Mosier v. Gober

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

MARK MOSIER, PLAINTIFF

ADC #658749

v. 4:22CV00999-JTK

MARK GOBER, et al. DEFENDANTS

ORDER

On June 15, 2023, Defendants Mark Gober and Susan Potts (collectively, “Defendants”)

filed a Motion for Summary Judgment on the merits of Plaintiff’s claims, together with a Brief in

Support and Statement of Undisputed Facts. (Doc. Nos. 36-38).

On June 20, 2023, the Court directed Plaintiff to respond to Defendants’ Motion within

thirty (30) days. (Doc. No. 39). The Court advised Plaintiff that he must file a separate

Statement of Disputed Facts that lists any disagreement Plaintiff has with the specifically

numbered factual assertions contained in Defendants’ Statement of Undisputed Facts, and any

other disputed facts he believes must resolved at a hearing or trial. (Id. at 1-2).

Plaintiff filed his Response on June 29, 2023. (Doc. No. 40).

For the reasons set out below, Defendants’ Motion (Doc. No. 36) is GRANTED. 1

Plaintiff’s claims against Defendants are DISMISSED with prejudice, and Plaintiff’s embedded

Motion to Appoint Counsel (Doc. No. 40) is DENIED as moot.

I. Plaintiff’s Complaint

Plaintiff filed his Complaint on October 13, 2022; he sued Defendants in their personal and

official capacities. (Doc. No. 2). Plaintiff was booked into the Drew Count Detention Center

1 The parties consented to the jurisdiction of a United States Magistrate Judge to conduct

all proceedings and order the entry of a final judgment. (Doc. No. 11).

(“Detention Center”) on August 9, 2022. (Id. at 4). From that day, Plaintiff had requested to

go to the doctor and to the dentist. (Id.). When Plaintiff asked Defendant Potts about seeing

the doctor, Defendant Potts responded that “they do not have any transport to take anyone to the

doctor.” (Id.). On October 1, 2022, Plaintiff almost had a stroke. (Id.). His blood pressure

that day was 202/189. (Id.). Plaintiff was taken to the hospital on October 2, 2022, and on went

back to the hospital on October 4, 2022. (Doc. No. 2 at 4). As of October 6, 2022, Defendant

Potts had not scheduled a doctor’s appointment for Plaintiff. (Id. at 5). On October 7, 2022,

Plaintiff went to the doctor, but the C.O. on duty from 6:00 to 6:00 would not give Plaintiff his

medication—800 mgs IBP—or check Plaintiff’s blood pressure. (Id.). Defendant Potts denied

Plaintiff his Atorvastatin from August 9, 2022 until October 11, 2022. (Id. at 6). Plaintiff seeks

damages, among other relief. (Id. at 7).

II. Summary Judgment Standard

Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate if the record shows

that there is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. See Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997). “The moving party

bears the initial burden of identifying ‘those portions of the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, which it believes

demonstrate the absence of a genuine issue of material fact.’” Webb v. Lawrence County, 144

F.3d 1131, 1134 (8th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (other

citations omitted)). “Once the moving party has met this burden, the non-moving party cannot

simply rest on mere denials or allegations in the pleadings; rather, the non-movant ‘must set forth

specific facts showing that there is a genuine issue for trial.’” Id. at 1135. Although the facts are

viewed in a light most favorable to the non-moving party, “in order to defeat a motion for summary

judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine

dispute over those facts that could actually affect the outcome of the lawsuit.” Id.

In addition, “[a]ll material facts set forth in the statement (of undisputed material facts)

filed by the moving party...shall be deemed admitted unless controverted by the statement filed by

the non-moving party . . . .” Local Rule 56.1, Rules of the United States District Court for the

Eastern and Western Districts of Arkansas. Failure to properly support or address the moving

party=s assertion of fact can result in the fact considered as undisputed for purposes of the motion.

FED. R. CIV. P. 56(e).

III. Facts and Analysis

Plaintiff alleged deliberate indifference to his serious medical needs.

A. Personal Capacity Claims—Deliberate Indifference to Serious Medical Needs

Plaintiff indicated that at the time of the events giving rise to this lawsuit, he was serving

a sentence as a result of a judgment of conviction. (Doc. No. 2 at 3). Because Plaintiff is a

convicted prisoner, his claims fall under the Eighth Amendment.

