FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 29, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
THE ESTATE OF JOSEPH C. “TREY”
DUKE III, by and through its personal
representative Beth Anne Duke and Joseph
Councell Duke, Jr.; BETH ANNE DUKE;
JOSEPH COUNCELL DUKE, JR.,

      Plaintiffs - Appellants,

v.                                                          No. 18-1076
                                                   (D.C. No. 1:16-CV-01593-RBJ)
GUNNISON COUNTY SHERIFF’S                                    (D. Colo.)
OFFICE; RICHARD BESECKER, in his
individual capacity; IAN CLARK, in his
individual capacity; PAULA MARTINEZ,
in her individual capacity; CONNER
UDELL, in his individual capacity;
MEGAN HOLLENBECK, in her
individual capacity; CHAD ROBERTS, in
his individual capacity; BRANDON RUPP,
in his individual capacity; RYAN
PHILLIPS, in his individual capacity,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, EBEL and LUCERO, Circuit Judges.
                 _________________________________

      Following Joseph Duke’s untimely death while in the custody of the Gunnison

County Sheriff’s Office (“GCSO”), Duke’s parents and his estate filed suit against

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
GCSO and several of its employees. We agree with the district court that the

individual defendants are entitled to qualified immunity and that there is no basis to

hold GCSO liable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      On June 27, 2015, GCSO Deputy Ian Clark found Duke outside a cabinet store

in Gunnison, Colorado. Having been asked several times whether he was okay, Duke

eventually responded that he was waiting for a girlfriend. Clark recognized Duke,

and noted that his pupils were pinpointed, his eyes were glassy, and he seemed

disoriented. After learning that Duke was subject to a protective order prohibiting

the use of drugs or alcohol, Clark conducted a roadside sobriety test. Duke was

unable to focus on Clark’s finger, nodded his head several times, and was unsteady

on his feet. Clark took Duke into custody for suspicion of using a controlled

substance. While patting him down, Clark discovered a pill bottle containing packets

of an unknown substance that later tested positive for heroin.

      Clark was assisted by GCSO Deputy Paula Martinez, who transported Duke to

the Gunnison County Detention Center in her patrol car. Duke appeared intoxicated

but was able to sustain a lucid conversation. During lulls in the conversation, Duke

seemed to be sleeping. He claimed to be using only a prescription medication. When

she arrived at the jail at approximately 3:45 p.m., Martinez had Duke sit on a bench

in a waiting area, where she was met by Clark, GCSO Deputy Scott Leon, Colorado

State Trooper Zachary Trafton, and Corporal Jason Sparks. Duke entered the room

under his own power and stood unaided while Martinez removed his handcuffs.

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GCSO Deputy Ryan Phillips was working in the jail’s control room at that time and

observed Duke by video for approximately fifteen minutes.

      Trafton and Sparks conducted a drug recognition exam (“DRE”) to determine

if Duke was under the influence of narcotics. Duke told them he had taken only

Clonazepam as prescribed and directed, and claimed to be “91 days clean.”

However, he swayed while walking and standing, could not consistently touch his

nose with his fingertip, and showed little pupil reaction to light. His pulse, blood

pressure, and temperature were elevated. Trafton opined that Duke was under the

influence of a stimulant and a narcotic. Duke refused a blood test. Clark observed

the DRE and noted that Duke was able to engage in conversation and appropriately

answer questions. After the exam was completed, Duke fell off a bench, but sat back

on the bench without assistance.

      Following the DRE, GCSO Deputy Conner Udell booked Duke into the jail.

Duke’s custody report indicated he had been found passed out, performed poorly on

roadside tests, was under the influence of drugs, and was charged with possessing

heroin. Udell placed Duke on a sixteen-hour drug hold. Inmates on a drug hold are

monitored for signs of a drug overdose. The hold policy stems from an

administrative order issued by a state district court prohibiting the release of

individuals taken into custody until either sixteen hours have elapsed or the

individual is no longer visibly intoxicated, whichever period is longer.

      Udell assigned Duke to the padded cell H-5 because he was aware Duke had

fallen. Cell H-5 also had an interior camera, through which GCSO Deputy Megan

                                            3
Hollenbeck monitored Duke. Duke was agitated when he entered the cell, but he

calmed down and slept for approximately two hours. At one point, Hollenbeck sent

Udell to check if Duke was breathing. After waking up and leaving the cell under his

own power with Udell, Duke returned and slept for another two-and-a-half hours.

