Everhart v. Flournoy

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

WAYNE ALVIN EVERHART PLAINTIFF

v. Civil No. 4:17-cv-04113

SHARON FLOURNOY, Nurse, Sevier

County Jail; DEPUTY CHRIS

WALCOTT, Jail Administrator,

Sevier County Jail; and ROBERT

GENTRY, Sheriff Sevier County DEFENDANTS

MEMORANDUM OPINION AND ORDER

Before the Court is a Supplemental Motion for Summary Judgment filed by Defendant

Sharon Flournoy (ECF No. 54) and a Supplemental Motion for Summary Judgment filed by

Defendants Chris Walcott and Robert Gentry (ECF No. 58). Plaintiff Wayne Alvin Everhart has

responded to each motion. (ECF Nos. 62, 64). Defendants Gentry and Walcott have filed a reply.

(ECF No. 66). The Court finds these matters ripe for consideration.

I.BACKGROUND

This is a civil rights action filed pro se by Plaintiff, Wayne Alvin Everhart, pursuant to 42

U.S.C. § 1983. Plaintiff’s claims in this action arise from alleged incidents that occurred between

August 20, 2017, and October 25, 2017, while he was incarcerated in the Sevier County Detention

Center (“SCDC”).1 Plaintiff alleges Defendants denied him medical care while he was

incarcerated in the SCDC between August 20, 2017, and October 25, 2017, when they ignored his

complaints of extreme pain from his hernia and ulcers in his mouth and when his medications were

“messed up” and improperly dispensed to him on three occasions. Plaintiff also claims his

constitutional rights were violated when Defendant Walcott refused to provide him with copies of

1 Plaintiff is no longer incarcerated.

his grievances. Viewed in the light most favorable to Plaintiff, the relevant facts are as follows.

A. Plaintiff’s Health Issues

Plaintiff was booked into the SCDC on August 20, 2017. During intake, Plaintiff notified

SCDC personnel about his inguinal hernia. (ECF No. 55, p. 1). On August 26, 2017, Plaintiff

underwent a History and Physical, during which he identified his current medical conditions as

anxiety, torn left meniscus, left shoulder pain, and a left inguinal hernia. Id.

On August 30, 2017, Plaintiff submitted a grievance stating in part that he “was denied

medical attention when telling staff he was not only urinating blood but continuously leaking blood

from his private parts! Yet staff not only refused medical attention but left [him in] N Pod with

bloody clothing[.]” (ECF No. 60, pp. 2-3). Defendant Walcott responded the next day, indicating

the grievance had been received and that “all medical complaints or request[s] should go to the

Medical staff.” Id. Plaintiff did not file a medical grievance or complaint regarding this incident

and there is nothing in the summary judgment record to indicate that this grievance was ever

addressed by any SCDC officer or any medical personnel. That same day, Plaintiff submitted

another grievance, requesting “a printed copy of each and every grievance I’ve filed since being

housed here.” The next day, Defendant Walcott responded stating, “we do not give out

grievances.” Id.

On September 21, 2017, Plaintiff submitted an Inmate Medical Request complaining of

blood in his urine. (ECF No. 60, p. 2). That same day, Officer Anthony Dibucci submitted the

following Jail Incident Report:

On the 21st day of September 2017, at 1700, I Officer DiBucci, assumed jailer

duties. At approximately 1915 Officer Alvarez notified me over the radio that

[Plaintiff] complained he has blood in his urine. I then called [Defendant Flournoy]

and she asked us to get a sample of urine from [Plaintiff]. Once we did there was

clearly blood in the urine. I then contacted [Defendant Flournoy] again [and] she

told us to take [Plaintiff] to ER. [Defendant] Walcott was then contacted and

notified of the situation. I then had Officer Alvarez take [Plaintiff] to the ER.

(ECF No. 60-5, p. 2). Defendant Flournoy submitted an affidavit stating that although she was

not on duty at the SCDC on September 21, 2017, she handled Plaintiff’s complaints from off-site

by having him transported to the emergency room. (ECF No. 56-1, p. 2). At the hospital, Plaintiff

was diagnosed with an inguinal hernia and underwent a urinalysis culture. He was placed on

Bactrim—an antibiotic used to treat urinary tract infections—for seven days and was referred to

a surgical specialist to undergo further medical evaluation. (ECF No. 60, p. 3). The emergency

room physician specifically ordered that “[Plaintiff] needs to see a surgeon next week”. (ECF

No. 60-4, p. 10). Defendant Flournoy states she had no further contact with the SCDC on

September 21, 2017, following Plaintiff’s emergency room visit. (ECF No. 56-1, p. 2).

