Davis v. Pulaski County Arkansas

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

REGINALD DAVIS PLAINTIFF

v. Case No.: 4:19-cv-643-LPR

PULASKI COUNTY ARKANSAS, et al. DEFENDANTS

ORDER

Pending before the Court is a Motion for Summary Judgment by separate Defendants

Sheriff Eric Higgins, Sergeant Andrew McEwen, Deputy Debra Dillard, Sergeant Nicole Nelson,

and Pulaski County, Arkansas (collectively, the “County Defendants”).1 Plaintiff Reginald Davis

sued the County Defendants under 42 U.S.C. § 1983.2 He alleges the County Defendants acted

with deliberate indifference with respect to his serious medical needs and thus violated his Eighth

Amendment right to be free from cruel and unusual punishment.3 The County Defendants move

for summary judgment, arguing that Mr. Davis’s failure to establish a constitutional violation

forecloses both his individual capacity claims and official capacity claims, including his failure-

to-train claim.4 The Court agrees with the County Defendants and therefore GRANTS summary

judgment to the County Defendants.

I. Procedural Background

This case began with seven defendants: Pulaski County, Arkansas; Sheriff Eric Higgins;

Deputy Debra Dillard; Sergeant Nicole Nelson; Sergeant Andrew McEwen; Turn Key Health

1 Defs.’ Mot. for Summ. J. (Doc. 32). The Court notes that the record does not definitively establish Nicole Nelson’s

rank. For the purposes of this Order, the Court will refer to Ms. Nelson as Sergeant Nelson.

2 Pl.’s Compl. (Doc. 1) at 1.

3 Id.

4 Defs.’ Mot. for Summ. J. (Doc. 34) ¶ 4.

Clinics, LLC (“Turn Key”); and Deirdra Vester, LPN (“Nurse Vester”).5 Mr. Davis alleged that

Deputy Dillard, Sergeants Nelson and McEwen, Nurse Vester, and Turn Key acted with deliberate

indifference towards him when they did not properly attend to his seriously injured ankle.6 Mr.

Davis also brought a medical malpractice claim against Turn Key and Nurse Vester, alleging that

they administered the wrong insulin medication to him and failed to provide adequate care to him

subsequent to his ankle injury.7 Finally, Mr. Davis alleged that Pulaski County, through its sheriff,

failed to properly train its staff on how to deal with inmates’ medical needs.8

Turn Key and Nurse Vester prevailed on two motions, which, taken together, eliminated

them from the case. Before discovery, Turn Key and Nurse Vester moved to dismiss Mr. Davis’s

Complaint.9 The Court dismissed without prejudice the § 1983 claims against Nurse Vester and

Turn Key, finding that those claims did not state viable causes of action.10 With respect to the §

1983 claim that Nurse Vester violated the U.S. Constitution by giving Mr. Davis the wrong insulin,

the Court dismissed that claim without prejudice because the allegations were only that Nurse

Vester had made a mistake.11 With respect to the § 1983 claim that Mr. Davis was not properly

cared for after he injured his ankle, the Court explained that the Complaint did not allege that

Nurse Vester was part of the Turn Key group that responded to Mr. Davis’s ankle injury.12 As for

the § 1983 claims against Turn Key, the Court dismissed those claims without prejudice because

Mr. Davis never alleged the existence of a Turn Key policy, custom, or practice that was the

5 Pl.’s Compl. (Doc. 1).

6 Id. ¶¶ 50, 51.

7 Id. ¶¶ 22, 67, 69, 70.

8 Id. ¶¶ 52, 53.

9 Defs.’ Mot. to Dismiss (Doc. 5).

10 Order (Doc. 17).

11 Id. at 5.

12 Id. at 5–6.

moving force behind the alleged constitutional violation.13 Moreover, Mr. Davis never alleged

that Turn Key failed to train or supervise its staff.14 In its dismissal Order, the Court made clear

that Mr. Davis might be able to fix the pleading failures in his Complaint, and the Court gave Mr.

Davis 45 days to amend his Complaint.15 Mr. Davis did not amend his Complaint.

Near the end of discovery, Turn Key and Nurse Vester moved for summary judgment on

Mr. Davis’s medical malpractice claims, arguing that Mr. Davis could not prevail on those claims

without a medical expert’s opinion.16 Applying Arkansas law, the Court agreed with Turn Key

and Nurse Vester and granted summary judgment in their favor.17

With Turn Key and Nurse Vester out, Mr. Davis’s current case is of necessity focused only

on the County Defendants. Mr. Davis brings individual capacity claims against Deputy Dillard

and Sergeants Nelson and McEwen.18 Mr. Davis brings official capacity claims against all County

Defendants.19

II. Legal Standard

Summary judgment is appropriate when there is no genuine dispute as to any material fact

and the moving party is entitled to judgment as a matter of law.20 Conversely, if the nonmoving

party can present specific facts by “affidavit, deposition, or otherwise, showing the existence of a

genuine issue for trial,” then summary judgment is not appropriate.21 It is important to understand

13 Id. at 6–7.

14 Id. at 7–8.

15 Id. at 1–2, 12.

16 Order (Doc. 41) at 1.

17 Id.

18 Pl.’s Compl. (Doc. 1) ¶¶ 6, 7, 8.

19 Id. ¶ 4–8.

20 Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (citing FED. R. CIV. P. 56).

