Hice et al v. Turn Key Health Clinics LLC et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
LISA M. HICE, 	)
LEANN D. HOFF, 	)
as Co-Administrators of the 	)
Estate of Marvin G. May, 	)
Deceased, 	)
)
Plaintiffs, 	)
)
v. 	) 	Case No. CIV-24-119-JD
)
TURN KEY HEALTH CLINICS, 	)
LLC, et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
On January 25, 2022, Decedent Marvin G. May was booked into the
Custer County Jail as a pretrial detainee. Doc. 1, at 4. Upon booking, Mr. May
was 74 years old with a recorded past medical history of diabetes mellitus,
chronic obstructive pulmonary disease (COPD), and cardiovascular disease. Id.
Before and during his detention, Mr. May suffered from various ailments
including 	dementia, 	high 	blood 	pressure, 	a 	worsening 	bed 	sore, 	fecal
incontinence, and difficulty walking. Id. at 6; Doc. 156, at 12. On March 18,
2022, Mr. May fell out of his bunk and was transported to the emergency room
where he was pronounced dead. Doc. 1, at 9. The Co-Administrators of his
Estate 	brought 	this 	action 	under 	42 	U.S.C. 	§ 	1983 	alleging 	Defendants
deprived 	Mr. 	May 	of 	medical 	care 	in 	violation 	of 	his 	rights 	under 	the
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Fourteenth Amendment of the U.S. Constitution and Oklahoma law. Id. at 3-
4, 36-41. United States District Judge Jodi W. Dishman referred this matter
to the undersigned Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B), (C). Doc. 3.
Before the Court is Defendant Advanced Practice Nurse (APRN) Tamara
Carey’s Motion for Summary Judgment, Doc. 139. Plaintiffs filed a response,
Doc. 156, and Defendant APRN Carey replied, Doc. 179. So the matter is at
issue.1 The undersigned recommends the Court deny Defendant APRN Carey’s
motion for summary judgment.
I. 	Legal standards.
A court shall grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is material
if under the substantive law it is essential to the proper disposition of the
claim.” Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016)
(internal quotation marks and citation omitted). A dispute about a material
fact is genuine “if the evidence is such that a reasonable jury could return a
1 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); see also Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020)
(explaining that a dispute over a material fact is genuine “if a rational jury
could find in favor of the nonmoving party on the evidence presented” (citation
omitted)). In applying this standard, the Court “‘review[s] the facts and all
reasonable inferences those facts support[ ] in the light most favorable to the
nonmoving party.’” Doe, 952 F.3d at 1189 (quoting Evans v. Sandy City, 944
F.3d 847, 852 (10th Cir. 2019)). “In reviewing the facts, at summary judgment,
the party who bears a burden of proof on an issue bears the burden of
production rather than the burden of persuasion.” Markley v. U.S. Bank Nat’l
Ass’n, 59 F.4th 1072, 1080 (10th Cir. 2023).
II. 	Background.
Turn Key Health Clinics, LLC (Turn Key) contracted with the Custer
County 	Sheriff’s 	Office 	(Custer 	County) 	and 	the 	Board 	of 	County
Commissioners 	of 	Custer 	County 	to 	provide 	certain 	medical 	care 	and
treatment to inmates and detainees at the Custer County Jail. Doc. 139, at 5.
The contract requires Turn Key to provide twelve hours of weekly on-site
nursing services by a Registered Nurse (RN) or a Licensed Practical Nurse
(LPN). Id. Ex. 1, at 4. The contract also requires a physician or mid-level
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provider to hold a weekly patient clinic either in-person or via telemedicine. Id.
Turn Key was responsible for ensuring 24/7 availability of an on-call physician
or mid-level provider for “emergency consultation.” Id.
During the relevant dates, Defendant APRN Carey worked as a Turn
Key employee and provided telehealth medicine to inmates at the Jail once a
week. Doc. 139, at 6; Doc. 156, at 6. She was responsible for taking calls from
thirteen or fourteen separate facilities, one of which was Custer County. Doc.
155, Ex. 3, at 31-32, 35, 51.2 She testified she was “overwhelmed” by the call
situation, which was part of the reason she resigned from her position with
Turn Key. Id. at 51.
