BARRY A. BRYANT, Magistrate Judge.
This is a civil rights action provisionally filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, Chief United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.
Currently before the Court is a Motion for Summary Judgment by Plaintiff (ECF No. 42) and a Motion for Summary Judgment by Defendants. (ECF No. 62).
Plaintiff filed his Complaint on August 6, 2018. (ECF No. 1). He alleges that his constitutional rights were violated while he was incarcerated in the Clark County Detention Center ("CCDC") from May 18th through July 17th of 2018. Plaintiff first alleges Defendants violated a prior Court order concerning CCDC's violation of the Americans with Disabilities Act. (Id. at 4-5). He alleges they knowingly went against the judge's orders by holding him, a handicapped individual, in a facility that was inadequate and unsafe for handicapped inmates. (Id. at 4, 8). Plaintiff alleges he fell in the CCDC shower in 2010. (Id. at 3). Plaintiff alleges that Defendants denied him adequate medical attention during his incarceration. Specifically, he alleges Nurse Cassie failed to give him his blood pressure medication for over a month, and this could have resulted in his stroke on July 17, 2018.
Plaintiff proceeds against Defendants in both their official and personal capacity. (Id. at 4). He seeks compensatory and punitive damages. (Id. at 7).
Plaintiff filed a Motion for Summary Judgment and Statement of Facts on April 29, 2019. (ECF No's. 42, 43). He then filed additional exhibits to the Motion in April and July of 2019. (ECF No's. 48, 50, 51, 60, 61).
Defendants filed their Motion for Summary Judgment on August 16, 2019. (ECF No. 62). They also filed their Response to Plaintiff's Statement of Facts. (ECF No. 65). Plaintiff filed his Response to their Summary Judgment Motion on September 6, 2019. (ECF No. 67). This Response includes one document labelled as a brief and one labelled as an addendum. (ECF No's. 67-1, 67-2).
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), the record "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). "Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists." National Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607 (8th Cir. 1999).
The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient evidence to support a jury verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). "A case founded on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. (citing, Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007).
Defendants argue summary judgment in their favor is appropriate because: 1) Plaintiff failed to exhaust his administrative remedies concerning his blood pressure medication and any ADA violations based on the structure of the facility; 2) there is no proof of any personal involvement by Defendant Watson regarding any of Plaintiff's claims; 3) there was no violation of a prior Court Order; 4) Defendant were not deliberately indifferent to Plaintiff's medical needs; 5) to the extent Plaintiff asserts a claim for medical injury pursuant to the Arkansas Medical Malpractice Act, he failed to offer qualified expert testimony to meet his statutory burden of proof; 6) Defendant are entitled to qualified immunity; and 7) there is no basis for official capacity and county liability. (ECF No. 63 at 3-23).
In his Motion for Summary Judgment, Plaintiff argues it should be granted in his favor because: 1) Liability of Reckless Indifference; 2) Deliberate Indifference; 3) Gross Negligence; 4) Medical Neglect; 5) Inadequate Medical Attention to Serious Medical Need; 6) Administrational Liability; 7) Violation of American Disability Act/Rehabilitation Act; and 8) Violation of the Eighth Amendment. (ECF No. 42 at 1-2).
In his Response to Defendants' Motion for Summary Judgment, Plaintiff clarifies that his Complaint is that Defendants placed him in the same hazardous and unsafe showering environment, that Defendants were deliberately indifferent to his medical needs resulting in a stroke, and medical care was delayed when he suffered his stroke. (ECF No, 67-1 at 1). He argues that he filed grievances and had face-to-face conversations concerning his medications, including his blood pressure medication. (ECF No. 67-1 at 2). He also argues they should have provided him copies of medical release forms. He points to the incident report concerning the day of his stroke, where one jailer told another jailer that they were not permitted to call an ambulance unless it was a life or death emergency situation "per Sheriff." (ECF No. 67-1 at 3). He argues that this order by the Sheriff was put in place even though his jailers are not medically trained to be able to diagnose or recognize medical conditions appropriately. (ECF No. 67-1 at 6). Plaintiff argues the delay in providing him blood pressure medicine constitutes deliberate indifference because Nurse Cassie was his medical provider when he was in CCDC in 2017, knew he needed the medication, and delayed providing it to him. (ECF No. 67-1 at 5). He further alleges Defendant Barnes knew he needed the medication, and all Defendants had been "exposed" to his information. (ECF No. 67-1 at 5). Finally, Plaintiff argues that the medical records from Baptist Health satisfy the requirement of the Arkansas Medical Malpractice Code. (ECF No. 67-1 at 7).
