Wilmoth v. Murphy

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

MICHAEL SHANE WILMOTH PLAINTIFF

Vv. CASE NO. 5:16-CV-5244

INTERIM SHERIFF MEYER GILBERT,

Benton County, Arkansas; LIEUTENANT

JESUS MARTINEZ; SERGEANT MICHAEL

V. LIRA; DEPUTY AUSTIN MURPHY;

CORPORAL KEMP; SERGEANT DOWYER;

MAJOR JEREMY GUYLL; NURSE SHEA SMITH;

DR. ROBERTO SAEZ; and NURSE TYRANNY RAY DEFENDANTS

MEMORANDUM OPINION AND ORDER

This is a civil rights action brought by the Plaintiff pursuant to 42 U.S.C. § 1983.

He proceeds pro se and in forma pauperis.

Although Plaintiff is currently incarcerated in the East Arkansas Regional Unit of

the Arkansas Department of Correction (ADC), the events at issue in this case occurred

while he was incarcerated in the Benton County Detention Center (BCDC).' Plaintiff

contends that, during his incarceration at the BCDC, his constitutional rights were

violated in the following ways: (1) he was denied adequate medical and mental health

Care; (2) excessive force was used against him; and (3) he was subjected to disciplinary

action based on falsified documents and given an excessive punishment.

1 Plaintiff was incarcerated at the BCDC from July 6, 2016, until November 21, 2016.

For part of this incarceration, he was a pretrial detainee. The Court takes this point up

below when considering the County Defendants’ Motion for Summary Judgment.

The case is before the Court on two Motions for Summary Judgment. The first

Motion for Summary Judgment (Doc. 49) was filed by Separate Defendants Dr. Roberto

Saez, Nurse Tyranny Ray, and Nurse Shea Smith (collectively, “Medical Defendants’).

The second Motion for Summary Judgment (Doc. 52) was filed by Separate Defendants

Sheriff Meyer Gilbert, Lieutenant Jesus Martinez, Sergeant Michael V. Lira, Deputy

Austin Murphy, Corporal Kemp, Sergeant Dowyer, and Major Jeremy Guyll (collectively,

“County Defendants”). Plaintiff has responded (Doc. 81) to both Motions and they are

now ripe for decision.? For the reasons stated herein, the Medical Defendants’ Motion

for Summary Judgment (Doc. 49) is GRANTED, and the County Defendants’ Motion for

Summary Judgment (Doc. 52) is GRANTED IN PART AND DENIED IN PART.

|. BACKGROUND

Because the instant Motions are one for summary judgment, the Court will recite

the facts in the light most favorable to Wilmoth, the non-moving party, and will limit its

discussion only to what is necessary to provide context for the Court’s decision. In

2 In his statement of disputed facts contained in Document 81, Plaintiff argues that

Defendants have withheld discovery from him. However, the Court has ruled on all

pending motions to compel. Plaintiff also indicates he has not been provided with the

videos submitted by Defendants with the summary judgment materials. Plaintiff never

asked for a Court order allowing him to view the videos. ADC inmates are not generally

allowed to have DVDs for security reasons. In fact, Plaintiff states that the Assistant

Warden told him in late June of 2017 that the DVDs had been mailed back to

Defendants’ law firm. (Doc. 81-5, p. 2). Furthermore, Plaintiff has submitted an affidavit

in which he indicates that he has seen the video from August 11, 2016, but states that it

does not cover the period after the altercation when he was being led to E-pod (/d. at 1).

Plaintiff also states that he was unable to obtain affidavits from deputies who were

witnesses or from inmates including ADC inmates. Plaintiff could have written the

deputies care of the BCDC. With respect to inmates, Plaintiff did not file a motion asking

for permission to write ADC inmates or inmates of other facilities. Having not taken the

steps necessary to accomplish these steps, Plaintiff cannot now avoid summary

judgment on this basis. Plaintiff filed his response nearly four months after the summary

judgment motions were filed and after having obtained several extensions of time.

addition, because the two Motions deal with very different sets of facts, the Court will

recite the most pertinent facts in two separate sections. Finally, because the sequencing

of events is of considerable importance to certain of Plaintiff's claims, in each section,

the Court will recount events chronologically.

A. Facts with respect to the Medical Defendants

Dr. Roberto Saez is a physician who, at all times relevant to this lawsuit, was

under contract with Southern Health Partners, Inc. (“SHP”), to provide medical services

to inmates housed at the BCDC. (Doc. 50-1, p. 1). Tyranny Ray and Shea Smith are

nurses who were similarly employed by SHP to provide medical services for inmates

housed at the BCDC. (Doc. 50-2, pp. 1, 4).

Plaintiff was booked into the BCDC on July 6, 2016. (Doc. 54-2, p. 1). A mental

health screening form was completed on that same day. (Doc. 54-3, p. 2). Plaintiff

indicated he was receiving care at Dayspring Behavioral Health and was currently

taking Plaquenil, Trazodone, and Klonopin. /d. at 2, 3 (spelling corrected).

According to Nurse Ray, she saw the Plaintiff on July 7, 2016, to conduct his

intake screening, but Plaintiff refused to be screened and refused to sign a consent for

treatment form. (Doc. 50-2, p. 2; Doc. 50-3, pp. 2, 3). Plaintiff denies that he refused to

be screened and/or refused to sign a consent to treatment form. (Doc. 81, p. 3). Further,

he states that he never saw or talked to Nurse Ray on July 7, 2016. /d. at 4. However,

at some point, it is undisputed that Plaintiff told Nurse Ray that he was taking “home

3 At his deposition, he testified he was not sure if he had the name of the medication he

was taking for a skin disorder, but the third drug he put down should have been

Plaquenil (hydroxychloroquine). (Doc. 54-7, pp. 23-24).

medications” and, as a result, Nurse Ray contacted his family to have his medications

brought to the BCDC, (Doc. 50-2, p. 2).

On July 18, 2016, Plaintiff submitted his first medical request via the electronic

kiosk system. (Doc. 50-2 at 2; Doc. 50-4, p. 1). In the request, Plaintiff stated he had

been contacted by his doctors and they needed him to sign a medical authorization for

release of his records. In addition, he mentioned that his family had dropped off some

medications, but he had not yet received them. (Doc. 50-4, p. 1). The very next day,

Nurse Ray, responding to his message, advised Plaintiff that the only medication

dropped off was Plaquenil, asked what he was taking that for, and stated that he had

not been given Plaquenil because the discontinue date on the medication was May 15,

2016. /d. Plaintiff responded that he was taking the Plaquenil for a skin condition. (Doc

50-2, p. 2; Doc. 54-4, p. 2).

On July 19, 2016, Plaintiff indicated he had not refused an inmate visit and had

never even been called for a medical visit. (Doc. 54-4, p. 3). Nurse Ray responded:

“addressed.” /d.; see also (Doc. 54-7, p. 32). That same day, Dr. Saez ordered that

Plaintiff be continued on Plaquenil for his skin condition. (Doc. 50-1, p. 1).

On July 20, 2016, Plaintiff submitted a kiosk entry thanking Nurse Ray for her

help in addressing his issues and asking if she could obtain his records from Ozark

Guidance. (Doc. 50-4, p. 2). She responded that she was working on it. Jd. The Ozark

Guidance records subsequently obtained indicate that Plaintiff had been diagnosed with

Intermittent Explosive Disorder, Generalized Anxiety Disorder, Post-Traumatic Stress

Disorder, and Unspecified Bipolar Disorder. (Doc. 54-3, p. 1). When he is not on his

mental health medication, Plaintiff testified he is “highly explosive’ and “quick

tempered.” (Doc. 54-7, p. 13).

On July 21, 2016, Plaintiff asked when he would be placed back on his mental

health medications. (Doc. 50-2, p. 2; Doc. 50-4, p. 4). Nurse Ray responded that she

was waiting for his mother to bring the medications to the BCDC so that she could verify

them. (Doc. 50-4, p. 4).

On July 22, 2016, Plaintiff submitted a medical request stating that, prior to his

incarceration, he had been seen at Daysprings and prescribed Lithium. (Doc. 50-2, p. 3;

Doc. 50-4, p. 5). However, the doctor would not start him on Lithium without having

blood tests performed first.4 (Doc. 50-4, p. 5). Plaintiff had not had his blood collected

prior to being booked in. (Doc. 50-2, p. 3).

On July 25, 2016, Plaintiff asked again about his mental health medications,

stating his mental state had “gotten extremely worse | need my meds very bad.” (Doc.

50-4, p. 6). Nurse Ray again responded that she was waiting for his mother to bring in

the medications. /d. Plaintiff stated that he and his family had to do a lot of work within

the first couple of weeks of his incarceration to get his medications and his records

brought up to the BCDC. (Doc. 54-7, pp. 33-34).

