Waller v. Means

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

KENNETH WAYNE WALLER PLAINTIFF

v. Civil No. 1:15-CV-01010

NURSE SHERI RICE; CAPTAIN DEFENDANTS

MITCHAM; and SHERIFF MIKE

MCGOUGH

MEMORANDUM OPINION

Plaintiff proceeds in this matter pro se and in forma pauperis pursuant to 42 U.S.C. § 1983.

Currently before the Court is Defendants’ Motion for Summary Judgment. (ECF No. 28). Plaintiff

has responded. (ECF No. 34). Defendants have filed a reply. (ECF No. 36).

I. BACKGROUND

Plaintiff filed his Complaint on February 13, 2015. (ECF No. 1). At the time Plaintiff filed

his Complaint he was an inmate1 of the Union County Detention Center (“UCDC”). Plaintiff is

not currently incarcerated. Plaintiff alleges he received “poor medical care” for his chronic heart

condition from Defendant Rice. (ECF No. 1, pp. 4-5). Plaintiff further alleges that on January 21,

2015, Defendants McGough and Mitcham ordered him to be moved to the nursing station for the

remainder of his confinement. (ECF No. 1, p. 5). Plaintiff claims he was told that he would “be

observed by staff and Nurse Rice every 15 mins.” (Id.). Plaintiff states that when he was moved

to the nursing station he was placed in a cell that was infested with ants, had no hot water, and he

was “denied to take showers or personal hygiene.” (Id.). He further alleges he was placed “in

isolation away from the kiosk denied visitation from my family and access to continue to utilize

1 Plaintiff was identified as a pretrial detainee in Defendants’ summary judgment documents.

my First Amendment [right] to file grievances on the inhumane treatment as an inmate and being

punish for asking for immediately cardiac attention to treat my severe chest pains.” (Id.). He also

claims Defendants McGough and Mitchell put him in isolation with Defendant Rice “to keep from

dealing with grievances2 and providing the information I requested under the Freedom of

Information Act.” (Id.).

Defendants filed their Motion for Summary Judgment on October 11, 2017. (ECF No. 28).

That same day, the Court entered an Order directing Plaintiff to file a response to the Summary

Judgment Motion by November 1, 2017. (ECF No. 31). The Court subsequently granted

Plaintiff’s request for an extension. (ECF No. 33). Plaintiff responded on November 29, 2017,

filing his Brief Answers in Response (ECF No. 34) and Statement of Undisputed Facts (ECF No.

35). Defendants replied on December 6, 2017, noting Plaintiff alleged unconstitutional false

imprisonment for the first time in his Brief Answers in Response.3 (ECF No. 36).

Defendants argue Plaintiff’s case should be dismissed for the following reasons: (1)

Plaintiff stated no official capacity claims against Defendant McGough or Union County; (2)

Plaintiff failed to provide any evidence of deliberate indifference to his medical needs by

Defendant Rice; (3) Defendants McGough and Mitcham were not deliberately indifferent to

Plaintiff’s medical needs because they are non-medical officials who believed he was being

adequately cared for by medical staff and there was no evidence of deliberate indifference4; (4)

Plaintiff, a pretrial detainee, was placed in one of the nurses’ station medical observation cells to

monitor his cardiac condition, not as punishment; and (5) Plaintiff did not allege he was deprived

2 Plaintiff attached several grievances to his Complaint. As these grievances all mention Plaintiff’s concerns about

his medical care, and the response was to place Plaintiff in a medical observation cell in the nursing station, the Court

does not interpret this statement to constitute a First Amendment retaliation claim.

3 As this claim has been untimely submitted, it will not be considered.

4 Although Plaintiff’s Complaint is not a model of clarity or detail, it appears that his only allegations against

Defendants Mitcham and McGough are that they placed him in the medical observation cell in the nursing station. It

is, therefore, not necessary to address this argument.

of any identifiable human need while in the observation cell for, at most, ten days. (ECF No. 29,

pp. 7-11).

