                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT              May 7, 2014

                                                          Elisabeth A. Shumaker
                                                              Clerk of Court
TERA M. BRUNER-MCMAHON;
KATHLEEN A. GULLEDGE,
as Co-Administrators of the Estate of
Terry Albert Bruner, deceased,

             Plaintiffs-Appellants,

v.                                                  No. 13-3035
                                          (D.C. No. 6:10-CV-01064-KHV)
MARQUE JAMESON; MARY                                 (D. Kan.)
STATON; MARK B. COOK; CHARLES
H. FLETCHER; RACHEL M. GAINES;
BOBBY L. HINES; TIMOTHY
MCMAHON; FAUSTINO MARTINEZ;
MICHAEL MURPHY; LISA M. PEREZ;
GERALD PEWEWARDY; LISA R.
PRICE; DANIEL M. SAFARIK; ABDUL
S. SMITH; LISA WILLIAMS,

             Defendants-Appellees.

and

COUNTY OF SEDGWICK, a political
subdivision of the State of Kansas;
ROBERT HINSHAW, Sedgwick County
Sheriff; GARY STEED, Sedgwick
County Sheriff; SEDGWICK COUNTY
SHERIFF’S DEPARTMENT;
SEDGWICK COUNTY BOARD OF
COMMISSIONERS; LISA L.
ARMSTRONG; WAYNE E. BROWN;
CONMED, INC.; CONMED
HEALTHCARE MANAGEMENT, INC.;
RHONDA M. FREEMAN; TED
GIBSON; ERIC HUNT; JOSEPH R.
HUNTER; ERICA JOHNSON-
WOOTSON; JANIS JONES; GLENN
KURTZ; CASSIE LEU; KEITH J.
LOVINGIER; ALICIA M. MEFFORD;
JARED O. SCHECTER; ANDREA L.
SKELTON; ROBERT D. TAYLOR;
HENRY A. TONG; FNU TOLAN;
KENDRA MAECHTLEN WOLFF;
VICKYE D. BEASLEY; SHARON
NELSON; JOYCE BEYRLE,

             Defendants.


                             ORDER AND JUDGMENT*


Before HARTZ, McKAY, and BACHARACH, Circuit Judges.


      Appellants filed this civil rights suit under 42 U.S.C. § 1983, seeking damages

for defendants’ deliberate indifference to the serious medical needs of deceased

Kansas inmate Terry Bruner, in violation of his Eighth Amendment rights.1

Numerous defendants were named, and appellants’ claims against two of the

defendants were tried before a jury, but none of the defendants were held liable.

Appellants challenge the district court’s rulings on their claims as to fifteen of the


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 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.
1
      Appellants initially alleged other claims, but they do not challenge the
disposition of any other claims on appeal.


                                          -2-
defendants: its January 8, 2013, order denying their motion for new trial as to the

two defendants who were tried, and its January 18, 2012, order granting summary

judgment to thirteen of the other defendants. We have jurisdiction under 28 U.S.C.

§ 1291 and affirm.

                                     I. Background

                             A. Summary of the Evidence

      The district court thoroughly reviewed the facts, and we need not repeat them

in detail here. On November 5, 2007, Mr. Bruner, then forty-six years old, was

incarcerated in the Sedgwick County Adult Detention Facility in Wichita (“Sedgwick

County Jail”). He signed a form acknowledging that he understood how to receive

medical treatment during a medical screening with an employee of ConMed

Healthcare Management, Inc. (“ConMed”), the medical provider at the Sedgwick

County Jail. He was transferred on November 8, 2007, to the Stanton County Jail in

southwestern Kansas. On Tuesday, March 4, 2008, some inmates reported to jail

officials that Mr. Bruner was ill. Jail officials checked on Mr. Bruner, who said that

he had the flu and did not feel well. It appeared to the officials that he had the flu,

but Mr. Bruner said that he was not sick enough to see a doctor and that he did not

want to go back to the Sedgwick County Jail.

