FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                November 8, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                  TENTH CIRCUIT



 RON duBOIS and THORA duBOIS,
 Husband and Wife, and as Co-Special
 Administrators of the Estate of Peter
 duBois, Deceased,

                Plaintiffs - Appellants,                 No. 13-6144
          v.                                          (W.D. Oklahoma)
 PAYNE COUNTY BOARD OF                          (D.C. No. 5:12-CV-00040-L)
 COUNTY COMMISSIONERS, State
 of Oklahoma; R. B. HAUF, Sheriff of
 Payne County, State of Oklahoma, in
 his individual and official capacities;
 REESE LANE, Payne County Jail
 Administrator, in his individual and
 official capacities; JOHN DOES 1
 THROUGH 5 as unknown Deputy
 Sheriffs/Employees of the Payne
 County Sheriffs Department, in their
 official and individual capacities,

                Defendants - Appellees.

          and

 ADVANCED CORRECTIONAL
 HEALTHCARE, INC.,

                Defendant.


                             ORDER AND JUDGMENT *


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
                                                                       (continued...)
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiffs and appellants are Ron and Thora duBois, husband and wife and

co-special Administrators of the Estate of Peter duBois, their deceased son. They

appeal the grant of summary judgment to defendants and appellees (the Board of

County Commissioners of Payne County (“County Board” or “Board”); R. B.

Hauf, the Sheriff of Payne County (“Sheriff Hauf”); and Reese Lane, the Payne

County Jail Administrator (Mr. Lane”)) 1 in their 42 U.S.C. § 1983 action against

the defendants, following Peter’s suicide while he was incarcerated in the Payne

County Jail. For the following reasons, we affirm.


      *
       (...continued)
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
      1
        Additional defendants initially included Advanced Correctional
Healthcare, Inc. (“ACH”), and the Payne County Sheriff’s Office. ACH provided
medical care at the Detention Center at the time of Peter’s incarceration.
Plaintiffs asserted a state law wrongful death claim against ACH. They
eventually settled their claim against ACH. Plaintiffs agreed to the dismissal of
the Sheriff’s Office.

                                        -2-
                                 BACKGROUND

      On July 13, 2010, Peter duBois (“Peter”) was booked into the Payne

County Jail (“PCJ” or “Jail”) on drug-related charges. Pursuant to PCJ policy and

routine practice, he was asked questions about his medical history and condition

in order to complete a medical questionnaire. These questions included whether

he had any psychiatric disorders and whether he currently took any medications

prescribed by a doctor. Peter told the booking officer that he suffered from

depression, arthritis in his back, tachycardia and high blood pressure, and that he

had been prescribed Methadone, Hydromorphone, Metoprolol, Clonidine, and

Cymbalta. The questionnaire also noted that Peter responded in the negative

when asked, “[d]o you have any problems when you stop drinking or using

drugs?” and “[h]ave you ever attempted suicide or are you thinking about it

now?” Appellant’s App. Vol. 1 at 185. The questionnaire further requires the

booking officer to make a visible assessment of the prisoner, including whether

the prisoner has any visible signs of alcohol or drug withdrawal, appears to be

under the influence of any drugs or alcohol, or appears to have any psychiatric

problems. 

      At the time of Peter’s incarceration, medical care at the Jail was provided

by ACH. On the same date he was booked, Peter submitted a Sick Call Request

Form, on which he asked to see a doctor or nurse due to “withdraws [sic] from

Methadone, Arthritis in Back, Tackacardia [sic], High blood pressure.” 

189. Accordingly, on July 14, 2010, Peter was seen by Christy Williams, a

licensed practical nurse employed by ACH. Nurse Williams’ chart notes reflect

that Peter complained that he was unable to eat or drink, that his heart felt like it

was jumping out of his chest, and that he was dehydrated, shaky and nauseated.

In her notes, Ms. Williams indicates she would “contact [a doctor] for orders for

withdrawls [sic].” 

contacted Dr. Charles Olson, Jr., the ACH doctor on call,

who authorized giving the following medications to Peter: 50 milligrams of

Vistaril, to be given by mouth twice daily for three days; 0.1 milligrams of

Clonidine, to be given by mouth twice daily for three days; 10 milligrams of

Celexa, to be given by mouth daily; and 50 milligrams of Metoprolol, to be given

by mouth twice daily. Although Dr. Olson authorized the continuation at the

same dose of two of the medications Peter had been taking (Clonidine and

Metoprolol), he did not authorize Peter’s continued use of Methadone, the last

dose of which he had taken the morning of July 12, 2010. Ms. Williams

scheduled Peter to see Dr. Olson on July 21, 2010, the next time Dr. Olson would

be at the Detention Center.