21 Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 1034 (8th Cir. 2005).

that “[t]he mere existence of a factual dispute is insufficient alone to bar summary judgment.”22

To prevent summary judgment, the dispute of fact must be both genuine and material.23 A genuine

dispute of fact exists where a rational juror could decide the particular question of fact for either

party.24 A material dispute of fact exists where the juror’s decision on the particular question of

fact determines the outcome of a potentially dispositive issue under the substantive law.25

The moving party must show that (1) there is an absence of a genuine dispute of material

fact on at least one essential element of the nonmoving party’s case and (2) the absence means that

a rational juror could not possibly find for the nonmoving party on that essential element of the

nonmoving party’s case.26 If the moving party meets that burden, the burden then shifts to the

nonmoving party to show that there is a genuine dispute of material fact.27 The nonmoving party

meets that burden by designating specific facts in affidavits, depositions, answers to

interrogatories, admissions, or other record evidence that shows “there is a genuine issue for

trial.”28 The Court must view the evidence in the light most favorable to the nonmoving party and

give the nonmoving party the benefit of all reasonable inferences.29 Accordingly, for purposes of

the Motion here, the Court considers the most pro-plaintiff version of the record that a rational

juror could conclude occurred.

22 Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989).

23 Id.

24 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

25 Id.

26 Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).

27 Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Torgerson, 643 F.3d at

1042.

28 Celotex Corp., 477 U.S. at 322–24.

29 Pedersen v. Bio-Med Applications of Minn., 775 F.3d 1049, 1053 (8th Cir. 2015).

III. Facts

On July 8, 2017, the Little Rock Police Department arrested Mr. Davis and booked him

into the Pulaski County Regional Detention Facility (“PCRDF”) on charges of criminal trespass

and obstructing governmental operations.30 On September 1, 2017, Mr. Davis pleaded guilty to

the charges and was sentenced to a 30-day term of confinement, which was to be served at

PCRDF.31 Thus, on the date of the principal event at issue in this case––September 22, 2017––

Mr. Davis was a post-conviction inmate.32 Additionally, the Arkansas Department of Correction

had a parole hold on Mr. Davis.33

Pulaski County deputies receive training related to the provision of medical care to

inmates.34 Specifically, Pulaski County trains deputies on the “administration of first aid[,]

recognizing the need for emergency care in life threatening situations[,] recognizing acute

manifestations of chronic illnesses[,] and methods of obtaining medical assistance and referring

inmates to health professionals.”35 Pulaski County contracts with Turn Key for Turn Key to

provide medical services at PCRDF.36

30 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶¶ 1, 2, 6.

31 Id. ¶ 3.

32 Id. ¶ 5.

33 Id. ¶ 4.

34 Id. ¶ 8.

35 Id.

36 Id. ¶ 9. Pulaski County’s policies allow “only qualified health care personnel [to] evaluate and care for patients.”

Id. ¶ 11. Pulaski County maintains that Turn Key is solely responsible for healthcare services provided to inmates.

Defs.’ Statement of Facts (Doc. 34) ¶ 10. Mr. Davis disputes this characterization, stating that “[a]lthough PCRDF

relies upon the decisions of healthcare professionals to provide medical care to inmates, it still has the responsibility

to ensure that pretrial and post-trial detainees receive the necessary medical attention.” Pl’s Resp. to Statement of

Facts (Doc. 39) ¶ 10. For the purposes of this Motion, the Court resolves this dispute in Mr. Davis’s favor and

finds that Pulaski County did not delegate full responsibility of inmate medical care to Turn Key. Whether Pulaski

County could have done so consistent with the Constitution is thus not a question the Court needs to answer.

Per Pulaski County policy, all inmates receive an intake medical screening from a qualified

medical provider.37 Turn Key conducts these screenings.38 Turn Key asks inmates about current

illnesses, health problems, medications, and other special needs criteria, such as diabetes.39 Mr.

Davis’s intake screening revealed that he had diabetes, which was controlled by two drugs,

Levimir and R Humulin.40 The screening also showed that Mr. Davis had an “unstable gait” and

used a cane, which led Turn Key to recommend that Mr. Davis be assigned to a lower bunk.41

On September 22, 2017, Mr. Davis fell and injured his right ankle.42 Here’s what

happened. At 5:13 a.m., Deputy Dillard told Mr. Davis to come out of his cell to retrieve his food

tray.43 While exiting his cell, Mr. Davis fell to the floor.44 Deputy Dillard responded to the fall

and saw that Mr. Davis’s ankle appeared severely swollen.45 A minute later, Deputy Dillard called

a “Code Red (Medical Emergency).”46 In response to the Code Red, three PCRDF staff arrived

on the scene: Lieutenant Vannorris Sims and Sergeants Nelson and McEwen.47 Five Turn Key

personnel responded: Nurses Marsha Warren, Rene Long, Deirdra Vester, Morgan Scott, and

37 Id. ¶¶ 11, 12.

38 Id. ¶¶ 9, 12, 20.

39 Id. ¶¶ 13, 15.

40 Id. ¶¶ 18, 21.

41 Id. ¶¶ 19, 20.

42 Id. ¶¶ 24–26. In his Complaint, Mr. Davis alleges that, in the early morning of September 22, 2017, Nurse Vester

mistakenly administered the wrong dose of insulin to Mr. Davis, causing his blood sugar to plummet and leading

to his fall. Pl.’s Compl. (Doc. 1) ¶¶ 22, 27, 28. As both Turn Key and Nurse Vester are no longer in the case,

whether Mr. Davis received the improper medication is not material to Mr. Davis’s claims against the County

Defendants.

43 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 24. At the motion hearing, counsel for the County Defendants

indicated that Deputy Dillard was a unit deputy, who was regularly assigned to another unit and was filling in at

the unit in which Mr. Davis was housed. June 14, 2021 Hr’g Tr. at 5, 18. Mr. Davis’s counsel did not dispute this.

