                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 28, 2009
                      UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                               FOR THE TENTH CIRCUIT              Clerk of Court



    GREGORY THOMAS FARHAT,

                 Plaintiff-Appellee,

    v.                                                 No. 08-6159
                                                (D.C. No. 5:06-CV-00468-R)
    RAY YOUNG, in his individual                       (W.D. Okla.)
    capacity and as Sheriff’s Deputy of
    Stephens County, in his official
    capacity,

                 Defendant-Appellant,

          and

    STEPHENS COUNTY BOARD OF
    COUNTY COMMISSIONERS,
    a municipal corporation; JIMMIE
    BRUNER, in his individual capacity
    and as Sheriff of Stephens County, in
    his official capacity; PATRICK
    NORTON, JEFF POLLOCK, and
    ROBERT LYNN, in their individual
    capacities and as Police Officers of the
    City of Duncan, in their official
    capacities,

                 Defendants.


                               ORDER AND JUDGMENT *

*
       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
                                                                       (continued...)
Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



      Defendant Ray Young brings this interlocutory appeal from the district

court’s order denying his motion for summary judgment as to qualified immunity

and punitive damages. Because we lack jurisdiction under the collateral order

doctrine, we dismiss the appeal.

      On August 26, 2004, plaintiff Gregory Thomas Farhat was arrested for

disturbing the peace by public intoxication, apparently due to methamphetamine

and marijuana use. He was booked that afternoon into the Stephens County,

Oklahoma, jail, where Mr. Young worked as a detention officer. Mr. Farhat was

placed in an isolation cell, which lacked running water. Two days later, at noon

on August 28, he was found collapsed on the concrete floor with his neck and lips

swollen. He was taken by ambulance to a hospital where he presented with sores

on his face, a swollen face and lips, pneumothoraces with subcutaneous

emphysema, suspected esophageal perforation, disorientation, sepsis cultured as

Streptococcus (infection to the bloodstream), pressure sores on his buttocks,

severe dehydration, rhabdomyolysis, renal failure, cognitive deficit (organic or


*
 (...continued)
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.

                                         -2-
traumatic brain injury), and multiple organ failure syndrome. He spent part of his

hospitalization in a coma and was released in late November 2004. His medical

bills exceeded $507,000.

      In this action, Mr. Farhat asserted a number of claims against Mr. Young

and other defendants, including a claim under 42 U.S.C. § 1983 alleging

deliberate indifference to his medical needs in violation of the Eighth

Amendment. He sought actual, compensatory, and punitive damages.

      Mr. Young moved for summary judgment on all claims against him, but

only the district court’s denial of qualified immunity on his § 1983 claim and the

court’s refusal to dismiss Mr. Farhat’s request for punitive damages are at issue in

this appeal. We first address the denial of qualified immunity.

      “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quotation

omitted). The district court denied Mr. Young qualified immunity because it

concluded that there remain disputed, genuine issues of fact regarding whether he

was aware of a substantial risk of serious harm to Mr. Farhat and nevertheless

refused to assist him, as Mr. Farhat is required to show in order to prevail on his

Eighth Amendment claim of deliberate indifference. See Farmer v. Brennan,




                                          -3-
511 U.S. 825, 837 (1994). The court detailed the parties’ respective versions of

the facts, and we do the same.

      According to Mr. Young’s deposition testimony, he only had contact with

Mr. Farhat during his 4 p.m.-to-midnight shift on August 27. Mr. Young said he

performed a number of sight checks on Mr. Farhat and noted that he had about a

quart of water available. Mr. Young asked Mr. Farhat multiple times whether he

wanted fresh water. Mr. Farhat never responded coherently, but Mr. Young gave

him some fresh water anyway. Mr. Young further stated that there were no visual

signs that Mr. Farhat was in distress and that he did not feel Mr. Farhat needed

medical attention; in his opinion, Mr. Farhat was still intoxicated or coming down

off drug use, as evidenced by his incoherency, vacant stares, pacing, and lying on

the concrete floor of his cell. Mr. Young also testified that Mr. Farhat never

asked him for water and that he never heard Mr. Farhat saying that he was hot or

burning up. Mr. Young’s final sight check indicated that Mr. Farhat was doing all

right, and he contends that Mr. Farhat’s condition suddenly changed near the time

he was found collapsed.

      Mr. Farhat, on the other hand, stated at his deposition that he has limited

memory of what happened, but he recalled being ignored when he yelled for food

and water shortly after being placed in his cell. He also recalled receiving one

glass of water, taking a drink, passing out, and waking up in the hospital. He

believed he had been given bleach to drink. He had no memory of any other

                                         -4-
events or of Mr. Young. However, another inmate housed at the jail during

Mr. Farhat’s stay, Jason Free, stated in a sworn affidavit that he heard Mr. Farhat

“begging for water” and “complaining that he was burning up and that his throat

was closing up.” Aplt. App., Vol. II at 528-29, ¶¶ 11-12. Mr. Free also stated

that he “witnessed [Mr.] Young refuse to give water to [Mr.] Farhat” and

“witnessed that [Mr.] Young never returned to check on [Mr.] Farhat after

denying him water.” Id. at 529, ¶ 13-14. The district court relied on conflicts

between Mr. Free’s affidavit and Mr. Young’s testimony in reaching the

conclusion that genuine, disputed fact issues existed as to whether Mr. Young was

aware of a substantial risk of serious harm to Mr. Farhat but nevertheless refused

to assist him. Accordingly, the court denied Mr. Young’s motion for summary

judgment on his qualified immunity defense.