On January 25, 2022, Mr. May was transferred to the Jail from the
Canadian County Jail. Doc. 139, at 6. On January 27, 2022, Defendant LPN
Stacia Unruh conducted a Medical Intake on Mr. May. Id. She recorded his
vital signs, including his temperature, blood pressure, respiratory rate, pulse,
and oxygen saturation. Id. She reviewed his medical history, evaluated his
2 	Plaintiffs reference the exhibits attached to their response to Defendant
Sheriff’s motion for summary judgment, Doc. 155, interchangeably in their
responses 	to 	Defendants’ 	motions 	for 	summary 	judgment. 	For 	ease 	of
reference, the undersigned will refer to the exhibits attached to Doc. 155 where
the same arguments are made or where identical evidence is cited amongst the
parties.
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general 	appearance, 	behavior, 	level 	of 	consciousness, 	breathing, 	and 	his
mobility. Id. LPN Unruh noted his gait was “stable” and made no notation that
Mr. May needed a cane or wheelchair at that time. Doc. 155, Ex. 12, at 3.
On February 2, 2022, an inmate notified Defendant Officer Julie Warnke
that Mr. May had not eaten in several days and refused to shower. Doc. 155,
Ex. 17 (Jail Incident Report). The inmate filed a sick call request and a
grievance form seeking help for Mr. May, noting: “this old man marvin may
hasnt eaten in 9 days or showered he needs real medical attention asap,” Doc.
155, Ex. 33, at 1. Similarly, the inmate wrote “weve told staff and they aint
done shit this old man marvin hasn’t eaten or showered in days he needs real
medical 	help 	. 	. 	.” 	Doc. 	155, 	Ex. 	34, 	at 	1.
To each, Jail Officer Angie Schmidt responded that “We’re going to move him
to booking til the nurse comes in tomorrow so that we can watch him.” Doc.
155, Ex. 33, at 2 & Ex. 34, at 1. Officer Warnke had Mr. May moved to his own
cell in the “booking area,” “to be monitored for his behavior and eating habits”
and advised that “[h]e is to be offered a protein shake with every meal &
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charted on ODIS if he eats his meal or drinks his share per Lt. [Martha]
Stanford.” Doc. 155, Ex. 17.3
On February 3, 2022, Defendant APRN Carey conducted a Chronic Care
Provider 	visit 	with 	Mr. 	May 	via 	telemedicine. 	Doc. 	139, 	at 	6-7. 	While
Defendant APRN Carey assessed Mr. May’s orientation, obtained his medical
history, changed his medication prescriptions, and scheduled a follow-up
appointment 90 days later, LPN Unruh gathered objective information from
Mr. May onsite. Id. at 7.
Officer Warnke’s Jail Incident Report notes state Mr. May was brought
via wheelchair for the visit. Doc. 155, Ex. 18. She and LPN Unruh “encouraged
him to drink a protein shake and he refused to drink it but [he] drank some
water.” Id.
After the visit, Officer Warnke noted that Defendant APRN Carey stated
that Mr. May’s
Mental condition appeared to be deteriorating rapidly and that
when she had seen him at the previous county he was transported
around via wheelchair at that facility also. [LPN Unruh and
Officer Warnke] let [APRN Carey] know that he was moved to
booking yesterday because he wasn’t eating or showering while he
was in the dorm housing. [APRN] Carey said that she wanted to
3 	Lieutenant 	Martha 	Stanford, 	a 	non-defendant, 	supervised 	Officer
Warnke. Doc. 155, Ex. 20, at 4.
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notify Adult Protective Services about his well being due to his
deteriorating mental state.
Id. Defendant APRN Carey’s chronic care note stated:
Pt present for initial CC visit. Provider is familiar with pt
due 	to 	being 	transferred 	from 	Canadian 	Co. 	Pt 	denies
concerns in treatment plan. Per officer, pt has not eaten or
showered in 7 days. Pt report being “fine”. Denies fatigue,
chills, fever, or any abnormalities at this time. Provider is
aware of pts worsening Alzheimer disease.
. . . .
Pt unable to ambulate safely alone; assistance needed via
wheelchair[.]
Doc. 139, Ex. 2, at 35-36. Defendant APRN Carey’s February 3, 2022 chronic
care 	note 	also 	documented 	that 	Mr. 	May 	suffered 	from 	hypertension,
hyperlipidemia, COPD, diabetes mellitus, and rheumatoid arthritis. Id. at 35;
Doc. 155, Ex. 3, at 10-12. She set another visit for 90 days later, which she
testified was typical, because this was Mr. May’s follow-up visit after her initial
telehealth visit with him while he was in Canadian County’s jail. Doc. 139, Ex.