      On Wednesday, March 5, Stanton County Jail officials arranged for

Mr. Bruner to be transferred back to the Sedgwick County Jail for a medical

appointment with ConMed the next morning. Mr. Bruner was in fact transported


                                           -3-
back to the Sedgwick County Jail on Thursday, March 6, but he did not arrive there

until after 5:00 p.m., so he missed the appointment that had been made for him and

was not seen in the clinic. Mr. Bruner was moved from Sedgwick County Jail’s

booking area to a cell in POD 12 early on the morning of Friday, March 7.

Mr. Bruner did not have a cellmate.

      ConMed had normal sick call hours only on weekdays at approximately 6:30

a.m., but inmates or jail officers could also make special requests at any time for

medical treatment. Neither the deputies nor the sergeants at the Sedgwick County

Jail knew that Mr. Bruner had been transferred back there for a medical examination

and, from March 6 to March 10, Mr. Bruner never signed up for sick call, made a

special request for medical care, or asked any jail employee for medical treatment.

      Defendants Lisa M. Perez, Lisa R. Price, Rachel M. Gaines, Timothy

McMahon, Bobby L. Hines, and Abdul S. Smith were deputies who worked shifts in

POD 1 between 11:00 p.m. on Thursday, March 6, and 7:00 a.m. on Sunday,

March 9. They said that they did not remember Mr. Bruner and that they would have

noted Mr. Bruner’s illness on the computerized daily activity log (“DAL”), if


2
       POD 1 is a protective custody unit. At all times, the POD deputy or a relief
deputy remains in the middle of the POD in a booth which has a closed door, glass
windows, and a private bathroom. The POD deputy can see the cells and the
common day rooms from the booth and can communicate with inmates in their cells
through an intercom, but the POD deputy cannot otherwise hear inmates in their cells
from the booth. Inmates are free either to stay in their cells or to remain outside of
their cells for much of the day in the common day rooms. A deputy conducts rounds
a few times during a shift, but only to ensure that inmates are present and alive.


                                          -4-
Mr. Bruner had appeared ill or if anyone had reported to them that Mr. Bruner was

ill. None of them had recorded on the DAL that Mr. Bruner appeared ill. Defendant

Gerald Pewewardy, a sergeant, was in POD 1 for less than half an hour during the

first shift on March 8. He did not recall personally observing Mr. Bruner and

concluded that he had not received a report that Mr. Bruner was ill.

      Defendant Mark B. Cook, a deputy, observed Mr. Bruner during his shift in

POD 1 from 7:00 a.m. to 3:00 p.m. on Sunday, March 9, and said that Mr. Bruner

was moving slowly and acting strange. Deputy Cook asked Mr. Bruner if he had

been eating, and Mr. Bruner responded that he did not feel well, but he never asked

to see a doctor or to go to the clinic. Deputy Cook said that he thought that

Mr. Bruner was being bullied by other inmates for his food, so he personally gave

Mr. Bruner a plate of food at lunch and confirmed that Mr. Bruner ate it.

Deputy Cook also said that he saw Mr. Bruner watching television and talking with

other inmates in the POD 1 day room that afternoon, and that he told the deputy on

the next shift what he had observed and to keep an eye on Mr. Bruner. Defendant

Daniel M. Safarik was the POD 1 deputy from 3:00 p.m. to 11:00 p.m. on March 9,

and defendant Lisa Williams worked from 11:00 p.m. on March 9 to 7:00 a.m. on

March 10. Both of them said that they did not remember Mr. Bruner and that they

would have noted Mr. Bruner’s illness on the DAL, if Mr. Bruner had appeared ill or

if anyone had reported to them that Mr. Bruner was ill. Neither of them had recorded

on the DAL that Mr. Bruner appeared ill.


                                         -5-
      Defendant Mary Staton, deputy in charge on Monday, March 10, said that

Mr. Bruner came out of his cell at around 7:15 a.m. for the linen exchange, but he did

not have his linens and acted confused. She asked defendants Michael Murphy and

Marque Jameson, who were roving deputies, to assist Mr. Bruner back into his cell.

