                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 11, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                             FOR THE TENTH CIRCUIT




    LARRY LEE LEMAY,

               Plaintiff-Appellee,

    v.                                                 No. 09-6144
                                               (D.C. No. 5:07-CV-00401-HE)
    BILL WINCHESTER, Sheriff,                          (W.D. Okla.)
    Garfield County; KIM JOHNSON,
    Nurse, Garfield County Detention
    Facility,

               Defendants-Appellants,

    and

    MISTY TAYLOR; GARFIELD
    COUNTY DETENTION FACILITY,

               Defendants.


                             ORDER AND JUDGMENT *


Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Larry Lee Lemay, an Oklahoma prisoner proceeding pro se, filed a

42 U.S.C. § 1983 action alleging that defendants Johnson and Winchester were

deliberately indifferent to his serious medical needs to treat his diabetes, in

violation of the Eighth and Fourteenth Amendments to the United States

Constitution. The district court adopted the recommendations of a magistrate

judge, which included denying summary judgment based on qualified immunity to

Sheriff Winchester and Ms. Johnson, the jail nurse. The sheriff and the nurse

bring this interlocutory appeal to challenge the denial of qualified immunity. 1

This court lacks jurisdiction over the issues presented; accordingly, the appeal is

DISMISSED.

                                     Background

      The magistrate judge described in detail the facts of the case. Therefore,

we provide only a brief description of the facts, viewing the evidence in the light

most favorable to Mr. Lemay as the nonmoving party. Mr. Lemay, an

insulin-dependent diabetic, was incarcerated at the Garfield County Detention

Facility (GCDF) on several occasions between October 2005 and June 2007. 2

1
      Although Mr. Lemay brought additional claims against these and other
defendants, we are concerned only with the order denying qualified immunity.
2
      Some of the time Mr. Lemay was a pretrial detainee. At other times, he
had been convicted of crimes. “Under the Fourteenth Amendment due process
clause, pretrial detainees are entitled to the degree of protection against denial of
medical attention which applies to convicted inmates under the Eighth
Amendment.” Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir.) (quotation and
                                                                        (continued...)

                                          -2-
When he was first placed there, he completed a health questionnaire, indicating

that he had diabetes and was on a doctor-prescribed diabetic diet. On January 5,

2006, he became ill and ultimately was hospitalized for seven days due to diabetic

ketoacidosis (DKA), a serious condition caused by high blood sugar which can

lead to coma and death. The hospital discharge instructions included a diabetic

diet.

        Mr. Lemay alleged that throughout his incarceration at the GCDF, his

blood-sugar level was not checked often enough, the level was frequently too

high, and his insulin pump was not refilled when needed. It is undisputed that he

was never served a diabetic diet at the GCDF. Although ingestion of candy and

sweets could counteract the positive effects of insulin, Mr. Lemay purchased

numerous candy bars and other sweets from the jail commissary. He claimed,

however, that he did not eat all of them. He made no commissary purchases of

candy or sweets during 2007.

        In 2007, Mr. Lemay was booked into the GCDF as an inmate in the custody

of the Oklahoma Department of Corrections (ODOC). An ODOC form indicated

he was to be on a physician-ordered diabetic diet. Mr. Lemay stated that he

observed the ODOC medical personnel place his medication and his medical and




2
 (...continued)
alteration omitted), cert. denied, 130 S. Ct. 259 (2009).

                                         -3-
dietary instructions into a paper bag and hand it to the GCDF deputy who

transported him to the GCDF.

      Mr. Lemay filed suit, claiming that his constitutional rights were violated

by the lack of a diabetic diet and inadequate or delayed medical care. In

response, Ms. Johnson asserted that she did not have the authority to order a

diabetic diet, but followed orders given by the jail physician or physician’s

assistant, neither of whom ordered such a diet for Mr. Lemay. Therefore, she

argued, Mr. Lemay failed to show that she was personally involved in the alleged

deliberate indifference to his serious medical needs. Sheriff Winchester also

argued that Mr. Lemay failed to come forward with evidence that he was

personally involved. In addition, he contended that even if some jail policies

were deficient, they did not cause harm to Mr. Lemay and that Mr. Lemay’s

allegations of delayed medical care did not show deliberate indifference.