As a preliminary matter, the Court notes that Plaintiff was booked into CCDC on May 20, 2018, and transferred to the Nevada County Jail shortly thereafter. According to Plaintiff's deposition and records from Nevada County, he was taken to Nevada County on May 29, 2018, and returned to CCDC on June 14, 2018. (ECF No's. 50 at 4; 64-9 at 61). The Court also notes that Plaintiff's medical records from Baptist Health indicate he was admitted for a cerebrovascular incident on July 19, 2018. (ECF No's. 64-4 at 12; 67-2 at 5).
The Prison Litigation Reform Act ("PLRA") in 42 U.S.C. § 1997e(a) provides: "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Exhaustion is mandatory. Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In Jones v. Bock, 549 U.S. 199 (2007), the Supreme Court concluded "to properly exhaust administrative remedies prisoners must complete the administrative review process in accordance with the applicable procedural rules." Id. at 218 (internal quotation marks and citation omitted). The Court stated the "level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Id.
The Eighth Circuit has recognized two exceptions to the PLRA exhaustion requirement: (1) when officials have prevented prisoners from utilizing the grievance procedures; or (2) when the officials themselves fail to comply with the grievance procedures. See Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (citing Miller v. Norris, 247 F.3d 736 (8th Cir. 2001) (explaining a prisoner is only required to exhaust those administrative remedies that are available and any remedies that prison officials prevent a prisoner from utilizing are not considered available)).
There is no dispute that CCDC has a grievance procedure in place. This procedure requires all requests and grievances, including those of a medical nature, to be submitted in writing on the appropriate form. (ECF No. 64-8). The grievance form provides a place for an inmate to indicate he wishes to appeal the response to the grievance. (ECF No. 64-3 at 2). Plaintiff failed to submit any written grievances or request forms at CCDC concerning his blood pressure medication,
In his deposition, Plaintiff admitted that he had not filed any written requests or grievances concerning his blood pressure medication or medical release forms. (ECF No. 64-9 at 30-33, 64-65). Instead, Plaintiff testified that he spoke to Defendant Barnes on June 14, 2018, was told it would be taken care of, and he was seen by Nurse Cassie. (ECF No. 64-9 at 64-65). Even if true, nothing in the CCDC policies permit a verbal request to initiate or exhaust the grievance procedure. See Jones 549 U.S. at 218 (it is the prison's requirements which define the proper boundaries of exhaustion). Plaintiff therefore failed to exhaust his administrative remedies concerning his blood pressure medication, medical release forms, or any ADA violations concerning the CCDC facility accommodations, and made no allegations which could give rise to a PLRA exhaustion exception for these claims.
Plaintiff did, however, file a CCDC medical request form on July 18, 2018, concerning the delayed response in seeking medical care for his apparent stroke. Plaintiff therefore appears to have exhausted his administrative remedies for this claim.
The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate indifference to prisoners' serious medical needs. Luckert v. Dodge County, 684 F.3d 808, 817 (8th Cir. 2012). To prevail on his Eighth Amendment claim, Plaintiff must prove that Defendants acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
The deliberate indifference standard includes "both an objective and a subjective component: `The [Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs.'" Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).
To show that he suffered from an objectively serious medical need Plaintiff must show he "has been diagnosed by a physician as requiring treatment" or has an injury "that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention." Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (citation omitted).
For the subjective prong of deliberate indifference, "the prisoner must show more than negligence, more even than gross negligence, and mere disagreement with treatment decisions does not give rise to the level of a constitutional violation." Popoalii v. Correctional Med. Servs, 512 F.3d 488, 499 (8th Cir. 2008) (citation omitted). "Deliberate indifference is akin to criminal recklessness, which demands more than negligent misconduct." Id.
