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, arthritis, high blood pressure, a worsening bed sore,
incontinence, and difficulty walking. Id. at 6; Doc. 157, at 11. 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 1;
see generally Doc. 1. United States District Judge Jodi W. Dishman referred
this matter to the undersigned Magistrate Judge consistent with 28 U.S.C.
§ 636(b)(1)(B), (C). Doc. 3.
Before the Court is Defendant Turn Key Health Clinics, LLC’s (Turn
Key) Motion for Summary Judgment, Doc. 142. Plaintiffs filed a response in
opposition, Doc. 157, and Turn Key has replied. Doc. 180. So the matter is at
issue.1 The undersigned recommends the Court deny Turn Key’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” (internal
quotation 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 (second alteration in
original) (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.
Defendant 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 Couty Jail. Doc. 142, at 7. 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. at 7-8. The contract also requires that
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a physician or mid-level provider provide 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. Id. at 8.
During the relevant dates, Defendant LPN Stacia Unruh worked as a
Turn Key employee at the Jail. Id. Defendant Advanced Practice Registered
Nurse (APRN) Tamara Carey was also employed by Turn Key and provided
telehealth visits at the Jail. Id.
On January 25, 2022, Mr. May was transferred to the Jail from the
Canadian County Jail. Id. Two days later, LPN Unruh conducted a medical
intake screening 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 	general 	appearance,
behavior, level of consciousness, breathing, and his mobility. Id. at 8-9. She
noted his gait was “stable” and made no note that Mr. May needed a cane or
wheelchair. Doc. 155, Ex. 2, at 19-25.
On February 2, 2022, Mr. May’s cellmate notified Defendant Officer
Julie Warnke that Mr. May had not eaten in several days and refused to
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shower. Doc. 155, Ex. 17 (Jail Incident Report).2 The inmate filed a sick call
request 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, in a grievance form, the inmate wrote, “weve told staff
and they aint done shit this old man marvin hasn’t eaten or showerd in days
he 	needs 	real 	medical 	help 	. 	. 	.” 	Doc. 	155, 	Ex. 	34, 	at 	1.
To each, Jail Officer Angie Schmidt responded: “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. That same day, Officer Warnke had Mr. May moved
to his own cell in the “booking area,” “to be monitored for his behavior and
eating habits.” Doc. 155, Ex. 17. 	She testified that those cells were reserved
“just for an emergency like this.” Doc. 134, Ex. 15, at 44. She recorded that Mr.
May was “to be offered a protein shake with every meal & charted on ODIS if
he eats his meal or drinks his share per Lt. [Martha] Stanford.” Doc. 155, Ex.
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 identical evidence is cited amongst the
parties.
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17. 3 LPN Unruh scheduled Mr. May for a telehealth visit with APRN Carey
the next day. Doc. 142, at 9.
On February 3, 2022, APRN Carey conducted a Chronic Care Provider
visit with Mr. May via telemedicine. Id. & Ex. 2, at 35-36. APRN Carey
assessed 	Mr. 	May’s 	condition, 	obtained 	his 	medical 	history, 	changed 	his
medication prescriptions, and scheduled a follow-up appointment for 90 days
later. Doc. 142, at 9 & Ex. 2, at 35-36. Defendant Unruh “assisted with some
of it.” Doc. 155, Ex. 15, at 3. A jail incident report noted that ARPN Carey
observed Mr. May’s “mental condition appeared to be deteriorating rapidly”
and “she wanted to notify adult protective services about his well being due to
his deteriorating mental state.” Id. Ex. 18.
“On or around February 10 or 11th, 2022, [LPN] Unruh” examined a
wound on Mr. May’s right hip, entered a Wound Care Note, and reported the
wound to APRN Carey who ordered that antibiotic ointment be applied daily.
Doc. 142, at 10; Doc. 155, Ex. 11, at 17. LPN Unruh looked at Mr. May’s sore
again on February 14, 2022. Doc. 142, at 10. After February 14, 2022, LPN
Unruh had no further notes in Mr. May’s file and never saw him again. Id.
3 	Lieutenant 	Martha 	Stanford, 	a 	non-defendant, 	supervised 	Officer
Warnke. Doc. 155, Ex. 20, at 4.
