# Gilliam v. Staley

> District Court, E.D. Arkansas · September 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10006013

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** September 29, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10006013

## How later opinions describe it (automated extraction)

- holding that an inmate must produce verifying medical evidence to show detrimental effect of a delay in medical treatment to avoid summary judgment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

RICHARD GILLIAM PLAINTIFF
#209415

v. No: 4:19-cv-00593 PSH

JOHN STALEY, et al. DEFENDANTS

MEMORANDUM AND ORDER
I. Introduction
Plaintiff Richard Gilliam filed a pro se complaint pursuant to 42 U.S.C. §
1983 on August 22, 2019, and an amended complaint on October 16, 2019 (Doc.
Nos. 2 & 8). Gilliam sues Sheriff John Staley, Administrator Matthew Hodge,
Administrative Assistant Margie Grigsby, and Head of Medical Robert Lanius in
their individual capacities (the “Defendants”). Doc. No. 8 at 1-2. He alleges that
Hodge, Grigsby, and Lanius were deliberately indifferent to his serious medical
needs while he was incarcerated as a pre-trial detainee at the Lonoke County
Detention Center (“LCDC”).1 Id. at 4-7. Specifically, he claims that his lower back
pain was not adequately treated, and he was denied certain shoes for which he had a

1 Gilliam is currently incarcerated in the Arkansas Division of Corrections. See
Doc. No. 36.
medical prescription.2 Id. Gilliam also alleges that all the Defendants (including
Sheriff Staley) denied him medical care in retaliation for past grievances, medical

requests, and a PREA3 complaint he lodged against Grigsby. Id. at 6-7.
Before the Court is a motion for summary judgment, brief in support, and
statement of undisputed facts filed by the Defendants (Doc. Nos. 31-33). Although

he was notified that he must file a separate, short statement setting forth the disputed
facts that he believes must be decided at trial in accordance with Local Rule 56.1,
he did not do so. See Doc. No. 34. Instead, Gilliam filed a statement of indisputable
material facts in which he added to the facts submitted by Defendants and attached

some evidence (Doc. No. 35). Because Gilliam failed to controvert the facts set forth
in the Defendants’ statements of facts, Doc. No. 33, those facts are deemed admitted.
See Local Rule 56.1(c). Defendants’ statements of facts, and the other pleadings and

2 Gilliam also generally alleges that he and other prisoners did not receive adequate
mental health treatment at the LCDC. Doc. No. 8 at 6. This allegation does not describe
a viable constitutional claim. First, Gilliam may not bring claims on behalf of other
prisoners. Second, Gilliam does not specifically describe what mental health treatment he
believes he needed, whether or not he requested it, who denied or prevented him from
receiving treatment, and how the lack of treatment injured him. Third, Gilliam does not
allege that any of the Defendants denied him medical treatment or were otherwise involved
in providing mental health treatment at the LCDC. A defendant may not be held liable
under § 1983 unless he was personally involved in or had direct responsibility for the
constitutional violation. See Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)
(“Liability under section 1983 requires a causal link to, and direct responsibility for, the
deprivation of rights.”) (internal quotations and citations omitted).

3 PREA refers to the Prison Rape Elimination Act of 2003.
exhibits in the record, establish that the material facts are not in dispute, and
Defendants are entitled to judgment as a matter of law.

II. Legal Standard
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
proper if “the movant shows that there is no genuine dispute as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ.
P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for
summary judgment, the court must view the evidence in a light most favorable to
the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir.

2002). The nonmoving party may not rely on allegations or denials, but must
demonstrate the existence of specific facts that create a genuine issue for trial. Mann
v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party’s allegations

must be supported by sufficient probative evidence that would permit a finding in
his favor on more than mere speculation, conjecture, or fantasy. Id. (citations
omitted). An assertion that a fact cannot be disputed or is genuinely disputed must
be supported by materials in the record such as “depositions, documents,

electronically stored information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or
other materials . . .”. Fed. R. Civ. P. 56(c)(1)(A). A party may also show that a fact

is disputed or undisputed by “showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). A dispute is

genuine if the evidence is such that it could cause a reasonable jury to return a verdict
for either party; a fact is material if its resolution affects the outcome of the case.
Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes

that are not genuine or that are about facts that are not material will not preclude
summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th
Cir. 2010).
III. Facts

In support of their motion for summary judgment, the Defendants submitted
a statement of indisputable material facts (Doc. No. 33) with the following
documentary evidence attached: an affidavit by Lonoke County Jail Administrator

Kristi Flud, custodian of records for the LCDC (Doc. No. 33-1); Gilliam’s Arrest
and Booking Information (Doc. No. 33-2); Gilliam’s medical records from the
PCRDF (Doc. Nos. 54-1 & 54-2); Gilliam’s Requests and Grievances (Doc. No. 33-
3); Gilliam’s Incident Reports (Doc. No. 33-5); relevant policies of the LCDC (Doc.