They noted that Mr. Bruner complied, but he was moving slowly and acting strange.

He did not appear to them to be in pain or distress; they thought that Mr. Bruner

might have a mental health condition and that Deputy Staton would address it.

Before 10:25 a.m., an inmate told Deputy Staton that Mr. Bruner had not eaten since

he arrived in POD 1, and she noted that it had been four days since he arrived.

Deputy Staton told her sergeant, defendant Faustino Martinez, at about 10:25 a.m.

that Mr. Bruner might have a mental health issue and that an inmate had reported that

Mr. Bruner had not eaten for days. Sergeant Martinez told her to call mental health

personnel to check on Mr. Bruner during rounds, and a mental health worker told

Deputy Staton that she would check on Mr. Bruner in the afternoon.

      Deputy Staton also learned by around noon on Monday, March 10, that

Mr. Bruner had not eaten his lunch and was unresponsive. She told

Sergeant Martinez that Mr. Bruner had not eaten lunch, but not that he was

unresponsive. Sergeant Martinez called a mental health worker and asked for a

courtesy check on Mr. Bruner during her rounds in the afternoon. Deputy Staton did

not check on Mr. Bruner again until some inmates told her at approximately 2:00

p.m. that Mr. Bruner was lying on the floor of his cell and not moving.


                                         -6-
Deputy Staton asked Deputy Jameson to check on Mr. Bruner. Deputy Jameson did

so a few minutes later and found Mr. Bruner lying in a fetal position on the floor,

struggling to get up, but not appearing to be in pain or distress. Deputy Jameson put

Mr. Bruner back on his bunk and told Deputy Staton at approximately 2:20 p.m. that

something was wrong with Mr. Bruner.

      A mental health evaluator and a registered nurse checked on Mr. Bruner at

approximately 3:00 p.m. on Monday, March 10. They thought that he appeared very

sick and that it was obvious that he needed immediate medical evaluation, so they

phoned for a wheelchair to transport him to the clinic. Mr. Bruner was wheeled out

of POD 1 at approximately 3:26 p.m.

      When Mr. Bruner arrived at the clinic, a licensed practical nurse evaluated his

condition, consulted his medical history, and notified defendant Charles H. Fletcher,

a ConMed physician’s assistant. Mr. Fletcher ordered lab tests, which were drawn at

4:10 p.m., and directed the nurse to set up an IV. A registered nurse saw Mr. Bruner

at 5:20 p.m. and noted his condition. At 5:30 p.m., Mr. Fletcher conducted a physical

examination and ordered IV fluids to be administered to Mr. Bruner. At 9:01 p.m.,

Mr. Fletcher reviewed the lab results, saw that Mr. Bruner’s white blood cell count

was high, and ordered IV antibiotics to be administered. Mr. Fletcher also ordered

that Mr. Bruner be transferred to a local hospital. EMS personnel transported

Mr. Bruner at 9:39 p.m. He died in the hospital on Wednesday, March 12, from a

herniation of the brainstem resulting from a buildup of fluid in the brain caused by


                                         -7-
bacterial meningitis due to untreated liver disease. If antibiotics had been

administered about six hours earlier than they were, Mr. Bruner probably would have

survived. The early signs of meningitis, however, are general, such as: headache,

fatigue, irritability, or signs of the common cold or the flu.

                                 B. Procedural History

      Appellants sued numerous defendants connected with the Stanton County Jail,

the Sedgwick County Jail, and ConMed. Some of the claims were dismissed,

including all of the claims against the Stanton County Jail defendants. All of the

remaining defendants moved for summary judgment. In a fifty-five page order filed

on January 18, 2012, the district court granted summary judgment to all of those

defendants except Deputies Staton and Jameson. Appellants’ claims against

Deputies Staton and Jameson were then tried to a jury, which found them not liable.

In a twelve-page order filed on January 8, 2013, the district court denied appellants’

subsequent motion for new trial under Fed. R. Civ. P. 59(a). Appellants appeal from

the district court’s January 2012 and January 2013 orders.

