Norman v. Lewis

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

DARREN LEE NORMAN PLAINTIFF

V. CASE NO. 3:17-cv-03069

JAIL ADMINISTRATOR BRAD LEWIS;

OFFICER RYAN THOMPSON;

and OFFICER PHILLIP KRUG DEFENDANTS

MEMORANDUM OPINION AND ORDER

Plaintiff Darren Lee Norman filed this civil rights action pursuant to 42 U.S.C.

§ 1983. He proceeds pro se and in forma pauperis. Plaintiff currently is incarcerated

in the Pine Bluff Unit of the Arkansas Department of Correction.

The events at issue in this case occurred at the Baxter County Detention Center

(“BCDC”). Plaintiff has named as Defendants Jail Administrator Brad Lewis, Officer Ryan

Thompson, and Officer Phillip Krug. During a seizure Plaintiff suffered on August 19,

2014,’ he maintains that Officers Thompson and Krug used excessive force against him

when they utilized a technique known as a sternum rub on him three separate times,

causing him physical injury. Plaintiff also maintains he did not receive adequate medical

care while detained at the BCDC.

The case is before the. Court on Defendants’ Motion for Summary Judgment (Doc.

45). Plaintiff has responded, see Doc. 50, and the Motion is now ready for decision.

1 Plaintiff alleges the seizure occurred on August 18, 2014; however, jail records and the

medical records indicate it occurred on August 19th. (Doc. 47-4, pp. 2, 25). In his

deposition, Plaintiff testified that he was not sure of the date of the seizure. (Doc. 47-7,

p. 20).

I. BACKGROUND

Plaintiff was booked into the BCDC on August 14, 2014. (Doc. 47-2, p. 1). He

was released on September 1, 2014, for medical reasons. /d. at 3. As part of the

intake process, Plaintiff indicated that he had a history of three strokes and a traumatic

brain injury and that he suffered from seizures, depression, anxiety, and borderline

personality disorder. (Doc. 47-4, p. 1). He listed his medications as Gabapentin,

Hydroxyzine, Trazodone, Quetiapine, and Divalproex. /d. Plaintiff later testified in this

lawsuit that he had been diagnosed with epilepsy and had seizures “pretty frequent[ly],”

about two or three times a month or more. (Doc. 47-7, pp. 15-16). Plaintiff brought

his medications to the jail with him. (Doc. 47-4, p. 25).

On August 16, 2014, Plaintiff sought medical care for chest pain and numbness in

his leftarm. (Doc. 47-3, p. 1). He filled out an “Inmate Medical Request’ form on that

date. A note on the form indicates that Plaintiff was examined on August 19, 2014,

though the time of day of the examination is not specified. /d.

On August 19, 2014, at approximately 6:40 p.m., Plaintiff had a seizure. Officers

Thompson and Krug performed sternum rubs? on the Plaintiff. Plaintiff has submitted

a video® of this event. The video shows the following:

2 “A sternum rub is accomplished by applying pressure with the knuckles upon a person's

sternum. Not surprisingly, this technique can successfully awaken people from a deep

sleep.” Young v. Harrison, 284 F.3d 863, 866 n.2 (8th Cir. 2002). See also Scheffler v.

Lee, 2018 WL 4849690, at *2 (6th Cir. Oct. 5, 2018) (describing a sternum rub as “a

medical procedure designed to rouse an unresponsive patient’).

3 There is no audio. :

18:40:52 Plaintiff falls to the floor having a seizure.

18:41:00 Officer Thompson attempts to place a mat under Plaintiff's head.

18:41:04 Officer Thompson puts Plaintiff on his right side and raises Plaintiff's left

arm.

18:41:18 Officer Thompson walks to a counter a few feet away and leans on it

observing Plaintiff.

18:41:55 Officer Thompson turns Plaintiff onto his back. Officer Krug approaches.

18:41:58 Officer Krug, with his back to the camera, appears to perform a sternum

rub (lasting approximately 3 seconds).

18:42:02 Officer Thompson performs a sternum rub (lasting approximately 9

seconds).

18:42:32 Officer Thompson performs a sternum rub (lasting approximately 6

seconds).