On September 25, 2017, Plaintiff submitted an Inmate Grievance stating:

I was taken to ER the other night and know for certain I was given a surgery referral,

and have told staff numerous times about having pain in my lower hernia steadily

dropping to point where it feels like its about to rupture, yet the nurse wants me to

take a urine sample which was done the day of my trip to Emergency Room and

hasn’t happened but one time since then, it is the PAIN that is the problem!

[Defendant Flournoy] is not a doctor nor do I feel comfortable having my well

being or anything to [do] with my personal health in her hands or having her opinion

what so ever.

(ECF No. 60-3, p. 11). Defendant Walcott responded, stating “[a]ll medical requests or complaints

need to be made to the medical staff.” Id. Later that day, Plaintiff submitted the following Inmate

Medical Request:

I was taken to emergency room a few nights ago and had blood in my urine, and

know for a fact that I was given a referral to see a surgeon for this week, I have

only urinated blood 1 time since the trip to the emergency room, yet the pain has

increased and my hernia has dropped to point where it feels like its about to rupture,

I have notified staff numerous times of this yet when calling [Defendant Flournoy]

she has them tell me she will get my urine sample from me in morning, I do not see

where a urine sample is even relevant to me being in pain and having no trace of

blood or foul smell in my urine, she is not a DR. and I do not feel safe/comfortable

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with her having anything to do with her having any say so or influence to decision

pertaining to my well being and/or personal health.

(ECF No. 44-5, p. 3).

According to her affidavit, Defendant Flournoy was not on duty at the SCDC from

September 21, 2017, through September 24, 2017. (ECF No. 56-1, p. 2). She returned to work on

Monday, September 25, 2017, and noted the physician’s special orders for a surgical consult for

Plaintiff. Id. In addition, Defendant Flournoy states that between September 25, 2017, and

September 28, 2017, she made several attempts to locate a surgeon who was willing to see inmates.

(ECF No. 56-1, p. 2). On September 28, 2017, she located Dr. Anthony Burton in Mena, Arkansas,

who was willing to see Plaintiff. Id. On September 28, 2017, a week after the emergency room

physician ordered that Plaintiff be referred to a surgeon for consult and three days after Plaintiff

submitted two grievances regarding his referral to a surgeon, Defendant Flournoy sent a request to

the Arkansas Department of Correction (“ADC”) to order Plaintiff’s surgical consult. Id.

On October 2, 2017, Plaintiff submitted another Inmate Medical Request stating, “I have

tremendous pressure on my scrotum to point to where its making me dizzy and nauseous.” (ECF

No. 44-5, p. 4). In response to this request, Plaintiff was seen in the SCDC clinic that same day

and medically evaluated by the staff of Southern Health Partners, Inc.2 On October 3, 2017, a

nurse replied to Plaintiff’s Inmate Medical Request submitted on September 25, 2017, stating, in

relevant part, “Medical needs are being met.”3 (ECF No. 44-5, p. 3). Plaintiff’s medical records

reflect that he was prescribed 500 mg of Tylenol that same day. (ECF No. 56-2, p. 7).

On October 10, 2017, Plaintiff submitted a grievance, requesting “[to] speak to Chad

Daddle or [Defendant] Gentry[.]” (ECF No. 60-3, p. 19). However, Plaintiff did not specify what

2 It is not clear from the record which staff member evaluated Plaintiff.

3 It is not clear from the record whether the “nurse” who responded to Plaintiff’s request was Defendant Flournoy.

he wanted to speak with them about. Defendant Walcott responded the following day, indicating

that he would “let them know you would like to speak with them.” Id. According to Defendant

Gentry’s affidavit,4 as the Sheriff of Sevier County, Arkansas, he does not receive grievances and

does not respond to grievances. (ECF No. 60-6, p. 1). He also states he was not aware that Plaintiff

was suffering from severe pain during his incarceration in the SCDC and the only time he was

aware of a medical emergency regarding Plaintiff was when he was taken to the emergency room

on September 21, 2017. Id.

On October 12, 2017, Plaintiff submitted a Health Services Request stating:

This is the 3rd time my meds have been messed up either in morning shift and then

tonight . . . the time before I was taken off ibuprofen due to being on [Bactrim] and

neproxem at the same time then days later I was given 3 ibuprofens, 1 neproxen,

and [Bactrim] and it has had the inside of my mouth sore and sensitive everyday

since.

(ECF No. 56-2, p. 16). On October 13, 2017, Nurse Practitioner Steven Foltz examined Plaintiff,

found there were multiple ulcers in Plaintiff’s mouth, and noted that Peridex oral rinse needed to

be ordered for Plaintiff. Id. at pp. 7, 13.

