Rife v Okla. Dep’t of Public Safety, 2017 U.S. App. LEXIS 1117 (10th Cir. April 12, 2017) (note: this opinion amends the opinion excerpted in our posting of February 21, 2017):

ORDER

This matter is before the court on appellees McCurtain County Jail Trust, Chad Dale and Jonathon Willis's Petition for Rehearing En Banc, as well as the separate Petition for Rehearing and Petition for Rehearing En Banc filed by appellee Joe Jefferson. We also have the appellant's response to those petitions.

Upon consideration, panel rehearing is granted in part and only to the extent of the changes made to the amended opinion attached to this order. In all other respects panel rehearing is denied [*2]  by the original panel members.

The petitions, the response, as well as the amended opinion were also circulated to all the judges of the court who are in regular active service. As no judge on the original panel or the en banc court requested that a poll be called, the requests for en banc consideration are denied.

The Clerk is directed to file the attached amended opinion effective the date of this order.

BACHARACH, Circuit Judge.

This case began with the plaintiff, Mr. Clyde Rife, sitting on a motorcycle next to a road, unable to recall the date, the time, or even what he had been doing in a town he had just visited. When approached by a state trooper, Mr. Rife said that he was fine. Nonetheless, the trooper questioned Mr. Rife and concluded that he was intoxicated on pain medication and had been in a motorcycle accident. These conclusions led the trooper to arrest Mr. Rife for public intoxication. Authorities later learned that Mr. Rife had not been intoxicated; he had suffered a head injury in a motorcycle accident.

Mr. Rife ultimately sued the trooper and the Oklahoma Department of Public Safety, alleging in part that he had been wrongfully arrested. For this allegation, we ask: Did [*3]  probable cause exist to arrest Mr. Rife? The district court said "yes," and we agree.

The rest of the case involves what happened after the arrest. After the arrest, the trooper drove Mr. Rife to jail. Along the way, Mr. Rife groaned and complained of pain in his heart and chest. Upon arriving at the jail, Mr. Rife was put in a holding cell. The scene was observed by a cellmate, who said that Mr. Rife had repeatedly complained about pain. Nonetheless, Mr. Rife was not provided medical attention.

The lack of medical care led Mr. Rife to sue (1) the trooper, two jail officials, and the entity operating the jail for deliberate indifference to serious medical needs and (2) the Oklahoma Department of Public Safety for negligent failure to provide medical care. On these claims, we ask: Did the failure to provide medical attention constitute (1) deliberate indifference to Mr. Rife's serious medical needs or (2) negligence? The district court thought no one could reasonably infer either deliberate indifference or negligence. We disagree, concluding that both could be reasonably inferred from the evidence.

These conclusions lead us to affirm in part, to reverse in part, and to remand for further [*4]  proceedings.

***

I. Mr. Rife's Claims

Mr. Rife sued the trooper (Joe Jefferson), the two jail officials (Jonathon Willis and Chad Dale), the entity operating the jail (McCurtain County Jail Trust), and the Oklahoma Department of Public Safety.¹ With regard to the arrest, Mr. Rife makes two claims:

   1. Trooper Jefferson is liable under § 1983 for arresting Mr. Rife without probable cause.

2. The Oklahoma Department of Public Safety incurs vicarious liability for the wrongful arrest under the Oklahoma Governmental Tort Claims Act.²

1   The Oklahoma Department of Public Safety is a state agency. See Okla. Stat. tit. 47, § 2-101. Trooper Jefferson worked for the Oklahoma Highway Patrol, which is a division of the Oklahoma Department of Public Safety.

2   The Oklahoma Governmental Tort Claims Act is codified at Okla. Stat. tit. 51, § 151 et seq. This law provides the exclusive tort remedy in Oklahoma for injured plaintiffs to recover against state entities. Tuffy's, Inc. v. City of Okla. City, 2009 OK 4, 212 P.3d 1158, 1163 (Okla. 2009). Under this law, state entities can generally incur liability for torts. Id. This liability may be based on the acts of state employees. Id.

