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Burke v. Regalado

United States Court of Appeals, Tenth Circuit

August 20, 2019

ROBBIE EMERY BURKE, as the Special Administratrix of the estate of Elliott Earl Williams, deceased, Plaintiff - Appellee,
v.
VIC REGALADO, in his official capacity as Tulsa County Sheriff, Defendant-Appellant, and STANLEY GLANZ, in his individual capacity, Defendant. ROBBIE EMERY BURKE, as the Special Administratrix of the estate of Elliott Earl Williams, deceased, Plaintiff - Appellee,
v.
STANLEY GLANZ, in his individual capacity, Defendant-Appellant, and VIC REGALADO, in his official capacity as Tulsa County Sheriff, Defendant.

          Appeals from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:11-CV-00720-JED-PJC)

         Guy A. Fortney (Clark O. Brewster, Katie S. Arnold, and Mbilike M. Mwafulirwa with him on the brief), of Brewster & De Angelis, P.L.L.C., Tulsa, Oklahoma, for Defendants - Appellants.

         Robert M. Blakemore of Smolen Roytman, (Daniel E. Smolen, of Smolen Roytman; Louis W. Bullock of Bullock, Bullock & Blakemore with him on the briefs) Tulsa, Oklahoma, for Plaintiff - Appellee.

          Before MATHESON, MURPHY, and EID, Circuit Judges.

          MATHESON, CIRCUIT JUDGE.

         Table of Contents

         I. Background..........................................................................................................................4

         A. Factual Background.....................................................................................................4

         1. Mr. Williams's Arrest and Transfer to TCSO Custody...........................................4

         2. Mr. Williams's Injury and Lack of Treatment........................................................4

a. October 22-Response to initial injury and transfer to medical unit..................4
b. October 23-24-Continued paralysis and arrival of mental health staff............6
c. October 25-Transfer to monitored cell and visit from Dr. Harnish..................8
d. October 26-Lack of medical examination or treatment....................................9
e. October 27-Mr. Williams's first medical exam..............................................10

         3. Mr. Williams's Death............................................................................................11

         4. McKelvey and OSBI Reports................................................................................11

         5. TCSO Policies and Practices.................................................................................12

a. 2007 audit..........................................................................................................12
b. 2009 inspection and Gondles Report.................................................................14
c. Prior inmate deaths............................................................................................15
d. 2010 NCCHC probation....................................................................................16
e. Homeland Security inspection...........................................................................17
i

         B. Procedural Background.............................................................................................18

         1. Complaint..............................................................................................................18

         2. Pre-Trial Motions, CHC Settlement, and Replacement of Sheriff Glanz with Sheriff Regalado................................................................................................................19

         3. Trial and Verdict....................................................................................................20

         4. Post-Trial Motions.................................................................................................21

         II. Discussion..........................................................................................................................21

         A. Judgment as a Matter of Law....................................................................................23

         1. Denial of Judgment as a Matter of Law under Rule 50(b)....................................23

a. Additional procedural background....................................................................23
b. Standard of review.............................................................................................24
c. Sufficiency of evidence showing underlying constitutional violation..............24
i. Legal background..........................................................................................25

         1) Deliberate indifference-Objective and subjective components..............26

         2) Gatekeeping function.................................................................................27

         ii. Analysis.........................................................................................................29

         d. Sufficiency of evidence showing supervisory and municipal liability.............32

         i. Legal background..........................................................................................33

         ii

         1) Constitutional violations by TCSO or CHC employees as the basis for the Sheriffs' liability........................................................................................33

         2) Supervisory liability under § 1983............................................................36

         3) Municipal liability under § 1983...............................................................38

         4) Supervisory and municipal liability-Same elements in this case...........39

         ii. Analysis.........................................................................................................40

         1) Supervisory liability-Sheriff Glanz.........................................................41

         2) Municipal liability-Sheriff Regalado......................................................45

         2. Qualified Immunity...............................................................................................46

         a. Legal background..............................................................................................46

         i. Qualified immunity.......................................................................................46

         ii. Waiver...........................................................................................................47

         b. Analysis.............................................................................................................48

         i. Denial of summary judgment based on disputed issues of fact not appealable.......................................................................................................................48

         ii. Failure to raise qualified immunity in Rule 50 motions................................49

         B. New Trial...................................................................................................................50

         1. Challenges to Pretrial Order..................................................................................50

         iii

         a. Additional procedural background....................................................................51

         b. Standard of review.............................................................................................53

         c. Legal background..............................................................................................54

         d. Analysis.............................................................................................................55

         i. No objections to the complaint......................................................................56

         ii. Adequate notice of allegations in the pretrial order......................................58