      The district court ruled that some of the claims against Ms. Johnson were

time-barred, and limited the claims against her to allegations that she failed to

provide plaintiff with a diabetic diet during his three periods of incarceration in

2007. The district court then adopted the report and recommendation of the

magistrate judge and concluded that Mr. Lemay had produced sufficient evidence

to create a factual dispute as to whether Ms. Johnson was deliberately indifferent

to his serious medical needs. Accordingly, the court denied her motion for

summary judgment based on qualified immunity. The court also denied Sheriff

                                          -4-
Winchester’s summary judgment motion based on qualified immunity, holding

that the evidence was disputed “as to the existence of customs or policies leading

to deficient medical care at GCDF,” Aplt. App. Vol. II at 591, and there was

evidence to link Mr. Lemay’s allegedly inadequate medical care with policies and

customs over which Sheriff Johnson had control.

                                  Legal Standards

      “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, __ U.S. __, 129 S. Ct. 808, 815 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant

asserts qualified immunity at summary judgment, the burden shifts to the plaintiff

to show: (1) the defendant violated a constitutional right and (2) the

constitutional right was clearly established. Bowling v. Rector, 584 F.3d 956, 964

(10th Cir. 2009).

      An order denying qualified immunity before trial is appealable “only to the

extent that the denial . . . turns on an issue of law.” Price-Cornelison v. Brooks,

524 F.3d 1103, 1108 (10th Cir. 2008). Review on interlocutory appeal is not

available for “question[s] of ‘evidence sufficiency.’” Johnson v. Jones, 515 U.S.

304, 313 (1995).




                                          -5-
      “This court reviews the denial of qualified immunity on summary judgment

de novo.” Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003) (quotation

omitted). Summary judgment is appropriate “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “The evidence is viewed, and reasonable inferences

are drawn from the evidence, in the light most favorable to the nonmoving party.”

Verdecia, 327 F.3d at 1174.

      Mr. Lemay alleged that Ms. Johnson and Sheriff Winchester were

deliberately indifferent to his serious medical needs, thus asserting a

constitutional violation. See Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005)

(citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). “‘Deliberate indifference’

involves both an objective and a subjective component.” Sealock v. Colorado,

218 F.3d 1205, 1209 (10th Cir. 2000). For the objective component, a “prisoner

must first produce objective evidence that the deprivation at issue was in fact

‘sufficiently serious.’” Mata, 427 F.3d at 751 (quoting Farmer v. Brennan,

511 U.S. 825, 834 (1994)). The subjective component requires “evidence of the

prison official’s culpable state of mind,” which may be fulfilled by showing that

the official “[knew] of and disregard[ed] an excessive risk to inmate health or

safety; the official must both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and she must also draw the

                                         -6-
inference.” Id. (quotation and brackets omitted). “Individual liability under

§ 1983 must be based on personal involvement in the alleged constitutional

violation.” Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (quotation

omitted).

      Defendants concede that the constitutional right at issue here was clearly

established. Ms. Johnson does not challenge the sufficiency of Mr. Lemay’s

evidence to satisfy the objective component. Both defendants assert that the

undisputed evidence does not establish the subjective component. They also

claim that Mr. Lemay failed to produce any evidence of their personal

involvement in the alleged constitutional violations. Although they contend that

they are entitled to qualified immunity even accepting Mr. Lemay’s version of the

facts, they have not relied solely on his version.

                                   Nurse Johnson

      As noted, the claims against Ms. Johnson are limited to her failure to

provide Mr. Lemay a diabetic diet during March, May, and June of 2007, while he

was housed at the GCDF. Ms. Johnson maintains that no evidence supports the

subjective component because she was never informed that any physician had

ordered a diabetic diet for Mr. Lemay, so she could not have exhibited deliberate

indifference to his serious medical needs.

      Ms. Johnson points to her own statements to argue that she was not

informed that a diabetic diet was ordered by any doctor or the GCDF physician’s

                                          -7-
assistant. In her response to a request for admissions, Ms. Johnson stated that

after Mr. Lemay was booked into the GCDF, physician’s assistant Harrison

“believed it was not necessary to contact [Plaintiff’s doctor] and that we could

treat Plaintiff based on the information we had.” Aplt. App. Vol. II at 459-60. In

her affidavit, Ms. Johnson stated that GCDF procedure provided that she “follow

the orders and instructions of Dr. Ogle and P.A. Harrison,” who did not order a

diabetic diet for Mr. Lemay. Id. Vol. I at 268. She further stated that she did not

know of any orders from ODOC that Mr. Lemay be given a diabetic diet. Id.