On July 26, 2016, Plaintiff submitted a request stating that Ozarks Community

Hospital (OCH) in Gravette, Arkansas, would not allow his mother to pick up his

medications without a signed release. (Doc. 50-2, p. 3; Doc. 50-4, p. 7). He signed the

release the next day. (Doc. 50-2, p. 3; Doc. 50-3, p. 5). The OCH records indicated

Plaintiff had been on Klonopin for anxiety and Oxycodone for right ankle pain. (Doc. 50-

2, p. 3; Doc. 50-3, p. 6).

4 In his response, Plaintiff states he told medical staff on July 6, 2016, that he needed

blood work done. (Doc. 81, p. 6).

On July 27, 2016, Dr. Saez started Plaintiff on Trazodone, 50 mg., for anxiety

and depression.® (Doc. 50-1 at 1). Plaintiff submitted a medical request stating that his

family had been told that medical staff could help get him transferred to a “mental

hospital” and asking how they got this accomplished (Doc. 81-1, p. 11). Nurse Ray

responded that the judge and attorneys were the ones responsible for doing that and

that medical staff had no authority to transfer an inmate to a mental hospital. /d. Plaintiff

submitted a second request on July 27, 2016, stating that his “free world doctor gave

m[e] traz[o]done to be taken at night.” (Doc. 81-1, p. 12). He said taking it in the morning

would be more than he could handle if he was forced to stay out of his cell. /d. If the

medication was going to be given in the morning, he said he should be placed in a

medical cell. /d. Nurse Ray responded: “addressed.” /d. |

On July 28, 2016, the Trazodone was discontinued. (Doc. 50-1, p. 1). Plaintiff

testified that the Medical Defendants would only prescribe Trazodone so that it was

taken in the morning. (Doc. 54-7, p. 21). He indicated that this would make him

“severely sleepy—almost unconscious to a point.” /d. In short, he testified that there was

“no way [he] could take it in the morning and function.” /d. He maintains the medication

should have been prescribed in accordance with his private doctor's orders. (Doc. 81, p.

6). He also states he never had depression. /d. However, Plaintiffs own exhibit

5 Plaintiff states that his private doctor prescribed Trazodone to help him sleep, and not

for anxiety or depression, which is why he took the medication in the evening. (Doc. 81, .

p. 6). However, Trazodone is a medication that is used to treat depression.

https://medicineplus.gov/druginfo/meds/a681038.html (accessed January 30, 2018).

indicates he reported being very depressed at times when seen at Ozark Guidance on

February 4, 2016. (Doc. 81-2, p. 2).®

That same day, Plaintiff's blood was collected and sent to Quest Diagnostics for

testing. (Doc. 50-1, p. 1). The results were faxed to the BCDC on July 29, 2016. (Doc.

50-3, pp. 7-8).

On August 1, 2016, Plaintiff submitted a request asking about his mental health

medications. (Doc. 50-2, p. 3). He said his medication was not being given to him as

prescribed by his doctor and his “mental health is getting extremely worse” (Doc. 50-4,

p. 8). On August 2, 2016, Plaintiff submitted another request stating that the ‘issue

needs addressed as soon as possible my mental health condition is getting extremely

worse.” /d. Nurse Ray replied that she had sent the blood work results to Daysprings but

had not heard back from them. (Doc. 50-2, p. 3; Doc. 50-4, p. 8). Nurse Ray asked him

if he wanted to be seen by the jail doctor, and Plaintiff was subsequently placed on the

doctor call list. (Doc. 50-2, p. 3).

On August 4, 2016, Plaintiff asked to see Ms. Susan, of social services,

regarding his mental health needs. (Doc. 81-1, p. 15). Nurse Ray replied that she had

given the request to Susan. fd. On August 8, 2016, Plaintiff submitted a request for Ms.

Susan asking that she let him know what she found out. (Doc. 81-1 at 16). He also

stated that there was a supplemental security income issue that he forgot to talk to her

about. /d. Again, his request was given to Susan. /d.

6 Further, bipolar disorder is characterized by changes in mood, energy, and activity

levels including manic episodes when the individual is extremely “up” and depressive

episodes when the _ individual is sad, down, or has_ hopeless periods.

https:/Avww.nimh.nih.gov/health/topics/bipolar-disorder/index.shtml (accessed January

30, 2018).

On August 11, 2016, Plaintiff asked when he would be seeing the doctor. (Doc.

81-1, p. 18). He stated he was “on the verge of having a major mental break down.” /d.

In response, Nurse Ray stated he would be seeing the doctor the next day. /d.

Plaintiff testified that during his disciplinary hearing’ on August 12, 2016,

Lieutenant Martinez could tell Plaintiff was having severe mental health issues. (Doc.

54-7, p. 37). Plaintiff testified he was edgy, experiencing anxiety, and appeared to be

aggressive when he was just trying to convey his thoughts. /d. at 38. He also testified

that he uses his hands a lot when he talks and gets loud and boisterous. When Plaintiff

advised that he was not currently on mental health medication, he testified that

Lieutenant Martinez said they needed to fix that and went straight to the doctor's office.

fd. at 37.

On August 12, 2016, Dr. Saez saw the Plaintiff at doctor call. (Doc. 50-1, p. 2).

Dr. Saez reviewed Plaintiff's blood test results from Quest Diagnostics. /d. Dr. Saez

started Plaintiff on Lithium which is used for the treatment of manic episodes of bipolar

disorder. /d.; see also Doc. 50-3, p. 11. That same day, Plaintiff was also started on

Ibuprofen twice a day, for a week, for pain resulting from a physical altercation. (Doc.

50-1, p. 2; Doc. 50-3, p. 9).

On August 13, 2016, Plaintiff said he really needed to speak with Nurse Ray

about his medication. (Doc. 81-1, p. 20). Nurse Ray responded: “duplicate.” /d.

The next day, Plaintiff submitted a request complaining of severe headaches, his

jaw hurting, and having problems with his medication. (Doc. 81-1, p. 21). Nurse

This disciplinary hearing is connected to the Motion for Summary Judgment submitted

by the County Defendants and is discussed below.

Jakovich responded that Plaintiff was already on Ibuprofen and had not been on the

new medication long enough for it to be effective. /d.

On August 15, 2016, Plaintiff said it was very important he saw Nurse Ray about

his medication and that the request was not a copy. (Doc. 50-4, p. 9). Plaintiff

complained of an allergic reaction to the Lithium. /d. He stated his lips and throat were

swollen and also complained of headaches. /d. Nurse Ray saw Plaintiff on August 16,

2016. (Doc. 81-1, p. 22).

On August 17, 2016, Plaintiffs Lithium prescription was discontinued because of

Plaintiffs report of having an allergic reaction to it. (Doc. 50-1 at 2). On August 18, 2016,

Plaintiff submitted a request stating he needed to see the doctor. (Doc. 81-1, p. 23).

Nurse Ray asked what he needed to see the doctor about. /d. Plaintiff replied that his

skin was getting worse and he needed something for his mental health. /d. at 24. Nurse

Ray responded that he would be put on the list. /d.

On August 20, 2016, Plaintiff submitted a medical request stating that his

emotions went from one extreme to the other and he was losing massive amounts of

weight. (Doc. 54-4, p. 16). He stated he did not care about the reaction he had to

Lithium and that he needed something. /d. That same day, Plaintiff submitted a medical

request saying he had not had a migraine for two years until the incident on August 12,

2016, and was now having them constantly. /d. at 17.

On August 21, 2016, he submitted another request saying he did not want to get

in more trouble than he was already in and to just put him back on Lithium. (Doc. 54-4,

p. 16). Nurse Ray replied that Dr. Saez had ordered another medication, Zyprexa

(olanzapine), for him to try and that he would begin receiving it the following day. /d.

9g

On August 22, 2016, Plaintiff was prescribed Zyprexa as a mental health

medication.® (Doc. 50-1, p. 2; Doc. 50-3, p. 10). On August 26, Plaintiff complained of

mood swings. (Doc. 50-1, p. 2). As a result, the Zyprexa dosage was increased to 7.5

mg. /d.

On August 28, 2016, Plaintiff complained he was still having migraines over his

left eye and that his jaw hurt. (Doc. 50-4, p.10). He stated that the doctor had told him

that he would get Plaintiff taken care of but nothing was done. /d. Nurse Ray asked if he

would like some Ibuprofen and he responded yes. /d. On August 29, 2016, Dr. Saez

prescribed Ibuprofen, 600 mg., twice a day for ten days. (Doc. 50-1, p. 2; Doc. 50-3, p.

10).

On September 3, 2016, Plaintiff submitted a request asking if his skin cream had

ever been brought to the jail. (Doc. 81-1, p. 32). In response, he was told Nurse Ray

would be asked to check on it Monday. /d.