18:43:22 Officer Thompson turns Plaintiff onto his left side.

18:43:48 Officer Krug walks off screen. Officer Thompson continues to observe

the Plaintiff turning him back onto his left side several times.

18:56:21 Officer Krug arrives back and leans on the counter.

18:57:54 Officer Thompson appears to be demonstrating the length of the injury

to Plaintiff's sternum by holding his hands to his own chest with the hands

separated by approximately six to eight inches. .

18:59:30 The paramedics arrive.

19:00:42 The paramedics are provided with Plaintiff's medication

19:05:32 Plaintiff is placed on the stretcher. He appears to be conscious.

19:06:22 Plaintiff is taken out.

Plaintiff was transported to Baxter Regional Medical Center (“BRMC”). (Doc. 47-

4, p. 2). He was prescribed Phenytoin.4 /d. at 3. Plaintiff testified that, ordinarily,

when he comes out of a seizure, everything is confusing to him. (Doc. 47-7, p. 22).

He did not recall having had the seizure, but he remembered waking up in the hospital.

Id. at 22, 26. He first became aware of the wound caused by the sternum rubs when

he woke up. /d. at 40. He experienced “a lot of pain” whenever he moved. /d.

Hospital personnel noted that Plaintiff had an “8cm superficial abrasion over the sternal

area.” (Doc. 51-1, p. 77).

On August 20, 2016, Plaintiff's mother, Teresa Norman, visited him at the jail.

She is a registered nurse with 30 years of experience working in emergency rooms. She

described her son’s wound as being 8 cm by 3 cm in area. (Doc. 51-1, p. 86). Her

husband took photographs of the wound that day, including the following photograph:

4 Phenytoin is an anti-convulsant used to control seizures. https://medlineplus.gov/

druginfo/meds/a682022.html (accessed January 9, 2019). Dilantin is the brand name for

this drug.

aes —

= a

(Doc. 51-51, p. 57). Additionally, Plaintiff submitted several photos of the injury taken

_ during his various trips to the hospital. See id. at 70, 73, 76.

According to Plaintiff, the wound would bleed and “stuff would always ooze out

through the gauze and [his] shirt would stick to it.”. (Doc. 47-7, p. 40). Jail staff would

give Plaintiff antibiotic ointment, gauze, and tape for the wound. /d. Plaintiff also

received Ibuprofen or Tylenol for pain relief. /d. at 44.

Plaintiff testified that it took “[q]uite a while” for the wound to stop oozing. (Doc. 47-

7, p. 41). He testified that the pain from the wound lasted approximately a month. /d.

at 45. Plaintiff does not believe that the sternum rubs he received affected the seizure

he had on August 19, either positively or negatively. /d. However, he still bears

a scar on his chest from the wound caused by the sternum rubs. (Doc. 51, p. 2).

On August 21, 2014, Jail Administrator Lewis made the following note in Plaintiff's

file:

When inmate went to Hospital, | was contacted by one of the Paramedics

who wanted to speak to a Supervisor. | called and they wanted us to be

aware that who ever did the Sternum Rub on the Inmate had used tofo]

much pressure and had rubbed the skin and pulled out Chest Hair and they

should not be putting that much pressure when doing this. | spoke to Cpl

Ryan Thompson and he stated he did give the inmat[e] a Sternum rub and

also Phillip Krug came in behind him and Gave him a Sternum Rub Also. |

explained to Cpl. Thompson and advised him what was going on and to

advise Jailer Krug also.

(Doc. 47-4, p. 25).

With respect to Plaintiff's aftercare at the BCDC, the jail’s internal medical records

indicate the following:

8 August 20, 2014 Plaintiff was provided with anti-bacterial ointment and

gauze.

e August 21, 2014 Plaintiff was provided hydrocodone creme, bandages,

and two Advil. A note was also made in the file that the wound needed to

be checked at every medication call, and Plaintiff should be seen by the

nurse the following day.

e August 22, 2014 Plaintiff was seen by unidentified medical personnel, and

a note was made in the file that the abraded area was 3 cm wide and 10 cm

long; the wound was cleansed with betadine, and sterile dressings were

applied.

e August 23, 2014 A note in the file indicates that Plaintiff's bandages were

changed on August 22nd and August 23rd, despite Plaintiff's contention that

he was not receiving medical supplies on those days.

e August 24, 2014 Plaintiff was seen at the infirmary for a dressing change.