Plaintiff filed two documents in response to the Summary Judgment Motion—his Brief

Answers in Response (ECF No. 34) and his Statement of Undisputed Facts (ECF No. 35). The

Statement of Undisputed Facts does not comply with the Court’s Order (ECF No. 31) directing

Plaintiff to identify each numbered paragraph that contains facts which he disputes and, for each

paragraph, explain why he disputes those facts. Instead, in his Statement of Undisputed Facts

Plaintiff repeatedly referred to unidentified responses which were to be incorporated by reference.

For example, Plaintiff’s response to Defendants’ Statement of Fact Paragraph One reads as

follows:

See, Plaintiff’s response to Defendants’ Paragraph #1, as stated therein are hereby

incorporated by reference and repeated with full force and effect as if fully re-stated

here. In the interest of judicial economy, those objections will not be repeated

except to say that, for the same reasons stated in those objections.

(ECF No. 35, p. 1). The Court cannot identify what response Plaintiff is referring to in this

statement. With the exception of Paragraphs Six and Eight, this response is repeated, with minor

non-substantive variations, for all Defendants’ Statement of Facts. Plaintiff, thus, only disputes

facts in Paragraphs Six and Eight of Defendants’ Statement of Facts. Accordingly, Defendants’

other Statement of Facts are deemed admitted pursuant to Local Rule 56.1(c).

In Paragraph Six, Defendants state that “Plaintiff was booked into the Union County

Detention Center on December 27, 2014. Plaintiff reported a heart condition during the booking

procedure and listed several medications he takes.” (ECF No. 30, ¶ 6). Plaintiff disputes this

statement as follows: “Plaintiff family delivery and gave the deputy on duty all medication Plaintiff

takes. The weekend nurse on went over meds with Plaintiff.” (ECF No. 35 at ¶ 6 objection).

Plaintiff, thus, disputes that the medications were merely listed; he instead asserts his family

delivered all of his medications to the facility on the day of his arrest and the weekend nurse

reviewed them with him.

In Paragraph Eight, Defendants state “Plaintiff was brought to Nurse Rice on January 6,

2015, to address complaints about his medication he was not receiving.” (ECF No. 30, ¶ 8).

Plaintiff disputes that he was brought to Nurse Rice on this date and states he offers additional

material facts. (ECF No. 35, ¶ 8). Plaintiff does not identify these alleged material facts. Plaintiff

did, however, attach a copy of a kiosk grievance dated January 6, 2015, to his Complaint. The

date of the grieved incident was January 6, 2015. In it, Plaintiff states he visited Nurse Rice that

day and was unhappy with the medical care received. (ECF No. 1, p. 7). Plaintiff’s dispute

concerning this fact is therefore contradicted by his own submitted documentation. Accordingly,

Paragraph Eight of Defendants’ Statement of Undisputed Facts is deemed admitted.

II. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), the record “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).

“Once a party moving for summary judgment has made a sufficient showing, the burden rests with

the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a

genuine issue of material fact exists.” Nat’l Bank of Commerce v. Dow Chemical Co., 165 F.3d

602, 607 (8th Cir. 1999).

The non-moving party “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient

evidence to support a jury verdict in their favor.” Nat’l Bank, 165 F.3d at 607 (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is

insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d

621, 625 (8th Cir. 1985)). “When 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).

III. DISCUSSION

A. Official Capacity Claims

Under Section 1983, a defendant may be sued in either his individual capacity, or in his

official capacity, or in both. In Gorman v. Bartch, the Eighth Circuit Court of Appeals discussed

the distinction between individual and official capacity suits. As explained in Gorman:

Claims against government actors in their individual capacities differ from those in

their official capacities as to the type of conduct that is actionable and as to the type

of defense that is available. See Hafer v. Melo, 502 U.S. 21 (1991). Claims against

individuals in their official capacities are equivalent to claims against the entity for

which they work; they require proof that a policy or custom of the entity violated

the plaintiff’s rights, and the only type of immunity available is one belonging to

the entity itself. Id., 502 U.S. at 24B27. Personal capacity claims, on the other

hand, are those which allege personal liability for individual actions by officials in

the course of their duties; these claims do not require proof of any policy and

qualified immunity may be raised as a defense. Id., 502 U.S. at 25B27.

