                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 23 2001
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    CHARLOTTE VAN CUREN, as
    Personal Representative of the Estate
    of Coy Don Britton, Deceased,

                 Plaintiff-Appellant,                   No. 00-6136
                                                  (D.C. No. 99-CV-288-C)
    v.                                                  (W.D. Okla.)

    MCCLAIN COUNTY BOARD OF
    COUNTY COMMISSIONERS;
    DEWAYNE ANDERSON,
    individually and in his official
    capacity of Sheriff of McClain
    County; DON HEWETT, individually
    and in his official capacity of Sheriff
    of McClain County,

                 Defendants-Appellees.


                              ORDER AND JUDGMENT        *




Before EBEL , KELLY , and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      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.

      Plaintiff Charlotte Van Curen brought this civil rights action in the district

court on behalf of the estate of her son, Coy Don Britton, who died on June 25,

1996, while a pretrial detainee at the McClain County Jail. Ms. Van Curen sued

the McClain County Board of County Commissioners, along with DeWayne

Anderson and Don Hewett, the former and current sheriffs of McClain County,

alleging that her son’s jailers had failed to provide him with proper medical care

for alcohol withdrawal. After the district court granted defendants’ motion for

summary judgment and entered judgment, Ms. Van Curen appealed. We exercise

jurisdiction under 28 U.S.C. § 1291 and affirm.


                                 BACKGROUND

      Mr. Britton, a chronic alcoholic, was arrested on June 20, 1996, by police

officers in Blanchard, Oklahoma, on charges of driving with a suspended license

and without insurance verification. On June 23, he broke into the ceiling of his

cell in the Blanchard jail and refused to come down. He was removed from the

ceiling, restrained, transported to the McClain County Jail (“the jail”), and

charged with attempted escape. During the booking process, Mr. Britton stated

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that he was an alcoholic and sheriff’s employees Heather Williams and Tony

Johnson noted that he was paranoid and agitated. Williams, who realized that

Mr. Britton showed symptoms of alcohol withdrawal, instructed the employees on

her shift to check on him regularly. Mr. Britton was then placed in a padded cell

next to the dispatcher/booking office so that he could receive special surveillance.

      In person and on the telephone, Ms. Van Curen advised jailers of her son’s

alcoholism and expressed her concerns for his health during detoxification. For

the next thirty-six hours, Mr. Britton continued to exhibit abnormal behavior. At

his arraignment, he was withdrawn and almost incoherent. In the jail, he was

disoriented and hallucinatory. The jail log shows that jailers generally, but not

always, checked on him every twenty to thirty minutes. At 5:30 a.m. on June 25,

Mr. Britton was observed with his jumpsuit “on his head like a hat.” Appellant’s

App. at 237. When the jailer told him “to put his jumpsuit back on,” Mr. Britton

complied. Id.

      No further “sight checks were made until . . . 7:02 a.m.”    Id. at 234. At that

time, Mr. Britton was found dead in his cell. The medical examiner determined

the probable cause of death to be “COMPLICATIONS OF ALCOHOLISM

(PROBABLE DELIRIUM TREMENS).”               Id. at 312. Delirium tremens is a

condition caused by abrupt alcohol withdrawal and is “easily treatable medically.”

Shahid v. City of Detroit , 889 F.2d 1543, 1545 (6th Cir. 1989).


                                           -3-
                                       DISCUSSION

       The circumstances of Mr. Briton’s death are tragic. In our review of the

district court’s ruling, however, we must focus on plaintiff’s legal burden of

proof, in relation to the named defendants in the case. We review de novo the

district court's grant of summary judgment, applying the same standard as the

district court under Fed. R. Civ. P. 56(c).          See Simms v. Oklahoma ex rel. Dep’t

of Mental Health & Substance Abuse Servs.            , 165 F.3d 1321, 1326 (10th Cir.),

cert. denied , 120 S. Ct. 53 (1999). Summary judgment is appropriate where no

genuine issues of material fact exist and the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c). When reviewing a grant of summary

judgment, we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party.           Simms , 165 F.3d at 1326.

       Pretrial detainees are protected under the Fourteenth Amendment’s Due

Process Clause rather than under the Eighth Amendment’s proscription against

cruel and unusual punishment.      See Lopez v. LeMaster , 172 F.3d 756, 759 n.2

(10th Cir.1999). Under the due process clause, detainees are “entitled to the same

degree of protection regarding medical attention as that afforded convicted

inmates under the Eighth Amendment.”            Barrie v. Grand County, Utah   , 119 F.3d

862, 867 (10th Cir. 1997) (quotation omitted). Liability is not based on

negligence or even gross negligence.          Id. at 869. Rather, a plaintiff must show


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that jailers exhibited deliberate indifference to the detainee’s known and serious

medical needs.    Id. at 867.

       In this case, Ms. Van Curen seeks to hold the Board of County

Commissioners, Sheriff Anderson, individually and in his official capacity; and

former Sheriff Hewett, individually and in his official capacity, liable for the

jailers’ failure to seek medical care for Mr. Britton. Ms. Van Curen does not

claim that the defendants themselves were directly involved in Mr. Britton’s

treatment. Instead, she asserts that they were responsible for inadequate

supervision and training of jail personnel, rising to the level of a policy of

indifference.