For the lack of medical attention after the arrest, Mr. Rife makes three claims:

   1. Trooper Jefferson, Mr. Willis, and Mr. Dale are liable under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs.

2. The jail trust is liable under § 1983 for the deliberate indifference of jail employees.

3. The Oklahoma Department of Public Safety is vicariously liable under the Oklahoma Governmental Tort Claims Act for Trooper Jefferson's negligent failure to obtain medical attention.³

3   Mr. Rife also sued under the Oklahoma Constitution, but those claims are not involved in this appeal.

During the lawsuit, Mr. Rife discovered that the jail trust had destroyed a videotape that showed him in the jail's booking area. According to Mr. Rife, the destruction of the videotape warranted spoliation [*5]  sanctions consisting of denial of the summary judgment motions brought by Mr. Willis, Mr. Dale, and the jail trust.

II. The District Court's Rulings

The defendants moved for summary judgment, and the district court granted summary judgment to each defendant.

On the wrongful arrest claims, the district court granted summary judgment to Trooper Jefferson and the Oklahoma Department of Public Safety, concluding that probable cause existed for Mr. Rife's arrest.

On the claims involving a failure to provide medical attention, the court granted summary judgment to all defendants, reasoning that the lack of medical attention had not resulted from deliberate indifference or negligence.

In addition, the district court declined to sanction the jail trust, Mr. Willis, and Mr. Dale for destruction of the videotape, reasoning that Mr. Rife had failed to follow the proper procedure for requesting a spoliation sanction.

III. Our Conclusions

We affirm the district court's orders in part, reverse in part, and remand for further proceedings.

On the wrongful arrest claims against Trooper Jefferson and the Oklahoma Department of Public Safety, we affirm, agreeing with the district court that probable cause existed [*6]  for the arrest.

On the deliberate indifference claims, we reverse: A reasonable factfinder could find facts supporting the deliberate indifference claims against Trooper Jefferson, Mr. Willis, Mr. Dale, and the jail trust. Thus, we reverse and remand for the district court to determine (1) whether Mr. Rife's rights were clearly established and (2) whether a reasonable factfinder could find a causal link between the jail trust's policies or customs and a constitutional violation.

On the negligence claim against the Oklahoma Department of Public Safety, we reverse, concluding that a genuine dispute of material fact exists on the reasonableness of Trooper Jefferson's failure to obtain medical attention.

In addition, we affirm the district court's denial of spoliation sanctions, concluding that Mr. Rife forfeited his present argument and has failed to identify evidence of bad faith.

***

XI. The District Court's Denial of Sanctions

Mr. Rife argues [*33]  that there was a videotape of him in the booking area of the jail and that the jail trust intentionally destroyed the videotape.¹³ According to Mr. Rife, destruction of the videotape constitutes unlawful spoliation of evidence, justifying sanctions in the form of an adverse inference against the jail trust, Mr. Willis, and Mr. Dale.

13   The jail trust, Mr. Willis, and Mr. Dale contend that the videotape did not show the booking process. Instead, they state that the videotape "showed Rife walk[ing] into the booking area and call[ing] the [bail] bondsman the next morning." Response Br. of the Jail Trust, Mr. Willis, and Mr. Dale at 37.

In district court, Mr. Rife did not ask for an adverse inference. Thus, Mr. Rife has forfeited this argument. See Anderson v. Spirit Aerosystems Holdings, Inc., 827 F.3d 1229, 1238 (10th Cir. 2016). On appeal, we may consider forfeited arguments under the plain-error standard. Id. at 1239. But Mr. Rife has not asked us to apply this standard. Thus, we cannot reverse based on this argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130-31 (10th Cir. 2011) (stating that a failure to argue plain error on appeal "marks the end of the road for an argument for reversal" newly presented on appeal).

Even if Mr. Rife had not forfeited this argument, we could not grant the sanction he is seeking. For an adverse inference sanction, the aggrieved party must show bad faith. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) ("[I]f the aggrieved party seeks an adverse inference to remedy the spoliation, it must also prove bad faith."); Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997) ("[An] adverse inference must be predicated on the bad faith of the party destroying the records."). But both here and in district court, [*34]  Mr. Rife failed to identify any evidence of bad faith.

For these reasons, we uphold the district court's denial of sanctions.

XII. Disposition

We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.