                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      June 13, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    GU Y FRA NK LIN R AN DA LL,

             Plaintiff-Appellant,

     v.                                                 No. 05-6188
                                                  (D.C. No. CIV-03-727-F)
    BO AR D O F COU NTY                                 (W .D. Okla.)
    C OM M ISSIO N ER S, STEV EN S
    CO UNTY , OKLA HOM A; SHERIFF
    JIM M IE BRU NER; SHERIFF
    RONALD HUNTER; CURTIS
    W A Y N E TU RN ER , R ON
    BR ANTLEY, M IKE JONES, JOSH
    SEELY , Jailers; R OG ER MA LLORY,
    LARRY OYSTER, Jail
    Administrators; W ILLIAM L.
    CORPO RON, M .D., in their individual
    and official capacities,

             Defendants-Appellees.


                            OR D ER AND JUDGM ENT *




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
Before TYM KOV IC H, M cKA Y, and BALDOCK , Circuit Judges.




      In this civil rights action brought pursuant to 42 U.S.C. § 1983, Guy

Franklin Randall, a state prisoner appearing pro se, appeals the order entered by

the district court granting summary judgment in favor of the defendants.

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

      Randall was incarcerated as a pretrial detainee in the county jail in

Stephens County, Oklahoma from July 20, 2000 until M ay 30, 2001. On M ay 27,

2003, Randall filed his initial civil rights complaint in the district court. On

M ay 13, 2004, Randall filed his first amended complaint. In his amended

complaint, Randall alleged that defendants violated his Fourteenth Amendment

due process rights while he was incarcerated at the Stephens County Jail by

failing to provide him with adequate medical care. As summarized by the

magistrate judge in her supplemental report and recommendation to the district

court, Randall specifically alleged the following:

      For more than thirty years, Plaintiff has been dependent on insulin
      because of Type I diabetes. Plaintiff states that when he entered the
      Stephens County Jail, he was also experiencing “the early stages of
      renal failure with hypertension.” He states that he was never seen by
      a physician in the jail, but he acknowledges that he was taken once or
      twice to the emergency room at Duncan Regional Hospital and that
      he was taken once to the office of [defendant Corporon,] a private
      physician. Additionally, Plaintiff states that jail personnel called for
      emergency care from the fire department or ambulance services more
      than twelve times while he was incarcerated in the jail. . . .



                                         -2-
             Plaintiff states that he gained nearly fifty pounds in water
      weight while he w as incarcerated in the Stephens County Jail because
      [defendant Corporon] discontinued a prescribed diuretic. Plaintiff
      further states that . . . [defendant Corporon] changed his prescription
      for insulin and that this change resulted in numerous bouts of
      hypoglycemia. Plaintiff contends that his blood glucose was not
      properly monitored and that he was not provided with a proper
      diabetic diet. According to Plaintiff, he experienced numerous skin
      infections and lesions, which he attributes to “unhygienic” conditions
      in the jail, the lack of proper medical care, the lack of an initial
      screening procedure, the lack of a sick call procedure, and the lack of
      a physician on staff. Plaintiff states that he developed end stage
      renal failure, gross hypertension, severe diabetes and chronic
      infections w hile he w as incarcerated in the Stephens County Jail. He
      attributes these maladies to his need for chronic care which he claims
      he did not receive. . . . Plaintiff states that he broke his great toe
      during an insulin reaction and that this injury was never treated by a
      doctor. . . .

            Additionally, Plaintiff challenges as unconstitutional the lack
      of mental health care available while he was incarcerated in the
      Stephens County Jail.

R., Doc. 187 at 2-4.

      The magistrate judge recommended that summary judgment should be

entered in favor of each of the defendants in this case, concluding that:

(1) Randall’s claims against defendants Corporon, Hunter, M allory, Turner,

Jones, Oyster, Seely, Brantley, and the B oard of County Commissioners w ere

barred by the applicable two-year statute of limitations, id. at 5-19; and

(2) Randall failed to “support[] his claims against . . . Defendant [Bruner] w ith

sufficient evidence to create a genuine issue of material fact as to whether

Defendant Bruner failed to properly train or supervise the jail staff,” id. at 20.