His chart noted that the skin around the wound was pink with no

inflammation or fluid seen.

e August 25, 2014 A note on Plaintiffs chart states that he told staff he did

not need his bandages changed.

(Doc. 47-4, pp. 25, 27).

Plaintiff also contends that during his incarceration at the BCDC, his medication

was distributed at times other than the prescribed times. Plaintiff has provided some

examples of this practice. See Doc. 50 at 5; Doc. 47-4, pp. 28-49 (medication logs)).

He maintains that this practice resulted in him not receiving his medication at sufficiently

therapeutic levels.

Plaintiff also asserts that on several occasions, the jailers’ conduct was

unprofessional. By way of example, Plaintiff states that one jailer referred to him as “a

retard,” and other jailers laughed at him and made derogatory remarks about him. (Doc.

9 at 9; Doc. 50 at 5).

Plaintiff was seen again for seizures at the BRMC on August 28, 2014, August 31,

2014, and September 1, 2014. (Doc. 47-4, pp. 18, 25-26: Doc. 55-1, pp. 11-12).

Plaintiff could not recall all of these incidents. (Doc. 47-7, pp. 27, 30). But on September

1, 2014, the following entry concerning Plaintiff appeared in the BCDC’s prisoner log:

“PER SHERIFF THIS INMATE NEEDS TO BE OR’ED IMMEDIATELY TO RECEIVE

MEDICAL TREATMENT.” (Doc. 47-4, p. 26). On that same day, the BRMC sent Plaintiff

to Mercy Hospital in Springfield, Missouri. (Doc. 47-7 at 53). He remained hospitalized

there from September 1 - 9, 2014. /d. at 33; Doc. 51-1 at 68.

Plaintiff was admitted to an inpatient treatment program at Brookhaven Hospital—

Neurological Rehabilitation Institute in Tulsa, Oklahoma, on October 24, 2016. (Doc.

51-1, p. 67). He presented with a host of problems, including Post Traumatic Stress

Disorder (“PTSD”). /d. Plaintiff testified that he becomes anxious whenever he is

around law enforcement officers, even in the context of a traffic stop. (Doc. 47-7, p. 60-

61). Prior to the sternum-rub incident, Plaintiff sustained a serious shoulder injury as a

result of an encounter with an officer in Fulton County. /d. at 62. Since then, Plaintiff

has experienced anxiety in dealing with law enforcement officials. /d. at61-62. Plaintiff

testified he did not know if the PTSD stemmed from the sternum rubs at issue in this case,

or from the Fulton County incident, or both. /d. at 62.

Plaintiff “believes” Jail Administrator Lewis was present when the sternum rub took

place. (Doc. 47-7, p. 56). However, Plaintiff has no evidence that Lewis performed the

sternum rub. According to Lewis, Baxter County’s policy provides that inmates may

“make medical complaints daily for review by qualified medical personnel to ensure

appropriate medical attention.” (Doc. 47-1, p. 2). Emergency medical services are

available 24 hours aday. /d. Officers are “trained to respond to medical emergencies

and may provide temporary lifesaving care while EMS or other medical personnel are in

route. The primary medical provider, however, is the facility medical provider® or

personnel from an emergency medical service.” /d. In addition, “[alll decisions

regarding medications, medical testing, or medical treatment are left to the professional

medical judgment of a medically trained physician.” /d. at 3.

According to jail policy, the facility has entered into a contract with qualified medical

personnel. (Doc. 47-6, p. 3). The health services contract is to provide for “both on-

° The medical care provider is not named. (Doc. 47-4, p. 25; Doc. 47-6, p. 3).

call medical services and for on-site visits by qualified health professionals.” Id. On-

site visits are to be made twice a week. /d. The emergency medical plan states that

the facility will “contract with at least two licensed physicians to ensure that at least 24-

hour on-call coverage by the same is available.” /d. at 7. Inmates who have medical

complaints are to “verbally express” their complaints to jail officers, who are to document

the complaints and ensure that they are “referred to medical personnel during their routine

visits to the facility.” /d. at 5.

