Hurlbut v. Helder

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

DANIEL HURLBUT PLAINTIFF

v. Civil No. 5:17-cv-05234

SHERIFF TIM HELDER; KARAS DEFENDANTS

MEDICAL TEAM; DR. KARAS;

NURSE VERONICA DOCKERY;

NURSE KEN HUGHES; NURSE

LANDON HARRIS; NURSE REGINA

WALKER; LIEUTENANT FOSTER;

DEPPUTY JOSVE VELASCO; DEPUTY

SKINKIS; and DEPUTY URIEL PARADES

MEMORANDUM OPINION AND ORDER

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

1983 contending that his constitutional rights were violated while he was incarcerated in the

Washington County Detention Center (WCDC). Plaintiff proceeds pro se and in forma pauperis.

Plaintiff maintains that his constitutional rights were violated in the following ways: (1)

he was denied adequate care for serious medical and mental health needs; (2) he was denied access

to the courts; (3) Defendants failed to protect him from attack by fellow inmates; (4) he was

subjected to unconstitutional conditions of confinement; and (5) he was denied access to the

grievance procedure. Plaintiff has named as Defendants Sheriff Tim Helder,1 the Karas Medical

Team, Dr. Karas, Nurse Veronica Dockery, Nurse Ken Hughes, Nurse Landon Harris, Nurse

Regina Walker, Lieutenant Foster, Deputy Josve Velasco, Deputy Skinkis, and Deputy Uriel

Parades.

1 Plaintiff is asserting only official capacity claims against Sheriff Helder. (ECF No. 47-11 at 27-29).

The case is before the Court on Plaintiff’s Motion for Partial Summary Judgment on the

failure to protect claim against Deputies Skinkis and Velasco (ECF No. 41), the Defendants

Motion for Summary Judgment (ECF No. 45), and Plaintiff’s Motion for Summary Judgment

(ECF No. 49) on all claims. The parties have also filed responses and replies.

I. 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.” National 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.” National 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).

II. BACKGROUND

Plaintiff was booked into the WCDC on January 3, 2016. (ECF No. 47-2 at 2). On

September 8, 2016, Plaintiff was transferred to the Arkansas State Hospital (ASH) in accordance

with an order entered in his criminal case. (Id. at 7-10). He remained there until November 7,

2016, when he returned to the WCDC. (Id. at 11-12).

During the time he was in the WCDC, Plaintiff was transferred for short periods of time to

other facilities for court proceedings. These transfers include the following: On February 8, 2016,

Plaintiff was booked into the Madison County Detention Center for Court (ECF No. 49 at 54). He

was transported back to the WCDC the following day. (Id). On April 3, 2016, Plaintiff was booked

into Madison County for court. (ECF No. 49 at 58). On April 4th, 2016, Plaintiff was released to

the WCDC. (Id). On April 11, 2016, Plaintiff was booked into Madison County for court. (ECF

No. 49 at 60). On April 12th, 2016, Plaintiff was transferred back to the WCDC. (Id). On May

9, 2016, Plaintiff was booked into Madison County. (ECF No. 49 at 62). He was transferred back

to the WCDC the following day. (Id). On June 29, 2016, Plaintiff was released to Benton County

for court on June 30th. (ECF No. 49 at 57). Plaintiff maintains that there were at least nine separate

occasions when he suffered an interruption of medication because of his transport to another

location. (ECF No. 49 at 3).

On March 21, 2017, Plaintiff a negotiated plea on multiple charges. He was sentenced to

serve a total of 120 months in the Arkansas Department of Correction (ADC). On April 10, 2017,

Plaintiff was transferred to the ADC. (ECF No. 47-2 at 13).

III. DISCUSSION

Section 1983 does not create substantive rights. Baker v. McCollan, 443 U.S. 137, 145 n.3

(1979). Instead, it provides remedies for deprivations of rights established by the Constitution or

the laws of the United States. Id. Two elements are required to establish a claim under § 1983.

These elements are: (1) the deprivation of a right secured by the Constitution or laws of the United

States; and (2) that the deprivation was committed “under color” of state law. Lugar v.

Edmondson, 457 U.S. 922, 931 (1982).

(A). Denial of Adequate Medical and Mental Health Care

(1). Relevant Facts

WCDC makes emergency medical services available to detainees twenty-four hours a day.

(ECF No. 47-1 at 2).2 Officers are trained to provide temporary lifesaving care until Emergency

Medical Services or other medical personnel arrive. (Id). Detainees may submit medical

complaints via electronic kiosk for daily review by qualified medical personnel. (Id). Nursing

staff is responsible for checking the files of inmates under the medical provider’s care and

following all physician’s orders. (Id).

“Since January 1, 2016, Dr. Rob Karas has been the Jail Medical Doctor and Karas

Correctional Health has provided all medical care in the [WCDC] pursuant to a contract with

Washington County.” (ECF No. 47-1 at 4). All decisions regarding medical care are made by the

contract medical staff. (Id). “No employee of [WCDC] is authorized to make non-emergency

medical decisions on behalf of any inmate. . . . All decisions regarding medications, medical

testing, or medical treatment are left to the professional medical judgment of the physician at

the detention facility.” (Id)(emphasis in original).

According to Dr. Karas, when Plaintiff was booked in on January 3, 2016, the only

medication listed was Gabapentin3 and Plaintiff did not have it with him. (ECF No. 47-2 at 1-2).

2 Washington County’s written policy regarding the provision of medical, dental, and psychiatric care is located at

ECF No. 47-10. All citations to the summary judgment record will be to the CM/ECF docket and page number.

3 Gabapentin is used to “ help control certain types of seizures in people who have epilepsy” and “to relieve pain of

postherpetic neuralgia.” https://medlineplus.gov/druginfo/meds/a694007.htm (accessed November 30, 2018).

On January 22, 2016, Plaintiff’s mother delivered the following medications to the WCDC:

Florinef,4 .1 mg as needed; Olanzapine,5 one 10 mg tablet at bedtime; Venlafaxine,6 one 150 mg

tablet per day; Prednisone,7 one 20 mg tablet per day; and Gabapentin, one 600 mg tablet in the

morning and two tablets at night. (Id. at 3).

After he was booked in, Plaintiff testified that he was suffering from opiate withdrawal

symptoms. (ECF No. 47-11 at 61). Plaintiff testified that at this point in his life he “was so bad

on opiates” that he was “spending more than $500 every single day just for opiates.” (ECF No.

62 at 24-25). Withdrawal made him feel like he had a severe case of the flu. (ECF No. 47-11 at

61). Plaintiff testified he thought he was going to die. (Id). He felt like that for months. (Id).

Plaintiff testified that it was the most miserable time “I’ve ever experienced in my life.” (Id).

Dr. Karas indicates that at intake Plaintiff reported being on Ambien,8 Hydrocodone,9

Effexor,10 Gabapentin, Methocarbamol,11 and other medications he could not recall the names of.

(ECF No. 47-12 at 2). According to Dr. Karas, on the day Plaintiff was booked in, Plaintiff was

put on a “detox screen” for narcotic pain medication. (ECF No. 47-12 at 2). There is no precise

4 Florinef is the brand name for the drug Fludrocortisone Acetate. This drug “is used to help control the amount of

sodium and fluids in your body.” It is used to treat “syndromes where excessive amounts of sodium are lost in the

urine. https://medlineplus.gov/druginfo/meds/a682549.html (accessed November 30, 2018).

5 Olanzapine is used to “treat symptoms of schizophrenia” and “bipolar disorder… [I]t is in a class of medications

called atypical antipsychotics.” https://medlineplus.gov/druginfo/meds/a601213.html (accessed November 30, 2018).

6 Venlafaxine is “used to treat depression.” The extended-release capsules “are also used to treat generalized anxiety

disorder.” https://medlineplus.gov/druginfo/meds/a694020.html (accessed November 30, 2018).

7 Prednisone “is used alone or with other medications to treat the symptoms of low corticosteroid levels (lack of certain

substances that are usually produced by the body and are needed for normal body functioning.” In individuals with

normal corticosteroid levels the medication is used to treat arthritis, severe allergic reactions, multiple sclerosis, lupus,

and “certain conditions that affect the lungs, skin, eyes, kidneys, blood, thyroid, stomach, and intestines.”

https://medlineplus.gov/druginfo/meds/a601102.html (accessed November 30, 2018).

8 Ambien is the brand name for the drug Zolpidem. Zolpidem is used to treat insomnia.

https://medlineplus.gov/druginfo/meds/a693025.html (accessed November 30, 2018).

9 Hydrocodone is used to “relieve severe pain. Hydrocodone is only used to treat people who are expected to need

medication to relieve severe pain around-the-clock for a long time and who cannot be treated with other medications

or treatments.” https://medlineplus.gov/druginfo/meds/a614045.html (accessed November 30, 2018).

10 Effexor is the brand name for the drug Venlafaxine. See n.6.

11 Methocarbamol is used “with rest, physical therapy, and other measures to relax muscles and relieve pain and

discomfort caused by strains, sprains, and other muscle injuries.” It is a muscle relaxant.

https://medlineplus.gov/druginfo/meds/a682579.html (accessed November 30, 2018).

explanation of what “detox screen” consists of. However, from Dr. Karas’ affidavit, it appears it

consisted of evaluating the patient’s condition. (ECF No. 47-12 at 4-5). According to the medical

records, the detox screen lasted from January 4, 2016, until January 8, 2016. (ECF No. 49 at 43).

On January 5, 2016, Plaintiff was started on Citalopram,12 Trazodone,13 Quetiapine,14 and

Gabapentin. (ECF No. 47-12 at 3). According to Dr. Karas, between January 3, 2016, and

September 8, 2016, Plaintiff was seen twenty-two times on sick or “psyc” call, eight times on

provider call, and his medical care was reviewed twenty-three times. (Id). Bloodwork was ordered

on July 1, 2016, and the results were stable. (Id).

