                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                October 14, 2011
                           FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                  Clerk of Court

    JOHN DAVID PALMER,

             Plaintiff-Appellee,

    v.                                                 No. 11-6021
                                                (D.C. No. 5:09-CV-00824-F)
    BOARD OF COMMISSIONERS FOR                         (W.D. Okla.)
    PAYNE COUNTY OKLAHOMA;
    NOEL BAGWELL; MARK HALL;
    UNKNOWN DEPUTY SHERIFFS;
    PAYNE COUNTY SHERIFF,

             Defendants,

    BRANDON MYERS,

             Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before KELLY, GORSUCH, and MATHESON, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
       Payne County Jail Administrator Brandon Myers appeals from a district

court order adopting the magistrate judge’s recommendation to deny his motion

for summary judgment on the ground of qualified immunity. Our review in such

circumstances is limited. “Generally, we may not 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.” Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010) (internal

quotation marks omitted). But, “[i]nsofar as we have jurisdiction to review the

denial of a qualified-immunity motion for summary judgment, our review is

de novo.” Deutsch v. Jordan, 618 F.3d 1093, 1099 (10th Cir. 2010). Exercising

de novo review over those aspects of Myers’s appeal that are within our

jurisdiction, we affirm for the reasons stated by the magistrate judge and the

district court.

                               I. Factual Background

       While held as a pretrial detainee at the Payne County Jail, plaintiff John

David Palmer suffered from an infection by the flesh-eating methicillin-resistent

staphylococcus aureus (MRSA) bacteria. Mark Hall, the jail’s medical transport

officer, took plaintiff to Dr. Daniel P. Hill on the morning of August 2, 2007.

Dr. Hill drained the boils plaintiff had developed, administered an injection of an

antibiotic, and prescribed two more antibiotics for oral use at the jail. Although

Dr. Hill did not actually diagnose plaintiff with MRSA during the visit, a jail

                                           -2-
record prepared by Officer Hall upon their return reflected that plaintiff had been

treated for MRSA (the diagnosis was later confirmed by lab tests). Dr. Hill

advised that plaintiff should return for a follow-up visit in two days, but warned

that if, in the interim, plaintiff developed a fever over 100 degrees or increased

pain, he should be taken to the hospital. Officer Hall testified in his deposition

that he conveyed this information to defendant Myers when he brought plaintiff

back to the jail (and the magistrate judge noted this fact was undisputed).

      Upon his return, plaintiff’s condition worsened. The pain where the boils

were increased to the point that he was vomiting, crying, and complaining that he

needed to go to the hospital. He alleges that when defendant Myers came to the

jail annex in response to his complaints, he reiterated Dr. Hill’s instructions, told

Myers how very sick he was, and asked Myers to take him to the emergency

room. According to plaintiff, Myers told him to “shut the fuck up or go back to

the main jail where you got the disease.” Aplt. App. Vol. II at 256. According to

Myers, “[t]o the best of my recollection, [plaintiff] did not tell me verbally that he

was in need of medical care” and “I did not deny a request for medical care made

by [plaintiff].” Id. Vol. I at 69. By the evening of the next day, plaintiff was

taken to the emergency room. He was admitted and underwent surgery for the

MRSA infection. In addition to the pain involved, he claims he suffered nerve

damage and scarring and incurred over $24,000 in medical bills.




                                          -3-
                         II. Qualified Immunity Analysis

      The magistrate judge correctly noted that “[i]t has been clearly established

since 1976 that a jailer’s failure to act in accordance with prescribed medical

instructions can give rise to an Eighth Amendment claim.” Id. Vol. II at 448

(citing Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)); see, e.g., Howard. v.

Dickerson, 34 F.3d 978, 980-81 (10th Cir. 1994); Ledoux v. Davies, 961 F.2d

1536, 1537 (10th Cir. 1992). 1 After summarizing the conflicting accounts of the

events at the jail noted above, the magistrate judge concluded that “[t]he evidence

of whether Defendant Myers intentionally [refused to comply with Dr. Hill’s

medical instructions] is in dispute . . . and summary judgment [granting qualified

immunity to Myers] is precluded.” Aplt. App. Vol II at 448. The district court

agreed, “conclud[ing] that there is sufficient evidence for a rational jury to find

that defendant Myers knew plaintiff faced a substantial risk of harm and

disregarded that risk.” Id. at in 473.

      Myers cannot challenge the conclusion that a reasonable jury could find he

failed to follow Dr. Hill’s instructions. “A district court’s determination that the

record raises a ‘genuine issue of material fact,’ precluding summary judgment in

favor of the defendants, is not appealable even in a qualified immunity case.”


1
      It is also well-established that the Eighth Amendment principles discussed
herein protect pretrial detainees under the Due Process Clause of the Fourteenth
Amendment. See Howard, 34 F.3d at 980-81; Martin v. Bd. of County Comm’rs,
909 F.2d 402, 406 (10th Cir. 1990).

                                         -4-
Dixon v. Kirkpatrick, 553 F.3d 1294, 1301 (10th Cir. 2009) (quoting Johnson v.