No. 33-7); Gilliam’s medical records from January 4, 2018, to November 14, 2019
(Doc. No. 33-8); an affidavit by Robert Lanius (Doc. No. 33-9); an affidavit by
Margie Grigsby (Doc. No. 33-10); and an affidavit by Sheriff John Staley (Doc. No.

33-11).
Gilliam filed a response to the Defendants’ motion but did not file a separate
statement disputing their statements of facts as required under Local Rule 56.1 (Doc.

No. 35). With his response, Gilliam submitted seven statements from other inmates
stating they witnessed Gilliam having back pain (Doc. No. 35 at 6-12). However,
none of these clearly relate to the time period at issue in this lawsuit. Several are

dated in 2020 and others are not dated at all. Gilliam also submitted a medical record
from 2016, which is described below (Doc. No. 19-23).
Gilliam’s Complaint Allegations
In his amended complaint, Gilliam alleges that he began experiencing lower

back pain on August 6, 2019, while detained at the LCDC.4 Doc. No. 8 at 4-5. He
states:
On 8-6-19 at 1:45 pm I woke up with severe pain in my lower back
and wasn’t able to stand up straight without the support of others. I had
other inmates relay my need to the control tower and the following
personel showed up, Margie Grigsby, administrative assistant, OIC
Devore, OIC Steffen, Transportation officer Rice, and maintenance
man William Shipp. The OIC Devore did not have the key to the
padlocks on my door readily accessable in which caused further delay
of the medical treatment that I was in need of. When the staff did get in
to my cell the quickly brushed off why they had been called in there,
and began to shake down my cell. At this time they confiscated the
shoes that was approved just days before. I was on the floor, verbally

4 Gilliam was arrested and booked into the LCDC on December 25, 2017. Doc.
No. 33-2, Arrest and Booking Information, at 1.

protesting and asked if I would get medical attention and was informed
that they did not think it to be a serious medical condition.5

Id. He claims he did not see a doctor until a week later and never received x-rays or
a cat scan because Hodge, Grigsby, and Lanius did not believe his back pain was a
serious medical condition.6 Id. at 5. He further claims that Grigsby denied him
treatment after he reported her for a PREA violation, and that Hodge, Lanius, and
Sheriff Staley denied him medical treatment in retaliation for submitting grievances
and medical requests. Id. at 6-7.

Gilliam’s Relevant Requests/Grievances
At 3:53 p.m. on August 6, 2019, Gilliam submitted a medical request stating:
On 8-6-19 I notified staff members that I was having lower back pain.
Five deputies showed up to my cell who are unqualified to make a
medical judgment. I find it to be very disturbing that there is not
adequate medical staff here to deal with medical issues. I am crawling
around on the floor just to get up and use the bathroom & get trays. I
was standing at the door talking at an inmate to get the medical request
and fell down to the ground with sharp pain in my lower back. I am
hurting bad.

5 All quotations are transcribed verbatim without any corrections for misspellings
or mistakes.

6 Gilliam also noted in his amended complaint that his hands had been injured by
deputies. Doc. No. 8 at 5. It is not clear whether he is complaining about not receiving
x-rays and a cat scan for his hand injury or his back. The record in this case shows that
after Gilliam filed his initial complaint in this case in August 2019, his hands were
injured in September 2019. That injury is the subject of a separate lawsuit, Gilliam v.
Devore, et al., No. 4:19-cv-00704-BRW.
Doc. No. 33-3, Requests and Grievances, at 6. On August 8, 2019, Grigsby
responded by stating, “You will be placed on medical list.” Id.

Later, on August 6, 2019 at 3:59 p.m., Gilliam submitted a written grievance
stating:
On 8-4-19 my wife dropped off a pair of brand new black nike air max,
that she was given the ok by Lanius who is head of medical, after
pulling all of my medical records from pulaski. He authorized me
having a soft shoe pad, just like I have at every other facility. I was
having real bad back pain on 8-6-19 which caused deputies to come
into my cell. It appeared they were more worried about the materialistic
things in my cell rather than my health. I have still not received any
medical help.