Dr. Karas indicates that narcotic pain medication is not routinely given at the WCDC.

(ECF No. 47-12 at 3). The reasons for this are: narcotic pain medication has a high risk of

diversion and abuse, a risk that is increased in the incarcerated population; receiving narcotic pain

medication in the detention center can be a risk to the patient themselves, as other detainees may

seek to divert the medication by coercion or force; and narcotic pain medication is not

recommended for treatment of non-cancer pain, as it is not shown to improve outcomes. (Id. at 3-

4).

Dr. Karas indicates that Plaintiff’s chronic pain was treated with Gabapentin (dose

gradually increased to 1600 mg twice daily), Naproxen,15 Tylenol, Prednisone, and Venlafaxine.

(ECF No. 47-12 at 3). Plaintiff was also given a second mattress for most of his stay at the WCDC.

12 Citalopram is used to treat depression. https://medlineplus.gov/druginfo/meds/a699001.html (accessed November

30, 2018).

13 Trazodone is used to treat depression. https://medlineplus.gov/druginfo/meds/a681038.html (accessed November

30, 2018).

14 Quetiapine is used to treat the symptoms of schizophrenia and to treat bipolar disorder.

https://medlineplus.gov/druginfo/meds/a698019.html (accessed November 30, 2018).

15 Naproxen is used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis, rheumatoid arthritis,

juvenile arthritis, and ankylosing spondylitis. “Nonprescription naproxen is used to reduce fever and to relieve mild

pain from headaches, muscle aches, arthritis, menstrual periods, the common cold, toothaches, and backaches.”

https://medlineplus.gov/druginfo/meds/a681029.html (accessed November 30, 2018).

(Id). Plaintiff was told to continue stretching and to try push-ups to build and maintain bone

strength. (ECF No. 47-2 at 15).

On January 17, 2016, Plaintiff’s mother contacted the WCDC and advised that Plaintiff

was detoxing from drugs and was afraid he might vomit in his sleep. (ECF No. 49 at 16). Deputy

Heil went to speak with Plaintiff who stated he was detoxing from heroine and methadone. (Id).

Plaintiff indicated he was afraid he would vomit in his sleep and suffocate. (Id). Plaintiff reported

that both his wives had died this way. (Id). Plaintiff complained of chills, hot flashes, cramps,

and bile in his throat as well as vomiting the past three days. (Id). Deputy Heil stated he would

talk to the nurse about Plaintiff’s situation. (Id). When Deputy Heil returned to B-pod control, he

was told the nurse had already cleared Plaintiff. (Id). At evening medication pass, Plaintiff asked

Deputy Heil what the nurse had said and was told the nurse had cleared him. (Id). Plaintiff replied

that he had not talked to a nurse about the situation. (Id). The nurse present at medication pass

briefly talked to the Plaintiff and told him to put a request in the kiosk. (Id).

On January 25, 2016, after receipt of Plaintiff’s medical records, Plaintiff was prescribed

Florinef to treat his adrenal insufficiency.16 (ECF No. 47-12 at 4). On February 1, 2016,

Prednisone was added. (Id). On August 11, 2016, Plaintiff was changed to Hydrocortisone17

therapy. (Id). According to Plaintiff, he was never received access to “stress dosing18” or an

16 Individuals with“[a]drenal insufficiency do not have enough of the hormones cortisol and aldosterone. Without the

right levels of these hormones, your body cannot maintain essential life functions.” If the condition is permanent,

daily medication must be taken. Many medications may be used to replace cortisol including Hydrocortisone,

Dexamethasone, or Prednisone. Aldosterone may be replaced by the drug Fludrocortisone (Florinef).

https://www.cc.nih.gov/ccc/patient_education/pepubs/mngadrins.pdf (accessed December 3, 2018).

17 Hydrocortisone “a corticosteroid, is similar to a natural hormone produced by your adrenal glands. It is often used

to replace this chemical when your body does not make enough of it.” It also relieves inflammation, arthritis, skin,

blood, kidney, eye, thyroid, intestinal disorders, severe allergies, asthma, and certain types of cancer.

https://medlineplus.gov/druginfo/meds/a682206.html (accessed November 30, 2018).

18 Stress dosing means doubling your usual hydrocortisone dose for one to three days. This is done in response to

physical stresses caused by illness. https://www.cc.nih.gov/ccc/patient_education/pepubs/mngadrins.pdf (accessed

December 3, 2018).

increased amount of steroid sometimes given in a shot.19 (ECF No. 49 at 7). Plaintiff points to no

periods of time when he believed either was necessary. Rather, he believed they should be

available to him.

Plaintiff was released from custody on September 8, 2016 and returned to the WCDC on

November 7, 2016. (ECF No. 47-12 at 4). Plaintiff reported being on Klonopin,20 Gabapentin,

Hydrocortisone, Effexor, and other medications he could not recall the names of. (Id). He also

reported a history of schizophrenia and manic depression. (Id).

Plaintiff’s medication reconciliation was completed on November 8, 2016. (ECF No. 47-

12 at 5). Plaintiff was provided Hydrocortisone, Effexor, Omeprazole,21 Gabapentin, and Bengay.

(Id). Quetiapine was given instead of Olanzapine. (Id). “Soma,22 Clonazepam, [and] Zolpidem23

[were discontinued] as these are narcotic, benzodiazepine scheduled medications with chance for

abuse.” (Id). Lidocaine patches,24 Fioricet,25 and Salicylic Acid Wash26 were also discontinued

“as these are not recommended for long term use.” (Id). Dr. Karas asserts that Fioricet “can have

19 If someone with adrenal insufficiency is so ill he cannot take his medication in pill form, he must take a

“glucocorticoid medication by injection. The injection will take the place of both Hydrocortisone and Florinef.”

https://www.cc.nih.gov/ccc/patient_education/pepubs/mngadrins.pdf (accessed December 3, 2018).

20 Klonopin is the brand name for the drug clonazepam. It is used to control certain types of seizures and to relieve

panic attacks. https://medlineplus.gov/druginfo/meds/a682206.html (accessed November 30, 2018).

21 Omeprazole is used to treat symptoms of gastroesophageal reflux disease (GERD), heartburn, and ulcers.

https://medlineplus.gov/druginfo/meds/a693050.html (accessed November 30, 2018).

22 Soma is the brand name for the drug carisoprodol. It is a muscle relaxer.

https://medlineplus.gov/druginfo/meds/a682578.html (accessed November 30, 2018).

23 Zolpidem is used to treat insomnia. https://medlineplus.gov/druginfo/meds/a693025.html (accessed November 30,

2018).

24 Lidocaine patches are “used to relieve pain of post-herpetic neuralgia.” It is a local anesthetic that works by stopping

nerves from sending pain signals. https://medlineplus.gov/druginfo/meds/a603026.html (accessed November 30,

2018). According to a note from Nurse Dockery entered on January 21, 2017, Lidocaine patches are not “available

on our formulary.” (ECF No. 49 at 82).

25 Fioricet is a brand name for a combination product containing Acetaminophen, Butalbital, and Caffeine. It also

comes as a combination that includes Codeine. https://medlineplus.gov/druginfo/drug_Fa.html (accessed November

30, 2018).

26 Salicylic Acid Topical is used to “prevent pimples and skin blemishes in people who have acne.”

https://medlineplus.gov/druginfo/meds/a607072.html (accessed November 30, 2018).

an interaction with Hydrocortisone that lowers Hydrocortisone levels and could cause a life

threatening adrenal crisis.27” (Id. at 7).

Dr. Karas further notes that Plaintiff was started on detox protocol for Klonopin on

November 8, 2016. (ECF No. 47-12 at 5). Dr. Karas states that Plaintiff was evaluated on

November 10, 2016 and was found to have “no acute signs or symptoms of withdrawal.” (Id. at

5).

On January 2, 2017, nursing staff requested that Plaintiff be moved to booking with a “15

minute watch on him due to him having some health concerns.” (ECF No. 49 at 77). Booking

was determined not to be a suitable location. (Id). Sergeant Morse ordered an isolation cell in B-

pod be cleared out for the Plaintiff. (Id).

Deputies Hudgens and Edens encountered difficulties in getting Plaintiff moved. (ECF

No. 49 at 77-78). Plaintiff was vomiting and “appeared worked up in a state of anxiety. He said

he felt he was being set up for being a martyr and was more afraid to be left alone.” (Id. at 77).

Plaintiff had good rapport with his cell mate Trey Monaco. (Id). With Monaco’s help, Plaintiff

was eventually moved to the isolation cell but was showing multiple signs of paranoid behavior.

(Id). A short time later, Sergeant Morse was contacted by the nurse and told that her supervisor

said the decision of where Plaintiff should be housed should be made by the detention supervisor.

(Id.). Sergeant Morse determined that Plaintiff should be moved back to R-block with Monaco.

(Id).

On February 13, 2017, Plaintiff was picked up and transported to Madison County for

Court. (ECF No. 47-8 at 34). Plaintiff asked about his medications but was told that Nurse Walker

had nothing to transport the medications of the various inmates with them. (Id). Instead, the

27 On February 5, 2017, Plaintiff was advised that “we do not give Fioricet here, and it is contraindicated from chronic

headaches, as it can make headaches worse.” (ECF No. 49 at 112).

transport deputies were told that Madison County would have to have its medical staff call over to

Washington County and Nurse Walker would provide them with the necessary information to

obtain the medication. (Id).

Plaintiff remained incarcerated at the WCDC until April 10, 2017. (ECF No. 47-12 at 5-

6). During this time, Dr. Karas asserts that Plaintiff was seen thirteen times on sick call, two times

on “psyc” call, and five times on provider call. (Id. at 5). Further, Dr. Karas asserts that the plan

for Plaintiff’s medical care was evaluated twenty-three times. (Id). Bloodwork was ordered for

further assessment on two different occasions, January 10, 2017, and February 24, 2017, and the

labs were stable on both occasions. (Id). Dr. Maass, who specializes in endocrinology, was

consulted on February 24, 2017, and “he confirmed [Dr. Karas’s] plan of care and recommended

that [Plaintiff’s] Renin Level be checked as well. His recommendations for care were followed.”