         2. Challenge to Jury Instructions...............................................................................61

         a. Additional procedural background....................................................................61

         b. Standard of review.............................................................................................63

         c. Legal background..............................................................................................63

         d. Analysis.............................................................................................................64

         3. Evidentiary Rulings...............................................................................................66

         a. Investigative reports and interview transcripts..................................................67

         i. Additional procedural background................................................................67

         ii. Additional legal background.........................................................................71

         1) Hearsay......................................................................................................71

         2) Waiver and inadequate briefing.................................................................72

         3) Forfeiture...................................................................................................73

         iv

         iii. Analysis ......................................................................................................... 74

         1) The McKelvey Report-Waiver ............................................................... 74

         2) The OSBI Report-Forfeiture ................................................................... 75

         3) Transcript of interview with Mr. Latham .................................................. 77

         4) Transcript of interview with Mr. Johnson ................................................. 78

         b. Sheriff Glanz's misdemeanors .......................................................................... 79

i. Additional procedural background ................................................................ 79
ii. Additional legal background ......................................................................... 80
iii. Analysis ......................................................................................................... 82

         c. Mr. Williams's background ............................................................................... 83

i. Additional procedural background ................................................................ 83
ii. Additional legal background ......................................................................... 84
iii. Analysis ......................................................................................................... 85
d. Insurance coverage ............................................................................................ 86
i. Standard of review ......................................................................................... 86
ii. Additional procedural background ................................................................ 87
iii. Additional legal background ......................................................................... 88
iv. Analysis ......................................................................................................... 89

         v

         e. Branstetter email................................................................................................90

i. Additional procedural background................................................................90
ii. Analysis.........................................................................................................91

         f. Wyrick memo and testimony.............................................................................92

i. Additional procedural background................................................................92
ii. Additional legal background.........................................................................93
iii. Analysis.........................................................................................................94

         g. Redirect examination of Chief Robinette and memo about Dr. Adusei............94

i. Additional procedural background................................................................95
ii. Additional legal background.........................................................................96
iii. Analysis.........................................................................................................97

         4. Closing Argument.................................................................................................98

         a. Additional procedural background....................................................................98

i. Counsel's allegedly improper statements during closing argument..............98
ii. District court ruling.......................................................................................99

         b. Standard of review.............................................................................................99

         c. Legal background............................................................................................100

         d. Analysis...........................................................................................................102

         vi

         i. First Whittenburg factor-Extent of improper remarks..............................103

         1) Statements urging the jury to award damages for deterrence.................103

         2) Additional legal background...................................................................103

         3) Contested statements...............................................................................104

         4) Statements contrary to the evidence........................................................107

         5) Statements urging the jury to disregard the court's instructions.............109

         6) Statements violating the Golden Rule.....................................................109

         7) Statements expressing counsel's own opinion........................................110

         8) Pervasiveness of improper comments.....................................................113

ii. Second Whittenburg factor-Curative action.............................................114
iii. Third Whittenburg factor-Size of the verdict............................................115
iv. Balancing the Whittenburg factors..............................................................116

         C. Compensatory and Punitive Damages.....................................................................117

         5. Remittitur as to Compensatory Damages............................................................117

         a. Additional procedural background..................................................................117

         b. Standard of review...........................................................................................119

         c. Legal background............................................................................................119

         d. Analysis...........................................................................................................120

         vii

          6. Punitive Damages................................................................................................121

         a. Additional procedural background..................................................................121

         b. Standard of review...........................................................................................122

         c. Legal background............................................................................................123

i. Degree of reprehensibility...........................................................................123
ii. Relationship to actual harm.........................................................................125
iii. Comparison to similar cases........................................................................125

         d. Analysis...........................................................................................................126

         7. Setoff...................................................................................................................129

         a. Legal background............................................................................................130

i. Preservation and waiver of setoff defense...................................................130
ii. Setoff law in § 1983 cases...........................................................................131
iii. Oklahoma setoff statute...............................................................................133

         b. Additional procedural background..................................................................133

i. Settlement and dismissal of CHC defendants.............................................133
ii. Pretrial order and motion at trial.................................................................134
iii. Post-trial motions for disclosure of the settlement and a setoff..................134

         c. Standard of review...........................................................................................137

         viii

         d. Analysis...........................................................................................................138

i. Waiver.........................................................................................................139
ii. Error in application of step three of the § 1988 analysis.............................140

         1) Policy goals of § 1983.............................................................................140