The following day, Plaintiff submitted a medical request stating he still had a knot

on his head from the incident on August 12, 2016, was having severe migraines over

his left eye, and his jaw still hurt “extremely bad.” (Doc. 54-4, p. 19). In a second request

submitted that day, Plaintiff stated he was still having some anxiety and panic attacks,

could not sleep well, and still had some mood changes. /d. Nurse Ray responded: “ok.”

Id.

On September 9, 2016, Plaintiff again complained of headache and jaw pain.

(Doc. 50-1, p. 2). His Zyprexa dosage was increased to 10 mg. and he was started ona

8 Zyprexa is used to treat mental disorders, including bipolar disorder. See, e.g., Doc.

50-1, p. 2.

10

muscle relaxer, Flexeril, 10 mg., twice a day for seven days, and given Ibuprofen, 600

mg., twice a day for fourteen days. /d.; see also Doc. 50-3, pp. 10, 12.

On September 13, 2016, Plaintiff submitted a request asking the names of the

medications he was taking and in what dosage. (Doc. 81-1, p. 34). He also stated the

doctor had said he was increasing his dosage but it appeared he was still getting 7.5

mg. pills. /d. Nurse Ray responded that he was receiving: hydroxychloroquine

(Plaquenil) 200 mg., twice a day; cyclobenzaprine (Flexeril) 10 mg., twice a day;

olanzapine (Zyprexa) 10 mg., once a day; and Ibuprofen, 600 mg., twice a day. /d.

On September 15, 2016, Plaintiff submitted a request advising Nurse Ray that

one of his creams that had been brought to the jail was trashed. (Doc. 81-1, p. 35).

Plaintiff said he had told the doctor it was almost empty and the doctor said he would

reorder it along with an order for Plaintiff's shampoo. /d. Plaintiff states the nurse then

said he would not get the shampoo. /d. Plaintiff asked why it could not be placed on the

med cart and he could fill his small bottle when he needed to. /d. Nurse Ray responded:

“ok.” I.

On September 25, 2016, Plaintiff submitted a request saying he needed his

Ibuprofen reordered because he was still having headaches and his jaw was still

hurting. (Doc. 81-1, p. 36). Nurse Ray responded that his current prescription had

expired and that he would need to talk to the doctor. /d. That same day, Plaintiff

submitted a request asking whether his cream that had been thrown in the trash was

being reordered. /d. at 37. Nurse Ray responded: “ok.” /d.

On September 28, 2016, Plaintiff submitted a request stating he needed to see

the docior. (Doc. 81-1, p. 39). Nurse Ray asked what the reason was. /d.

11

On October 10, 2016, Plaintiff submitted a request stating he had two seizures

on the previous Friday and Saturday. (Doc. 50-2, p. 4; Doc. 50-4, p. 11). He also stated

he was still having migraines and his jaw still hurt. (Doc. 50-4, pp. 11-12). Nurse Ray

evaluated Plaintiff at nurse call on October 11, 2016. (Doc. 50-4, p. 12). Plaintiff

reported a history of seizures but stated he had not taken Dilantin, an anti-epileptic

medication, since December of 2015. (Doc. 50-2, p. 4; Doc. 50-4, p. 12). Plaintiff was

placed on the doctor list. /¢. Dr. Saez saw Plaintiff again on October 14, 2016, when he

stated he had two seizures. Dr. Saez noted that the seizures had not been witnessed by

anyone and gave no new orders. (Doc. 50-1, p. 2).

On October 16, 2016, Plaintiff submitted a grievance stating that he was being

denied medical attention for an injury caused by a deputy. (Doc. 54-4, p. 21). Lieutenant:

Holt replied that all medical decisions were made by medical staff. id. He forwarded the

grievance to medical staff. id. Nurse Ray asked him how he was being denied medical

attention. /d.

On October 24, 2016, Plaintiff submitted a request saying he was feeling shaky

between meals and felt like he was going to pass out. (Doc. 81-1, p. 43). He was seen

by Nurse Ray on October 26, 2016. /d.

Plaintiff asserts that the care given by the Medical Defendants during his

incarceration at the BCDC was deficient in numerous ways. With respect to Dr. Saez,

Plaintiff testified that Dr. Saez said he did not believe the Plaintiff had seizures and

refused to treat him for them. (Doc. 50-5, p. 2; Doc. 54-7, p. 49). Even after the nurse

documented his history of seizures, Plaintiff indicated the doctor refused to treat him.

(Doc. 54-7, p. 49). Plaintiff also believes Dr. Saez should have either prescribed him

Klonopin or at least weaned him off of it, or given him something for the side effects.

12

(Doc. 54-7, p. 45). Plaintiff testified as a result of the medication being stopped abruptly

he suffered withdrawal, was sick to his stomach, had a headache, and suffered from

severe anxiety. /d. The symptoms lasted about a week or week and a half. /d. Plaintiff

also testified Dr. Saez refused to allow. him to take his Trazodone in the evening. /d. at

49.

With respect to Nurse Ray and Nurse Smith, Plaintiff contends they should never

have let the guard issue him his medications. (Doc. 54-7, pp. 46-47, 50, 95). Plaintiff

testified that for nearly the entire month that he was in red and white stripes,® the guards

brought him his medication. (/d. at 47-48). He also did not believe Nurse Ray followed

up on his mental health medications in a timely manner and did not have him seen.

(Doc. 50-5, p. 2). With respect to his official capacity claims, Plaintiff testified that he did

not at that time know what policy, custom, or practice violated his constitutional rights,

but he stated that he had requested copies of the policies and had not received them

yet. Id.

The Medical Defendants deny being deliberately indifferent to Plaintiffs medical

needs. By affidavit, Dr. Saez states he “used sound professional judgment when [he]

prescribed medications for [Plaintiffs] various medical and mental health needs.” (Doc.

50-1, p. 3). Dr. Saez states he provided Plaintiff with “appropriate and timely care, and |

met or exceeded all applicable standards of care.” /d. Dr. Saez asserts that he was not

deliberately indifferent to Plaintiff's serious medical needs. /d. By affidavit, Nurse Ray

® The red and white stripes indicate the inmate attempted to, or assaulted, an officer.

See Doc. 54-7, p. 48.

13

states that Plaintiff was considered a safety risk to the healthcare staff. (Doc. 50-2, p. 4).

With respect to medication being passed out, Nurse Ray states:

[bjecause Plaintiff was considered a safety risk, correction officer

accompanied nurses while passing medications to Plaintiff. The nurses

handed the medications to the correction officer, who passed the

medications to Plaintiff through the “beanhole” in the cell door. At no time

did a correction officer pass medications to Plaintiff without a nurse

. present.

Id.

Nurse Ray asserts that neither she nor Nurse Smith were deliberately indifferent

to Plaintiffs serious medical needs. (Doc 50-2, p. 4). Nurse Ray also asserts that she

and Nurse Smith provided Plaintiff with “appropriate and timely nursing care.” /d. at 5.

Further, both Dr. Saez and Nurse Ray assert that no policy or custom of SHP was

unconstitutional, or exhibited deliberate indifference to Plaintiffs serious medical needs.

Id.; see also Doc. 50-1, p. 3.

B. Facts with respect to the County Defendants

Plaintiff was booked into the BCDC on July 6, 2016, after being arrested on a

parole violation charge. (Doc. 54-2, pp. 1-2). He was also charged by the Bella Vista

Police Department with domestic battery, assault on a family or household member, and

terroristic threatening. /d. at 3. On July 26, 2016, additional charges of tampering and

violation of a no contact order were added. /d. at 13. On August 17, 2016, a parole

revocation hearing was held and Plaintiff was found guilty of violating the terms of his

14

parole." fd. at 15-16. As a result, he was a pretrial detainee during the two incidents

that form the backdrop of his claims against the County Defendants.

1. Incident on August 11, 2016

On August 11, 2016, there was an altercation in the pod control area. (Cnty.

Defs.’ Ex. B (conventionally filed DVD)).11 The video shows Plaintiff coming out of the

pod door into the pod control area. There are three officers present in addition to the

officer standing in the elevated control area. Plaintiff stands with his arms behind his

back against the pod windows. He is directed to the half wall surrounding the control

area and puts his forehead against the wall and stands with his hands behind his back.

When he begins talking, he moves his head from the wall, and starts shaking his head

and looking from one side to another. He turns partially towards one of the officers and

then turns back to face the wall. Then, he takes his hands from behind his back and

talks in an agitated manner. When one officer moves towards Plaintiff with a pair of

handcuffs, Plaintiff quickly turns towards the officer and throws his hands up in the air.

He is quickly taken to the floor. One officer is on top of him and two officers help hold

him down. One officer attempts to get handcuffs on the Plaintiff. A fourth officer

responds and attempts to hold the Plaintiff's legs. Four more officers respond. The, the

officer who had been on top of the Plaintiff stands him up and puts him against the half

wall. Plaintiff is then escorted from the area visible to the camera.