(Id. at 6). Dr. Maass is the doctor identified by Plaintiff as his endocrinologist. (ECF No. 47-11

at 13). Although, Plaintiff testified he had not seen him since 2012. (Id. at 14).

Plaintiff was again booked into the WCDC on May 3, 2017 and remained there until May

23, 2017. (ECF No. 47-12 at 6). On intake, Plaintiff denied use of Benzodiazepines, narcotic pain

medication, or Amphetamine use. (Id). As a result, he was not started on detox protocol. On May

4, 2017, Plaintiff was prescribed Gabapentin, Quetiapine, Magnesium, and Tums. (Id). On May

10, 2017, Plaintiff was prescribed Hydrocortisone and Venlafaxine. (Id). During this period of

incarceration, Dr. Karas asserts that Plaintiff was seen once on sick call and his medical care was

reviewed nine times by one of the providers. (Id).

In connection with Plaintiff’s criminal case, a forensic examination was performed by Dr.

Stephen Nichols on January 15, 2016. Dr. Nichols indicated Plaintiff met the criteria for

“schizoaffective disorder, bipolar type, multiple episodes, currently in acute episode.” (ECF No.

47-2 at 4). At the time of the examination, Dr. Nichols concluded that Plaintiff “lacked the capacity

to understand the proceedings against him, and to assist effectively in his own defense.” (Id).

Dr. Nichols noted that Plaintiff had a history of abuse of opiates including oxymorphone.

(ECF No. 47-2 at 6). Plaintiff had been married twice and both wives death involved “drug

ingestion.” (Id). His second wife died on January 2, 2016. (Id). Plaintiff reported being on the

Seroquel, Gabapentin, and Trazodone at the WCDC. (Id). Plaintiff indicated the medications

made him calmer. (Id).

Considering Dr. Nichols’ report, the Circuit Court of Washington County entered an order

on March 2, 2016, committing the Plaintiff to the “custody of the Arkansas Department of Human

Services, for detention, care, and treatment, until restoration of Defendant’s fitness to proceed.”

(ECF No. 47-2 at 7-8). The ASH was directed to determine Plaintiff’s mental condition and to

prepare and submit “a written psychiatric or psychological report . . . indicating whether Defendant

is fit to proceed, or, if not whether Defendant’s mental disease or defect is of a nature precluding

restoration of fitness to proceed, and also whether Defendant presents a danger to himself or to the

person or property of another.” (Id. at 8).

Medical records from the ASH indicate Plaintiff was admitted on September 8, 2016 and

discharged on November 7, 2016. (ECF No. 47-4 at 48). Plaintiff’s diagnoses on admission were

borderline personality disorder, antisocial personality disorder, cannabis use disorder, opiate use

disorder, adrenal insufficiency, back pain, and headaches. (Id). Note was made that the Plaintiff

should not be prescribed opiates due to his history of drug abuse. (Id. at 49). The aftercare report

dated November 4, 2016, concluded that Plaintiff needed medication management services to

continue his psychiatric medication. (Id. at 50). Plaintiff’s medications on discharge were:

Omeprazole, Hydrocortisone, Ambien, Salicylic Acid, Gabapentin, Bengay ultra strength,

Lidocaine patch, Zyprexa,28 Fioricet, Klonapin, Effexor XR, and Soma. (Id. at 52).

During his incarceration at the WCDC, Plaintiff submitted multiple medical requests

dealing primarily with the following issues: his medication being changed; not being treated for

withdrawal; asking why a White inmate got treated for withdrawal while Plaintiff, who is Hispanic

did not get treated; his Gabapentin being discontinued; not receiving proper medication and blood

tests for congenital adrenal hyperplasia; not being seen by his endocrinologist or psychiatrist; not

being treated for chronic joint, back, sciatica, muscle pain, and arthritis, which caused him to suffer

needlessly and made it difficult to control his aggression; his need for muscle relaxers (Soma and

Methocarbamol); his need for a double mat due to his chronic pain; needing his prescription for

Effexor for mood and psychosis stability due to his bi-polar and depression; his paranoia,

insomnia, and “voices,” and hallucinations were getting worse; his need for proper medical

treatment following his having been attacked by fellow inmates; not being able to see the doctor;

and his need for pain medication for his chronic back and joint pain. (ECF No. 47-3 at 1-48).

On March 7, 2016, Plaintiff was charged with a disciplinary violation for hoarding

medication. (ECF No. 47-8 at 2-5). Plaintiff was given a pill nursing staff had cut. (Id. at 3).

Plaintiff said he could not take that pill because he would not get the full amount. (Id). The nurse

asked for the pill back to throw it away. (Id). Plaintiff did not return the pill and according to

Deputy Hudgens attempted to hide the pill in his palm. (Id). Deputy Hudgens asked Plaintiff to

dispose of the pill and he did so. (Id).

On August 30, 2016, Plaintiff was charged with hoarding his medication. (ECF No. 47-8

at 18). Jailer Josue Velasco was present at the evening medication pass. (Id). Jailer Velasco stated

28 Zyprexa is the brand name for Olanzapine. See n.

he saw the Plaintiff dropping his medication down his pant leg and then pretending to take it. (Id).

After Jailer Velasco had Plaintiff take both pant legs out of his socks, the medication fell to the

ground and Plaintiff picked it up and took it. (Id). Plaintiff was found guilty based on Deputy

Velasco’s report and the video of the incident. (Id. at 19). Plaintiff could be seen picking

something off the floor and then consuming it. (Id). He was given five days in disciplinary

segregation. (Id).

On March 14, 2017, Plaintiff was booked into Benton County. (ECF No. 49 at 65). He

was released on March 17th to the WCDC. (Id). Note was made that Plaintiff had is medications

with him when released. (Id).

With respect to Sheriff Helder, Plaintiff argues he was aware of the policy of denying any

medication that was not on Karas’ formulary.29 (ECF No. 62 at 1). Plaintiff further maintains

Sheriff Helder knew of Plaintiff’s psychiatric commitment and of Plaintiff’s inability to obtain his

medications when he was temporarily transferred to another facility but did nothing. (Id).

With respect to Dr. Karas, Plaintiff testified he should be liable for a failure to provide

continuity of care whenever Plaintiff was transferred to another facility and then brought back to

the WCDC. (ECF No. 62 at 36-37). Plaintiff also believed that Dr. Karas should not substitute

his judgment for “specialist’s such as a psychiatrist and an endocrinologist.” (Id. at 37). Plaintiff

testified that Dr. Karas “did not want to do the right blood work [ACTH stimulation testing] for

my adrenal disease.” (Id. at 42). Additionally, Dr. Karas did not provide Plaintiff with access to

steroid shots for his adrenal disease. (Id). Plaintiff further testified that Dr. Karas “would

repeatedly avoid seeing [him] for long periods of time.” (Id). If Plaintiff, his family, or his lawyer

made “enough noise and enough racket about it,” Dr. Karas would see the Plaintiff “a bunch of

29 A formulary is a “list of prescription drugs covered by a prescription drug plan or another insurance plan offering

prescription drug benefits.” https://www.healthcare.gov/glossary/formulary/ (accessed November 30, 2018).

times without doing [any]o medical things. He would just come and see [the Plaintiff] for a few

seconds and then go away.” (Id).

With respect to Nurse Veronica Dockery, Plaintiff testified she suddenly took him off

Fioricet stating it was not on their formulary. (ECF No. 62 at 43). At the time, Plaintiff maintains

the Fioricet was still on the cart but they would not give it to him. (Id). Plaintiff indicated that

Nurse Dockery “seemed to not want [him] to see the doctor. It was like she was trying to block

[him] from seeing the doctor.” (Id). She would either refuse his request or reply that he would be

seen by the doctor but then Plaintiff was not seen. (Id.at 43-44).

Plaintiff testified that Nurse Landon Harris also seemed to “block” Plaintiff from seeing

the doctor. (ECF No. 62 at 44). Nurse Harris replied to most of Plaintiff’s requests. (Id). Nurse

Harris either denied Plaintiff’s requests or would indicate Plaintiff would be seen by the doctor

and that never occurred. (Id. at 46).

With respect to Nurse Regina Walker, Plaintiff testified that she also replied to his requests.

(ECF No. 62 at 46). Plaintiff believed she was trying to keep him from seeing the doctor. (Id).

With respect to Nurse Ken Hughes, Plaintiff testified he was trying to figure out who this

was. (ECF No. 62 at 46). Plaintiff states Nurse Hughes would respond to his grievances and

requests. (Id). Plaintiff testified Nurse Hughes seemed to “have some significant control over

[his] treatment.” (Id). Plaintiff indicated Nurse Hughes had the “ability to keep [him] from seeing

the doctor and to stop [his] sick calls or requests from getting where they needed to go.” (Id. at

46-47).

Medical records from Vantage Point indicate Plaintiff was admitted there on March 26,

2015 and discharged on April 1, 2015. (ECF No. 47-4 at 1). Plaintiff was diagnosed as bipolar,

with depression being his most recent episode and psychotic features. (Id. at 2). He was to be

treated with Geodon30 for psychosis and Lexapro31 for depression. (Id). He was also started on

Vitamin D3, Ambien, Prilosec,32 Oxycodone/APAP,33 Prednisone, Oxycontin CR,34 Florinef,

Flexeril, Solumedrol IM35 for self-administration for adrenal emergency, and Bactrim.36 (Id. at

4). Note was made that Plaintiff suffered from sciatica, rheumatoid arthritis in the back, and

congenital adrenal hyperplasia. (Id).