         2) State law consistency-Case-specific or categorical analysis................141

         3) Error in the district court's categorical rejection of setoff statute...........143

         iii. Disclosure of the settlement agreement.......................................................145

         D. Disqualification.......................................................................................................146

         8. Disqualification of District Court Judge..............................................................146

         a. 28 U.S.C. § 455...............................................................................................147

         b. Additional background....................................................................................148

         i. The Sheriffs' disqualification motion..........................................................149

         1) 2008 suit against the County and Sheriff Glanz......................................149

         2) Summary judgment order........................................................................151

ii. District court ruling.....................................................................................152
iii. Summary of factual background.................................................................153

         c. Standard of review and legal background.......................................................154

         i. Timeliness....................................................................................................155

         ix

         ii. Disqualification under § 455(a)...................................................................156

         d. Analysis...........................................................................................................159

i. Timeliness....................................................................................................160
ii. 2008 Case....................................................................................................163

         1) The 2008 case was unrelated to this case................................................163

         2) The Sheriffs' other arguments.................................................................166

         9. Reassignment on Remand...................................................................................167

         III. Conclusion.......................................................................................................................169

         x

         The Tulsa County Sheriff's Office ("TCSO") runs the Tulsa County Jail ("the jail"). In 2011, Elliott Williams was jailed there. Shortly after his booking, he severely injured his neck, causing lower body paralysis. No one treated his injury. Despite his frequent complaints of pain and paralysis, no one transported him to a hospital. He remained immobile for five days, lying on his back in various cells at the jail, and died of complications from the neck injury.

         The administrator of Mr. Williams's estate, Robbie Emery Burke, filed a complaint under 42 U.S.C. § 1983. It alleged detention officers and medical providers at the jail violated Mr. Williams's Fourteenth Amendment right by acting with deliberate indifference to his serious medical needs. It further alleged Tulsa County Sheriff Stanley Glanz was liable in his individual supervisory capacity and in his official capacity for his subordinates' violations. During pretrial litigation, Sheriff Glanz resigned and his successor, Sheriff Vic Regalado, was substituted as the defendant on the official-capacity claim. By the time of trial, Sheriffs Glanz and Regalado ("the Sheriffs") were the only defendants remaining.

         A jury awarded Ms. Burke $10 million in compensatory damages against Sheriff Glanz and Sheriff Regalado and $250, 000 in punitive damages against Sheriff Glanz in his individual supervisory capacity. On appeal, the Sheriffs challenge the verdict, various evidentiary rulings, and several pre- and post-trial decisions of the district court.

         The following summarizes the 11 issues presented on appeal and our dispositions. We organize them under the four types of relief sought by the Sheriffs.

         A. Judgment as a Matter of Law

1. Were the Sheriffs entitled to judgment as a matter of law under Federal Rule of Civil Procedure 50(b) on Ms. Burke's constitutional claims because the evidence for the verdict was insufficient?
No. The evidence was sufficient for a reasonable jury to conclude that one or more jail detention officer or medical provider was deliberately indifferent to Mr. Williams's serious medical needs and that Sheriff Glanz maintained a custom or practice of neglecting to remedy deficient medical services at the jail.
2. Was Sheriff Glanz entitled to dismissal of the individual supervisory liability claim against him based on qualified immunity?
Sheriff Glanz has waived this issue for appellate review because he did not properly preserve it in district court.

         B. New Trial

3. Did the pretrial order impermissibly broaden the allegations against the Sheriffs from those contained in the Second Amended Complaint?
No. The Sheriffs did not challenge the specificity of the complaint and both the discovery process and summary judgment briefing provided adequate notice of the allegations in the pretrial order.

         4. Did the jury instructions permit a finding of liability based on the collective actions of jail detention officers and medical providers?

No. The jury instructions required the jury to find that one or more of the Sheriffs' individual subordinates was deliberately indifferent to Mr. Williams's serious medical needs.

         5. Did the district court make erroneous evidentiary rulings that prejudiced the Sheriffs?

No. We affirm each of the seven evidence rulings that the Sheriffs challenge.

          6. Did Ms. Burke's counsel engage in improper closing argument that affected the jury's verdict?

No. Although some of counsel's comments may have been improper, they did not affect the verdict and did not warrant a new trial.

         C. Compensatory and Punitive Damages

         7. Were the Sheriffs entitled to remittitur of compensatory damages?

No. The district court did not abuse its discretion in denying remittitur in light of the evidence presented at trial.

         8. Was the punitive damages award against Sheriff Glanz excessive?

No. Sheriff Glanz has failed to show that the award violated due process under the evidence and applicable Supreme Court precedent.