Officers also receive training in basic first aid. (Doc. 47-1, p. 3). A sternum rub

is not part of the training provided. /d. However, “officers are trained to assess an

inmate’s medical needs as much as possible.” /d. Lewis asserts that “[o]fficers must

make an assessment as to whether an inmate is conscious or suffering a medical

emergency.” /d. The jail’s emergency medical care policy provides that officers are

trained to detect medical emergencies including “signs of unconsciousness or semi-

consciousness.” (Doc. 51-1, p. 25). According to Lewis: “A sternum rub may be used

to determine if a person is conscious by forcefully rubbing knuckles over a person’s

sternum to see if the person responds to the pain of the stimulus. By its very nature, a

correctly applied sternum rub is likely to leave a wound similar to a rub burn on the chest.”

(Doc. 47-1, p. 4).

Lewis further notes that “[i]t is not uncommon for inmates to refuse communication

with officers during a medical event or to fake a medical need.” (Doc. 47-1, p. 3). With

respect to the incident at issue here, Lewis explains that the incident was reviewed, and

it was determined that Officers Thompson and Krug did not violate County policy. /d. at

4. However, after this incident, Lewis claims “it was determined that Baxter County

officers would be instructed not to use a sternum rub.” /d. (emphasis added).

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.” □□□□

Bank of Commerce v. Dow Chem. 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’ 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.” /d. (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).

10

lll. © DISCUSSION

Section 1983 provides a federal cause of action for the deprivation, under color of

law, of a citizen’s “rights, privileges, or immunities secured by the Constitution and laws’

of the United States. To establish a claim under § 1983, Plaintiff must show defendants:

(1) acted under color of law; and, (2) caused the deprivation of a right established by the

Constitution of laws of the United States. Dunham v. Wadley, 195 F.3d 1007, 1009 (8th

Cir. 1999).

A. Use of Force

1. Officers Thompson and Krug

There is no dispute that the sternum rubs were actually administered and that

Plaintiff suffered physical injury as a result. Officers Thompson and Krug contend,

however, that they performed sternum rubs in a reasonable manner to determine

whether: (1) Plaintiff was suffering from a medical condition and needed emergency

medical attention or (2) Plaintiff was capable of responding to stimuli and was being

deliberately non-responsive. They also maintain they are entitled to qualified immunity.

“Government officials performing discretionary functions, generally are shielded

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

Statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “The qualified immunity standard ‘gives

ample room for mistaken judgments’ by protecting ‘all but the plainly incompetent or those

who knowingly violate the law.” Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting

Malley v. Briggs, 475 U.S. 335, 341-43 (1986)).

11

“[T]o withstand a motion for summary judgment on qualified immunity grounds, a

civil rights plaintiff must (1) assert a violation of a constitutional right; (2) demonstrate that

the alleged right is clearly established; and (3) raise a genuine issue of fact as to whether

the official would have known that his alleged conduct would have violated plaintiff's

clearly established right.” Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996).

The Supreme Court has held that a pretrial detainee’s® excessive-force claim

should be analyzed under an objective reasonableness standard. Kingsley v.

Hendrickson, 135 S. Ct. 2466, 2473 (2015). The objective reasonableness of a use of

force “turns on the ‘facts and circumstances of each particular case.” /d. (quoting

Graham v. Connor, 490 U.S. 386, 396 (1989)). The determination should be made from

the perspective of a reasonable officer on the scene. A court must also account for the

‘legitimate interests that stem from [the government's] need to manage the facility in

which the individual is detained,” appropriately deferring to “policies and practices that in

th[e] judgment” of jail officials “are needed to preserve internal order and discipline and

to maintain institutional security.” /d. (quoting Bell v. Wolfish, 441 U.S. 520, 540 (1979)).

An action is objectively unreasonable if it is not reasonably related to legitimate

governmental interests, such as maintaining order and security. _/d.