Medical records from the University of Arkansas for Medical Sciences (UAMS) in

December of 2013, indicate a DNA sequencing test was done, and the results were consistent with

a “diagnosis of, or predisposition to developing, congenital adrenal hyperplasia (CAH).” (ECF

No. 49 at 28). Records indicate Plaintiff was seen at the Springdale location of UAMS on

September 4, 2015. (ECF No. 42 at 1). Note was made that Plaintiff had been previously

diagnosed with congenital adrenal hyperplasia and chronic low back pain. (Id. at 6). It was also

noted that Plaintiff’s past psychiatric diagnoses were bipolar I with psychotic features,

psychogenic non-epileptic seizures (PNES), and panic disorder. (Id). Dr. Rubenow indicated

Plaintiff had a need for long term formal psychiatric follow-up due to his symptoms of bipolar

disorder and panic disorder. (ECF No. 47-4 at 30). Plaintiff was also seen on October 12, 27,

30 Geodon is the brand name for the drug Ziprasidone. Ziprasidone is used to treat symptoms of schizophrenia and

bipolar disorder. https://medlineplus.gov/druginfo/meds/a699062.html (accessed December 6, 2018).

31 Lexapro is the brand name for the drug Escitalopram. Escitalopram is used to treat depression and generalized

anxiety disorder. https://medlineplus.gov/druginfo/meds/a603005.html (accessed December 6, 2018).

32Prilosec is the brand name for Omeprazole. Omeprazole is used to systems of gastroesophageal reflux disease

(GERD). https://medlineplus.gov/druginfo/meds/a693050.html (accessed December 6, 2018).

33 Oxycodone is used to relieve moderate to severe pain. https://medlineplus.gov/druginfo/meds/a682132.html

(accessed December 6, 2018).

34 Oxycontin is a brand name for Oxycodone.

35 Solumedrol is the brand name for the drug Methylprednisolone Injection. This drug is used to treat severe allergic

reactions. It is used in the management of multiple sclerosis, lupus, gastrointestinal disease, and certain types of

arthritis. It is also used to treat certain conditions that affect the blood, skin, eyes, nervous system, thyroid, kidneys,

and lungs. It is sometimes used in combination with other drugs to treat symptoms of low corticosteroid levels.

https://medlineplus.gov/druginfo/meds/a601157.html (accessed December 6, 2018).

36 Bactrim is the brand name for Co-trimoxazole a combination product containing Sulfamethoxazole and

Trimethoprim. Co-trimoxazole is used to treat bacterial infections, such as pneumonia, and infections of the urinary

tract, ears, and intestines.

2015, November 17 and 30, 2015, on December 21, 2015. (ECF No. 47-4 at 7-8, 11, 16, 20, ).

Various changes were made to Plaintiff’s medication during these visits. (Id. at 7-37).

(2). Analysis of the Denial of Adequate Medical and Psychiatric Care

By their incarceration, inmates are completely dependent on prison authorities for their

medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). The Eighth Amendment prohibition of

cruel and unusual punishment prohibits deliberate indifference to the serious medical needs of

prisoners. Id. at 106. The duty to provide medical care encompasses psychiatric needs. Vaughan

v. Lacey, 49 F.3d 1344, 1346 (8th Cir. 1995). “Because society does not expect that prisoners will

have unqualified access to health care, deliberate indifference to medical [or psychiatric] needs

amounts to an Eighth Amendment violation only if those needs are ‘serious.’” Hudson v.

McMilliam, 503 U.S. 1, 9 (1992). “[T]he failure to treat a medical [or psychiatric] condition does

not constitute punishment within the meaning of the Eighth Amendment unless prison officials

knew that the condition created an excessive risk to the inmate’s health and then failed to act on

that knowledge.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996).

Thus, to prevail on an Eighth Amendment claim, “[t]he [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)).

No argument is made that Plaintiff did not have serious medical and psychiatric needs.

He has therefore met the objective prong.

To establish 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 give rise to the level of a constitutional violation. Deliberate indifference is

akin to criminal recklessness, which demands more than negligent misconduct.” Popoalii v.

Correctional Med. Servs, 512 F.3d 488, 499 (8th Cir. 2008) (internal quotation marks and

citations omitted).

“The plaintiff-inmate must clear a substantial evidentiary threshold to show that the

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

treatment.” Meuir v. Green Cty. Jail Emps, 487 F.3d 1115, 1118 (8th Cir. 2007). The deliberate

indifference standard applies only to a narrow band of conduct. Detention Center physicians are

entitled to exercise their medical judgment, and “do not violate the Eighth Amendment when, in

the exercise of their professional judgment, they refuse to implement a prisoner’s requested course

of treatment.” Long, 86 F.3d at 761. What medication should be prescribed involves the exercise

of medical judgment. While Plaintiff’s medications were changed by Dr. Karas, Plaintiff was not

denied medication for his conditions. He merely was prescribed different medications than his

free world doctors had prescribed. Plaintiff’s medical records were obtained, and changes and/or

additions were made to the medications being provided to Plaintiff.

With respect to Plaintiff’s adrenal insufficiency, Plaintiff was provided medication, blood

tests were run, an endocrinologist, the one identified by the Plaintiff as being involved in his

treatment, was consulted, and the additional blood tests Dr. Maass suggested were done. The

blood tests showed that Plaintiff’s condition was stable. There is no indication that Dr. Karas

chose a less efficacious course of treatment, intentionally maltreated the Plaintiff, or refused to

provide essential care. Smith v. Jenkins, 919 F.2d 90, 92-93 (8th Cir. 1990). Further, whether

Plaintiff should have been seen by an endocrinologist, rather than Dr. Karas consulting with an

endocrinologist, is a question of medical judgment. Cf. Logan v. Clarke, 119 F.3d 647, 650 (8th

Cir. 1997)(“[a]lthough the prison doctors may not have proceeded from their initial diagnosis to

their referral to a specialist as quickly as hindsight perhaps allows us to think they should have,

their actions were not deliberately indifferent”).

With respect to Plaintiff’s chronic pain, he was not provided with any narcotic medications

because they were not used at the facility on a regular basis. This was especially true in Plaintiff’s

case where he was addicted to opiates. Plaintiff was given Gabapentin to relieve the pain and the

dosage was adjusted upwards based on Plaintiff’s complaints that he continued to suffer from

chronic pain. Plaintiff was also prescribed Methocarbamol and Naproxen was authorized to have

Bengay. Tylenol was also available. For most of his stay at the WCDC, Plaintiff was authorized

to have a second mat. At one point, he was allowed bed rest 24/7 for a short period of time. He

was given printed directions for exercises to help reduce his pain. The efforts “taken to allay

[Plaintiff’s] pain, while perhaps not as extensive as those a private health-care provider might

have taken, did not reflect deliberate indifference to his medication needs.” Logan, 119 F.3d at

650.

Plaintiff also alleges that Dr. Karas repeatedly avoided seeing him. (ECF No. 47-11 at

42). If Plaintiff, his family, or his lawyer made enough “noise,” Plaintiff states that Dr. Karas

“would finally just see me a bunch of times without doing no medical things.” (Id). There is no

prescribed number of times an inmate must be personally examined by a jail physician. Plaintiff’s

medical requests were responded to, his medical records were obtained and reviewed, and Dr.

Karas or an advanced practice nurse (APN) made changes in his medication when determined to

be medically necessary.

With respect to his psychological issues, Plaintiff was provided with antipsychotic

medication, medication to reduce anxiety, and medication to treat depression. Plaintiff was also

seen by the “social worker” on several occasions to discuss his mental status. The summary

judgment record contends evidence indicating that Dr. Karas and the Defendant nurses treated

Plaintiff on numerous occasions, chose medications keeping in mind their concerns over

Plaintiff’s history of drug abuse, and there is no indication that the medications were completely

ineffective. There are no genuine issues of material fact as to whether Dr. Karas demonstrated

deliberate indifference to Plaintiff’s serious medical or psychiatric needs.

With respect Nurse Dockery, Nurse Harris, and Nurse Walker, Plaintiff testified that they

appeared to be blocking him from seeing Dr. Karas. (ECF No. 47-11 at 44-46). The evidence

shows, however, that they coordinated Plaintiff’s care, his records were frequently reviewed by

an APN who had the training and authority to prescribe medications and/or order changes in

medication, and Plaintiff was seen by Dr. Karas, although not as frequently as he would have

liked. Whether the nurses should have acted sooner in referring Plaintiff to Dr. Karas or should

have referred Plaintiff more frequently, is at most a question of negligence. Hartsfield v. Colburn,

491 F.3d 394, 398 (8th Cir. 2007)(“Whether [Dr.] Ludwig should have acted sooner, instead of

waiting for Hartsfield to submit [a second] request, is at most a question of negligence”).

Moreover, Plaintiff has made only this generalized allegation that the nurses were keeping him

from seeing Dr. Karas and has not ascribed any specific acts to these nurses.

With respect to Nurse Dockery, Plaintiff also asserts that she took him off Fioricet, even

though it had been prescribed to him at the ASH and Dr. Karas, because it was not on their

formulary. (ECF No. 47-11 at 44-45). Moreover, in his affidavit Dr. Karas stated “Fioricet can

have an interaction with Hydrocortisone that lowers Hydrocortisone levels and could cause a life

threatening adrenal crisis.” (ECF No. 47-12 at 7). In sum, there is no evidence of deliberate

indifference on the part of Nurse Dockery, Nurse Harris or Nurse Walker.

With respect to Nurse Hughes, Plaintiff testified Nurse Hughes would respond to his

requests and grievances and “appeared to have some significant control over my treatment.”

