MARCIA S. KRIEGER, Chief District Judge.
Mr. Rainer asserts a single claim pursuant to 42 U.S.C. § 1983 against Sgt. Oketunmbi for unreasonable delay in providing medical care. This Court exercises jurisdiction pursuant to 28 U.S.C. § 1331.
The parties offer different versions of pertinent events. For purposes of this motion, the Court recites the undisputed facts, and where they are controverted, takes the evidence in the light most favorable to the non-movant, Mr. Rainer.
Sgt. Oketunmbi and an unidentified officer responded to the cell and found Mr. Rainer lying on the floor in the fetal position, surrounded by blood and vomit. The lights in the cell were on, and Sgt. Oketunmbi looked through the window to ask Mr. Rainer what was wrong. Mr. Rainer informed him that he was in severe pain and throwing up blood. Sgt. Oketunmbi called over the radio to request "first responders." (Mr. Rainer's affidavit does not elaborate on who these "responders" were, what their duties were, or other than recited here, what they did.) Around 3:00 am, the first responders arrived. They told Mr. Rainer that no medical personnel were available at the time, and that he would have to wait until 6:00 am, when medical staff would arrive.
Sgt. Oketunmbi called his supervisor, an unnamed Shift Commander, to inform him of Mr. Rainer's condition and to seek instruction. Sgt. Oketunmbi was without authority to call an ambulance or otherwise summon medical personnel from outside of the prison; only the Shift Commander could make that decision.
When the day shift arrived, Sgt. Oketunmbi told the incoming lieutenant that Mr. Rainer needed to be seen by medical staff. Mr. Rainer's cell door was unlocked at 6:00 A.M., but no medical assistance arrived. At 6:30 am, Mr. Rainer crawled out of his cell and another inmate used an intercom to call for help. Lt. Vicki Page responded. She found Mr. Rainer lying on the floor of his cell, covered in blood. She called for first responders, who took Mr. Rainer to the medical clinic. At the clinic, Mr. Rainer reported to a nurse that his pain level was intense — a "10" on a scale of 1-10. Medical staff performed tests on Mr. Rainer, including a "UA dip show[ing] an intense amount of blood." Mr. Rainer was given an IV and pain killers, and diagnosed as suffering from kidney stones. Mr. Rainer continued to experience pain throughout the day, returning to the medical clinic twice during that day and on subsequent days.
Rule 56 of the Federal Rules of Civil Procedure permits summary judgment where there are no genuine disputes of material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A factual dispute is "genuine" if the evidence presented in support of and in opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a summary judgment motion, the Court views the evidence in the light most favorable to the non-moving party, but may disregard "mere allegations," "conclusory and self-serving affidavits" or inadmissible evidence. See Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir 2004); Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995); Sprague v. Thorn Americas, Inc., 129 F.3d 1355, 1360-61 (10th Cir. 1997); Gross v. Burggraf Const. Co., 53 F.3d 1531, 1541 (10th Cir. 1995).
Substantive law governs the elements that must be proven for a particular claim or defense, the standard of proof, and which party bears the burden of proof. See Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). Where the moving party does not bear the burden of proof at trial, it must point to an absence of sufficient evidence to establish the claim or claims that the non-moving party is obligated to prove. See Fed.R.Civ.P. 56(c)(1)(A); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). Once the moving party has met its burden, the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991); Perry, 199 F.3d at 1131. If there is insufficient evidence from which a reasonable fact-finder could find for the non-moving party as to each element of its claim, summary judgment is proper. Adams v. American Guarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000); White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Mr. Rainer contends that Sgt. Oketunmbi violated his Eighth Amendment rights by unreasonably delaying medical treatment in deliberate indifference to Mr. Rainer's serious medical needs. Sgt. Oketunmbi moves for summary judgment on qualified immunity grounds.
A defendant is entitled to qualified immunity if the defendant's conduct does not violate a clearly established constitutional right. Pearson v. Callahan, 555 U.S. 223, 231 (2009). In this matter, the Court first addresses whether Mr. Rainer can establish violation of a constitutional right. See id. at 232-33. A failure to provide, or an unreasonable delay in providing, an inmate with medical care for a serious health condition violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001). A successful claim for an unreasonable delay in providing medical care in the prison context requires a plaintiff to demonstrate that: (1) objectively, the plaintiff was experiencing a serious medical need and (2) subjectively, the defendant acted with deliberate indifference towards that need. Blackmon v. Sutton, 734 F.3d 1237, 1244-45 (10th Cir. 2013).
The Court first turns to the objective question; that is, whether Mr. Rainer suffered from a serious medical need. A medical need is serious if it is either diagnosed by a physician as mandating treatment or if it is so obvious that even a lay person would easily recognize the need for a doctor's attention. Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005); Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). A medical condition that a lay person properly should recognize as blatantly serious would include, for example, a badly bleeding ulcer. See Blackmon, 734 F.3d at 1245-46 (discussing Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976)). When the plaintiff's claim is for a delay in treatment, a medical condition is objectively serious if a delay in treatment could cause the plaintiff to suffer substantial harm. Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000). Substantial harm includes considerable pain, lifelong handicap, or permanent loss. See Garrett v. Startman, 254 F.3d 946, 950 (10th Cir. 2001); Beers v. Ballard, 248 Fed. App'x 988, 991 (10th Cir. Oct. 1, 2007).