      The Clonidine and Vistaril were prescribed to treat Peter’s symptoms from

his withdrawal from Methadone. 2 Peter received his first dose of Vistaril at 6:00

      2
       Vistaril is an “antihistamine, which ‘is commonly used for itching . . .
anxiety and panic disorder[.] [I]t also can be used for nausea.” Order at 3 n.3,
                                                                     (continued...)

                                          -4-
p.m. on July 15, 2010, and his last dose at 6:00 p.m. on July 18, 2010. He

received his first dose of Clonidine at 6:00 p.m. on July 14, 2010, and the last

dose at 6:00 p.m. on July 18. Although the prescription stated Peter was to

receive two doses of Clonidine daily for three days, he in fact only received one

dose on July14 and 15, and two doses on July 16, 17 and 18. As the district court

noted, “[a]lthough both parties’ experts acknowledge that opiate withdrawal [as

from a medication like Methadone] can be painful, there is no indication in the

record that Peter was ever given any medication for pain.” Order at 4,

Appellant’s App. Vol. 5 at 1812.

      After he was booked, Peter was initially placed in the “south detox

observation cell” where he was checked by Detention Center staff every 15

minutes. The Observation Checklist reflected that the reason for Peter’s cell

assignment was “methadone.” After he saw Nurse Williams, Peter was moved

from the detox cell to cell 103, where he remained for less than 10 minutes. He

was then placed in cell H106, which Nurse Williams authorized because it was

“warmer, quieter” and he “would have an emergency button right there in his cell

that he could push if he had problems.” Peter remained in cell H106 until 6:06

p.m. on July 15, 2010, when he was moved back to the south detox cell for


      2
        (...continued)
Appellant’s App. Vol. 5 at 1811. Clonidine “is a blood pressure medication.
Dr. Olson testified that it helps with the rapid heart rate, can help a little bit with
agitation or difficulty sleeping.” 

                                          -5-
allegedly hiding medication. Less than twenty-four hours later, Peter was

transferred to C pod in the general population of the Detention Center.

      On July 19, 2010, the day after Peter received his last doses of the

medications prescribed for his withdrawal symptoms, he committed suicide by

diving off the second floor of the Detention Center. The fall resulted in severe

head injuries, from which he died on July 23, 2010. Prior to the fall, a fellow

inmate, Kenneth Eugene Lane, Jr., notified various jailers (including Lieutenant

Nick Myers) that Peter was talking about committing suicide. When Kenneth

expressed concern about Peter, at least a few of the jailers to whom he had spoken

said that they would pass on the information to the medical staff. Plaintiffs aver

that never happened.

      Because the policies and protocols of the Detention Center are critical to

the analysis of the issues in this case, we describe them, as stated in the district

court’s order:

            Prior to May 2010, the jail’s written policies provided for
      “gradual, supervised detoxification programs for substance abusers.”
      Ex. 40 to Plaintiffs’ Appendix at 30. The written policies provided:

             It is expected that most substance abuse cases can be
             managed in the jail under normal circumstances.

                                          ....

             When the jail physician deems in-house detoxification
             care as [sic] sufficient, the inmate’s individual treatment
             program will specify housing requirements, treatment
             procedures, or any necessary referrals.

                                          -6-
      Medical staff will inform the inmate management team
      of any diagnosis of chemical dependency and will
      determine if the inmate requires any special housing
      such as confinement in a single cell for detoxification
      purposes.

      When an inmate is diagnosed as being so chemically
      dependent as to require on-going medication, the jail
      physician will develop an individualized treatment
      program. In these cases, the inmate will remain under
      medical staff supervision at all times during their
      withdrawal period.

Once ACH began providing health care at the Detention
Center, the detoxification policy was superseded by an ACH
protocol. Exhibit 2 to Hauf Motion at 126-27. The ACH opiate
withdrawal protocol provided that the inmate was to be placed “in
holding observation unit” and that “Medical is to see all detainees
who have been treated with withdrawal protocols.” Exhibit 25 to
Plaintiffs’ Appendix at 1. The protocol specified the medication of
choice was 25 milligrams of Vistaril twice a day for five days
together with 0.2 milligrams of Clonidine twice a day for five days.

protocol instructed “If detainee has any medical
issues, or after 5 days of treatment, re-evaluate and call
physician for further orders.” 

jail’s prior written policy regarding suicide was
superseded once ACH began providing healthcare services at the
Detention Center. Exhibit 2 to Hauf Motion at 126-27. The suicide
management/risk reduction policy in effect prior to May 2010
provided that

      Detention Officers in housing units or other persons will
      advise the Shift Supervisor of any potentially self-
      destructive behavior (related to a potential suicide)
      displayed by an inmate.