Id. at 7. On August 9, 2019, Hodge responded by stating, “Your shoes are not a soft
shoe pad, and are not medical in nature. You will be seen by the Dr. on 08/13/2019.”
Id. Gilliam submitted a lengthy appeal, stating:
Please help me understand, how I can put in a medical request on 8-6-
19 about a slipped disk in my back that yall are laughing about here and
not receive any medical attention. Failure to provide sick calls every
day to inmates with serious needs such as a slipped disk in my back is
a violation of the united states constitution. And now you are telling me
I have an appointment on the 13th when You came in on the 8th at
10:16 AM with unnecessary aggressiveness. You told me that I would
be seeing the doctor on the 9th, is another one of your good lies. The
fact that I am not able to get up out of my bed in a timely manner to get
meds or trays or stand up straight to use the bathroom shows me what
I have been thinking and feeling the whole time. Unessessary
discrimination based on charges, skin color and personality. I dont care
what yall think about me but denying me medical attention is
unacceptable. And as far as the shoes, my wife spoke with Lanius on
the 2nd and okd the soft shoe pads from pulaski, forrest city, seagulville
texas, fort worth texas, and beaumont texas are all the places that I have
had a soft shoe pad. Lanius called and verified with Pulaski and gave
my wife the ok to bring the Nike air max but I still had to
take out the shoe strings. She accidently left the price tag in the shoe
which caused a bunch of disturbance in the jail. Deputies said that they
had to work 48-55 hours to afford shoes like that. That is not my
problem. The fact that someone can override Lanius being over medical
shows me that someone is going out of their way to discriminate on me
and my medical needs. On the 6th, when Margie, Ship, Rice, Devour,
and Stephen come into my cell when I was complaining about back
pain, the first thing they looked at my shoes. Not considering the fact
that I had back pain, they were more concerned about my shoes and
threatened to take them off my feet. Like I told Margie on the 8th at
10:11 when we were arguing, right before yall stormed in here
aggressively for no reason, 90 percent of the jail has tennis shoes on.
On the 1st, I witnessed OIC devour bring in two white men with tennis
shoes, one with shoe strings. I dont see nobody taking theirs. . . .

Id. at 7-8. On August 16, 2019, Sergeant J. Hall responded to the appeal by stating,
“If medical or orthopedic shoes are needed, they can be purchased off of
commissary. We are currently in the process of removing any non medical sneaker
type shoes from inmates.” Id. at 8.
On August 7, 2019, Gilliam submitted a medical request stating:
On 8-6-19 at 2:15 PM, I slipped a disk in my back and have yet to
receive any proper medical attention. I have been crawling on the floor
to use the bathroom. I cannot sit down to take a sh*t. Margie and 4
deputies showed up who have no medical experience to properly deal
with issues such as this. Margie was contacted last night at 8:30 PM by
the OIC He explained to her that I was in bad pain. She told me to put
in a sick call. I consider this issue to be a serious matter & harmful to
my health.

Id. at 10. On August 8, 2019, Grigsby responded by stating, “received.” Id.
On August 8, 2019, Gilliam filed a PREA request claiming that Grigsby
sexually assaulted him the night before.7 Id. at 11. The same day, he submitted a

grievance, stating:
-Filing on 2 days worth of medical requests about my back, left
unanswered while I am in severe pain and suffering, barely able to walk
around.
-Excessive force used to lock me down when I wasn’t asked today,
several armed deputies used at taser point on me, bein discriminated
against. -shoes being taken after I received a script for shoes and not
returned. -Margie states she can come in my cell by herself anytime to
do whatever she wants, and laughed at my hurt back.

Id. at 12. On August 9, 2019, Hodge responded by stating: “You will be at the
08/13/2019 Medical call. You told OIC Berryman that you were not
going to lock down, and no armed deputies were in this jail. Margie can search your
cell at anytime in accordance with Jail Standards and Policy.” Id. Gilliam filed an
appeal discussing his allegations against Grigsby. Id.
On August 9, 2019, Gilliam submitted a medical request stating:
The fact that the entire jail staff knows that my back is hurt and they are
laughing about it, and they are refusing me medical attention, is clearly
discrimination. Prison officials are obligated under the 8th amendment
to provide prisoners with adequate medical care. This principle applies
regardless of whether the medical care is provided by governemental
employees or by private medical staff provided by the government.
Hodge said yesterday that I would be seeing the doctor today and I
haven’t

7 Gilliam filed a separate lawsuit concerning his allegations that Grigsby sexually
assaulted him. See Gilliam v. Grigsby, No. 4:19-cv-00772-BSM-JTK.
Id. at 14. On August 13, 2019, Lanius responded by stating, “You were seen by the
doctor today and she has ordered that you get an X-ray on your lower back. I am

getting the X-ray scheduled for you.” Id.
Later on August 9, 2019, Gilliam submitted another inmate grievance stating:
Attention Mr. Hodge: I am in even more serious pain in my back now,
then I did on the 6th when I put in my medical request. You told me
yesterday, when you put the taser on me that I would have a doctor visit
today. Why are yall denying me medical care? I heard from one of the
guards that my back pain to Margie is not a serious medical condition.
Yall are depriving me of medical attention. And the officials laughing
at me while I am in pain, I consider to be racism and unprofessional.

Id. at 15. On August 12, 2019, Hodge responded to the grievance by stating, “I nor
any other deputy did not put a taser on you. No one is denying you medical care.
You have been added to the Dr. call list for Tuesday 08/13/2019.” Id. Gilliam then
submitted an appeal in which he complained about multiple issues, including not
being seen in sick call for his back pain on August 9 and Lanius taking his shoes.
Id.
On August 10, 2019, Gilliam submitted an inmate grievance stating:
To Sgt Hall: As far as my back and the medical. They came and got a
guy out of F5 and took him to medical and coincidently looked over me
and denied me medical after numerous request for medical assistance.
Thursday Hodge told me that I would be seeing the doctor on Friday
the 9th. Then came back Friday afternoon and told me that it would be
on Tues the 13th which would be four days later. Why am I being
denied adequate professional medical care? Why was I looked over on
the doctor call Friday?
Id. at 17. On August 16, 2019, Sergeant J. Hall responded to the grievance by
stating, “After speaking with the staff after the fact, I learned the list was made and

you were put on the next available list. I can assure you that you will be receiving
medical care as quickly as possible.” Id. Gilliam appealed on August 19, 2019,
stating, in relevant part,

