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 arthritis, dementia, high blood pressure, a worsening bed sore,
incontinence, and difficulty walking. Id. at 6; Doc. 155, at 17. 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 alleging Defendants deprived Mr. May of medical
care in violation of his rights under the Fourteenth Amendment of the U.S.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 1 of 31

2
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 	for 	initial 	proceedings 	consistent 	with 	28 	U.S.C.
§ 636(b)(1)(B), (C). Doc. 3.
Before 	the 	Court 	is 	Defendant 	Custer 	County 	Sheriff’s 	Motion 	for
Summary Judgment, Doc. 135. Plaintiffs filed a response in opposition, Doc.
155, and the Sheriff has replied. Doc. 176. So the matter is at issue.1 The
undersigned recommends the Court deny the Sheriff’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.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 2 of 31

3
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 (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.
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. 135, at 9.
The contract requires Turn Key to provide twelve hours of weekly “on-site
nursing services.” Doc. 155, Ex. 13, at 4 (Turn Key Contract). The contract also
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 3 of 31

4
requires that 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 for “emergency
consultation.” Id.
During the relevant dates, Defendant Licensed Practical Nurse (LPN)
Stacia Unruh worked as a Turn Key employee at the Jail two days a week. Doc.
135, at 9. She served as the only medical professional physically present at the
Jail. Doc. 155, at 10-11. The Jail employed Defendant Officer Warnke as its
“medical officer,” but she was not a medical provider. Doc. 135, at 9; Doc. 155,
at 12. Defendant Warnke had eight years of experience taking care of patients
with Alzheimer’s and dementia, including patients in a memory care unit. Doc.
135, at 9. She was certified as a Certified Nursing Assistant (CNA) in 2001,
and as a Certified Medication Aide (CMA) in 2009. Id. Her CMA certification
expired in 2011. Doc. 155, at 12 & Ex. 16. She could take vital signs, check
blood sugar, pull medical charts, set up for the Turn Key nurse during patient
visits, and served as the liaison between the Jail and Turn Key. Doc. 135, at 9-
10; Doc. 155, at 13.
On January 25, 2022, Mr. May was transferred to the Custer County Jail
from the Canadian County Jail due to an outstanding warrant. Doc. 135, at 8.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 4 of 31

5
He was asked questions from the medical questionnaire. Id. at 10. Two days
later, LPN Unruh conducted an intake screening on Mr. May. Id. LPN Unruh
noted his gait was “stable” and made no note that Mr. May needed a cane or
wheelchair at that time. Doc. 155, Ex. 12, at 3.
On February 2, 2022, Mr. May’s cellmate notified Officer 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 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.” Id. Ex. 33, at 2 & Ex. 34, at 1. That same
day, Officer Warnke had Mr. May moved to his own cell with a shower in the
“booking area,” “to be monitored for his behavior and eating habits.” Doc. 135,
at 10 & Ex. 17, at 2. She testified that those cells were reserved “just for an
emergency like” Mr. may’s situation. Doc. 134, Ex. 15, at 44. She recorded that
Mr. May was “to be offered a protein shake with every meal & charted on ODIS
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 5 of 31

6
if he eats his meal or drinks his share per Lt. [Martha] Stanford.” Doc. 135, Ex.
17, at 2.2 This placement also exposed Mr. May to fewer people who could
possibly give him COVID-19. Doc. 135, at 10.
On February 3, 2022, Defendant Advanced Practice Registered Nurse
(APRN) Tamara Carey conducted a Chronic Care Provider visit with Mr. May
via 	telemedicine. 	Id. 	at 	11. 	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. Id. & Ex. 14, at 35-36.
APRN Carey noted that Mr. May’s “mental condition appeared to be
deteriorating rapidly,” and that “she wanted to notify adult protective
services about [Mr. May’s] well-being due to his deteriorating mental
state.” Doc. 155, at 13 (emphasis added by Plaintiffs) (quoting id. Ex. 18).
After the telemedicine visit on February 3, Officer Warnke, and Officer
Schmidt contacted Mr. May’s defense counsel, Mr. Teo Diaz. Doc. 135, at 11 &
Ex. 20 (recording). Officer Warnke wanted to see whether Mr. Diaz could get
Mr. May to “court faster.” Doc. 135, at 11. Officers Warnke and Schmidt
informed Mr. Diaz that Mr. May had dementia, and that he was not eating or
2 	Lieutenant 	Martha 	Stanford, 	a 	non-defendant, 	supervised 	Officer
Warnke. Doc. 155, Ex. 20, at 4.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 6 of 31