      If an inmate declares a Psychological Emergency the
      Shift Supervisor will be advised. The Shift Supervisor
      will notify the appropriate [Qualified Health Services
      Staff (“QHSS”)].

                                  -7-
                                         ....

             When observation, history, or interview suggests that an
             inmate is potentially suicidal, the following steps will be
             implemented by QHSS, or in the absence of Health
             Services staff, the Duty Officer.

             a.     The inmate may be kept in an approved Isolation
                    Management Room (IMR) for closer observation.

             b.     The inmate may be placed on a Suicide Observation Status. . . .

             c.     The inmate may be referred to an
                    appropriate outside treatment facility for
                    further evaluation. (Decision is sole
                    province of Medical/Mental Health Staff,
                    with approval by Jail Administrator or
                    designee.) In all cases, referral to a local
                    hospital emergency department is an option.

Order at 5-7. As the district court further stated, the “record does not reflect

whether ACH had a suicide prevention protocol as neither party provided one to

the court. Williams, however, testified that she received no specialized training

on opiate withdrawal or suicide prevention.” 

      On January 12, 2012, the plaintiffs (Peter’s parents, as co-special

administrators of his estate) filed this action seeking damages pursuant to 42

U.S.C. § 1983 for violations of Peter’s constitutional rights. As indicated, the

defendants were the County Board, the Payne County Sheriff’s Office (which was

subsequently dismissed), Sheriff Hauf, in both his official and individual

capacities, and Mr. Lane, in both his official and individual capacities.




                                          -8-
      Ultimately, the Board, Sheriff Hauf and Mr. Lane filed motions for

summary judgment. The district court granted those motions. This appeal

followed.

      Plaintiffs argue that: (1) Sheriff Hauf and Mr. Lane violated Peter’s

constitutional rights by contributing to/causing his death; (2) PCJ’s policies and

practices, or lack thereof, led to Peter’s death; (3) Sheriff Hauf and Mr. Lane are

not entitled to qualified immunity in their individual capacities; and (4) the Board

is a proper party to the plaintiffs’ 42 U.S.C. § 1983 action.



                                   DISCUSSION

      I. Standard of Review

      “We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court.” Helm v. Kansas, 

, 1284

(10th Cir. 2011). More specifically, summary judgment is appropriate “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). “We

view the summary judgment evidence in the light most favorable to the non-

movant.” Bertsch v. Overstock.com, 

, 1027 (10th Cir. 2012).

Furthermore, “at the summary judgment stage the judge’s function is not to weigh

the evidence and determine the truth of the matter, but to determine whether there




                                          -9-
is a genuine issue for trial.” Randle v. City of Aurora, 

, 453 (10th

Cir. 1995). We apply that standard of review to the following issues.

      II.    Did Sheriff Hauf and Mr. Lane Violate Peter’s Constitutional
             Rights?

      Plaintiffs argue that Sheriff Hauf and Mr. Lane violated Peter’s

constitutional rights because: (a) they knew of Peter’s complaints and condition

and failed to take action; (b) they knew of a substantial risk of serious harm in

their facility (PCJ); (c) the presence of medical professionals does not absolve

prison officials like Sheriff Hauf and Mr. Lane; and (d) they are gatekeepers who

failed in their responsibility.

      “[C]laims based on a jail suicide are considered and treated as claims based

on the failure of jail officials to provide medical care for those in their custody.”

Barrie v. Grand County, 

, 866 (10th Cir. 1997). Thus, such claims

“must be judged against the ‘deliberate indifference to serious medical needs’ test

of Estelle v. Gamble, 

, 104 (1976).” Estate of Hocker v. Walsh, 

, 998 (10th Cir. 1994). In Estelle, the Supreme Court held that deliberate

indifference to a prisoner’s serious medical needs constitutes cruel and unusual

punishment under the Eighth Amendment, giving rise to a civil rights action

under § 1983. 

.

      The test for a “deliberate indifference” claim under the Eighth
      Amendment has both an objective and a subjective component. The
      objective component of the test is met if the harm suffered is
      sufficiently serious to implicate the Cruel and Unusual Punishment

                                         -10-
      Clause. The subjective component is met if a prison official knows
      of and disregards an excessive risk to inmate health or safety.