Gorman, 152 F.3d 907, 914 (8th Cir. 1998). “[R]igorous standards of culpability and causation

must be applied to ensure that the [county] is not held liable solely for the actions of its employee”

in cases where a plaintiff claims a county has caused an employee to violate the plaintiff’s

constitutional rights. Board of Cnty Comm’rs, Okla. v. Brown, 520 U.S. 397, 405 (1997).

In the present case, Plaintiff has not alleged that any custom or policy of Union County

caused the alleged violation of his rights. Accordingly, his official capacity claims should be

dismissed.

B. Denial of Medical Care

In his Complaint, Plaintiff alleges that he received “poor medical care” while incarcerated

at the UCDC.

The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate

indifference to prisoners’ serious medical needs. Luckert v. Dodge Cnty, 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). 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 he suffered from an objectively serious medical

need Plaintiff must show that 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, and mere disagreement with treatment

decisions does not rise to the level of a constitutional violation.” Popoalii v. Corr. Med. Servs,

512 F.3d 488, 499 (8th Cir. 2008) (internal citation omitted). “Deliberate indifference is akin to

criminal recklessness, which demands more than negligent misconduct.” Id.

It is 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). 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.” Id.

Despite 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). The objective seriousness of any delay in treatment must be measured

by reference to the effect of delay, which must be shown by verifying medical evidence in the

record. Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005).

There is no dispute that Plaintiff’s cardiac issues constituted an objectively serious medical

condition. There is, however, no evidence in the record that Defendant Rice was deliberately

indifferent to Plaintiff’s medical needs during his incarceration between December 27, 2014, and

January 30, 2015.5 To the contrary, Plaintiff’s own documentation shows he was seen by a

physician on January 12, 2015, and January 19, 2015. (ECF No. 1, p. 6). Plaintiff saw a facility

physician again on January 26, 2015, and his medication was adjusted. Plaintiff was seen by other

medical staff on January 6, 2015, January 12, 2015, January 28, 2015, and January 29, 2015. (ECF

No. 30, ¶¶ 8, 10). Furthermore, Plaintiff was moved to the medical observation unit on January

21, 2015, after stating he was experiencing problems with his pacemaker, an increase in angina,

and shortness of breath. (ECF No. 1, p. 10; ECF No. 29-8). Other portions of the record indicate

Plaintiff refused to see the facility physician on January 17, 2015, asking instead to see his own

cardiac specialist. (ECF No. 30, ¶ 12). No reasonable jury could find that Defendants acted with

deliberate indifference to Plaintiff’s cardiac condition under these facts.

Plaintiff has also submitted copies of four grievances as support for his claim that he

received “poor medical care” while an inmate of the UCDC. Those grievances concern claims that

5 The charges against Plaintiff were dropped, and he was released from custody on January 30, 2015. (ECF No. 29-

1).

he did not receive his prescribed medications and at times received the wrong medications.

However, the allegations in all four grievances are either directly contradicted by the record or

otherwise fail to give rise to any genuine issues of material fact as Plaintiff has not submitted any

verifying medical evidence indicating that his cardiac condition, cardiac prognosis, or general

health were negatively affected by any delays in obtaining medication refills or any other

medication issues.

Based on the summary judgment evidence before the Court, it is clear that Plaintiff received

continual care while incarcerated at the UCDC. Accordingly, there is no genuine issue of material

fact concerning Plaintiff’s allegation of “poor medical care” and Defendant Rice is entitled to

judgment as a matter of law.

C. Isolation Claim

Plaintiff alleges Defendants McGough and Mitchell ordered him moved to isolation in the

nursing station on January 21, 2015, for the remainder of his confinement. (ECF No. 1, p. 5).

The Eighth Circuit has stated that “[p]retrial detainees are presumed innocent and may not

be punished.” Martinez v. Turner, 977 F.2d 421, 423 (8th Cir. 1992) (citing Bell v. Wolfish, 441

U.S. 520, 535 (1979). “However, not every disability imposed during pretrial detention amounts

to ‘punishment’ in the constitutional sense.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996).

In determining whether a particular restriction constitutes a permissible restriction or amounts to

impermissible punishment, the court first asks “whether the restriction is based upon an express

intent to inflict punishment.” Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir. 2002). If “there

is no indication of such an express intent,” the court next considers “whether punitive intent can

be inferred from the nature of the restriction.” Id., 302 F.3d at 1045.

