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

                             FOR THE TENTH CIRCUIT                      September 24, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
KENDRA CROCKER, as Co-Guardian
of Eric Grant; ALLEN MORA,
as Co-Guardian of Eric Grant,

      Plaintiffs - Appellees,

v.                                                         No. 18-5038
                                              (D.C. No. 4:17-CV-00149-TCK-FHM)
STANLEY GLANZ, in his personal                             (N.D. Okla.)
capacity,

      Defendant - Appellant,

and

VIC REGALADO, in his official capacity;
TULSA COUNTY BOARD OF COUNTY
COMMISSIONERS; ARMOR
CORRECTIONAL HEALTH SERVICES,
INC.,

      Defendants.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
                  _________________________________


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Eric Grant was assaulted and raped by another inmate while in custody at the

Tulsa County Jail. Grant’s co-guardians filed suit on his behalf against Sheriff

Stanley Glanz under 42 U.S.C. § 1983, asserting supervisory liability. Glanz has

filed this interlocutory appeal from the district court’s order denying his Fed. R. Civ.

P. 12(b)(6) motion to dismiss on the ground of qualified immunity.1 We have

jurisdiction under 28 U.S.C. § 1291 to review questions of law concerning the denial

of qualified immunity, see Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), and reverse

the denial.

                                  I. BACKGROUND

A. Grant’s Complaint

      Grant’s complaint alleges the following: He was arrested “on a non-violent

misdemeanor charge of trespassing.” Aplt. App. at 4. “When Mr. Grant was

booked . . . [he] was suffering from obvious, known, and serious mental health

disorders, including schizophrenia.” Id. But “[d]espite the fact that Mr. Grant was

in an obviously vulnerable state, personnel at the jail failed to take any of the

necessary precautions to protect Mr. Grant before putting him into a dangerous

correctional setting.” Id.



      1
        Grant’s co-guardians also brought § 1983 claims against (1) Vic Regalado,
the current Sheriff of Tulsa County, in his official capacity, (2) the Tulsa County
Board of County Commissioners (the Board), and (3) Armor Correctional Health
Services, Inc. (Armor). The district court granted the Board’s and Armor’s motions to
dismiss the § 1983 claims but denied Regalado’s and Glanz’s motion to dismiss the
§ 1983 claims. Only Glanz appeals.

                                            2
      Grant “should have received an immediate evaluation from a mental health

specialist, or, at the very least, an immediate referral for a mental health evaluation.”

Id. Instead, he “was cleared by” the Tulsa County Sheriff’s Office and Armor

Correctional Health Services, Inc.’s “booking staff, to enter the Jail,” and “was

placed in general population.” Id.

      Grant’s cellmate was “a registered sex offender,” who “[a]lmost immediately”

began to “harass[] and threaten[]” him. Id. at 5. Grant complained to “jail personnel

about the threats, some of which were of a sexual nature,” and “he asked to be

transferred to another cell.” Id. Also, one of his co-guardians “called the jail and

informed the Tulsa County Sheriff’s Office of the danger Mr. Grant was in and the

need to move him to another cell.” Id. In the meantime, Grant’s mental health

continued to decline, yet “[t]he medical staff at the jail failed to give [him] any of his

needed medication.” Id.

      About two weeks after Grant and his cellmate had been housed together, the

cellmate “pulled Mr. Grant from his bunk and began to brutally assault him. During

this assault, Mr. Grant was knocked unconscious and brutally raped.” Id. The assault

resulted from “longstanding, systemic deficiencies in the medical and mental health

care provided to inmates at the Tulsa County Jail. Sheriff Glanz has long known of

these systemic deficiencies and the substantial risks to inmates like Mr. Grant, but

[has] failed to take reasonable steps to alleviate those deficiencies and risks.” Id. at

6.



                                            3
B. The Motion to Dismiss

      Glanz moved to dismiss the complaint under Rule 12(b)(6) based on qualified

immunity. The district court recognized that to survive the motion to dismiss,

Grant’s complaint “must allege facts sufficient to show (assuming they are true) that

[Glanz] plausibly violated [his] constitutional rights, and that those rights were

clearly established at the time.” Id. at 86 (internal quotation marks omitted). The

court determined, however, that Glanz had failed to “argue that the alleged violation

of Grant’s constitutional rights was not clearly established,” and therefore “focuse[d]

[its analysis] only on the first element of qualified immunity: whether the alleged

facts show that Glanz plausibly violated Grant’s Fourteenth Amendment rights.” Id.

at 86-87. It identified the constitutional right at issue as Grant’s Fourteenth

Amendment due-process guarantee that pretrial detainees will be protected from

deliberate indifference to their medical needs. See Estate of Booker v. Gomez, 745

F.3d 405, 429 (10th Cir. 2014) (Eighth Amendment’s proscription against deliberate

indifference to the serious medical needs of a prisoner applies to pretrial detainees

under the Fourteenth Amendment). It then ruled that the complaint was adequate.