Kikumura v. Osagie, 

, 1291 (10th Cir. 2006) (quotations and

citations omitted).

      Sheriff Hauf and Mr. Lane concede that the risk of, or potential for, suicide

involves a sufficiently serious medical need and/or harm such that the objective

prong of the Eighth Amendment is met. The issue in this case is, accordingly, the

subjective prong. The subjective component requires that the defendant in

question “must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists and he must also draw the inference.”

Farmer v. Brennan, 

, 837 (1994); Mata v. Saiz, 

, 751

(10th Cir. 2005). The official need not be aware “of a substantial risk to a

particular inmate, or [have] knowledge of the particular manner in which the

injury might occur.” Tafoya v. Salazar, 

, 916 (10th Cir. 2008).

Furthermore, “a jury is permitted to infer that a prison official had actual

knowledge of the constitutionally infirm condition based solely on circumstantial

evidence, such as the obviousness of the condition.” 

medical

professional who serves ‘solely . . . as a gatekeeper for other medical personnel

capable of treating the condition’ may be held liable under the deliberate

indifference standard if she ‘delays or refuses to fulfill that gatekeeper role.’”




                                         -11-


(quoting Sealock v. Colorado, 

, 1211 (10th

Cir. 2000)).

      Sheriff Hauf and Mr. Lane argue that they cannot be liable under the

subjective component because neither one knew, or had reason to know, that Peter

was suicidal. Plaintiffs respond that such knowledge could be inferred because

inmate Kenneth Lane had told certain jail staff about Peter’s suicidal condition,

because Peter had tried to commit suicide before, and other inmates had

succeeded in doing so, and/or because the risk of suicide by a person undergoing

opiate withdrawal (like Peter was from his methadone use) is obvious.

      The district court rejected this argument, stating as follows:

             Having examined the evidence presented in light of the
      standards for individual liability enunciated above, the court
      concludes that Hauf and Lane are entitled to judgment in their favor.
      In keeping with its duty to view the facts in the light most favorable
      to plaintiffs, the court assumes that Kenneth [Lane] told various
      members of the jail staff that Peter was suicidal. Plaintiffs, however,
      have submitted no evidence that this information was ever
      transmitted to Hauf or Lane. Indeed, both Hauf and Lane testified
      they had no actual knowledge that Peter was suicidal, and plaintiffs
      have presented nothing other than the conjecture that this issue might
      have been raised at meetings Lane attended. . . .

Order at 11-12. The court further determined that

      [t]he only connection between Hauf and Lane and the constitutional
      violation is the supersession of the policies in effect prior to May
      2010. There is, however, no evidence that Peter’s suicide would
      have been avoided if the prior policies had been in effect. The prior
      substance abuse policy provided that medical staff would determine
      housing requirements for an inmate going through withdrawal, and
      that is what occurred in this case. Williams authorized Peter’s

                                        -12-
      placement in the general population after she saw him on July 14,
      2010. Whether this was the correct placement for Peter given what
      transpired can be argued, but it cannot [be] disputed that medical
      staff made the determination to remove him from the detox cell.
      Likewise, the prior policy on suicide prevention required jail staff to
      notify a shift supervisor if an inmate was suicidal; the shift
      supervisor, in turn, would notify medical. According to [inmate]
      Kenneth [Lane]’s testimony, each time he told a staff member that
      Peter was suicidal, the response was that medical would be notified.
      This response is in keeping with the prior policy. Finally, the court
      concludes plaintiffs have not presented sufficient evidence to create a
      triable issue as to whether the risk of suicide due to opiate
      withdrawal was so obvious that a jury could infer that Hauf and Lane
      were aware of that risk and were deliberately indifferent when they
      decided to abandon the prior policies. While the record reflects that
      three other suicide attempts were made at the Detention Center in
      2009, there is no evidence they were related to drug or alcohol
      withdrawal. Plaintiffs, therefore, have not established a basis for
      supervisory liability under § 1983, and Hauf and Lane are entitled to
      judgment in their favor with respect to plaintiffs’ claims against them
      in their individual capacities.