. . . I went to the doctor on the 13th, paid the doctor, and got some
ibuprofen. I have yet to receive any x-rays. On top of that, I am on
suicide watch, sleeping on a cold concrete slab and my back still hurts.
It has got to be about 30 degrees in here. On top of that my feet have
swollen up, I have fluid on my ankles. They done took my shoes and
all these white boys run around with theirs still. . . .

Id. Hodge responded the same day, stating, “I will look into why your xrays have
not been ordered yet, and the trustee’s have shoes due to their jobs. When they are
not trustee’s they do not get shoes. This is no discrimination nor racial profiling.”
Id.
From August 11 until he filed this lawsuit on August 22, 2019, Gilliam
submitted an additional 21 requests or grievances. See Doc. No. 33-3 at 18-43. He
mentioned back pain in the appeal of one of those grievances. Specifically, in his
appeal dated August 19, 2019, concerning a grievance about discrimination and
racial profiling, Gilliam stated, “I am still in pain with fluid around my ankles and
waiting on xrays I have yet to receive for my injured back. But I HAVE received a
BILL from yall! You are quick to take my money but SLOW to give me the help I
need.” Id. at 36. During this time period, Gilliam complained about his shoes twice:
on August 12 and 14, 2019. Id. at 20 and 22. However, in both these instances, he
did not complain that he had a medical need for his shoes, but that white inmates

were allowed to keep their shoes while he was not due to his race. Id.
Between August 23, 2019, and October 16, 2019, when Gilliam filed his
amended complaint, he filed an additional 56 requests or grievances. Of those, three

mentioned back pain. On September 5, 2019, Gilliam submitted a request, stating,
I was taken for a sick call on the 13th of the month for a slipped disk on
my back. I had drs orders to get xrays and I never got them. I am still
in pain. I was charged for this. And I have yet to receive what I paid
for. I also gave Lanius a packet of filled out paperwork, for my mental
health visit. I also asked him about the blood that was drawn from my
arm and I have never received the results from. Quick to take money,
but slow to produce. This is pitiful.

Id. at 68. On September 17, 2019, he requested a doctor’s visit, stating, “I am still
needing to be seen by the doctor. My hands are still causing me pain, my feet are
still swelling, and my lower back is starting to cause daily pain and issues with my
daily routine. . . .” Id. at 86. On September 22, 2019, Gilliam put in a request
complaining about multiple health issues, including back pain. Id. at 94.
Gilliam’s Medical Treatment at the LCDC
Before Gilliam claims he experienced severe back pain on August 6, 2019, he
was seen by ARCare medical providers for an examination of his right hand
following an altercation on January 4, 2018; for an x-ray of his right hand on January
5, 2018; and to obtain medications on June 11, 2019, and July 29, 2019. Doc. No.
33-8, Gilliam’s ARCare Medical Records, at 13-17. No back problems were noted
at any of these encounters. Id.

On August 13, 2019, Gilliam was seen by APRN Kristina Dulaney with
ARCare medical services for medication and lower back pain. Id. at 12-13. The
nurse examining Gilliam noted that that he said he bent over to pick something up

and his back “locked up.” Id. She also noted that he reported having problems with
his lower back in the past. Id. Gilliam denied numbness or tingling of extremities,
and the nurse noted he had a steady gait with no limping. Id. She also noted that
Gilliam’s back was normal with no apparent malformation or tenderness. Id. APRN

Dulaney prescribed ibuprofen and prednisone and ordered an x-ray of Gilliam’s
lower spine. Id.
Gilliam was examined by APRN Kristin Wood on September 9, 2019, for an

injury to his hands that he sustained on the prior Saturday when his hands were shut
in his cell’s trap door. Id. at 10. He also complained of pain and swelling in his feet
and chest pain associated with asthma but denied any other symptoms. Id. His
musculoskeletal system and gait and stance were noted as normal. Id. at 11. He was

prescribed ibuprofen again along with several other medications. Id.
On September 23, 2019, APRN Wood examined Gilliam. Id. at 8. His chief
complaint was listed as medications, but he also complained about pain in his hands

and lower back. Id. His musculoskeletal system and gait and stance were noted as
normal. Id. at 9. APRN Wood discontinued Gilliam’s prescription for ibuprofen
noting that it was ineffective. Id. Her plan for Gilliam’s back pain included rest,

ice, no twisting or heavy lifting, and use of a lumbar support belt. Id. Gilliam was
also instructed to seek additional medical help if his condition worsened. Id.
APRN Wood examined Gilliam again on October 8, 2019, for his complaints

relating to his blood pressure. Id. at 6. He also complained about his hands and a
rash on his feet. Id. His lower backache was listed as a current condition/problem.
Id. His musculoskeletal system and gait and stance were noted as normal. Id. at 7.
APRN Wood listed plans for treating Gilliam’s hypertension, right hand pain, and

athlete’s foot (tinea pedis). Id. Gilliam was examined and treated by Dr. Edward
Merritt the following day for hand pain. Id. at 4.
Gilliam refused a scheduled follow-up appointment for his blood pressure on