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After February 14, 2022, officers applied the ointment, checked his blood
pressure, and gave him his medications. Doc. 155, Ex. 25 (Jail Entry Report).
Officer Warnke testified that after February 14, 2022, she continued to
keep LPN Unruh updated about Mr. May. Doc. 155, Ex. 11, at 39. She would
tell LPN Unruh there’s not really any “change in him,” and ask is there
“anything we can do?” Id. And LPN Unruh would respond, “No.” Id. at 39-40.
Jail staff reported to Officer Warnke that Mr. May was not showering or
eating. Id. at 41. She would encourage Mr. May to shower and eat, “[a]nd nine
times out of ten, he’d take a shower.” Id. She saw him and spoke with him each
day she worked. Id. at 14. Officer Warnke was well-aware of Mr. May’s
incontinence. Id. at 19, 41-42. She updated LPN Unruh that Mr. May was still
not eating, and unable to get around. Id. at 43-44. She also did not dispute the
facility’s meal log which showed Mr. May refused 118 of 132 meals offered to
him. Id. at 22. And she agreed with the staff note that said Mr. May had not
eaten in three weeks. Id. at 26-27.
On March 17, 2022, Officer Warnke filed a Jail Incident Report noting
Mr. May refused to “[s]et up” for a blood pressure check, and that he told her
he was “fine” and “okay.” Doc. 142, Ex. 2, at 55. She noticed a pair of “soiled
orange clothes,” and she encouraged him to take a shower, but he refused. Id.
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On March 18, 2022, Mr. May was discovered on the floor of his cell and
became unresponsive when jail staff tried to “sit him up.” Id. at 56. The
Sheriff’s Department notes from a responder state Mr. May was “naked from
the waist down” and “cov[er]ed in dried feces.” Doc. 155, Ex. 38. The responder
further notes that “[t]he jail staff stated [Mr. May] ha[d] not ate or drank
anything in 3 weeks.” Id. Jail staff also stated that they “were unsure of the
last time [he] was seen normal.” Id. Ex. 39. Mr. May’s “pupils [were] pinpoint”
and he “was unable to speak” or “follow directions.” Id. The officers tried to
revive him with an ammonia pack but this had a “limited response.” Doc. 142,
Ex. 2, at 57. Officers then called for an ambulance. Id. at 56.
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, concluded 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.
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III. 	Standard of review for Turn Key’s liability.
A plaintiff may sue local governing bodies directly for constitutional
violations pursuant to the body’s policies. Monell v. Dep’t of Soc. Servs. of N.Y.,
436 U.S. 658, 690-91 (1978). And Monell extends to “private entities acting
under color of state law,” such as medical contractors like Turn Key. Dubbs v.
Head Start, Inc., 336 F.3d 1194, 1216 (10th Cir. 2003).
To establish municipal liability, a plaintiff must show: (1) the existence
of a policy or custom, (2) a direct causal link between the policy or custom and
a constitutional injury, and (3) that the municipality acted with deliberate
indifference. Prince v. Sheriff of Carter Cnty., 28 F.4th 1033, 1048-51 (10th Cir.
2022). “A core principle of Monell liability is that municipal entities are liable
for only their own actions and not vicariously liable for the actions of their
employees.” Crowson v. Washington Cnty., 983 F.3d 1166, 1191 (10th Cir.
2020). But “[b]ecause municipalities act through officers, ordinarily there will
be 	a 	municipal 	violation 	only 	where 	an 	individual 	officer 	commits 	a
constitutional violation.” Id. So “municipal liability arises when an individual
defendant violates a pretrial detainee’s rights while aligning with an official
municipal policy or custom.” Barlean v. Oklahoma Cnty. Crim. Just. Auth., No.
CIV-23-00488-JD, 2024 WL 4480184, at *2 (W.D. Okla. Oct. 11, 2024).