7
drinking protein supplement shakes. Id. Mr. Diaz acknowledged the court date
could be moved with the agreement of the district attorney and the state court
judge. Doc. 135, Ex. 20, at 2:28-2:45. Officer Warnke told Mr. Diaz that Turn
Key was “worried” and “it” called Adult Protective Services because of concerns
for what would happen to Mr. May when he got out as “he really need[ed] to be
in a nursing home.” Id. at 3:26-3:25. She added: “We were- we’re concerned
about Mr. May. He’s not eating, he won’t even drink the Ensure that we give
him. And he's been here since 25th of last month.” Id. at 3:42-4:02.
When Mr. Diaz asked whether Mr. May needed to be in the emergency
room, Officer Warnke replied she “wasn’t sure about that” as “the nurse saw
him this morning” and that “she didn’t say anything about sending him to the
hospital so I’m not sure.” Id. at 4:06-4:54. Mr. Diaz said, given that the
courthouse was closed for the day and the weather conditions, it would be up
to the Jail to keep a closer eye on Mr. May. Id. at 6:30-6:59. And Officer Warnke
said, “yeah, we’ve got him moved up front so we can keep an eye on him.” Id.
at 8:06-8:11. Mr. Diaz reiterated it would be up to “you guys,” the doctor and
nurse on duty, to handle Mr. May’s medical condition. Id. at 8:49-8:55.
Shortly after she moved Mr. May to the cell in the booking area, Officer
Warnke arranged for him to meet with her and Undersheriff David Crabtree.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 7 of 31

8
Doc. 135, at 12. Undersheriff Crabtree testified he was the de facto Jail
Administrator. Doc. 155, Ex. 14, at 4. Undersheriff Crabtree encouraged Mr.
May to shower and have a protein shake, and Mr. May showered and had some
of the shake. Doc. 135, at 12. Undersheriff Crabtree followed up with Officer
Warnke about Mr. May on February 7 or 8. Id. After finding out Mr. May was
not improving, Undersheriff Crabtree sought out the first assistant district
attorney (ADA). Id. Undersheriff Crabtree told the ADA Mr. May did not
belong in jail, and the ADA informed him that he would seek to obtain a mental
competency evaluation for Mr. May. Id. at 12-13.
Undersheriff Crabtree advised the staff that if “this continues on, [he]
need[ed] to know, so [he] [could] go and make different arrangements . . . . Or
if [Mr. May] need[ed] medical attention . . . in a hospital.” Doc. 155, Ex 14, at
14.
On February 8, 2022, Undersheriff Crabtree emailed Barry Edwards at
the Oklahoma Department of Health. Doc. 135, at 13. Mr. Edwards contacted
the Jail in response to APRN Carey’s February 3 report to Adult Protective
Services. Id. Undersheriff Crabtree explained that he had met with the ADA
about Mr. May and that the ADA “was going to look into the matter.” Id. & Ex.
29, at 1. Undersheriff Crabtree “believes” he had further contact with the ADA
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 8 of 31