      GCSO Deputy Chad Roberts replaced Hollenbeck at 10:00 p.m. About forty

minutes later, Duke asked to use the bathroom and the phone. Duke made two phone

calls, and Udell sent him to cell H-2, which had a bathroom but no camera. From

that time until 2:00 a.m., when Udell’s shift ended, Udell observed Duke sleeping in

his cell. GCSO Deputy Brandon Rupp replaced Udell. Rupp noticed that Duke was

sitting upright and cross-legged, and thought it was an unusual way to sleep. He

accordingly knocked on the window to ask Duke if he was alright. Duke responded

in the affirmative. Rupp, Roberts, and Phillips checked on Duke several times

throughout the night. However, Duke’s time sheet includes several checks from

deputies that are not reflected on surveillance videos.

      At 7:30 a.m., Roberts delivered a breakfast tray to Duke. Duke took the tray

and said thank you. When Roberts returned to the cell at approximately 8:00 to

retrieve the tray, he noticed Duke was sitting cross-legged and bent over at the waist,

and asked if Duke was okay. Duke said yes, and responded that he was still eating.

At approximately 8:30, Phillips retrieved Duke’s tray from a pass-through slot. He

saw Duke sitting cross-legged with his forehead resting on a blanket in front of him,

and observed that he was breathing. Phillips had seen Duke sitting like that before.

Another inmate, Brandon Morse, saw Duke sitting in that position and said to Phillips

                                           4
that Duke did not look so good. Phillips responded, “That’s what you get for doing

drugs.” When Phillips exited the jail at the end of his shift just after 9:00, he saw

Duke in the same position.

      Five to ten minutes later, Rupp noticed that Duke had fallen forward and had

vomit coming out of his mouth. He called for medical assistance and began

lifesaving measures. Duke could not be resuscitated. An autopsy revealed a ruptured

plastic baggie in Duke’s stomach, and a high level of fentanyl in his gastric contents.

A toxicology report showed the presence of fentanyl, cocaine, benzodiazepines, and

oxycodone. A forensic toxicologist stated the drugs other than fentanyl did not play

a significant role in Duke’s death, and that the level of fentanyl indicated Duke did

not begin metabolizing the drug prior to his arrest. According to the forensic

toxicologist, this evidence suggested that Duke had swallowed a plastic baggy

containing a fentanyl patch, and that the baggie ruptured near the time of his death.

An expert retained by Duke opined that Duke died of an opioid overdose “in the

presence of benzodiazepine,” and noted that “[b]enzodiazepines increase the life

endangering effects of opioid overdose.”

      Plaintiffs, Duke’s parents and his estate, filed suit against GCSO and several

individuals involved in Duke’s detention. The district court granted summary

judgment in favor of defendants. It concluded that the individual defendants were

entitled to qualified immunity and that GCSO was not deliberately indifferent. The

court declined to exercise supplemental jurisdiction over plaintiffs’ state wrongful

death claim. Plaintiffs timely appealed.

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                                           II

      We review the grant of summary judgment de novo. Hobbs ex rel. Hobbs v.

Zenderman, 

, 1179 (10th Cir. 2009). A party is entitled to summary

judgment only if, viewing the evidence in the light most favorable to the non-moving

party, the movant is entitled to judgment as a matter of law. 

determine if the individual defendants are entitled to qualified immunity,

we consider: (1) whether defendants’ conduct violated plaintiff’s constitutional

rights; and (2) whether the right at issue was clearly established. Gomes v. Wood,

, 1134 (10th Cir. 2006). As did the district court, we elect to resolve

this case on the second prong. See Riggins v. Goodman, 

, 1107-08

(10th Cir. 2009).

      “Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight

of authority from other courts must have found the law to be as the plaintiff

maintains.” Klen v. City of Loveland, 

, 511 (10th Cir. 2011) (quotation

omitted). “This is not to say that an official action is protected by qualified immunity

unless the very action in question has previously been held unlawful, but it is to say

that in light of the pre-existing law the unlawfulness must be apparent.” Mimics, Inc.

v. Vill. of Angel Fire, 

, 842 (10th Cir. 2005) (quotation omitted). “The

relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in the

                                           6
situation.” Cortez v. McCauley, 

, 1114 (10th Cir. 2007) (en banc)

(quotation and ellipses omitted).

      The Due Process Clause of the Fourteenth Amendment provides detainees “the

same degree of protection against denial of medical care as that afforded to convicted

inmates under the Eighth Amendment.” Estate of Hocker ex rel. Hocker v. Walsh, 

, 998 (10th Cir. 1994).1 A prison official’s “deliberate indifference” to an

inmate’s serious medical needs violates the Eighth Amendment. Estelle v. Gamble,

, 102 (1976). To prevail on a deliberate indifference claim, a plaintiff

must show that a prison official “knows of and disregards an excessive risk to inmate

health or safety.” Farmer v. Brennan, 

, 837 (1994). An official’s

“inadvertent failure to provide adequate medical care” does not qualify. Self v.

Crum, 

, 1231 (10th Cir. 2006).