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There is also a “limited exception to the requirement of individual
unconstitutional action.” Buchanan v. Turn Key Health Clinics, LLC, 2023 WL
6997404, at *7 (10th Cir. 2023) (quotations omitted). “[W]hen a municipal-
liability claim is premised on the municipality’s ‘systemic failure[s],’ no single
individual defendant need be found liable. Rather, ‘the combined acts or
omissions of several employees acting under a governmental policy or custom
may violate an individual’s constitutional rights.’” Johnson v. Davis Cnty.,
2022 WL 830202, at *3 (10th Cir. 2022) (internal citation omitted) (quoting
Crowson, 983 F.3d at 1186); see also Crowson, 983 F.3d at 1192 (recognizing
that 	even 	if 	health 	care 	providers 	“[do] 	not 	violate 	the 	Constitution
individually, . . . their combined acts may be sufficient for Monell liability such
that [a plaintiff] still has a claim for municipal liability irrespective of whether
[an 	individual 	health 	care 	provider] 	violated 	his 	rights”; 	distinguishing
between claims against a county premised on “systemic failures” and claims
dependent upon a “predicate violation” by an individual defendant. (quotations
and citation omitted)). That is, “the municipality may not escape liability by
acting through twenty hands rather than two.” Thao v. Grady Cnty. Crim.
Just. Auth., 159 F.4th 1214, 1233 n.13 (10th Cir. 2025) (quoting Crowson, 983
F.3d at 1191). Whatever Monell theory a plaintiff advances, it is well settled “a
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claim under § 1983 against either an individual actor or a municipality cannot
survive a determination that there has been no constitutional violation.”
Crowson, 983 F.3d at 1186.
IV. 	Individual actions.
Plaintiffs 	allege 	that 	Turn 	Key 	employees 	violated 	Mr. 	May’s
constitutional right to adequate medical care and that Turn Key’s policies or
customs served as the moving force behind these violations. Doc. 157, at 18-24.
A. The underlying constitutional violations.
The undersigned recommended that the Court deny Defendants LPN
Unruh and Defendant APRN Carey’s motions for summary judgment, given
that a jury could reasonably find each deliberately indifferent under both the
failure to treat and gatekeeper theories. Docs. 183 & 184.
On February 2, 2022, an inmate notified Defendant Warnke that Mr.
May had not eaten in several days and refused to shower. Doc. 155, Ex. 17 (Jail
Incident Report). That resulted in Officer Warnke moving Mr. May to a cell
next to LPN Unruh’s office, close to the booking area “to be monitored for his
behavior and eating habits.” Id.; Doc. 155, Ex. 33, at 2 & Ex. 34, at 1. APRN
Carey was aware Mr. May had been moved. Doc. 155, Ex. 18.
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The next day was Mr. May’s medical visit with APRN Carey. Officer
Warnke’s 	Jail 	Incident 	Report 	notes 	state 	Mr. 	May 	was 	brought 	in 	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’s Jail Incident Report notes state that after the visit,
APRN Carey stated 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. [ARPN] 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 Mr. May’s February 3, 2022
telemedicine visit with APRN Carey, that Carey told her and LPN Unruh she
wanted to contact Adult Protective Services, and that she had “seen forms come
through” from Adult Protective Services. Doc. 155, Ex. 11, at 12, 23.
APRN Carey’s February 3, 2022 chronic care note from Mr. May’s visit
documented Mr. May’s COPD, and that she knew of Mr. May’s “worsening
Alzheimer’s disease.” Doc. 155, Ex. 35, at 1. “Per officer [Warnke]” she noted
Mr. May had “not eaten or showered” in seven days. Id. She noted that Mr.
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May could not “ambulate safely alone” and scheduled another visit with her for
90 days later. Id. at 2.
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] uses a cane or a wheelchair, since [he] is not allowed to
use a cane in the jail. Reporter stated [Mr. May] has Alzheimer’s.
He can speak and talk, but his symptoms are getting worse. . . .
Reporter stated they do not believe [Mr. May] needs to be in jail
for 	missing 	court. 	Reporter 	does 	not 	know 	what 	the 	home
conditions are. Reporter feels [Mr. May] needs to be in a nursing
home or something, not in jail. [He] has been incarcerated for at
least 2-3 months, maybe longer, but too long from a medical
standpoint. . . . Reporter stated they saw [Mr. May] today via
telemedicine. The staff at the jail are reporting [he] has not eaten
or showered in 7 days. Reporter stated if [Mr. May] is not getting
up to eat or shower, no one is telling him to.
Doc. 155, Ex. 2, at 2-3. APRN Carey confirmed the accuracy of the email as the
summary of the report she gave 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 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 from a
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medical 	standpoint 	and 	that 	he 	did 	not 	belong 	in 	jail, 	from 	a 	medical
standpoint. Id. at 26. She testified Mr. May 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 the Jail’s setting. She never attempted to follow
up with Defendant Unruh, the only medical professional physically present at
the Jail. Id. at 16-17, 51-52.