9
about Mr. May because he was getting updated by staff, but he does not have
documentation of any further contact. Doc. 135, at 13 & Ex. 30, at 13-14.
On February 10, 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. 135, at 14 & Ex. 7, at
32-33; Ex. 8, at 9-10. On February 14, 2022, LPN Unruh looked at Mr. May’s
wound again. Doc. 135, at 14. After February 14, 2022, LPN Unruh had no
further notes in Mr. May’s file and never saw him again. Id. at 14-15. After
February 14, 2022, officers applied the ointment, checked his blood pressure,
and gave him his medications. Id. at 14; Doc. 155, Ex. 16.
On February 13, 2022, Officer Michael McCowen noted that Mr. May
“defecated on himself” and that his feces “got . . . in his sore” and he “cleaned
around [the] wound best [he] could.” Doc. 155, Ex. 25, at 4.
Defendant Warnke testified that after February 14, 2022, she continued
to keep LPN Unruh updated about Mr. May. Doc. 135, Ex. 15, at 14, 55. She
would tell LPN Unruh there’s not really any “change in him,” and ask is there
“anything we can do?” Id. at 55. And LPN Unruh would respond, “No.” Id. at
56. Jail staff reported to Defendant Warnke that Mr. May was not eating. Doc.
155, Ex. 11, at 26-27. And she would encourage Mr. May to shower and eat,
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 9 of 31

10
“[a]nd nine times out of ten, he’d take a shower.” Doc. 155, Ex. 11, at 41. She
saw him and spoke with him each day she worked. Doc. 135, Ex. 15, at 21.
Defendant Warnke was well-aware of Mr. May’s incontinence, because
she observed it “every day [she] worked.” See Doc. 155, Ex. 11, at 14, 15-16, 41-
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. She
updated LPN Unruh that Mr. May was still not eating and was unable to get
around. Id. at 43-44. She believed LPN Unruh was contacting a provider
regarding Mr. May “or documenting on him.” Doc. 140, Ex. 8, at 8. She testified
that she could independently contact a Turn Key provider if needed. Id.
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. 135, Ex. 14, at 55. She noticed a pair of “soiled
orange clothes,” and she encouraged him to take a shower, but he refused. Id.
On March 18, 2022, Officer Alvarado checked on Mr. May at 4:10 a.m.
Doc. 155, Ex. 21, at 8, 13. Mr. May’s head was hanging off his bunk. Id. at 10-
11; Doc. 135, Ex. 26 (video). Mr. May was not wearing a diaper. Doc. 155, Ex.
21, at 10-11. Officer Alvarado placed Mr. May’s head back on his bunk, and
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 10 of 31

11
Mr. May stared at the ceiling. Id. at 11. Officer Alvarado was not surprised
when he saw Mr. May that morning, because “the whole jail staff kind of knew”
that Mr. May needed to be in a “medical facility that could take care of him.”
Id. at 13-14.
At 5:51 a.m., Mr. May rolled off the mat on the bunk and fell to the floor.
Id. at 16-17. Officer Alvarado checked on him at 5:53 a.m. and found him on
the floor. Id. at 17. From the video, it appears Officer Alvarado smiles and
chuckles. Id. at 18-19; Doc. 135, Ex. 26. Officer Alvarado testified he knew Mr.
May’s 	situation 	was 	not 	good. 	Doc. 	155, 	Ex. 	21, 	at 	18-19. 	He 	was
“uncomfortable” when he took the blanket off Mr. May and discovered he was
naked from the waist down and had defecated on himself. Id. With the help of
two officers, Officer Alvarado tried to lift Mr. May up but ended up leaning him
on his side on the floor after several attempts to lift him failed. Doc. 135, Ex.
26 	(1:53-4:50). 	Officer 	Warnke 	arrived 	for 	her 	6:00 	a.m. 	shift, 	and 	she
instructed officers to call EMS at 6:04am. Doc. 135, at 16. Mr. May lay on the
floor for eighteen minutes without treatment, but the officers were nearby and
checked on Mr. May. Doc. 135, Ex. 26.
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.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 11 of 31

12
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.” Doc. 155, 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 56-57. Defendant Warnke notified the Turn Key
provider on call, who told her “to have [Mr. May] sent to the hospital.” Id. 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.
III. 	Standard of review for the Sheriff’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). To establish municipal liability, a plaintiff must
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 12 of 31

13
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).
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
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 13 of 31

14
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
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.
Plaintiff advances two theories of constitutional violations premised on
municipal 	liability. 	First, 	that 	multiple 	employees 	violated 	Mr. 	May’s
constitutional rights, and second, that unconstitutional policies or customs
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 14 of 31

