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Avery v. Elrod

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

June 27, 2019

JEREMY A. AVERY, SR. PLAINTIFF
v.
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 RECOMMENDATION

          HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE

         This is 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 and Recommendation.

         Currently before the Court is a Motion for Summary Judgment by Defendants Elrod, McCormick, and Halverson (“GCDC Staff Defendants”).[1] (ECF Nos. 36, 37, 38).

         I. BACKGROUND

         Plaintiff 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 Unit.

         Plaintiff alleges he has swelling, sores, weeping, and oozing[2] 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).

         Against 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. (Id.).

         Plaintiff 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).

         On 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 Sheriff's department.

(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).

         The 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.

         The 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).

         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 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).

         The 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).

         III. ANALYSIS

         Defendants 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 No. 37).

         In his 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).

         The 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).

         The 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 ...


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