In determining whether a given use of force was reasonable or excessive, the

following factors may bear on the issue: the relationship between the need for the use of

force and the amount of force used; the extent of the plaintiff's injury; any effort made by

6 Plaintiff contends his status as a pretrial detainee is irrelevant; however, different

constitutional standards may apply depending on whether a prisoner is a pretrial detainee

or a convicted inmate.

the officer to temper or to limit the amount of force; the severity of the security problem at

issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively

resisting. /d. The Court in Kingsley noted that the list was not exclusive but instead only

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

excessive force.” /d.; see also Ryan v. Armstrong, 850 F.3d 419, 427 (8th Cir. 2017).

The use of pain stimuli to determine a person’s level of consciousness is a

recognized medical technique. As the following article indicates:

Pain stimulus is a technique used by medical personnel for assessing the

consciousness level of a person who is not responding to normal

interaction, voice commands or gentle physical stimuli. . . . Pain stimulus

can be applied either centrally or peripherally . . . Trapezius squeeze,

mandibular pressure, supraorbital pressure and sternal rub are four

commonly used central stimuli. Central stimuli should always be used

when attempting to assess if the patient responds to painful stimuli . . .

Central stimuli need to be applied for at least 15 and potentially up to 30

[seconds] in order for the clinician to accurately assess their efficacy.

Sternal rub is known for bruising in fair-skinned people hence its use has

been discouraged.

https:/Avww.ncbi.nim.nih.gov/pmc/articles/PMC3987201/ (accessed January 8,

2019).

“A sternum rub is accomplished by applying pressure with the knuckles upon a

person's sternum.” Young v. Harrison, 284 F.3d 863, 866 n.2 (8th Cir. 2002). “A

sternum rub is a non-trivial, but less than intermediate, level of force because it can be

painful and cause bruising, and may in some circumstances, be considered excessive.”

Garlick v. Cnty. of Kern, 167 F. Supp. 3d 1117, 1127 (E.D. Cal. 2016). In Pardue v.

Glass, 2008 WL 249173, at *22 (W.D. Ark. Jan. 29, 2008), Pardue argued that the

performance of sternum rubs on him three separate times while he was in a restraint chair

13

constituted excessive force. /d. Pardue suffered an abrasion to his chest. /d. The

testimony in that case indicated that the sternum rub was a viable medical procedure.

ld. Further, there was credible testimony that malingering was common among jail

detainees. /d. This Court concluded that the sternum rub was used to determine if

Pardue was suffering from a medical condition or if he was being deliberately

nonresponsive. /d. The use of the sternum rub was therefore held not to constitute

excessive force under the circumstances of that case. /d.

Here, Plaintiff maintains that Officers Thompson and Krug should not have applied

any force through the administration of sternum rubs and instead should have waited for

Emergency Medical Technicians (“EMT”) to determine Plaintiff's level of consciousness.

Plaintiff also contends the officers knew the sternum rub had caused injury to his chest

and that the injured area was bleeding, yet they applied the sternum rub multiple times.

Giving the Plaintiff the benefit of all reasonable inferences and viewing the evidence in

the light most favorable to the Plaintiff, the Court concludes that there is a genuine issue

of material fact as to whether excessive force was used under the circumstances.

holding, the Court notes that the Defendants did not submit the affidavits of Officer

Thompson, Officer Krug, or any medical personnel.

The question now becomes whether “the right was clearly established at the time

of the violation.” Robinson v. Payton, 791 F.3d 824, 828 (8th Cir. 2015); see also Krout

v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009) (“Unless the answer to both these

questions is yes, the defendants are entitled to qualified immunity.”). To determine if

Plaintiff's right was clearly established at the time of the alleged deprivation, the Court

14

“must . . . examine the information possessed by the governmental official accused of

wrongdoing in order to determine whether, given the facts known to the official at the time,

a reasonable government official would have known that his actions violated the law.”

Langford v. Norris, 614 F.3d 445, 461 (8th Cir. 2010). “This is not to say that an official

action is protected by qualified immunity unless the very action in question has previously

been held unlawful; but it is to say that in the light of preexisting law the unlawfulness

must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).

