F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          APR 26 2004
                               FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHELLIE RENEE PRADO,

                 Plaintiff-Appellee,

    v.                                                   No. 03-7001
                                                   (D.C. No. 02-CV-237-S)
    QUINTON LANE, Warner Police                          (E.D. Okla.)
    Officer, in his official and individual
    capacity,

                 Defendant-Appellant,

          and

    CITY OF WARNER, an Oklahoma
    municipal corporation; TERRY
    THOMPSON, Police Chief, in his
    official capacity; BILL HOLLYBEE,
    JOSH HALL, TINA THOMAS and
    JULIE SKODA, Jailors, in their
    official and individual capacities,

                 Defendants.


                               ORDER AND JUDGMENT        *




*
  After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms
                                                                       (continued...)
Before EBEL , BALDOCK , and LUCERO , Circuit Judges.



      This interlocutory appeal   arises from a 42 U.S.C § 1983 action in which

plaintiff Shellie Prado alleged, inter alia, that City of Warner police officer

Quinton Lane was deliberately indifferent to her medical needs during her arrest

and incarceration. Officer Lane appeals from an order denying summary

judgment, arguing that the district court erred in not granting him qualified

immunity. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we      DISMISS in

part and AFFIRM in part.

      Officer Lane was called to Prado’s house when her husband, concerned that

she overdosed on medication, requested the assistance of emergency medical

services. When Lane attempted to question Prado, she was belligerent and

refused medical assistance. Lane arrested her for assault and battery on a police

officer, alleging that she elbowed him in the stomach. Concluding that an

emergency detention order for hospitalization was not necessary, he instead

brought her to the county jail. Prado fell to the ground trying to enter the police

car, was in a semiconscious state with slurred speech in the car, and ceased to

respond to Lane’s questions at the jail. Lane informed jail employees that Prado


*
 (...continued)
and conditions of 10th Cir. R. 36.3.

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had ingested medicine and allegedly asked that they monitor her condition every

fifteen minutes. Late the following morning she was hospitalized—comatose, in

respiratory distress, and diagnosed with congestive heart failure.

       Qualified immunity is “an entitlement not to stand trial or face the other

burdens of litigation” if the complained of behavior did not violate clearly

established law.   Mitchell v. Forsyth , 

, 526 (1985).    In denying

Lane’s request for summary judgement based on qualified immunity on Prado’s

§ 1983 claim, the district court reasoned that “the record is suggestive of Prado

having a serious medical condition, existing from the time of her transport to the

jail, and that Lane and the jailers were deliberately indifferent to her condition by

placing and maintaining her in the holding cell until 11:00 a.m. on September 25,

2000, without resort to any medical attention.”    Prado v. City of Warner et al. ,

No. CIV-02-237-S, at 15 (E.D. Okla. filed Dec. 18 2002).     1
                                                                 Thus, the district

court concluded that taking the evidence in the light most favorable to Prado, the



1
  For example, the district court stated that: (1) evidence supports Prado’s
position that she was in an unconscious state when she was left by Lane for
admission to the county jail; (2) during her transport to the jail, Prado did not
communicate with Lane and sat with her eyes closed; (3) upon Prado’s arrival at
the jail, she was not responsive to questioning and she had to be carried from the
patrol unit to her holding cell; (4) during her entire stay at the jail, Prado did not
respond to verbal commands from the jailers; (5) although jailers checked on
Prado, there remain factual disputes as to the frequency, thoroughness, and
effectiveness of such checks.


                                            -3-
facts establish that Lane violated Prado’s Fourteenth Amendment right to

adequate medical care.

       On appeal, Lane argues that       Prado presented no evidence of (1) serious

medical needs while in Lane’s custody, or (2) that he was deliberately indifferent

to such needs. He also argues that the deliberate indifference standard used to

evaluate jailers holding prisoners should not apply to arresting officers holding

pretrial detainees.

       “We review de novo a district court’s ruling on qualified immunity.”