15
promulgated by the Sheriff are “closely related” to the violation of Mr. May’s
constitutional rights. Doc. 155, at 31, 34-35; Doc. 1, at 39-40.
IV. 	Underlying constitutional violations by Custer County jail staff.
Under 	the 	Fourteenth 	Amendment’s 	Due 	Process 	Clause, 	pretrial
detainees are entitled to the degree of protection against denial of medical
attention afforded 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)). “[W]hen prison officials
prevent an inmate from receiving treatment or deny him access to medical
personnel capable of evaluating the need for treatment,” they may be liable for
deliberate indifference. Sealock, 218 F.3d at 1211. In other words, a jail
official’s delay or refusal to obtain medical care for an inmate may constitute
deliberate indifference. See id.
“Deliberate 	indifference 	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 U.S. 825, 834
(1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Defendant concedes
that the objective component is met as “Mr. May’s medical need was objectively
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 15 of 31

16
sufficiently serious at the time EMS took him out of the jail [and] at the time
of his death.” See Doc. 135, at 21.
The subjective component of deliberate indifference is satisfied if
the official knows of and disregards an excessive risk to inmate
health or safety. The official must be aware of the facts from which
the inference of a substantial risk of serious harm could be drawn
and also draw that inference. A plaintiff need not show that a
prison official acted or failed to act believing that harm actually
would befall an inmate, but rather that the official merely refused
to verify underlying facts that he strongly suspected to be true, or
declined to confirm inferences of risk that he strongly suspected to
exist. 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. An official disregards risk
when he fails to take reasonable measures to abate the risk.
Lucas, 58 F.4th at 1137 (internal quotation marks and citations omitted).
Plaintiffs have presented sufficient evidence from which a reasonable
jury could conclude that jail staff subjectively perceived a substantial risk of
serious harm to Mr. May based on his circumstances and failed to take
reasonable measures to abate that risk.
First, Officer Warnke was notified on February 2, 2022, that Mr. May
had not eaten in several days and refused to shower. Doc. 155, Ex. 17 (Jail
Incident Report). She knew on February 3, 2022, that Mr. May could not
ambulate, that “his mental condition appeared to be deteriorating rapidly,” and
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 16 of 31

17
that he had not eaten or showered “while he was in . . . dorm housing.” 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. She moved Mr. May
to a closer cell for monitoring, and started the meal log that recorded he had
refused 118 of 132 meals offered to him. Doc. 155, Ex. 11, at 22.3 She
continually reported on Mr. May’s condition to Undersheriff Crabtree, and
called Mr. May’s counsel to inform him of the Jail and Defendant Turn Key’s
concerns about Mr. May’s condition. Doc. 135, Ex. 20, at 3:26-3:25, 3:42-4:02.
She testified that Mr. May “should have been in a nursing home.” Doc. 155, Ex.
11, at 35.
Second, Officer McCowen testified that he was the first one to place adult
diapers on Mr. May, Doc. 155, Ex. 23, at 4, because he was “just defecating and
urinating on himself in the bed.” 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,” was not “lucid,” was “not ambulatory” and was
3 	The Sheriff maintains that “[t]here is no evidence that logging a meal
refusal 	meant 	that 	[Mr.] 	May 	refused 	the 	entire 	meal, 	or 	that 	[his]
consumption of protein shakes was ever logged.” Doc. 176, at 5. That may be
well true, but while Plaintiffs’ evidence may not “carry the day at trial, . . . it
is sufficient to create a material factual dispute.” See Spray v. Bd. of Cnty.
Comm’rs of Okla. Cnty., No. CIV-20-1252-R, 2023 WL 5439759, at *4 (W.D.
Okla. Aug. 23, 2023).
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 17 of 31