44 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 25.

45 Id. ¶ 26; Ex. A to Pl.’s Resp. to Statement of Facts (Doc. 39-1).

46 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 27; Ex. A to Pl.’s Resp. to Statement of Facts (Doc. 39-1).

47 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 28; Ex. A to Pl.’s Resp. to Statement of Facts (Doc. 39-1).

Carmen Simmons.48 Sergeants Nelson and McEwen provided extra security while Turn Key

personnel assessed Mr. Davis.49

Nurse Vester concluded that Mr. Davis experienced a hypoglycemic episode.50 Mr.

Davis’s blood-sugar level was 28.51 Mr. Davis testified that his low blood-sugar level rendered

him disoriented and lethargic.52 Mr. Davis acknowledged that his recollection of specific events

may not be exact due to his low blood sugar.53 In any event, Turn Key personnel provided food

and glucose tablets to Mr. Davis, which elevated Mr. Davis’s blood-sugar level to 89 within ten

minutes of the fall.54

A Turn Key “muscular skeleton/sprain report indicates that after Mr. Davis’s fall, his foot

was turned completely to the right and dislocated at the ankle.”55 At some point, Mr. Davis

manipulated his “foot to a normal position.”56 Turn Key staff then helped Mr. Davis back onto his

48 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 28. A careful reader will recall that, in its March 2020 Order, the

Court dismissed claims against Nurse Vester in part because there was no allegation that she was in the group of

Turn Key responders. See supra note 12 and accompanying text. That subsequent discovery has revealed Nurse

Vester to be part of this group does not affect the propriety of the Court’s earlier dismissal decision. Mr. Davis

never sought to amend his Complaint on this point, and the time to do so has passed.

49 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 29. The record is silent as to the role Lieutenant Sims played in this

episode. Lieutenant Sims is not a defendant in this action, and no allegations are made against Lieutenant Sims.

50 Id. ¶ 32.

51 Id. ¶ 30.

52 Ex. B to Pl.’s Resp. to Statement of Facts (Doc. 39-1) at 3.

53 Id.

54 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 31.

55 Id. ¶ 33.

56 Defs.’ Br. in Supp. of Mot. for Summ. J. (Doc. 33) at 4; Ex. 2-A to Defs.’ Statement of Facts (Doc. 34-2) at 12.

Mr. Davis denies repositioning his foot but presents no evidence to support his denial. See Pl.’s Resp. to Defs.’

Statement of Facts (Doc. 39) ¶ 34. In his deposition, Mr. Davis testified that he cannot recall manipulating his foot

and conceded that he may have. Ex. B to Pl.’s Resp. to Defs.’ Statement of Facts (Doc. 39-1) at 4. Because Mr.

Davis does not support this denial, the Court finds that it is undisputed that Mr. Davis manipulated his foot back

into its proper position. See FED. R. CIV. P. 56(e)(2) (“If a party fails to properly address another party’s assertion

of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for the purposes of the motion.”).

In any event, even if someone else manipulated Mr. Davis’s foot back to the proper position, it is undisputed that

his foot was in the proper position before he returned to his cell.

feet and assisted him into his cell.57 While returning to his cell, Mr. Davis limped on his right

leg.58 After returning Mr. Davis to his cell, Turn Key staff cleared Mr. Davis to remain on the

unit.59 PCRDF staff then called a “Code 1 (‘return to normal operations’) at approximately 5:35

a.m.”60

The parties dispute the treatment Mr. Davis received over the course of the next week.61

The County Defendants assert that on the day of the incident, “Turn Key staff instructed Mr. Davis

to apply cold compresses/ice packs for 20 minutes every three hours for 24 hours, to elevate his

foot for three days, and to call medical personnel if he experienced any signs or symptoms

(presumably of hypoglycemia).” 62 The County Defendants also assert that on September 23, 2017

(the day after the fall), Mr. Davis “told Turn Key staff he twisted his ankle and felt a pop with

rotation and another pop when he moved the ankle back into place.”63 And according to Turn

Key’s records, a staff member indicated that Mr. Davis could put weight on his ankle, though with

pain, and “noted [Mr.] Davis’[s] ankle was severely swollen with edema down to his toes, [subject

to] pain on palpitation,” and was red.64 Turn Key staff, according to the County Defendants,

provided Mr. Davis ibuprofen as well.65 Mr. Davis denies all of the above.66 According to Mr.

57 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 35.

58 Id. ¶ 35.

59 Id. ¶ 36.

60 Id. ¶ 37. Twenty-two minutes elapsed from the time Mr. Davis fell until he was cleared to remain on the unit.

61 The Court presents these disputed facts for context but finds that they are immaterial to Mr. Davis’s claims against

the County Defendants. At oral argument, Mr. Davis’s counsel conceded that Mr. Davis’s claims against Deputy

Dillard and Sergeants Nelson and McEwen necessarily stem only from the September 22, 2017 incident because

there is no record evidence that any of these individuals had any further interactions with Mr. Davis after that

incident or had any knowledge of his subsequent treatment or nontreatment. June 14, 2021 Hr’g Tr. at 17–19.

62 Defs.’ Statement of Facts (Doc. 34) ¶ 38.

63 Id. ¶ 39.

64 Id. ¶¶ 40, 41.

65 Id. ¶ 42.

66 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶¶ 38–42.

Davis, he did not receive ibuprofen or ice. 67 He also states that he was never given anything that

would have allowed him to elevate his ankle.68 Mr. Davis also denies seeing any Turn Key staff

on September 23, 2017.69

Mr. Davis made multiple attempts to receive further medical attention for his ankle. On

September 27, 2017, Turn Key received a “Sick Call” request from Mr. Davis.70 In that request,

Mr. Davis complained about “medical[’s]” lack of concern for Mr. Davis’s injuries.71 On

September 27, 2017, Mr. Davis filed a grievance.72 Mr. Davis grieved the medical department’s

lack of concern and also complained that he had not received an X-ray of his ankle.73 Mr. Davis

filed a second grievance on September 29, 2017, contending that he “fell and sprong [sic] my right

ankle out of socket, and [it] was swollen badly. As of this date 9-29-17[,] medical hasn’t made

any type of effort to X-ray.”74 In response to this second grievance, a PCRDF staff member,

Sergeant Brawley, told Mr. Davis that “the matter would be investigated.”75

On the same day, Turn Key performed an X-ray on Mr. Davis’s ankle, which revealed that

Mr. Davis’s fibula was fractured.76 Mr. Davis was transported to the University of Arkansas for

Medical Sciences (UAMS).77 UAMS diagnosed Mr. Davis as having a fracture in his right fibula.78

67 Id. ¶ 42.

68 Id.

69 Id. ¶ 40.

70 Ex. I to Pl.’s Resp. to Statement of Facts (Doc. 39-1) at 45.

71 Id.

72 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 44; see also Ex. F to Pl.’s Resp. to Statement of Facts (Doc. 39-1) at

41.

73 Ex. F to Pl.’s Resp. to Statement of Facts (Doc. 39-1) at 41.

74 Ex. F to Pl.’s Resp. to Statement of Facts (Doc. 39-1) at 42.

75 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 55.

76 Exs. D and E to Pl.’s Resp. to Statement of Facts (Doc. 39-1) at 39–40.

77 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 69.

78 Ex. 2-A to Defs.’ Statement of Facts (Doc. 34-2) at 21 (showing Mr. Davis’s diagnosis as a closed displaced

UAMS applied a splint to Mr. Davis’s fracture and recommended orthopedic surgery.79 On

October 18, 2017,80 Turn Key submitted a request to UAMS regarding Mr. Davis’s follow-up

appointment and was informed by UAMS, on October 24, 2017, that a referral was required before

an appointment could be made.81 Turn Key provided the referral on October 24, 2017,82 and Mr.

Davis’s next appointment was scheduled for October 31, 2017.83 On October 28, 2017, however,

Mr. Davis was transferred to UAMS to receive a new splint because his cast got wet.84 Three days

later, Mr. Davis was again transferred to UAMS for his follow-up appointment when it was noted

that Mr. Davis needed surgery “ASAP.”85

On November 9, 2017, Mr. Davis was placed in the custody of the Arkansas Department

of Correction (“ADC”) and transferred to the Ouachita River Unit of the ADC.86 On November

17, 2017, Mr. Davis underwent surgery at UAMS.87 On April 17, 2018, the UAMS Orthopedic

Clinic advised Mr. Davis that his fracture was not healing well and presented Mr. Davis with two

options: either undergo a second surgery or allow the bone to heal knowing that an ankle fusion

would likely be required in the future.88 Mr. Davis chose the latter.89 Mr. Davis was released by

fracture of lateral malleolus of right fibula initial encounter).

79 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 71.

80 The record indicates that Mr. Davis had an appointment scheduled for October 10, 2017, at UAMS. Id. ¶¶ 82–86.

At oral argument, counsel for the County Defendants stated that Mr. Davis’s sister was possibly aware of the

appointment date. June 14, 2021 Hr’g Tr. at 12. Counsel further represented that PCDRF policy requires

cancellation of outside appointments when “somehow somebody on the outside” is aware of the appointment date

because such knowledge increases the risk for escape. Id. at 10–11.

81 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶¶ 77, 78.

82 Id. ¶ 79.

83 Id. ¶ 87.

84 Id. ¶ 88.

85 Id. ¶ 89.

86 Id. ¶ 93.

87 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶¶ 94, 95.

88 Id. ¶¶ 100, 101.

89 Id. ¶ 102.

the ADC on August 1, 2018.90 Nearly four months later, Mr. Davis’s lower right leg was

amputated.91

IV. Discussion

As described in the Facts section, there are some genuine disputes of fact in this case. For

instance, did Mr. Davis receive ibuprofen and ice? Those disputes, however, are not material.

Even taking all of the disputed facts in the light most favorable to Mr. Davis (and giving him the

benefit of all reasonable inferences therefrom), no rational juror could conclude that the County

Defendants violated Mr. Davis’s Eighth Amendment rights. Mr. Davis’s claims against the

County Defendants therefore fail at the summary judgment stage.

A. Individual Claims

Mr. Davis asserts that Deputy Dillard and Sergeants McEwen and Nelson, in their

individual capacities, violated his Eighth Amendment rights and are therefore liable to him under

42 U.S.C. § 1983. “Deliberate indifference to serious medical needs of prisoners constitutes the

unnecessary and wanton infliction of pain proscribed by the Eighth Amendment.”92 To establish

deliberate indifference, Mr. Davis must “show: ‘(1) he suffered from an objectively serious

medical need, and (2) that [the County Defendants] knew of the need yet deliberately disregarded

it.’”93 “Deliberate indifference is more than negligence, more even than gross negligence.”94 This

standard presents a “fact-intensive inquiry that requires [Mr. Davis] to clear a substantial

