Martinez v. Beggs

Decision Date21 April 2009
Docket NumberNo. 08-6042.,08-6042.
PartiesGinger MARTINEZ, individually and as Personal Representative of the Estate of Kenneth Wayne Ginn, Plaintiff-Appellant, v. DeWayne BEGGS, as Sheriff of Cleveland County; David Epps, Kevin Brandon; Cleveland County Board of County Commissioners; Tommy Edwards; Gilbert Kirkland, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

T. David Hasbrook of Hasbrook & Hasbrook, Oklahoma City, OK, for Plaintiff-Appellant.

David W. Lee (with Ambre C. Gooch on the brief), of Lee & Gooch, P.C., Oklahoma City, OK, for Defendants-Appellees.

Before KELLY, BRISCOE, and McCONNELL, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiff-Appellant Ginger Martinez, individually and on behalf of the estate of her father, Kenneth Wayne Ginn, filed a 42 U.S.C. § 1983 action against the Board of County Commissioners of Cleveland County Oklahoma, Sheriff DeWayne Beggs, and Deputies Kevin Brandon, Tommy Edwards, David Epps, and Gilbert Kirkland alleging violations of the Fourteenth Amendment to the United States Constitution for deliberate indifference to Ginn's serious medical needs after Ginn died while in police custody.

The district court granted summary judgment in favor of defendants on qualified immunity grounds after concluding that Martinez had failed to show a genuine issue of material fact with respect to the subjective component of deliberate indifference, and, thus, had failed to show a constitutional violation. Martinez appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Ginn died on the evening of May 2, 2006, in the Cleveland County Detention Center (the "detention center") in Noble, Oklahoma, a few hours after his arrest for public intoxication. An autopsy conducted after his death revealed that Ginn had a blood alcohol level of 0.32%. According to the medical examiner's report, the cause of death was heart attack, and alcohol may have been a contributing factor.

At 5:16 p.m. on the day of Ginn's death, the police received a call reporting a fight in progress. The fight was outside the home of Teresa Carlson. Three officers responded to the call within a few minutes of one another — defendants Kirkland and Edwards, and Barbara McSwain, who is not a defendant in this case.

Kirkland arrived first and noticed Ginn sitting on the ground in a section of unfinished porch, between two porch runners approximately two feet off the ground.1 Kirkland did not see how Ginn came to be on the ground, so he asked Ginn if he was alright and if he needed any medical assistance. Ginn said that he was alright and did not need medical assistance. When asked if he had been drinking, Ginn said, "yes." Aplt.App., Vol. I, at 92 ¶ 5 (Aff. of Kirkland, Doc. 49-2). Kirkland noticed that Ginn's speech was slurred, his eyes were bloodshot, and he smelled of alcohol.

Carlson was standing nearby, and she told Kirkland that Ginn was a neighbor who visited often. She also reported that Ginn had fallen and that he had appeared to be knocked out for a short time. She stated that "Ginn had drunk an entire bottle of whiskey," "Ginn seemed to be hallucinating and seeing people trying to get him," and "that [Carlson] thought Ginn needed to go to the doctor." Id., Vol. II, at 255-56 ¶ 13 (Aff. of Carlson, Doc. 59-5). Additionally, Carlson told Kirkland that Ginn tried to fight her daughter. Carlson told Kirkland that she did not want to press charges; she only wanted Ginn off of her property.

Edwards arrived next, and Kirkland told him what had happened, including that Ginn had drunk a lot of alcohol. Edwards approached Ginn, who was still in the unfinished porch area, and told him that the police would have to take him home. Ginn responded by asking Edwards if he wanted to fight and threatening to "kick his ass." Id., Vol. I, at 101 ¶ 5 (Aff. of Edwards, Doc. 49-4). According to Carlson, one of the officers asked Ginn if he wanted to go to the hospital and Carlson believes Ginn did not respond. When Carlson told the officer to call the paramedics, she was told to "shut up and go inside."2 Id., Vol. II, at 256 ¶ 16.

McSwain was the last officer to arrive. Ginn had not moved from the unfinished porch area. McSwain informed Kirkland and Edwards that she knew Ginn personally and that Ginn was an alcoholic. McSwain tried to convince Ginn to go home or to let the officers take him home. McSwain could tell from Ginn's reaction that he recognized her. Ginn replied that he did not want to go home and again threatened to fight the officers. The officers then informed Ginn that if he did not leave Carlson's property, they would have no choice but to arrest him for public intoxication. Ginn refused to leave.