                                  II. Issues on Appeal

      Appellants argue that the district court erred: (1) in granting summary

judgment to Sedgwick County Jail defendants Cook, Perez, Price, Pewewardy,

Gaines, McMahon, Hines, Smith, Safarik, Williams, Murphy, and Martinez because

there was a genuine issue as to whether they disregarded a substantial risk of serious

harm to Mr. Bruner’s health by not obtaining timely medical attention for him; (2) in


                                           -8-
granting summary judgment to ConMed defendant Charles H. Fletcher because there

was a genuine issue as to whether he was deliberately indifferent to Mr. Bruner’s

serious medical needs; and (3) in denying their motion for new trial as to

Deputies Staton and Jameson because (a) the jury’s verdict was against the great

weight of the evidence, and (b) appellants were deprived of a fair trial by an unbiased

jury because the district court refused to strike juror Jody Haugen for cause after she

admitted actual bias during voir dire based on pretrial publicity.

                                    III. Discussion

 A. District Court’s Order Granting Summary Judgment to Most of the Defendants

      “A prison official’s deliberate indifference to an inmate’s serious medical

needs violates the Eighth Amendment.” Sealock v. Colorado, 218 F.3d 1205, 1209

(10th Cir. 2000) (citing Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The concept of

“‘[d]eliberate indifference’ involves both an objective and a subjective component.”

Id. The objective component requires a plaintiff to show the existence of a

“‘sufficiently serious’” medical need. Id. (quoting Farmer v. Brennan, 511 U.S. 825,

834 (1994)). Defendants conceded that Mr. Bruner’s death satisfied the objective

component. The district court determined, however, that appellants could not satisfy

the subjective component, which is met only “if a prison official ‘knows of and

disregards an excessive risk to inmate health or safety.’” Id. (quoting Farmer,

511 U.S. at 837).




                                          -9-
      To satisfy the subjective component, “‘the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.’” Martinez v. Beggs, 563 F.3d 1082,

1089 (10th Cir. 2009) (quoting Farmer, 511 U.S. at 837). “The factfinder may

conclude that a prison official subjectively knew of the substantial risk of harm by

circumstantial evidence or ‘from the very fact that the risk was obvious.’” Id.

(quoting Farmer, 511 U.S. at 842). But “an obvious risk cannot conclusively

establish an inference that the official subjectively knew of the substantial risk of

harm, because ‘a prison official may show that the obvious escaped him.’” Id.

(quoting Farmer, 511 U.S. at 843 n.8). In addition, the risk prison officials ignored

must be the risk appellants claimed. See Martinez, 563 F.3d at 1089-90. In this case,

appellants asserted that defendants deliberately disregarded a life-threatening

condition—not just cold and flu symptoms or confusion that might have been related

to a mental health condition.

      The district court held that appellants failed to produce competent evidence

creating a triable factual issue on their Eighth Amendment claims against defendants

Cook, Perez, Price, Pewewardy, Gaines, McMahon, Hines, Smith, Safarik, Williams,

Murphy, Martinez, and Fletcher. Appellants contend that Mr. Bruner’s deteriorating

physical condition was obvious to other inmates and that defendants must have

known that he needed medical attention.




                                          - 10 -
       “We review the district court’s summary judgment order de novo, and apply

the same legal standards as the district court.” Doe v. City of Albuquerque, 667 F.3d

1111, 1122 (10th Cir. 2012). “The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’

if, under the governing law, it could have an effect on the outcome of the lawsuit. A

dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the

nonmoving party on the evidence presented.” EEOC v. Horizon/CMS Healthcare

Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “In applying this standard, we view the

factual record and draw all reasonable inferences therefrom most favorably to the

nonmovant.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).

But “although our review is de novo, we conduct that review from the perspective of

the district court at the time it made its ruling, ordinarily limiting our review to the

materials adequately brought to the attention of the district court by the parties.” Id.

at 671.