90 Id. ¶ 104.

91 Id. ¶ 105.

92 Johnson v. Leonard, 929 F.3d 569, 575 (8th Cir. 2019) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).

93 Id. (citing Estelle, 429 U.S. at 104).

94 Id. (quoting Fourte v. Faulkner Cty, 746 F.3d 384, 387 (8th Cir. 2014)); see also Holden v. Hirner, 663 F.3d 336,

343 (8th Cir. 2011) (“The level of culpability required to demonstrate deliberate indifference on the part of prison

officials is equal to criminal recklessness.”).

evidentiary threshold to succeed on his claim.”95 For the purposes of this Motion, the Court

assumes that Mr. Davis’s fall and subsequent ankle injury gave rise to a serious medical need. The

Court also notes that Mr. Davis’s individual capacity claims are cabined to the County Defendants’

conduct on the morning of September 22, 2017.96

The Court begins with Sergeants McEwen and Nelson. The undisputed facts show that

these officers responded to Deputy Dillard’s call for help and provided additional security.97 That

is it. The County Defendants note that neither Sergeant McEwen’s nor Sergeant Nelson’s incident

report mentioned Mr. Davis’s ankle.98 Mr. Davis does not contest this. Indeed, at the motion

hearing, Mr. Davis’s counsel conceded that the record is silent as to whether Sergeant Nelson or

Sergeant McEwen saw Mr. Davis’s ankle after the fall.99 The Court’s independent review of the

record found no evidence indicating that either Sergeant McEwen’s or Sergeant Nelson’s role in

the incident went beyond the singular purpose of securing the scene while Turn Key staff assessed

Mr. Davis’s medical needs.100 There is no evidence that they saw Mr. Davis’s ankle or knew any

specifics of his injury. And there is no evidence that they had any knowledge of or interaction

with Mr. Davis after this event. The Court finds that Sergeants McEwen and Nelson are entitled

to summary judgment.101

95 Id. at 576 (internal quotations omitted).

96 See supra note 61.

97 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 29.

98 Defs.’ Br. in Supp. of Mot. for Summ. J. (Doc. 33) at 12; see also Ex. 1-K to Defs.’ Statement of Facts (Doc. 34-

1) at 29 (indicating that Sergeant McEwen noticed Mr. Davis holding his head and making no mention of Mr.

Davis’s ankle injury); Ex. 1-L to Defs.’ Statement of Facts (Doc. 34-1) at 30 (indicating that Sergeant Nelson

arrived to the scene and provided security and making no mention of Mr. Davis’s ankle injury).

99 June 14, 2021 Hr’g Tr. at 16.

100 In Mr. Davis’s Amended Brief in Support in Opposition, Mr. Davis asserts that Sergeants McEwen and Nelson

“saw that the plaintiff’s ankle was severely swollen.” Pl.’s Am. Br. in Opp’n to Defs.’ Mot. for Summ. J. (Doc.

42) at 4. Mr. Davis provides no citation to the record indicating that such is the case.

101 Even if Mr. Davis could establish the knowledge element with respect to Sergeant McEwen or Sergeant Nelson,

summary judgment would still be appropriate for the same reasons the Court sets forth below in its analysis of the

Deputy Dillard was on the scene when Mr. Davis fell. The Court assumes that Deputy

Dillard knew that Mr. Davis’s ankle was initially dislocated, that it had to be manipulated back

into the right position, that Mr. Davis was limping on his right leg when he was returned to his

cell, and that his ankle was swollen. Could this lead a rational juror to conclude that Deputy

Dillard’s conduct went beyond “gross negligence” or was otherwise “so inappropriate as to

evidence intentional maltreatment?”102 No. It is undisputed that, in accordance with PCRDF

policy, Deputy Dillard immediately summoned medical care professionals after Mr. Davis fell.103

Five Turn Key staff members responded to the situation within minutes and assumed control over

Mr. Davis’s medical care. Deputy Dillard remained on the scene while Turn Key assessed Mr.

Davis and she saw Mr. Davis walk, albeit with assistance and a limp, back into his cell. Turn Key

medical professionals made the decision that Mr. Davis could remain in his cell without the need

for more extensive treatment or evaluation in the infirmary at that moment. Mr. Davis does not

present facts showing that Deputy Dillard’s conduct during this incident was unreasonable, let

alone approached criminal recklessness or intentional misconduct.104 No facts establish that

Deputy Dillard disregarded Mr. Davis’s plight.

Moreover, no rational juror could conclude that Deputy Dillard knew or should have

known that the Turn Key staff was somehow acting egregiously and in a manner that would cause

Mr. Davis pain and suffering sufficient to rise to the level of a constitutional violation. There is

no evidence that Mr. Davis told Deputy Dillard that he needed additional medical care during or

after the incident or that he was in some sort of extreme pain after returning to his cell. This isn’t

claims against Deputy Dillard.

102 Fourte, 746 F.3d at 387.

103 Defs.’ Br. in Supp. of Mot. for Summ. J. (Doc. 33) at 11.

104 See Farmer v. Brennan, 511 U.S. 825, 845 (1994) (stating that “prison officials who act reasonably cannot be

found liable under the Cruel and Unusual Punishments Clause”).

a situation where the medical staff refused to treat someone, leaving them in obvious, excruciating

pain from something like a compound fracture with bone protruding through the skin, a gunshot

wound, or a severed limb. Deputy Dillard did not commit deliberate indifference by relying on

Turn Key’s medical views in the specific circumstances. No rational juror could conclude

otherwise.

