KATHRYN H. VRATIL, District Judge.
The administrator of the estate and the children of Terry Albert Bruner, a former inmate at the Sedgwick County Adult Detention Facility in Wichita, Kansas, filed suit under 42 U.S.C. § 1983 to recover money damages for the violation of Bruner's rights under the Eighth Amendment. In particular, plaintiffs allege that various individuals associated with Sedgwick County, Kansas (the "Sedgwick County Defendants") and ConMed, Inc. (the "ConMed Defendants") were deliberately indifferent
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving parties are entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which she carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court views the record in the light most favorable to the nonmoving party. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51, 106 S.Ct. 2505. In response to a motion for
Plaintiffs have attempted to controvert nearly all of defendants' facts, but most of plaintiffs' responses are insufficient for one or more of the following reasons:
The Court has no desire to make "technical minefields" of summary judgment proceedings, but neither can it countenance laxness in the proper and timely presentation of proof. Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir.1993). Despite the deficiencies in plaintiffs' responses to defendants' factual statements, where the information was readily available in the summary judgment record of nearly 2000 pages, the Court has gone beyond plaintiffs' citations to the record in an attempt to properly set forth the facts in a light most favorable to plaintiffs and to determine whether genuine issues of material fact preclude the entry of summary judgment for defendants.
The following material facts are uncontroverted, deemed admitted or, where controverted, viewed in the light most favorable to plaintiffs, the non-movants.
On November 5, 2007, Bruner was incarcerated in the Sedgwick Jail.
On November 8, 2007, Bruner transferred to the Stanton County jail in Johnson, Kansas, some 260 miles from the Sedgwick Jail. Despite the transfer, because Bruner still was technically a Sedgwick County inmate, ConMed remained responsible for his medical care.
On March 4, 2008, after a report from another inmate that Bruner was ill, two Stanton County jailers, Jared Nichols and Carol Sheppard, checked on Bruner, who was in bed. Bruner appeared ill and stated that he did not feel well. The next morning, an inmate again reported that Bruner was sick, that he had bloody stools and that he was not eating.
At about 8:00 a.m. on March 5, Sheppard called Ted Gibson, a corporal at the Sedgwick Jail who was assigned to population control that day, and reported that Bruner appeared to be sick and in need of immediate medical attention.
Immediately thereafter, at approximately 8:15 a.m., Sheppard called ConMed and talked with a nurse, Joyce Beyrle. Sheppard told Beyrle that he had a Sedgwick inmate who was weak, not eating meals for two days and had blood in his stools. Beyrle recorded notes of her conversation with Sheppard in Bruner's medical chart. Sheppard did not tell Beyrle that Bruner needed immediate medical attention. Likewise, Sheppard did not tell Beyrle that it was urgent, emergent or routine. Beyrle did not review Bruner's medical
A few minutes later, Beyrle called Gibson and told him that Bruner needed to be transported back to the Sedgwick Jail. Gibson asked Beyrle if Bruner could be brought back the following day in the transport van. Beyrle said yes. Beyrle did not tell Gibson about ConMed's plan of action, when ConMed wanted to see Bruner or whether ConMed wanted to see Bruner at all. Although Gibson did not discuss exactly when Bruner would be transported back to the Sedgwick Jail, Beyrle expected that Bruner would arrive the next day, March 6. As the population deputy, Gibson decided when an inmate would be transported back to the Sedgwick Jail.
Beyrle documented in Bruner's chart that he was to be scheduled to be seen by a clinician and a nurse on Thursday, March 6, which meant Bruner should have appeared on the clinician's schedule as well as the nurse's schedule for that day. At approximately 8:42 a.m. on March 5, Amy Rodman-Riggs, a ConMed employee, scheduled Bruner for a medical appointment with a physician assistant on March 6 at 9:10 a.m.
Gibson arranged for Bruner to be transported back to the Sedgwick Jail the next day, March 6, on the regular transport van.
Nichols was not aware that Bruner ate anything on Wednesday, March 5. The next morning, March 6, Bruner appeared to still have the flu and looked uncomfortable. In the early morning on March 6, Nichols told Bruner that he was being transferred back to the Sedgwick Jail. Bruner said that he did not want to go back. Nichols and Sheppard thought Bruner looked about the same. At 11:56 a.m. on March 6, Sedgwick County Sheriff Deputies Elton Bowman and Dana Hoffman picked up Bruner at the Stanton County jail. Bruner was so weak that Stanton County jailers had to carry him to the transport van. Bruner arrived back at the Sedgwick Jail at 5:00 p.m. Deputies logged Bruner's name into the computer in the booking area at 5:43 p.m.
The Trip Sheet shows that Bruner was being returned for "medical." Bowman testified that he would put the Trip Sheet in a file box in the transportation office once he was back at the Sedgwick Jail. Of the 21 inmates who were transported to or from Sedgwick Jail that day, Bruner was the only one transported for a medical reason. Normally, when an inmate is transported to the Sedgwick Jail, some sort of medical contact or screening occurs as parting of the booking process. Despite the fact that the Trip Sheet indicated that Bruner was being returned for "medical," deputies conducted no type of medical screening. The Sedgwick Jail did not have a medical screening process for an inmate who returned for medical care from an out-of-county facility.
From 7:00 a.m. to 11:30 p.m. on March 6, 2008, Charles Fletcher was working as a physician assistant in the clinic. Fletcher did not know why Bruner was on the
POD 1 is a protective custody area for inmates who are not placed in general population. At all times, the POD deputy or a relief deputy remains in a POD booth which has a closed door, glass windows and a private bathroom. The booth is in the middle of the POD, which allows the deputy to see the various sections of the POD and the inmates in the day rooms, as well as inmates who are moving or standing by the window in their cell doors. From the booth, a deputy cannot hear inmates coughing or vomiting in their cells. Inmates can communicate with a deputy in the booth by intercoms when they are in their cells or through slots in the booth's glass when they are in the POD day rooms.
Deputies supervise inmates in POD 1 indirectly and generally allow them at their will to stay in their cells or remain outside of their cells for much of the day in common day rooms. Inmates may eat food that they purchase through commissary in their cells. Except when an inmate is entering or exiting the cell, deputies keep cell doors closed and locked. The POD deputy generally unlocks cell doors remotely from the booth.
Several times during a shift, a POD deputy or relief deputy conducts physical checks or rounds of inmates. During these rounds, the deputy looks in the window of each cell, observes each inmate, and verifies that the inmate is breathing. The deputies determine whether the inmate is present and alive, not whether the inmate has signs of illness or sickness.