         9. Are the Sheriffs entitled to setoff from the verdict in the amount of Ms. Burke's settlement with Correctional Healthcare Companies, Inc. ("CHC"), the company hired to provide medical services at the jail?

We do not determine whether the Sheriffs are entitled to a setoff. We reverse and remand because the district court abused its discretion by failing to consider the terms of the settlement agreement and to order disclosure of the agreement.

         D. Disqualification

         10. Should the district court judge have recused himself?

No. The judge did not abuse his discretion when he denied the Sheriffs' disqualification motion.

         11. Should the case be reassigned to another judge on remand?

No. The Sheriffs have failed to meet their burden for reassignment.

         Exercising jurisdiction under 28 U.S.C. § 1291, we therefore affirm in part, reverse in part, and remand to the district court for further consideration of whether the Sheriffs are entitled to a setoff to reflect Ms. Burke's pre-trial settlement with the jail's medical provider.

         I BACKGROUND

         In this section, we describe (1) Mr. Williams's arrest, injury, and experiences while in TCSO custody; (2) the TCSO's policies and practices regarding medical care at the jail; and (3) the proceedings in district court.

         A. Factual Background[1]

         1. Mr. Williams's Arrest and Transfer to TCSO Custody

         On October 21, 2011, Owasso Police Department ("OPD") officers responded to a call about Mr. Williams's disruptive behavior and arrested him for obstructing an officer. They took him to the Owasso jail. The booking report shows the officers believed Mr. Williams was "suicidal." App. at 11240-41.

         Early the next morning, Mr. Williams was transferred to TCSO custody and booked into the jail.

         2. Mr. Williams's Injury and Lack of Treatment

         a. October 22-Response to initial injury and transfer to medical unit

         After arriving at the jail, Mr. Williams was forcibly taken to holding cell #10 following a confrontation with staff over his refusal to change his clothes. Shortly thereafter, while alone in the holding cell, Mr. Williams hit his head and became partially paralyzed. Nurse Kimberly Hughes and two detention officers first observed Mr. Williams lying face-up, complaining that he "broke his neck." Id. at 11876; see also id. at 7327-30. He said, "I can't move, I can't move" and "My neck hurts." Id. at 11899; see also id. at 7331. He told Nurse Hughes he had head-butted the door of the holding cell. Nurse Hughes said she "visually checked and there was nothing wrong with his neck." Id. at 11900. She did not provide Mr. Williams any medical treatment.

         More than ten hours later, Nurse Faye Taylor and detention officers found Mr. Williams in holding cell #10 still unable to get up. They declared a "medical emergency." Id. at 7349; see also id. at 7380-81. Nurse Earnie Chappell recorded a note, stating: "[Mr. Williams] is awake, laying on floor in holding cell. states 'I cannot move my legs and there is something in my rectum.['] Asking nurse to cut him open & kill him. Admitted to medical . . . ." Id. at 10870.

         When Mr. Williams arrived in the jail's medical unit, Nurse Mary Hudson took his vital signs and blood pressure and scraped the bottom of his foot with a pen to test his reflexes. Mr. Williams moved his legs in response to this stimulus. Nurse Chappell also was present. At least one of the nurses stated she believed Mr. Williams was faking his paralysis. The nurses did not provide Mr. Williams any medical treatment. They asked detention officers to take him to the shower because he had defecated on himself in the holding cell.

         Detention Officers Tommy Fike and Doug Hinshaw took Mr. Williams to the shower on a gurney. When Mr. Williams told them he could not get up, they laid him face up in the shower, removed his pants and shirt, turned on the water, and left. They left Mr. Williams in the shower for at least an hour, returning at some point to turn him over before leaving again. Detention Officer Christopher Leverich, who helped move Mr. Williams from the shower to a cell in the medical unit, said Mr. Williams was screaming, "Help me." Id. at 6905, 11911. His skin was purple, suggesting oxygen deprivation. The officers remarked "that something's wrong with Williams." Id. at 11911.

         That night, Officers Carmelita Norris and Dakota Walsh were assigned to check on Mr. Williams. Officer Norris did not see Mr. Williams walk, stand, or sit up by himself during her 12-hour shift. Officer Walsh said Williams "was making it very clear through the whole night that he was unable to move." Id. at 11924.

