# Mosier v. Gober

> District Court, E.D. Arkansas · July 6, 2023

URL: https://www.frixlaw.com/law-library/cases/10007945

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** July 6, 2023
- **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/10007945

## How later opinions describe it (automated extraction)

- noting plaintiff’s duty to meet proof with proof in affirming summary judgment in defendant’s favor

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10007945. Public record. Not legal advice.