ConMed had normal sick call hours on weekdays only. Each weekday, inmates could sign up for sick call after breakfast at the end of the third shift (appx. 6:30 a.m.) or they could tell the POD deputy directly of their medical need. By intercom announcement, the POD deputy reminded inmates to sign up for sick call. In addition to sick call hours, jail officers could ask the clinic at any time to see an inmate for a medical concern. Inmates could also complete "Kite" forms, available in the POD, to make requests including requests for medical treatment. By policy, jail personnel had to respond to Kites on the day which they were submitted. From March 6 to March 10, Bruner did not sign up for sick call, complete a Kite or ask any employee of the Sedgwick Jail for medical treatment or help.
From information on the computer, POD deputies could determine if an inmate had a scheduled medical appointment as well as the date and time of the appointment.
In 2008, the Sheriff policy required that inmates receive necessary medical care without delay.
POD deputies did not know that Bruner had returned to the Sedgwick Jail for a medical examination. Lisa M. Perez, Lisa R. Price, Rachel M. Gaines, Timothy McMahon, Bobby L. Hines and Abdul Smith worked as the POD 1 deputies from 11:00 p.m. on March 6 to 7:00 a.m. on March 9.
From 7:00 a.m. to 3:00 p.m. on March 9, Mark B. Cook was the POD 1 deputy. At some point between 7:30 a.m. and 10:30 a.m., and shortly after Cook announced that inmates could take showers, Bruner rang the intercom in his cell and asked Cook to open the cell. Cook unlocked the cell and Bruner came out in his long underwear and started walking toward the showers. Cook thought this was strange because he had just announced that inmates needed to be in their jumpsuits to leave their cells. Cook told Bruner to return to his cell and put his jumpsuit on. Bruner slowly returned to his cell and
A few minutes later, Bruner rang the intercom again. Bruner was standing at his cell door window and it appeared that he did not have his jumpsuit on. Cook told him again to put his jumpsuit on. Cook asked Bruner if he had been eating. Bruner said that he had not been eating and that he had not been feeling well. Cook logged this in his DAL at about 10:32 a.m.
Cook did not offer to call the clinic for Bruner, did not ask him whether he wanted to see a doctor, and did not remind him that he had the right to seek medical attention. Even though Bruner said he did not feel well, Cook did not pay special attention to him. Bruner never asked Cook to see a doctor or to go to the clinic. Bruner was able to respond to Cook's directions, answer and make intercom calls, dress himself and discuss how he had been and was feeling. Bruner did not appear ill to Cook. Cook did not believe that Bruner needed medical care, had any kind of emergency medical condition or had a condition that would prevent him from telling Cook if he needed medical attention. Cook thought that as a grown man, Bruner could sign up for sick call. Cook admitted that after deputies pull the sign up sheet around 6:30 a.m. each day, an inmate must wait until the following morning to sign up for sick call.
Bruner finally put on his jumpsuit and Cook unlocked his cell. Bruner slowly went into the day room and just stared into space. When Cook asked him if he was doing OK, he replied yes. Cook thought that another inmate was bullying Bruner for his food. Before lunch, Cook unsuccessfully tried to contact his supervisor, Sergeant Faustino Martinez, by radio to discuss how to address this issue. Cook did not note his attempt to contact Martinez in his DAL. In his DAL, however, Cook noted that he spoke to Martinez at 9:33 a.m. about another inmate. Cook does not recall why he did not speak to Martinez about Bruner at that time because he believes that he already knew by 7:30 a.m. that Bruner reportedly had not been eating.
Cook made sure that Bruner got a tray of food at lunch and confirmed that Bruner ate his lunch.
From 3:00 p.m. to 11:00 p.m. on March 9, Safarik was the POD 1 deputy. Safarik testified that he did not recall Bruner and that if Bruner had appeared ill or someone had reported that he was ill, he would have noted that fact on the DAL. Safarik concluded that Bruner did not appear ill during his shift and that he received no report that Bruner was ill. In his DAL, Safarik did not refer to Cook's request to keep an eye on Bruner or record any observations of Bruner's behavior.
Physicians usually did rounds on weekdays only. No physician reviewed Bruner's chart on Sunday, March 9, as scheduled.
From 11:00 p.m. on March 9 to 7:00 a.m. on March 10, Lisa Williams was the POD 1 deputy. Williams testified that she did not recall Bruner and that if Bruner had appeared ill or someone had reported that he was ill, she would have noted that fact on the DAL. Williams concluded that Bruner did not appear ill during her shift and that she received no report that Bruner was ill.
Sergeants at the Sedgwick Jail generally supervised about eight deputies. The sergeants made rounds to the multiple PODs and were required to review DAL entries made by deputies on their shifts. Sergeants Wayne Brown, Rhonda Freeman, Gerald Pewewardy, Jared Schecter and Robert Taylor were on duty from 7:00 a.m. on March 7 through 7:00 a.m. on March 10.
From 7:00 a.m. to 3:00 p.m. on March 10, Mary Staton was the POD 1 deputy. Staton was also trained as a CNA and had worked previously as a nurse's aid. She conducted a headcount at the beginning of her shift and looked into each inmate's cell. She does not recall seeing or hearing anything unusual in Bruner's cell. At approximately 7:15 a.m., Staton saw Bruner come out of his cell for linen exchange, but he did not have his linens. Bruner appeared confused. Staton sent him back into his cell to retrieve the linens. She unlocked the cell door several times, but each time Bruner would open his cell door and then shut it without entering his cell.
Between 7:20 a.m. and 7:50 a.m., Staton asked Marque Jameson and Michael Murphy, who were roving deputies, to put Bruner back into his cell. Jameson and Murphy helped Bruner walk to his cell. Staton saw that Bruner went into his cell without incident. Jameson and Murphy noticed, however, that even though Bruner complied with their orders, he appeared in a daze and was acting strange and moving extremely slowly. Bruner did not appear to be in pain or distress. Staton, Jameson and Murphy believed that Bruner had a mental health condition and did not need emergency care from a medical provider. Staton did not suspect any physical health issue. Jameson and Murphy understood that Staton, who was the deputy in charge of POD 1 at that time, would address the matter. Bruner apparently stayed in his cell the rest of the morning and did not ask to get out.
At some point between 7:15 a.m. and 10:25 a.m., inmate Brad Snider told Staton that Bruner had not eaten since he arrived in POD 1. Staton looked up when Bruner came to the POD and noted that he had returned to the Sedgwick Jail from out of county on March 6. She continued to believe that Bruner's unusual actions and failure to eat were a result of a mental condition. She did not suspect that Bruner was physically ill or that he needed emergency care. Staton did not log her interaction with Snider in her DAL.
