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

                           FOR THE TENTH CIRCUIT                       October 28, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
IRVING J. MARQUEZ,

             Plaintiff-Appellee,

v.                                                        No. 12-2209
                                              (D.C. No. 1:11-CV-00838-JAP-WDS)
BOARD OF COUNTY                                            (D. N.M.)
COMMISSIONERS OF EDDY
COUNTY; VICTOR E. MARTINEZ,
JR.; DARREN JONES; RUTH ANN
WALKER; SAL REY SALCIDO;
DANETTE MARTINEZ,

             Defendants-Appellants.


                            ORDER AND JUDGMENT*


Before KELLY, TYMKOVICH, and PHILLIPS, Circuit Judges.


      The Board of County Commissioners, et al. (“Defendants”),1 appeal the district

court’s denial of their motion for partial summary judgment based on qualified


*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
       Only individuals are entitled to qualified immunity, the basis for the motion
for partial summary judgment presented here on appeal. See Camuglia v. The City of
                                                                             (continued)
immunity related to Irving J. Marquez’s deliberate indifference claims brought under

42 U.S.C. § 1983. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

   I.      BACKGROUND

        Mr. Marquez was pulled over after Sheriff’s Deputy Victor Martinez saw

Mr. Marquez’s truck swerve and nearly collide with a tractor-trailer. While pulling

to the side of the road, Mr. Marquez twice collided with the guardrail. When he

stepped out of his truck, he staggered and was unable to keep his balance. But

despite Deputy Martinez’s suspicions, Mr. Marquez was not intoxicated—

unbeknownst to Mr. Marquez, he had contracted West Nile Virus and was now

suffering from its increasingly ill effects.

        Upon questioning by Deputy Martinez, Mr. Marquez denied he had been

drinking or using drugs, but did mention he was sick and had taken an

over-the-counter medication for his symptoms. Mr. Marquez then submitted to a

breathalyzer test, which registered zero, indicating no alcohol use. After another

officer, Deputy Darren Jones, arrived, the two officers searched the car and

Mr. Marquez’s person for evidence that he had been using drugs, but found nothing.

By that point Mr. Marquez was unable to stand without losing his balance and had

trouble focusing on the officers’ questions. He was also sweating profusely.



Albuquerque, 448 F.3d 1214, 1223 (10th Cir. 2006). Thus, although the Board of
County Commissioners is named as an appellant, only the individuals’ appeals are
before us.


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      The officers decided to administer a field sobriety test, which Mr. Marquez

promptly failed on account of losing his balance and not being able to follow finger

movements. Deputy Martinez decided to arrest Mr. Marquez for driving under the

influence, reasoning that he had never seen a sober person fail a field sobriety test.

Though they had ruled out alcohol to explain the way he was acting, the officers

discussed the possibility that Mr. Marquez had been smoking methamphetamine.

They also discussed the possibility he had a medical condition, asking him if he had

high blood pressure or diabetes, but Mr. Marquez denied having any medical

conditions.

      Mr. Marquez was handcuffed, placed in the squad car, and told he would have

to submit to a blood test. On the way to the medical center for blood testing, Deputy

Jones had to hold onto Mr. Marquez to prevent him from falling over. When they

arrived at the medical center, a medical technician drew Mr. Marquez’s blood (later

revealed to be negative for drugs and alcohol). But despite being at a hospital and

observing Mr. Marquez’s worsening condition, the officers did not have him

medically evaluated.

      The officers took Mr. Marquez to the sheriff’s department to file paperwork,

where Mr. Marquez’s condition continued to deteriorate. He was unable to stand

without assistance. The officers then took Mr. Marquez to a detention center, where

Deputies Martinez and Jones told the intake officers that Mr. Marquez was under the




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influence of some drug. An intake officer noticed Mr. Marquez’s condition and

called for medical attention.

      A nurse, Ruth Ann Walker, was thus brought in and observed Mr. Marquez’s

inability to stand, balance, focus, or speak intelligibly. Deputy Martinez told

Ms. Walker that Mr. Marquez was coming down from a drug high. She did not take

his vital signs. Instead, she instructed the intake officers to accept Mr. Marquez into

custody and to call her if his condition worsened. Although he had not been

medically screened, as detention center policy required in such circumstances, the

officers booked Mr. Marquez into custody. By that point he was unable to walk,

stand, answer questions, dress himself, sign paperwork, or even take a booking photo

without assistance.

      After two-and-a-half hours of observing Mr. Marquez’s deteriorating

condition, the intake officers called Ms. Walker and this time she took

Mr. Marquez’s vital signs. She discovered he was running a 104 degree fever and

she immediately had him transported to a hospital, where he was eventually treated

for West Nile Virus. However, as a result of the brain swelling caused by the delay

in treating his fever, Mr. Marquez suffered permanent, life-altering injuries.

      Mr. Marquez filed suit under § 1983 alleging that the Defendants deprived him

of his Fourteenth Amendment due process rights when, as a pretrial detainee in the

Defendants’ custody, they were allegedly deliberately indifferent to his serious

medical needs. He also brought a number of state-law claims. Following discovery,


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the Defendants moved for summary judgment on the § 1983 claims arguing they

were protected by qualified immunity.