The Eighth Amendment prohibits cruel and unusual punishment. U.S. CONST. AMEND.

VIII. This prohibition gives rise to the government’s duty to provide medical care to prisoners.

“The government has an ‘obligation to provide medical care for those whom it is punishing by

incarceration.” Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015) (citing Estelle v. Gamble,

429 U.S. 97, 103 (1976)). It follows that the “Eighth Amendment proscribes deliberate

indifference to the serious medical needs of prisoners.” Robinson v. Hager, 292 F.3d 560, 563

(8th Cir. 2002) (internal citation omitted). “A serious medical need is ‘one that has been

diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson

would easily recognize the necessity for a doctor’s attention.’” Schuab v. VonWald, 638 F.3d

905, 914 (8th Cir. 2011) (internal citation omitted). “Deliberate indifference may be

demonstrated by prison guards who intentionally deny or delay access to medical care or

intentionally interfere with prescribed treatment, or by prison doctors who fail to respond to

prisoner’s serious medical needs.” Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).

To succeed on a claim of deliberate indifference to a medical need, a plaintiff must show he had

an objectively serious medical need and prison officials had actual knowledge of, but deliberately

disregarded, that need. See Washington v. Denney, 900 F.3d 549, 559 (8th Cir. 2018); McRaven

v. Sanders, 577 F.3d 974, 981 (8th 2009).

1. Defendants’ Statement of Undisputed Material Facts

Plaintiff was incarcerated at the Detention Center from August 9, 2022 through November

29, 2022. (Doc. No. 38 at ¶ 2; Doc. No. 36-1 at 4). Upon booking, Plaintiff informed Detention

Center staff that he was taking a prescription medication for high blood pressure, Losartan. (Doc.

No. 36-1 at ¶ 3; Doc. No. 36-1 at 8). Because Plaintiff did not have the medication with him

when he was booked into the Detention Center, Defendant Potts directed Detention Center staff to

contact Plaintiff’s wife to provide the medication for Detention Center staff to give to Plaintiff.

(Doc. No. 38 at ¶ 4; Doc. No. 36-1 at ¶ 5). On August 26, 2022, Plaintiff’s wife delivered the

medicine to the Detention Center, and staff began giving the medication to Plaintiff that same day,

and did so every day Plaintiff was in the Detention Center. (Doc. No. 38 at ¶¶ 5, 6; Doc. No. 36-

1 at ¶¶6, 7; Doc. No. 36-1 at 10-17).

Plaintiff never told Defendants or any Detention Center staff that he needed to go to the

doctor. (Doc. No. 38 at ¶ 7). Plaintiff never filed any grievances or requests until after the

“stroke” incident Plaintiff mentioned in his Complaint. (Doc. No. 38 at ¶ 7; Doc. No. 36-1 at

24). When Plaintiff complained about chest pain on October 1, 2022, Detention Center staff

transported Plaintiff to the hospital. (Doc. No. 38 at ¶ 8; Doc. No. 36-1 at 18-19). Hospital staff

took scans and discharged Plaintiff back to the Detention Center, as they did not consider

Plaintiff’s condition to be life threatening. (Doc. No. 38 at ¶ 8; Doc. No. 36-1 at 20-23). The

next day, Plaintiff returned to the hospital for the results of his scan; he was diagnosed with

hypertension, atypical chest pain, and headache. (Doc. No. 38 at ¶ 9; Doc. No. 36-1 at 25-32).

Hospital staff discharged Plaintiff to the Detention Center with the instructions to go on a low salt

diet with no caffeine. (Doc. No. 38 at ¶ 10; Doc. No. 36-1 at 26). Jail staff took Plaintiff for a

follow-up appointment on at the hospital on October 4, 2022. (Doc. No. 38 at ¶ 11; Doc. No. 36-

1 at 33). Upon discharge Plaintiff was instructed to return to a normal diet and normal activity,

and to have a follow-up appointment with his primary care physician to consider adjusting his

blood pressure medication. (Doc. No. 36-1 at 33).

Plaintiff was transferred from the Detention Center to the Arkansas Division of Correction

on November 29, 2022. (Doc. No. 38 at ¶ 13; Doc. No. 36-1 at 40-44).