At approximately 10:25 a.m. on March 10, Staton told Martinez, her supervisor, about Bruner's behavior and that an inmate had reported that Bruner had not eaten for three days. Martinez instructed Staton to contact ConMed for a mental health check. Staton called Andrea Skelton, LMSW (Licensed Master Social Worker), a mental health worker at ConMed, who told Staton that she could see Bruner when they did rounds that afternoon.
At 11:50 a.m. on March 10, lunch was distributed to the inmates. Staton determined that Bruner did not eat his lunch. Staton entered this fact in her DAL and also entered it into Bruner's computer "inmate log" as a warning. She did not believe that Bruner needed emergency care,
Staton intended to "keep an eye" on Bruner until mental health performed its afternoon rounds, but she did not make any effort to check on Bruner until several inmates advised Staton at 2:00 p.m. that Bruner was lying on the floor of his cell and not moving.
On weekdays, a mental health evaluator and a registered nurse conducted daily rounds. At approximately 3:00 p.m. on March 10, during their daily mental health rounds, Armstrong and Skelton arrived at Bruner's cell. They thought that Bruner appeared to be "very sick" and in need of medical attention. Armstrong did a quick mental health assessment and a quick physical assessment on Bruner and knew something was not right. Bruner was very sweaty, lethargic, weak, warm to the touch, not oriented and unresponsive to
When Bruner arrived at the clinic, Lisa Tolan, LPN, evaluated him. She took his vitals and noted that he was unalert, unresponsive to painful stimuli and unable to ambulate. She noted his history of Hepatitis C, cirrhosis of the liver and possible tuberculosis. She further noted moderate skin jaundice, warm skin, turgor and slow capillary refills. She notified Fletcher who gave verbal orders to set up an IV, draw labs and test Bruner's stool for blood. Labs were drawn at 4:10 p.m.
At 5:20 p.m., Sharon Nelson, RN, saw Bruner and noted his condition. At 5:30 p.m., Fletcher saw Bruner, conducted a rectal exam and noted his condition. Minutes later, Fletcher ordered IV fluids. Fletcher testified that he suspected Bruner was experiencing liver failure, and that fluids would help him. Between 6:00 p.m. and 6:50 p.m., Nelson saw Bruner two additional times and noted her observations and actions.
At approximately 9:01 p.m., Fletcher reviewed the lab results and noted that Bruner's white blood cell count was high. Fletcher ordered IV antibiotics and to transfer Bruner to a local hospital. At 9:39 p.m., EMS personnel transported Bruner to the hospital.
Two days later, on March 12, 2008, Bruner died in the hospital.
Plaintiffs' infectious disease expert, Dr. Steven Hosea, opined that Bruner was "salvageable" until shortly after mental health personnel evaluated him at approximately 3:00 p.m. on March 10. Dr. Hosea opined that Bruner had exhibited symptoms of pneumococcal meningitis for some period before his death. Dr. Hosea testified, however, that the first signs of meningitis can be quite general and may consist of headache, high fever, fatigue and irritability or signs of a common cold or flu. Pneumococcal meningitis can be fatal even if treated. According to Dr. Hosea, even if Bruner had received treatment in a more timely manner, he had a significant risk of a poor outcome.
Kendra (Maechtlen) Wolff, the ConMed Health Services Administrator, did not learn about the events concerning Bruner until after he was in the hospital. Alicia Mefford, the ConMed Director of Nursing, worked on March 6 and March 10, 2008, but she did not render any medical care to Bruner. No one told Mefford about Bruner's condition on March 10.
The Sedgwick County Defendants argue that Bruner's children cannot assert a Section 1983 claim on their own behalf for denial of their father's constitutional rights.
Under Section 1983, a defendant sued in an individual capacity may be subject to personal liability and/or supervisory
Prison officials violate the Eighth Amendment when they are deliberately indifferent to an inmate's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). Deliberate indifference may be proven by showing that prison officials intentionally denied, delayed access to or interfered with an inmate's necessary medical care. See Estelle, 429 U.S. at 104-05, 97 S.Ct. 285; Jones v. Hannigan, 959 F.Supp. 1400, 1406 (D.Kan.1997); see also Farmer v. Brennan, 511 U.S. 825, 835-37, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (prison officials act with deliberate indifference to inmate's health if they know that he faces substantial risk of serious harm, and disregard that risk by failing to take reasonable measures to abate it).
The test for deliberate indifference includes both an objective and a subjective component. Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir.2000). The objective component of the deliberate indifference standard requires a sufficiently serious deprivation that results in the denial of the "minimal civilized measure of life's necessities." Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Defendants concede that in light of Bruner's death, plaintiffs can satisfy the objective component. Defendants maintain, however, that they are entitled to summary judgment on the subjective component of plaintiffs' deliberate indifference claims.
To satisfy the subjective component, plaintiffs must present evidence that each defendant knew of and disregarded an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837, 114 S.Ct. 1970; Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir.2006); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996). This standard is not satisfied by proof of negligence or constructive notice of medical need. See Farmer, 511 U.S. at 835, 841, 114 S.Ct. 1970. Under the subjective component, the relevant question is "were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?" Mata v. Saiz, 427 F.3d 745, 753 (10th Cir.2005). The prison official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference. Farmer, 511 U.S. at 837, 114 S.Ct. 1970.
A reasonable jury may conclude that a prison official subjectively knew of the substantial risk of harm by circumstantial evidence or "from the very fact that the risk was obvious." Martinez, 563 F.3d at 1089 (quoting Farmer, 511 U.S. at 842, 114 S.Ct. 1970). An obvious risk, however, cannot conclusively show that the prison official subjectively knew of the substantial risk of harm because "a prison official may show that the obvious escaped him." Martinez, 563 F.3d at 1089 (quoting Farmer, 511 U.S. at 843 n. 8, 114 S.Ct. 1970); Estate of Carter v. City of Detroit, 408 F.3d 305, 313 (6th Cir.2005) (genuine issue of material fact as to deliberate indifference can be based on strong showing of objective component). In addition, "prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844, 114 S.Ct. 1970. On the other hand, a prison official does not escape liability if the evidence shows that "he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist." Id. at 843 n. 8, 114 S.Ct. 1970.