In her affidavit, Defendant Flournoy states that she was not on duty on October 13, 2017,

and had no knowledge of the Peridex prescription. She states that she returned to work at the

SCDC at 1:30 p.m. for a half day on Saturday, October 14, 2017, and left work at 5:30 p.m.

Defendant Flournoy returned to the SCDC and worked on Sunday, October 15, 2017, from 9:00

a.m. until 1:00 p.m. Plaintiff complained of mouth pain at approximately 9:35 p.m. that evening

and received an over-the-counter oral mouth rinse from a member of the SCDC’s staff. Id. at p.

17.

4 Defendant Gentry did not submit an affidavit in support of his first motion for summary judgment.

5

On Monday, October 16, 2017, Defendant Flournoy ordered Plaintiff’s prescription for

Peridex. (ECF No. 56-1, p. 3). That same day, Plaintiff submitted a medical request stating, “[I]

got my medicated oral rinse last night but didn’t get it today, my mouth is hurting [severely] to the

point where I can barely eat and waking me up all throughout the night.” (ECF No. 56-2, p. 18).

A nurse responded on October 17, 2017, stating, “[w]ill receive on nights med pass.” Id. That

same day, Plaintiff submitted the following medical request:

[I] have been telling staff and filling request about the inside of my mouth and

throat for over a week now. I am unable to eat because of the [excruciating] pain

and sores in my mouth! Which started because of over excess of certain and similar

type meds being when not suppose to be on that much of one type. Everytime staff

says nurse said it’ll be on med cart yet when med cart gets here same thing nothing

on it. I have food still in the bowls from being unable to eat it and [repeatedly]

telling staff and asking for help yet nothing is being done, one staff member found

some medicated rinse for me one night and haven’t got it since . . . Each staff

member after this says they can’t get ahold of nurse and passes my issue off to the

next shift[.]

Id. at p. 19. A nurse responded to Plaintiff’s complaint the same day, stating:

provider ordered your peridex mouth rinse on Friday. We have to order it from the

pharmacy as it is something that we do not keep in our house stock. What you was

given by jail staff was a standard over the counter mouth rinse. I have called the

pharmacy and your mouth rinse is now ready for pick up, so you will receive it on

tonight’s med pass.”5

Id. After October 17, 2017, Plaintiff continued to use the oral rinses twice daily until he was

transferred to the ADC. Id. at p. 20.

On October 16, 2017, Plaintiff was evaluated by Dr. Anthony Burton for his surgical

consultation regarding his hernia.6 Id. at p. 13. Plaintiff was then scheduled to undergo hernia

surgery on October 26, 2017. Id. On October 18, 2017, Plaintiff submitted an Inmate Grievance

5 The identity of the nurse who responded to Plaintiff’s complaints on October 17, 2017, is not known.

6 According to the affidavit of Defendant Flournoy, Plaintiff was initially set up for a surgical consult to be conducted

on October 2, 2017, at the Mena Surgical Clinic. She states that the appointment was later changed to October 16,

2 017, because of a delay by the ADC in approving the consult. (ECF No. 56-1, p. 2).

stating:

Have surgery on Thursday the 26th and I’m comfortable with having operation in

Mena with Dr. Burton simply because of his experience in hernia repair and

surgical background, yet my concern is in my aftercare treatment here in your

facility, the fact that your staff has neglected my situation from day one and even

went as far as leaving me in my cell after urinating blood and having pains all night

and just passed the issue over to the next shift . . . staff claims they have no control

over medical but yet they can’t ever seem to get a hold of the nurse and are the ones

looking after an inmate’s well being in this facility, this suggestion is only to bring

the matter to your attention and in case any of the above mentioned is also neglected

in my aftercare, this surgery is a matter of importance and I hope your staff take my

well being and recovery a little more serious than they have previously.

(ECF No. 60-3, p. 23). On October 20, 2017, Defendant Flournoy received notice from the ADC

that Plaintiff was being “fast tracked” to the ADC and that the surgery scheduled for October 26,

2017, needed to be cancelled. (ECF No. 56-1, p. 4). On October 25, 2017, Plaintiff was released

from the SCDC and transferred to the ADC.7 Id.

B. Applicable Policies

At all times relevant, Southern Health Partners, Inc. was under contract with the SCDC to

provide healthcare services to inmates housed at the SCDC and Defendant Flournoy was an

employee of Southern Health Partners, Inc. (ECF No. 34, p. 3).

