United States District Court, W.D. Arkansas, El Dorado Division
VIRGINIA BROCK as Administratrix of the Estate of CYNTHIA RENEE BROCK Deceased PLAINTIFF
MIKE MCGOUGH, et al. DEFENDANTS
O. Hickey United States District Judge
the Court is Defendants' Motion for Summary Judgment.
(ECF No. 25). Plaintiff Virginia Brock filed a response. (ECF
No. 30). Defendants filed a reply. (ECF No. 32). The parties
filed supplemental briefs. (ECF Nos. 38, 41). The Court finds
the matter ripe for consideration.
January 23, 2014, Plaintiff's daughter, Cynthia Brock
(“Ms. Brock”), was sentenced to ten years'
imprisonment in the Arkansas Department of Corrections
(“ADC”). Shortly thereafter, Brian West,
nurse at the Union County Detention Center
(“UCDC”), was notified that Ms. Brock was going
to be booked into the UCDC while awaiting transport to the
ADC. West was instructed that Ms. Brock had certain medical
conditions and that he should speak with her.
met with Ms. Brock and noticed that she was holding a metered
dose inhaler with an attached spacer. Ms. Brock informed West that
she was diabetic, required regular insulin injections, had
asthma, and used a BiPAP machine and oxygen concentrator
while sleeping. West informed her that he could make
arrangements to accommodate her conditions and, after being
told that her family had her medicine and equipment, asked
that they bring everything to him. Ms. Brock was assigned to
cell N-3 in the UCDC's nursing station, to be monitored
due to her health issues.
half an hour later, West met with Plaintiff and Ms.
Brock's attorney. Plaintiff told West that Ms. Brock
should be immediately taken to the hospital if she began
experiencing breathing issues. (ECF No. 30-2, pp. 20-21).
Plaintiff then gave West the breathing apparatuses and
medications used by Ms. Brock to treat her conditions.
that day, West filled out an inmate medical form, listing Ms.
Brock's medications. West then completed a Medication
Administration Record and asked Ms. Brock to review her list
of medications and the times she would receive them. She did
so, indicating her agreement. She also informed West of the
frequency and amount of her insulin use and confirmed that
the nebulizer in her possession was both battery and
electrically powered. West issued Ms. Brock an Advair diskus
inhaler to keep with her in her cell. West also gave her an
unused sharps container and a glucometer to monitor her blood
that evening, West ran an extension cord into Ms. Brock's
cell to power her nebulizer and BiPAP machine. West then set
up Ms. Brock's BiPAP and set the flow rate on the oxygen
concentrator to her requested setting. West informed Ms.
Brock that her spare medications would be kept in a Ziploc
bag with her name written on it, left in plain view on the
counter in the nursing station. West also told Ms. Brock to
pound on her cell door if she needed anything.
January 24, 2014, at approximately 6:00 P.M., West met with
Ms. Brock again. (ECF No. 26-9, p. 4). West asked how she was
doing, and she told him that she was doing well. They
reviewed Ms. Brock's medical history and West asked if
she had a history of heart attack, stroke, or seizures, to
which she answered negatively. West then confirmed that Ms.
Brock still had her nebulizer, BiPAP machine, glucometer, and
sharps container. West had no subsequent contact with Ms.
Brock after this exchange.
evening of January 24, 2014, Separate Defendants Robert McVay
and Brandon Briggs arrived at the UCDC for their night shift
as guards. Separate Defendants McVay and Briggs, along with
one other unidentified guard who is not a party to this suit,
were the only guards on duty at the UCDC that night. At
approximately 9:42 P.M., Separate Defendant McVay met with
Ms. Brock and provided her medication for the night. (ECF No.
26-9, pp. 7-8). During this exchange, he asked her if she was
okay, and she indicated that she was. (ECF No. 30-4, pp.
23-25). At approximately 10:43 P.M., records show that
Separate Defendant McVay conducted a visual check of Ms.
Brock's cell. (ECF No. 26-9, p. 8). At approximately
11:24 P.M., Separate Defendant Briggs conducted a visual
check of Ms. Brock's cell. (ECF No. 26-9, pp. 8-9).