(ECF No. 47-11 at 46). When asked what influence he thought Nurse Hughes had, Plaintiff

testified “[t]he ability to keep me from seeing the doctor and to stop my sick call requests from

getting to where they needed to go.” (Id. at 46-47). Plaintiff based this on the fact that he did not

get the answer he wanted which was to see Dr. Karas. (Id. at 47). There is no evidence that

Plaintiff’s requests and grievances were not reviewed by medical personnel. There is no

requirement that the doctor review each request or grievance. There is no evidence of deliberate

indifference on the part of Nurse Hughes.

Moreover, with respect to the alleged delays in treatment, “[t]he Constitution does not

require jailers to handle every medical complaint as quickly as each inmate might wish.” Jenkins

v. County of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). Additionally, an inmate who

complains of a delay in medical care, must provide verifying medical evidence in the record to

establish the detrimental effect of the delay, to succeed on his claim. Laughlin v. Schriro, 430

F.3d 905, 929 (8th Cir. 2005). Plaintiff has put no such evidence in the record. Indeed, Plaintiff

indicates in his deposition that he is not receiving the medication or treatment he believes is

necessary in his current place of incarceration. He is only receiving Effexor and Hydrocortisone.

(ECF No. 47-11 at 6).

Plaintiff also brings an official capacity claim against Sheriff Helder. An official capacity

claim is considered a claim against the employing government agency; here Washington County.

Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). To establish Washington

County’s liability, “plaintiff must show that a constitutional violation was committed pursuant to

an official custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d

814, 817 (8th Cir. 2009)(citation omitted). To show the existence of an unconstitutional policy,

Plaintiff must point to “a deliberate choice of a guiding principle or procedure made by the

municipal official who has final authority regarding such matters.” Mettler v. Whiteledge, 165

F.3d 1197, 1204 (8th Cir. 1999). To show the existence of an unconstitutional custom, Plaintiff

must show: (1) the existence of a continuing, widespread, persistent pattern of unconstitutional

misconduct by the governmental entity’s employees; (2) deliberate indifference to or tacit

authorization of such conduct by the governmental entity’s policymaking officials after notice to

the officials of that misconduct; and (3) that he was injured by acts pursuant to the governmental

custom, i.e., that the custom was the moving force behind the constitutional violation. Johnson v.

Douglas Cnty. Medical Dep’t., 725 F.3d 825, 828 (8th Cir. 2013).

Plaintiff suggests the following establish an official capacity claim: the failure to send

with, or arrange for, his medication when Plaintiff is transferred to another location; the fact that

it takes days for him to receive medication when transferred back to the WCDC; allowing the

facility doctor and nurses to substitute their judgment for that of specialists; and the failure to train

officers to properly deal with people with mental illnesses.

When Plaintiff leaves the WCDC for another facility, medical staff are no longer in charge

of Plaintiff’s medical care. Plaintiff has failed to point to any policy or custom of Washington

County that contributed to the alleged violations of his constitutional rights. His allegations related

to his official capacity claims merely consist of a recitation of the ways he believes his

constitutional rights were violated. This is insufficient.

The medical defendants, Karas Medical Team, Dr. Karas, Nurse Veronica Dockery, Nurse

Ken Hughes, Nurse Landon Harris, Nurse Regina Walker, and Sheriff Helder are entitled to

summary judgment on this claim.

(B). Denial of Access to the Court Claim

(1). Relevant Facts

On July 27, 2016, Plaintiff submitted a request asking for law library access and stated the

policy of refusing access without a court order put an undue burden on inmates. He indicated he

wanted to do legal research to make sure his constitutional rights were being respected during his

incarceration and to research his criminal case. (ECF No. 47-3 at 42). Sergeant Stanton replied

that Plaintiff would need to “get permission from the judge.” (Id).

In March of 2017, Plaintiff submitted a request stating that he understood he needed a court

order to be able to study the criminal law, case law, and medical standards. (ECF No. 47-3 at 69).

He asked for assistance in obtaining a court order. (Id). In response, Sergeant Arnold advised the

Plaintiff he would have to “go through the courts for a court order to go to the law library if that is

what you are requesting. You will need to contact your attorney or the courts about obtaining an

order.” (Id). Plaintiff maintains that “[t]his policy effectively prevented me from preparing, filing

and prosecuting my lawsuit until I was no longer in their custody.37” (ECF No. 49 at 5).

According to Corporal Mulvaney, it is the policy of the WCDC that “all detainees shall

have reasonable access to the courts through counsel whether appointed or retained, and in the

event, counsel has not been retained or appointed, the inmate should have reasonable access to

the law library materials.” (ECF No. 47-1 at 3). The WCDC does not have a law library.

“Detainees must obtain legal assistance through their attorneys, from others outside the facility, or

obtain an order directing that they be transported to the Washington County Law Library which is

in the Washington County Courthouse.” (Id). Plaintiff testified that Sheriff Helder was aware of

37 This lawsuit was filed on November 13, 2017.

the policy denying access to the law library unless the inmate had a court order. (ECF No. 62 at

1).

(2). Analysis of Denial of Access to the Courts Claim

The Supreme Court has held “the fundamental constitutional right of access to the courts

requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers

by providing prisoners with adequate law libraries or adequate assistance from persons trained in

the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977) (emphasis added). This right extends to an

inmate’s opportunity to challenge his sentence, directly or collaterally, and to challenge his

conditions of confinement. Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008). The right

does not require a state to enable prisoner to discover grievances and to litigate effectively once in

court. Lewis v. Casey, 518 U.S. 343, 354 (1996)

Plaintiff contends the WCDC’s policy of requiring a court order to access the offsite library

effectively denies him access to the Courts. “[R]estricted access to the law library is not per se

denial of access to the courts.” Twyman v. Crisp, 584 F.2d 352, 357 (10th Cir. 1987). However,

constitutional violations have been found where an inmate had no direct physical access to a law

library and inmate law clerks assigned to assist them had “little or no legal experience, formalized

training, or supervision by attorneys.” Walters v. Thompson, 615 F. Supp. 330, 338-39 (N.D. Ill.

1985). While the Court concludes the WCDC’s restriction denied Plaintiff the ability to research

issues related to his conditions of confinement, the right set forth in Bounds was narrowed by

Lewis, 518 U.S. at 351-52.

In Lewis, the Supreme Court held that an inmate has no standing to pursue an access claim

unless he can demonstrate he suffered prejudice or actual injury because of the prison officials’

conduct. Id. Thus after Lewis, “[t]o prove a violation of the right of meaningful access to the

courts, a prisoner must establish [1] the state has not provided an opportunity to litigate a claim

challenging the prisoner’s sentence or conditions of confinement in a court of law, [2] which

resulted in actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious

underlying legal claim.’” Hartsfield, 511 F.3d at 831 (citations omitted). “Alleging theoretical

inadequacies is insufficient. Inmates must instead show, for example, that a complaint that they

prepared was dismissed due to a technical requirement that a library’s inadequacies prevented them

from knowing, or that a library was so inadequate that it prevented them from filing a complaint

for actionable harm at all.” Myers v. Hundley, 101 F.3d 542, 544 (8th Cir. 1996) (citation omitted).

Plaintiff has made no such showing in this case. Defendants are entitled to summary

judgment on this claim.

(C). Failure to Protect Claim

(1). Relevant Facts

On February 18, 2016, Plaintiff was involved in an altercation with Detainee Jerry Richey.

(ECF No. 47-8 at 1). Both detainees were examined by the nurse and found to be without serious

injury. (Id). When Plaintiff was being moved to another cell, he advised Corporal Robinson that

Detainee Richey was a thief. (Id). Plaintiff was advised that this did not given him the right to

“start punching” Detainee Richey. (Id). Both detainees were given major disciplinaries for

battery. (Id).

On February 29, 2016, while in Q-block, Plaintiff advised Deputy Paredes that he needed

to be moved. (ECF No. 49 at 68). Deputy Paredes noted redness on Plaintiff’s face around his

eye. (Id). Deputy Paredes had Plaintiff step into the hall. (Id). Plaintiff reported that he had just

been “jumped.” (Id). Plaintiff indicated that the detainees made him log onto the kiosk and they

read his grievances. (Id). The detainees then called Plaintiff a snitch and asked to talk to him in a

cell under the stairs. (Id). When Plaintiff entered the cell, he was hit in the back of the head, then

the right eye, and then multiple times in the rib area of his right side. (Id).

Deputy Paredes took pictures to document Plaintiff’s injuries. (ECF No. 49 at 68). He

was then taken to the nurse’s station to be evaluated. (Id). When Deputy Paredes asked Plaintiff

who assaulted him, Plaintiff replied that he did not want to be a snitch. (ECF No. 47-11 at 62).

Plaintiff testified he did not really know the inmates’ names. (Id. at 63). Plaintiff was relocated.

(ECF No. 49 at 68).

Plaintiff testified that he was relocated to R-block by Deputy Paredes. (ECF No. 56 at 30).

Plaintiff asked not to be put in R-block because it was next to Q-block. (Id). Plaintiff testified he

was told he either had to go into R-block or get into trouble and go to the hole. (Id). Plaintiff

requested to be housed on the “other side” of the detention center. (Id. at 30-31). Plaintiff felt he

was not given any choice and that he had to go into R-block. (Id. at 31).

Plaintiff agreed that he basically got into a fight everywhere he was housed. (ECF No. 56

at 31-32). According to Plaintiff, there was a Mexican gang that was “convinced I had snitched

on somebody. So, everywhere I went where they were, I was going to get beat up.” (Id. at 32).

This gang was concentrated in Q-block, R-block, and S-block.38 (Id).

Plaintiff argues that the Defendants Paredes, Velasco, and Skinkis knew he was a

vulnerable inmate “prone to being victimized yet continuously placed me in dangerous situations

causing me to be assaulted multiple times.” (ECF No. 62 at 2). According to Plaintiff, this

knowledge should have alerted them to the risk of harm to Plaintiff. (Id). Plaintiff further contends

that the policy of putting mentally ill inmates in with violent inmates in cells without intercoms is

dangerous and caused him to be assaulted. (Id. at 3).