October 22, 2019. Id. at 3. Gilliam was seen by PAC David L. Brightwell on
November 14, 2019, for tooth pain. Id. at 1. He was prescribed several medications,
including prednisone and ibuprofen at this visit, and referred to a dentist. Id. at 2.
Gilliam’s 2016 Medical Record

Gilliam submitted a copy of a medical record from November 2016 showing
that he received treatment for a back injury in the emergency department at Baptist
Hospital in Little Rock. Doc. No. 35 at 19-23. Gilliam reported a sore back after

hand digging a grave. Id. at 22. The physician who examined him stated:
Patient presents with myofascial discomfort in his lower back. This is
completely atraumatic and I do not believe x-rays are warranted in this
situation. He will be given a pain shot now and started on a Medrol
Dosepak as well as Lortab and Zofram. He will see his primary care
physician tomorrow to discuss physical therapy and return immediately
if worse.

Id. at 21.
LCDC Incident Reports
The Defendants submitted incident reports concerning Gilliam dated from
May 2018 to October 2019. Those reports show that Gilliam refused his medications
on August 10, August 21, August 26, August 28-29, September 3, September 9,
October 17, October 20, October 22-23, and October 27-28, 2019. Doc. No. 33-5 at
1-3. Several disciplinary issues were described, including one fight with inmate
Robert Smith on August 21, 2019. Id. The only reference to Gilliam suffering back
pain was made on August 14, 2019. Id. at 3. In that report, Lanius stated: “Here is
an update on Richard Gilliam. The ibuprofen and prednisone is alleviating the
pressure in his back. Gilliam is still having issues getting up & down with twitching

in his lower back as well as pains going down his legs.” Id.
Defendants’ Affidavits
According to his affidavit, Lanius served as medical liason for the LCDC in

August 2019. Doc. No. 33-9, Affidavit of Robert Lanius, at ¶1. In that role, he was
responsible for reviewing medical requests submitted by detainees and arranging for
treatment by medical or dental providers. Id. at ¶2. He also arranged for the refill
and distribution of prescribed medications for detainees. Id. Providers with ARCare
conducted medical call twice per week for non-emergency medical needs while any

inmate with emergency medical needs was transported to the nearest available
emergency room. Id. at ¶5.
Lanius was not present on August 6, 2019, when Gilliam has alleged that his

back pain began. Doc. No. 33-9 at ¶10. He claims that he communicated with
Gilliam about his medical issues on a regular basis and responded to each of
Gilliam’s requests for medical treatment by scheduling an appointment with a
medical provider to evaluate and treat his complaints. Id. at ¶11-12. Lanius claims

that he never witnessed Gilliam unable to stand or walk in the days and weeks
following his initial back complaints. Id. at ¶ 13. He also explains that ARCare
ordered x-rays and any other diagnostic tests and would schedule those tests if they

were deemed necessary. Id. at ¶8. Lanius explains that he had no authority to decline
any treatment ordered by a provider. Id. at ¶9.
Regarding Gilliam’s shoe complaints, Lanius explained that inmates were
only allowed to wear the shoes issued by the LCDC unless a medical provider

directed that an inmate wear special shoes for medical reasons. Id. at ¶6. He stated
that Gilliam had no such orders for the Nike shoes he requested. Id. at ¶7.
Sheriff Staley also avers that he was not present during the incident on August

6, and did not become aware of Gilliam’s complaints of back pain until this lawsuit
was filed. Doc. No. 33-11, Affidavit of Sheriff Staley, at ¶¶ 4, 7. Sheriff Staley
claims he would not normally be made aware of such complaints as he does not

personally handle inmate’s medical requests and relies on his chain of command
headed by Jail Administrator Kristi Flud to handle such matters. Id. at ¶¶2-3.
According to Grigsby’s affidavit, she served as LCDC’s assistant

administrator at the time Gilliam complained of lower back pain. Doc. No. 33-10,
Affidavit of Margie Grigsby, at ¶ 2. In that role, she may have collected medical
requests and given them to the medical liason. Id. She was present on August 6 and
recalls that Gilliam’s only complaint was lower back pain and that he was not

bleeding or suffering any apparent serious or emergent medical need. Id. at ¶¶4-5.
Regarding the incident, Grigsby states:
Other than his statements of pain, there was no visual indicators that he
was unable to walk or stand. He was directed to place a request for sick
call on the kiosk so that he could be evaluated by a medical provider at
the next available visit. While we were present in the cell, it was
noticed that he had designer tennis shoes in his cell which did not
appear to be medically prescribed shoes. Those shoes were confiscated
at that time.

