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

                             FOR THE TENTH CIRCUIT                            April 3, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 THE ESTATE OF JEREMY HUNTER, by
 its personal representative, Brian Hunter,

       Plaintiff - Appellant,

 v.                                                          No. 19-4086
                                                     (D.C. No. 2:16-CV-01248-TS)
 UINTAH COUNTY; KATIE SMITH;                                   (D. Utah)
 COLE ANDERTON; RICHARD
 GOWEN; CAITLYN GURR; CODY
 HARRISON; TONY JENSEN; DAREN
 KELLY; GALE ROBBINS,

       Defendants – Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, KELLY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Plaintiff-Appellant, the Estate of Jeremy Hunter (the Estate) by its personal

representative Brian Hunter, appeals from the district court’s grant of summary

judgment in favor of individual Defendants-Appellees and Uintah County. The

district court held that the Estate could not recover on its Eighth Amendment claim

for the death of Jeremy Hunter at Uintah County Jail in Vernal, Utah (the Jail). On

appeal, the Estate argues that the district court erred in relying on hearsay and


      *
         This order and judgment is not binding precedent, except under the doctrines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.
double-hearsay statements and that ample evidence exists for a jury to find that each

defendant acted with deliberate indifference. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.



                                      Background

      On December 18, 2014, Mr. Hunter was booked into the Jail, where he had

been incarcerated previously. Each time he filled out a medical questionnaire and

stated that he had high blood pressure for which he was taking medication. With the

exception of his final questionnaire, each noted that he had a heart condition and a

history of heart attacks. This time, Mr. Hunter told Deputy Cole Anderton about his

high blood pressure and medications (which he did not have with him), but that he

was not in pain and did not need immediate care. Deputy Anderton relayed this

information to the nurse on duty, Susan Smuin.1

      On his second day at the Jail, Mr. Hunter requested that Nurse Smuin take his

blood pressure. The machine and manual readings showed an elevated blood

pressure. Nurse Smuin arranged for Mr. Hunter’s blood pressure medications to be

supplied the following morning.

      Corporal Gale Robbins came on shift at 6 pm that evening. The previous shift

supervisor, Corporal Richard Gowen, told him about Mr. Hunter’s complaints. Nurse

Smuin told him that she and physician assistant (PA) Logan Clark had seen Mr.



      1
          Nurse Smuin passed after the events of this case.
                                            2
Hunter and that Mr. Hunter should be fine through the night. Mr. Hunter complained

of numbness around 7:15 pm that evening to Deputy Cody Harrison. Mr. Hunter’s

blood pressure was taken. Deputy Harrison gave Mr. Hunter ibuprofen and a

decongestant.

      Mr. Hunter’s condition fluctuated throughout the night. A few hours after he

took the ibuprofen, Mr. Hunter had serious, sharp pain and was on the floor on his

hands and knees, spitting saliva. Deputies Caitlyn Gurr, Cody Harrison, Tony

Jensen, and Daren Kelly (who are each among the Defendants-Appellees) responded.

The Estate alleges that the deputies made several uninformed medical decisions,

including trying to slow down his breathing and treat him for a panic attack or detox

from drugs. None checked Mr. Hunter’s medical file or were aware of his high blood

pressure issues. After Corporal Robbins arrived, he asked whether Mr. Hunter

wanted to move to booking to be more closely monitored. Mr. Hunter declined and

said he wanted to stay with his cellmate but move to the bottom bunk. Corporal

Robbins and the deputies made Mr. Hunter comfortable in his cell by moving the

mattress. Mr. Hunter said he was “ok and just needed to lie down.” He was told he

should alert Jail staff if his condition worsened. See 2 Aplt. Appx. 90; 92–94.

      Corporal Robbins testified that around 11:30 pm, he called Nurse Smuin

personally to discuss Mr. Hunter’s condition, including his elevated blood pressure

and anxiety. She said Mr. Hunter would have his medications the next morning, he

did not need to go to the hospital, and Corporal Robbins should watch him overnight.



                                          3
She also said that PA Clark had visited Mr. Hunter and told her there was no need to

go to the hospital and that Mr. Hunter’s heart was not the issue. 2 Aplt. Appx. 133.