In this regard, the Supreme Court in Bell v. Wolfish held that “if a particular condition or

restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does

not, without more, amount to ‘punishment.’” Bell, 441 U.S. at 539. “An action may be reasonably

related to a legitimate governmental purpose if an alternative purpose to which the act may

rationally be connected is assignable for it and the action does not appear excessive in relation to

the alternative purpose assigned.” Robles v. Prince George’s Cnty, Md., 302 F.3d 262, 269 (4th

Cir. 2002) (internal citations and punctuation omitted).

A reasonable relationship between the governmental interest and the challenged

restriction does not require an “exact fit,” nor does it require showing a “least

restrictive alternative.” Otherwise, every administrative judgment would be subject

to the possibility that some court somewhere would conclude that it had a less

restrictive way of solving the problem at hand. Moreover, it does not matter

whether we agree with the defendants or whether the policy in fact advances the

jail’s legitimate interests. The only question that we must answer is whether the

defendants’ judgment was rational, that is, whether the defendants might

reasonably have thought that the policy would advance its interests.

Valdez, 302 F.3d at 1046. Furthermore, there are clearly legitimate non-punitive reasons for

placing individuals with serious health problems in a separate housing unit from other inmates.

See e.g., Brown-El v. Delo, 969 F.2d 644, 647 (8th Cir. 1992) (detention center has a legitimate

interest in segregating individual inmates from general population for non-punitive reasons, such

as where there is a threat to the safety and security of the institution).

In the present case, Plaintiff has presented no evidence of punitive intent on the part of the

Defendants. The record, including Plaintiff’s submitted documentation, indicates the decision to

move Plaintiff to the medical observation unit in the nursing station was clearly made to safeguard

his health—a legitimate governmental purpose. In his booking report, Plaintiff stated he had

undergone heart surgery a week prior to his arrest, had nitroglycerin on his person, had Stage Three

angina, and took several heart medications. (ECF No. 29-2, p. 1; ECF No. 30, ¶ 6). Plaintiff then

filed several medical grievances, including a grievance on January 19, 2015, which stated he

needed a cardiac specialist because he was experiencing an increase in angina, chest pains,

shortness of breath, and his pacemaker was “frequently kicking in.” (ECF No. 1, p. 10). Plaintiff

was escorted to the nursing station on January 21, 2015. While there, he stated he had been

scheduled to have open-heart surgery the day before. (ECF No. 29-8). Plaintiff was then moved

to a medical observation cell in the nursing station. (ECF No. 1, p. 5; ECF No. 29-8; ECF No. 30,

¶ 13). The Court can infer no punitive intent from Plaintiff’s placement in a medical observation

cell under these circumstances. Accordingly, Defendants McGough and Mitchell are entitled to

judgment as a matter of law in regard to this claim as no genuine issues of fact remain.

D. Conditions of Confinement

Plaintiff’s Eighth Amendment rights were not violated by the presence of ants, the lack of

hot water, or an inability to “to take showers or personal hygiene” in the medical observation cell

from January 21, 2015, through January 30, 2015.

“[W]hen the State takes a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

and general well-being.” Cnty of Sacramento v. Lewis, 523 U.S. 833 (1998) (citation omitted).

The Eighth Amendment to the United States Constitution prohibits the imposition of cruel and

unusual punishment. U.S. CONST. amend. VIII. Detention centers must provide pretrial detainees

with “reasonably adequate sanitation, personal hygiene, and laundry privileges[.]” Beaulieu v.

Ludeman, 690 F.3d 1017, 1045 (8th Cir. 2012) (quoting Howard v. Adkison, 887 F.2d 134, 137

(8th Cir. 1989)). The Eighth Amendment also prohibits punishments that deprive inmates of the

minimal civilized measure of life’s necessities. Smith v. Copeland, 87 F.3d 265, 268 (8th Cir.

1996); see also Hall v. Dalton, 34 F.3d 648, 650 (8th Cir. 1994). As is the case with all Eighth

Amendment claims, a prisoner must suffer some actual injury in order to receive compensation.

This injury must be greater than de minimis. Irving v. Dormire, 519 F.3d 441, 448 (8th Cir. 2008).