2. Plaintiff’s Response

Despite specific instructions from the Court, Plaintiff did not file a Statement of Disputed

Facts that lists any disagreement Plaintiff has with the specifically numbered factual assertions

contained in Defendants’ Statement of Undisputed Facts and any other disputed facts he believes

must resolved at a hearing or trial. As the Court explained, this Statement of Disputed Facts is

required by Local Rule 56.1. See also FED. R. CIV. P. 56(e) (explaining consequences for failing

to properly address another party’s assertion of fact). Because Plaintiff has not contested any fact

submitted by Defendants, all facts in Defendant’s Statement of Undisputed Material Facts are

deemed admitted.

Defendants submitted Plaintiff’s medical records along with their Motion, including

Plaintiff’s records from Drew Memorial Hospital. Plaintiff does not contest the accuracy of the

medical records. Rather, he maintains that there was no medical staff at the Detention Center

and that he did not go to see a doctor until October 8 or 9 despite almost having a stroke on October

1, 2, and 4. (Doc. No. 40 at 1). The hospital records submitted do not support Plaintiff’s

assertion that he was not seen by a doctor until October 8 or 9. (Doc. No. 36-1 at 20-23, 25-32,

and 33-39). Further, Detention Center records reveal that Plaintiff was receiving his blood

pressure medication regularly. (Id. at 13-15). Plaintiff did not contest these records, either.

And there is nothing in the record that reflects that Plaintiff ever informed Defendants of his need

to see a dentist.

Where, as here, Defendants have moved for summary judgment, Plaintiff “was required

‘to discard the shielding cloak of formal allegations and meet proof with proof by showing a

genuine issue as to a material fact.’” Fatemi v. White, 775 F.3d 1022, 1046 (8th Cir. 2015)

(internal citation omitted). Plaintiff has not, however, met proof with proof to establish facts in

dispute that would preclude summary judgment in Defendants’ favor. Wilson v. Miller, 821

F.3d 963, 970 (8th Cir. 2016) (allegations must be substantiated with sufficient probative

evidence); Bolderson v. City of Wentzville, Missouri, 840 F.3d 982, 986-87 (8th Cir. 2016) (noting

plaintiff’s duty to meet proof with proof in affirming summary judgment in defendant’s favor).

Instead, the evidence shows that Plaintiff was taken to the hospital on the same day he complained

of chest pain, taken back the following day to learn the results of his scan, taken for a follow-up

appointment several days later, and given his blood pressure medication regularly. All things

considered, no reasonable jury could conclude that Defendants were deliberately indifferent to

Plaintiff’s serious medical needs. Even if there was a violation under these circumstances,

Defendants’ are entitled to qualified immunity because there is no clearly established law pursuant

to which their actions could be deemed unlawful.

B. Official Capacity Claims

Plaintiff sued Defendants in their official and personal capacities. “A suit against a

government officer in his official capacity is functionally equivalent to a suit against the employing

governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010).

Accordingly, Plaintiff's claims against Defendants are the equivalent of claims against Drew

County.

To establish municipal liability, a plaintiff must prove that an official municipal policy,

deliberately indifferent failure to train or supervise, or unofficial custom caused the constitutional

injury. Corwin v. City of Independence, Missoun, 829 F.3d 695, 699 (8th Cir. 2016) (citing

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978); City of Canton, Ohio v. Harris, 489 U.S.

378, 389 (1989)).

Here, Plaintiff has not established personal liability. With no showing of wrongdoing,

Plaintiff's official-capacity claims also fail. Accordingly, Defendants’ Motion will be granted.

IV. Conclusion

IT IS, THEREFORE, ORDERED that:

1. Defendants’ Motion for Summary Judgment (Doc. No. 36) is GRANTED;

2. Plaintiff's Complaint (Doc. No. 2) is DISMISSED with prejudice.

3. Plaintiff's embedded Motion to Appoint Counsel (Doc. No. 40) is DENIED as

moot.

4. The Court certifies that an in forma pauperis appeal of this Order and the

accompanying Judgment would not be taken in good faith.

Dated this 6" day of July, 2023.

JEROME T. KEARNEY

UNITED STATES MAGISTRATE JUDGE