       A suit against government officers in their official capacities is actually a

suit against the governmental entity that employs the officers.   See Kentucky v.

Graham , 473 U.S. 159, 165 (1985). An entity may not be held liable in a civil

rights suit “simply because it employs a person who violated a plaintiff’s

federally protected rights.”    Jenkins v. Wood , 81 F.3d 988, 993 (10th Cir.1996).

       To establish liability of the Board of County Commissioners and the

sheriffs in their official capacities, Ms. Van Curen’s burden is to show a genuine

issue of material fact relating to:

       (1) the existence of a [governmental] custom or policy and (2) a
       direct causal link between the custom or policy and the violation
       alleged. If the plaintiff asserts the alleged custom or policy
       comprised a failure to act, he or she must demonstrate the [entity’s]

                                            -5-
       inaction resulted from deliberate indifference to the rights of the
       plaintiff. [For instance,] if the inaction theory rests on an alleged
       failure to train, the plaintiff must prove the need for more or
       different training is so obvious, and the inadequacy so likely to result
       in the violation of constitutional rights, that the policymakers . . . can
       reasonably be said to have been deliberately indifferent to the need
       for additional training.

Id. at 993-94 (citations and quotations omitted). The need for more supervision

must also be obvious and likely to result in a constitutional violation.   See Brown

v. Gray , 227 F.3d 1278, 1291-92 (10th Cir. 2000).

       Because a single incident forms the basis of Ms. Van Curen’s claim, she

“‘must show that the particular illegal course of action was taken pursuant to a

decision made by a person with authority to make policy decisions on behalf of

the entity being sued.’”   Hollingsworth v. Hill , 110 F.3d 733, 743 (10th Cir. 1997)

(quoting Jenkins , 81 F.3d at 994 (additional citation omitted)).

       Here, the district court evaluated the parties’ submissions on summary

judgment and determined that Ms. Van Curen had failed to come forward with

evidence supporting her claim that Mr. Britton’s death was caused by an

unconstitutional policy or lack of supervision and training. The McClain County

Jail’s policy and procedure manual provides for twenty-four hour a day

emergency medical services.      See Appellant’s App. at 268-69. It also sets out

procedures specific to the handling of inmates undergoing alcohol detoxification.

See id. at 279. The manual is distributed to jailers with orders to read, memorize,


                                             -6-
and keep them in their possession.      See id. at 77-78. In addition, jailers receive

training to obtain yearly certification as required by the State of Oklahoma. The

jail officers’ training manual contains extensive information and instruction on

alcohol withdrawal syndromes.        See id. at 285-91.

       In sum, the record shows that the McClain County Jail had procedures to

protect the health of inmates and there is no evidence that the jailers received

constitutionally insufficient training and supervision on these procedures.     1
                                                                                    After

a de novo review of the record and the applicable law, we agree with the district

court’s disposition of Ms. Van Curen’s claims against the Board of County

Commissioners and the sheriffs in their official capacities.     2




1
       We also note that, under Oklahoma law, the Board of County
Commissioners “has no statutory duty to hire, train, supervise, or discipline
county sheriffs or their deputies.”    Meade v. Grubbs , 841 F.2d 1512, 1528 (10th
Cir. 1988). Unless the Board voluntarily undertook supervisory responsibility for
county law enforcement officers, which is not shown, it was “not ‘affirmatively
linked’” with the alleged violation and cannot be held liable.   Id.

2
       In reaching this determination, we reject plaintiff’s argument that we
should simply follow the conclusions of the Fifth and Eleventh Circuits in two
cases concerning liability for injuries resulting from inmates’ alcohol withdrawal.
Those cases, however, are easily distinguishable. In   Lancaster v. Monroe County,
Alabama , 116 F.3d 1419, 1427 (11th Cir. 1997), the plaintiff came forward with
evidence that “each of the individual defendants,” including the sheriff, were
aware that the inmate had “urgent medical needs.” Similarly, in    Fielder v.
Bosshard , 590 F.2d 105, 108 (5th Cir. 1979), the defendant jailer explicitly told
the defendant sheriff that the inmate was suffering from delirium tremens.
Additionally, the court observed that defendants had made “off-hand, callous
comments” which “belie the theory that they merely misdiagnosed a prisoner’s
                                                                       (continued...)

                                             -7-
        Concerning Ms. Van Curen’s claims against the sheriffs in their individual

capacities, she must show that they were “aware of and disregarded an excessive

risk to inmate health or safety by failing to take reasonable measures to abate the

risk.” Lopez , 172 F.3d at 761. As explained above, Ms. Van Curen came forward

with no such evidence against either Anderson, who was the sheriff during

Britton’s incarceration, or Hewett, who was not even in office at the relevant

time.

        Because we conclude that Ms. Van Curen has failed to raise a genuine issue

of material fact as to whether the named defendants were liable for deliberate

indifference to Mr. Briton’s medical needs, the judgment of the district court is

AFFIRMED.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




2
 (...continued)
sickness.” Id. In this case, none of the defendants was aware of Mr. Britton’s
condition and, furthermore, there were no objectionable remarks made.

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