United States District Court, W.D. Arkansas, Hot Springs Division
JEREMY A. AVERY, SR. PLAINTIFF
CHIEF DEPUTY STEVEN ELROD, CAPTAIN RON HALVERSON, APN EARNEST R. ENNIS, DR. KARL WAGENHAUSER, SOUTHWEST CORRECTIONAL MEDICAL GROUP, INC. and SHERIFF MIKE MCCORMICK DEFENDANTS
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE
a civil rights action provisionally filed pursuant to 42
U.S.C. § 1983. Pursuant to the provisions of 28 U.S.C.
§ 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, Chief United States District Judge, referred this
case to the undersigned for the purpose of making a Report
before the Court is a Motion for Summary Judgment by
Defendants Elrod, McCormick, and Halverson (“GCDC Staff
Defendants”). (ECF Nos. 36, 37, 38).
filed his Complaint on November 30, 2017. (ECF No. 1). He
alleges his constitutional rights were violated by the denial
of medical care while incarcerated as a pre-trial detainee in
the Garland County Detention Center. (Id. at 3-11).
Plaintiff is currently incarcerated in the Arkansas
Department of Correction (“ADC”) Ouachita River
alleges he has swelling, sores, weeping, and
oozing on his feet and legs from an unnamed
medical condition. He alleges all Defendants, in their
official and personal capacities, ignored his symptoms and
delayed his treatment from May 6, 2017, through October 28,
2017. He alleges this resulted in the deterioration of his
health and medical condition, which ultimately lead to his
hospitalization and to the infliction of pain and suffering,
mental and emotional suffering, and a loss of range of
motion. As grounds for his official capacity claim, Plaintiff
alleges it is the custom of both Garland County deputies and
medical staff to ignore valid sick calls and complaints by
inmates and detainees. (Id. at 9).
the GCDC Staff Defendants, Plaintiff alleges denial of
medical care, deliberate indifference, ignoring obvious
conditions, and interference with access to treatment from
May 6, 2017, through October 21, 2017. (Id. at 10).
Plaintiff proceeds against these Defendants in both their
personal and official capacities for this claim.
alleges these Defendants denied him “proper
access” to medical staff or treatment orders and
ignored several requests for help “with issues with
medical staff.” (Id.). Plaintiff alleges these
Defendants “left me to continue to swell and suffer
with sores, ” ultimately resulting in his
hospitalization. He alleges he has lost range of motion and
cannot be on his feet for any length of time as a result.
(Id.). As grounds for his official capacity claim,
Plaintiff alleges it is the custom of Detention Center staff
“to not take inmates serious and to put issues off on
medical staff and not enforce treatment of inmates, which
allow's inmates to be medica[l]ly neglected.”
(Id. at 11).
December 8, 2017, Plaintiff filed a Motion to Substitute
Defendant. (ECF No. 6). In his Motion, Plaintiff asks
permission to substitute Garland County Sheriff Mike
McCormick for the previously named Garland County
Sheriff's Department. Plaintiff alleged Defendant
McCormick violated his constitutional rights as follows:
by allowing or the enforcement of certain policies,
procedures, and or customs of the Garland County Detention
facility. Which allowed housing deputies and medical staff to
inflict wanton pain and suffering as well as inadequate
medical attention and medical negligence. Defendant Mike
McCormick also has final say of the renewal or termination of
employment contracts at the Garland County Detention Center.
All final medical procedures and appointments with
specialists are approved threw him. Being Sheriff Mr
McCormick is wholly responsible for the actions of each and
every act of each and every employee, of the Garland County
(Id. at 2). Defendant McCormick was substituted as a
Defendant on March 9, 2018. (ECF No. 9). Pursuant to PLRA
screening, Plaintiff' official capacity claim that
Defendants McCormick, Elrod, and Halverson customarily failed
to override the medical opinions and treatment plans of the
medial staff were dismissed. (ECF No. 9 at 4).
remaining claims against the GCDC Staff Defendants, both
personally and as a matter of GCDC custom, are therefore
limited to his allegations that Defendants ignored his
requests for medical help (including sick calls and medical
complaints), denied him access to medical staff for his
swollen legs and feet, and failed to override medical staff
decisions to prevent medical neglect.
GCDC Staff Defendants filed their Motion for Summary Judgment
on January 24, 2019. (ECF Nos. 36, 37, 38). On January 25,
2019, the Court entered an Order directing Plaintiff to file
a Response. (ECF No. 39). Plaintiff filed his Response on
February 27, 2019. (ECF No. 42, 43).
judgment is appropriate if, after viewing the facts and all
reasonable inferences in the light most favorable to the
nonmoving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986), the record
"shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). "Once a party
moving for summary judgment has made a sufficient showing,
the burden rests with the non-moving party to set forth
specific facts, by affidavit or other evidence, showing that
a genuine issue of material fact exists.” National
Bank of Commerce v. Dow Chemical Co., 165 F.3d 602, 607
(8th Cir. 1999).
non-moving party "must do more than simply show that
there is some metaphysical doubt as to the material
facts." Matsushita, 475 U.S. at 586. "They
must show there is sufficient evidence to support a jury
verdict in their favor." National Bank, 165
F.3d at 607 (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)). "A case founded on
speculation or suspicion is insufficient to survive a motion
for summary judgment." Id. (citing, Metge
v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)).
“When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.” Scott v. Harris, 550
U.S. 372, 380 (2007).
argue summary judgment in their favor is appropriate because:
(1) Plaintiff cannot demonstrate that his alleged injuries
resulted from a policy or custom in place at the Garland
County Detention Facility; (2) Plaintiff failed to establish
any deliberate indifference to Plaintiff's medical needs
and they are therefore entitled to qualified immunity. (ECF
Response documents, Plaintiff argues he suffered from pain
and swelling in his legs which resulted in him being
hospitalized on August 9, 2017, and from October 21 through
October 27, 2017. (ECF No. 43 at 1). He argues unspecified
Defendants cancelled and rescheduled several medical
appointments “further Delaying my Serious Medical
needs.” (Id. at 2).
Eighth Amendment prohibition of cruel and unusual punishment
prohibits deliberate indifference to prisoners' serious
medical needs. Luckert v. Dodge County, 684 F.3d
808, 817 (8th Cir. 2012). To prevail on his Eighth Amendment
claim, Plaintiff must prove that Defendants acted with
deliberate indifference to his serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
deliberate indifference standard includes “both an
objective and a subjective component: ‘The [Plaintiff]
must demonstrate (1) that [he] suffered [from] objectively
serious medical needs and (2) that the prison officials
actually knew of but deliberately disregarded those
needs.'” Jolly v. Knudsen,205 F.3d ...