Under these standards, even a brief delay in providing medical care may constitute a violation of the Eighth Amendment where prison personnel delay care in a life-threatening situation or where it is apparent that delay would exacerbate the prisoner's medical problems. Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir.1999); see Mata, 427 F.3d at 755; see also Rutherford v. Med. Dep't of Dep't of Corr., 76 Fed.Appx. 893, 902 (10th Cir. 2003) (inmate stated claim for deliberate indifference where medical staff disregarded complaints about severe pain, prescribed exercise and physical therapy that worsened condition without first performing tests or examination, delayed referring him to doctor, allowed orders for referrals to expire, and failed to schedule prescribed tests, surgery and follow-up care); Sealock, 218 F.3d at 1210 (delay of several hours in taking inmate with chest pains to hospital violated Eighth Amendment); Boretti v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir.1991) (prisoner who suffers pain needlessly when relief is readily available may state claim for deliberate indifference); Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.) (few hours delay in treating inmate's broken foot could render defendants liable), cert. denied, 496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990); Lewis v. Wallenstein, 769 F.2d 1173, 1183 (7th Cir.1985) (15-minute delay in treating cardiac arrest may violate Eighth Amendment).
All of the individual defendants argue that plaintiffs have not presented sufficient evidence for a reasonable jury to conclude that they knew that Bruner had a risk of a fatal medical condition and chose to disregard it. As to all of the individuals associated with the Sedgwick Jail, plaintiffs argue that "since at least March 5, 2008, Bruner's deteriorating physical condition was obvious to his fellow inmates and, likewise, would have been obvious to any of the deputies who were working on POD 1 from March 7, 2008 through March 10, 2008." Doc. # 283 at 11-16. Plaintiffs have presented evidence that Bruner's condition was obvious to Stanton County jailers, but they have not presented similar competent evidence with respect to Sedgwick Jail personnel.
From March 6 through 10, 2008, numerous individuals associated with the Sedgwick Jail had contact with Bruner or supervisory responsibility over officers who had contact with him. Unfortunately, no one at the Sedgwick Jail summoned medical attention until 3:00 p.m. on March 10. As to most of the individual defendants, plaintiffs have not offered sufficient evidence to show that defendants knew of and disregarded an excessive risk to Bruner's health. Bruner himself apparently did not recognize the seriousness of his medical condition. On March 5, 2008, Bruner told a Stanton County jailer that he had the flu, but that he was not sick enough to see a doctor. On March 9, 2008, when Cook asked Bruner if he was okay, he replied yes. In addition, from March 5 to 10, 2008, Bruner did not sign up for sick call, complete a Kite or ask any employee of the Sedgwick Jail for any type of assistance or medical care.
The Court addresses the personal liability claims against the Sedgwick County Defendants in turn.
Plaintiffs argue that Gibson, who was assigned to population control at the Sedgwick Jail on March 5, should have arranged to have Bruner transported immediately back to the Sedgwick Jail. Based on Sheppard's initial report of Bruner's condition, Gibson told Sheppard to call ConMed and ask whether Bruner could be put on the next transport back to the Sedgwick Jail. Although Gibson was responsible to determine when an inmate would be transported back to the Sedgwick Jail, he specifically asked Beyrle on March 5 if Bruner could be brought back the following day in the transport van. Beyrle said yes. Beyrle did not tell Gibson about ConMed's plan of action, when ConMed wanted to see Bruner or whether ConMed wanted to see Bruner at all. Gibson thought that if Bruner's condition was an obvious emergency, Sheppard would not have suggested that Bruner return to the Sedgwick Jail and would have instead had a local medical facility in Stanton County examine and treat Bruner. Plaintiffs present no evidence that Gibson had any idea that by scheduling Bruner to be transported on March 6 rather than March 5, he was exposing Bruner to a substantial risk of serious harm. The Court therefore
Perez, Price, Gaines, McMahon, Hines and Smith worked as the POD 1 deputies from 11:00 p.m. on March 6 to 7:00 a.m. on March 9.
Plaintiffs argue that Perez, Price, Gaines, McMahon, Hines and Smith "should have observed the same signs of a serious medical condition as the inmates and the Stanton deputies did," Plaintiffs' Memorandum In Opposition (Doc. # 283) at 24-28, but they present no specific evidence that they did so. Plaintiffs note that inmate Uhls observed that from Bruner's arrival until officers took him to the clinic on March 10, Bruner was coughing and vomiting. No evidence suggests that Bruner was doing so, however, when these POD deputies observed him. Inside the booth, the POD deputy could not hear inmates coughing or vomiting in their cells.
Beyrle, a ConMed nurse, testified that if Bruner was having medical problems, the deputies on duty would have known of this fact based either on their personal observations while performing rounds or possibly from Bruner or other inmate reports of his condition. Beyrle did not testify (1) that Bruner exhibited symptoms continuously, (2) how often deputies made rounds to check on inmates or (3) whether she examined the specifics of any inmate reports. Her belief that someone should have observed that Bruner had medical problems may be sufficient to prove negligence by someone, but it is insufficient to show that any particular deputy in fact observed such problems or received an inmate report that Bruner needed medical attention. Plaintiffs essentially argue that these deputies had constructive notice that Bruner was ill, but such notice does not establish deliberate indifference to serious medical needs. See Farmer, 511 U.S. at 838, 114 S.Ct. 1970 (official's failure to alleviate significant risk that he should have perceived but did not, while no cause for commendation, cannot be condemned as infliction of punishment).
Plaintiffs have presented no evidence that any inmate reported that Bruner was ill during the shifts of Perez, Price, Gaines,
From 7:00 a.m. to 3:00 p.m. on March 9, Cook was the POD 1 deputy. During his shift, Cook observed Bruner acting strangely. After Cook received an inmate report that Bruner just stared and looked around at people, and that he had not eaten or come out of his cell since he had moved into POD 1, Cook asked Bruner if he had been eating. Bruner said no and that he had not been feeling well. Cook logged this in his DAL at about 10:32 a.m. Later, when Cook observed Bruner moving slowly and just staring into space, Cook asked him if he was doing okay, and Bruner replied yes.
Plaintiffs note that despite Cook's observation of Bruner, and Bruner's own statements that he was not feeling well, Cook did not call the clinic, did not ask Bruner whether he wanted to see a doctor or remind him that he had the right to seek medical attention. In retrospect, Bruner's condition was extremely serious, but plaintiffs have not established a genuine issue of material fact that his observable symptoms and comments conveyed to Cook the seriousness of his medical condition. In light of Cook's observation and interaction with Bruner, he felt that another inmate was bullying Bruner for his food.