Nor did APRN Carey supervise Defendant Unruh “to ensure that [she]
was medically 	monitoring Mr. 	May[’s] 	condition.” 	Id. 	at 	51-52. She only
scheduled a follow-up telehealth visit for Mr. May—90 days from when she
observed his rapidly deteriorating condition. Doc. 155, Ex. 35, at 2.
APRN Carey also contacted Adult Protective Services on February 3,
2022, to try to arrange for care for when Mr. May was released. Doc. 155, Ex.
2, at 2-3 & Ex. 3, at 19-20.4 Her urgent efforts underscore her concerns for Mr.
4 	Plaintiff’s expert Dr. Berk testified that 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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May’s continued decline. And his decline continued. Within ten days, Mr. May
was incontinent and had developed a bed sore requiring prescription ointment,
which APRN Carey prescribed. Doc. 142, Ex. 4, at 21.
APRN Carey was the only medical professional licensed to perform a
medical assessment as LPN Unruh could not perform a medical assessment.
See Doc. 155, Ex. 15, at 5-6. There is no indication she gave monitoring
instructions to LPN Unruh. She testified that it was her medical judgment that
Mr. May did not belong in the Jail. Doc. 155, Ex. 3, at 25-26. APRN contacted
Adult Protective Services, as noted, 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 by not contacting
an off-site specialty care service to treat Mr. May. Paugh v. Uintah Cnty., 47
F.4th 	1139, 	1160 	(10th 	Cir. 	2022) 	(“[A] 	reasonable 	jury 	could 	find 	that
Anderson 	abdicated 	her 	gatekeeping 	duties 	by 	failing 	to 	obtain 	medical
assistance for Paugh. Anderson understood that if Paugh exhibited red flags of
alcohol withdrawal, meaning that if his condition worsened . . . in any way, she
would have to return him to the hospital.”) (internal quotation marks and
record citations omitted); see also Stella v. Davis Cnty., 2024 WL 4764694, at
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*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). Under both the failure to provide medical treatment and gatekeeper
theories, there is evidence of APRN Carey’s constitutional violations.
Similarly, for LPN Unruh, Officer Warnke testified that LPN Unruh
worked at the Jail for “12 hours a week.” Doc. 155, Ex. 11, at 13. Officer Warnke
testified she regularly reported to LPN Unruh about Mr. May’s status. Id. (“I
kept Stacia Unruh updated.”).
LPN Unruh testified that after February 11, 2022, she did not enter any
more wound care notes for Mr. May because the Jail’s officers were “monitoring
the wound care” after that date. Doc. 155, Ex. 15, at 8. She clarified that if the
wound got worse, the officers were to report to her or the provider. Id. at 9. She
did not recall ever getting a report that the wound was worsening. Id. She
testified she was never alerted of any reason she needed to go check on Mr.
May after her last treatment of him on or around February 14, 2022. Id. at 15.
While it appears true that there are no Jail Entry Reports about Mr.
May’s wound from February 23, 2022 through March 16, 2022, LPN Unruh’s
care for Mr. May was not limited to wound care, given his many ailments.
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Officer Warnke testified that on February 14, 2022, she and LPN Unruh
encouraged Mr. May to shower (which he did), and then Nurse Unruh looked
at his wound and applied the ointment. Doc. 155, Ex. 11, at 38-39. After this,
Officer Warnke testified she continued to keep Nurse Unruh updated about
Mr. May’s condition. Id. at 39-40. When she would ask Nurse Unruh if there
was anything they could do for Mr. May, Nurse Unruh would answer “No.” Id.
Unruh knew that Mr. May was sometimes refusing meals and was being
offered protein shakes, which he also refused at times. See Doc. 155, Ex. 18.