Jones, 515 U.S. 304, 313 (1995)). This general rule “has attracted exceptions that

we must also consider,” Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010), but

the two relevant exceptions identified in Lewis do not apply here.

       First, when the district court “fails to identify the particular charged

conduct that it deemed adequately supported by the record, we may look behind

the order denying summary judgment and review the entire record de novo to

determine for ourselves as a matter of law which factual inferences a reasonable

jury could and could not make.” Id. This exception is not applicable here; it is

quite clear what conduct the district court was referring to when it held that a

rational jury could find Myers knew and disregarded a substantial risk of harm to

plaintiff.

       Second, “when the ‘version of events’ the district court holds a reasonable

jury could credit ‘is blatantly contradicted by the record,’ we may assess the case

based on our own de novo view of which facts a reasonable jury could accept as

true.” Id. at 1225-26 (quoting Scott v. Harris, 550 U.S. 372, 380 (2007), in which

the Supreme Court refused to credit a version of events flatly contradicted by a

video recording). That is also clearly not the case here.

       We are thus left to review one straightforward legal question: did Myers’s

alleged refusal to take plaintiff to the hospital in accord with Dr. Hill’s directions,

after plaintiff told Myers how sick he had become and asked to be taken to the

                                          -5-
hospital, provide a basis upon which Myers could be held to have violated clearly

established law? The answer, on our record and under the case law cited above,

must be yes. Myers seeks to avoid this conclusion by arguing that, even on

plaintiff’s version of the facts, he did not know or appreciate the seriousness of

plaintiff’s condition and, in particular, did not know plaintiff was suffering from

MRSA. But such lay ignorance of medical matters is precisely the reason for the

rule noted earlier that noncompliance with the treatment prescribed by medical

professionals is one form of deliberate indifference. When the seriousness of a

medical need is not “so obvious that even a lay person would easily recognize the

necessity for [medical] attention,’” it is nevertheless sufficient to support a claim

of deliberate indifference if “‘it is one that has been diagnosed by a physician as

mandating treatment.’” Martinez v. Garden, 430 F.3d 1302, 1304 (10th Cir.

2005) (quoting Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).

      Of course, to satisfy the subjective component of such a claim, Myers must

be shown to have known and disregarded the risk involved. Id. “‘Whether a

prison official had the requisite knowledge of a substantial risk is a question of

fact subject to demonstration in the usual ways, including inference from

circumstantial evidence.’” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006)

(quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994) (brackets omitted)). Here,

where Myers knew that the treating physician’s directions were to take plaintiff

directly to the hospital, a jury could surely infer from the circumstances that

                                          -6-
Myers knew of and intentionally disregarded a substantial risk to plaintiff’s

health. Myers further argues that his knowledge derived solely from plaintiff’s

own reported complaints and that “[s]uch a subjective assessment of his own

illness by Plaintiff, without proof of Myers’s knowledge of any objective signs or

symptoms thereof, is simply insufficient to establish that Myers’s alleged denial

of medical care to Plaintiff . . . was in contravention of Dr. Hill’s instructions.”

Aplt. Br. at 23. Myers cites no authority for the premise of this argument, i.e.,

that a prison officer can ignore an inmate’s complaints of pain because they are

subjective. And that premise is particularly inapt in this case, where the treating

physician’s instructions were in relevant part specifically conditioned on the

subjective symptom of increased pain–a symptom communicated by plaintiff

under circumstances (on his version of the facts) that clearly supported rather than

belied its authenticity.

                    III. Conclusion and Attorney Fee Request

      For the foregoing reasons, we conclude the district court properly denied

Myers’s motion for summary judgment on the ground of qualified immunity.

Plaintiff has requested an award of attorney fees and costs in the event we affirm

the decision of the district court. Costs are, of course, “taxed against the

appellant” when “a judgment is affirmed.” Fed. R. App. P. 39(a)(2). Plaintiff

does not cite any authority for his fee request, but we assume it is made pursuant




                                          -7-
to 42 U.S.C. § 1988(b). 2 As such, it is premature. Although he has succeeded in

defending the denial of summary judgment to defendant Myers, he has yet to

affirmatively establish his right to any relief on his claims. “[A] plaintiff [must]

receive at least some relief on the merits of his claim before he can be said to

prevail [for purposes of fees under § 1988].” Hewitt v. Helms, 482 U.S. 755, 760

(1987); see, e.g., Stidham v. Peace Officer Standards & Training, 265 F.3d 1144,

1157 (10th Cir. 2001) (denying § 1988 fee request made by plaintiff who

prevailed on qualified-immunity appeal, holding “[i]t must abide the

determination on the merits”).

      The judgment of the district court is AFFIRMED. Appellee’s request for

attorney fees is DENIED.


                                                    Entered for the Court


                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




2
      The request for fees was not made by separate motion as required under
Fed. R. App. P. 38 for awards in the nature of sanctions. See Anchondo v.
Anderson, Crenshaw & Assocs., 616 F.3d 1098, 1107 n.10 (10th Cir. 2010). But
because we may consider fee requests made, as here, in appellate briefs if they are
based on an independent statutory authorization for fees, id., plaintiff’s request
would be procedurally valid under § 1988.

                                         -8-