Roska ex rel. Roska v. Peterson      , 

, 1239 (10th Cir. 2003). If

plaintiff has alleged a constitutional violation, we determine if the law was clearly

established. Saucier v. Katz , 

, 200 (2001). Our review of the denial

of qualified immunity at this interlocutory stage, however, is circumscribed. “[A]

defendant, entitled to invoke a qualified immunity defense, may not appeal a

district court’s summary judgment order insofar as that order determines whether

or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”   Johnson v.

Jones , 

, 319-20 (1995). Therefore, an order is not immediately

appealable if it decides no more than “whether the evidence could support a

finding that particular conduct occurred,” or if it “merely determines the facts

asserted by the plaintiff are sufficiently supported by evidence in the record to

survive summary judgment.”         Foote v. Spiegel , 

, 1422 (10th Cir.


                                               -4-
1997) (citations omitted). Thus we lack jurisdiction “if our review would require

second-guessing the district court’s determination of evidence sufficiency,”

Medina v. Cram , 

, 1130 (10th Cir. 2001). However, even when the

district court concludes “issues of material fact exist,” we may nonetheless review

the “legal question of whether a defendant’s conduct, as alleged by the plaintiff,

violates clearly established law.”   

several of Lane’s arguments focus on the sufficiency of the

evidence, rather than whether under Prado’s version of the facts, he violated

clearly established law. For example, Lane claims that his understanding of

Prado’s medical needs was based on her own statements to him and that there is

no evidence that he acted with deliberate indifference.   Because we lack

jurisdiction over Lane’s claims of insufficient evidence, we dismiss that portion

of the appeal. See, e.g ., Cruz v. City of Laramie , 

, 1187 (10th Cir.

2001).

         As to whether the district court erred in determining that as alleged by

Prado, Lane violated a clearly established right, the right in question is the right

of a pretrial detainee to treatment for a serious medical need. In order to be

clearly established, “the contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates that right.”

Mick v. Brewer , 

, 1134 (10th Cir. 1996) (quotations omitted).


                                            -5-
Pretrial detainees “are entitled to the same degree of protection regarding medical

attention as that afforded convicted inmates under the Eight Amendment.”

Frohmader v. Wayne , 

, 1028 (10th Cir. 1992). “The right to

custodial medical care is clearly established.”      Olsen v. Layton Hills Mall ,

, 1315 (10th Cir. 2002) (citing       Estelle v. Gamble , 

,

104 (1976)).

       The district court relied on this court’s decision in      Garcia v. Salt Lake

County , 

(10th Cir. 1985), in which we upheld a jury verdict for

plaintiff Garcia, a pretrial detainee, based on deliberate indifference to serious

medical needs by the defendant county.        

Lane’s argument that while

Garcia may apply to jailers, it does not necessarily establish the same

responsibilities for arresting officers, is without merit. For example, in      Howard

v. Dickerson , 

, 981 (10th Cir. 1994), we held that “       Garcia set a clearly

established standard applicable to arresting officers,” and that “[t]he

constitutional protection against deliberate indifference to a prisoner’s serious

medical need, as announced in      Estelle . . ., applies to pretrial detainees through

the due process clause of the Fourteenth Amendment.”            

We further

noted that Garcia clearly established that pretrial detainees enjoy the same

protection from deliberate indifference to serious medical needs as do convicted

inmates. 

v. Bd. of County Comm’rs           , 

, 406 (10th


                                             -6-
Cir. 1990)). See also Barrie v. Grand County , 

, 867–68 (10th Cir.

1997) (collecting and discussing cases). Given that the events in this case

occurred in September of 2000, fifteen years following the fundamentally similar

Garcia case, the district court correctly determined that the law was clearly

established with respect to Prado’s claim against Lane for deliberate indifference

to her serious medical needs, i.e., that Lane was put “on fair notice that the

described conduct was unconstitutional.”       Pierce v. Gilchrist , 

,

1298 (10th Cir. 2004). Therefore, we       AFFIRM the district court’s determination

that the law was clearly established at the time of the alleged violation; we

DISMISS Lane’s remaining claims for lack of jurisdiction.


                                                        Entered for the Court



                                                        Carlos F. Lucero
                                                        Circuit Judge




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