Deputy Murphy wrote the following incident report about the events of that day:

10 Plaintiff was released from the BCDC on November 21, 2016. (Doc. 54-2, p. 17).

11 Neither video submitted as exhibits contains audio.

15

On August 11, 2016, |, Deputy Murphy was assigned to D Pod. | was

helping the nurse on duty pass out medication. At approximately 1917

hours an inmate walked up to the pod door of D153 saying “ya'll got me f--

-ed up” and “I'm gonna fight a motherf—er.” The inmate was later

identified as Wilmoth, Michael (OCA#21246), | ordered Inmate Wilmoth to

come out of D153, place his hands behind his back and face the wall at

pod control. He complied. Inmate Wilmoth continued yelling and cursing at

us about how a Deputy took his pictures out of his cell during the

shakedown and he was going to fight us. Due to his comments about

fighting us and his aggressive attitude, Deputy Carter told Inmate Wilmoth

that he was going to place Wilmoth into handcuffs. Wilmoth then

responded with “the f--- you are” and aggressively turned off the wall

toward Deputy Carter. At that time | recognized the threat and placed

Inmate Wilmoth on the ground. | stayed on top of Inmate Wilmoth, while

trying to take control of Inmate Wilmoth I told him | was not going to get off

of him until he quit resisting. Deputies Carter and Bailey were able to gain

control of Inmate Wilmoth’s arms and handcuff him. | then assisted Inmate

Wilmoth to his feet and Corporal Kemp escorted Inmate Wilmoth to E Pod

to be rehoused. Inmate Wilmoth is being locked down, pending a hearing,

for the infractions of B5 (Refusal to obey an order), B6 (Interference with

jail operations) and C17 (Disruptive conduct).

(Doc. 54-5, p. 1). In Deputy Carter's supplement to the incident report, he indicated that

Wilmoth “turned around aggressively getting ready to punch me.” /d.

During his deposition, Plaintiff confirmed that the April 11, 2016, incident started

when they shook down the barracks and took all his photographs of his family. (Doc. 54-

7, pp. 51-52). He had nine photographs and the officers said he was only supposed to

have five. /d. Instead of leaving him with five photographs, they took them all. /d.

Plaintiff testified he went to the pod door and asked to be seen. (Doc. 54-7, p.

53). He was called out to pod control and told to put his head against the half wall with

his hands behind his back. /d. at 53-54. Plaintiff testified he was very agitated, was

cussing, and was probably louder than he should have been. He told them someone □

was going to give him his pictures back. The officers responded that he was only

16

supposed to have five pictures and he replied fine, but someone needs to give me five

pictures back. /d. at 54-55.

Plaintiff testified that the officers were telling him to calm down. (Doc. 54-7, p.

55). Plaintiff had taken his hands from behind his back and he was told to keep them

behind his back. /d. However, because Plaintiff talked with his hands a lot, he testified

that it was hard for him to keep them behind his back. /d.

Plaintiff stated that when Deputy Carter said he was going to put him in

handcuffs’? he turned to face Deputy Carter. /d. Plaintiff testified that when he turned

towards Deputy Carter he was merely trying to talk to him and was not trying to be

aggressive. /d. at 39, 55. He said his mental health issues kept him from calming down.

Among other things, Plaintiff indicated he was agitated, talking with his hands and

forgetting to keep them behind his back, was getting loud and boisterous, getting on

edge, and using offensive language. /d. at 39-40. Plaintiff recalled saying something like

“[ylou're not going to put me in handcuffs so you can beat me.” /d. at 56. This was when

he was taken to the floor and put in handcuffs. /d. Plaintiff testified: “[Deputy] Murphy

proceeded to smash my head in the floor and tell me how he was going to beat my a--

in my ear. He kept putting his elbow on the back of my head. ... He got very

aggressive.” /d. After he was picked up and was being escorted into the other hallway,

Plaintiff indicated Deputy Murphy continued to be aggressive, yelling at him, getting in

his face, and telling the Sergeant that Plaintiff had swung on him. /d. at 56-57. Plaintiff

testified he was not even facing Deputy Murphy and did not swing on him. /d. at 57.

12 Plaintiff stated during his deposition that Deputy Carter told him “I would like to put

you in handcuffs for your own safety and ours.” (Doc. 54-7, p. 55). □

17

Plaintiff asked Sergeant Dowyer to review the video. /d. at 60-61. Plaintiff was put in

lock down and was told he was going to be written a disciplinary. (Doc. 54-7, p. 58)."°

2. Incident on August 12, 2016

On August 12, 2016, there was an altercation in Plaintiff's cell. (Cnty. Defs.' Ex. C

(conventionally filed DVD)). Video of the altercation provides two camera angles

showing Plaintiff's pod. Three officers walk up the stairs to the top tier of the pod,

approach Plaintiffs cell, and open the door. All three officers then enter the cell. What

occurs inside the cell is outside the range of the camera. Two officers then exit but then

very quickly re-enter the cell. A fourth officer comes up the stairs and enters the cell.

Eleven more officers go up the stairs and head towards the Plaintiffs cell. Several more

officers then enter Plaintiffs cell while the remaining officers gather outside the door.

The officers slowly begin exiting the cell and going back downstairs.

Deputy Murphy’s incident report provides as follows:

At approximately 0500 hours Deputies Carter, Cruz and | went into the cell

of Inmate Wilmoth, Michael (OCA#21246) to serve him from an event that

happened on August 11, 2016... . Upon entering cell E229, | ordered

Inmate Wilmoth to have a seat at the desk with his legs placed under the

desk to go over paperwork. Inmate Wilmoth complied. | began to serve

Inmate Wilmoth and he said he didn't want to sign them. Inmate Wilmoth

began to get verbally aggressive, so Deputies Carter, Cruz and | began to

exit the cell. | told Inmate Wilmoth to stay seated until we left the cell and

he continued to scream at us. Inmate Wilmoth jumped up from his desk

and charged me while | was at the door of his cell. Inmate Wilmoth was

able to punch me in the right side of my face. | was able to gain control of

Inmate Wilmoth’s upper body and took Inmate Wilmoth to the floor and

attempted to gain control of him. Deputies Carter and Cruz gained control

of his arms. Deputy Carter called “Assistance Echo” at 0504 on the radio

and placed Inmate Wilmoth into handcuffs. We secured Inmate Wilmoth

13 Plaintiff indicated he was told his property would be brought to him but it never was.

(Doc. 54-7, p. 58).

18

on the floor until backup deputies arrived. When deputies arrived | was

relieved from the situation to go to the nurse to be medically cleared.

Inmate Wilmoth is being locked down, pending a hearing, for infractions of

A4 (Assault and Battery or accessory to Battery or Extortion) and B5

(refusal to obey an order).

(Doc. 54-5, p. 3). Deputy Cruz and Deputy Carter submitted supplements to this report.

Id. at 3-4. The papers presented also contained the disciplinary charges from the

August 11, 2016, incident and a commissary inventory. /d. at 5, 8.

According to Plaintiff, Deputies Carter, Murphy, and Cruz entered his cell, woke

him up, told him to sit at the table with his hands on the table. (Doc. 54-7, p. 68). They

gave him a property form and because it did not list all his property, Plaintiff did not sign

it.14 Plaintiff did not believe they presented him with his disciplinary notice at this time as

he recalled the disciplinary notice being served on him through the door. Plaintiff

testified that at that point, Deputies Cruz and Carter exited the cell. (Doc. 54-7, p. 68).

Deputy Murphy proceeded to leave the room. /d. Plaintiff stood up and was told to sit

back down at the table. /d. Plaintiff testified that since Deputy Murphy was already out of

the cell and closing the door, he replied “f--- you” or something to that effect and also

called him a “dick sucker.” /d. at 69.

According to Plaintiff, Deputy Murphy then:

opened the door up, rushed into the cell, hit me in my face with a closed

fist. | dropped to my knees. He proceeded to punch me in my face. | went

to the floor and covered up my head with my hands. He proceeded to

punch me in the back of the head and the side of the face repeatedly while

I'm laying on the ground. . . . [While he’s punching me in the head, he’s

told me that, if | wanted to act like a b----, he’s going to treat me like a b----

and that he was going to f--- me like a b----."

14 Plaintiff testified that his property was re-inventoried and he was presented with a

new property form a couple of weeks later which he did sign. (Doc. 54-7, p. 86).