38 Plaintiff was never housed in S-block. (ECF No. 56 at 32).

On March 1, 2016, Deputy Parades was in A-pod control when a detainee “hit the button

in R-block and said he need[ed] to be moved somewhere else.” (ECF No. 49 at 69). The detainee

was the Plaintiff. (Id). Deputy Parades pulled Plaintiff into the hallway and asked what had

occurred. (Id). Plaintiff stated that multiple detainees called him a snitch. (Id). Plaintiff was told

to go to cell R-11 at which time the detainees assaulted him. (Id). When Deputy Parades asked

for names or descriptions of the detainees, Plaintiff replied that he did not want to be a snitch and

get jumped again. (Id). Plaintiff testified that the one inmate was involved in the assaults in both

Q-block and R-block. (ECF No. 56 at 32). Plaintiff did not know the inmate’s name. (Id).

Deputy Parades noted a small cut and redness on Plaintiff’s face. (ECF No. 49 at 69). The

nurse was called to evaluate the Plaintiff. (Id). She indicated that other than the small cut on his

right arm he did not have any injuries. (Id). Deputy Parades took pictures of the visible marks.

(Id). Plaintiff was taken to the nurse’s station to have the cut cleaned. (Id). While there, Plaintiff

complained of pain on his right rib cage. (Id). The nurse examined the area and listened to

Plaintiff’s lungs and told Plaintiff it seemed to be minor. (Id). Plaintiff was then relocated to P-

block in administrative segregation for his own safety. (Id. at 70).

Plaintiff testified that Deputy Paredes also responded when he was assaulted in T-block.

(ECF No. 56 at 55). According to Plaintiff, he was assaulted by the same inmate who assaulted

him in Q-block. (ECF No. 47-11 at 57). The inmate had been moved into T-block when jail

personnel were separating other inmates. (Id). Plaintiff asserts that this inmate “goes around

starting trouble.” (Id).

On May 30, 2016, Plaintiff was involved in an altercation with Deputy Uriel Paredes. (ECF

No. 47-8 at 10-14). Plaintiff was given a major disciplinary for battery and failure to obey verbal

orders of staff. (Id. at 11 & 13). He was found guilty and given twenty days in disciplinary

segregation. (Id. at 13).

Jarrod Ketcher was moved into the same cell as the Plaintiff on June 10, 2016. (ECF No.

41 at 24). According to Plaintiff, he told Deputies Velasco and Skinkis that there would be

problems between the two inmates. (Id); see also (ECF No. 47-3 at 31).

According to Deputy Velasco, as soon as Plaintiff’s cell door was opened, he took his shirt

off, said he did not want to share his cell with anyone, and said they would fight. (ECF No. 47-14

at 1). At the time, Deputy Velasco indicates Plaintiff had not even seen Ketcher’s face. (Id).

Deputy Velasco states he advised Plaintiff that Ketcher had to be housed with him because there

was no other place to put him at the time. (Id).

Deputy Velasco indicates that Plaintiff preferred to be housed alone and had reacted

similarly each time another inmate was put in the cell with him. (ECF No. 47-14 at 2). Deputy

Velasco did not know of any time Plaintiff had fought with the any other inmate who was put in

his cell despite his threats to do so. (Id). Plaintiff allowed Ketcher to enter the cell. (Id).

According to Deputy Velasco, when Ketcher entered the cell he stated that “they were not going

to fight.” (Id). Deputy Velasco does not recall Plaintiff mentioning the New Aryan Nation gang

in front of him. (Id). As the deputies closed the cell door, Plaintiff and Ketcher “were standing

and talking beside the bunk and did not appear to have any problems with each other.” (Id).

Deputy Velasco went back to the block several times and “neither inmate reported any

further problems” and Deputy Velasco did not observe any problems. (ECF No. 47-14 at 3). When

Ketcher was placed in the cell, Deputy Velasco “believed Hurlbut was only protesting to avoid

sharing a cell as he had done many times before. When I placed Ketcher in the cell with Hurlbut,

I did not believe that Hurlbut was at risk of injury, particularly in light of Ketcher’s statement that

he was not going to fight with Hurlbut.” (Id).

Plaintiff testified that Deputy Velasco took Ketcher’s mat and pushed Plaintiff into the cell

and held him against the wall. (ECF No. 47-11 at 50). Both Deputies Velasco and Skinkis assert

the mat was not used in such a manner. Ketcher also agrees.

After Plaintiff was back in the cell, he states that Deputy Skinkis then pushed Ketcher into

the cell and slammed the door. (ECF No. 47-11 at 50). Ketcher was not being violent, did not

appear to be aggressive, and was not acting out of control when he was placed in the cell with the

Plaintiff. Deputy Velasco stated that he checked on Plaintiff and Ketcher several times throughout

his shift and there was no suggestion of antagonism between the two inmates. Plaintiff also

testified that the two agreed to chill out, be peaceful and civil, and put it on the kiosk the next day

that one of them needed to be moved. (Id).

Ketcher testified he was moved to administrative segregation as the result of being in a

fight. (ECF No. 42 at 15); see also (ECF No. 47-13). He was put in a cell with Plaintiff. (ECF

No. 42 at 15). According to Ketcher, Plaintiff told him that “he had problems with the New Aryan

Empire and that [Ketcher] shouldn’t be housed with him.” (Id. at 16). Ketcher testified it was

common knowledge that it was part of his organization. (Id). Ketcher recalled that Plaintiff told

the officers that he did not want Ketcher in his cell and it would probably cause a problem. (Id. at

17-18). At some point, Plaintiff took his shirt off. (ECF No. 47-13 at 20).

Ketcher thought Plaintiff just did not want anybody who was Caucasian in his cell. (ECF

No. 42 at 18). Ketcher told Deputy Velasco that Plaintiff did not want anybody in his cell and

there were plenty of other cells. (Id. at 26). Ketcher stated Deputy Velasco needed “to talk to [his]

sergeant and put me somewhere else.” (Id). The officers then started talking disciplinary action.

(Id). Ketcher believed he said something to Deputy Velasco about not intending to fight Plaintiff.

(Id. at 27).

Ketcher’s recollection was that Deputy Velasco handed Plaintiff his mat advised Plaintiff

to put his grievance on the kiosk. (ECF No. 47-13 at 11-12). Ketcher testified that Plaintiff was

talking to other inmates through the cell door and complaining about Ketcher being in the cell.

(ECF No. 42 at 20). Other inmates stated that Plaintiff should have “smashed” Ketcher. (Id).

Ketcher felt he and his organization were “disrespected.” (Id). Ketcher, however, did not believe

that Plaintiff was trying to provoke him. (Id. at 25). Ketcher just believed Plaintiff wanted the

cell to himself. (Id).

Ketcher testified he knew he was going to assault the Plaintiff but did not want to do it in

the enclosed cell. (ECF No. 42 at 20). Ketcher wanted everyone to see him assault the Plaintiff.

(Id. at 21). The next day, when they were given their hour out of the cell, Plaintiff went straight

to the kiosk and Ketcher assaulted him. (Id). Ketcher testified he came up behind the Plaintiff

and “struck him in the head with my hand, as hard as I could, and didn’t stop until he was on the

ground, bloody.” (Id. at 22). Ketcher was not wounded. (Id. at 24).

On June 11, 2016, Plaintiff was involved in a fight with Ketcher. (ECF No. 41 at 21).

Plaintiff had blood on his left sleeve and his left eye looked back. (Id). Ketcher’s face was red.

(Id). Medical staff checked the two inmates for injuries. (Id). Ketcher told Deputy Webb that

“one of them needed to go. If not, they were going to fight again.” (Id). Ketcher was moved to a

different cell. (Id).

According to Plaintiff, he was sitting on the ground when Ketcher “snuck up behind me

and attacked me. Therefore, I stood up and defended myself until Ketcher[‘]s a[ss]ault was over.”

(ECF No. 47-3 at 31). Plaintiff submitted a video. (ECF No. 74). The video contains two separate

files each with a different camera angle. The first clip does not depict the fight. However, the clip

froze at approximately 34 minutes as an officer was climbing the stairs to the second tier. The clip

remained frozen until the end of the clip at 43 minutes. The second video clip depicts Hurlbut and

Ketcher fighting. However, the fight was already in progress when the clip starts.

Deputy Webb charged both inmates with a major disciplinary. (ECF No. 41 at 21).

Plaintiff was found not guilty because video evidence showed he was not the aggressor in the fight

and his actions “were to defend against and stop” Ketcher. (Id. at 22).

Plaintiff asserts that he had problems with violence from other inmates during his

incarceration at the WCDC. He states that “[i]t seemed I was always getting jumped.” (ECF No.

49 at 3). Plaintiff indicates that “[m]ost of these incidents went unreported.” (Id. at 4). Plaintiff

asserts that “[t]here were times where the stress and anxiety got to me so bad, I would completely

break down and lose touch with reality.” (Id. at 3).

On September 6, 2016, Deputy Hill noted that Plaintiff had “a shaved spot with a fresh

tattoo on his wrist.” (ECF No. 47-8 at 21). Plaintiff’s cell was searched. (Id). Detainee Buster

Harrell was in the cell at the time. (Id). Deputy Hill asked if there was a tattoo gun. (Id). Harrell

handed Deputy Hill an envelope with a bread tie he was using as a tattoo gun, broken pencils,

strings, and a piece of a County issued striped shirt. (Id). Deputy Jennings found a piece of a razor

blade and saran wrap. (Id). Deputy Hill searched a cracker box filled with mail and found another

tattoo gun consisting of an ink pen cartridge and a shank. (Id). Deputy Hill found another tattoo

gun consisting of a pencil with what appeared to be a staple. (Id). Harrell stepped in front of

Deputy Hill and lunges. (Id). Deputy Jennings grabbed Harrell. (Id). Plaintiff had just returned

to the block from a disciplinary review and told Deputy Jennings to let go of Plaintiff’s cell mate.