18
“laying in his own waste.” Id. at 6. He testified that “we” mentioned to Officer
Warnke and Lt. Stanford that they believed Mr. May belonged in a hospital or
a nursing home. Id. at 5-6.
Third, Officer Brayan Alvarado also testified that for about three weeks
before March 18, 2022, “the whole jail staff kind of knew” that Mr. May
“need[ed] to go somewhere.” Doc. 155, Ex. 21, at 14. Officer Alvarado testified
he verbally alerted his supervisors that he thought Mr. May should not be
housed where he was, and the staff all agreed the “jail was not fully equipped
to take care of [Mr. May.]” Id. at 5, 14. He testified Mr. May spoke mostly
“gibberish,” was in his diaper “generally,” was not eating or walking, and he
believed Mr. May needed “a medical facility” that could take care of him. Id. at
11-12, 14-15.
Based on the above, the Court concludes that jail staff was aware of the
facts surrounding Mr. May’s dire medical condition before he was sent to the
hospital and died. And Plaintiffs have provided sufficient evidence showing
that jail staff disregarded the substantial risk of serious harm to Mr. May. See
Prince, 28 F. 4th at 1048 (“[T]he facts of these four cases are sufficiently
analogous to [Mr. May’s] situation to have placed all reasonable jail officials on
notice that disregarding his severe symptoms amounted to a constitutional
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 18 of 31

19
violation. Each case involved the denial of medical attention to an individual
in custody, and three of the plaintiffs had pre-existing medical conditions.”)
(footnote omitted); see, e.g., See Spray, 2023 WL 5439759, at *4 (“There is
evidence that jail staff were aware of Ms. Spray’s changed condition, knew that
it presented an excessive risk to her health, and disregarded that risk . . . .
Although Plaintiff did receive some medical attention at the jail, whether jail
personnel responded appropriately after observing or being informed that she
could not walk is disputed.”).
V. 	Unconstitutional policies or customs at the Jail.
Having found a constitutional violation in the form of the jail staff’s
deliberate indifference, “the question remains if there was a possible alternate
basis for municipal liability in the form of an alleged systemic failure.” Lucas,
58 F.4th at 1144. Any of the following constitute an official policy:
(1) a formal regulation or policy statement; (2) an informal custom
amounting to a widespread practice that, although not authorized
by written law or express municipal policy, is so permanent and
well settled as to constitute a custom or usage with the force of law;
(3) the decisions of employees with final policymaking authority;
(4) the ratification by such final policymakers of the decisions—
and the basis for them—of subordinates to whom authority was
delegated subject to these policymakers’ review and approval; or
(5) the failure to adequately train or supervise employees, so long
as that failure results from deliberate indifference to the injuries
that may be caused.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 19 of 31

20
Id. (quoting Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1283 (10th Cir.
2019)).
Plaintiff argues that there existed several systemic failures at the Jail:
(1) 	the 	decisions 	of 	county 	employees 	with 	final 	policymaking 	authority
harmed Mr. May; Doc. 155, at 36; (2) a systemic failure of medical policies and
procedures; id. at 38; (3) failure to adequately staff the Jail’s medical unit with
qualified professionals, provide access to a physician, and supervise the Jail’s
medical delivery system; id. at 40; and (4) a failure to train; id. at 41.
A. 	Final policymaking authority.
Sheriff Daniel Day recalled that Undersheriff Crabtree told him about
meeting Mr. May on February 3, 2022, and how he tried to get him to eat and
take a shower. Doc. 155, Ex. 1, at 6. Undersheriff Crabtree testified he was the
“de 	facto” 	Jail 	administrator. 	Doc. 	155, 	Ex. 	14, 	at 	4. 	He 	acknowledged
contacting the ADA about Mr. May and knowing about APRN Carey’s report
to Adult Protective Services. Id. at 34-35, 42-44. He asked for and received
continued updates from Officer Warnke and Lt. Stanford about Mr. May’s
deteriorating condition. Id. at 14-15. And he asked for these so he could
determine if he needed to “make different arrangements . . . . Or if [Mr. May]
need[ed] medical attention in a . . . hospital.” Id. at 14.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 20 of 31