         Nurse Raymond Stiles also checked on Mr. Williams overnight. His notes reported Mr. Williams "state[d] that he cannot walk. However booking staff states he did not use wheel chair or any other walking aid when brought into jail. Continues to tell Nursing staff here that he just cannot walk, or even pull blankets over his shoulder. Wants to be waited on." Id. at 10865.

         b. October 23-24-Continued paralysis and arrival of mental health staff

         Mr. Williams received no medical treatment or evaluation on October 23.

         Detention Officer Leticia Glover recalled that during the night of the 23rd, Mr. Williams yelled out that he could not feel his legs. Officer Glover informed "Nurse Paul or Nurse Ray" that Mr. Williams "wants something" and asked that they "at least go down there and look at him," but no one did. Id. at 11910; see also id. at 7449-50.

         Nurse Stiles's notes from the morning of October 24 recorded Mr. Williams "stat[ing] he cannot walk," adding, "[b]ut when his suicide blanket slides off he manages to get it back over his body without asst. Can't remembeif [sic] he is suicidal or not." Id. at 10866. Nurse Charity Chumley's notes from about the same time described Mr. Williams's breathing as "even/unlabored" and his position as "lying on bed with out [sic] clothes refusing to answer any questions." Id.

         On October 24, Dr. Stephen Harnish, the jail's part-time psychiatrist, first learned of Mr. Williams's condition. He testified that other members of the jail's mental health staff informed him during a routine meeting that they "[had] some questions about [Mr. Williams]." Id. at 8479. Dr. Harnish did not see or examine Mr. Williams that day. Rather, John Bell, a counselor and member of the jail's mental health staff, visited Mr. Williams. He noted that Mr. Williams would "lie on bed and not respond to . . . questions," "acted as if paralyzed," and said, "I want water." Id. at 10866. Mr. Bell did not treat Mr. Williams but provided him "education" regarding "coping skills." Id.

         The same day, Dr. Harnish "set forth a plan" to determine whether Mr. Williams was paralyzed. Id. at 8489. He ordered Mr. Williams be placed in a video-monitored cell[2] where detention officers and nurses could regularly check on him.

         c. October 25-Transfer to monitored cell and visit from Dr. Harnish

         At 8:27 a.m. on October 25, detention officers placed Mr. Williams on a blanket and dragged him, naked, into Medical Cell 1. A few minutes later, a detention officer placed a small cup of water at his feet.

         Dr. Harnish met with Mr. Williams for the first time that morning. Patricia Benoit, a counselor and mental health team member, accompanied him. When Mr. Williams requested "a bucket of ice water and a tube to drink threw [sic]," id. at 11304, Dr. Harnish moved the water cup within reach of Mr. Williams's right arm. He described Mr. Williams as moving his arms, hands, and neck during the visit. Although Dr. Harnish conducted no medical evaluation, he recorded that he "doubt[ed the] medical etiology of [Williams's] claimed paralysis." Id. at 10868. Dr. Harnish testified he was aware Mr. Williams may be paralyzed. Ms. Benoit stated, "It was really hard to tell if [Mr. Williams's paralysis] was psychosomatic or if it was physical." Id. at 11939.

         Video showed that about an hour after Dr. Harnish's visit, a detention officer opened the door to Mr. Williams's cell and tossed a food container on the floor, out of his reach. The container remained untouched for two days. Mr. Williams unsuccessfully attempted to lift the water cup and to open a second food container that landed within his reach.

         d. October 26-Lack of medical examination or treatment

         Nurse Hughes wrote a note shortly after midnight on October 26 reporting that Mr. Williams was "muttering, can't understand a word," and that he was "lying on the floor, covered by blanket-will not get up for [vital signs] & cannot understant [sic] his 'mutters.'" Id. at 10867. When she returned several hours later, she "could see on his mouth where he had slobbered something, a white residue, on the mouth." Id. at 11901. Mr. Williams asked for water, but when Nurse Hughes told him to come to the door with his cup, Mr. Williams told her he could not move. Nurse Hughes asked Detention Officers Steven Smith and Crystal Rich to open the door to Mr. Williams's cell, but they refused, citing safety reasons. Nurse Hughes left without relaying her concerns to other medical personnel.

         The evidence regarding Mr. Williams's mobility during the night of October 25-26 consisted of (1) Nurse Hughes's notes describing Mr. Williams lying on the floor of his cell; (2) Ms. Benoit's notes relating that Mr. Williams "reportedly was given water by the [detention officer] overnight and was told to come to the [slot in the door] to get the water and he did," id. at 10867; and (3) a video that captured all movement in Mr. Williams's cell, which did not show he moved his lower body at all.