There are few cases involving the use of pain stimuli by jailers to determine

consciousness, and even fewer discussing whether the use of a sternum rub could

constitute excessive force.’ Fourth Amendment law in general does not suggest that the

use of a medical technique by a jailer constitutes excessive force, even if that medical

technique is intended to inflict some amount of pain. “To be clearly established, a right

must be sufficiently clear that every reasonable official would have understood that what

The Court also searched for any recent case law that discussed whether a sternum rub

was still considered a medically viable procedure. It appears the most recent federal

appellate case mentioning sternum rubs is Sheffler v. Lee, an opinion issued by the Court

of Appeals for the Sixth Circuit in October of 2018. 2018 WL 484690 (6th Cir. Oct. 5,

2018). The Scheffler Court described the sternum rub as “a medical procedure in which

the provider makes a fist and presses his knuckles against an unresponsive patient in an

attempt to rouse him.” /d. at *11. In Scheffler, an EMT rather than a jailer performed a

sternum rub on a prisoner in an ambulance on the way to a hospital. The Court affirmed

the district court’s dismissal of the prisoner's battery claim against the EMT—which

stemmed entirely from the application of the sternum rub. Similarly, in the Eighth Circuit,

the most recent case to mention sternum rubs (albeit only in passing) was United States

v. Schoenborn, 793 F.3d 964, 965-66 (8th Cir. 2015). That case involved a police officer

who used a sternum rub on an assault victim in an attempt to rouse the victim from

unconsciousness. The Eighth Circuit matter-of-factly described the sternum rub as a

“technique[] that [is] used to cause a reaction in response to pain,” and did not opine the

technique’s reasonableness. /d.

15

he is doing violates that right. In other words, existing precedent must have placed the

statutory or constitutional question beyond debate.” Reichle v. Howards, 566 U.S. 658,

664 (2012) (internal punctuation marks and citations omitted). In this case, a reasonable

officer would not have understood that the use of sternum rubs violated the Plaintiff's

Fourth Amendment right to be free from the use of excessive force. Officers Thompson

and Krug are entitled to qualified immunity on this claim.

2. Jail Administrator Lewis

With respect to Lewis, there is no allegation that he was personally involved in the

use of force that is at issue in Plaintiff's case. While Plaintiff “believes” Administrator

Lewis was present during the application of force, Plaintiff admits he was unconscious

during the entire incident and does not know if Lewis was actually present. It also bears

mentioning that Lewis never appears in the jail’s video recording of the incident.

“To establish personal liability of [a] supervisory defendant[], the plaintiff must

allege specific facts of personal involvement in, or direct responsibility for, a deprivation

of his constitutional rights.” Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007)

(internal punctuation marks and citation omitted). The summary judgment record

contains no such evidence. Further, Plaintiff's reliance on provisions of the Arkansas

Jail Standards to establish liability is misplaced. Violations of the Arkansas Jail

Standards, or of the jail’s own policies, do not equate to violations of the Constitution.

See, e.g., Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (failure to follow state law

or policy does not in and of itself state a constitutional claim).

As there is no basis for a personal capacity claim against Lewis, this claim will be

16

dismissed.

3. Official Capacity Liability

Plaintiff has also asserted an official capacity claim against the Defendants. “A

suit against a county official in his official capacity is the equivalent of a suit against the

county itself.” Doe v. Washington Cnty., 150 F.3d 920, 923-24 (8th Cir. 1998). To

establish an official capacity claim, Plaintiff must allege the existence of a Washington

County custom or policy that was the moving force behind, or caused, the alleged

constitutional violation. Rogers v. City of Little Rock, 152 F.3d 790, 800 (8th Cir. 1998).

Plaintiff has not done so. No official capacity claim is stated.

A local government may also be held liable if the failure to train or supervise the

offending actor caused the deprivation. In Parrish, the Court set forth the requirements

to establish governmental or official capacity liability based on a failure to train. Parrish

v. Ball, 594 F.3d 993, 997 (8th Cir. 2010). It stated that a government may be subject to

liability for inadequate training of its employees where:

(1) the [county’s] . . . training practices [were] inadequate; (2) the [county]

was deliberately indifferent to the rights of others in adopting them, such

that the “failure to train reflects a deliberate or conscious choice by [the

county]”; and (3) an alleged deficiency in the . . . training procedures actually

caused the plaintiff's injury.