It is well settled that "[a] prisoner's mere difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation." Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal citation omitted). An "inmate must clear a substantial evidentiary threshold to show the prison's medical staff deliberately disregarded the inmate's needs by administering inadequate treatment." Id. (internal citations omitted). Despite this, issues of fact exist when there is a question of whether or not medical staff exercised independent medical judgment, and whether the decisions made by medical staff fell so far below the reasonable standard of care as to constitute deliberate indifference. See Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).
Deliberate indifference may also be manifested by "prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 104-05. However, the "Constitution does not require jailers to handle every medical complaint as quickly as each inmate might wish." Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). "A prisoner alleging a delay in treatment must present verifying medical evidence that the prison officials `ignored an acute or escalating situation or that [these] delays adversely affected his prognosis[,]'" Holden v. Hirner, 663 F.3d 336, 342 (8th Cir. 2011) (citations omitted), unless the need for medical attention is obvious to a layperson, in which case the plaintiff need not submit verifying medical evidence to show the detrimental effects of delay. See Schaub, 638 F.3d at 919 (citing Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999)); Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995); cf. Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) ("noting that a delay in treatment, coupled with knowledge that an inmate is suffering, can support a finding of an Eighth Amendment violation").
There is no dispute that Plaintiff's stroke constitutes an objectively serious medical need. The question is whether any of the Defendants for this case actually knew of but deliberately disregarded those needs. Plaintiff's grievance concerning the delay states that around 6:00 pm on July 18, 2018, he told Officer Andrew that he had urinated on himself "without [his] knowledge" so he took a shower. (ECF No. 64-3 at 14). Andrew then went to Officer Jackson who told him that if Andrew had not witnessed the event, then nothing could be done. Around 7:30 pm. Officer Andrew came to check on Plaintiff and tried to give him an exam. Plaintiff notes that Andrew is not a nurse or a doctor, but asked Plaintiff to try to raise his arm and open his mouth. Andrew told him it looked as though he had suffered an allergic reaction or stroke-like symptoms. (ECF No. 64-3 at 14-15). Plaintiff asked for an extra blanket because he was cold and started to feel numb. (ECF No. 64-4 at 15). Around 10:45 pm pill call "Andrew was asked to call for an ambulance." (Id.). It is not clear if Plaintiff asked or if someone else asked for the ambulance. Andrew stated he was going to call Nurse Cassie instead. Plaintiff states that at this time he could not move and his right side had gone numb. (Id.). Plaintiff's grievance ends with the statement that it was now 11:00 pm and still no word or ER visit. (Id.).
Officer Jackson filed an incident report concerning Plaintiff's stroke. (ECF No. 64-5). In it he states:
(ECF No. 64-5 at 1).
Plaintiff filed an affidavit from his mother. (ECF No. 61). She stated she received a call from Plaintiff on July 19, 2018 at around 12:25. She states Plaintiff was trying to tell her that he had a stroke the previous night, but she could not understand him because his speech was "blurry." Someone in the background told her she needed to come to the jail because Plaintiff had a stroke and no one cared. She asked Corey to give the phone to that person, who was Wesley Buford, and he told her that Plaintiff needed medical attention, and no one seemed to care. She called the Jail around 12:35 and spoke with a jailer to tell him that Plaintiff needed medical help ASAP. She then called Plaintiff's wife and told her to call as well. Plaintiff's mother called back at about 12:45 pm and the jailer told her they were sending Plaintiff to the hospital. The jailers on duty on July 19th were Jackson and Andrew. She was not sure what jailers were on duty on July 18th. The Arkadelphia hospital treated Plaintiff and sent him to a Little Rock hospital for care. (Id.).
Based on the summary judgment evidence presented, it appears there is a fact question as whether Jailer Andrew knew of but deliberately ignored an acute or escalating situation regarding Plaintiff's stroke. Further, Jailer Jackson's role is less clear, but the summary judgment evidence here permits the inference that he was in some way involved in the incident. Plaintiff has provided medical records to show he suffered permanent detrimental effects from the stroke for purposes of summary judgment. (ECF No. 48). This permits the inference that the delay in getting him medical care for his stroke caused or contributed to those detrimental effects. His claims for denial and delay of medical care for his stroke therefore meet the second prong of the deliberate indifference test. Neither Jailer Andrew nor Jailer Jackson are defendants in this case.