                                          -3-
The district court adopted the magistrate judge’s recommendation “in its

entirety,” id., Doc. 189 at 2, and the court therefore granted summary judgment

“to each of the defendants in this action for the reasons set out in the

Supplemental Report and Recommendation,” id.

      In this appeal, Randall has not challenged the district court’s statute of

limitations rulings. In fact, Randall does not make a single reference to the

rulings in his appellate brief. As a result, Randall has waived his right to appeal

the district court’s entry of summary judgment in favor of defendants Corporon,

Hunter, M allory, Turner, Jones, Oyster, Seely, Brantley, and the Board of County

Commissioners, and we do not need to address the statute of limitations rulings.

See Lifewise M aster Funding v. Telebank, 374 F.3d 917, 927 n.10 (10th Cir.

2004) (holding that appellant waived its right to appeal the rulings of the district

court that it did not substantively address in its opening brief); Adler v. Wal-M art

Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed

in the opening brief are waived.”); see also Garrett v. Selby Connor M addux &

Janer, 425 F.3d 836, 840 (10th Cir. 2005) (stating that “[t]his court has

repeatedly insisted that pro se parties follow the same rules of procedure that

govern other litigants,” and that “the court cannot take on the responsibility of

serving as the litigant’s attorney in constructing arguments and searching the

record”) (quotation omitted).




                                          -4-
      W ith regard to defendant Bruner, we review the district court’s grant of

summary judgment de novo, and affirm only if the record, considered in the light

most favorable to Randall, demonstrates that there is no genuine issue of material

fact and that defendant Bruner is entitled to judgment as a matter of law. See

Jones v. Denver Pub. Sch., 427 F.3d 1315, 1318 (10th Cir. 2005); Fed. R. Civ. P.

56(c). Having conducted the required de novo review, we agree with the district

court that defendant Bruner was entitled to summary judgment.

      As explained by the magistrate judge, defendant Bruner was elected Sheriff

of Stephens County during the time Randall was incarcerated in the Stephens

County Jail, and “[s]he assumed the duties of Sheriff on January 2, 2001.” R.,

Doc. 187 at 20. According to Randall’s amended complaint, defendant Bruner

was thereafter “the final decision maker for the Stephens County Sheriff’s Office

and Jail,” and Randall claims that defendant Bruner subsequently “failed to

adequately train or supervise those individuals who operated the jail and were

responsible in providing the plaintiff’s medical care.” Id., Doc. 57 at 15 (original

in bold and all upper case letters).

      As an initial matter, we note that Randall’s inadequate medical attention

claim is based directly on the Fourteenth Amendment’s due process clause, and

not on the Eighth Amendment’s prohibition against cruel and unusual punishment

(as applied to the states through the Fourteenth A mendment’s due process clause).

As this court has previously recognized, however, the analysis is the same.

                                         -5-
             Under the Fourteenth Amendment’s due process clause,
      pretrial detainees . . . are entitled to the same degree of protection
      regarding medical attention as that afforded convicted inmates under
      the Eighth Amendment. Thus, [a pretrial detainee’s] inadequate
      medical attention claim must be judged against the “deliberate
      indifference to serious medical needs” test of Estelle v. Gamble,
      429 U.S. 97, 104 . . . (1976).

Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992) (citation omitted).

      This is a difficult standard to meet, as “‘[d]eliberate indifference[]’ . . .

requir[es] a higher degree of fault than negligence, or even gross negligence.”

Barrie v. Grand County, Utah, 119 F.3d 862, 869 (10th Cir. 1997) (quotation

omitted); see also Estelle, 429 U.S. at 106 (“M edical malpractice does not

become a constitutional violation merely because the victim is a prisoner.”).

Specifically, as this court has articulated the standard, “an official or municipality

acts with deliberate indifference if its conduct (or adopted policy) disregards a

known or obvious risk that is very likely to result in the violation of a prisoner’s

constitutional rights.” Barrie, 119 F.3d at 869 (quotation omitted). To make this

showing, Randall must “present evidence of the prison official’s culpable state of

mind,” and this requires a showing that “the official [knew] of and disregard[ed]

an excessive risk to inmate health or safety.” M ata v. Saiz, 427 F.3d 745, 751

(10th Cir. 2005) (quotation omitted).