4, at 17. She also recalled Mr. May being in a wheelchair in Canadian County.
Doc. 155, Ex. 3, at 18.
Officer Warnke testified she presumed that Defendant APRN Carey
called Adult Protective Services after the February 3, 2022 telehealth visit
because APRN Carey told LPN Unruh she wanted to contact Adult Protective
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Services. Doc. 155, Ex. 11, at 12, 23. Officer Warnke also testified she had “seen
forms come through” from Adult Protective Services. Id. at 23.
A February 3, 2022 email from Oklahoma Human Services to the
Oklahoma Department of Health relayed concerns from an Adult Protective
Services screener that Mr. May was not allowed to use a cane in jail, had
“worsening” Alzheimer’s, and that the “Reporter” (Defendant APRN Carey)
from the Custer County Jail “feels [Mr. May] needs to be in a nursing home,”
but “not in jail.” Doc. 155, Ex. 2, at 2-3; Doc. 156, at 11. The screener wrote that
“[t]he staff at the jail [reported] that [he] has not eaten or showered in 7 days”
and “no one is telling him to, ” and he “has been incarcerated for at least 2-3
months, maybe longer, but too long from a medical standpoint,” and that “they
do not think this is an appropriate placement.” Doc. 155, Ex. 2, at 3. In her
deposition, Defendant APRN Carey confirmed the accuracy of the contents of
the email as the summary of the report she gave to Adult Protective Services.
Doc. 155, Ex. 3, at 19-20.
In reviewing that report, Defendant APRN Carey testified that it was
her medical assessment that Mr. May “did not belong in jail.” Id. at 25-26. And
that he had been incarcerated for two to three months or longer, and that this
was “too long from a medical standpoint.” Id. at 26. She testified that while his
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Alzheimer’s symptoms were worsening, she did not believe he was in “acute
distress” yet. Id. at 22. She also testified that Alzheimer’s is a progressive
disease and Mr. May’s condition would only deteriorate and get worse. Id. at
29-30. She testified that she did not follow up with LPN Unruh after the
telemedicine visit to ensure that she was continuously monitoring Mr. May’s
condition. Id. at 51.
On February 11, 2022, LPN Unruh saw Mr. May’s wound on his right
hip and entered a Wound Care Note, and got an order from Defendant APRN
Carey to apply antibiotic ointment to the wound. Doc. 156, at 12; Doc. 139, Ex.
2, at 32, 40 & Ex. 4, at 12. Defendant APRN Carey recalled giving this verbal
order. Doc. 139, Ex. 4, at 19.
On March 17, 2022, Officer Warnke filed a Jail Incident Report noting
Mr. May refused to “set up” for a blood pressure check, and that he told her he
was “fine” and “okay.” Doc. 139, Ex. 2, at 55. She noticed a pair of “soiled orange
clothes,” and she encouraged him to take a shower. Id. Mr. May refused. On
March 18, 2022, Mr. May had fallen out of his bed and was discovered
unresponsive. Id. at 56. The officers tried to revive him with an ammonia pack
but this had a “limited response.” Id. at 57. Officers called for an ambulance.
Id. at 56.
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The Medical Examiner listed Mr. May’s probable cause of death as
“Coronavirus Disease 2019 (COVID-19) Pneumonia Sequalae.” Doc. 155, Ex, 4,
at 19. Plaintiff’s expert, Dr. Justin Berk, will testify that “the evidence does
not indicate that COVID-19 was a cause of Mr. May’s death.” Id. “Rather, Mr.
May’s profile─starvation, dehydration, lactic acidosis, nutritional deficiencies,
hypotension—is tragically aligned with textbook examples of preventable
death due to neglect of basic medical needs.” Id.
III. 	Deliberate indifference to Mr. May’s medical needs.
Defendant APRN Carey argues that Plaintiff cannot show that any
failure to transfer Mr. May to an outside facility rises to the level of a
constitutional violation. Doc. 139, at 13. Under the Fourteenth Amendment’s
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. Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127,
1136 (10th Cir. 2023) (citing Paugh v. Uintah Cnty., 47 F.4th 1139, 1153–54
(10th Cir. 2022); Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000)).