         On the morning of October 26, Ms. Benoit noted that Mr. Williams was "still refusing to move or admit he can move." Id. She thought Mr. Williams suffered from "psychosomatic paralysis." Id. Nurse Carmen Luca recorded that Mr. Williams was "stating that he cannot move." Id. She administered no care and did not examine Mr. Williams or take his vital signs. That evening, Nurse Devorsha Stewart wrote that Mr. Williams was "laying on floor partially covered by blanket, shaking." Id. at 10868.

         e. October 27-Mr. Williams's first medical exam

         Detention Officers Carmelita Norris and Ronald Reynolds stated they checked on Mr. Williams 22 times between 7:00 p.m. on October 26 and 7:00 a.m. on October 27. When they asked if he was okay, Mr. Williams said he was. The officers delivered breakfast at 5:15 a.m. on October 27 and recorded that Mr. Williams was able to feed himself. The video from Mr. Williams's cell refutes this account, however. The video showed a food container being dropped near Mr. Williams's feet around that time. It also showed that, when medical staff arrived three hours later, the container was untouched.

         Nurse Luca, Mr. Bell, and Dr. Khadga Limbu, a resident in family medicine who was assigned to a behavioral rotation at the jail, examined Mr. Williams. Mr. Bell's note reported that at 8:36 a.m. on October 27 Mr. Williams was "laying on floor with some spittle on cheek" and stated, "I want my phone, Iwant [sic] my phone." Id. at 10868. The note also recorded that Mr. Williams's speech was unclear and his memory and "insight/judgment/impulse control" were "poor." Id.

         When Nurse Luca ran her pen across the bottoms of Mr. Williams's feet to test his reflexes, there was no response, but there was a little response when Dr. Limbu did the same. Dr. Limbu and Mr. Bell informed Dr. Phillip Washburn, the jail's medical director, that Mr. Williams needed medical attention. Dr. Limbu told Dr. Washburn, "I think we might need to get a CT Scan of the head or something like that just to rule out any medical conditions and [Dr. Washburn] said he would look at him later." Id. at 11890. Dr. Washburn never followed up on Dr. Limbu's recommendations.

         3. Mr. Williams's Death

         At approximately 11:30 a.m. on October 27, 2011, jail personnel discovered Mr. Williams was unresponsive. Several nurses, including Julie Hightower, attempted CPR until paramedics arrived. Attempts to resuscitate Mr. Williams were unsuccessful.

         The medical examiner determined Mr. Williams died from "complications of a [sic] vertebral spinal injuries due to blunt force trauma." Id. at 7567. The post-mortem examination showed Mr. Williams was dehydrated. Ms. Burke's expert, Dr. Zeeshaan Khan, opined that the jail's failure to stabilize Mr. Williams's neck caused a hematoma that travelled up his spine and shut down his spinal cord, which in turn caused Mr. Williams's respiratory muscles to stop working. He testified that if the jail had stabilized Mr. Williams's neck and referred him to an appropriate medical facility, his death likely would have been avoided.

         4. McKelvey and OSBI Reports

         After Mr. Williams's death, investigators produced two reports. Officer Billy McKelvey, then a TCSO internal affairs investigator, authored the "McKelvey Report." It contained a statement of "undisputed facts," id. at 11880-92, and summaries of and quotations from interviews with OPD officers, TCSO employees, CHC medical providers, and inmates. The Oklahoma State Bureau of Investigation prepared the "OSBI Report." It similarly contained summaries of interviews with OPD officers, TCSO employees, CHC providers, inmates, and Mr. Williams's relatives.

         5. TCSO Policies and Practices

         Stanley Glanz served as Tulsa County Sheriff from 1988 until 2015. In 2005, TCSO retained a private contractor, Correctional Healthcare Companies, Inc., to provide medical care at the jail. The nurses and physicians working at the jail are employees of CHC, not Tulsa County or TCSO. CHC's contract provided that "TCSO is charged with the responsibility for administering, managing[, ] and supervising the health care delivery system" at the jail. Id. at 11824. Sheriff Glanz testified that he was "ultimately responsible for the inmate health care of those inmates at the Tulsa County Jail." Id. at 7676.[3]

         a. 2007 audit

         In 2007, the National Commission on Correctional Health Care ("NCCHC") conducted an on-site audit of the jail's health services. Before the auditors arrived, Sheriff Glanz met with jail department heads. Diane Maloy, who handled the jail's medical records, testified that Pam Hoisington, the jail's Health Services Administrator, told staff to alter medical charts to help the jail pass the audit:

She originally gave us a list of charts to pull to basically hide because she didn't want the auditors to pull what was called the "troubled inmates" or the inmates that had a lot of medical issues.
Then she had us pull another set of charts that were low-maintenance charts And the low-maintenance charts, she disassembled and took out all of the sick calls or medications that had not been given. Anything that wasn't addressed, she took it out, and we reassembled the charts and we placed them into a basket for the auditors to have these charts to pick from when they came.