Even if the Court concluded that Deputy Dillard violated the U.S. Constitution, it would

still grant summary judgment to Deputy Dillard based on the second prong of the qualified

immunity test. The Eighth Circuit explains that, “[a]t summary judgment, qualified immunity

shields a law enforcement officer from liability in a § 1983 action unless: ‘(1) the facts, viewed in

the light most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory

right; and (2) the right was clearly established at the time of the deprivation.’”105 Under Supreme

Court precedent, a right is clearly established when “‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would [have understood] that what he is doing violates that

right.’”106 To show this, the Eighth Circuit states that “[a] plaintiff need not cite a case directly on

point, but controlling authority or a robust consensus of cases of persuasive authority must have

put the statutory or constitutional question beyond debate as of the date of the alleged violation.”107

Here, Mr. Davis argues that his right to have his serious medical needs addressed by the

County Defendants was clearly established.108 True, but not dispositive. The Eighth Circuit has

made clear that, in the qualified immunity context, “[t]he dispositive question is whether the

105 Barton v. Taber, 908 F.3d 1119, 1123 (8th Cir. 2018) (quoting Howard v. Kan. City Police Dep’t, 570 F.3d 984,

988 (8th Cir. 2009)).

106 Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (brackets in original) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)).

107 Hamner v. Burls, 937 F.3d 1171, 1176 (internal quotations omitted) (quoting al-Kidd, 563 U.S. at 741–42).

108 Pl.’s Am. Br. in Opp’n to Defs.’ Mot. for Summ. J. (Doc. 42) at 23.

violative nature of particular conduct is clearly established.”109 To answer this question, the

Eighth Circuit instructs the Court to “do more than determine that the law was ‘clearly established’

in the abstract.”110 Instead, the Court must “examine the information possessed by . . . [Deputy

Dillard] . . . to determine whether, given the facts known to [her] at the time, a reasonable [jailer]

would have known that [her] actions violated the law.”111 This doesn’t mean Deputy Dillard’s

exact conduct must have been deemed unconstitutional before September 22, 2017, but it does

mean that, “in the light of preexisting law[,] the unlawfulness must be apparent.”112 To be frank,

determining the right level of fit to require of a precedent is more art than science.

Mr. Davis has not directed the Court’s attention to any on-point precedent that would have

put Deputy Dillard on notice that her actions violated clearly established law.113 The Court has

not found any either. What precedent would tell Deputy Dillard that it was unconstitutional not to

second guess the medical staff’s treatment decision concerning a sprained, dislocated, or broken

ankle?

Deputy Dillard responded immediately to Mr. Davis’s fall. She summoned Turn Key for

medical assistance. She remained on the scene while five trained medical professionals assessed

109 Hamner, 937 F.3d at 1178 (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015) (per curiam)).

110 Langford v. Norris, 614 F.3d 445, 461 (8th Cir. 2010) (quoting Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995)).

111 Id. (quoting Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996)).

112 Id. (quoting Anderson, 483 U.S. at 640).

113 Mr. Davis has marshaled cases in support of his position, but those cases are inapposite. For instance, at the motion

hearing, Mr. Davis’s counsel raised the Supreme Court’s decision in West v. Atkins, 487 U.S. 42 (1988). June 14,

2021 Hr’g Tr. at 19. Mr. Davis’s counsel aptly described the case as addressing whether a physician was acting

under “color of law” for purposes of section 1983 liability. Id. But the question answered in West has no bearing

on whether the County Defendants’ conduct here violated clearly established constitutional law. Mr. Davis’s

counsel also adverted to an unpublished district court case, Trujillo v. Corizon Health et al., No. 17-cv-1633

(PJS/ECW), 2019 WL 1409331 (D. Minn. Mar. 28, 2019). This case involved some facts that are similar to the

case at bar (namely delayed care for a broken bone), but the suit itself was against medical providers and not jailers.

Trujillo, 2019 WL 1409331, at *1. So, even if the case were binding on the Court, the factual distinctions render

this an inappropriate case for the proposition that the jailers here violated Mr. Davis’s clearly established

constitutional rights.

Mr. Davis and concluded that he could remain in his cell. Perhaps the medical personnel

negligently attended to Mr. Davis’s needs, but that negligence cannot be imputed to Deputy

Dillard.114 And even if it could, “[m]ere negligence in diagnosing or treating a medical condition

does not rise to the level of an Eighth Amendment violation.”115 Certainly, in all but the most

obvious cases, Deputy Dillard is entitled to rely on the Turn Key medical experts. And after Turn

Key returned Mr. Davis to his cell, Deputy Dillard’s involvement in Mr. Davis’s care came to an

end. There is no evidence that Deputy Dillard and Mr. Davis ever interacted in any way again, or

that Deputy Dillard had any knowledge of Mr. Davis’s subsequent treatment or nontreatment. At

most, Deputy Dillard made a mistake in trusting Turn Key staff’s initial assessment, but the Eighth

Circuit makes clear, “[o]fficials are not liable for bad guesses in gray areas; they are liable for

transgressing bright lines.”116 The Court is not convinced that the record evidence shows that

Deputy Dillard even made a bad guess.117 In any event, the Court finds that Deputy Dillard is

entitled to qualified immunity because she did not transgress a bright line. It was not clearly

established at the time of Mr. Davis’s fall (or now) that Deputy Dillard’s conduct violated the

Eighth Amendment.

114 Langford, 614 F.3d at 460.

115 Hamner, 937 F.3d at 1177; see also Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006) (stating that a one-

month delay between a nurse’s tentative diagnosis of a hand fracture and an X-ray confirming the fracture

constituted negligence and not deliberate indifference).

116 Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir.

1992)).