The deliberate indifference standard contains both an objective and
subjective component. Lucas, 58 F.4th at 1136. The objective component is
satisfied if the deprivation is “sufficiently serious.” Farmer v. Brennan, 511
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U.S. 825, 834 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
Defendant 	APRN 	Carey 	does 	not 	challenge 	the 	objective 	component 	of
Plaintiffs’ claim, and the Tenth Circuit has “held that ‘death [is], without
doubt, 	sufficiently 	serious 	to 	meet 	the 	objective 	component.’” 	Burke 	v.
Regalado, 935 F.3d 960, 992 (10th Cir. 2019) (quoting Martinez v. Beggs, 563
F.3d 1082, 1088 (10th Cir. 2009)).
The 	subjective 	component 	is 	satisfied 	if 	the 	official 	“knows 	of 	and
disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at
837. A plaintiff “need not show that a prison official acted or failed to act
believing that harm actually would befall an inmate,” but only that the official
“merely refused to verify underlying facts that [s]he strongly suspected to be
true, or declined to confirm inferences of risk that [s]he strongly suspected to
exist.” Lucas, 58 F.4th at 1137 (quoting Farmer, 511 U.S. at 842, 843 n.8.).
“‘Whether a prison official had the requisite knowledge of a substantial risk is
a question of fact subject to demonstration in the usual ways, including
inference 	from 	circumstantial 	evidence’ 	such 	as 	whether 	‘the 	risk 	was
obvious.’” Id. (quoting Farmer, 511 U.S. at 842). “An official disregards risk
when [s]he fails to take reasonable measures to abate the risk.” Id.
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A “factfinder may conclude that a prison official knew of a substantial
risk from the very fact that the risk was obvious.” Quintana v. Santa Fe Cnty.
Bd. Of Comm’rs, 973 F.3d 1022, 1029 (10th Cir. 2020) (quoting Farmer, 511
U.S. at 842). But this requires “that such risks present themselves as ‘obvious’
to the so-called ‘reasonable man.’” Id. (quoting Mata v. Saiz, 427 F.3d 745, 752
(10th Cir. 2005)).
The 	Tenth 	Circuit 	recognizes 	two 	ways 	to 	establish 	the 	subjective
component of a deliberate indifference claim against an individual defendant:
[T]he subjective component can be satisfied under two theories:
failure to properly treat a serious medical condition (“failure to
properly treat theory”) or as a gatekeeper who prevents an inmate
from receiving treatment or denies access to someone capable of
evaluating the inmate’s need for treatment (“gatekeeper theory”).
The latter theory can apply to medical professionals when the
professional knows that his or her role in a medical emergency is
solely 	to 	refer 	the 	patient 	to 	another. 	Even 	a 	brief 	delay 	in
treatment can be unconstitutional.
Lucas, 58 F.4th at 1137. (internal citations omitted).
A. 	Objective component.
As noted, Defendant APRN Carey concedes the objective component is
met, but she qualifies the harm solely as Mr. May’s death. Doc. 139, at 13-14;
see Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1045 (10th Cir. 2022)
(concluding detainee’s “ultimate harm of death was sufficiently serious for
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purposes of the objective component of deliberate indifference”); Burke v.
Regalado, 935 F.3d 960, 994 (10th Cir. 2019) (same). Plaintiffs also claim Mr.
May suffered from obvious, severe, and emergent medical and mental health
needs before his death which were reported to Defendant APRN Carey on
February 3, 2022. Doc. 1, at 37.
First, “[t]he objective component of deliberate indifference is met if the
‘harm suffered rises to a level of ‘sufficiently serious’ to be cognizable under the
Cruel and Unusual Punishment Clause.’” Burke, 935 F.3d at 992 (quoting
Mata, 427 F.3d at 753). “A medical need is considered sufficiently serious to
satisfy the objective prong if the condition ‘has been diagnosed by a physician
as mandating treatment or is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’” Hardy v. Rabie, 147 F.4th 1156,
1164 (10th Cir. 2025) (emphasis added) (quoting Al-Turki v. Robinson, 762
F.3d 1188, 1192-93 (10th Cir. 2014)). Where a plaintiff alleges that he was
harmed by a delay in medical treatment, the objective component of harm “can
be satisfied merely by ‘an intermediate injury, such as the pain experienced
while waiting for treatment and analgesics.’” Id. (quoting Al-Turki, 762 F.3d
at 1193).