Ms. Johnson also relies on her jail treatment notes, which indicate that Dr. Moery,

the physician who treated Mr. Lemay at the hospital, directed that he have a

regular jail diet. Id. at 41.

       The magistrate judge found that there was evidence to the contrary, such as

(1) the hospital discharge instructions that included a diabetic diet, id. Vol. II at

322, 446; (2) Dr. Moery’s deposition testimony that she did not recall telling

Ms. Johnson that Mr. Lemay should have a regular “jail” menu and she did not

know what constituted a “jail” menu, id. at 446, 448; (3) an ODOC direction that

Mr. Lemay be on a physician-ordered diabetic diet during his 2007 incarcerations,

id. at 489; (4) Mr. Lemay’s statement that when he was returned to the GCDF in

2007, he observed ODOC medical personnel place his treatment documents,

including a diabetic diet order, into a brown paper bag and deliver it to his GCDF




                                           -8-
escort, R. Doc. 138, ¶ 4; 3 (5) an ODOC medical transfer summary for

Mr. Lemay’s transfer to the GCDF in March 2007 indicating that he was to be on

a diabetic diet, id. Doc. 139 Attach. 4; (6) Mr. Lemay’s statement that he told jail

staff about his diet upon booking, Aplt. App. Vol. II at 547; (7) jail medical

records indicating that Mr. Lemay’s blood-sugar level was high on numerous

occasions; and (8) Ms. Johnson’s March 12, 2007, treatment note stating that

Mr. Lemay was not to be given his diabetic snack, thus indicating that she was

aware that he should have been on a diabetic diet.

      In addition, Ms. Johnson contends that she did not have the authority to

order a diabetic diet, so plaintiff failed to establish that she personally

participated in denying him such a diet. She again relies on her own statements to

this effect to refute the district court’s characterization of her as a gatekeeper.

See Mata, 427 F.3d at 751 (“A prison medical professional who serves solely as a

gatekeeper for other medical personnel capable of treating the condition may be

held liable under the deliberate indifference standard if she delays or refuses to

fulfill that gatekeeper role.” (quotations and alteration omitted)). The court found

that the evidence indicated a diabetic diet was “not available to inmates without


3
       Some of the documents on which the district court relied are not included
in the appellants’ appendix. We have obtained the necessary documents from the
district court’s electronic filing system. See Burnett v. Sw. Bell Tel., L.P., 555
F.3d 906, 909 (10th Cir. 2009) (noting that appellate court may access district
court pleadings via the district court’s electronic filing system or otherwise,
should it choose to do so).

                                          -9-
Defendant Johnson’s involvement and/or approval as facility nurse.” Aplt. App.

Vol. II at 549.

        In sum, although Ms. Johnson has attempted to frame this appeal as a

challenge to the district court’s conclusions of law, what she is really challenging

is the district court’s determination that, when viewed in the light most favorable

to Mr. Lemay, the evidence sustained his burden to show that Ms. Johnson was

deliberately indifferent to his serious medical needs. Therefore, this court lacks

jurisdiction over her interlocutory appeal. See Price-Cornelison, 524 F.3d at

1108.

                                  Sheriff Winchester

        Sheriff Winchester argues that he is entitled to qualified immunity because

he was not personally involved in the alleged constitutional deprivation. 4 He

points to the district court’s determination that he was not personally involved in

providing medical care or meals to Mr. Lemay. He disputes the court’s

determination that the requisite causal link was provided by jail policies and

customs over which he had control and which resulted in the allegedly inadequate

and delayed medical care provided to Mr. Lemay.


4
       The district court also denied Sheriff Winchester summary judgment on
Mr. Lemay’s claims that he was liable in his official capacity. That ruling is not
before us. See Starkey ex rel. A.B. v. Boulder County Social Servs., 569 F.3d
1244, 1263 n.4 (10th Cir. 2009) (stating that qualified immunity “is available only
in suits against officials sued in their personal capacities, not in suits against
governmental entities or officials sued in their official capacities”).

                                         -10-
      Individual liability under § 1983 must be based on personal
      involvement in the alleged constitutional violation. Supervisory
      status alone does not create § 1983 liability. Rather, there must be
      an affirmative link between the constitutional deprivation and either
      the supervisor’s personal participation, his exercise of control or
      direction, or his failure to supervise.