       Appellants argue that the evidence showed that it was obvious that Mr. Bruner

was ill, so these defendants must have seen that he was ill and consciously

disregarded his need for medical care. Appellants fail to acknowledge, however, that

it is not sufficient—for a constitutional claim—to show that defendants observed that

Mr. Bruner appeared to have the flu or was acting in a strange way that might have

been related to a mental health condition. Rather, as the district court properly


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observed, appellants were required to produce evidence showing that defendants

appreciated that Mr. Bruner “had a risk of a fatal medical condition and chose to

disregard” that risk. Aplt. App. Vol. I at 92. For example, “[i]n Sealock, we

concluded that the subjective component was not met where a prison nurse

misdiagnosed an inmate’s chest pains as the flu, and failed to recognize symptoms

suggesting an impending heart attack.” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir.

2006) (citing Sealock, 218 F.3d at 1208, 1211, 1212 n.7).

      The district court thoroughly reviewed the evidence in its order, explaining

that appellants failed to produce evidence showing that the seriousness of

Mr. Bruner’s physical illness was appreciated by any of the defendants at Sedgwick

County Jail earlier than the afternoon of Monday, March 10, at which time

Mr. Bruner promptly received medical care from Mr. Fletcher. Appellants have not

pointed us to any summary judgment evidence showing that defendants Cook, Perez,

Price, Pewewardy, Gaines, McMahon, Hines, Smith, Safarik, Williams, Murphy,

Martinez, or Fletcher recognized that Mr. Bruner was at risk of a fatal medical

condition and consciously disregarded it. Appellants failed to satisfy the high legal

standard required to demonstrate that there was a genuine issue of material fact on

their Eighth Amendment claims as to these defendants.

B. District Court’s Order Denying New Trial of Claims Against Staton and Jameson

      After the district court entered judgment on the jury verdict in favor of

Deputies Staton and Jameson, appellants filed a motion for a new trial pursuant to


                                        - 12 -
Rule 59(a) on the grounds that the verdict was against the great weight of the

evidence and that the jury was biased because juror Jody Haugen had admitted actual

bias but was not struck for cause. We find no error.

                 1. Verdict was Against the Weight of the Evidence

      “A motion for a new trial on the ground that the verdict of the jury is against

the weight of the evidence is normally one of fact and not of law and is addressed to

the discretion of the trial court.” Blanke v. Alexander, 152 F.3d 1224, 1235

(10th Cir. 1998) (internal quotation marks omitted). “In reviewing a district court’s

ruling on a motion for a new trial, we do not make a determination of the sufficiency

or weight of the evidence; rather, our review is limited to whether the district court’s

refusal to set aside the jury’s verdict was a manifest abuse of discretion.” Id. “In this

respect, [the moving parties] bear the heavy burden of demonstrating that the verdict

was clearly, decidedly, or overwhelmingly against the weight of the evidence.” Id.

at 1236 (internal quotation marks omitted). “So long as a reasonable basis exists for

the jury’s verdict, we will not disturb the district judge’s ruling.” McAlester v.

United Air Lines, Inc., 851 F.2d 1249, 1260 (10th Cir. 1988).

      No such abuse of discretion has been demonstrated here. The evidence for and

against Deputies Staton and Jameson was tried to a jury. The district court

thoroughly reviewed the evidence in its order denying appellants’ motion. The court

noted that Deputies Staton and Jameson “testified that they did not know that Bruner

needed immediate medical treatment and that they suspected he had a mental


                                         - 13 -
condition,” and that several other defendants who saw Mr. Bruner on Sunday,

March 9, and Monday, March 10, also testified that they did not recognize that

Mr. Bruner needed immediate medical care. Aplt. App. Vol. I at 129 & n.9. The

court explained that “[t]he jury verdict ultimately reflected a credibility judgment as

to what Staton and Jameson understood about Bruner’s condition on March 10 and

the risks associated with his condition,” and “[t]he trial certainly revealed significant

and tragic shortcomings in training and procedure at the Sedgwick Jail and the

ConMed Clinic,” but “[t]he Court [could] not grant a new trial simply because it may

have reached a different conclusion.” Id. at 129-30.