Objective harm has been characterized as either “(1) the alleged
harm to the prisoner or (2) the prisoner’s symptoms at the time of
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the prison employee’s actions.” [Mata, 427 F.3d at 753.] The latter
is not about the ultimate harm or risk of harm, but how that harm
would appear to an objective observer. See [Prince, 28 F.4th at
1045] 	(“Yet 	because 	we 	conclude 	that 	[the 	plaintiff’s] 	earlier
symptoms should prompt a layperson to seek immediate medical
attention, the risk of death was an incorrect inquiry.”).
Id. at 1165.
While Defendant APRN Carey does not dispute the objective component
to the extent that the harm suffered was Mr. May’s death, the Court notes that
the delay in receiving greater medical attention is pertinent here because of
the suffering Mr. May experienced from his already extant refusal to eat, his
deteriorating mental condition, and his inability to ambulate on his own. That
persistent delay in receiving any medical treatment apart from medication
management and some applications of his prescription ointment, amounts to a
sufficiently serious medical need that also satisfies the objective component.
See Stella v. Davis Cnty., 2024 WL 4764694, at *7 (10th Cir. Nov. 13, 2024)
(“[A] 	delay 	in 	medical 	care 	that 	results 	in 	substantial 	harm, 	such 	as
‘considerable pain’ or death while awaiting treatment, can satisfy the objective
component.”) (quoting Paugh, 47 F.4th at 1155).
B. 	Subjective component.
1. 	Failure to properly treat.
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On February 2, 2022, an inmate notified Officer Warnke that Mr. May
had not eaten in several days and refused to shower, Doc. 155, Ex. 17 (Jail
Incident Report), which resulted in Officer Warnke moving Mr. May to a cell
next to LPN Unruh’s office, close to the booking area. Id.; Doc. 155, Ex. 33, at
2 & Ex. 34, at 1. This way, Mr. May could be monitored for his behavior and
eating habits. Doc. 155, Ex. 17. Defendant APRN Carey was aware Mr. May
had been moved. Doc. 155, Ex. 18.
The next day was Mr. May’s medical visit with Defendant APRN Carey.
Officer Warnke’s Jail Incident Report notes state Mr. May was brought via
wheelchair for the visit. Id. She and LPN Unruh “encouraged him to drink a
protein shake and he refused to drink it but [he] drank some water.” Id.
Officer Warnke noted that Defendant APRN Carey observed Mr. May’s
Mental condition appeared to be deteriorating rapidly and that
when she had seen him at the previous county he was transported
around via wheelchair at the facility also. [LPN Unruh and Officer
Warnke] let [Defendant APRN Carey] know that [Mr. May] was
moved to booking yesterday because he wasn’t eating or showering
while he was in the dorm housing. [APRN] Carey said that she
wanted to notify Adult Protective Services about his well being due
to his deteriorating mental state.
Id.
Officer 	Warnke 	testified 	she 	was 	aware 	of 	the 	February 	3, 	2022
telemedicine visit with Defendant APRN Carey and presumed that APRN
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Carey called Adult Protective Services, that Carey told LPN Unruh she wanted
to contact Adult Protective Services, and that Officer Warnke had “seen forms
come through” from Adult Protective Services. Doc. 155, Ex. 11, at 12, 23.
Defendant 	APRN 	Carey’s 	February 	3, 	2022 	chronic 	care 	note
documented that Mr. May suffered from hypertension, hyperlipidemia, COPD,
diabetes mellitus, rheumatoid arthritis, and that APRN Carey knew of Mr.
May’s “worsening Alzheimer’s disease.” Doc. 139, Ex. 2, at 35; Doc. 155, Ex. 3,
at 10-12. “Per officer [Warnke]” she noted that Mr. May had not eaten or
showered in seven days. Doc. 139, Ex. 2, at 35. She noted he cannot ambulate
safely and she set another visit for 90 days. Id. at 36.
A February 3, 2022 email from Oklahoma Human Services to the
Oklahoma Department of Health relayed concerns from an Adult Protective
Services screener that Mr. May is not allowed to use a cane in jail, has
“worsening” Alzheimer’s, and reported that the “Reporter [(APRN Carey)]”
from the Custer County Jail “feels [Mr. May] needs to be in a nursing home,”
but “not in jail.” Doc. 155, Ex. 2, at 2-3. The screener wrote that “[t]he staff at
the jail [reported] that he has not eaten or showered in 7 days and no one is
telling him to,” and “has been incarcerated for at least 2-3 months, maybe
longer, but too long from a medical standpoint,” and that “they do not think
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this is an appropriate placement.” Id. at 3. Defendant APRN Carey confirmed
the accuracy of the email as the summary of the report she gave to Adult
Protective Services. Doc. 155, Ex. 3, at 19-20.