       At about 2:30 am, Mr. Hunter complained of chest pain and anxiety, so

Corporal Robbins had him moved to the booking area where he could be watched

more closely. At about 3:15 am, Corporal Robbins called Nurse Kate Smith, who

was off-site. He told her of Mr. Hunter’s complaints and that his blood pressure was

normal at 111/80. See 2 Aplt. Appx. 116–17. Nurse Smith did not know about Mr.

Hunter’s medical conditions, or his previous blood pressure readings, and, as she was

not at the Jail, she did not check his file to find out. She directed Corporal Robbins

to have Mr. Hunter drink water and try to relax until her shift started at 6 am. Id. at

117.

       Corporal Robbins gave Mr. Hunter clean clothes and clean blankets. Corporal

Robbins reports that Mr. Hunter said “Man, I haven’t felt this good all night.” 4

Aplt. Appx. 499. Around 5:30 am, Mr. Hunter was standing up and Corporal

Robbins asked him how he was feeling, and he responded, “Man, better. I haven’t

felt so good for a long time. I got some sleep.” Id. at 500.

       Around 6:15 am, Mr. Hunter told Nurse Smith that he felt like he did when he

had a heart attack several years before. His blood pressure was 140/98. 2 Aplt.

Appx. 94, 3 Aplt. Appx. 238. She noted that Mr. Hunter was alert, not sweating, and

had good range of motion with his left arm. She told Mr. Hunter that she would pick

up his medication when the pharmacy opened that morning. 1 Aplt. Appx. 41–42.



                                            4
Corporal Gowen, who had come on shift that morning, was in the booking area and

observed Mr. Hunter while performing normal Jail duties. Id. at 42.

      Around 8:15 am, Mr. Hunter told Nurse Smith that he had vomited. Nurse

Smith gave him an over-the-counter medication for nausea and again took his vital

signs, which were within the normal ranges. Id. She then called Nurse Smuin, her

supervisor, who told her to keep monitoring him and get his medication. 2 Aplt.

Appx. 94.

      Around 9:15 am, Mr. Hunter’s health failed. Nurse Smith picked up Mr.

Hunter’s prescription. She visited Mr. Hunter again and she reports he was walking

around with clear speech. She immediately gave him his medication. During their

conversation, he clutched his chest and collapsed to the floor, hitting his head on the

wall as he fell. Id. at 95–96. He was transported to the hospital and declared dead at

10:00 am. Dr. Todd Grey performed an autopsy and found that Mr. Hunter’s cause

of death was pericardial tamponade due to aortic dissection. Id. at 188.

      The district court granted the defendants’ motion for summary judgment,

holding that the individual defendants “acted reasonably on the information they

knew” and the plaintiff had not identified an unconstitutional official custom or

policy of Uintah County. Estate of Hunter v. Uintah Cty., No. 2:16-CV-1248 TS,

2019 WL 2422499, at *6, 8, 10 (D. Utah June 10, 2019).




                                           5
                                          Discussion

      We review a district court’s grant of summary judgment de novo, applying the

same standard as the district court. Gross v. Hale-Halsell Co., 554 F.3d 870, 875

(10th Cir. 2009). Summary judgment is appropriate if the moving party establishes

that there is no genuine dispute as to any material fact and it is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). We view the evidence in the light most

favorable to the nonmoving party. Gross, 554 F.3d at 875.

      At the outset, the Estate does not expressly argue on appeal that Uintah

County, a named defendant, is liable. Nor can we agree that the issue was implicitly

raised. Aplt. Reply Br. at 2. “When a party omits an argument from its opening

brief, an appellate court has no obligation to consider that argument.” United States

v. Bowline, 917 F.3d 1227, 1231 (10th Cir. 2019), cert. denied, No. 19-5563, 2020

WL 872247 (U.S. Feb. 24, 2020) (citing United States v. Abdenbi, 361 F.3d 1282,

1289 (10th Cir. 2004)). We therefore only consider arguments for holding the

individual defendants liable.