19

(Doc. 54-7, pp. 69-70) (alterations made to obscenities). Plaintiff testified that Deputy

Murphy continued to punch him in the head when Deputy Carter and Deputy Cruz re-

entered the cell and after he was handcuffed. /d. at 68. When Plaintiff saw Deputy Cruz

re-enter his cell, he recalls saying “Look, Officer Cruz, I’m not resisting; I’m not resisting;

I’m laying on the floor and noft] resisting.” /d. at 69. Meanwhile, Officer Murphy

continued to punch Plaintiff in the head while Plaintiff was telling and showing Officer

Cruz that he wasn't resisting. /d. at 69. Plaintiff stated that finally Deputy Carter and

Deputy Cruz told Deputy Murphy to “get off the dude and get out of the cell.” /d. at 69-

70. Plaintiff estimated that Deputy Murphy struck him more than ten times with six or

seven of the blows being to his face. /d. at 74. Plaintiff testified he did not strike Deputy

Murphy at all. /d. at 76. ,

Plaintiff testified that he received a second disciplinary for this instance that he

thought was uncalled for. (Doc. 54-7, p. 88).15 Had he struck Deputy Murphy in the face,

Plaintiff states he would have been charged with assault on a police officer and left in

red and white stripes. /d. at 81. Instead, he states that after the month long investigation

was completed, he was taken out of red and white stripes and put back into population.

Id. at 81-82.

He was ultimately found guilty by Sergeant Lira at a disciplinary hearing held on

the same day, August 12, 2016, and given up to 30 days of disciplinary segregation,

forty-five days to be served in disciplinary separation, and loss of privileges including

'S The resolution of these disciplinary charges was not addressed by the parties.

20

commissary, games, telephone, and visitation. (Doc. 54-5, p. 6). During the hearing,

Plaintiff reiterated that he had used obscenities towards Deputy Murphy during the

incident that morning, who quickly re-entered the cell, slammed Plaintiff to the ground,

and said that Plaintiff was “his b--- and that he would f--- me like a b---" and then

handcuffed him. /d. at 7. Plaintiff also said a Prison Rape Elimination Act (PREA)

investigation would take place. /d.

Plaintiff was examined on August 12, 2016, by a nurse following the altercation.

Plaintiff testified that as a result of Deputy Murphy’s conduct, he sustained a knot on the

right side of his forehead, knots all over the sides and back of his head, bruising to his

forearms, a cut on his eyebrow, and his eyes were swelling. (Doc. 54-7, pp. 77-78, 83).

Plaintiff also stated he started having headaches and seizures that he attributes to the

head injury. /d. at 78. Plaintiff testified that both Deputy Halez and Sergeant Lira took

pictures of his injuries.!° /d. at 77; see also Doc. 54-3, p. 13. The jail medical file

contained in the record documents that Plaintiff had three knots on his face: one on his

left forehead; one to the right upper jaw; and one on his right forehead. He complained

of pain to the right upper jaw and, as noted above, was given Ibuprofen. (Doc. 54-3, p.

13).

Plaintiff also asked to see a sergeant because he wanted to report that he had

“been threatened with sexual assault” by Deputy Murphy. (Doc. 54-7, p. 70). He was

told that it would be reported to Sergeant Lira and he would conduct an investigation. /d.

16 Plaintiff maintains he was denied access to these photos and believes Defendants did

not preserve them because the photos showed his injuries. (Doc. 81, pp. 13, 16).

However, Plaintiff has described his injuries and there is no dispute that he suffered the

physical injuries he described.

21

Plaintiff testified Sergeant Lira did not follow “proper protocol on a PREA investigation.”

ld. at 79. Plaintiff believes a proper investigation would have included reporting the

incident to the state police since Plaintiff was sentenced to the ADC and was being held

for them. /d. at 92. Plaintiff testified the state police would have handled the PREA

investigation from there. /d. at 92-93. Plaintiff knows Sergeant Lira did not do this

because Plaintiff's family contacted the state police and were told that they had not

been contacted to do an investigation. /d. at 93. Plaintiff also contends the BCDC was

required by PREA to maintain a hotline for inmates and it had no such hotline. (Doc. 81,

pp. 13, 15).

Plaintiff concedes he was wrong and should have followed Deputy Murphy’s

orders and sat down at the table. (Doc. 54-7, p. 72). However, Plaintiff maintains that

his failure to follow orders did not give Deputy Murphy the “right to come back into my

cell and punch me in the face.” /d. In fact, Plaintiff contends Deputy Murphy should not

have been allowed to come into his cell at all on August 12, 2016. /d. at 79.

On August 13, 2016, Plaintiff asked to speak to Lieutenant Martinez about his

sentence. Plaintiff stated he was given “excessive punishment” and there were “many

mistakes” on the statements used to support the disciplinary charges. (Doc. 54-4, p.

12). Plaintiff indicated he had appealed the mistakes but did not notice the excessive

punishment issue until after the appeal. /d. Lieutenant Martinez responded that he

would talk to him the following day but that what Plaintiff was claiming was wrong. /d.

According to Plaintiff, the maximum disciplinary segregation for each disciplinary was

thirty days. (Doc. 54-7, p. 85). He testified he was given forty-five days in the hole on

22

each disciplinary, a total of ninety days, when it should have only been sixty days. /d.

Plaintiff concedes he served only “thirty-something” days and was sent back to

population and received his property back at that point. /d. at 87.

On August 15, 2016, Plaintiff asked to speak with Lieutenant Holt because he

was physically and sexually assaulted on August 12, 2016. (Doc. 54-4, p. 15). He asked

for lie detector tests to be performed on him and all deputies who had been there. /d.

Plaintiff also asked to speak with the state police about the incident. /d. Finally, Plaintiff

stated there were many errors on his disciplinary charges. /d. S. Darner responded that

he would have the jail investigator speak with the Plaintiff about his claims. /d.

Plaintiff testified that Major Guyll and Sheriff Gilbert were named as defendants

because they are supervisors and responsible for the training of the officers involved in

the incidents. (Doc. 54-7, p. 94). They were not present during any of the incidents and

Plaintiff never spoke to them about the incidents. /d. at 94-95. Plaintiff testified he did

ask Sergeant Lira if he could speak to them but his request was denied. /d. at 95.

ll. LEGAL STANDARD

The Court “shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). The Court must review the facts in the light most

favorable to the opposing party and give that party the benefit of any inferences that can

be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir.

1997).

23

The moving party bears the burden of proving the absence of a genuine dispute

of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

Once the moving party has met its burden, the non-moving party must “come forward

with ‘specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S.

at 587 (quoting Fed. R. Civ. P. 56(c)). However, “the mere existence of a scintilla of

evidence in support of the plaintiff's position will be insufficient” to survive summary

judgment. Anderson v. Durham D & M, LLC, 606 F.3d 513, 518 (8th Cir. 2010) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Rather, in order for there to

be a genuine issue of material fact that would preclude summary judgment, the non-

moving party must produce evidence “such that a reasonable jury could return a verdict

for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir.

1994) (quoting Anderson, 477 U.S. at 248). However, “[w]hen opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a Court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,

380 (2007).

ill. DISCUSSION

Section 1983 provides a federal cause of action for the deprivation of a citizen's

“rights, privileges, or immunities secured by the Constitution and laws” of the United

States. In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the

defendant acted under color of state law and that he violated a right secured by the

24

Constitution. West v. Atkins, 487 U.S. 42, 48 (1988); Dunham v. Wadley, 195 F.3d

1007, 1009 (8th Cir.1999). The deprivation must be intentional as mere negligence will

not suffice to state a claim for deprivation of a constitutional right under § 1983. Daniels

v. Williams, 474 U.S. 327, 336 (1986); Davidson v. Cannon, 474 U.S. 344, 347-48

(1986).

A. The Medical Defendants’ Motion for Summary Judgment

The Medical Defendants contend they are entitled to summary judgment, for both

the individual and official capacity claims asserted against them.

1. Applicable Legal Principles

The Eighth Amendment prohibits deliberate indifference to prisoners’ serious

medical needs. Luckert v. Dodge Cnity., 684 F.3d 808, 817 (8th Cir. 2012). To prevail on

his Eighth Amendment claim, Plaintiff must prove that Defendants acted with deliberate

indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

“This principle extends to an inmate’s mental health-care needs.” Smith v. Jenkins, 919

F.2d 90, 93 (8th Cir. 1990) (citations omitted). The Eighth Circuit applies the deliberate

indifference standard to both pretrial detainees and convicted inmates. Jackson v.

Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014) (explaining that courts apply the

deliberate indifference standard used for Eighth Amendment claims to a pretrial

detainee’s claim of insufficient medical care notwithstanding the fact that the detainee’s

right to medical care arises under the Due Process Clause of the Fourteenth

Amendment).

25

The deliberate indifference standard includes “both an objective and a subjective

component: ‘The [plaintiff] must demonstrate (1) that [he] suffered [from] objectively

serious medical needs and (2) that the prison officials actually knew of but deliberately

disregarded those needs.” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000)

(quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).

To show that his e suffered from an objectively serious medical need, Plaintiff .

must show he “has been diagnosed by a physician as requiring treatment” or has an

injury “that is so obvious that even a layperson would easily recognize the necessity for

a doctor's attention.” Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (internal

quotations and citations omitted).