                           II. STANDARD OF REVIEW

      “We review the district court’s denial of a motion to dismiss based on

qualified immunity de novo.” Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.

2011) (internal quotation marks omitted). “In reviewing a motion to dismiss, all

well-pleaded factual allegations in the complaint are accepted as true and viewed in

the light most favorable to the non-moving party.” Id. (ellipses and internal

                                            4
quotation marks omitted). To survive a motion to dismiss, the well-pleaded factual

allegations in Grant’s complaint “must nudge [his] claims across the line from

conceivable to plausible.” Id. at 1163 (brackets and internal quotation marks

omitted).

                                    III. ANALYSIS

A. Qualified Immunity

      “We employ a two-part test to analyze a qualified immunity defense. In

resolving a motion to dismiss based on qualified immunity, a court must consider

whether the facts that a plaintiff has alleged make out a violation of a constitutional

right, and whether the right as issue was clearly established at the time of defendant’s

alleged misconduct.” Id. at 1164 (internal quotation marks omitted). Because we

hold that the complaint inadequately alleges a constitutional violation by Glanz, we

need not address the clearly-established requirement.

B. Supervisory Liability

      Grant’s individual-capacity claim against Glanz is predicated on a theory of

supervisory liability. “[I]n a § 1983 lawsuit, supervisory liability allows a plaintiff to

impose liability upon a defendant-supervisor who creates, promulgates, or

implements a policy which subjects, or causes to be subjected that plaintiff to the

deprivation of any rights secured by the Constitution.” Cox v. Glanz, 800 F.3d 1231,

1248 (10th Cir. 2015) (brackets, ellipses, and internal quotation marks omitted). But

because § 1983 does not authorize liability under a theory of respondeat superior,

“[a] plaintiff arguing for the imposition of supervisory liability . . . must show an

                                            5
affirmative link between the supervisor and the constitutional violation.” Id. (internal

quotation marks omitted). “The . . . affirmative link between a supervisor and the

alleged constitutional injury has . . . three related prongs: (1) personal involvement,

(2) sufficient causal connection, and (3) culpable state of mind.” Id. (internal

quotation marks omitted). The first prong is not contested by Glanz, so we address

only the second and third.

      As for causation, the district court ruled that “the [c]omplaint alleges facts that

suggest Grant may have been particularly vulnerable to assault and/or sexual assault,

and therefore plausibly establish causation.” Id. at 88. To support this ruling, the

court cited a report from a government commission on prison rape and a law-review

article. But neither the report nor the law-review article is referenced in the

complaint. And the court (and Grant) have provided no authority for considering

these documents to resolve a motion to dismiss for failure to state a claim. See Gee

v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (noting limited exceptions to rule

restricting review to four corners of complaint). In particular, we see no basis for

taking judicial notice of the documents. See Fed. R. Evid. 201.

      But even if Grant’s complaint sufficiently alleged an affirmative link between

Glanz’s failure to conduct a proper mental-health evaluation and the assault and rape,

the claim still fails because Grant failed to show that Glanz acted with deliberate

indifference to his serious medical needs. See Self v. Crum, 439 F.3d 1227, 1230

(10th Cir. 2006) (“[A] prisoner must allege acts or omissions sufficiently harmful to

evidence deliberate indifference to serious medical needs.” (internal quotation marks

                                            6
omitted)). A deliberate indifference claim is “comprised of an objective and

subjective component.” Id.

      “Under the objective inquiry, the alleged deprivation must be sufficiently

serious to constitute a deprivation of constitutional dimension.” Id. (internal

quotation marks omitted). And “under the subjective inquiry, the prison official must

have a sufficiently culpable state of mind.” Id. at 1230-31 (internal quotation marks

omitted).

              In describing the subjective component, the [Supreme] Court made
      clear a prison official cannot be liable unless the official knows of and
      disregards an excessive risk to inmate health or safety; 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.
Id. at 1231 (internal quotation marks omitted).