Here, the lack of hot water in the medical observation cell did not constitute an excessive

risk to Plaintiff’s health and safety. Access to a sufficient quality and quantity of water for drinking

and basic personal hygiene is, of course, a minimal life necessity, but nothing in the Constitution

requires that the water must be available on demand. See e.g., Scott v. Carpenter, 24 F. App’x

645, 647 (8th Cir. 2001) (unpublished) (no disagreement that basic personal hygiene falls within

the minimal civilized measure of life’s necessities); Spires v. Paul, 581 F. App’x 786, 792-94 (11th

Cir. 2014) (housing an inmate in a cell without potable water for several days and forcing him to

drink from the toilet to survive stated an Eighth Amendment violation). Furthermore, “[n]othing

in the Constitution requires that each prisoner be provided with clean, cold, warm, or any other

form of running water in his cell[.]” Jelinek v. Roth, 33 F.3d 56, *2 (7th Cir. 1994) (unpublished)

(plumbing in cell that produced only water contaminated with rust that was undrinkable and

unsuitable for bathing does not implicate the Eighth Amendment); see also, Smith v. Copeland,

892 F. Supp. 1218, 1230 (E.D. Mo. Apr. 25, 1995) (turning off water in a cell except for brief

periods to flush the toilet, and providing drinking water with each meal did “not deprive plaintiff

of minimally necessary drinking water or hygienic requirements”) aff’d, 87 F.3d 265 (8th Cir.

1996); Narducci v. Fields, 62 F.3d 1428 (10th Cir. 1995) (unpublished) (“a lack of light, a lack of

running water, poor cell ventilation, and placement in an individual cage for outdoor exercise” did

not rise to the level of a constitutional violation); Downs v. Carter, 2016 WL 1660491, *8 (N.D.

Ill. Apr. 27, 2016) (“There is no constitutional right to water on demand.”).

Likewise, even if Plaintiff was completely denied shower privileges for the entire ten days

he was in the medical observation unit, such a denial does not rise to the level of a constitutional

violation. The Eighth Circuit has held that the denial of shower privileges for a short period of

time does not constitute an Eighth Amendment violation. Abernathy v. Perry, 869 F.2d 1146,

1149 (8th Cir. 2008). While the Eighth Circuit has not directly addressed a ten-day denial of

shower privileges, other courts have upheld similar or longer denials of shower privileges as

constitutional. See e.g, Johnson v. Norris, No. 2:08CV00052 JTR, 2008 WL 2952015, at *2 (E.D.

Ark. July 29, 2008) (eight-day denial of shower privileges while on suicide watch did not state an

Eighth Amendment claim); Jones v. Houston, No. 4:06CV03314, 2007 WL 3275125, *8 (D. Neb.

Nov. 2, 2007) (holding that the denial of showering privileges for thirteen days was not an Eighth

Amendment violation); McCoy v. Goord, 255 F.Supp.2d 233, 260 (S.D.N.Y Mar. 25, 2003)

(holding that “a two week suspension of shower privileges does not suffice as a denial of basic

hygiene needs”) (internal quotation omitted).

Finally, the mere presence of ants in a cell does not rise to the level of a Constitutional

violation. See e.g., Obama v. Burl, 477 Fed. App’x. 409 (8th Cir. 2012) (unpublished) (allegations

of spiders, beetles, and ants in cell, without specifics, did not rise to constitutional violation).

Furthermore, Plaintiff has neither alleged nor provided any evidence that he suffered any

actual injury, de minimis or otherwise, as a result of the presence of ants, the lack of hot water, or

an inability “to take showers or personal hygiene” for ten days. Accordingly, Defendants are

entitled to summary judgment on this claim as no genuine issues of material fact remain.

IV. CONCLUSION

For the foregoing reasons. The Court finds that Defendants’ Motion for Summary

Judgment (ECF No. 28) should be and hereby is GRANTED. Accordingly, Plaintiff’s claims are

DISMISSED WITH PREJUDICE. A Judgment of even date shall issue.

IT IS SO ORDERED, this 27th day of February 2018.

/s/ Susan O. Hickey

Susan O. Hickey

United States District Judge