After our own thorough review of the record in this case, and

viewing it in the light most favorable to plaintiffs, we agree with the district court

that Sheriff Hauf and Mr. Lane are entitled to judgment in their favor. 3

      3
       Plaintiffs rely heavily on a recent unpublished decision from our court,
Layton v. Board of County Comm’rs, 512 Fed. Appx. 861 (10th Cir. 2013)
(unpublished), in which we reversed the grant of summary judgment to the
defendant Sheriff and County. In Layton, the decedent/detainee suffered from
pre-existing medical conditions, “including congestive heart failure, diabetes, and
hypertension. He had a pacemaker, and part of his treatment regimen included
taking the medication Digoxin[, which] is filtered through the kidneys.” 

He ultimately died of, inter alia, kidney failure after the defendant
Correctional Center and Sheriff did nothing despite receiving medical test results
indicating that the detainee was suffering from acute kidney failure.
      As indicated, we reversed summary judgment in favor of the Sheriff and
County, concluding that “Appellants have raised a triable issue of material fact
                                                                       (continued...)

                                         -13-
      Plaintiffs argue that it can be “inferred” that Mr. Lane (and therefore

Sheriff Hauf as well) was aware of Peter’s alleged suicidal thoughts and threats

because the record shows that “Peter and other inmates complained to PCJ staff

specifically about Peter’s threats of suicide” and “those types of complaints were

typically shared with Lane at daily shift meetings.” Appellant’s Op. Br. at 29.

Plaintiffs primarily rely upon the testimony of inmate Kenneth Lane. Inmate

Lane stated in his deposition that, prior to Peter’s death, Peter had talked about

suicide, and Lane had relayed that fact to “an older gentleman . . . probably in his

70s”, a man named John, a sergeant named Justin, Lieutenant Nick Myers and a

“[b]ig Indian kid.” Dep. of Kenneth Lane at 30-38, Appellant’s App. Vol. 5 at

1550-1558. Inmate Lane did not testify as to ever relaying concerns about Peter

to Sheriff Hauf or Mr. Lane or any other jail staff other than those just listed.

And there was no evidence that such information was relayed by jail staff to

      3
        (...continued)
regarding whether Sheriff Whetsel was aware of dangerous prison conditions that
were likely to result in constitutionally deficient medical care for seriously ill
detainees.” 

The district court below distinguished Layton on the
ground that, as part of the evidence showing what the Sheriff knew at the time of
the inmate’s death, the appellants had “submitted evidence that tends to
demonstrate longstanding, systemic deficiencies in the medical care that the jail
provided to detainees–specifically, that the detainees were not being seen for
medical care in a timely manner, that medications were not being administered as
directed, that follow-up care was not being provided to seriously ill detainees, and
that the jail’s design prevented effective monitoring and supervision of detainees
with serious medical needs.” 

We agree with the district court that
the evidence under review at summary judgment was different in Layton than in
this case. Significantly, there was no such evidence of “longstanding, systemic
deficiencies in the medical care” provided to detainees.

                                         -14-
Sheriff Hauf or Mr. Lane. The evidence, accordingly, does not support the

conclusion that Sheriff Hauf and Mr. Lane knew, or should have known, of

Peter’s condition.

      In short, our own review of the record supports the district court’s

conclusion that there was no evidence that either Sheriff Hauf or Mr. Lane, in

their individual capacities, violated Peter’s constitutional rights. They were

therefore entitled to summary judgment on that claim.

      III.   Did Defendants’ Policies and Practices Lead Directly to Peter’s
             Death?

      Plaintiffs next argue that defendants’ policies and practices, or the lack of

such policies and practices, caused Peter’s suicide. 4 “A municipality may not be

held liable under § 1983 solely because its employees inflicted injury on the

plaintiffs.” Bryson v. City of Okla. City, 

, 788 (10th Cir. 2010)

(quoting Hinton v. City of Elwood, 

, 782 (10th Cir. 1983)). It may

only be held liable under § 1983 “for its own unconstitutional or illegal policies.”

Barney v. Pulsipher, 

, 1307 (10th Cir. 1998). A plaintiff must

therefore “identify ‘a government’s policy or custom’ that caused the injury.”

Schneider v. City of Grand Junction Police Dep’t, 

, 769 (10th Cir.

2013) (quoting Monell v. Dep’t of Soc. Servs., 

, 691-92 (1978)).

      4
       Sheriff Hauf and Mr. Lane were sued in both their individual and official
capacities. Official capacity suits “generally represent only another way of
pleading an action against an entity of which an officer is an agent.” Monell v.
New York City Dep’t of Soc. Servs., 

, 690 n.55 (1978).