      Our court has decided two key cases concerning the treatment of intoxicated

detainees. In Garcia v. Salt Lake County, 

(10th Cir. 1985), we held

that a jail policy under which “unconscious individuals who were suspected of being

intoxicated were admitted to the jail” was unconstitutional. 

The detainee

in that case was taken to a hospital after being arrested for driving while intoxicated.

He escaped from the hospital, consumed an overdose of barbiturates,

and was found passed out on the pavement nearby. 

booked into the jail

      1
         The parties agree on this standard. We accordingly do not consider whether
it has been undermined by subsequent case law. See Perry v. Durborow, 

, 1122 n.1 (10th Cir. 2018) (noting that some circuits have altered their standard
for pre-trial detainee claims following the Supreme Court’s decision in Kingsley v.
Hendrickson, 

(2015)).
                                            7
and later found dead. 

We held that a jury verdict in plaintiff’s favor was

“supported by sufficient evidence of gross deficiencies and deliberate indifference in

staffing and procedures to monitor persons admitted to the jail in an unconscious

condition who are suspected of being intoxicated.” 

      But we have distinguished Garcia in cases involving detainees who are

inebriated but conscious and responsive. In Martinez v. Beggs, 

(10th

Cir. 2009), a man was arrested after a neighbor reported he had consumed an entire

bottle of whiskey, fallen, and appeared to have been knocked out. 

When

arrested, he was unable to stand. 

He passed out in the patrol car. 

was unable to walk in a straight line to his cell. 

hours later,

he was found dead. An expert testified that he died of a heart attack “compounded by

a toxic blood alcohol level,” and would have survived had he been taken to a

hospital. 

We distinguished Garcia as follows:

      Although defendants in Garcia were aware that Garcia was unconscious
      for many hours, they took no action to attend to his obvious medical
      needs. By comparison, [the detainee in this case] was conscious, on his
      feet, argumentative, and cognizant that he was being arrested. [He]
      exhibited characteristics that are common to many intoxicated
      individuals.

(quotation omitted).

      Plaintiffs seek to distinguish Martinez by arguing the plaintiff in that case died

as a result of medical issues other than intoxication. See 

(noting that

although officers knew he was intoxicated, there was “no evidence to show that

anyone would have known that [the detainee] would face an imminent heart attack or


                                           8
death”); see also Estate of 

(reliance on Martinez

inappropriate because prisoner was conscious and died of suicide rather than alcohol

poisoning). But the heart attack in Martinez was “compounded by a toxic blood

alcohol 

.

      Moreover, to defeat a qualified immunity defense “existing law must have

placed the constitutionality of the officer’s conduct beyond debate.” D.C. v. Wesby,

, 589 (2018) (quotation omitted). Duke, like the detainee in Martinez,

exhibited many common characteristics of intoxicated individuals but was responsive

and functioning. We conclude it is at least reasonably debatable that Martinez rather

than Garcia provides the controlling precedent, and thus affirm the grant of qualified

immunity to the individual defendants.

                                           B

      Plaintiffs also argue that GCSO itself is liable for Duke’s death.

Municipalities are not generally liable for constitutional violations committed by

public employees, but may be held responsible if a plaintiff’s rights were violated by

a municipal policy or custom. Monell v. Dep’t of Soc. Servs., 

, 690-91

(1978). To prevail on a municipal liability claim, a plaintiff must show: “(1) that a

municipal employee committed a constitutional violation, and (2) that a municipal

policy or custom was the moving force behind the constitutional deprivation.” Myers

v. Okla. Cty. Bd. of Cty. Comm’rs, 

, 1316 (10th Cir. 1998).

      A “failure to adequately train or supervise employees” qualifies as a policy if

“that failure results from deliberate indifference to the injuries that may be caused.”

                                           9
Bryson v. Oklahoma City, 

, 788 (10th Cir. 2010) (quotation omitted).

This standard is satisfied if a “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.” Olson v. Layton

Hills Mall, 

, 1318 (10th Cir. 2002) (quotation omitted). “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.” 

citation omitted).

       Plaintiffs contend that GCSO failed to adequately train its employees as to the

management of detainees under the influence of drugs, and failed to adopt

appropriate policies and procedures for their care. There is no allegation that GCSO

had prior experience with detainees in a sixteen-hour hold suffering lethal overdoes.

GCSO relied on individual deputies to exercise their judgment in determining

whether intoxicated individuals required medical treatment based on the totality of

the circumstances. Although the lack of a more detailed training program and

specific written policies might be deemed negligent, we agree with the district court

that GCSO was not on notice that its policies were “substantially certain” to result in

constitutional violations. See 

(quotation omitted). We

therefore agree with the district court that GCSO was entitled to summary judgment.




                                             10
            III

AFFIRMED.


             Entered for the Court


             Carlos F. Lucero
             Circuit Judge




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