Id. (citations omitted).

Even where it is established that only minimal training is received, “that finding

alone will not satisfy a § 1983 claim for failure to train.” /d.

Instead, Plaintiff must demonstrate that in light of the duties assigned to

specific officers . . . the need for more or different training is so obvious, and

the inadequacy so likely to result in the violation of constitutional rights, that

17

the policymakers of the [county] can reasonably be said to have been

deliberately indifferent to the need.

City of Canton v. Harris, 489 U.S. 378, 390 (1989).

Plaintiff has made no factual showing that is sufficient to survive summary

judgment on a failure-to-train claim. He does not dispute the fact that part of the jail

standards training includes basic first aid techniques. Additionally, he admits that Officer

Thompson was certified in the areas of basic life support or cardiopulmonary

resuscitation. Plaintiff's argument is that the officers should have been trained to wait on

an EMT rather than attempt on their own to determine whether an inmate is conscious.

The summary judgment record does not contain any evidence of a deficiency in

the training of deputies or suggest a causal relationship between the failure to train and

the alleged constitutional violation. The Court does “not believe that there is a patently

obvious need to train an officer not to” use excessive force against a detainee. Cf

Parrish, 594 F.3d at 999 (no “patently obvious need to train an officer not to sexually

assault women, especially where there is no notice at all that such behavior is likely”);

see also Kennedy v. Blankenship, 100 F.3d 640, 643 (8th Cir. 1996) (failure to follow

policy does not state a claim for relief under 42 U.S.C. § 1983).

Finally, Plaintiff asserts an official capacity claim based on Lewis’s alleged failure

to supervise. Plaintiff also maintains that Lewis failed to properly investigate or discipline

officers in response to their use of the sternum rub. Plaintiff points out that neither Officer

Thompson nor Officer Krug were disciplined for their actions in this case.

The summary judgment record contains no evidence of a custom, policy, or

widespread practice of failing to supervise deputies or failing to investigate use-of-force

complaints. A single incident that resulted in an outcome not satisfactory to the Plaintiff

does not demonstrate that Baxter County had notice that its supervision of the use of

force by deputies, or its investigation of use-of-force complaints, was so lacking that the

18

County was on notice that its procedures were inadequate and likely to result in a

constitutional violation. Parrish, 594 F.3d at 999. For these reasons, there is no basis

for official capacity liability on Plaintiff's excessive-force claim. .

B. Denial of Medical Care

1. Officers Thompson and Krug

Defendants assert that once they had knowledge that Plaintiff's health was at risk,

they performed the sternum rubs, determined Plaintiff was unconscious, and summoned

emergency medical personnel. Defendants argue that the existence of the injury itself

shows that they took action and were not deliberately indifferent to Plaintiff's serious

medical needs.

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); see also 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)). The Eighth Circuit applies the

deliberate indifference standard to both pretrial detainees and convicted inmates.

Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014).

Plaintiff contends that the officers’ use of the sternum rub amounts to deliberate

indifference. He asserts that the use of the sternum rub has long been discouraged as a

method to assess consciousness, in part because of the likelihood of causing physical

injury. Defendants maintain the sternum rub was used to assess Plaintiffs level of

consciousness. Plaintiff does not dispute this. The fact that a sternum rub may no

19

longer be the favored technique for assessing consciousness does not mean that it is not

a recognized medical technique. Further, the fact that Plaintiff was injured because of

its use is “insufficient to establish the state of mind for a claim of deliberate indifference.”

See, e.g., Lewis v. Babich, 2007 WL 957003, *9 (E.D. Mo. Mar. 28, 2007) (in a case in

which a sternum rub was used to determine a plaintiffs level of consciousness, the fact

that the sternum rub caused injury did not amount to deliberate indifference). Thereis

no assertion that the officers “ignored a critical or escalating situation or that the delay

posed a substantial risk of harm’ to Plaintiff. Beyerbach v. Sears, 49 F.3d 1324, 1327

(8th Cir. 1995). In sum, there is no genuine issue of material fact as to whether Officers

Thompson and Krug exhibited deliberate indifference to Plaintiff's serious medical needs.