                                        -15-
The plaintiff must then show “that the policy was enacted or maintained with

deliberate indifference to an almost inevitable constitutional injury.” 

district court noted, deliberate indifference in the municipal liability

context is an objective standard that

      may be satisfied “when the municipality has actual or constructive
      notice that its action or failure is substantially certain to result in a
      constitutional violation, and it consciously and deliberately chooses
      to disregard the risk of harm.” Although a single incident generally
      will not give rise to liability, “deliberate indifference may be found
      absent a pattern of unconstitutional behavior if a violation of federal
      rights is a ‘highly predictable’ or ‘plainly obvious’ consequence of a
      municipality’s action.” The official position must operate as the
      “moving force” behind the violation, and the plaintiff must
      demonstrate a “direct causal link” between the action and the right
      violation. That is, “[w]ould the injury have been avoided had the
      employee been trained under a program that was not deficient in the
      identified respect?”

Olsen v. Layton Hills Mall, 

, 1318 (10th Cir. 2002) (citations

omitted). We agree with the district court and the defendants that there is simply

no evidence that any policy or custom of PCJ was the moving force behind, or

caused or enabled, Peter’s suicide. Rather, the Jail had policies and practices in

place to provide adequate medical care for all inmates. Those policies were

followed in Peter’s case. Furthermore, the contract with ACH was intended to

provide medical care on-site with trained and qualified medical personnel. At the

time Peter was booked into the Jail, pursuant to Jail policy and practice, the

booking officer filled out a medical questionnaire and conducted a visual

inspection of Peter. Among the questions asked, in accordance with policy, was

                                         -16-
whether he had ever attempted suicide or whether he was currently thinking about

it. Peter answered in the negative. Peter was then evaluated by trained medical

staff, Dr. Olson and Nurse Williams. There is no evidence that those individuals

did anything other than properly perform their evaluations.

      In short, having reviewed the record, and construing it in the light most

favorable to the plaintiffs, we agree with the district court that summary judgment

in favor of the County Board, and the individual defendants in their official

capacities, was warranted. 5



      IV. Were Sheriff Hauf and Mr. Lane Entitled to Qualified Immunity?

      The district court did not address the issue of qualified immunity in its

grant of summary judgment to defendants. “The doctrine of qualified immunity

protects government officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established . . . constitutional rights of which a

reasonable officer would have known.” Pearson v. Callahan, 

, 231

(2009); Lynch v. Barrett, 

, 1158 (10th Cir. 2013). “Whether a

      5
        Plaintiffs rely, in part, for their arguments in favor of liability for the
defendants, on an investigation by the Oklahoma State Department of Health,
conducted after Peter’s death. The investigation resulted in a report which
identified some failures by the PCJ in its provision of medical care to inmates.
The investigation did not reveal failures at a policy level, and it does not provide
insight into what Sheriff Hauf and Mr. Lane knew at the time of Peter’s death,
inasmuch as it was performed after his death. We accordingly agree with the
district court and defendants that it does not undermine the district court’s
conclusions.

                                         -17-
defendant is entitled to qualified immunity is a two-step process.” Graves v.

Thomas, 

, 1218 (10th Cir. 2006). First, we determine whether the

plaintiffs have “asserted a violation of a constitutional right at all.” 

v. Gilley, 

, 232 (1991)). If so, “we decide whether that right

was clearly established such that a reasonable person in the defendant’s position

would have known that [his] conduct violated that right.” 

omitted). We need not, however, even “reach the question of whether the

individual defendants are entitled to qualified immunity if we determine, after a

de novo review, that plaintiffs failed to sufficiently allege the violation of a

constitutional right.” 

omitted).

      We have concluded, above, that the district court correctly found that the

individual defendants, Sheriff Hauf and Mr. Lane, did not violate any

constitutional right in connection with Peter’s death. We therefore need not

address the issue of qualified immunity.



      V. Is the Board a Proper Party to the Section 1983 Claims?

      Finally, the plaintiffs challenge the district court’s conclusion that the

Board is not a proper party to this action. We agree with the district court’s

analysis on this point and affirm its decision for substantially the reasons it stated

in its Order. In any event, plaintiffs have conceded that “if Plaintiffs can show an

unconstitutional policy or custom in play in this matter, then the Board of County

                                          -18-
Commissioners can also be held liable, and the trial court should be reversed in

granting summary judgment for the County.” Appellant’s Op. Br. at 54-55. We

have upheld the district court’s determination that no such unconstitutional policy

or custom is “in play” in this case; accordingly, by the plaintiffs’ own admission,

the Board is not a proper party to this case.



                                   CONCLUSION

        For the foregoing reasons, we AFFIRM the district court’s orders in this

case.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




                                         -19-