In support of the Supplemental Motion for Summary Judgment, Defendant Walcott states

in his affidavit that the SCDC provides inmates with a kiosk for the submission of grievances and

medical requests. (ECF No. 60-1, p. 2). He says that inmates can “click on who should receive

the grievance, myself or medical staff.” Id. Defendant Walcott also states that nursing staff from

Southern Health Partners, Inc. is at the SCDC six hours a day, seven days a week. He also states

that “[Defendant] Flournoy was not the only medical personnel on staff and the Plaintiff could

7 On February 26, 2018, while still in the custody of the ADC, Plaintiff underwent hernia surgery at the Little Rock

Surgery Center.

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have complained to any other medical personnel at any point during his incarceration.” Id. at p.

3. Defendant Walcott also refers the Court to the “relevant policies and procedures of the [SCDC]”

attached to his affidavit. However, the Court has been unable to locate the referenced policies and

procedures.

The information regarding the SCDC’s grievance and medical request policy submitted by

Defendants Walcott and Gentry in support of their first motion for summary judgment stated that

grievance and medical care requests are to be submitted in writing. (ECF No. 44-7, p. 5). The

SCDC’s staff is responsible for providing an inmate with a medical care request form and a pencil

when an inmate states they need medical attention. The inmate may then give the request to any

jailer, who is required to deliver the request to the SCDC’s facility supervisor without undue delay.

Id. In addition, this policy states that all perceived medical emergencies shall receive immediate

attention.

Further, emergency medical situations are to take priority over routine SCDC operations.

Id. at p. 3. This policy specifically lists “severe pain” as an emergency. Id. at p. 8. When an

emergency arises, SCDC officers are to: “(A) immediately administer first aid; (B) relay the

information to the De Queen Hospital Emergency room; (C) call the nearest law enforcement

officer on duty for back-up; (D) call for an ambulance if transportation is needed; and (E) contact

Jail Administrator/Supervisor.” Id. It is the policy of the SCDC that emergency medical services

are available 24 hours a day to ensure proper medical attention and, additionally, all officers are

trained to respond to medical emergencies. Id. Following a medical emergency, it is the policy

of the SCDC that detention facility staff strictly comply with the attending physician’s aftercare

orders. Id. at 4.

The policy of SCDC also provides that all matters of judgment regarding health services

for inmates are made within the sole province of the contract medical staff—i.e. the employees of

Southern Health Care, Inc. (ECF No. 44-1, pp. 16-17). In addition, the policy provides that no

employees of the SCDC are authorized to make non-emergency medical decisions on behalf of

any inmate and no one in the sheriff’s office, including the sheriff, makes any decision as to

whether to provide medication, diagnostic testing, or medical treatment based on the cost of the

medication, testing, or treatment. Id.

C. Procedural History

Plaintiff filed his Complaint on December 7, 2017, in the Eastern District of Arkansas.

(ECF No. 2). The case was transferred to the Western District of Arkansas, Texarkana Division,

on December 11, 2017. (ECF No. 4). As previously stated, Plaintiff alleges Defendants denied

him medical care while he was incarcerated in the SCDC between August 20, 2017, and October

25, 2017, when they ignored his complaints of extreme pain from his hernia and ulcers in his mouth

and when his medications were “messed up” and improperly dispensed to him on three occasions.

Plaintiff also claims his constitutional rights were violated when Defendant Walcott refused to

provide him with copies of his grievances. Plaintiff sues Defendants in their official and individual

capacities and seeks “compensation for pain and suffering, emotional distress and mental anguish.”

He also requests that “all Parties/Defendants be [publicly] stripped of their current position[.]” Id.

at p. 6.

On December 20, 2018, the Court granted in part and denied in part previous summary

judgment motions filed by Defendants. (ECF No. 47). The Court dismissed with prejudice all

official capacity claims against Defendants Gentry, Walcott, and Flournoy. The Court dismissed

with prejudice Plaintiff’s individual capacity claim against Defendant Flournoy regarding the

improper dispensing of Plaintiff’s medications. However, the Court denied summary judgment on

9

Plaintiff’s individual capacity claims against Defendants Flournoy, Walcott, and Gentry regarding

denial of medical care based on Plaintiff’s complaints of pain. The Court also denied summary

judgment on Plaintiff’s individual capacity claim against Defendant Walcott regarding failure to

provide copies of grievances because the issue was not addressed in the motion for summary

judgment. On February 7, 2019, Defendants filed a Joint Motion for Leave to File a Supplemental

Motion for Summary Judgment. (ECF No. 51). On February 15, 2019, the Court granted

Defendants’ joint motion. (ECF No. 53).