During this check, he spoke with her and she indicated that
she was fine and did not need anything. (ECF No. 26-9, p. 2).
January 25, 2014, at approximately 12:03 A.M., Separate
Defendants McVay and Briggs heard a loud noise coming from an
unknown location in the UCDC. They ran from the booking
station to the hallway in front of the general housing O-Pod
and, after determining that the noise was not coming from
that location, they ran to the nursing station. There, they
found that Ms. Brock was noticeably having difficulty
breathing. She told them that she thought her throat was
closing. She had apparently been using her nebulizer for a
breathing treatment, as the mask was emitting vapor. (ECF No.
26-9, p. 1).
Defendant Briggs immediately radioed for dispatch to call an
ambulance. At approximately 12:05 A.M., the ambulance was
dispatched. Separate Defendant McVay went to gather the
necessary paperwork on Ms. Brock for the hospital while
Separate Defendant Briggs stayed with her, held the nebulizer
to her mouth so she could use it, and attempted to keep her
calm. (ECF No. 41-5, pp. 24-25). An unspecified amount of
time later, Separate Defendant Briggs radioed Separate
Defendant McVay and requested his help, and Separate
Defendant McVay ran back to the nursing station, where he
found Ms. Brock in a panicked state. Separate Defendants
Briggs and McVay attempted to calm Ms. Brock down and
instructed her to take deep breaths.
approximately 12:11 A.M., the officers were notified that the
ambulance had arrived, and Separate Defendant Briggs went to
meet the EMTs and escort them to Ms. Brock's cell. During
this time, Separate Defendant McVay moved all cords and
machines out of the way so the EMTs could access the cell.
The EMTs arrived at the cell and began to load Ms. Brock onto
the stretcher. At this time, Ms. Brock was still breathing
and the EMTs stated that she had a pulse.
EMTs placed Ms. Brock in the ambulance and, after securing
her, found that she had no pulse. At approximately 12:21
A.M., the EMTs determined that Ms. Brock had poor venous
access, so they intubated her, provided medication, and
performed CPR until their arrival at the emergency room. At
approximately 12:47 A.M., the ambulance arrived at the
Medical Center of South Arkansas. At approximately 12:55
A.M., Ms. Brock was pronounced dead by emergency room staff.
Defendant Mike McGough, the Union County Sherriff at the
time, ordered Sergeant Randall Gilbert of the Union
County Sherriff Department's Criminal Investigation
Division to investigate Ms. Brock's death. As part of the
investigation, Sergeant Gilbert retrieved Ms. Brock's
medical equipment from her cell. He noted that the power
switch on Ms. Brock's nebulizer was set to “on,
” but the machine was not running at the time. Sergeant
Gilbert took Ms. Brock's nebulizer, portable oxygen
system, and BiPAP to be tested by a medical equipment company
to ensure that they had not failed. After testing, all
equipment was determined to be in working condition. (ECF No.
26-9, p. 7). On March 10, 2014, the Arkansas State Crime
Laboratory determined that Ms. Brock died of natural causes,
specifically of bronchial asthma. (ECF No. 26-14).
October 3, 2017, Plaintiff filed this suit pursuant to 42
U.S.C. § 1983, asserting claims against Defendants in
both their individual and official capacities. Specifically,
Plaintiff asserts that Defendants' deliberate
indifference violated Ms. Brock's rights under the United
States Constitution, the Arkansas Civil Rights Act
(“ACRA”), and the Americans With Disabilities Act
(“ADA”). Plaintiff also asserts a
failure-to-train claim and a state law negligence claim.
16, 2018, Defendants filed the instant motion, contending
that there are no genuine disputes of material fact and that
they are entitled to summary judgment on all of
Plaintiff's claims. Plaintiff opposes the motion. On
August 9, 2018, the Court directed the parties to file
supplemental briefs addressing the propriety of summary
judgment on Plaintiff's ADA claims, which had not been
discussed in the parties' briefing of the instant motion.