(Id). Plaintiff and Harrell started fighting with Deputy Jennings. Deputy Hill “jumped up and

grabbed both Harrell and Hurlbut around the neck.” (Id). Deputy Jennings took Plaintiff and

Deputy Hill forced Harrell to the floor. (Id). Corporal Roy placed his tazer on the Plaintiff’s back

and told him to stop resisting or he would be tazed. (Id. at 22). Plaintiff complied and was

handcuffed. (Id). Deputy Jennings charged Plaintiff with assault and failure to obey verbal orders

of staff.

“Harrell then clinched his right fist and started to swing when [Deputy Hill] grabbed his

arm and forced him to the floor.” (Id). Corporal Roy told Harrell to quit resisting or he would be

tazed.” (Id). Harrell rolled over, was handcuffed, and then helped to his feet. (Id). Harrell became

upset again when he saw Deputy Paredes going through the cracker box. (Id). He was taken to

the floor again and then moved to the hallway. (Id). The nurse was called to evaluate both the

Plaintiff and Harrell. (Id). Harrell was charged with disciplinary violations. (Id).

With respect to Lieutenant Foster, Plaintiff testified he was “over the shift for the incidents

with the inmates that were assaulting” him. (ECF No. 62 at 47). Plaintiff believed Lieutenant

Foster was involved in moving him to the blocks in which Plaintiff was assaulted. (Id).

Specifically, Plaintiff testified that Lieutenant Foster was “either . . . making the moves, telling

them to make the moves, or he was over the shift and generally responsible for the people making

the moves.” (Id).

(2). Analysis of Failure to Protect Claim

Prison officials have a duty, under the Eighth Amendment,39 to protect prisoners from

violence at the hands of other prisoners. See Perkins v. Grimes, 161 F.3d 1127, 1129 (8th Cir.

1998). However, not “every injury suffered by one prisoner at the hands of another . . . translates

39 The Eighth Circuit applies the same Eighth Amendment analysis to actions brought by pretrial detainees and those

brought by convicted prisoners. See e.g., Crow v Montgomery, 403 F.3d 598, 600 (8th Cir. 2005).

into constitutional liability for prison officials responsible for the victim’ s safety.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994).

To prevail on his failure to protect claim, Plaintiff must satisfy a two-prong test. He must

demonstrate that: (1) he was “incarcerated under conditions posing a substantial risk of serious

harm;” and (2) prison officials were “deliberately indifferent [to his] health or safety.” See Holden

v. Hirner, 663 F.3d 336, 341 (8th Cir. 2011) (internal citations omitted). The first prong is an

objective requirement to ensure the deprivation of a constitutional right is sufficiently serious.

Nelson v. Shuffman, 603 F.3d 439, 446 (8th Cir. 2010). “The deprivation is objectively,

sufficiently serious, under the first requirement when the official’s failure to protect resulted in the

inmate being incarcerated under conditions posing a substantial risk of serious harm.” Id. (internal

punctuation marks and citations omitted).

The second prong, however, is subjective requiring Plaintiff show the official “both knew

of and disregarded ‘an excessive risk to inmate’s health or safety.’” Holden, 663 F.3d at 341

(quoting Farmer, 511 U.S. at 837). “An official is deliberately indifferent if he or she actually

knows of the substantial risk and fails to respond reasonably to it.” Young v. Selk, 508 F.3d 868,

873 (8th Cir. 2007). Negligence alone is insufficient to meet the second prong, instead, the official

must “recklessly disregard a known, excessive risk of serious harm to the inmate.” Davis v.

Oregon County, 607 F.3d 543, 549 (8th Cir. 2010) (internal quotation marks and citation omitted).

Plaintiff “need not show ‘that a prison official acted or failed to act believing that harm actually

would befall an inmate, it is enough that the official acted or failed to act despite his knowledge of

a substantial risk of serious harm.’” Nelson, 603 F.3d at 447 (quoting Farmer, 511 U.S. at 842).

“Moreover, ‘in order to have a viable deliberate indifference claim, a plaintiff is not required to

allege and prove that the defendant . . . specifically knew about or anticipated the precise source

of the harm.’” Id. (quoting Kahle v. Leonard, 477 F.3d 544, 551 (8th Cir. 2007)).

Prior to the assault, there had been no previous incidents or disputes between Plaintiff and

Ketcher or the New Aryan Empire. There is no evidence in the record suggesting that Ketcher had

been involved in other altercations or was the aggressor in any prior assaults. In any event, even

if such evidence existed, “[a]n inmate’s history of violence alone in insufficient to impute to prison

official’s subjective knowledge of the inmate’s danger of harm to other inmates.” Holden v.

Hirner, 663 F.3d 336, 341 (8th Cir. 2011)(citation omitted). Moreover, it is recognized that

“threats between inmates are common and do not, under all circumstances, serve to impute actual

knowledge of a substantial risk of harm.” Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998).

There was evidence that Plaintiff has been involved in three prior altercations with inmates.

On two of those occasions, Plaintiff refused to identify the inmates involved. Plaintiff testified

that he was victim in numerous other altercations that went unreported. Plaintiff was also involved

in an altercation with Deputy Paredes and with Deputy Jennings. Plaintiff testified that you could

not submit something in writing “every single that everybody is going to be your enemy, it’s all

the time.” (ECF No. 47-11 at 54). At various times, Plaintiff was housed in administrative

segregation for his safety.

Plaintiff did not tell Deputies Velasco or Skinkis that he felt threatened by Ketcher. Rather,

Plaintiff told them he and Ketcher would fight if they put Ketcher in the cell. (ECF No. 47-11 at

49). At this point, Plaintiff testified he was threatened with a disciplinary if he did not allow

Ketcher into his cell. (Id). In response, Plaintiff took his shirt off and said they were going to

fight if the officers pushed Ketcher in the cell. (Id). Plaintiff also stated Ketcher was his enemy

because he was an “Aryan prospect” and “just wanted to beat me up to impress his Aryan friends

that he’s going to beat up a snitch.” (Id. at 52). Plaintiff testified he had met Ketcher when they

both were in population and that Ketcher was bragging that he was going to beat Plaintiff up. (Id).

Plaintiff, however, did not report this other than verbally telling “the police” that Ketcher “better

stay away from” him. (Id. at 53.).

Plaintiff maintains all the Constitution requires is that he inform jail officials there would

be a problem if Ketcher was placed in his cell. This is clearly not the law. Inmates do not get to

pick and choose who they are confined with; nor does an inmate get to dictate that he be housed

by himself because he was involved in prior altercations. These types of decisions are left to jail

officials so long as the inmate’s constitutional rights are not being violated. There is evidence that

Plaintiff had a history of protesting when other inmates were put in his cell and preferred to be

housed by himself.

The question is “whether, based on the facts as alleged, the defendants recklessly

disregarded an objectively serious risk of harm to [Plaintiff] by placing [Ketcher] in the same

room.” Nelson, 603 F.3d at 447. Here, there is no evidence Plaintiff was incarcerated under

conditions posing a substantial risk of serious harm or that the Deputies Velasco and Skinkis were

deliberately indifferent to Plaintiff’s health or safety prior to the attack. Deputies Velasco and

Skinkis are entitled to summary judgment.

With respect to Deputy Parades, Plaintiff’s claim is based on the fact that Deputy Parades

placed him in R-block after the altercation in Q-block. (ECF No. 47-11 at 55). Plaintiff did not

want to be housed in R-block because it was next to Q-block. (Id). Plaintiff testified he was told

he had to either go to R-block or the hole. (Id). Plaintiff chose R-block. (Id). However, Plaintiff

believed he should have been moved to the other side of the jail. (Id).

This is insufficient to suggest that Deputy Parades knew that R-block was not going to be

a safe place to house the Plaintiff or that he acted with deliberate indifference towards Plaintiff’s

safety. As discussed above, Plaintiff does not get to dictate where he will be housed. Deputy

Parades is entitled to summary judgment.

With respect to Lieutenant Foster, Plaintiff testified he was over the shift for the incidents

involving inmates assaulting him. (ECF No. 62 at 47). Plaintiff also believed Lieutenant Foster

was involved in determining where Plaintiff should be housed. (Id).

Supervisors are not liable under § 1983 based on a respondeat superior theory. Howard v.

Adkison, 887 F.2d 137, 137 (8th Cir. 1989). A supervisor may be held individually liable under §

1983 if he directly participates in the constitutional violation “or when the supervisor’s corrective

inaction constitutes deliberate indifference toward the violation. The supervisor must know about

the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he] might

see.” Ottman v. City of Independence, Mo., 341 F.3d 751, 761 (8th Cir. 2003)(citation omitted).

Here, other than the fact that Lieutenant Foster is one of the shift supervisors, there is nothing in

the summary judgment record to suggest he made any decisions on where Plaintiff should be

housed or who he should be housed with. Nor is there any evidence that Lieutenant Foster’s

corrective inaction constitutes deliberate indifference towards Plaintiff’s right to be free from

attack by fellow inmates. Lieutenant Foster is entitled to summary judgment.

Plaintiff also asserts an official capacity claim. When asked to describe the jail’s custom

or policy, Plaintiff testified that “[w]hen you make a verbal report of a possible fight to an officer,

they should immediately do something to stop it, or at least report it to their supervisor.” (ECF

No. 47-11 at 58). Further, Plaintiff testified that if he said there was “going to be a fight with me

and this guy,” the deputy should definitely tell his supervisor and “see what to do about that.”

(Id).

As discussed above in connection with the official capacity claim against Sheriff Helder,

Plaintiff must show that a policy or custom of Washington County was the moving force behind

the violation of Plaintiff’s constitutional right. See Brewington v. Keener, 902 F.3d 796, 800-01

(8th Cir. 2018)(liability on an official capacity claim exists only if the execution of a county policy

or custom caused the injury). Here, Plaintiff sets forth what he believes the policy of the WCDC

should be. He does not ascribe the constitutional violations to any existing policy or custom.