Plaintiffs note that Lieutenant Moore later recommended that Cook be reprimanded and placed on probation for his failure to set forth details in his DAL about (1) whether Bruner actually ate his lunch on March 9, (2) Cook's attempt to contact Martinez during the morning of March 9 and (3) his interaction with Bruner during the morning of March 9. The lack of detail in Cook's DAL, however, is insufficient to create a genuine issue of
From 3:00 p.m. to 11:00 p.m. on March 9, Safarik was the POD 1 deputy. Plaintiffs note that in his DAL, Safarik did not record (1) whether Bruner ate dinner that evening, (2) that Cook asked Safarik to keep an eye on Bruner or (3) that Bruner was coughing and vomiting repeatedly. See Doc. # 283 at 80. As explained above, the POD deputy primarily works in a booth and cannot hear inmates coughing or vomiting in their cells. Plaintiffs have presented no evidence that Safarik personally observed or received any report that Bruner was seriously ill. Indeed, Safarik testified that he did not recall Bruner and that if Bruner had appeared ill or someone had reported that he was ill, he would have noted that fact on the DAL. Safarik concluded that Bruner did not appear ill during his shift and that he received no report that Bruner was ill. Cook did ask Safarik to keep an eye on Bruner, but no evidence suggests that Safarik did not in fact do so. The fact that Safarik did not record Cook's statement or his own observations of Bruner is insufficient for a reasonable jury to conclude that Safarik knew of and disregarded an excessive risk to Bruner's health. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Accordingly, the Court sustains defendants' motion for summary judgment as to Safarik.
From 11:00 p.m. on March 9 to 7:00 a.m. on March 10, Williams was the POD 1 deputy. Plaintiffs note that Williams did not report in her DAL that (1) Bruner did not eat breakfast that morning, (2) Bruner was coughing and vomiting repeatedly or (3) Bruner needed medical attention. See Doc. #283 at 81. Again, plaintiffs have presented no evidence which suggests that Williams personally observed or was aware of any of these alleged facts. Williams testified that she did not recall Bruner and that if Bruner had appeared ill or someone had reported that he was ill, she would have noted that fact on the DAL. Williams concluded that Bruner did not appear ill during her shift and that she received no report that Bruner was ill. Williams performed two or three physical rounds during her shift, but plaintiffs have presented no evidence that she observed anything unusual about Bruner during her rounds. Because plaintiffs have not presented sufficient evidence to create a genuine issue of material fact that Williams knew of and disregarded an excessive risk to Bruner's health, the Court sustains defendants' motion for summary judgment as to Williams.
Plaintiffs argue that Bruner's deteriorating physical condition would have been obvious to Sergeants Pewewardy, Brown, Schecter, Freeman and Taylor, and that these individuals or their subordinates "should have observed the same signs of a serious medical condition as the inmates and the Stanton deputies did." Plaintiffs' Memorandum In Opposition (Doc. #283) at 74. Plaintiffs' argument
At approximately 7:15 a.m., Staton saw that Bruner appeared confused. Staton sent him back to his cell to retrieve his linens. She unlocked the cell door several times, but each time Bruner would open his cell door and then shut it without entering his cell. She had to call two roving deputies to escort Bruner back to his cell. Before 10:25 a.m., inmate Snider reported that Bruner had not eaten since he arrived in POD 1. Staton noted that Bruner had arrived four days earlier. Staton told her supervisor, Martinez, about Bruner's behavior and said that an inmate had reported that Bruner had not eaten for three days. At around noon, Staton determined that Bruner again did not eat his lunch. Inmate Ogunbiyi also reported to Staton that Bruner had not eaten for days. Staton also learned around noon that Bruner was unresponsive. Viewing the evidence in the light most favorable to plaintiffs, it was obvious to Staton that Bruner faced a risk of a serious medical condition and she chose to disregard that risk. Instead of addressing that immediate potential medical risk, Staton waited some three hours for mental health personnel. At 2:00 p.m., several inmates advised Staton that Bruner was lying on the floor of his cell and not moving. Instead of notifying the clinic of the immediate need for a medical (or mental health) evaluation, Staton asked Jameson to check on Bruner. At approximately 2:20 p.m., Jameson told Staton that Bruner was "not doing good" and that something was wrong with him. Viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could find that by noon on March 9, Staton had been exposed to enough information concerning the serious risk of harm to Bruner that she must have known about it. Farmer, 511 U.S. at 842, 114 S.Ct. 1970; Clouthier v. County of Contra Costa, 591 F.3d 1232, 1245 (9th Cir.2010). The Court therefore overrules defendants' motion for summary judgment as to Staton.
Between 7:20 a.m. and 7:50 a.m. on March 10, at Staton's request, Jameson and Murphy helped Bruner walk back to his cell. Jameson and Murphy noticed that even though Bruner complied with their orders, he appeared in a daze, was acting strangely and moving extremely slowly. Plaintiffs apparently argue that Jameson and Murphy should have contacted the clinic at this time. When Jameson and Murphy escorted Bruner back to his cell, however, he did not appear to be in pain or distress. They believed that Bruner had a mental health condition and did not need emergency care from a medical provider. Plaintiffs do not explain how Jameson or Murphy would have known of the risk of a serious medical condition at this point. As to the suspected mental health condition, Jameson and Murphy understood that Staton, as deputy in charge of POD 1 at that time, would address the matter. Because Murphy had no other contact with Bruner, the Court sustains defendants' motion for summary judgment as to Murphy.