21
Defendant contends that “jail staff were doing all they could do to get
May out of the jail and abate any risk of harm to him,” and cites to Undersheriff
Crabtree’s efforts to obtain “a medical OR bond” for Mr. May. Doc. 135, at 28-
29. The record reflects, however, that Undersheriff Crabtree could have sought
a higher level of care for Mr. May but he did not. So the fact that the ADA did
not seek an OR bond for Mr. May from the state district court is immaterial.
And, as Sheriff Day testified, detention officers could “on their own authority”
send inmates to the hospital if they determined that “the [jail] could not
provide an appropriate level of care.” Doc. 155, Ex. 1, at 9.
Sheriff Day recalled Undersheriff Crabtree summarizing the report to
Adult Protective Services. Id. at 7-9. He also agreed that any concerns about
the jail’s capability to provide the appropriate level of care for Mr. May should
have been recorded in the jail’s log, but they were not. Id. at 9-10. He testified
that he expected “an individual who seemed like they had diagnosed dementia,
. . . hadn’t eaten for seven days, and . . . were unable to shower” “would be
taken to the hospital emergently.” Id. at 10-11. And that someone without
“medical training” would be able to recognize that a person refusing or unable
to eat for over a week constituted an emergency medical situation. Id. at 11.
B. 	Systemic failures.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 21 of 31

22
The undersigned addresses the remaining challenges together to avoid
redundancy. Sheriff Day argues that the Jail abided by its policies and the
Oklahoma Jail Standards. Doc. 135, at 35. Custer County’s jail policy required
inmates to receive a health evaluation by a qualified health professional within
fourteen days of entering the Jail. Id. & Ex. 33. “Any findings [from that
evaluation] that may significantly impact the health, safety, or welfare of the
inmate or others should be communicated to the Jail Administrator . . . . Health
care needs that may affect housing, program participation, or other conditions
of confinement shall be communicated and documented.” Id. Ex. 33, at 2. The
detention policy 	further states that the Sheriff’s “Office 	is committed to
providing humane conditions of confinement by ensuring that inmates received
adequate care to meet their serious health care needs,” including referrals for
mental health care. Doc. 135, Ex. 32, at 1-2. Inmates may request care for an
emergency condition, and it is available on a 24-hour basis. Id. at 2.
LPN Unruh made no entries in Mr. May’s medical file after February 14,
2022, because she never checked on him again after that date. See Doc. 135, at
14-15. There were some Jail Entry Reports regarding Mr. May’s treatment,
including Officer McCowen’s February 13, 2022, note that Mr. May defecated
into his wound on February 13, 2022, Doc. 155, Ex. 25, at 4, but from February
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 22 of 31

23
23 through March 16, 2022, there were no Jail Entry Reports as to Mr. May.
Doc. 155, Ex. 4, at 6; see generally Ex. 25.
Lt. Stanford testified she supervised Officer Warnke, and “put her” “in
charge of medical” because of her “CNA experience.” Doc. 135, Ex. 31, at 5. Lt.
Stanford did not know what CNA stood for, but she knew Officer Warnke had
worked in nursing homes. Id. Lt. Stanford was unaware whether in 2022
Officer Warnke was still licensed as a CNA. Id.
Lt. Stanford was “constantly” updating Undersheriff Crabtree about Mr.
May not eating, drinking, or showering. Doc. Id. at 10. She estimated she
“talked to [Undersheriff] Crabtree about Mr. May” about to six to eight times.
Id. at 11. And Undersheriff Crabtree would respond that he was “‘working on
trying to get him out.’” Id. She also testified that Officer Warnke told her she
contacted the Turn Key nurse about Mr. May’s condition. Id. at 8.
Undersheriff David Crabtree testified that the Sheriff’s office typically
ran the Jail at capacity (128 inmates) or over-capacity. Doc. 155, Ex. 14, at 11.
He testified the Jail suffered from understaffing. Id. at 9. He testified that he
was unaware that the Custer County Jail had a hunger strike policy, which it
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 23 of 31