Officer Warnke testified that because Mr. May was in the booking area,
“anybody could walk by his cell” to check on him, but that if Nurse Unruh had
a lot of sick calls, she might have been too busy to see him. Doc. 155, Ex. 11, at
40. Officer Warnke testified Turn Key ordered the adult diapers for Mr. May
and that she recalled telling LPN Unruh that Turn Key was “ordering adult
diapers for him.” Id. at 42. Officer Warnke also believed that LPN Unruh “was
charting 	and 	keeping 	in 	contact 	with 	[APRN] 	Carey” 	about 	Mr. 	May
throughout his stay. Id. at 46. She believed “[LPN] Unruh was contacting a
provider regarding Mr. May . . . or documenting on him.” Doc. 142, Ex. 9, at 8.
Officer Warnke testified that LPN Unruh expressed concern about Mr.
May’s sore becoming infected. Doc. 155, Ex. 11, at 17-18. Officer Warnke
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testified 	that 	her 	own knowledge 	in 	applying the 	antibacterial ointment
stemmed only “from what [she had] observed at . . . nursing homes,” and did
not know if her fellow officers had any trainings in applying the ointment. Id.
at 18. In fact, fellow Officer Michael McCowen noted as early as February 13,
2022, that Mr. May’s feces “got . . . in his sore.” Doc. 155, Ex. 25, at 4.
Officer McCowen testified that he was the first one to place adult diapers
on Mr. May, because he was “just laying there defecating and urinating on
himself in the bed.” Doc. 155, Ex. 23, at 4. He told Officer Warnke and Lt.
Stanford about this. Id. at 5-6. Officer McCowen testified that it concerned him
that Mr. May was “not eating,” not “lucid,” “not ambulatory” and “laying in his
own waste.” Id. at 6. He testified that he and his fellow detention officers
mentioned to Officer Warnke and Lt. Stanford that they believed Mr. May
belonged in a hospital or a nursing home. Id. at 5-6.
LPN Unruh testified she was “not sure . . . whenever [Mr. May] even
started defecat[ing] on himself or urinating on himself,” Doc. 142, Ex. 5, at 11,
and did not recall if he was wearing a diaper on February 10, 11, or the 14th.
Id. at 10-14, 16. She testified she did not recall knowing Mr. May needed to
wear a diaper on February 14, 2022, the day after Officer McCowen reported
feces had gotten into Mr. May’s wound. Id. at 16.
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Officer Brayan Alvarado also testified that for the “last two to three
weeks” before Mr. May’s death “the whole jail staff kind of knew” that Mr. May
“need[ed] to go somewhere,” Doc. 155, Ex. 21, at 14, i.e., “a facility that can
take care of him.” Id. He clarified that he meant a “medical facility.” Id.
Given the record present before the Court, there is evidence from which
a reasonable juror could conclude that Nurse Unruh acted with deliberate
indifference to Mr. May’s medical needs. She knew he was moved close to
booking on February 2, in fact “next to her office,” because of concern for his
medical status. Doc. 148, at 2; Doc. 142, Ex. 5, at 28, 29. She knew his
Alzheimer’s was worsening, given ARPN Carey’s Chronic care notes. She knew
he could not walk without assistance. She knew Turn Key was ordering adult
diapers for Mr. May, she knew he had a bed sore requiring prescription
bacterial ointment with routine applications, and expressed concern about it
getting infected. Doc. 155, Ex. 11, at 17-18, 20, 38-39. And a quick look at the
February 13, 2022 Jail Entry Report would have informed her that feces did in
fact get into Mr. May’s bed sore. Doc. 155, Ex. 25, at 4.
During her weekly shifts at the jail from February 14 through March 17,
2022, she did not stop in to check on Mr. May, who was housed next door to her
office. Doc. 142, Ex. 5, at 29. A reasonable juror could conclude that Nurse
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Unruh acted with deliberate indifference to Mr. May’s medical needs by not
checking in on him in person even once over the four weeks he was there before
he fell from his bunk. The record shows that LPN Unruh failed to treat Mr.
May or provide him with proper medical care based on her knowledge of his
medical condition. Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1139
(10th 	Cir. 	2023) 	(“[M]erely 	doing 	something 	(with 	no 	reference 	to 	the
underlying condition) does not necessarily insulate one from liability.”).