For the subjective prong of deliberate indifference, “the prisoner must show more

than negligence, more even than gross negligence.” Popoalii v. Corr. Med. Servs., 512

F.3d 488, 499 (8th Cir. 2008) (internal citation omitted); see also Jackson, 756 F.3d at

1065. “Deliberate indifference is akin to criminal recklessness, which demands more

than negligent misconduct.” Popoalii, 512 F.3d at 499.

It is also well settled that a “prisoner’s mere difference of opinion over matters of

expert medical judgment or a course of medical treatment fail[s] to rise to the level of a

constitutional violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal

quotation marks and citations omitted). “{I]Jnmates have no constitutional right to receive

a particular or requested course of treatment, and prison doctors remain free to exercise

their independent medical judgment.” Dulany, 132 F.3d at 1239. Moreover, “[t]he

Constitution does not require jailers to handle every medical complaint as quickly as

26

each inmate might wish.” Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 633 (8th

Cir. 2009). “A prisoner alleging a delay in treatment must present verifying medical

evidence that the prison officials ignored an acute or escalating situation or that these

delays adversely affected his prognosis.” Holden v. Hirner, 663 F.3d 336, 342 (8th Cir.

2011) (cleaned up); see also Jackson v. Riebold, 815 F.3d 1114, 1119-20 (8th Cir.

2016).

Thus, an “inmate must clear a substantial evidentiary threshold to show the

prison's medical staff deliberately disregarded the inmate’s needs by administering

inadequate treatment.” Nelson, 603 F.3d at 449. Notwithstanding this, issues of fact

exist when there is a question of whether or not medical staff exercised independent

medical judgment and whether the decisions made by medical staff fell so far below the

reasonable standard of care as to constitute deliberate indifference. See Smith v.

Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).

As for the official capacity claims, a Plaintiff “seeking to impose liability on a

municipality [or an institution] under § 1983 [must] identify a municipal ‘policy’ or

‘custom’ that caused the plaintiff's injury.” Board of Cnty. Comm'rs of Bryan Cniy., Okla.

v. Brown, 520 U.S. 397, 403 (1997). “There are two basic circumstances under which

municipal liability will attach: (1) where a particular municipal policy or custom itself

violates federal law, or directs an employee to do so; and (2) where a facially lawful

municipal policy or custom was adopted with ‘deliberate indifference’ to its known or

obvious consequences.” Moyle v. Anderson, 571 F.3d 814, 817-18 (8th Cir. 2009)

27

(citation omitted); see also Jenkins, 557 F.3d at 633 (Plaintiff must point to “[an] officially

accepted guiding principle or procedure that was constitutionally inadequate’).

2. Individual Capacity Claims

There is no dispute that Plaintiff suffered from serious mental health needs. The

dispute here centers on whether the Medical Defendants exhibited deliberate

indifference to those needs.

Plaintiff contends his rights were violated in the following ways: he was not given

an intake visit; he was not given his mental health medication in a timely manner; he

suffered withdrawal symptoms from not being given Klonopin; he was given Trazodone

differently than prescribed by his private physician; he did not receive Lithium until he

had suffered a mental health episode; his allergy to Lithium was not addressed ina

timely manner; and his medication was passed out by untrained deputies.

With respect to the lack of an intake visit, the Court will assume, for purposes of

this motion, that Plaintiff did not refuse an intake screening.” Plaintiff brought no

medication to the jail with him. He did list the medication he was taking on the medical

questionnaire. Nurse Ray took steps to verify his medication by asking his family to

bring his medication to the jail and by working with Plaintiff and his family to obtain his

medical records. Plaintiff did not submit his first medical request until July 18, 2016.

Neither this request nor any other request submitted by Plaintiff made any mention that

17 Although the Court mentions below how the record evidence indicates that the

Medical Defendants responded to all of Plaintiff's medical needs (including trying to

acquire medicine for him that he had been taking prior to incarceration), the Court would

note at the outset that there is no constitutional right to an intake examination. See, □□□□□

Shook v. Bd. of Cnty. Comm'rs of El Paso, 216 F.R.D. 644, 648 (D. Colo. 2003), rev'd

on other grounds, 386 F.3d 963 (10th Cir. 2004).

28

he suffered withdrawal as a result of not having his Klonopin. He never asked to be

seen because of any withdrawal symptoms he was suffering. In short, his booking

medical questionnaire was reviewed and steps were taken to verify his medication

through his medical records. Thus, there is no evidence of deliberate indifference due to

the lack of an intake visit.

Plaintiff also maintains that his mental health needs were not addressed in a

timely manner. He alleges that this adversely impacted his behavior and resulted in his

having a mental health episode on August 11, 2016. The record shows that on July 18,

2016, Plaintiff asked why he was not receiving the medication his family brought to the

jail. Nurse Ray promptly responded that the only medication dropped off was Plaquenil

and the discontinue date of the medication was May 15, 2016. Once Plaintiff advised

the Medical Defendants that he was taking the medication for a skin condition, Plaquenil

was prescribed for him the following day. The record also indicates that Nurse Ray and.

Plaintiff's family continued to work at getting his medical records.

On July 27, 2016, Dr. Saez prescribed Trazodone for depression and anxiety.

Plaintiff objected to the prescription because he was being given the medication in the

morning instead of the evening as ordered by his private physician. He also contends

he was given the medication to help him sleep and not for depression and anxiety. The

medication was discontinued on July 28, 2016. That same day, his blood was drawn

and, when received, the results were sent to Plaintiff's private physician.

On August 12, 2016, Plaintiff was prescribed Lithium. Plaintiff suffered an allergic

reaction and the Lithium prescription was discontinued. On August 22, 2016, he was

29

prescribed Zyprexa and the dosage was ultimately increased on two occasions.

Plaintiffs other medical requests were addressed promptly and he was prescribed

medication including Flexeril and Ibuprofen.

While there was some delay in obtaining or prescribing Plaintiffs mental health

medication, the delay does not constitute evidence of deliberate indifference. The

summary judgment record establishes that steps were being taken to verify his mental

health diagnoses and his prescriptions for mental health medications. Medical

authorizations were obtained from Plaintiff and either sent to the medical care providers

or provided to the family to obtain the records.

Plaintiff also argues that his rights were violated when he was in segregation and

his medication was provided to him by an untrained deputy instead of the nurse. This

does not state a claim of constitutional dimension. See, e.g., McClain v. Howard, 2015

WL 6123063, at *9 (W.D. Ark. Sept. 21, 2015) (claim that medically trained staff do not

pass out medication fails to state a claim of constitutional dimension); Daniel v. George,

2015 WL 3970787, at *4 (M.D. Tenn. June 29, 2015) (fact that guards were distributing

medication did not state a constitutional claim); Booker v. Herman, 2006 WL 2457230,

at *5 (N.D. Ind. Aug. 22, 2006) (“While it might be a good practice, tradition, or even

state law to require that only medical staff can deliver medication, the Constitution does

not prohibit guards from distributing medication to inmates. This allegation states no

claim upon which relief can be granted.”).

The Medical Defendants are entitled to summary judgment on all individual

capacity claims asserted against them.

30

3. Official Capacity Claims

The Medical Defendants contend they are also entitled to summary judgment on

the official capacity claims. The Court agrees.

As discussed above, “[ojfficial-capacity liability under 42 U.S.C. § 1983 occurs

only when a constitutional injury is caused by a government's policy or custom.”

Grayson v. Ross, 454 F.3d 802, 810-11 (8th Cir. 2006) (citation and internal quotation

marks omitted). Here, Plaintiff points to the existence of no such policy or custom that

was the motivating factor behind the alleged deprivations of his constitutional rights.

There are no genuine issues of material fact as to the Medical Defendants’ official

capacity liability. Thus, the Medical Defendants are entitled to summary judgment on the

official capacity claims asserted against them.

All of the claims asserted against the Medical Defendants are, therefore,

DISMISSED WITH PREJUDICE.

B. The County Defendants’ Motion for Summary Judgment

The County Defendants contend they are entitled to judgment in their favor for

the following reasons: (1) there is no proof of any personal involvement by Sheriff

Gilbert or Captain Guyll; (2) the force used by Deputy Murphy was reasonable in light of

the circumstances; (3) Plaintiff was provided with Due Process; (4) Sergeant Dowyer

did not fail to train or supervise; (5) Defendants are entitled to qualified immunity; and

(6) there is no basis for official capacity liability. The Court considers each reason in

turn.