      The Estate first challenges the district court’s reliance on the phone call that

Corporal Robbins made to Nurse Smuin about Mr. Hunter’s condition. It argues that

Nurse Smuin’s statements are hearsay (and some, double hearsay) not subject to any

exception and the district court should not have considered her statements at

summary judgment. We will not consider this argument because the Estate did not

make any hearsay objections before the district court. It did not present this issue in

its summary judgment briefing. See Fed. R. Civ. P. 56(c)(2) (requiring a party to

                                            6
object that a fact is not supported by admissible evidence). Because the issue was not

raised below, it is waived. See Singleton v. Wulff, 428 U.S. 106, 121 (1976); Lyons

v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993). Nor should we conduct

plain error review because “the failure to argue for plain error and its application on

appeal . . . surely marks the end of the road for an argument for reversal not first

presented to the district court.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131

(10th Cir. 2011).

      Next, the Estate argues that the district court erred in holding that no

reasonable jury could find that the jailers acted with deliberate indifference. This

claim is based on the Eighth Amendment, prohibiting cruel and unusual punishment.

U.S. Const. amend. VIII. The Eighth Amendment requires humane conditions of

confinement, including medical care. Delay in providing medical care can also give

rise to liability. See Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999).

      To hold a jailer personally liable, a plaintiff must show both objective and

subjective deliberate indifference. Craig v. Eberly, 164 F.3d 490, 495 (10th Cir.

1998). Jailers who knew about a risk and acted reasonably cannot be found liable,

even if the harm was not averted. Farmer v. Brennan, 511 U.S. 825, 844–45 (1994).

In the case of medical needs, the standard is whether a doctor has mandated treatment

or whether the risk is so obvious that a lay person would “easily recognize the

necessity for a doctor’s attention.” Hunt, 199 F.3d at 1224 (quoting Ramos v. Lamm,

639 F.2d 559, 575 (10th Cir. 1980)).



                                            7
      The subjective component is met if a defendant knows of and disregards an

excessive risk to the inmate’s safety. “So long as a medical professional provides a

level of care consistent with the symptoms presented by the inmate, absent evidence

of actual knowledge or recklessness, the requisite state of mind cannot be met.” Self

v. Crum, 439 F.3d 1227, 1234 (10th Cir. 2006). Even medical malpractice would not

give rise to a constitutional violation if the defendant did not have subjective

knowledge of the risk. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir.

1999). Jailers who mistake one risk for another are not liable. See Martinez v.

Beggs, 563 F.3d 1082, 1090 (10th Cir. 2009) (declining to hold officers liable who

thought an inmate was just intoxicated when he later suffered a heart attack).

      Here, Defendants do not contest that Mr. Hunter suffered from an objectively

serious medical need that resulted in his passing. Aplee. Br. at 26. However, the

Estate cannot meet the subjective element of the test. None of the defendants

understood the medical risk that Mr. Hunter actually faced, and they all took

reasonable action to mitigate the risk they thought he faced. Merely because

symptoms could point to other conditions does not create a triable issue as to

deliberate indifference. Self, 439 F.3d at 1227.

      The Estate argues that the reasonable response to Mr. Hunter’s symptoms —

and the response required by the jail’s procedures — was to transport him to the

hospital when the jailers found him in pain on his hands and knees, and failure to do

so is deliberate indifference. Aplt. Br. at 29–33. But this ignores that Mr. Hunter’s



                                            8
condition fluctuated throughout and at times, he appeared to be improving. He even

told the jailers at a few points that he was “okay.” See, e.g., 2 Aplt. Appx. 90.

      The Estate cannot show that any defendant subjectively knew and disregarded

a substantial risk of serious harm. At bottom, although the defendants took steps to

ameliorate Mr. Hunter’s condition, they were wrong about the risk that Mr. Hunter

faced, which does not satisfy the subjective component of the deliberate indifference

test. See Farmer, 511 U.S. at 844; Self, 439 F.3d at 1234 (“[A] misdiagnosis, even if

rising to the level of medical malpractice, is simply insufficient under our case law to

satisfy the subjective component of a deliberate indifference claim.”).

      AFFIRMED.


                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




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