There is no evidence in the summary judgment record, however, that any of the named Defendants in this case were aware of or personally involved in Plaintiff's health care emergency on July 18th or July 19th of 2018. "Liability under section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights. To establish personal liability of the supervisory defendants, [Plaintiff] must allege specific facts of personal involvement in, or direct responsibility for, a deprivation of his constitutional rights." Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)); see also Kulow v. Nix, 28 F.3d 855, 859 (8th Cir. 1994) ("if any claim of medical indifference . . . is to succeed, it must be brought against the individual directly responsible for [Plaintiff's] medical care."). It is therefore recommended that Plaintiff's personal capacity claims, for denial or delay of medical treatment, against Defendants should fail as a matter of law.
Under Section 1983, a defendant may be sued in either his personal capacity, or in his official capacity, or in both. In Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998), the Eighth Circuit Court of Appeals discussed the distinction between individual and official capacity suits. As explained by the Court in Gorman:
Gorman, 152 F.3d at 914.
A custom conflicting with a written policy can support an official capacity claim. Johnson v. Douglas County Med. Dept., 725 F.3d 825, 829 (8th Cir. 2013) However, to establish the existence of such a custom, Plaintiff must demonstrate:
Id. at 828. Under this standard, "multiple incidents involving a single plaintiff could establish a custom if some evidence indicates that the incidents occurred over a course of time sufficiently long to permit notice of, and then deliberate indifference to or tacit authorization of, the conduct by policymaking officials." Id.
Here, Defendants have provided a copy of the CCDC medical emergency policy. (ECF No. 64-8). It states if a detainee needs immediate or emergency medical treatment, the Jailer shall notify the Jail Administrator and gain authorization for transport to the hospital. Once authorization is gained, the jailer should contact dispatch for a Deputy or Ambulance and fill out a medical treatment form to send to the hospital. They should then fill out a Jail Incident Report stating the reasons for the emergency transport, place a copy of the report in the Detainee's file, and log it in the Jail Log. The policy, on its face, does not violate any constitutional rights. Indeed, based on the incident report and other summary judgment evidence it appears there is question whether jailers failed to follow this policy.
Plaintiff argues that the language in the incident report stating that jailers are not to call an ambulance unless it is a life or death emergency situation "per Sheriff" is sufficient to indicate that CCDC had a custom which conflicted with the written policy. The Court agrees that the language in the incident report is troubling. But a single incident, however unfortunate, is insufficient to support the existence of a custom in conflict with the written policy. Plaintiff has therefore failed to allege any summary judgment facts to support his claim that a custom or policy of Clark County violated his constitutional rights.
Because Plaintiff failed to provide any summary judgment facts to support his claim that a custom or policy of Clark County violated his constitutional rights his official capacity claims it is recommended that his official capacity claims should be dismissed as a matter of law.
Plaintiff clarified in his Response that his claim concerning the ADA violations was that Defendants placed him in the same "unsafe showering environment" as was present in his past case. Plaintiff's prior successful case is Turner v. Turner, Case No. 6:10-cv-06064 (W.D. Ark. 2012). In that case, Plaintiff fell several times in the shower of CCDC, resulting in several trips to the emergency room, and the exposure of orthopedic hardware in his hip. After a bench trial, the undersigned issued a memorandum opinion finding that CCDC was not adequately equipped to hold mobility impaired inmates.
In his deposition, Plaintiff testified that he believed the prior case required the jail to make changes in the facility. (ECF No. 64-9 at 67). There is, however, nothing in the Court's opinion from the prior case which does so. Plaintiff further testified that he did not fall in the shower in 2018. He testified he was not asserting a claim that he was injured by a lack of handicap accessibility. (ECF No. 64-9 at 68). Further, as discussed above, Plaintiff filed no grievances concerning any ADA violations concerning the CCDC facility accommodations.
As there is no summary judgment evidence of non-compliance with this Court's prior Order in the summary judgment record, it is recommended that Plaintiff's claim concerning the prior Court order should be dismissed as a matter of law.
Accordingly, I recommend that Defendants Summary Judgment Motion (ECF No. 62) be
The parties have fourteen days from receipt of the Report and Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court.