Similarly, there is evidence from which a reasonable jury could conclude
that LPN Unruh acted with deliberate indifference under the “gatekeeper”
theory. LPN Unruh was the only medical professional at the Jail, present two
days a week. Doc. 142, Ex. 5, at 4; see e.g., Doc. 155, Ex. 15, at 9-11. She is not
allowed to perform patient assessments. Doc. 155, Ex. 15, at 5. Turn Key
argues LPN Unruh properly exercised her professional judgment whenever she
was notified of Mr. May’s need for treatment. See Doc. 180, at 10. But given
the information she had about Mr. May’s worsening condition, a juror could
find it deliberately indifferent not to contact APRN Carey to update her or
anyone else who might assess him. 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
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gatekeeping role by not relay[ing] the problem to medical staff.” (quotations
omitted)).
V. 	Systemic failure of medical policies and procedures at the Jail.
Plaintiffs allege that Turn Key maintained an unconstitutional health
care delivery system. Doc. 157, at 20-23. Plaintiffs maintain that Turn Key
provided inadequate staffing and procedures. Id. at 21 (citing Prince, 28 F.4th
at 1049-51). They argue that having one LPN available up to twelve hours a
week was insufficient for 150 inmates. Id. at 21-22 (citing Officer Warnke’s
testimony, Doc. 155, Ex. 11, at 24-25). APRN Carey provided telehealth visits
once a week for 150 inmates at Custer County, was on call for two weeks at a
time, and was responsible for thirteen or fourteen facilities. Id. at 23 (citing
APRN Carey’s testimony, Doc. 155, Ex. 3, at 33-35, 50-51).
As relevant here, Plaintiffs raise the Monell claim that Turn Key’s
failures “are the driving force behind [] constitutional violation[s] by [Carey
and/or Unruh].” Crowson, 983 F.3d at 1186.
Turn Key relies on its arguments that no underlying constitutional
violation occurred and that neither APRN Carey nor LPN Unruh acted with
deliberate indifference. Doc. 142, at 16-19. And that it had a system in place to
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contact a medical provider if needed that was known to the Jail's officers, and
it was presumably not needed with respect to Mr. May. Id. at 20.
As to its underlying policies, Turn Key argues that Plaintiffs’ expert Dr.
Berk did not review any of Turn Key’s policies, and that he was not sure if some
of the “written policies and procedures” he reviewed were in fact Turn Key
policies. Id. at 30. At bottom, Turn Key argues that the 12-hour nursing
schedule 	combined 	with 	the 	off-site 	round-the-clock 	provider 	provided
continuous access to medical care. Id. at 34-35; Doc. 180, at 14.
Turn Key argues that “Plaintiffs’ criticisms” seems to be with the Jail’s
budgetary limitations, Doc. 180, at 13, and that it complied with its contractual
obligations. Turn Key also argues that Dr. Berk acknowledged that with twelve
hours 	of 	nursing 	care 	a 	week 	staffed, 	facilities 	such 	as 	the 	Jail 	would
necessarily have to rely on sending patients to emergency rooms. Id. at 14-15;
Doc. 142, Ex. 7, at 18-19.
With respect to Mr. May’s missing meals, and how many missed meals
might amount to a medical emergency, Officer Michael McCowen testified he
did “not feel that [he] had the authority to make that call.” Doc. 155, Ex. 23, at
13. He understood he was to take Mr. May’s blood pressure, and monitor “him
during 	the 	day.” 	Id. 	at 	13-14. 	He 	also 	cleaned 	Mr. 	May’s 	wound, 	but
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acknowledged he received no training with respect to wound care. Id. at 10-11,
13-14. And he did not know if a nurse was providing wound care and he had
no training as to what fluctuating blood pressure might indicate. Id. at 14-15.
Similarly, Officer Brayan Alvarado testified he had no training as to what
signs or symptoms might indicate an emergent condition. Doc. 155, Ex. 21, at
15. He also did not know what blood pressure readings “might indicate an
emergent medical condition.” Id. at 16. He maintained it was Turn Key and
Officer Warnke who would know what blood pressure readings indicated an
emergent condition “because they[] [were] the ones supervising that.” Id.
Officer 	McCowen 	testified 	that 	for 	inmates 	whose 	mental 	health
conditions exceeded the jail’s ability to treat, he would verbally advise up the
chain of command. Doc. 155, Ex. 23, at 16-18. As to whether an inmate with
mental 	health 	issues 	could 	ever 	just 	go 	directly 	to 	the 	hospital, 	Officer
McCowen answer that he did not know, that “decision[] would have been made
outside of [his] realm.” Id. at 18.
