[.]” Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (quotation,

citation, and alteration omitted). “[A] defendant, entitled to invoke a qualified

immunity defense, may not[, however,] appeal a district court’s summary

judgment order insofar as that order determines whether or not the pretrial record

sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304,

319-20 (1995). In other words, “we are not at liberty to review a district court’s

factual conclusions, such as the existence of a genuine issue of material fact for a

jury to decide, or that a plaintiff’s evidence is sufficient to support a particular

factual inference.” Fogarty, 523 F.3d at 1154. Indeed, our review at this point

must “scrupulously avoid second-guessing the district court’s determinations

regarding whether [a plaintiff has] presented evidence sufficient to survive

summary judgment.” Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir. 1997).

      On appeal, Sheriff Bruner contends that the district court erroneously

denied her qualified immunity because Mr. Farhat failed to affirmatively link any

action or failure to act, on the part of Sheriff Bruner, to a violation of

Mr. Farhat’s clearly established rights. The problem with this general assertion,

however, is that she fails to make a legal argument (or arguments) in support.

For example, with regard to an alleged failure to act, she submits that “evidence

supplied . . . indicates that Jail staff repeatedly checked on Plaintiff after

                                           -6-
booking . . . [and] that the jailers present were trained in CPR and first aid and

that at least one jailer present was an experienced emergency medical technician

and a certified paramedic.” Aplt. Br. at 12-13. She also contends “the jailers’

actions . . . were wholly reasonable.” Id. at 14. She even goes so far as to claim

that “[t]he undisputed evidence shows that jailers’ actions evinced concern for

[Mr. Farhat’s] well-being as well as timely responses to his symptoms,” and that

Mr. Farhat “wholly failed to demonstrate that jailers deprived him of medical care

out of deliberate indifference.” Id. at 14-15.

      All of these assertions concern disputed issues of fact and disregard our

prior decision in the appeal involving Sheriff Bruner’s subordinate and

co-defendant, Mr. Young. In that case, we held “that there is a disputed fact issue

concerning Mr. Young’s subjective knowledge and related conduct. That is the

sort of unreviewable determination that falls outside the scope of the collateral

order doctrine.” Farhat, 343 F. App’x at 325. Sheriff Bruner also contends that

she did not have actual or constructive notice sufficient to satisfy the

deliberate-indifference standard for supervisory liability under § 1983. But this is

a fact question clothed as a legal argument. In short, because all of Sheriff

Bruner’s arguments are grounded in disputed facts, we lack jurisdiction to

consider them under the collateral order doctrine.

      Finally, Sheriff Bruner contends that the district court erred in denying

summary judgment regarding punitive damages. The court’s denial of summary

                                          -7-
judgment on this issue does not fall within the collateral order doctrine, so we

lack jurisdiction to review it. See Osage Tribal Council ex rel. Osage Tribe of

Indians v. U.S. Dep’t of Labor, 187 F.3d 1174, 1180 (10th Cir. 1999).

                                   CONCLUSION

      For the reasons stated above, we DISMISS Sheriff Bruner’s interlocutory

appeal for lack of jurisdiction.


                                                    Entered for the Court



                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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