117 At the motion hearing, when the Court asked Mr. Davis’s counsel what Deputy Dillard should have done, Mr.

Davis’s counsel responded that Turn Key’s deficient response should have been a red flag to Deputy Dillard. June

14, 2021 Hr’g Tr. at 20–21. Mr. Davis’s counsel also said that Deputy Dillard should have reported the incident

to her supervisor. Id. at 21. Presumably, the supervisor would have done the same thing Deputy Dillard did: call

Turn Key personnel, who had already assessed and cleared Mr. Davis to return to his cell.

B. Official Capacity Claims

Mr. Davis’s official capacity claims fail for at least two independent reasons. First, as

stated above, Mr. Davis cannot establish a constitutional violation based on the record facts. And

second, assuming a constitutional violation did occur, Mr. Davis has not directed the Court to any

Pulaski County custom, policy, or practice that caused the alleged violation.

The Eighth Circuit holds that “a suit against a governmental official in his or her official

capacity is ‘another way of pleading an action against an entity of which an officer is agent.’”118

As such, Pulaski County “is the real party in interest” with respect to Mr. Davis’s official capacity

claims.119 So, Mr. Davis’s official capacity claims against the County Defendants are properly

analyzed as claims against only Pulaski County.

A county is subject to liability under § 1983 “only where a constitutional violation has been

committed pursuant to an official custom, policy, or practice.”120 This means that a plaintiff “must

show not only that a policy or custom existed, and that it was causally related to the plaintiff’s

injury, but that the policy itself was unconstitutional.”121 Said differently, an official “custom,

policy, or practice must be the moving force behind the violation.”122 The Eighth Circuit draws a

distinction between a custom and a policy.123 “[A] ‘policy’ is an official policy, a deliberate choice

of a guiding principle or procedure made by the municipal official who has final authority

118 Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007) (quoting Monell v. Dep’t of Social Services, 436 U.S. 658, 690

n. 55 (1978)).

119 Id. (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)).

120 Luckert v. Dodge County, 684 F.3d 808, 820 (8th Cir. 2012) (quoting Johnson v. Blaukat, 453 F.3d 1108, 1114

(8th Cir. 2006)).

121 Id. (quoting Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir. 1985)).

122 Id. (quoting Patzner, 779 F.2d at 1367).

123 Corwin v. City of Independence, Mo, 829 F.3d 695, 699–700 (8th Cir. 2016).

regarding such matters.”124 A custom is different. To prove that a custom exists, a plaintiff must

demonstrate:

(1) the existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s

employees; (2) deliberate indifference to or tacit authorization of

such conduct by the governmental entity’s policymaking officials

after notice to the officials of that misconduct; and (3) that plaintiff

was injured by acts pursuant to the governmental entity’s custom,

i.e., that the custom was a moving force behind the constitutional

violation.125

As an initial matter, Mr. Davis’s official capacity claims fail because the facts, even when

viewed in a light most favorable to Mr. Davis, could not lead a rational juror to find that an

underlying predicate constitutional violation occurred.126 But even if the opposite were true, Mr.

Davis still cannot survive summary judgment on his official capacity claims.

Mr. Davis’s official capacity claims task the Court with divining what, exactly, his claims

are. Mr. Davis’s Complaint fails to mention any policy, custom, or practice, let alone an

unconstitutional one.127 Outside the Complaint, Mr. Davis has not pointed to any official policy

that allegedly contributed to his injuries.128 Indeed, Mr. Davis concedes that Pulaski County has

“policies and guidelines in place to ensure the provision of healthcare services.”129 His argument

124 Id. at 700 (quoting Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir. 1999)).

125 Id. (quoting Snider v. City of Cape Girardeau, 752 F.3d 1149, 1160 (8th Cir. 2014)).

126 See Corwin, 829 F.3d at 700 (“[I]n light of our upholding the grant of summary judgment to the individual

defendants on Corwin’s underlying substantive claim, municipal liability cannot succeed as a matter of law.”).

127 See Pl.’s Compl. (Doc. 1). Mr. Davis’s Complaint alleges that “in an effort to avoid incurring [surgical medical

expenses], the defendants ‘fast-tracked’ the plaintiff to the Arkansas Department of Corrections . . . .” Id. ¶ 38.

The County Defendants address this allegation in their Brief in Support of Motion for Summary Judgment. Defs.’

Br. in Supp. of Mot. for Summ. J. (Doc. 33) at 16. Insofar as Mr. Davis is alleging that his being fast-tracked was

some kind of custom or policy, the Court notes that there is no record evidence suggesting that Pulaski County had

a widespread policy of “fast-tracking” inmates. Also, no record evidence suggests that, even if a such a custom

existed, this custom would be unconstitutional.

128 At the motion hearing, Mr. Davis’s counsel conceded that there was no official policy in the record. June 14, 2021

Hr’g Tr. at 32.

129 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 7.

is that the policies and guidelines are not followed.130 As mentioned, it is the policy itself that

must be the animating force behind a constitutional violation. If a policy is not followed, the policy

itself cannot be said to have brought about a constitutional violation. Moreover, not following a

policy is not “a policy” as the Eighth Circuit defines that term.131 So, in the absence of an official

policy, the Court turns its focus, albeit briefly, to whether Mr. Davis can point to any disputed

facts as to the existence of a custom upon which § 1983 liability can turn.