Id. at ¶4. Grigsby also states that she never witnessed Gilliam unable to stand or
walk in the days and weeks following his initial back complaints. Id. at ¶7.
IV. Analysis
Defendants argue that they are entitled to qualified immunity with respect to
Gilliam’s claims because he cannot establish a constitutional violation. Qualified
immunity protects government officials from liability for damages “insofar as their
conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person [in their positions] would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is a question of law and
is appropriately resolved on summary judgment. McClendon v. Story County

Sheriff’s Office, 403 F.3d 510, 515 (8th Cir. 2005); Mitchell v. Forsyth, 472 U.S.
511, 526 (1985).
To determine whether a defendant is entitled to qualified immunity, the Court
must consider two questions: (1) do the facts alleged by plaintiff establish a violation

of a constitutional or statutory right; and (2) if so, was that right clearly established
at the time of the defendant’s alleged misconduct. Wright v. United States, 813 F.3d
689, 695 (8th Cir. 2015). Courts may exercise “their sound discretion in deciding

which of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances of the particular case at hand.” Pearson v. Callahan,
555 U.S. 223, 236 (2009).
A. Deliberate Indifference

Gilliam claims that Defendants Lanius, Grigsby, and Hodge were deliberately
indifferent to his serious medical needs by not allowing him to keep certain Nike
tennis shoes and by not adequately treating his back pain. Doc. No. 17 at 6-7.

Pretrial detainees’ claims are evaluated under the Fourteenth Amendment’s Due
Process Clause rather than the Eighth Amendment. See Hartsfield v. Colburn, 371
F.3d 454, 457 (8th Cir. 2004). Pretrial detainees are entitled to at least as much

protection under the Fourteenth Amendment as under the Eighth Amendment. See
id. (citing Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 906 (8th Cir.
1999)); see also Davis v. Hall, 992 F.2d 151, 152–53 (8th Cir. 1993) (per curiam)

(applying deliberate indifference standard to pretrial detainee’s claims of inadequate
medical care).8 To succeed with an Eighth Amendment inadequate medical care
claim, a plaintiff must allege and prove that: (1) he had objectively serious medical
needs; and (2) prison officials subjectively knew of, but deliberately disregarded,

those serious medical needs. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997). Additionally, the Eighth Circuit has held that a “prisoner must show more
than negligence, more even than gross negligence, and mere disagreement with

treatment decisions does not rise to the level of a constitutional violation.” Estate of
Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995).

8 In Spencer, the Eighth Circuit explained that it had never articulated an exact
standard for evaluating medical treatment claims brought by pretrial detainees. 183 F.3d
at 905. The Court acknowledged that pretrial detainees’ claims may be subject to an
objective reasonable test rather than the subjective deliberate indifference standard. Id.
The Eighth Circuit addressed this issue again in Bailey v. Feltmann, 810 F.3d 589, 593
(8th Cir. 2016), where it declined to address the proper constitutional standard
unnecessarily, but noted that when that case was decided it was not clearly established
that a pre-trial detainee was entitled to more protection than that provided by the Eighth
Amendment.
1. Shoes
Lanius provided affidavit testimony that Gilliam had no medical orders for

the Nike shoes he wanted to keep. Doc. No. 33-9 at ¶ 7. In response, Gilliam has
produced no evidence, such as a prior prescription, to prove that he required special
shoes for medical reasons. Gilliam’s medical records do not indicate that he

requested a prescription for orthopedic shoes at any of his medical encounters while
he was incarcerated at the LCDC. See Doc. No. 33-8. Further, he does not describe
any specific medical condition requiring special shoes in his amended complaint or
the grievances he filed regarding the shoes. See Doc. No. 8; Doc. No. 33-3 at 7-8,

12, 17, 20 & 22. Although Gilliam claimed he had a prescription for soft sole shoes
at prior institutions, the responses to his grievances made clear the shoes that were
taken were not medical or orthopedic but were designer Nike shoes which inmates

were not allowed to have. Because there is no evidence that Gilliam had a serious
medical need for special shoes, Grigsby, Hodge, and Lanius are entitled to summary
judgment on this claim.
2. Back Pain

Defendants Grigsby, Hodge, and Lanius are also entitled to summary
judgment on Gilliam’s deliberate indifference claim regarding the treatment of his
back pain. Gilliam has come forward with no evidence to show that his back
problems were sufficiently serious to warrant emergency treatment or that any delay
in treatment of his back pain worsened his condition.