Plaintiff also contends that the Defendants should have called the EMTs

immediately and let them determine whether he needed to be taken to the hospital. The

EMTs were called and arrived only 19 minutes after Plaintiff lost consciousness. The

delay-in-treatment claim fails because the Plaintiff has not presented any verifying

medical evidence that the delay had a detrimental effect on his medical condition. See,

e.g., Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005). Without such evidence,

Plaintiff cannot prevail on a delay-in-treatment claim at trial. /d.

Additionally, Plaintiff asserts that he was not given his medication at the prescribed

times, which caused problems with maintaining therapeutic levels of medication in his

bloodstream. Plaintiff believes these problems had an adverse impact on his health in

general and on the number of seizures he had. While the Court has been presented with

medication logs for the Plaintiff (Doc. 47-4 at 28-49), the officers distributing medication

are listed only by officer number. The materials before the Court do not identify the

Defendants by officer number. Further, there is no verifying medical evidence in the

record that any deviation in the distribution of medication from the prescribed time had a

20

detrimental effect on Plaintiff's medical condition. For all these reasons, this claim also

fails.

2. Jail Administrator Lewis

The summary judgment record contains nothing suggesting Lewis was involved in,

or even aware of, Plaintiff's need for medical care, his medication schedule, or variances

in the distribution of his medication. There is simply no basis on which to find that Lewis

was deliberately indifferent to Plaintiff's serious medical needs. The claim is therefore

dismissed.

3. Official Capacity Claims

As discussed above, a government entity may be held liable only when its official

policy or custom was the moving force behind the constitutional violation. Polk Cnty. v.

Dodson, 454 U.S. 312, 326 (1981). Plaintiff alleges the policy of allowing jailers, rather

than trained medical personnel, to distribute medication violates his rights. This does

not state a claim of constitutional dimension. See, e.g., Griggs v. Livermore, 2014 WL

979197 (W.D. Ark. March 13, 2014) (“There is no constitutional requirement that

medication be disbursed only by trained medical personnel.”); Booker v. Herman, 2006

WL 2457230, *5 (N.D. Ind. Aug. 22, 2006) (“While it might be a good practice, tradition,

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

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

claim upon which relief can be granted.”).

Plaintiff also fails to allege the existence of a custom or policy that was the moving

force behind the violation of his constitutional rights. Instead, Plaintiff merely argues that

the Defendants violated jail policies and Arkansas jail standards. See, e.g., Gardner v.

Howard, 109 F.3d 427, 430 (8th Cir. 1997) (no § 1983 liability for violation of prison policy).

Plaintiff's argument, even viewed in the light most favorable to him, does not establish

21

Plaintiff's argument, even viewed in the light most favorable to him, does not establish

liability on the part of Baxter County. Defendants are therefore entitled to summary

judgment on the official capacity claims.

C. Unprofessional Conduct

Plaintiffs last contention is that Officers Thompson and Krug engaged in

unprofessional conduct because they were laughing and joking about him during the

sternum rubs and when he returned from the hospital. As noted above, the video

contains no audio. It does appear that Officer Thompson is smiling broadly and at one

point puts his head back; however, there is no way to determine if the officers were, in

fact, laughing and joking about the Plaintiff during the sternum rubs and while they were

waiting for the arrival of the EMT. Plaintiff was unconscious the entire time, so he could

not have seen or heard any such conduct.

If the officers did laugh at Plaintiff and make fun of him when he was suffering a

medical emergency (or at any point during his incarceration), the Court agrees that such

behavior would be considered unprofessional and inappropriate. However, such

conduct does not equate to a violation of the Constitution. See, e.g., Blades v.

Sotiietie: 302 F.3d 801, 805 (8th Cir. 2002) (no claim stated for use of offensive or

racially derogatory words uttered by an official “in the course of his official duties’).

Defendants are entitled to summary judgment on this claim.

IV. CONCLUSION

For the reasons stated, Defendants’ Motion for Summary Judgment (Doc. 45) is

GRANTED, and the case is DISMISSED WITH PREJUDICE.

22

IT IS SO ORDERED on this 2) day of . JCAVEC , 2019.

Ye.

OPA Y-tBROOKS

ES DISTRICT JUDGE

23