Edwards arrested Ginn for public intoxication. Ginn was generally uncooperative during the arrest and would not get up from the ground. According to Edwards, when Edwards reached down to help Ginn up, Ginn took a swing at Edwards and said "don't touch me." Id., Vol. I, at 102 ¶ 7. After Ginn was handcuffed near the porch area, "Ginn was unsteady on his feet, but he walked entirely on his own two feet and [Edwards and Kirkland] did not carry him." Id. ¶ 8. According to Carlson and her daughter, Misty Fisher, the officers picked Ginn up and dragged him to the patrol car. The arrest affidavit, signed by Edwards, reported that Ginn "was unable to stand." Id., Vol. II, at 253. Kirkland transported Ginn to the detention center.

Before the officers left, Carlson saw Ginn slumped over in the back seat of the patrol car, and she worried that he had passed out. Kirkland stated that Ginn was awake for the beginning of the ride, sitting upright and complaining about the handcuffs being too tight. Kirkland suggested that Ginn lie down to relieve the pressure on his wrists, and Ginn did as suggested. Kirkland thought Ginn "had passed out, like most of your drunks do," id., Vol. II, at 231:15-16 (Dep. of Kirkland, Doc. 59-2), but Ginn was awake when they arrived at the detention center. The drive took approximately fifteen to twenty minutes.

The officers did not administer a breath analyzer test or blood alcohol test to Ginn. According to McSwain, such tests are only administered to suspects arrested for drunk driving offenses, and not to suspects arrested for public intoxication. The rationale for administering a breath analyzer test for drunk driving and not for public intoxication is that Oklahoma law does not require evidence of a person's blood/alcohol concentration to establish public intoxication.

At approximately 6:30 p.m.,3 Kirkland and Ginn arrived at the detention center. Brandon helped remove Ginn from the car and helped him to a receiving cell. Video surveillance from the detention center shows Brandon and Epps escorting Ginn down a hallway toward the receiving cell. Ginn could not walk in a straight line and the officers kept him from veering into the hallway walls. The officers helped to support Ginn's weight, but they did not completely carry him.

The detention center manual provides:

Any inmate who is charged with being under the influence of alcohol or drugs or who has alcohol on his breath at the time of booking should be considered as a possible alcoholic. Inmates requiring detoxification or booked on drug charges will be placed in a holding cell for 4 to 6 hours or until sober and observed a minimum of every 30 minutes....

The booking deputy will ask the arresting officer about blood alcohol level of the inmate which would mean referral elsewhere based on a high blood alcohol level. If the blood alcohol level is .30 or more the inmate will not be accepted. If the inmate is unconscious, he will not be accepted....

If an inmate is booked into the facility under borderline conditions the shift Supervisor will ensure that the inmate is checked at least every fifteen minutes.

Id., Vol. II, at 349 (Manual, Doc. 59-14). According to Brandon,

it is not uncommon for an intoxicated person to be taken directly to receiving, before being formally processed into the [detention center]. This occurs when the intoxicated person is unable, due to his/her intoxication, to answer routine questions asked during processing. So, the intoxicated person is placed in a receiving cell for up to four hours to allow him/her to sober up enough to answer routine processing questions such as personal history, family contact numbers, and medical information.

Id., Vol. I, at 114 ¶ 5.

After Brandon and Epps took Ginn to the cell, Ginn complied with a request to kneel down so his handcuffs could be removed. Brandon, Epps, and Kirkland last saw Ginn alive and resting his head on his arms on his cell bench.

That evening, both Brandon and Epps were responsible for conducting sight checks of all people housed on the first floor of the detention center, including Ginn. However, no one logged in a sight check of Ginn that evening.

At approximately 9:35 p.m., about three hours after Ginn first arrived at the detention center, Brandon returned to the receiving cell and found Ginn dead, with his body in a kneeling position. Brandon called for back-up, checked vital signs, and attempted life saving procedures, including trying to use an automatic defibrillator. Fire department officials arrived and determined that Ginn was dead.

The medical examiner, Chai Choi, M.D., answered interrogatories on behalf of defendants stating that Ginn's cause of death was "[s]udden heart attack due to coronary artery disease" and that "the death was caused by heart attac[k] rather than acute alcohol intoxication." Id., Vol. I, at 134 (Doc. 49-14). However, the examiner also stated that "I felt that the acute ethanol intoxication would be a participating factor to his death." Id. at 135. When asked if Ginn would have had the heart attack if there were no alcohol in his system, Choi stated, "I do not have an opinion (whether [Ginn] would have experienced the same heart attack without acute ethanol intoxication)."...

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