      In addition, because Randall is seeking to impose § 1983 liability on

defendant Bruner based on an inadequate supervision and training theory, Randall

must show both that one or more of the employees at the jail acted with deliberate

                                          -6-
indifference to his serious medical needs, and that there is “an affirmative link

between the constitutional violation and the supervisor’s own actions, or failure to

supervise.” M ee v. Ortega, 967 F.2d 423, 431 (10th Cir. 1992) (quotation

omitted). In other words, as explained by the magistrate judge, Randall “must

establish that Defendant Bruner caused or contributed to the alleged constitutional

violations,” and defendant Bruner’s “supervisory status alone is insufficient to

support § 1983 liability.” R., Doc. 187 at 20 (citing Ruark v. Solano, 928 F.2d

947, 950 (10th Cir. 1991); Grimsley v. M acKay, 93 F.3d 676, 679 (10th Cir.

1996)).

      In her supplemental report and recommendation, the magistrate judge

concluded that “Plaintiff has presented no facts to support a claim that personnel

working at the Stephens County Jail were not adequately trained or supervised,

much less that Defendant Bruner w as deliberately indifferent to the need for more

or different training or supervision.” R., Doc. 187 at 22. The magistrate judge

summarized her reasoning as follow s:

               Attached to Bruner’s Brief as Exhibit 12 is a medical log for
      Plaintiff which shows that Plaintiff’s blood glucose level was
      checked several times each day and that medication was administered
      each day. Plaintiff himself acknowledges that jail personnel called
      the local ambulance or fire department services “more than twelve
      times” for him. Amended Complaint at 12. He also states that he
      was taken to the Duncan Regional Hospital Emergency Room for
      treatment. Id. These incidents do not indicate that jail personnel
      lacked appropriate training or that they were deliberately indifferent
      to Plaintiff’s serious medical needs. Rather, the calls for emergency



                                         -7-
      medical help indicate that jail personnel were willing to procure
      medical help for Plaintiff whenever he needed it.

             Plaintiff’s conclusory allegations of “unhygienic” conditions in
      the jail are insufficient to support a claim of deliberate indifference.

Id. at 22-23.

      Because it is undisputed that the employees at the Stephens County Jail

followed defendant Corporon’s instructions regarding Randall’s insulin

medication and the need to check Randall’s blood glucose level a minimum of

tw o times each day, id., Doc. 167, Exs. 12, 13, we agree with the magistrate judge

that Randall failed to demonstrate the existence of genuine issues of material fact

to support his inadequate medical attention claim. That said, we also note that it

is undisputed that Randall was diagnosed as suffering from end-stage renal

disease and started on dialysis three times a week within days of his transfer from

the Stephens County Jail. Id., Doc. 163, Ex. C (containing progress notes and

medical records pertaining to medical treatment that Randall received in June

2001). Based on the record before this court, however, we agree with the

magistrate judge that Randall failed to put forth sufficient evidence to show

deliberate indifference to his medical needs, either in terms of a lack of training

or supervision or in terms of the medical care that he received at the jail. To the

contrary, as noted by the magistrate judge, Randall’s diabetic condition was

monitored several times a day, and he received emergency medical care when

needed.

                                          -8-
      Finally, while it is undisputed that Randall was diagnosed as suffering from

a right groin infection follow ing his transfer from the Stephens County Jail, we

agree with the magistrate judge that Randall’s allegations regarding the

“unhygienic” conditions at the jail are too conclusory to support a claim of

deliberate indifference. Likewise, Randall has failed to put forth any specific

facts to show that the employees at the jail knew of and disregarded his alleged

toe injury or his alleged need for mental health care.

      The judgment of the district court is A FFIRM ED. Randall’s motion to

proceed without prepayment of the appellate filing fee is granted. W e remind

Randall that he must continue making partial payments until the entire fee has

been paid.


                                                     Entered for the Court


                                                     M onroe G. M cKay
                                                     Circuit Judge




                                         -9-