First, there is no indication that Gilliam had a preexisting back injury or
chronic condition. His medical record from 2016 merely shows that he went to the
hospital complaining of back pain; the treating physician noted it was an atraumatic

injury that did not warrant x-rays. Doc. No. 35 at 19-23. Additionally, there is no
evidence Gilliam complained of back issues while he was incarcerated at the LCDC
before he injured his back on August 6, 2019. See Doc. No. 33-8 at 13-17.
Second, there is also no evidence that Gilliam suffered a medical injury on

August 8, 2019, warranting emergency medical treatment. Grigsby is the only
defendant who was present on August 6, when Gilliam first complained of back pain.
She testified in her affidavit that she saw no visual indicators that he was unable to

walk or stand or required emergency medical treatment. See Doc. No. 33-10 at ¶¶
4-5. Gilliam has not produced any medical records or expert opinion testimony to
establish that he suffered from an emergency medical condition on August 6
warranting immediate medical treatment or transfer to a hospital.9 Without such

9 There is no indication that Gilliam had a need for emergency medical treatment or
treatment related to his back pain that would be obvious to a layperson. See Williams v.
Whitfield, No. 2:09CV00100 JLH/BD, 2010 WL 4792146, at *2 (E.D. Ark. Nov. 17, 2010)
(quoting Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir.1999) (“‘[W]e have repeatedly
emphasized that the need or the deprivation alleged must be either obvious to the lay person
or supported by medical evidence, like a physician’s diagnosis.’”) (emphasis in original).
testimony, a jury would have to resort to speculation and conjecture to determine
whether Gilliam had serious medical needs that Grigsby, Hodge, or Lanius

deliberately disregarded.
Third, Grigsby, Hodge, and Lanius were responsive to Gilliam’s complaints
of back pain. Gilliam complained about his back every day from August 6 through

August 10, and he was repeatedly informed by Grigsby, Hodge, Lanius, and others
that he would be seen by a provider as soon as possible. Gilliam was examined by
a medical provider one week later, on August 13, 2019. See Doc. No. 33-8 at 12-
13. APRN Kristina Dulaney noted that Gilliam had a steady gait with no limping

and his back appeared normal with no malformation or tenderness. Id. She
prescribed prednisone and ibuprofen and ordered an x-ray of Gilliam’s lower spine.
Id. Although it appears he never received the x-ray, there is no evidence that Grigsby,

Hodge, or Lanius had any involvement in any decision not to take an x-ray. In fact,
Lanius provided affidavit testimony that as medical liason, he had no authority to
decline any treatment ordered by a provider. See Doc. No. 33-9 at ¶9.
Finally, Gilliam has produced no evidence to establish that the one-week

delay between his injury on August 6 and his treatment by APRN Dulaney on August
13 caused any detrimental effect or injury. See Laughlin v. Schriro, 430 F.3d 927,

Lanius and Grigsby testified in their affidavits that they never witnessed Gilliam unable to
stand or walk following his complaints of back pain. Doc. Nos. 33-9 & 33-10.
929 (8th Cir. 2005) (quoting Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir.
1997) (holding that an inmate must produce verifying medical evidence to show

detrimental effect of a delay in medical treatment to avoid summary judgment).
Indisputably, Gilliam has not provided any verifying medical evidence that any
delay in medical treatment caused him any specific physical injury. His requests

and grievances show that he only occasionally complained of back pain after he was
seen by APRN Dulaney on August 13. See Doc. No. 33-3 at 18-107. Three days
later, on August 16, Lanius reported that the ibuprofen and prednisone had alleviated
pressure in Gilliam’s back, but Gilliam was still experiencing some pain and trouble

getting up and down. Doc. No. 33-5 at 3. In a total of 73 grievances or requests
filed after August 13, Gilliam complained about his back just four times. Doc. No.
33-3 at 36, 68, 86 & 94.

Furthermore, Gilliam’s medical records following the August 13 examination
by APRN Dulaney do not show that he suffered serious ongoing back problems. On
September 9, 2019, Gilliam made no complaints regarding his back during an
appointment with APRN Kristin Wood. Doc. No. 33-8 at 10. He was treated for his

back pain again on September 23, when Wood recommended rest, ice, no twisting
or heavy lifting, and use of a lumbar support belt. Id. at 9. And he was seen for
other issues on several subsequent occasions. Id. at 1-7. While his back pain was

sometimes listed as a current condition/problem, his gait and stance were always
listed as normal. Id. There is simply no evidence that Gilliam suffered a serious
ongoing back injury that was made worse by an initial delay in treatment.

For these reasons, Gilliam fails to create a genuine dispute of material fact
with respect to his deliberate indifference claims against Grigsby, Hodge, or Lanius,
and they are entitled to summary judgment on these claims.

B. Retaliation
Gilliam also asserts that he was denied medical treatment by all the
defendants, including Sheriff Staley, in retaliation for grievances and a PREA
complaint he made against Grigbsy.

To succeed on a § 1983 retaliation claim, a plaintiff must prove: (1) that he
engaged in a protected activity; (2) that the government official took adverse action
against him that would chill a person of ordinary firmness from continuing the

activity; and (3) that the adverse action was motivated at least in part by the exercise
of the protected activity. Gonzalez v. Bendt, 971 F.3d 742, 745 (8th Cir. 2020);
Spencer v. Jackson Cnty., 738 F.3d 907, 911 (8th Cir. 2013). Speculative and
conclusory, or de minimis allegations cannot support a retaliation claim. See

Atkinson v. Bohn, 91 F.3d 1127, 1129 (8th Cir. 1996) (per curiam). A plaintiff must
also prove a causal connection between the constitutionally protected activity and
the adverse action. Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004). Temporal

proximity between a protected activity and an adverse action “is relevant but not
dispositive.” Wilson v. Northcutt, 441 F.3d 586, 592 (8th Cir. 2006) (citing Kiel v.
Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999)).