At approximately 2:11 p.m. on March 10, at Staton's request, Jameson went into Bruner's cell and found him lying on the floor in a pile of trash, curled
At around 10:30 a.m. on March 10, Staton advised Martinez that Bruner appeared confused and another inmate had reported that he had not eaten for three days. Martinez told Staton to ask ConMed mental health personnel to check on Bruner during rounds. At around noon, Staton advised Martinez that Bruner did not eat his lunch and that he appeared depressed and antisocial. Martinez asked Armstrong, a ConMed mental health nurse, to do a courtesy check on Bruner that afternoon during rounds. Armstrong confirmed that based on her conversation with Martinez, both she and Martinez thought that the problem was a mental health issue rather than a medical emergency. See Armstrong Depo. at 46. As plaintiffs concede, Staton did not tell Martinez that Bruner needed immediate attention. See Doc. # 283 at 82. Plaintiffs also have presented no evidence that Martinez knew that Bruner was unresponsive. Based on the non-emergent nature of the reports by Staton, Martinez asked ConMed mental health personnel to check on Bruner during rounds that afternoon. Plaintiffs have not presented evidence sufficient to create a genuine issue of material fact that Martinez knew of a substantial risk of harm to Bruner's health and chose to ignore it. See Parker v. Lee Cnty., Miss., No. 09-cv-71-JAD, 2010 WL 5146807, at *5 (N.D.Miss. Dec. 13, 2010) (corrections officer who was told that inmate had flu and asked nurse to assist him the day before he died, not deliberately indifferent even though inmate later complained that he thought something was terribly wrong with him and was afraid he might die; officer did not appreciate that inmate was in critical need of medical attention); see also Freeman v. Strack, No. 99 Civ. 9878(AJP), 2000 WL 1459782 at *9 (S.D.N.Y. Sept. 29, 2000) (no Eighth Amendment claim against nurse for two hour delay in scheduling appendectomy where nothing in medical history would have put nurse on notice that plaintiff was suffering from onset of appendicitis and no evidence that officer gave nurse any reason to believe emergency on hand). Accordingly, the Court sustains defendants'
Plaintiffs allege that Sheriff Hinshaw and Sheriff Steed in their individual capacities failed to properly train and supervise the Sedgwick Jail officers, deputies and sergeants. In particular, plaintiffs allege that the Sheriffs failed to train and supervise their employees as follows:
Pretrial Order (Doc. # 294) at 11-12.
Absent an underlying constitutional violation, plaintiffs cannot assert a supervisory liability claim. See Fogarty v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (supervisory liability requires constitutional deprivation linked to supervisor's personal participation); see also Christensen v. Big Horn Cnty. Bd. of Cnty. Comm'rs, 374 Fed.Appx. 821, 827 (10th Cir.2010) (absent underlying constitutional violation, sheriff and county commissioners cannot be held derivatively liable); Beggs, 563 F.3d at 1091-92 (where individual county defendants did not violate jail inmate's constitutional rights, Sheriff not liable as a matter of law for policy, training or supervision). Accordingly, plaintiffs' claims for failure to train or supervise are limited to the potential underlying constitutional violations by Staton and Jameson.
Section 1983 does not authorize liability under a theory of respondeat superior. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To establish supervisory liability, plaintiffs must establish that (1) defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy, (2) the policy caused the alleged constitutional harm and (3) defendant acted with the state of mind required to establish the alleged constitutional deprivation. Dodds, 614 F.3d at 1199.
Defendants argue that plaintiffs have not presented sufficient evidence as to causation or intent. Plaintiffs respond to these arguments in conclusory fashion and do not set forth specific evidence on either element. As to causation, plaintiffs must show an affirmative link between the constitutional deprivation and the supervisor's personal involvement. Dodds, 614 F.3d at 1200-01; see Barrett v. Orman, 373 Fed.Appx. 823, 826 (10th Cir. 2010); Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir.2009). To do so, plaintiffs can show that defendants set in motion a
As to intent, plaintiffs have not shown that Sheriffs Hinshaw and Steed acted with deliberate indifference. Plaintiffs must establish that Sheriffs Hinshaw and Steed acted knowingly or with deliberate indifference that a constitutional violation would occur. Dodds, 614 F.3d at 1196. Plaintiffs have not attempted to show that Sheriffs Hinshaw and Steed had any contact with Bruner or notice that their subordinates had any contact with him. Plaintiffs also have not shown that Sheriffs Hinshaw and Steed were aware that any deficiency in the training program caused any other inmates not to receive necessary medical care. As in the context of municipal liability, without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights. See Connick v. Thompson, ___ U.S. ___, 131 S.Ct. 1350, 1360, 179 L.Ed.2d 417 (2011) (pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train against supervisor in official capacity) (citing Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 409, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)). Here, plaintiffs have not shown a pattern of similar constitutional violations or otherwise presented evidence to create a genuine issue of material fact whether Sheriffs Hinshaw and Steed acted with deliberate indifference to Bruner's serious medical needs.
The Court therefore sustains defendants' motion for summary judgment as to Sheriffs Hinshaw and Steed in their individual capacities.
A local governmental entity may be liable under Section 1983 if it "subjects" a person to a deprivation of rights or "causes" a person "to be subjected" to such deprivation. See Connick, 131 S.Ct. at 1359; Monell, 436 U.S. at 692, 98 S.Ct. 2018. Under Section 1983, local governments are responsible only for "their own illegal acts." Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (citing Monell, 436 U.S. at 665-83, 98 S.Ct. 2018). They are not vicariously liable under Section 1983 for acts by employees. See Monell, 436 U.S. at 691, 98 S.Ct. 2018. To impose liability on the County under Section 1983, plaintiffs must prove that "action pursuant to official municipal policy" caused Bruner's injury. See Connick, 131 S.Ct. at 1359; Monell, 436 U.S. at 691, 98 S.Ct. 2018. Official policy includes decisions of the County's lawmakers, acts of its policymaking officials and practices so persistent and widespread as to practically have the force of law. See id.
In limited circumstances, a local government's decision not to train certain employees
As with the supervisory liability claims against Sheriffs Hinshaw and Steed in their individual capacities, plaintiffs' claims against Sheriff Hinshaw in his official capacity are limited to the potential underlying constitutional violations by Staton and Jameson. See Christensen, 374 Fed.Appx. at 827; Martinez, 563 F.3d at 1091-92.
Plaintiffs claim that the County (through Hinshaw in his official capacity) is liable under Section 1983 because it created or maintained unconstitutional policies or customs. In particular, plaintiffs allege that the policies and the procedures of the County and the Sheriff were flawed because those policies and procedures failed to address the following:
Pretrial Order (Doc. #294) at 12-13. Plaintiffs also allege that the policies and procedures of the County and the Sheriff were flawed because (1) they failed to ensure that the national correctional standards were adhered to with the performance of a medical screening and assessment by qualified healthcare professionals on every inmate who was transferred or returned to the Sedgwick Jail, regardless of the reason for the transfer or return, (2) it was the custom and policy of the County and Sheriff not to provide medical care to inmates unless the inmates specifically requested medical care, (3) it was the custom and
Sheriff policy required that inmates receive necessary medical care without delay.
Plaintiffs also claim that the County (through Hinshaw in his official capacity) is liable for the failure to train and/or supervise Sedgwick Jail employees. Plaintiffs argue that the County failed to properly train and supervise its employees in the same areas set forth above as to Sheriffs Hinshaw and Steed.