He cannot. At the motion hearing, Mr. Davis’s counsel suggested two theories as to how

Mr. Davis’s official capacity claims could proceed.132 First, Mr. Davis’s counsel stated that

Pulaski County took a hands-off approach to medical care thus providing grounds for Monell

liability.133 The Court understands this argument to mean Pulaski County has a custom of deferring

medical decisions to Turn Key. Mr. Davis, however, has not alleged (or provided admissible

evidence) that Pulaski County’s hands-off approach was a “‘continuing, widespread, persistent

pattern of unconstitutional misconduct’ in the form of denying emergency care to inmates in need

of that care.”134 At most, Mr. Davis has alleged “an isolated incident” of alleged misconduct,

which “cannot, as a matter of law, establish a municipal policy or custom creating liability under

§ 1983.”135 This theory of liability, therefore, does not provide Mr. Davis with a path to survive

summary judgment.136

130 Id.

131 See supra note 124 and accompanying text.

132 June 14, 2021 Hr’g Tr. at 25–27.

133 Id.

134 Corwin, 829 F.3d at 700 (quoting Ulrich v. Pope Cty., 715 F.3d 1054, 1061 (8th Cir. 2013)).

135 Id. (quoting Ulrich, 715 F.3d at 1061).

136 Additionally, even if Mr. Davis could establish a widespread pattern of unconstitutional conduct of which Pulaski

County was aware, no record evidence exists to establish that the unconstitutional conduct caused Mr. Davis’s

injuries. This is especially true with respect to Mr. Davis’s amputation. At most, assuming a constitutional

violation occurred, damages would be available for the pain and suffering Mr. Davis experienced between

September 22, 2017 (the date of the injury) and September 29, 2017 (the date Mr. Davis was transferred to UAMS

Second, Mr. Davis’s counsel indicated that Monell liability can be based upon Pulaski

County’s lack of a policy regarding how county personnel should react in circumstances where a

third-party medical provider fails to provide adequate care.137 The Court disagrees. As mentioned

above, “no policy” is not “a policy.” And, again, Mr. Davis has not alleged (or provided admissible

evidence) that Pulaski County’s lack of a policy is somehow unconstitutional. Lack of a policy is

also not fairly characterized as a custom. As mentioned, for a custom to be a “custom” under

Eighth Circuit precedent, it must be a “‘continuing, widespread, persistent pattern of

unconstitutional misconduct’ . . . .”138 This theory, too, does not provide a path to avoid summary

judgment here.

C. Failure to Train

Finally, Mr. Davis asserts that Pulaski County failed to train its staff to “deal with the

medical needs of its pre-trial detainees, and such failure to train amounted to deliberate

indifference . . . .”139 At the outset, the Court notes the Supreme Court’s admonition that “[a]

municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on

a failure to train.”140 With that in mind, the Supreme Court has held that a municipality can “be

liable under . . . § 1983 for constitutional violations resulting from its failure to train municipal

employees.”141 “Only where a municipality’s failure to train its employees in a relevant respect

evidences a ‘deliberate indifference’ to the rights of its inhabitants can such a shortcoming be

for treatment). June 14, 2021 Hr’g Tr. at 22–23. Mr. Davis’s counsel tacitly conceded that the state of the record

provides no causal link between any of the County Defendants’ conduct on September 22, 2017 and Mr. Davis’s

amputation, which occurred over a year later. Id. at 23.

137 June 14, 2021 Hr’g Tr. at 27.

138 Corwin, 829 F.3d at 700 (emphasis added) (quoting Ulrich v. Pope Cty., 715 F.3d at 1061).

139 Pl.’s Compl. (Doc. 1) ¶ 52.

140 Connick v. Thompson, 563 U.S. 51, 61 (2011).

141 City of Canton, Ohio v. Harris, 489 U.S. 378, 380 (1989).

properly thought of as a city ‘policy or custom’ that is actionable under § 1983.”142 The Supreme

Court has also indicated that a “pattern of similar constitutional violations by untrained employees

is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”143

Finally, the Eighth Circuit has noted that a failure-to-train claim cannot stand if unsupported by an

underlying constitutional violation.144

Again, Mr. Davis has not made out an underlying constitutional violation, so his failure-

to-train claim is fatally flawed. Moreover, Mr. Davis admits that

[a]ll deputies at the PCRDF receive training including, but not

limited to: administration of first aid; recognizing the need for

emergency care in life threatening situations; recognizing acute

manifestations of chronic illnesses; and methods of obtaining

medical assistance and referring inmates to health professionals.145

This admission directly contradicts Mr. Davis’s failure-to-train allegations. That being the case, a

reasonable juror could not find for Mr. Davis on this claim.146

142 Id. at 389.

143 Thompson, 563 U.S. at 62 (quoting Bryan Cty. v. Brown, 520 U.S. 397, 409 (1997)).

144 See Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (“Without a constitutional violation

by the individual officers, there can be no § 1983 or Monell failure to train municipal liability.”).

145 Pl.’s Resp. to Statement of Facts (Doc. 39) ¶ 8.

146 Aside from referencing another case out of the Eastern District of Arkansas, Mr. Davis has not presented a “pattern

of similar constitutional violations.” Thompson, 563 U.S. at 61. Mr. Davis referenced The Estate of Sharon

Alexander v. Pulaski Cty., Ark. in Plaintiff’s Response to Statement of Facts and at the motion hearing. Pl.’s Resp.

to Statement of Facts (Doc. 39) ¶ 7; June 14, 2021 Hr’g Tr. at 21. Those references have not provided the Court

with much information regarding that case. In any event, assuming the facts in that case indicate a constitutional

violation, that would not sway the Court because two incidents do not establish a continuous pattern of

unconstitutional conduct.

V. Conclusion

Defendants’ Motion for Summary Judgment is GRANTED in its entirety.

IT IS SO ORDERED this 8th day of July 2021.

LEE P. RUDOFSKY

UNITED STATES DISTRICT JUDGE

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