Given the record here, there is evidence from which a reasonable juror
could conclude that Defendant APRN Carey acted with deliberate indifference
on or after February 3, 2022. Her chronic care notes outline Mr. May’s
worsening Alzheimer’s, his inability to walk without assistance, and that he
had not eaten or showered in a week. She agreed Mr. May had been in jail too
long and, from a medical standpoint, did not belong in jail. Id. at 26. She
testified he had a risk of falling. Id. at 28. She knew he had been moved close
to the booking area “because he wasn’t eating or showering.” Doc. 155, Ex. 18.
Her concerns were “worsening of those things.” Doc. 155, Ex. 3, at 28. And that
is exactly what happened without more intensive treatment outside of the
Jail’s setting. She neither attempted to follow up with Defendant Unruh, the
only medical professional physically present at the Jail, nor did she supervise
Defendant Unruh. Id. at 16-17, 51-52. She only set a follow-up telehealth visit
for Mr. May—90 days from when she observed his rapidly deteriorating
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condition.4 See Lucas, 58 F.4th 1127, 1142 (10th Cir. 2023) (“Dr. Myers entirely
failed to monitor her afterwards to determine if his treatment plan, if it can
even be described as such, was working. Thus, Dr. Myers is not insulated from
liability by providing some initial modicum of care and then proceeding to
otherwise ignore all of Ms. Caddell’s serious medical symptoms.”).
Defendant APRN Carey also contacted Adult Protective Services to try
to arrange for care for when Mr. May was released. Her urgent efforts
underscore her concerns for his continued decline. Doc. 155, Ex. 2, at 2-3 & Ex.
3, at 19-20. And, within ten days, Mr. May was incontinent and had developed
a bed sore requiring prescription ointment, which Defendant APRN Carey
prescribed. A day later, feces got into the wound, a risk Defendant APRN Carey
would know of, given her training. Having viewed the evidence in the light
most favorable to the Plaintiffs, the undersigned concludes a genuine dispute
remains as to whether Defendant APRN Carey properly treated Mr. May. So
4 	Plaintiff’s expert Dr. Berk testified that Defendant APRN Carey should
have sought a higher level of care for Mr. May on February 3, 2022. Doc. 155,
Ex. 22, at 6 (“If you’re that concerned about the care of this patient and feel
like they need a nursing home. . . . that means inherently they need a higher
level of care than what can be provided in the jail and, therefore, a higher level
of care should have been sought.”); see also Doc. 155, Ex. 4, at 8.
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she has not established that she is entitled to judgment as a matter of law as
to deliberate indifference under the failure to properly treat theory.
2. 	Liability under the gatekeeper theory.
Similarly, 	Plaintiffs 	have 	presented 	sufficient 	evidence 	to 	allow 	a
reasonable fact finder to consider the objective and subjective components of
deliberate indifference under the gatekeeper theory. Defendant APRN Carey
was the only medical professional licensed to perform a medical assessment.
Doc. 155, Ex. 15, at 5-6. She testified that it was her medical judgment that
Mr. May did not belong in the Jail. Doc. 155, Ex. 3, at 25-26. Defendant APRN
Carey contacted Adult Protective Services but she did not follow up with them.
And she testified that contact was for arrangements for when he was released
from the Jail. Id. at 15. Given the information she had about Mr. May’s
worsening condition, a juror could find she was deliberately indifferent in
failing to either coordinate or seek off-site specialty care for Mr. May. Paugh,
47 F.4th at 1155; see also id. at 1160 (“[A] reasonable jury could find that [the
defendant] . . . was aware that [the inmate] was in obvious need for medical
attention, and . . . abdicated her gatekeeping role by not relay[ing] the problem
to medical staff.” (quotations omitted)).
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IV. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
deny Defendant APRN Carey’s motion for summary judgment. Doc. 139.
The undersigned advises Defendant of her right to file an objection to
this report and recommendation with the Clerk of this Court on or before April
21, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil
Procedure 72(b)(2). The undersigned further advises Defendant that failure to
make a timely objection to this report and recommendation waives the right to
appellate review of both factual and legal questions contained herein. Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation does not terminate the referral to the
undersigned Magistrate Judge in this matter.
ENTERED this 31st day of March, 2026.
Case 5:24-cv-00119-JD Document 183 Filed 03/31/26 Page 20 of 20