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Dunn v. Wyndham

United States District Court, W.D. Arkansas, Hot Springs Division

February 5, 2019

JOHN PAUL DUNN PLAINTIFF
v.
JAILER RANDY WYNDHAM, JAIL ADMINISTRATOR JAMES MAYHUE, JAILER FOLEY and JAILER NATE MORRISON DEFENDANTS

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         This is a civil rights action 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, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation.

         Currently before the Court is Defendants' Summary Judgment Motion. (ECF Nos. 65, 66, 67, 69).

         I. BACKGROUND

         A. Procedural Background

         Plaintiff filed his Complaint on January 22, 2016, alleging several constitutional violations. (ECF No. 1). On January 22, 2016, the Court entered an Order terminating the Eastern District of Arkansas Defendants.[1] On September 13, 2016, additional Defendants were dismissed pursuant to PLRA pre-service screening.[2]

         On September 22, 2016, Defendants Avant, Bethel, and Collier filed a Motion to Stay the case because Plaintiff's pending criminal trial stemmed from the same drug arrest in July 2014 which gave rise to this case. (ECF Nos. 25, 26). At the time of the motion, the criminal trial had been continued several times because Plaintiff was mentally unfit to stand trial. (ECF No. 25). On October 28, 2016, this case was stayed pending conclusion of Plaintiff's state court criminal proceeding arising from the some of the same facts as this case. (ECF No. 30). On November 20, 2017, Defendants Avant, Bethel, and Collier filed a Motion to lift the stay. (ECF No. 33). On November 28, 2017 the stay was lifted, and the case proceeded. (ECF No. 34). The claims remaining for adjudication were for false arrest and imprisonment against Defendants Collier, Bethel, Watson, Forga, Avant, Morrison, Cain, and Whitworth. Plaintiff's claim for denial of medical care against Mayhue, Wyndham, Morrison, and Foley also remained. (ECF Nos. 12, 18).

         On November 29, 2018, Defendants Collier, Bethel, Watson, Forga, Avant, Morrison, Cain, and Whitworth filed a Motion to Dismiss regarding Plaintiff's false arrest and imprisonment claims. (ECF Nos. 37, 28). On August 7, 2018, Plaintiff's claims for false arrest and imprisonment were dismissed. (ECF Nos. 59, 61).

         On December 17, 2018, Defendants Mayhue, Wyndham, Morrison, and Foley filed their Motion for Summary Judgment for Plaintiff's denial of medical care claim. (ECF Nos. 65, 66, 67, 69). That same day, the Court entered an Order directing Plaintiff to respond to the Motion by January 7, 2019. (ECF No. 68). To date, Plaintiff has failed to respond to the Motion for Summary Judgment.

         In the Order directing him to Respond to the Summary Judgment Motion (ECF No. 68), Plaintiff was advised that failure to comply with the Court's Order would result in: (a) all of the facts set forth by the Defendants in the summary judgment papers being deemed admitted by Plaintiff, pursuant to Local Rule 56.1(c); and/or, (b) shall subject this case to dismissal, without prejudice, pursuant to Local Rule 5.5(c)(2).

         The Court must consider the facts set forth in Plaintiff's verified Complaint in ruling on the Summary Judgment Motion. A verified complaint is the equivalent of an affidavit for summary judgment purposes. See, e.g., Roberson v. Hayti Police Dep't., 241 F.3d 992, 994-95 (8th Cir. 2001).

         As the Court in Roberson pointed out, “[a]lthough a party may not generally rest on his pleadings to create a fact issue sufficient to survive summary judgment, the facts alleged in a verified complaint need not be repeated in a responsive affidavit to survive the summary judgment motion. Id. The Court will “piece[ ] together [Plaintiff's] version of the facts from the verified complaint. . . .” McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5, 2016) (citing Roberson v. Hayti Police Dep't., 241 F.3d 992 (8th Cir. 2001)). “Those portions of the Defendants' statement of material facts that do not conflict with [Plaintiff's verified complaint] are deemed admitted.” McClanahan, 2016 WL 520983, at *1.

         B. Denial of Medical Care Claim

         It is first necessary to define the scope of Plaintiff's claim, as his Complaint includes timeframes when he was not incarcerated in the Clark County Detention Facility (“CCDF”). Plaintiff alleges he was denied treatment for (1) HIV; (2) “ADD/ADHD amphetamine/methamphetamine;” and (3) an abscessed tooth while he was incarcerated in CCDF.[3] He alleges this occurred between July 9, 2014, until he signed his Complaint on January 11, 2016. (ECF No. 1 at 17-18, 27). Defendants indicate Plaintiff was in the custody of CCDF starting July 9, 2014; his attorney sought an order for mental evaluation on October 14, 2014; he was ordered to the custody of the Arkansas State Hospital (“ASH”) on April 14, 2015; and he was admitted to ASH on July 23, 2015. He was then discharged from ASH on or about February 10, 2016. (ECF Nos. 66 at 3; 67 at 1). His claim is therefore limited to the months of July 9, 2014 through July 23, 2015. Plaintiff was discharged from ASH on February 10, 2016. (ECF No. 67-8 at 20). On February 22, 2016, approximately a month after Plaintiff signed his Complaint, the Court entered an Order changing Plaintiff's address back to CCDF. (ECF No. 6).

         Plaintiff alleges Defendant Mayhue (Jail Administrator) failed to act within “the standards and care. Violated state federal laws wasn't treated for HIV, Absess [sic] tooth or given pain medication. Lost years of my life irrepairable [sic] damage to heart liver immune system function loss of teeth.” (Id. at 18). He further alleges Defendant Mayhue failed to “do any education of training and knowledge to do the job. Failure to have trained medical staff on duty 24 hrs a day.”[4]

         Plaintiff alleges Defendant Wyndham (Jailer):

would not listen to anything I or any other prisoner would say. Your supposed to get Tylenol at 8pm but you can't save it or is contraband If you have a medical emergency at 3am your just out of luck. Loss of teeth loss of immune function = years of life.

(Id. at 18). Plaintiff alleges Defendant Wyndham failed to have appropriate training in the jail, failed to have continuing education, failed to contact emergency medical personnel, and was not trained in anything other than CPR. (Id. at 19). Plaintiff does not identify the medical emergency in question.

         Plaintiff alleges Defendant Morrison (Jailer) failed to contact medical personnel in an emergency situation, failed “to act withing [sic] standards of jails, ” failed to do hourly rounds to check on prisoners, and failed to dispense medication when needed. He alleges this caused him the loss of his immune system, teeth, and “lost years of my life.” (Id. at 19-20). Plaintiff does not identify the medical emergency in question or the medication he was allegedly denied. In his deposition on November 6, 2018, Plaintiff identified an abscessed tooth as the medical emergency in his Complaint. (ECF No. 67-5 at 32-35).[5]

         Plaintiff alleges Defendant Foley (Jailer) failed to act within jail standards, “failed to render aid immediately once notified.” He alleges this caused him the loss of teeth, loss of life and loss of immune function. He alleges Defendant Foley failed to be properly trained and failed to have continuing education. (Id. at 20). Plaintiff does not identify what incident or condition required immediate aid.

         Plaintiff proceeds against Defendants in both their personal and official capacity. (ECF No. 1 at 18-20).

         II. LEGAL STANDARD

         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 ...


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