Sheriff Helder is entitled to summary judgment.

(D). Unconstitutional Conditions of Confinement Claim

(1). Relevant Facts

According to Corporal Mulvaney, the WCDC “housing areas are configured such that each

pod is set up with open barracks or smaller cells on the perimeter of the pod and then each has a

day room where inmates have sufficient space to have recreation activities.” (ECF No. 47-1 at 2).

The day room has an intercom for use by inmates. (Id. at 2-3). “Deputies are assigned to perform

random and regular checks of each pod throughout the day, at least one per hour. In addition,

deputies are stationed in pod control areas where they have constant surveillance through cameras

in each pod.” (Id. at 3).

The Facility Supervisor may make the decision to place a detainee in administrative

segregation “on the basis of: 1) a request for segregation by the detainee; 2) observations or reports

from officers of persistently disruptive or potentially disruptive behavior; 3) a report [from] the

facility physician or nurse; 4) apparent need for protection; or 5) recommendation of Judge,

Prosecutor, or arresting agency.” (ECF No. 47-1 at 3).

Plaintiff indicates he “spent month after unending month in solitary confinement or on

disciplinary segregation” with no privileges. (ECF No. 48 at 4-5). He asserts he was “[n]ever

given special consideration for my mental illness, even in disciplinary hearings.” (Id). Plaintiff

also notes that when he was on disciplinary segregation he did not even get his double mat

prescription to help alleviate his chronic pain. (Id. at 5).

Plaintiff’s assignment to administrative segregation was reviewed on August 22, 2016 and

September 5, 2016 and it was determined he should remain there due to his own safety. (ECF No.

47-8 at 17, 20). On November 8, 2016, Plaintiff requested a move to administrative segregation.

(Id. at 25). He was told he would be moved as soon as space became available. (Id). On November

23, 2016, Plaintiff’s status was reviewed, and it was noted he had “problems adjusting in general

population and . . . requested to be kept in ASEG status as a result.” (Id. at 26). On December 7,

2016, Plaintiff’s status was again reviewed. (Id. at 27). It was determined that Plaintiff could

remain in administrative segregation due to his problems adjusting to general population. (Id). On

January 6, 2017, Plaintiff’s administrative segregation was reviewed, and Plaintiff was left in

segregation due to limited housing options. (Id. at 31). The same conclusion was reached on

January 21, 2017. (Id. at 32). On February 21, 2017, it was determined Plaintiff should remain in

administrative segregation because he was on strong psychiatric medication, he had assaulted an

officer, and his behavior was unpredictable and constituted an officer safety risk. (Id. at 33). On

March 24, 2017, Plaintiff’s housing was reviewed, and it was determined he should stay in

administrative segregation pending the medical examination. (Id. at 36).

On January 2, 2017, Plaintiff complained of a leak in his cell that caused black mold to

begin growing on the walls. (ECF No. 47-3 at 55). He said he believed the inmates were getting

sick because of the leaking water and mold. (Id).

On March 22, 2017, Plaintiff submitted a grievance noting the public restroom was “filthy

with used toilet tissue, trash, pubic hair, etc. This is a Hepatitis risk and probably other diseases

too. Please have it scrubbed clean and disinfected asap.” (ECF No. 47-3 at 70). In response, he

was told the bathrooms were cleaned daily. (Id). He was also told he could ask an officer for

cleaning supplies. (Id).

On May 7, 2017, Plaintiff submitted a grievance stating there were no intercoms in the

cells with solid doors. (ECF No. 47-3 at 76). He asserted this was unconstitutional because there

was no way for him to “hail an officer” should an emergency arise. (Id). In response, Plaintiff

was told that regular jail checks were performed, and he could speak to an officer then. (Id).

Plaintiff replied that was not adequate because the officers were hardly ever in there and when

they are there they do not listen to anybody. (Id). Plaintiff said they needed to install intercoms

and doors with bars. (Id). He was told that the jail was in compliance with the Arkansas Jail

Standards. (Id).

(2). Analysis of Unconstitutional Conditions of Confinement Claim

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

and unusual punishment.33 U.S. Const. amend. VIII. "[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." County of

Sacramento v. Lewis, 523 U.S. 833, 851 (1998)(citation omitted). The Constitution does not

mandate comfortable prisons, but neither does it permit inhumane ones. See Farmer v.

Brennan, 511 U.S. 825, 832 (1994). "The Eighth Amendment prohibits punishments that

33 The Eighth Circuit has consistently applied the Eighth Amendment to conditions of confinement claims brought

by pretrial detainees and convicted inmates. See e.g., Davis v. Oregon Cnty., Missouri, 607 F.3d 543, 548 (8th

Cir. 2010)("Pretrial detainees are entitled to the same protection under the Fourteenth Amendment as imprisoned

convicts receive under the Eighth Amendment")(internal quotation marks and citation omitted).

deprive inmates of the minimal civilized measure of life’s necessities." Smith v. Copeland, 87

F.3d 265, 268 (8th Cir. 1996). Jail or prison officials must provide reasonably adequate

ventilation, sanitation, bedding, hygienic materials, food, and utilities. Prison conditions claims

include threats to an inmate’s health and safety. Irving v. Dormire, 519 F.3d 441, 446 (8th Cir.

2008)(citation omitted).

To state an Eighth Amendment claim, the plaintiff must allege that prison officials acted

with "deliberate indifference" towards conditions at the detention facility that created a substantial

risk of serious harm. Farmer, 511 U.S. at 834. The deliberate indifference standard involves both

an objective and subjective component. The objective component requires an inmate to show that

"he is incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S.

at 834 (citations omitted); see also Hudson v. McMillian, 503 U.S. 1, 2 (1992) (The objective

component is "contextual and responsive to contemporary standards of decency")(quotation

omitted). To satisfy the subjective component, an inmate must show that prison officials had "a

sufficiently culpable state of mind." Farmer, 511 U.S. at 834 (citations omitted); see also Brown

v. Nix, 33 F.3d 951, 954-55 (8th Cir. 1994). The subjective component "requires proof of a reckless

disregard of a known risk." Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005)(citation

omitted).

Plaintiff maintains that his confinement in administrative segregation resulted in his being

locked up twenty-three hours a day and not being allowed to have his mat during the day. He

maintains these conditions adversely impacted both his physical and mental health.

“The Eighth Amendment 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).

“Conditions of confinement, however, constitute cruel and unusual punishment ‘only when they

have a mutually enforcing effect that produces deprivation of a single, identifiable human need

such as food, warmth, or exercise.’” Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir.

1994)(quoting Wilson v. Sieter, 501 U.S. 294 (1991)). Confinement to administrative segregation

does not constitute an Eighth Amendment violation.

Similarly, Plaintiff’s exposure to black mold because of a leak in the cell and the filthy

condition of the “public restroom” are insufficient to establish an Eighth Amendment violation.

With respect to the leak, the inmates were provided with blankets to soak up the water and a

maintenance order was completed. With respect to the public restroom, Plaintiff does not deny

that it was cleaned daily or that he could have requested cleaning supplies when it became dirty or

unsanitary during the day.

Plaintiff’s final contention is that it was unconstitutional for Defendants to confine inmates

to cells that had solid metal doors and no intercoms. Plaintiff maintains this made it virtually

impossible to notify the guards in the event of an emergency. In fact, Plaintiff states the only way

you could attempt to notify the guards was to repeatedly kick the cell door to make enough noise

to get their attention. While Defendants maintain the guards made physical rounds in addition to

guards manning the control area, Plaintiff suggests this did not occur on any regular basis.

Plaintiff’s claim fails. The lack of intercoms is not sufficiently egregious in that it does not

deprive the inmates of a single identifiable human need. Moreover, it is undisputed that the guards

were present when meals were distributed, when trays were picked up, when medication was

passed, and when inmates were given their hour out of the cell. Defendants are entitled to summary

judgment on this claim.

(E). Denial of Access to the Grievance Procedure Claim

(1). Relevant Facts

The WCDC requires that all requests and grievances be submitted in writing. (ECF No.

47-1 at 4). “Grievances must be made promptly after the incident has occurred. Procedures are in

place for review, investigation, and response to grievances, as applicable.” (Id). Plaintiff

maintains his grievances were not promptly addressed, were frequently forwarded to others, the

answers were incomplete, and he was not given the relief he asked for.

(2). Analysis of Denial of Access to the Grievance Procedure Claim

“Inmates do not have a constitutionally protected right to a grievance procedure. Because

a state grievance procedure does not confer any substantive right upon prison inmates, a prison

official’ s failure to comply with the grievance procedure is not actionable under § 1983.” Lombolt

v. Holder, 287 F.3d 683, 684 (8th Cir. 2002)(denial of grievances does not state a substantive

constitutional claim). “Rather, prison inmates have a constitutional right to petition the

government for redress through a right of access to the courts.” Flick v. Alba, 932 F.2d 728, 729

(8th Cir. 1981). Plaintiff was not denied access to the courts. Defendants are entitled to summary

judgment on this claim.

(F). Qualified Immunity

Having found that the facts do not make out a constitutional violation, Defendants are

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

(unless there is a violation of a constitutional right the Defendant is entitled to qualified immunity).

V. CONCLUSION

For the reasons stated, the Court ORDERS that:

1. Plaintiff’s Motion for Partial Summary Judgment (ECF No. 41) is DENIED.

2. Plaintiff’s Motion for Summary Judgment (ECF No. 49) is DENIED.

3. Defendants’ Motion for Summary Judgment (ECF No. 49) is GRANTED.

This case is hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED this 4th day of January, 2019.

/s/P.K. Holmes,

P. K. HOLMES, III

CHIEF U.S. DISTRICT JUDGE