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Brock v. McGough

United States District Court, W.D. Arkansas, El Dorado Division

September 27, 2018

VIRGINIA BROCK as Administratrix of the Estate of CYNTHIA RENEE BROCK Deceased PLAINTIFF


          Susan O. Hickey United States District Judge

         Before 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.

         I. BACKGROUND

         On 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, [1] a 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.

         West met with Ms. Brock and noticed that she was holding a metered dose inhaler with an attached spacer.[2] Ms. Brock informed West that she was diabetic, required regular insulin injections, had asthma, and used a BiPAP machine and oxygen concentrator while sleeping.[3] 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.

         Approximately 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.

         Later 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.[4] 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 sugar.

         Later 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.

         On 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.

         On the 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.[5] (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).

         On 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).

         Separate 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.

         At 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.

         The 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.

         Separate Defendant Mike McGough, the Union County Sherriff at the time, ordered Sergeant Randall Gilbert[6] 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).

         On 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.

         On May 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).

         II. STANDARD

         The 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.

         In 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.


         As an 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.

         Federal 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.

         In 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 Plaintiff's claims.

         A 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).

         In her 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 death.

         The 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.

         A. Official ...

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