Plaintiffs must identify a specific deficiency in the training program that was so obvious and closely related to Bruner's injury that it might fairly be said that the official policy or custom was both deliberately indifferent to his constitutional rights and the moving force behind his injury. Porro v. Barnes, 624 F.3d 1322, 1328 (10th Cir.2010); Lopez v. LeMaster, 172 F.3d 756, 760 (10th Cir.1999); see City of Canton, 489 U.S. at 385, 109 S.Ct. 1197. The Supreme Court has explained the possibility of liability under a failure to train theory as follows:
City of Canton, 489 U.S. at 390, 109 S.Ct. 1197 (footnotes omitted). Deliberate indifference is established when "the need for more or different training is so obvious,
A municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train. Connick, 131 S.Ct. at 1359. A pattern of similar constitutional violations by untrained employees is "ordinarily necessary" to demonstrate deliberate indifference for purposes of a failure to train claim against a municipality. Id. at 1360 (quoting Bryan Cnty., 520 U.S. at 409, 117 S.Ct. 1382). Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights. Id.
Here, plaintiffs have not shown any prior constitutional violations so as to establish a pattern. Moreover, they have not presented sufficient evidence for a reasonable jury to find liability based on a single incident. Connick, 131 S.Ct. at 1361 (2011); Canton, 489 U.S. at 390, 109 S.Ct. 1197. The Supreme Court has described the "narrow range of circumstances" where such a theory may be viable as follows:
Connick, 131 S.Ct. at 1361. The failure to train deputies in common sense about when to contact the clinic for immediate medical attention does not fall within the narrow range of Canton's hypothesized single-incident liability. In particular, plaintiffs have not shown that the alleged failure of officers to use their common sense in summoning medical attention was a highly predictable consequence of not training Jameson and Staton in specific areas (such as identifying the signs and symptoms of specific medical conditions). For these reasons, the Court sustains defendants' motion for summary judgment as to Sheriff Hinshaw in his official capacity.
Accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment do not constitute a medical wrong under the Eighth Amendment. Ramos, 639 F.2d at 575; see Estelle, 429 U.S. at 104, 97 S.Ct. 285 (inadvertent failure to provide adequate medical care cannot be said to constitute unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind so as to violate the Eighth Amendment). This principle applies
On the morning of March 5, 2008, Beyrle knew that Bruner had bloody stools, had not been eating for two days and had some weakness. Beyrle testified that she did not think that these symptoms were unusual and they were not presented to her in an emergent manner. Beyrle quickly reported the symptoms to the physician assistant on duty, William Wondra, who decided to have deputies bring Bruner back to the Sedgwick Jail. Beyrle simply followed the directions of Wondra, the physician assistant on duty, who did not recommend to have Bruner sent to a local hospital in Stanton County because it was not presented as an emergent situation. See Beyrle Depo. at 49. Plaintiffs present no evidence that Beyrle had some independent basis to believe that Bruner had symptoms of a rapidly progressing fatal condition such as acute meningitis and chose to disregard that risk. Likewise, no evidence suggests that Beyrle understood that by arranging to have Bruner transported back on March 6 rather than March 5, Bruner would be exposed to a substantial risk of serious harm. The Court therefore sustains defendants' motion for summary judgment as to Beyrle.
Plaintiffs argue that Looka was deliberately indifferent to Bruner's serious medical needs because she scheduled an appointment for Bruner for 8:00 a.m. on March 9 even though the first appointment each day was not until 9:10 a.m.
On March 10, when Bruner arrived in the clinic, Fletcher, a physician assistant, ordered a nurse to set up an IV and ordered blood tests. Fletcher later conducted a physical examination, ordered the nurse to administer IV fluids to treat a suspected liver condition, reviewed lab results, ordered the nurse to administer IV antibiotics and ordered that Bruner be transferred to a local hospital. Viewed in a light most favorable to plaintiffs, the record does not support a finding that Fletcher was deliberately indifferent to Bruner's serious medical needs. See Duffield, 545 F.3d at 1238-39 (affirming dismissal of Section 1983 claims against physician who examined prisoner, ordered diagnostic tests and prescribed several different medications); Sealock, 218 F.3d at 1208, 1211, 1212 n. 7 (subjective component not met where prison nurse misdiagnosed chest pains as the flu and failed to recognize symptoms suggesting impending heart attack); Freeman, 2000 WL 1459782 at *9 (no Eighth Amendment claim against nurse for two-hour delay in scheduling appointment where nothing in medical history would have put nurse on notice that plaintiff was suffering from onset of appendicitis and no evidence that officer gave nurse any reason to believe emergency on hand); see also Estelle, 429 U.S. at 106, 97 S.Ct. 285 (prison doctor's negligent diagnosis or treatment of medical condition does not violate Eighth Amendment). The Court therefore sustains defendants' motion for summary judgment as to Fletcher.
Plaintiffs assert that by not obtaining timely medical attention, Armstrong and Skelton were deliberately indifferent to Bruner's serious medical needs. See Doc. #285 at 54. At approximately 10:25 a.m. on March 10, Staton asked Skelton to do a mental health check on Bruner. Skelton told Staton that she could see Bruner that afternoon when they conducted rounds. Shortly after noon, Martinez contacted Armstrong and asked her to do a courtesy check on Bruner when she did her rounds. At approximately 2:45 p.m., Martinez contacted Skelton and asked to have someone check on Bruner. Shortly thereafter, Armstrong and Skelton went into Bruner's cell. After a quick assessment, Armstrong went to the POD booth, called the clinic and asked that someone bring a wheelchair immediately to pick up Bruner so that he could be evaluated by the physician assistant. Before 2:45 p.m., Staton and Martinez simply asked Armstrong and Skelton to check on Bruner. Staton and Martinez did not express any objection when Armstrong and Skelton said that they would do so during afternoon rounds. Plaintiffs have not presented evidence to create a genuine issue of material fact that before 2:45 p.m., Armstrong and Skelton knew of an excessive risk of harm to Bruner's health and drew an inference that such a risk existed. In addition, based on the non-emergent nature of the calls from Staton and Martinez, any risk to Bruner's physical health was
Plaintiffs do not precisely explain their theory of personal liability against Wolff, the ConMed Health Services Administrator, or Mefford, the ConMed Director of Nursing. Wolff did not learn about the events concerning Bruner until after Bruner was in the hospital. Likewise, Mefford did not render any medical care to Bruner and she was not informed of his condition on March 10. Plaintiffs do not explain or show how Wolff or Mefford was deliberately indifferent to Bruner's serious medical needs. The Court therefore sustains defendants' motion for summary judgment as to plaintiffs' claims of personal liability against Wolff and Mefford.