On September 9, 2018, Defendants filed their supplemental
brief. (ECF No. 38). On September 15, 2018, Plaintiff filed
her supplemental brief. (ECF No. 41).
standard for summary judgment is well established. When a
party moves for summary judgment, “[t]he court shall
grant summary judgment if the movant 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); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957
(8th Cir. 1995). This is a “threshold inquiry of . . .
whether there is a need for trial-whether, in other words,
there are genuine factual issues that properly can be
resolved only by a finder of fact because they reasonably may
be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is
material only when its resolution affects the outcome of the
case. Id. at 248. A dispute is genuine if the
evidence is such that it could cause a reasonable jury to
return a verdict for either party. Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then
demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik, 47
F.3d at 957. However, a party opposing a properly supported
summary judgment motion “may not rest upon mere
allegations or denials . . . but must set forth specific
facts showing that there is a genuine issue for trial.”
Id. at 256.
initial matter, the Court must first address the parties'
statements of facts. Defendants argue that Plaintiff has
failed to specifically controvert their statement of
undisputed facts, and accordingly, the Court should treat
their statement of facts as admitted.
Rule of Civil Procedure 56(e) states that a court may deem
undisputed a party's asserted fact if it is not properly
controverted by the other party pursuant to Rule 56(c).
Similarly, Local Rule 56.1(c) states that all material facts
asserted in the moving party's statement of facts shall
be deemed admitted if they are not controverted by the
nonmoving party's own statement of facts. Federal Rule of
Civil Procedure 56(c)(1) provides that a party asserting a
genuine dispute of material fact must support the assertion
by either citing to materials in the record or by showing
that the movant's cited materials do not establish the
absence or presence of a genuine dispute.
response to Defendants' statement of undisputed facts,
Plaintiff filed a statement of disputed facts containing
seven numbered statements of fact. None of Plaintiff's
statements of facts cite to materials in the record or show
that Defendants' cited materials do not establish the
absence of a genuine dispute. The Court also notes that
several of Plaintiff's statements of disputed facts are
legal conclusions, which are improperly asserted in a
statement of facts. The Court finds that Plaintiff has failed
to controvert Defendants' statement of undisputed facts
pursuant to Federal Rule of Civil Procedure 56(c) and Local
Rule 56.1. Accordingly, all facts asserted in Defendants'
statement of facts are deemed admitted for summary judgment
purposes. See Chaffin v. City of Fort Smith, No.
2:05-cv-2061 JLH, 2005 WL 3805977, at *1 (W.D. Ark. Oct. 19,
2005). With this issue resolved, the Court now turns to
federal cause of action exists for the deprivation, under
color of law, of a citizen's “rights, privileges,
or immunities secured by the Constitution and laws” of
the United States. 42 U.S.C. § 1983. To state a claim
under section 1983, Plaintiff must allege that Defendants
acted under color of state law and that they violated a right
secured by the Constitution. West v. Atkins, 487
U.S. 42, 48 (1988). The deprivation must be intentional; mere
negligence will not suffice to state a claim for deprivation
of a constitutional right under section 1983. Daniels v.
Williams, 474 U.S. 327, 328 (1986).
amended complaint, Plaintiff states that she institutes this
lawsuit pursuant to section 1983. Specifically, Plaintiff
claims that Defendants' deliberate indifference to Ms.
Brock's medical condition violated her rights under the
Fourteenth Amendment, the Arkansas Civil Rights Act, and the
Americans With Disabilities Act. Plaintiff also claims that
Defendants failed to properly train guards at the UCDC to
attend to inmates with medical conditions and that Defendants
negligently failed to evaluate Ms. Brock's medical
condition and ultimately failed to prevent Ms. Brock's
Court will first address Plaintiff's official capacity
claims. Second, the Court will take up Plaintiff's
deliberate indifference claim. Third, the Court will address
Plaintiff's ADA claim. Fourth, the Court will address
Plaintiff's failure to train claim. Fifth, the Court will
take up Plaintiff's state law claims.