         The district court denied summary judgment, finding that qualified immunity

was unavailable because Mr. Marquez presented evidence the Defendants recklessly

disregarded his obvious symptoms. The court concluded that given all the overt

signs that Mr. Marquez had a serious medical problem, a jury could reasonably

conclude that the Defendants were aware of but indifferent to a serious medical risk.

The Defendants now appeal.

   II.      DISCUSSION

         We review the district court’s denial of summary judgment for qualified

immunity de novo. Fancher v. Barrientos, 723 F.3d 1191, 1199 (10th Cir. 2013).

When a defendant asserts qualified immunity at the summary judgment stage, the

plaintiff owns the burden of showing that the defendant violated a constitutional right

that was clearly established at the time of the alleged violation. Becker v. Bateman,

709 F.3d 1019, 1022 (10th Cir. 2013).

         It has long been established that the Fourteenth Amendment prohibits officials

from failing to provide medical care to a pretrial detainee with a serious medical need

of which they are aware. Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir.

1985). Thus, when a plaintiff brings such a “deliberate indifference” claim, he must

demonstrate that (1) the deprivation was objectively sufficiently serious and (2) the

defendants disregarded a known or obvious risk to the plaintiff’s serious medical


                                           -5-
needs. See Farmer v. Brennan, 511 U.S. 825, 834, 842 (1994). Mere negligence is

not enough. Id. at 835.

       Here, the Defendants do not dispute the first prong, that the alleged

deprivation was serious. The Defendants instead argue that under the second prong,

they were not aware that Mr. Marquez was suffering a serious medical condition. As

such, they assert that they could not have been deliberately indifferent.

       Before turning to the merits of the Defendants’ appeal, however, we must first

address the extent of our jurisdiction. When a district court denies qualified

immunity to public officials, the decision “is immediately appealable under the

collateral order doctrine to the extent it involves abstract issues of law,” including the

determination that the law the defendant allegedly violated was clearly established at

the time of the alleged violation. Fancher, 723 F.3d at 1198. However, we lack

jurisdiction to review the 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 v. Gallegos, 523 F.3d

1147, 1154 (10th Cir. 2008).

       Most of the Defendants’ arguments on appeal dispute the district court’s

interpretation of the facts. For example, the Defendants contend that the officers’

conduct shown on the dash camera footage—including a discussion of a possible

medical condition—demonstrates both their good faith and confusion about the

source of Mr. Marquez’s conduct. It does not, they assert, demonstrate their


                                           -6-
awareness of a potential serious medical problem, as the district court found such

evidence reasonably suggests. The Defendants also argue that the district court did

not give proper weight to the officers’ attempts to identify the source of

Mr. Marquez’s behavior as evidence they were unaware of Mr. Marquez’s medical

risk. They further claim the court misinterpreted evidence showing that the officers

were not fully convinced Mr. Marquez was under the influence of alcohol or drugs.

But these are all precisely the sort of factual disputes, not legal issues, that we are

precluded from reviewing at this stage. See Clanton v. Cooper, 129 F.3d 1147, 1153

(10th Cir. 1997) (“[W]e must scrupulously avoid second-guessing the district court’s

determinations regarding whether [the plaintiff] has presented evidence sufficient to

survive summary judgment”). We thus lack jurisdiction to consider these arguments.

       To the extent the Defendants assert the district court’s version of the facts are

wholly unsupported by the record, such review is within our limited jurisdiction.

See Lewis v. Tripp, 604 F.3d 1221, 1225 (10th Cir. 2010) (“[W]hen 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 review of which

facts a reasonable jury could accept as true.” (internal quotation marks omitted)).

However, we are not convinced the district court erred, for the record amply supports

the court’s version of the facts. The Defendants claim that because it is undisputed

that Mr. Marquez did not request medical attention, that he was immediately

transported to a hospital once his fever was discovered, and that his symptoms were


                                           -7-
similar to those of an intoxicated person, their conduct cannot amount to deliberate

indifference. But such a conclusion is contradicted by other evidence in the record.

In light of Mr. Marquez’s unmistakable physical and mental deterioration, the lack of

any indication that drugs or alcohol were the cause, and the failure of the Defendants

to act despite numerous opportunities to seek medical attention (violating detention

center policies in doing so), a jury could reasonably conclude that they were

deliberately indifferent to Mr. Marquez’s serious medical risk.

       Lastly, the Defendants argue that the district court improperly applied a

narrow legal standard that was not “clearly established.” Aplt. Brief-in-Chief at 25.

The Defendants specifically contend that the district court applied a faulty standard

in which the Defendants’ failure to understand that Mr. Marquez needed medical

treatment could still amount to deliberate indifference. But the Defendants

incorrectly assume the truth of their premise that the Defendants did not understand

Mr. Marquez’s risk of harm. The question the district court decided was not whether

their failure to identify Mr. Marquez’s serious risk of harm amounted to deliberate

indifference but rather, in light of the evidence, whether a jury could reasonably

conclude the Defendants did understand the serious risk. The former is a fictitious

legal question that the district court did not ask. The latter is a factual question that

the district court answered affirmatively with record support.




                                           -8-
The judgment of the district court is therefore affirmed.


                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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