Plaintiffs also assert a claim of supervisory liability against Wolff and Mefford. In particular, plaintiffs allege that Wolff and Mefford failed to train and supervise their employees as follows:
Pretrial Order (Doc. # 294) at 15-16. In their opposition brief, plaintiffs state their theory as follows:
Doc. # 285 at 54.
Because plaintiffs have not created a genuine issue of material fact on any of their claims for personal liability against individuals associated with ConMed, they cannot maintain a supervisory liability claim against Wolff and Mefford. See Fogarty, 523 F.3d at 1162; see also Christensen, 374 Fed.Appx. at 827; Martinez, 563 F.3d at 1091-92. Even if the Court assumes that plaintiffs could maintain their claims for personal liability, they cannot withstand defendants' motion for summary judgment on their claim for supervisory liability. As explained above, to establish supervisory liability, plaintiffs must establish that (1) defendant promulgated, created, implemented or possessed responsibility for the continued operation of a policy (2) the policy caused the alleged constitutional harm and (3) defendant acted with the state of mind required to establish the alleged constitutional deprivation. Dodds, 614 F.3d at 1199.
Plaintiffs have not presented evidence that Wolff or Mefford had any duty or responsibility to train or supervise any other specific ConMed employees. Plaintiffs identify numerous topics for potential training, but do not relate these topics to Wolff or Mefford. Plaintiffs also do not present evidence of a causal connection between any alleged failure to train and supervise by Wolff and Mefford and the purported constitutional violations by ConMed employees. Finally, plaintiffs do not explain or offer facts to show how Wolff and Mefford knew of an excessive risk of harm to Bruner's health based upon training and supervision deficiencies, or that they made any inferences concerning such a risk. For these reasons, the Court sustains defendants' motion for summary judgment as to the supervisory claims against Wolff and Mefford.
Because plaintiffs have not created a genuine issue of material fact on any of their claims for personal liability against individuals associated with ConMed, they cannot maintain a municipal liability claim against ConMed.
Plaintiffs allege that the policies and the procedures of ConMed were flawed because those policies and procedures failed to address the following:
Pretrial Order (Doc. #294) at 16-18. Plaintiffs also assert that it was the custom and policy of ConMed, Inc. and ConMed Healthcare Management, Inc. (1) not to provide medical care to inmates unless the inmates specifically requested medical care, (2) to withhold medications from the inmates because it was cost effective and (3) to discourage personnel from providing medical care to inmates in order to keep costs down. Id.
Defendants argue that plaintiffs have not presented sufficient evidence of (1) an official policy or custom, (2) causation or (3) intent. The Court need not reach the issue of causation because plaintiffs have not presented sufficient evidence to create a genuine issue of material fact on the other two elements. As to an official policy or custom, plaintiffs have not identified the ConMed decisionmaker with final authority to set policy who allegedly failed to create or implement the above policies and procedures. See Pembaur, 475 U.S. at 481, 106 S.Ct. 1292 (municipal liability only attaches where official responsible for establishing policy makes deliberate choice to follow course of action among various alternatives). Plaintiffs also have not presented sufficient evidence to create a genuine issue of material fact on any of their "custom" claims.
As to intent, plaintiffs do not respond to defendants' argument. Plaintiffs have not identified the ConMed decisionmaker responsible for establishing policy so they can hardly show that the decisionmaker acted with deliberate indifference. In any event, plaintiffs have not presented evidence that any ConMed employee disregarded a known or obvious consequence of his or her action. See Connick, 131 S.Ct. at 1360 (citing Bryan Cnty., 520 U.S. at 410, 117 S.Ct. 1382). Absent admissible evidence on which a reasonable juror could find in favor of plaintiffs on this element, the Court must sustain defendants' motion for summary judgment. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548 (summary judgment may be entered against party who fails to make sufficient showing to establish existence of element essential to that party's case); Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991) (once movant points out absence of proof on essential
Defendants are entitled to summary judgment on plaintiffs' policy, practices or custom claim against the ConMed corporate entities.
Plaintiffs allege that ConMed failed to properly train and supervise its employees in the same 20 areas set forth above as to Wolff and Mefford. For substantially the same reasons as those identified above as to Wolff or Mefford, defendants are entitled to summary judgment on this claim as well. In particular, plaintiffs do not present evidence of a causal connection between any alleged failure to train and supervise by ConMed and the purported constitutional violations by ConMed employees. Plaintiffs also do not identify any ConMed employee who knew of an excessive risk of harm to Bruner, or inmates generally, based upon training and supervision deficiencies, or establish that they made any inferences concerning such a risk. For these reasons, the Court sustains defendants' motion for summary judgment as to plaintiffs' failure to train or supervise claim against the ConMed corporate entities.
The claims of Tera Bruner-McMahon, as administrator of the estate of Terry Bruner, against Marque Jameson and Mary Staton under 42 U.S.C. § 1983 for deliberate indifference to Bruner's serious medical needs remain for trial.
Response To ConMed Defendants' Statement Of Facts (Doc. # 285) ¶¶ 14, 15, 17-20, 27, 30-43, 45-48.
Second, Uhls states that the information in his affidavit is "true in substance and in fact to my best information and belief." Doc. # 283-21 at 2. Affidavits supporting or opposing summary judgment must be made on personal knowledge. See Fed.R.Civ.P. 56(c)(4); D. Kan. Rule 56.1(d). In this regard, affidavit testimony prefaced by phrases such as "to the best of my knowledge" and "on information and belief" is not sufficient. See Network Computing Servs. Corp. v. Cisco Sys., Inc., 152 Fed.Appx. 317, 321 (4th Cir.2005) (letter from attorney recounting witness's unsworn statement, on which witness confirmed with notarized signature that statements conveyed in letter were accurate representation of advice failed to satisfy statutory requirement that witness certify truth of unsworn statement by stating that it is "under penalty of perjury" or using other language substantially similar in form); Told v. Tig Premier Ins. Co., 149 Fed. Appx. 722, 725-26 (10th Cir.2005) (declaration that facts are true to best of affiant's knowledge, information and belief not sufficient under Rule 56); cf. 28 U.S.C. § 1746 (valid declaration under penalty of perjury must be in substantially following form: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date).").
Because of these global deficiencies, the Uhls affidavit is not competent evidence to withstand a motion for summary judgment. Throughout this order, the Court notes further deficiencies in the Uhls' affidavit.
42 U.S.C. § 1983