Gilliam’s allegations of retaliation are at best speculative and conclusory, and
could be dismissed for that reason alone. However, these claims fail for a number
of other reasons as well.

First, as the Court has already explained, there is no evidence that Gilliam was
denied medical treatment by Grigsby, Hodge, or Lanius. Further, Sheriff Staley has
submitted an affidavit testifying that he was not involved in the day-to-day
operations of the jail and was unaware of Gilliam’s complaints until the lawsuit was

filed. See Doc. No. 33-11. Gilliam has come forward with no proof to show
otherwise. There is simply no evidence that Gilliam suffered any adverse action as
a result of the grievances he filed or the PREA complaint against Grigsby.

Second, even if the one-week delay in treatment were considered an adverse
action, Gilliam has not shown that it was sufficient to deter him from filing future
grievances or complaints. “The ordinary-firmness test is designed to weed out trivial
matters from substantial violations of the First Amendment.” Gonzalez, 971 F.3d at

744 (citing Santiago, 707 at 992). “‘The test is an objective one, not subjective. The
question is.... [w]hat would a person of ‘ordinary firmness’ have done in reaction to
the [adverse action]?’” Id. (quoting Garcia v. City of Trenton, 348 F.3d 726, 729

(8th Cir. 2003)). While the test is an objective one, “how the plaintiff acted might
be evidence of what a reasonable person would have done.” Garcia, 348 F.3d at
729. See Gonzalez, 971 F.3d at 745 (considering plaintiff’s actions in response to

the alleged retaliation as evidence of what a person of ordinary firmness would have
done and affirming grant of summary judgment); Naucke v. City of Park Hills, 284
F.3d 923, 928 (8th Cir. 2002) (noting that plaintiff continued to exercise her First

Amendment rights despite the retaliatory acts of the defendants).
The Court has considered Gilliam’s actions in continuing to file requests,
grievances and lawsuits as evidence of what a person of ordinary firmness might do.
Between August 6 and October 14, 2019, Gilliam filed 86 requests or grievances, in

which he complained about a multitude of issues at the LCDC. See Doc. No. 33-3
at 6-107. Gilliam has also filed 13 lawsuits against defendants working at the LCDC
since he filed this lawsuit: Gilliam v. Hodge, 4:19-cv-00682-KGB; Gilliam v. Staley,

et al., 4:19-cv-00711-BD; Gilliam v. Lanius, et al., 4:19-cv-00721-DPM; Gilliam v.
Steffen, et al., 4:19-cv-00740-BSM; Gilliam v. Staley, et al., 4:19-cv-00769-BSM;
Gilliam v. Grigsby, 4:19-cv-00772-BSM; Gilliam v. Smith, et al., 4:19-cv-00779-
BRW; Gilliam v. Smith, et al., 4:19-cv-00758-LPR; Gilliam v. Lanius, et al., 4:20-

cv-00764-JM; Gilliam v. Lopez, et al., 4:19-cv-00792-BSM; Gilliam v. Smith, et al.,
4:20-cv-00801-KGB; Gilliam v. Berryman, et al., 4:20-cv-00926-LPR; Gilliam v.
Hodge, 4:20-cv-01053-KGB. Under all of the circumstances presented, the Court
finds a brief delay in medical treatment would not chill a person of ordinary firmness
from continuing to exercise his First Amendment rights.

Third, even if a minor delay in treatment might have chilled an ordinary
person’s actions, Gilliam has failed to establish that the alleged adverse action was
motivated at least in part by the exercise of the protected activity. Simply put,

Gilliam has not provided evidence that any of the Defendants acted with a retaliatory
motive. To succeed on a retaliation claim, a plaintiff must provide affirmative
evidence of a retaliatory motive. See Haynes v. Stephenson, 588 F.3d 1152, 1157
(8th Cir. 2009); see also Wilson, 441 F.3d at 592 (“[Plaintiff’s] belief that

[defendant] acted from a retaliatory motive is insufficient.”). Any temporal
relationship between protected speech and an adverse action, without more, fails to
establish a retaliatory motive. And Gilliam has failed to provide “more” with respect

to his claims against the Defendants. They are entitled to summary judgment on his
retaliation claims.
V. Conclusion
The Defendants are entitled to qualified immunity because Gilliam has not

established that his constitutional rights were violated. Accordingly, Defendants’
motion for summary judgment (Doc. No. 31) is granted, and Gilliam’s claims are
dismissed with prejudice.
DATED this 29th day of September, 2021.

UNITED STATES □□ JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10006013. Public record. Not legal advice.