Id. at 8724. These manipulated charts were created to pass the NCCHC audit. Ms. Maloy added that one of the supervisors at the meeting stated that "heads were going to roll if [the jail] didn't pass this audit." Id. at 8723.

         After the audit, the NCCHC placed the jail on probation. Its report identified several deficiencies in the jail's medical care, including:

. "health needs identified during receiving screening . . . are not addressed in a timely manner," id. at 12062;
. "the follow-up of inmates with mental health needs is not of sufficient frequency to meet their needs," id. at 12066;
. "once mental health issues were identified, . . . there was no consistent follow-up by the mental health staff," id.; and
. "there was a noted delay in responding to routine mental health-related requests submitted by the inmates," id.

         Ms. Maloy testified the jail submitted "corrective action statements" to NCCHC describing how it planned to fix the deficiencies, but the action plans were not implemented. At trial, Sheriff Glanz testified he did not know what was changed in response to the audit but said the jail ultimately received accreditation.

         b. 2009 inspection and Gondles Report

         In August 2009, the American Correctional Association ("ACA") conducted a "mock audit" of the jail. The ACA discovered the jail was non-compliant with "mandatory health care standards" and suggested "substantial changes." Id. at 12075. Based on these and other "deficiencies" in the jail's medical services, TCSO sought advice from Elizabeth Gondles, a correctional consultant.

         In October 2009, Ms. Gondles produced a report (the "Gondles Report"), which addressed:

. understaffing of medical personnel,
. deficiencies in "doctor/[physician assistant] coverage, "
. a lack of health services oversight and supervision,
. failure to provide new health staff with formal training,
. delays in provision of necessary medication,
. nurses failing to document the delivery of health services,
. systemic nursing shortages, [4]
. failure to provide timely health appraisals to inmates, and
. 313 health-related grievances within the preceding 12 months.

Id. at 12075, 12078-87. Ms. Gondles concluded "[m]any of the health service delivery issues . . . [were] a result of the lack of understanding of correctional healthcare issues by jail administration and contract oversight and monitoring of the private provider." Id. at 12090.

         Ms. Gondles made 16 recommendations to TCSO about how it could improve its medical services. According to Captain Rick Weigel, the jail implemented only three:

(1) holding monthly meetings between jail administrators and CHC providers,
(2) establishing a "kiosk" system for inmates to report medical issues, and
(3) refurbishing and cleaning the medical unit.

         c. Prior inmate deaths

         Inmates died in the jail in March, June, and December of 2010. In March 2010, an inmate reported chest pain over the course of a week. He went into cardiac arrest and died of a pulmonary embolus. A private consultant hired to investigate after Mr. Williams's death described this incident, noting there was "a 42 minute delay in calling [emergency medical services]" for the inmate, and adding the "[p]atient had medical criteria . . . that should have prompted a 911 call." Id. at 11867. Also in March 2010, an inmate committed suicide eight days after requesting someone to "talk" with him in the jail and two days after a mental health exam had ruled out suicidal ideation. In June 2010, an inmate died of cardiac arrest. The consultant's report noted "several standard of care issues." Id. at 11868. It stated the inmate should have had repeated blood tests after his first blood test showed an elevated potassium level that "could lead to cardiac arrest." Id. It faulted "inadequate system protocols, and real time auditing of protocols, for treatment, monitoring, [and] referral" and concluded that "[w]ithout such protocols, risk of similar episodes for other inmates, in the future, is quite high." Id.

         On October 28, 2010, Assistant District Attorney Andrea Wyrick wrote an email to TCSO's "Risk Manager" voicing concerns about CHC's compliance with its contract. She stated, "This is very serious, especially in light of the three cases we have now- what else will be coming?" Id. at 12278.

         In December 2010, another inmate died at the jail. Notes from more than five months before the inmate's death showed he had been prescribed medication for a heart condition. Although the jail contacted a hospital to confirm the inmate's prescription, jail notes did not show whether he received the medication. He died of cardiac arrest.

         d. 2010 NCCHC probation

         In November 2010, the NCCHC conducted another audit and again placed the jail on probation. The jail met only 65 percent of NCCHC's "essential standards." Id. at 11638. The NCCHC's report found:

. "There have been several inmate deaths in the past year. . . . The clinical mortality reviews were poorly performed." Id. at 11643.
. "[T]he responsible physician does not conduct clinical chart reviews to determine if clinically appropriate care is ordered and implemented by attending health staff" Id. at 11650.
. "[Diagnostic tests and specialty consultations are not completed in a timely manner and are not ordered by the physician." Id.
. "[I]f changes in treatment are indicated, the changes are not implemented, nor is clinical justification for an alternative course noted." Id.
. "Training for custody staff has been limited. Follow up [with suicidal inmates] has been poor." Id. at 11653.