31

1. Individual or Supervisory Liability on the part of Sheriff Gilbert, Captain Guyll,

or Sergeant Dowyer

Plaintiff contends Sheriff Gilbert, Captain Guyll, and Sergeant Dowyer are liable

because they are supervisors over the Defendants involved in the incidents. A claim of

deprivation of a constitutional right cannot be based on a respondeat superior theory of

liability. See Monell v. Dep't of Soc. Servs., 436 U.S. 654, 694 (1978). “A supervisor is

not vicariously liable under 42 U.S.C. § 1983 for an employee’s unconstitutional

activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see also Keeper v. King,

130 F.3d 1309, 1314 (8th Cir. 1997) (noting that “general responsibility for supervising

the operations of a prison is insufficient to establish the personal involvement required

to support liability”).

“Liability under section 1983 requires a causal link to, and direct responsibility for,

the deprivation of rights. To establish personal liability of the supervisory defendants,

[Plaintiff] must allege specific facts of personal involvement in, or direct responsibility

for, a deprivation of his constitutional rights.” Clemmons v. Armontrout, 477 F.3d 962,

967 (8th Cir. 2007) (quoting Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)).

No such personal involvement is alleged to exist here. In fact, at least with

respect to Sheriff Gilbert and Captain Guyll, Plaintiff concedes they were not personally

involved in any the events forming the basis of his Complaint.

Absent direct personal participation, a supervisor may be held individually liable

only if:

a failure to properly supervise and train the offending employee caused

the deprivation of constitutional rights. The plaintiff must demonstrate that

the supervisor was deliberately indifferent to or tacitly authorized the

32

offending acts. This requires a showing that the supervisor had notice that

the training procedures and supervision were inadequate and likely to

result in a constitutional violation.

Andrews v. Fowler, 98 F. 3d 1069, 1078 (8th Cir. 1996) (citations omitted).

Plaintiff has made no showing of deliberate indifference or tacit authorization on

the part of Sheriff Gilbert, Captain Guyll, or Sergeant Dowyer. Nor has Plaintiff made

any showing that they had any notice that Deputy Murphy's training procedures or

supervision were so inadequate that it was likely to result in a constitutional violation.

Sheriff Gilbert and Captain Guyll are entitled to summary judgment on all

individual capacity claims asserted against them, and Sergeant Dowyer is entitled to

summary judgment on all supervisory liability claims.

2. Use of Force by Deputy Murphy

Plaintiff was a pretrial detainee on the dates in question.’® The Due Process

Clause of the Fourteenth Amendment protects pretrial detainees from “the use of

excessive force that amounts to punishment.” Graham v. Connor, 490 U.S. 386, 395

n.10 (1989) (citation omitted). Any punishment of a pretrial detainee violates the Due

Process Clause. Edwards v. Byrd, 750 F.3d 728, 732 n.2 (8th Cir. 2014). Any use of

force is unconstitutional if the force was used to “injure, punish, or discipline” a detainee.

id. at 732. A use of force does not amount to unconstitutional punishment if it is “but an

incident of some other legitimate governmental purpose.” Bell v. Wolfish, 441 U.S. 520,

535, 538 (1979).

18 The summary judgment record establishes that Plaintiffs parole revocation did not

occur until August 17, 2016. (Doc. 54-2, p. 2).

33

"We analyze the excessive force claims of pretrial detainees under an objective

reasonableness standard.” Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017) (citing

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2470 (2015)). In determining whether a given

use of force was reasonable or excessive, the Court in Kingsley said the following may

bear on the issue:

the relationship between the need for the use of force and the amount of

force used; the extent of the plaintiffs injury; any effort made by the officer

to temper or to limit the amount of force; the severity of the security

problem at issue; the threat reasonably perceived by the officer; and

whether the plaintiff was actively resisting.

Kingsley, 135 S.Ct. at 2473. The Court noted that the list was not exclusive but instead

only illustrated the “types of objective circumstances potentially relevant to a

determination of excessive force.” /d. “We must assess the actions of each officer from

the perspective of a reasonable officer on the scene, including what the officer knew at

the time, not with the 20/20 vision of hindsight.” Ryan, 850 F.3d at 427 (internal

quotation marks and citation omitted).

With respect to the incident occurring in the control pod on August 11, 2016,

there are no genuine issues of material fact as to whether Deputy Murphy used

excessive force. The video shows that Plaintiff was becoming agitated, was failing to

keep his hands behind his back, and when Deputy Carter stepped forward with the

handcuffs, Plaintiff came off the wall and turned towards him abruptly and threw his

arms up in the air. Plaintiff was taken to the ground and held there until he was

handcuffed. There is no indication that more force was used than necessary to obtain

and maintain control of the Plaintiff.

34

However, with respect to the incident in Plaintiffs cell on August 12, 2016,

viewing the evidence in the light most favorable to Plaintiff, the Court finds that there are

genuine issues of material fact as to whether Deputy Murphy used excessive force

against the Plaintiff. The video of that incident does not show what occurred within the

cell. However, it is undisputed that Plaintiff suffered physical injuries as a result of

Deputy Murphy’s use of force. What the Court is left with are contradictory versions of

what occurred in the cell—one advanced by Deputies Murphy, Carter, and Cruz, and a

competing version advanced by the Plaintiff. Because of these genuine issues of

material fact, the Court must deny summary judgment to Deputy Murphy as it relates to

this incident.

With respect to Deputy Murphy's use of sexually offensive language on August

12, 2016, and his alleged threat of further force on August 11, 2016, these incidents do

not rise to the level of a constitutional violation. Taunts, name calling, and the use of

offensive language do not state a claim of constitutional dimension. McDowell v. Jones,

990 F.2d 433, 434 (8th Cir. 1993) (inmate’s claims of general harassment and of verbal

harassment were not actionable under § 1983). Similarly, verbal threats do not

constitute a constitutional violation. Martin v. Sargent, 780 F.2d 1334, 1139 (8th Cir.

1985) (being called an obscene name and threatened with adverse consequences for

failure to follow an order does not state a claim of constitutional dimension); O'Donnell

v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse by jail officials

did not rise to the level of a constitutional violation).

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Deputy Murphy is entitled to summary judgment on all claims except the claim

stemming from the incident that occurred in the Plaintiffs cell on August 12, 2016.

3. Claims against the Remaining Defendants

Plaintiff contends his rights were violated by the fact that Sergeant Dowyer was

present on August 12, 2016, and did not fill out an incident report. This claim is without

merit. Incident reports were completed by the three deputies who were in the cell or at

the doorway when the force was used. Sergeant Dowyer is merely one of the many

officers who responded to the call for assistance. She did not witness the use of force.

Next, he contends Sergeant Dowyer and Corporal Kemp are constitutionally

liable because they made the decision not to give him his property for the period of time

from the incident on August 11, 2016, when he was put on lock down pending his

disciplinary hearing, until his disciplinary hearing on August 12, 2016. Plaintiff concedes

he was not entitled to have his property after he was found guilty at the disciplinary

hearing. The deprivation of property for this short period of time does not state a claim

of constitutional dimension.

Even if we assume the deprivation was wrongful, no Due Process claim is stated.

When an individual is intentionally deprived of his personal property, the Supreme Court

has held that due process is satisfied if the individual has adequate state post-

deprivation remedies. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional

deprivation of property does not violate due process when meaningful post-deprivation

remedy is available). In this case, a post-deprivation remedy is available because

Arkansas recognizes a cause of action for conversion. Elliot v. Hurst, 307 Ark. 134, 138

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(1991) (cause of action for conversion lies where distinct act of dominion is exerted over

property in denial of owner's right).

Plaintiff also contends Corporal Kemp threatened him following the August 11,

2016, incident when he was being moved to E-pod. Specifically, Plaintiff maintains

Corporal Kemp threatened to beat him if he found out Plaintiff had swung on one of his

officers. As noted above, verbal threats do not state a claim of constitutional dimension.

With respect to Sergeant Lira, Plaintiff contends he failed to conduct a proper

PREA investigation. PREA does not establish a private right of action and Plaintiff

cannot use the requirements of the PREA statute to establish deliberate indifference on

the part of Sergeant Lira. See, e.g., Bowens v. Wetzel, 674 Fed. Appx. 133, 137 (3d Cir.

2017) (noting that there was no private cause of action under the PREA and that a

plaintiff “may not attempt to enforce statutes that do not themselves create a private

right of action by bootstrapping such standards into a constitutional deliberate

indifference claim’).

Sergeant Dowyer, Corporal Kemp, and Sergeant Lira are entitled to summary

judgment on these claims.

4. Due Process in connection with the Disciplinary Hearing

Plaintiff contends Sergeant Lira and Lieutenant Martinez are liable for having

sentenced him for more than thirty days of disciplinary lock down following the

disciplinary hearing. The Supreme Court set forth the Due Process requirements for

disciplinary hearings in the case of Wolff v. McDonnell, 418 U.S. 539, 556, 563 (1974).