24
did. Id. at 12.4 Under the policy, the Jail Administrator was to “evaluate the
basis for the strike and seek an appropriate resolution.” Doc. 155, Ex. 41, at 1.
And where “an inmate [was] engaging in a hunger strike due to a mental
condition, the appropriate medical protocols for mental illness [were to] be
followed.” Id.; see also Doc. 155, at 30.
Undersheriff Crabtree testified he met with Lt. Stanford and Officer
Warnke, spoke to Mr. May to encourage him to drink a protein shake, and met
with the ADA to encourage a “medical[] OR” bond. Doc. 155, Ex. 14, at 13-16.
Lt. Stanford and Officer Warnke kept him updated as he instructed. Id. at 17.
He testified he did not document any other conversations he had about Mr.
May with anyone else at the Jail, the County, or Turn Key before Mr. May was
“found unresponsive on March 18th.” Id. He did not know if Mr. May was ever
seen by a mental health professional and he never spoke to Turn Key about
whether it had a mental health professional who could come and see Mr. May.
Id. at 18. So no discussion about a referral for mental health care seems to
have occurred.
4 	The parties do not appear to dispute the applicability of the hunger strike
policy to Mr. May. See Doc. 176, at 11 & Doc. 155, at 30.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 24 of 31

25
As to training the Jail’s officers, Undersheriff Crabtree was unable to
give a definite date as to when training began regarding the Jail’s policies, but
knew it was sometime in 2022. Id. at 20. Lt. Stanford testified she was “pretty
sure” she received training on the Jail’s medical policies when she first started
either in 2010 or 2014. Doc. 155, Ex. 20, at 5-6. She testified training was “very
limited” in early 2022. Id. at 7. After Undersheriff Crabtree “took over, he
started to implement more training” on CPR, handcuffing, and “defensive
tactics.” Id. She could did not recall the details of the Jail’s Hunger Strike
policy. Id. at 5.
Officer 	Warnke 	testified 	additional 	trainings 	on 	“the 	jail’s 	medical
policies” began after Mr. May’s death. Doc. 155, Ex. 11, at 24. And that when
she was hired she was provided “a small condensed policy of the Custer County
Sheriff’s Office.” Id. at 6. She did not recall receiving any training with respect
to the Jail’s medical policies before Mr. May’s death. Id. She had no training in
wound care apart from what she had gleaned from working in nursing homes.
Id. at 18. She was unaware that the Custer County Jail had a hunger strike
policy. Id. at 22.
With respect to Mr. May’s missing meals, and how many missed meals
might amount to a medical emergency, Officer McCowen testified he did not
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 25 of 31

26
“feel that [he] had the authority to make that call.” Doc. 155, Ex. 23, at 13. He
understood that he was to take Mr. May’s blood pressure and monitor him
through the day. Id. He testified he received no training with respect to wound
care. Id. at 14. He did not know if a nurse was providing wound care to Mr.
May. Id. And he had no training as to “the medical significance of fluctuating
blood pressure” or what to do “if a blood pressure reading was below a certain
number.” Id. at 15.
Similarly, Officer 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” would “indicate an emergent
medical condition.” Id. at 16. And he stated that it would be Turn Key and
Officer Warnke’s responsibility to know how to interpret the blood pressure
readings as “they’re the ones supervising that.” Id.
Officer McCowen testified he “verbally expressed [his] concerns about
the facility’s inability to care for . . . mentally ill patients because it wasn't
medically equipped to do that.” Doc. 155, Ex. 23, at 17. He relayed these
concerns up the “chain of command.” Id. As to whether an inmate with mental
health issues could ever just go directly to the hospital, Officer McCowen
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 26 of 31

27
answered that he did not know as “those were decisions that would have been
made outside of [his] realm.” Id. at 18.
Officer Alvarado testified he verbally alerted his supervisors that he
thought Mr. May should not be housed where he was. Doc. 155, Ex. 21, at 5,
14. And the staff all agreed the “jail was not fully equipped to take care of [Mr.
May.]” Id. He testified Mr. May spoke mostly “gibberish,” was in his diaper
“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 Alvarado testified he was not trained in providing medication,
but he knew to alert the on-call nurse or provider should an inmate refuse
medication. 	Id. 	at 	3. 	He 	never 	received 	training 	as 	to 	what 	“signs 	and
symptoms” a detainee might exhibit that would be deemed emergent. Id. at 15.
Officer McCowen clarified that if Mr. May had a medical emergency, he
would have called EMS, not Turn Key. Doc. 142, Ex. 13, at 4-5. And Officer
Alvarado testified that “everything would be . . . funneled to [Officer] Warnke,
then from Warnke to Turn Key,” but he was aware he could contact Turn Key,
and EMS if needed. Doc. 142, Ex. 14, at 3, 6.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 27 of 31