         Sheriff Glanz read only the first three pages of the 2010 NCCHC Report when he received it.[5] At trial, neither Sheriff Glanz nor Michelle Robinette, the jail's Detention Chief Deputy, could name a specific change the jail implemented in response to the 2010 audit.

         NCCHC renewed the jail's accreditation in March 2011.

         e. Homeland Security inspection

         In 2011, the U.S. Department of Homeland Security's Office of Civil Rights and Civil Liberties ("CRCL") inspected the jail's medical system. An Immigration and Customs Enforcement ("ICE") officer emailed the results in September 2011 to TCSO Undersheriff Brian Edwards. According to the ICE officer, "CRCL found a prevailing attitude among clinic staff of indifference . . ." Id. at 11834. CRCL also noted that "[n]urses are undertrained" and were "[n]ot documenting or evaluating patients properly." Id. In one case, a lack of training had resulted in an inmate's appendix perforating. The inspection also "[f]ound two ICE detainees with clear mental/medical problems that have not seen a doctor." Id.

         Although he did not receive the email, Sheriff Glanz discussed it with Undersheriff Edwards. The ICE supervisor also gave him a briefing on the audit, at which Sheriff Glanz "personally sat there and listened to all their findings." Id. at 7843.

         B. Procedural Background

         This section provides a summary of the district court proceedings. We provide additional procedural background where relevant to the issues on appeal.

         1. Complaint

         On November 17, 2011, Mr. Williams's estranged wife, Elia Lara-Williams, filed a complaint under 42 U.S.C. § 1983 against Sheriff Glanz in his individual supervisory and official capacities, CHC, and 20 unidentified detention officers and medical providers.

         In April 2012, Robbie Emery Burke, the administrator of Mr. Williams's estate, replaced Ms. Williams as the plaintiff and filed a Second Amended Complaint (the "complaint"), the operative pleading on appeal. It named Sheriff Glanz in both his individual supervisory and official capacities, CHC, Nurse Chappell, Nurse Luca, Nurse Hightower, four Owasso Police Department ("OPD") officers, and an unspecified number of unidentified detention officers and medical providers.[6] Ms. Burke alleged the defendants violated Mr. Williams's rights under the Eighth and Fourteenth Amendments by acting with deliberate indifference to his serious medical needs.[7] She further alleged

         Sheriff Glanz was liable in his individual supervisory and in his official capacity for the constitutional violations committed by his subordinates because he had promulgated a policy that encouraged such violations. Ms. Burke sought compensatory and punitive damages.

         2. Pre-Trial Motions, CHC Settlement, and Replacement of Sheriff Glanz with Sheriff Regalado

         On January 29, 2014, Sheriff Glanz filed a motion for summary judgment asserting qualified immunity. While the motion was pending, Ms. Burke and CHC reached a settlement. The district court dismissed CHC and the individual nurse defendants on September 3, 2014. The settlement terms were not disclosed. Sheriff Glanz resigned from office on November 1, 2015. The new Sheriff, Vic Regalado, took Sheriff Glanz's place as the official-capacity defendant. Sheriff Glanz remained a defendant in his individual supervisory capacity.

         On July 20, 2016, the district court granted summary judgment for the OPD officers, denied qualified immunity for Sheriff Glanz, and denied summary judgment for both Sheriff Glanz and Sheriff Regalado. This left only Sheriffs Glanz and Regalado ("the Sheriffs") as defendants.

         On February 9, 2017, the Sheriffs moved to disqualify the district court judge on the ground that his impartiality could reasonably be questioned. The district court denied the motion.

         3. Trial and Verdict

         Trial began on February 23, 2017, and lasted more than three weeks. At the close of evidence, the Sheriffs moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a). The district court denied the motion.

         The jury returned a verdict for Ms. Burke. It found Sheriff Glanz liable in his individual supervisory capacity and Sheriff Regalado liable in his official capacity, awarding Ms. Burke $10 million in compensatory damages against both Sheriffs and $250, 000 in punitive damages against Sheriff Glanz.

          4. ...


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