The Court held that a prisoner was entitled to receive “(1) advance written notice of the

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disciplinary charges; (2) an opportunity, when consistent with institutional safety and

correctional goals, to call witnesses and present documentary evidence in his defense;

and (3) a written statement by the fact finder of the evidence relied on and the reasons

for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). There must

also be some evidence supporting the finding of guilt. /d. Here, Plaintiff's sole challenge

is to the sentence he received.

Any claims concerning Plaintiff's disciplinary charge conviction and sentence are

barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held

that a claim for damages for “allegedly unconstitutional conviction or imprisonment, or

for other harm caused by actions whose unlawfulness would render a conviction or

sentence invalid” is not cognizable until “the conviction or sentence has been reversed

on direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such a determination, or called into question by a federal court's

issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87. The Court noted that if

a successful claim would not demonstrate the invalidity of an outstanding criminal

judgment, it should be allowed to proceed. /d.

The Heck doctrine applies to inmate disciplinary proceedings. Edwards v.

Balisok, 520 U.S. 641 (1997); Portley-El v. Brill, 288 F.3d 1063 (8th Cir. 2002). An

inmate’s challenge to the validity of a disciplinary conviction is barred by Heck.

Edwards, 520 U.S. at 646-48. Thus, Heck requires favorable termination of the

disciplinary charge “in an authorized state tribunal or a federal habeas court, even if the

claim is for damages rather than earlier release.” Sheldon v. Hundley, 83 231, 233 (8th

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Cir. 1996); Cincoski v. Richard, 418 Fed App’x 571, 571-72 (8th Cir. 2011) (Plaintiff's

claims regarding his disciplinary convictions, including restoration of good-time credits,

declaratory relief, and damages based on those convictions were Heck-barred.)

Sergeant Lira and Lieutenant Martinez are entitled to summary judgment on this

claim.

5. Qualified Immunity

Having found that the facts do not make out a constitutional violation as to all

Defendants except Deputy Murphy, the remaining Defendants are entitled to qualified

immunity. See, e.g., Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009) (unless the

facts make out a violation of a constitutional right, the Defendant is entitled to qualified

immunity). Additionally, Deputy Murphy is entitled to qualified immunity as to the August

11, 2016, incident. However, the Court must still consider whether Deputy Murphy is

entitled to qualified immunity for the incident in Plaintiff's cell on August 12, 2016.

“(G]overnment officials performing discretionary functions, generally are shielded

from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The qualified immunity

standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the plainly

incompetent or those who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224,

229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341 (1986)). The inquiry is

normally one of pure law. J.H.H. v. O'Hara, 878 F.2d 240, 243 (8th Cir. 1989).

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To survive a summary judgment motion on qualified immunity grounds, the

Plaintiff must establish that there is a genuine issue of material fact as to whether

Deputy Murphy violated his clearly established constitutional rights. Habiger v. City of

Fargo, 80 F.3d 289, 295 (8th Cir. 1996). Two inquiries are required in analyzing a claim

of qualified immunity: (1) do the “facts alleged or shown, construed in the light most

favorable to the Plaintiff, establish a violation of a constitutional rights;” and (2) was the

“right clearly established as of [the date of the alleged violation], such that a reasonable

official would have known that his actions were unlawful.” Krout v. Goemmer, 583 F.3d

557, 564 (8th Cir. 2009).

As discussed above, with respect to the August 12, 2016, incident, the facts as

reported by Plaintiff establish a violation of his right to be free from the excessive use of

force. Plaintiff maintains that he was not resisting and despite this Deputy Murphy

continued hitting him. The right of a pretrial detainee to be free from the use of

excessive force under such circumstances was clearly established in 2016. See, e.g.,

Edwards v. Byrd, 750 F.3d 728, 732 (8th Cir. 2014) (clearly established that the use of

force against a pretrial detainee who was not resisting or being aggressive was

unconstitutional under the Fourteenth and Eighth Amendments); United States v. Miller,

477 F.3d 644, 647-48 (8th Cir. 2007) (holding that kicking and stomping on an inmate

without just cause or reason would violate the Eighth Amendment). Of course, the

County Defendants deny Plaintiff's version of the facts. But, just as in Edwards, the

video evidence does not show the inside of Plaintiff's cell—where the conduct at the

heart of this claim occurred—and therefore cannot either confirm or refute Plaintiff's

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evidence (including his testimony that he was not resisting and the undisputed fact that

Plaintiff suffered injuries stemming from the incident). As a result, material fact issues

remain as to Deputy Murphy’s conduct given that the Court is left with competing

versions of what happened in Plaintiffs cell on August 12, 2016, both of which are

supported by evidence in the record.

Therefore, because Plaintiff has alleged sufficient facts that, when construed in

the light most favorable to him, would make out a violation of a right that was clearly

established at the time of the incident, the Court must deny Deputy Murphy's motion for

summary judgment on the basis of qualified immunity.'9

6. Official Capacity Liability

As noted above, a governmental entity can only be held liable if the alleged

constitutional injury results from a policy or custom. Monell, 436 F.3d at 691. Here,

Plaintiff has pointed to no policy or custom that was the motivating factor behind the

alleged constitutional violation.

Official capacity liability can also be based on a failure to train or supervise the

offending actor who caused the deprivation. Audio Odyssey, Ltd. v. Brenton First Natl.

Bank, 245 F.3d 721, 742 (8th Cir. 2001). In Parrish v. Ball, 594 F.3d 993 (8th Cir. 2010),

the Court set forth the requirements for liability for failure to supervise. For officials to be

18 The Court further notes, mainly for the parties’ reference, that although the denial of

qualified immunity is ordinarily subject to interlocutory appeal, when such a denial turns

on a question of evidence sufficiency—as it does here—the Court of Appeals will lack

jurisdiction to rule on the issue. See Kahle v. Leonard, 477 F.3d 544, 549 (8th Cir.

2007). “Put another way, if the issues relate to whether the actor actually committed the

act of which he is accused . . . [the Court of Appeals] ha[s] no jurisdiction to review them

in an interlocutory appeal.” /d. (quotation marks and citation omitted).

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held liable on the basis of a failure to supervise, the Plaintiff must show the supervisory

official: “1) Received notice of a pattern of unconstitutional acts committed by

subordinates; 2) Demonstrated deliberate indifference or tacit authorization of the

offensive acts; 3) Failed to take sufficient remedial action; and 4) That such failure

proximately caused injury to [Plaintiff]. 594 F.3d at 1002 (citations omitted). Here,

“there is no showing of previous illegalities [on the part of Deputy Murphy] that [placed

the supervisory officials] on the requisite notice.” Audio, 245 F.3d at 742. Thus, any

official capacity liability claim based on a failure to supervise claim fails.

A local government may also be held liable for the failure to train its employees

“where (1) the [county's] . . . training practices were inadequate; (2) the [county] was

deliberately indifferent to the rights of others in adopting them, such that the failure to

train reflects a deliberate or conscious choice by [the county]; and (3) an alleged

deficiency in the . . . training procedures actually caused the plaintiff's injury.” Parrish,

594 F. 3d at 997 (cleaned up). To satisfy this standard, Plaintiff must show more than

that a single officer was unsatisfactorily trained, he must demonstrate

that in light of the duties assigned to specific officers . . . the need for more

or different training is so obvious, and the inadequacy so likely to result in

the violation of constitutional rights, that the policymakers of the [county]

can reasonably be said to have been deliberately indifferent to the need.

City of Canton, Ohio, 489 U.S. 378, 390 (1989).

Plaintiff has made no such showing here. He just asserts that Deputy Murphy

used excessive force against him on two occasions and threatened him with sexual

assault during one of those events. This falls far short of making the showing required

by the Supreme Court to establish liability on behalf of Benton County.

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The County Defendants are entitled to summary judgment on all official liability

claims.

IV. CONCLUSION

The Motion for Summary Judgment (Doc. 49) filed by Dr. Saez, Nurse Ray, and

Nurse Smith is GRANTED and all claims against them are DISMISSED WITH

PREJUDICE.

The Motion for Summary Judgment (Doc. 52) filed by the County Defendants,

Sheriff Gilbert, Lieutenant Martinez, Sergeant Lira, Deputy Murphy, Corporal Kemp,

Sergeant Dowyer, and Major Guyll, is GRANTED IN PART AND DENIED IN PART.

Specifically, it is granted with respect to all claims against Sheriff Gilbert, Lieutenant

Martinez, Sergeant Lira, Corporal Kemp, Sergeant Dowyer, and Major Guyll. The

motion is denied with respect to the claim against Deputy Murphy in his individual

capacity based on the August 12, 2016, incident. Deputy Murphy is, however, entitled to

summary judgment with respect to the August 11, 2016, incident.

The excessive force claim against Deputy Murphy in his individual capacity

stemming from the August 12, 2016, nent will be set for trial.

IT IS SO ORDERED on this 0 cay of Febuan20'8

MOTHY L. BROOKS

UNITED STATES DISTRICT JUDGE

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