      We have carefully reviewed appellants’ materials in assessing their challenge

to the district court’s conclusion. “Where there are two permissible views of the

evidence, the fact finder’s choice between them cannot be clearly erroneous.”

Richardson v. City of Albuquerque, 857 F.2d 727, 730-31 (10th Cir. 1988)

(citing Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985); United States v.

Yellow Cab Co., 338 U.S. 338, 342 (1949)). We are not convinced that the jury’s

verdict for Deputies Staton and Jameson was clearly, decidedly, or overwhelmingly

against the weight of the evidence. The district court did not abuse its discretion

when it accepted the jury’s verdict for Deputies Staton and Jameson and denied

appellants a new trial.




                                          - 14 -
                                 2. Juror’s Actual Bias

       Appellants also argue that their right to a fair trial was violated because one of

the jurors was actually biased. They assert that juror Jody Haugen testified during

voir dire that she had been subjected to pretrial publicity and, based on that publicity,

she was biased in favor of defendants Staton and Jameson. Appellants moved to

strike Ms. Haugen for cause, but the court denied the motion. Appellants had used

all of their peremptory strikes and were unable to exercise a peremptory strike

against Ms. Haugen. They assert that the district court improperly denied their

motion for a new trial because the court’s failure to strike Ms. Haugen for cause

resulted in a biased jury.

       “We review the district court’s refusal to strike a juror for cause for an abuse

of discretion, keeping in mind that the district court is in the best position to observe

the juror and to make a first-hand evaluation of [her] ability to be fair.” Vasey v.

Martin Marietta Corp., 29 F.3d 1460, 1467 (10th Cir. 1994) (citation omitted)

(internal quotation marks omitted). A district court must grant a challenge for cause

if a prospective juror shows actual prejudice or bias. Id. “Actual bias is a factual

finding reviewed for clear error.” Skaggs v. Otis Elevator Co., 164 F.3d 511, 516

(10th Cir. 1998). We must review the issue based on “the transcript of voir dire,

considered as a whole.” Cannon v. Gibson, 259 F.3d 1253, 1280 (10th Cir. 2001).

“Actual bias can be shown by the express admission of the juror.” Skaggs, 164 F.3d

at 516. “To show a juror was biased, a [party] must show that the juror had such a


                                          - 15 -
fixed opinion that he or she could not judge impartially.” Hale v. Gibson, 227 F.3d

1298, 1319 (10th Cir. 2000). “Thus, a juror is not shown to have been partial simply

because he or she had a preconceived notion as to the guilt or innocence of the

accused.” Id. “‘It is sufficient if the juror can lay aside his impression or opinion

and render a verdict based on the evidence presented in court.’” Id. at 1320

(quoting Irvin v. Dowd, 366 U.S. 717, 722-23 (1961)).

      Appellants’ presentation of this argument is selective on both the law and the

facts. Ms. Haugen did say that she was “somewhat slanted” in favor of the

defendants. Aplt. App. Vol. V at 1521:9. Appellants do not quote all of the voir dire

in their brief, however, omitting that Ms. Haugen said five times—in response to

repeated questioning by the court and counsel for both sides—that she thought that

she could set aside her initial impression and decide the case based on the court’s

instructions and the evidence admitted at trial. Id. at 1519:23, 1520:8, 1522:16,

1523:10, 1523:14. She confirmed that she was telling the truth. Id. at 1523:23.

      The district court observed Ms. Haugen during the voir dire. After appellants

moved to strike her for cause, the court stated: “I don’t remember her saying she

couldn’t be fair. In fact, I thought where she ended up was the she definitely could

be fair.” Aplt. App. Vol. V at 1526:10-13. Appellants fail to acknowledge that

Ms. Haugen’s repeated statement that she thought that she could set aside her initial

impressions and decide the case based on the evidence admitted in court is sufficient

to negate a finding of actual bias. See Hale, 227 F.3d at 1320. The district court did


                                         - 16 -
not abuse its discretion in denying appellants’ motion for a new trial based on

Ms. Haugen’s alleged bias.

      Affirmed.


                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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