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations, quotations,

and alteration omitted).

      Sheriff Winchester does not dispute the district court’s findings that he was

the policymaker for the jail and that a final policymaker can be held personally

liable. Instead, he asserts that Mr. Lemay offered insufficient evidence that the

jail policies and procedures were deficient or that they caused him any harm.

Mr. Lemay’s allegations included claims that the absence of policies or

procedures for emergency medical situations and for the preparation and service

of special diets to inmates, as well as inadequate medical staffing and training,

resulted in a constitutional deprivation.

      The magistrate judge cited a 2003 report by the Department of Justice

(DOJ) that set forth numerous deficiencies in the jail medical procedures that

placed inmates at risk of harm. Sheriff Winchester argues that this report is

irrelevant because its subject was a different, older jail building and the nurse on

duty at the former jail was someone other than Ms. Johnson. He contends that

correspondence about the jail’s deficiencies from 2006 and 2007 “did not specify

any deficiencies in the new facility’s medical care policies or practices, and the



                                            -11-
[November] 2007 correspondence actually commended the facility for its

compliance with the DOJ’s consultants’ recommendations.” Aplt. Opening Br.

at 22. In addition, he maintains that reliance on the 2003 report could not provide

the requisite causal link between the alleged constitutional deprivation and the jail

policies and procedures.

      As the district court pointed out, however, “[a] change in physical facilities

does not necessarily indicate a change in policies and procedures.” Aplt. App.

Vol. II at 590. Moreover, there was evidence that not all of the report’s

recommended remedial measures were in effect during the relevant time period,

such as having inmates fill out a medical intake questionnaire at the time of

booking into the jail in 2007. Compare Aplt. App. Vol. II at 430 (referring to

implementation of an intake medical screening process) with R. Doc. 138, ¶ 6

(Mr. Lemay’s statement that he was not given a jail health questionnaire upon

booking into the GCDF in 2007). And as the magistrate judge discussed,

correspondence during the period between the 2003 initial report and the

November 2007 letter demonstrated that correction of the problems was ongoing

and did “not indicate whether the medical care deficiencies were ameliorated by

the time of [Mr. Lemay’s] incarceration.” Aplt. App. Vol. II at 569.

      Sheriff Winchester also contends that any inadequacies in policies

pertaining to staffing or medical emergencies were irrelevant because the DKA

episode was not an emergency. This too raises a factual challenge.

                                         -12-
      Sheriff Winchester further asserts that because Mr. Lemay did not show

“substantial harm” caused by any delays in blood-sugar testing or the delivery of

insulin, he did not state a claim of deliberate indifference. See Olson v. Stotts, 9

F.3d 1475, 1477 (10th Cir. 1993) (“Delay in medical care can only constitute an

Eighth Amendment violation if there has been deliberate indifference which

results in substantial harm.” (quotation and brackets omitted)). The district court

determined that Mr. Lemay had demonstrated substantial harm on at least one

occasion, the January 5, 2006 DKA episode, thereby precluding summary

judgment. Sheriff Winchester responds that Mr. Lemay’s DKA was self-induced

by consuming large amounts of candy and by deliberately failing to administer

insulin. Again, the amount of candy Mr. Lemay consumed and the reason he did

not receive sufficient insulin are disputed issues of fact.

      Because Sheriff Winchester argues only that the disputed facts should be

construed in his favor, his appeal suffers from the same jurisdictional infirmity as

Ms. Johnson’s. His appeal must be dismissed for lack of jurisdiction.

                                   Pending Motions

      Mr. Lemay has filed two motions that have been referred to this panel for

disposition. First, he requests a summary disposition of this appeal on the ground

that it is frivolous and without merit. Based on our disposition of the merits, this

motion is DENIED as moot.




                                          -13-
      The second motion seeks dismissal of the appeal because appellants’ brief

was filed one day after the due date, it was mailed to him one day late, and he

was served with only one copy of the brief instead of two. Contrary to

Mr. Lemay’s assertion, the brief was filed by the due date. The remaining

contentions do not warrant dismissal. See 10th Cir. R. 27.2(A) (listing

permissible dispositive motions). The motion is DENIED.

                                    Conclusion

      Mr. Lemay’s pending motions are DENIED. This appeal is DISMISSED

for lack of jurisdiction.


                                                    Entered for the Court


                                                    David M. Ebel
                                                    Circuit Judge




                                        -14-