28
Officer Alvarado testified he knew to track what food was refused when
an inmate was not eating, but he was not instructed to track weight. Doc. 155,
Ex. 21, at 2. Officer McCowen recalled no training or policy being provided as
to what an officer should do when “an inmate was observed to be not eating or
drinking 	for 	a 	prolonged 	period 	of 	time.” 	Doc. 	155, 	Ex. 	23, 	at 	19. 	Like
Undersheriff Crabtree, neither officer seemed aware of the Jail’s Hunger
Strike Policy. Id.; Doc. 155, Ex. 21, at 2.
As summarized, in relation to training, multiple Jail employees testified
that they received no meaningful medical training. And APRN Carey testified
she was overwhelmed by calls from the multiple facilities she oversaw. Doc.
155, Ex. 3, at 32, 51. And the Jail was consistently at or over capacity. Doc.
155, Ex. 14, at 11.
Turn Key provided up to twelve hours of weekly LPN staffing for about
150 inmates. See Doc. 155, Ex. 13, at 4 & Ex. 11, at 24. The County’s contract
with Turn Key neither required the employment of a licensed physician, nor
an RN, nor an on-site provider. Doc. 155, Ex. 13. This left untrained jail guards
to determine when emergent medical conditions arose. And when they did,
they would only verbally alert superiors.
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 28 of 31

29
Viewing 	the 	evidence 	in 	the 	light 	most 	favorable 	to 	Plaintiffs, 	a
reasonable jury could conclude that the Sheriff, who is in charge of the Jail,
maintained policies or customs of inadequate training, inadequate staffing,
and delays in medical attention, effectively amounting to a denial of access to
adequate medical care. Doc. 1, at 39-40.
C. 	The Sheriff’s deliberate indifference.
The next inquiry is whether a reasonable jury could conclude that the
Sheriff 	acted 	with 	deliberate 	indifference. 	“The 	deliberate 	indifference
standard may be satisfied when the municipality has actual or constructive
notice that its action or failure to act is substantially certain to result in a
constitutional violation, and it consciously or deliberately chooses to disregard
the risk of harm.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)
(citation omitted).
The 	record 	reflects 	that 	the 	Sheriff, 	through 	the 	de 	facto 	Jail
Administrator (Undersheriff Crabtree), had actual knowledge of numerous and
systemic problems with the Jail’s health care system. Undersheriff Crabtree’s
active efforts to get Mr. May out of custody via a “medical OR” bond speak to
the Jail’s inability to care for someone who was not eating or drinking, could
not walk, and who likely suffered from dementia. He did not ask Turn Key
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 29 of 31

30
about a mental health referral. He did not seek a higher level of care. He did
not know the Jail had a Hunger Strike policy. See Tafoya v. Salazar, 516 F.3d
912, 919 (10th Cir. 2008) (“The knowing failure to enforce policies necessary to
the safety of inmates may rise to the level of deliberate indifference.”).
A Sheriff's “continuous neglect” of medical conditions similar to those in
this case could lead a reasonable fact finder to infer causation of a plaintiff's
injury sufficient to defeat summary judgment. See Burke v. Regalado, 935 F.3d
960, 1001 (10th Cir. 2019) (“A reasonable jury could find his continuous neglect
of these problems ‘was the moving force behind the injury alleged.’”) (quoting
Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 405 (1997)).
Plaintiffs have therefore established a genuine dispute of material fact as to
the Sheriff's liability.
VI. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
deny Defendant Sheriff’s motion for summary judgment. Doc. 135.
The undersigned advises Defendant of his 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
Case 5:24-cv-00119-JD Document 187 Filed 03/31/26 Page 30 of 31

31
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 187 Filed 03/31/26 Page 31 of 31