Officer Alvarado verbally alerted his supervisors that he thought Mr.
May should not be housed where he was, and the staff and inmates agreed the
“jail was not fully equipped to take care of [Mr. May.]” Doc. 155, Ex. 21, at 5,
14. 	He 	testified 	Mr. 	May 	spoke 	mostly 	“gibberish,” 	was 	in 	his 	diaper
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“generally,” was not eating or walking, and he believed Mr. May needed “a
medical facility” that could take care of him. Id. at 11-15. But, he was not going
to going over the heads of his supervisors, as that was “above [his] pay grade.”
Id. at 14.
Officer McCowen clarified that if Mr. May had a medical emergency, he
would call EMS, not Turn Key. Doc. 142, Ex. 14, at 5. And Officer Alvarado
testified that “[e]verything would be . . . funneled to [Officer] Warnke, then
from Warnke to Turn Key,” but he did know he could contact Turn Key, and
EMS if necessary. Doc. 142, Ex. 15, at 3, 6.
Returning to Turn Key and its employees, APRN Carey was on call for
twenty-four hours for thirteen or fourteen facilities for two weeks at a time.
Doc. 155, Ex. 3, at 34, 51. She testified she was overwhelmed and reported this
to Dr. William Cooper, Turn Key’s Chief Medical Officer. Id. at 35, 51. And in
the end, APRN Carey resigned in part due to how overwhelmed she was from
covering “seven jails” and getting calls “all through the day [and] all through
the night.” Id. at 32. Nurse Unruh testified that her training was nothing more
specific than a “general shadowing on the job.” Doc. 142, Ex. 5, at 4.
Dr. Cooper testified that Turn Key does not keep a log of preventable
deaths, but admitted that doing so might help determine whether systemic
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problems contributed to these deaths. Doc. 155, Ex. 42, at 3, 5. He testified that
Turn Key reviewed all in-custody deaths. Id. at 4. He admitted that there is no
written record as to whether Turn Key has educated its staff on what it may
have done wrong if there was a systemic problem. Id. at 8. Dr. Cooper testified
that he didn’t recognize a systemic problem. Id. He testified he recognized a
total of three preventable deaths at Turn Key, but he could not remember who
those persons were. Id. at 8-9. He testified that he would have to consider
whether keeping a log of preventable deaths would “put [him] at a higher
liability 	risk 	or not.” 	Id. 	at 6. 	He testified that Turn 	Key does not 	log
preventable deaths because doing so is not required. Id. at 5, 12.
Turn Key did not employ a licensed physician, nor a Registered Nurse,
nor an on-site provider, and its contract with the Jail did not require it to do
so. See Doc. 142, Ex. 1 (Turn Key contract). It did not track preventable deaths
nor train its staff on systemic problems, because it was not required to do so.
Outside of the twelve hours LPN Unruh was present per week, untrained jail
guards were left to provide medical care to the inmates, including Mr. May.
They were left to determine when emergent medical conditions arose. And even
then, the untrained jail guards would only verbally alert superiors, and Officer
Warnke was advising LPN Unruh.
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Turn Key’s unofficial policies or customs drove the actions of APRN
Carey, 	who 	knew 	of 	Mr. 	May’s 	many 	preexisting 	conditions, 	and 	his
deteriorating mental and physical state. She called Adult Protective Services
on his behalf, and told them Mr. May had been incarcerated for far too long
already. Turn Key’s unofficial policies or customs also drove the actions of LPN
Unruh who knew of Mr. May’s precipitous decline, but still failed to check on
him or alert APRN Carey of his need for a greater level of care following her
last recorded interaction with him on February 14, 2022. See Doc. 142, Ex. 5,
at 29.
Viewing 	the 	evidence 	in 	the 	light 	most 	favorable 	to 	Plaintiffs, 	a
reasonable jury could find that Turn Key had unofficial policies or customs of
failing to provide sufficient medical staffing and resources which contributed
to delays in medical attention resulting in deliberate indifference toward Mr.
May’s medical needs. Further, a reasonable jury could conclude that Turn Key
acted with deliberate indifference to these failures and that these policies
caused Mr. May’s death.
VI. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
deny Defendant Turn Key’s motion for summary judgment. Doc. 142.
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The undersigned advises the parties of their rights 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 the parties 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.
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