      Our jurisdiction over this interlocutory appeal turns on application of the

collateral order doctrine, which provides that “a district court’s denial of a claim

of qualified immunity, to the extent that it turns on an issue of law, is an

appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291

notwithstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S.

511, 530 (1985). Under the doctrine, “summary judgment determinations are

appealable when they resolve a dispute concerning an abstract issue of

law—typically, the issue whether the federal right allegedly infringed was clearly

established[.]” Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (quotation,

                                          -5-
citation, and alteration omitted). But “a defendant, entitled to invoke a qualified

immunity defense, may not appeal a district court’s summary judgment order

insofar as that order determines whether or not the pretrial record sets forth a

‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319-20 (1995).

Thus, “we are not at liberty to 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.”

Fogarty v. Gallegos, 523 F.3d 1147, 1154 (10th Cir. 2008); see also Behrens,

516 U.S. at 313 (“[I]f what is at issue in the sufficiency determination is nothing

more than whether the evidence could support a finding that particular conduct

occurred, the question decided is not truly ‘separable’ from the plaintiff’s claim,

and hence there is no ‘final decision’” appealable under the collateral order

doctrine.). Nevertheless, “if a defendant’s appeal of the denial of a motion for

summary judgment is based on the argument that, even under the plaintiff’s

version of the facts, the defendant did not violate clearly established law, then the

district court’s summary judgment ruling is immediately appealable.” Johnson v.

Martin, 195 F.3d 1208, 1214 (10th Cir. 1999).

      Mr. Young contends that he is entitled to qualified immunity even under

the facts as alleged by, and viewed in the light most favorable to, Mr. Farhat. But

he has not relied solely on Mr. Farhat’s version of the facts. Instead he relies on

evidence supporting his version of events, in particular his testimony that

                                          -6-
Mr. Farhat had water and did not respond when asked if he wanted more water or

fresh water. See Aplt. Br. at 19. Taking these factual assertions into

consideration, as well as Mr. Free’s affidavit, he asks us to review whether the

evidence is sufficient to support the conclusion that he was deliberately

indifferent to a substantial risk to Mr. Farhat’s health. See, e.g., id. at 17 (“The

affidavit of Jason Free simply does not present facts to support the conclusion

that Ray Young was deliberately indifferent to a known and obvious risk of

serious harm.”); id. at 19 (“Jason Free’s affidavit does not controvert in any way

Ray Young’s testimony that he observed [Mr.] Farhat with water in his

possession.”). Mr. Young’s attempt to backtrack from these arguments is

unavailing. See Reply Br. at 16. Clearly the challenge here is to the district

court’s determination that there is a disputed fact issue concerning Mr. Young’s

subjective knowledge and related conduct. That is the sort of unreviewable

determination that falls outside the scope of the collateral order doctrine. See

Behrens, 516 U.S. at 313; Fogarty, 523 F.3d at 1154. Notably, Mr. Farhat’s

theory of liability is not limited to Mr. Young’s alleged failure to provide water,

but encompasses whether Mr. Young’s alleged deliberate indifference resulted in

a delay in providing medical care that exacerbated the harm to Mr. Farhat’s

health. Thus, even if, as Mr. Young argues, the undisputed evidence shows that

other jailers working shifts after Mr. Young’s gave Mr. Farhat water and observed




                                          -7-
no signs of distress other than continued intoxication, it does not alter our

jurisdictional conclusion.

      Mr. Young also argues that under the second prong of the qualified

immunity analysis, a reasonable person in his position would not understand that

he was violating Mr. Farhat’s clearly established constitutional rights by failing to

provide him water when he already had some and by failing to send him to the

hospital when “[Mr.] Farhat was conscious, ambulatory, showing an outwardly

improving physical condition, and demonstrating behaviors and symptoms that

were consistent with a person still under the influence of a recent meth binge.”

Aplt. Br. at 21. This argument is grounded in disputed facts, so we lack

jurisdiction to consider it under the collateral order doctrine. 1

      Finally, Mr. Young contends that the district court erred in denying

summary judgment regarding punitive damages. The court’s denial of summary

judgment on this issue does not fall within the collateral order doctrine, so we

lack jurisdiction to review it. See Osage Tribal Council ex rel. Osage Tribe of

Indians v. U.S. Dep’t of Labor, 187 F.3d 1174, 1180 (10th Cir. 1999) (concluding

that ruling on punitive damages was not a final order under the collateral order

1
       Mr. Farhat has asked us to review the district court’s disregard of the
affidavits of two of his witnesses, but only if we were to conclude that the court
erred in denying Mr. Young qualified immunity. Because we have determined the
qualified immunity issue in Mr. Farhat’s favor, we do not address the court’s
disregard of the affidavits, which, incidently, occurred in a separate order
granting another defendant’s motion for summary judgment. Mr. Farhat
dismissed his appeal of that decision.

                                           -8-
doctrine despite the fact that another part of the same order, the denial of tribal

immunity, was reviewable).

      For the reasons stated above, this appeal is DISMISSED for lack of

jurisdiction.

                                                      Entered for the Court



                                                      Wade Brorby
                                                      Senior Circuit Judge




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