      We need not address the objective component because Grant’s allegations as to

the subjective component fail the plausibility test. See Martinez v. Beggs, 563 F.3d

1082, 1089-91 (10th Cir. 2009) (even though the objective component was satisfied,

subjective component was not; thus plaintiff failed to demonstrate deliberate

indifference). The district court said that Grant’s complaint “supports a plausible

inference that Glanz was aware of systemic deficiencies in medical care prior to the

assault on Grant,” and he therefore “exhibited deliberate indifference to inmates’

medical needs.” Aplt. App. at 88. To support this finding, the court noted

allegations in the complaint of several audits that reported to Glanz the presence of

“widespread problems with physical and mental health care provided to inmates,

including the failure to perform mental health screenings and . . . a prevailing attitude

                                            7
of indifference among the medical staff of the Jail.” Id. at 88-89. What is missing

from these allegations, however, is any evidence that Glanz was informed that the

shortcomings relating to mental health posed a danger to mentally ill inmates of

being assaulted by other inmates. “[T]he subjective component requires the prison

official to disregard the risk of harm claimed by the prisoner.” Martinez, 563 F.3d at

1089. For example, a jail may have a defective policy regarding admission of

intoxicated persons; but it would not be liable with respect to a suicide by such a

person unless it was shown that jail personnel “were deliberately indifferent to the

specific risk of suicide, and not merely to the risk of intoxication.” Id. Thus, in the

case before the court in Martinez, where the prisoner had suffered a heart attack and

died as a result of intoxication while in detention, “the defendants must subjectively

disregard the risk of [the victim’s] claimed harm – death and heart attack – and not

merely the risks of intoxication.” Id. at 1089–90. Here, the allegations may suffice

to show that Glanz was well aware that mental-health services at the jail were wholly

inadequate. And Grant might therefore have a deliberate-indifference claim if his

mental illness had caused him to harm himself. But the “specific risk” in this case

was the risk of attack by other inmates, and there are no allegations in the complaint

that Glanz knew of that risk.

      Finally, Grant argues for the first time on appeal that the Supreme Court’s

decision in Kingsley v. Hendrickson, --- U.S. ---, 135 S. Ct. 2466, 2473 (2015),

eliminated the subjective component of the deliberate-indifference requirement for

Fourteenth Amendment claims by pretrial detainees. We decline to review this

                                            8
argument because Grant did not raise it in district court. We exercise our discretion

to review issues not raised below “only in the most unusual circumstances[] . . . [and]

where the argument involves a pure matter of law and the proper resolution of the

issue is certain.” United States v. Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007)

(internal quotation marks omitted). Here, there are two reasons for uncertainty about

whether Grant could obtain relief under Kingsley. First, the claim in that case was an

excessive-force claim where there was no question about the intentional use of force

against the prisoner. The analysis in Kingsley may not apply to a failure to provide

adequate medical care or screening, where there is no such intentional action.

Indeed, the Court reiterated the proposition that “liability for negligently inflicted

harm is categorically beneath the threshold of constitutional due process.” 135 S.Ct.

at 2472 (internal quotation marks omitted). Second, even if we ultimately decided

that Kingsley changed the law in the way proposed by Grant, his theory (which is, at

the least, an expansion of Kingsley) would not afford him relief because it was not

clearly established law at the time of the events in question. Although it may be that

Glanz did not adequately preserve the clearly-established argument in district court,

Grant undeniably did not preserve the Kingsley argument. We would be loath to

excuse Grant’s forfeiture but not Glanz’s. Therefore, we will not address the

Kingsley issue.




                                            9
                                IV. CONCLUSION

      We reverse the district court’s denial of Glanz’s motion to dismiss on the

grounds of qualified immunity and remand to the district court for further

proceedings consistent with this order and judgment.



                                           Entered for the Court


                                           Harris L Hartz
                                           Circuit Judge




                                         10
No. 18-5038, Crocker v. Glanz

HOLMES, Circuit Judge, concurring.

       I concur in the judgment and join in the lion’s share of the analysis of the

majority’s well-written and thoughtful order and judgment. I decline, however, to join

the majority’s recitation of two ostensible reasons “for uncertainty” about whether Mr.

Grant may secure relief under the Supreme Court’s decision in Kingsley v. Hendrickson,

--- U.S. ----, 135 S. Ct. 2466 (2015). As the majority correctly observes, Mr. Grant

presents his Kingsley-based argument for the first time on appeal and that argument is

therefore forfeited. At least under the unremarkable circumstances here, the appropriate

course is for us to decline to consider that argument on the merits and go no further. See,

e.g., Havens v. Colo. Dep’t of Corr., 897 F.3d 1250, 1261 (10th Cir. 2018). Instead, the

majority offers observations regarding the reasons “for uncertainty” concerning whether

Mr. Grant could prevail on his Kingsley-based argument. Such observations are purely

dicta. I respectfully decline to join my esteemed colleagues in this unnecessary analysis.

For these reasons, I write separately.