Mr. Rainer has come forward with sufficient evidence that he was experiencing a serious medical need at the time his condition was brought to the attention of Sgt. Oketunmbi. He was in extreme pain and had vomited blood. This continued over the course of several hours. When medical personnel ultimately arrived they immediately transported him to the medical clinic where he was diagnosed as suffering from kidney stones. By his own account Sgt. Oketunmbi recognized Mr. Rainer's need for prompt medical assistance. He summoned "first responders" and sought direction from his superior. Sgt. Oketunmbi promised Mr. Rainer that he would receive medical attention as soon as medical staff arrived in the morning, continued to monitor Mr. Rainer's condition throughout the night, and asked another on-duty officer to do the same. Mr. Rainer has therefore satisfied his objective burden to show he had a serious medical need.
The Court therefore turns to the question of whether Mr. Rainer has come forward with evidence sufficient to establish that Sgt. Oketunmbi acted with deliberate indifference. Deliberate indifference suggests more than mere negligence, but less than knowing or purposeful intent to cause harm; it requires proof that a defendant acted (or neglected to act) despite knowledge of obvious adverse consequences of his action. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Harris v. Maynard, 843 F.2d 414, 415 (10th Cir. 1988). It has been analogized to the criminal recklessness standard of conscious disregard of a substantial risk of harm. Blackmon, 734 F.3d at 1244-45. In the specific context of a claim based on a failure to procure medical care, the Tenth Circuit held that an officer acts with "deliberate indifference" when he "knows of and disregards an excessive risk to inmate health or safety." See Todd v. Bigelow, 497 Fed. App'x 839, 841 (10th Cir. Sept. 27, 2012) (citing Farmer, 511 U.S. at 837).
In sum, an Eighth Amendment violation arises only when a defendant knowingly disregards risk to an inmate. See Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). Thus, as the Court recognized in its Order on Sgt. Oketunmbi's Motion to Dismiss, a defendant cannot be said to have disregarded a serious risk of harm in failing to obtain medical assistance that was not otherwise available due to the absence of medical staff.
Unlike many cases, the dispute here does not turn on whether Sgt. Oketunmbi recognized the severity of Mr. Rainer's medical condition, but instead on whether he deliberately disregarded Mr. Rainer's needs, during what the Court categorizes as two time frames. The first includes the time that elapsed between approximately 3:00 am, when Sgt. Oketunmbi first learned of Mr. Rainer's condition, until sometime around 6:00 am, when Sgt. Oketunmbi was replaced by the day shift. Mr. Rainer contends that Sgt. Oketunmbi was obligated during this time to ensure that Mr. Rainer received after-hours medical treatment, be it from internal medical staff or, if none was available, external staff. But Mr. Rainer has produced no evidence that internal medical staff was available, nor that Sgt. Oketunmbi was authorized to call external staff or transport Mr. Rainer to a nearby medical facility outside of the prison. Instead, Mr. Rainer confirms that Sgt. Oketunmbi called for first responders and, when the first responders were unable to help, Sgt. Oketunmbi periodically checked on Mr. Rainer throughout the night. The only remaining available evidence to this affect comes from Sgt. Oketunmbi, who stated that he: (1) called the medical department and learned that no nurses were available; (2) called the Shift Commander to inform him of Mr. Rainer's condition, only to be instructed to wait until the day shift arrived and alert the incoming officer of the need to transport Mr. Rainer to the medical clinic in the morning; (3) checked on Mr. Rainer through the night and asked the officer in Mr. Rainer's Living Unit to do the same. None of these statements are contradicted by Mr. Rainer's evidence. Because Mr. Rainer has not identified any action Sgt. Oketunmbi could have taken to help Mr. Rainer, but knowingly neglected to do, Mr. Rainer cannot show deliberate indifference by Sgt. Oketunmbi during this time.
The Court turns to the second relevant time frame: from 6:00 am to 6:36 am. Viewed in the light most generous to Mr. Rainer, Mr. Rainer offers only circumstantial evidence of any failure to act by Sgt. Oketunmbi. He states that when his cell door was opened at 6:00 am, no prison official came to take him to the medical clinic. It was not until Mr. Rainer crawled out of his cell and another inmate called for assistance over the intercom, that first responders arrived to take him to the medical clinic. But this does not provide the Court with any evidence as to what Sgt. Oketunmbi should or could have done during this time.
Accordingly, the Court finds that Mr. Rainer has not come forward with sufficient evidence to establish a prima facie case of deliberate indifference in failing to secure immediate medical care for Mr. Rainer.
The Court hereby