Defendant Flournoy filed her Supplemental Motion for Summary Judgment on March 6,

2019, arguing she is entitled to summary judgment because she was not deliberately indifferent to

Plaintiff’s medical needs. (ECF No. 54). Defendant Flournoy has now provided the Court with

an affidavit which states that she was not aware of the physician’s orders for Plaintiff to see a

surgeon until she returned to work more than a week after Plaintiff’s visit to the emergency room

and she was not aware of Plaintiff’s painful ulcers in his mouth or the prescription that had been

ordered for him until several days after he had notified the SCDC staff of his condition. (ECF No.

56, pp. 8-9).

On March 8, 2019, Defendants Gentry and Walcott filed their Supplemental Motion for

Summary Judgment, making the same arguments they presented in their first motion and arguing

that there is no constitutional right to the answering of grievances. (ECF No. 58). In addition,

Defendant Gentry has submitted an affidavit stating he does not receive grievances, does not

respond to grievances, and was not aware that Plaintiff was suffering from any pain during his

incarceration in the SCDC. (ECF No. 60-6). Defendant Walcott has also submitted an affidavit

stating he was not aware that Plaintiff was in any pain. (ECF No. 60-1).

Plaintiff has responded to the supplemental motions for summary judgment, including the

statements of fact filed by Defendants, and has submitted his own affidavit regarding his

grievances, health requests, and the pain he suffered during his incarceration in the SCDC. (ECF

Nos. 62, 63, 64, 65).

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, 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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Once

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

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

issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.

1999).

The nonmoving party “must do more than simply show that there is some metaphysical

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

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

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

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

621, 625 (8th Cir. 1985)). “When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

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III. DISCUSSION

A. Grievances

Plaintiff alleges his constitutional rights were violated when Defendant Walcott refused to

provide him with copies of the grievances he filed while he was incarcerated in the SCDC.

“Inmates do not have a constitutionally protected right to a grievance procedure. Because a . . .

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.” Lomholt v. Holder,

287 F.3d 683, 684 (8th Cir. 2002) (citing Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993)).

Therefore, a prison officials’ failure to respond to an inmate’s grievances or to return copies of

those grievances to that inmate, without more, is not actionable under section 1983. Evans v.

Jones, 2007 WL 2343843, at *1 (W.D. Ark. 2007). Accordingly, Defendant Walcott is entitled to

summary judgment on this claim.

B. Denial of Medical Care

Plaintiff alleges Defendants Gentry, Walcott, and Flournoy denied him medical care while

he was incarcerated in the SCDC when they ignored his complaints of pain in connection with his

hernia and mouth ulcers. (ECF No. 2, p. 5). “Liability under section 1983 requires a causal link

to, and direct responsibility for, the deprivation of rights. To establish personal liability on the

part of a 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) (citation and internal quotation marks omitted). In addition, a supervisor

may be held liable when he fails or refuses to intervene when a constitutional violation takes place

in his presence. Putnam v. Gerloff, 639 F.2d 415, 423 (8th Cir. 1981); see also Byrd v. Clark, 783

F.2d 1002, 1007 (11th Cir. 1986).

The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate

indifference to the serious medical needs of prisoners. Luckert v. Dodge Cnty., 684 F.3d 808, 817

(8th Cir. 2012). To prevail on his Eighth Amendment claim, Plaintiff must prove that Defendants

acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97,

106 (1976). The deliberate indifference standard includes “both an objective and a subjective

component: ‘[Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious medical

needs and (2) that the prison officials actually knew of but deliberately disregarded those needs.’”

Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132 F.3d

1234, 1239 (8th Cir. 1997)).

To show he suffered from an objectively serious medical need, Plaintiff must show he “has

been diagnosed by a physician as requiring treatment” or has an injury “that is so obvious that even

a layperson would easily recognize the necessity for a doctor’s attention.” Schaub v. VonWald,

638 F.3d 905, 914 (8th Cir. 2011) (internal quotations and citations omitted). Here, Defendants

do not dispute that Plaintiff’s physical conditions—pain from a hernia and ulcers in his mouth—

are serious medical conditions. The Eighth Circuit has stated that “delays in treating painful

medical conditions, even if not life-threatening, may support an Eighth Amendment claim.”

Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (citing Rodriguez v. Plymouth Ambulance

Serv., 577 F.3d 816, 829 (7th Cir. 2009)). Accordingly, the Court assumes for purposes of this

opinion that Plaintiff suffers from serious medical conditions. The question before the Court now

becomes whether Defendants’ actions, or lack thereof, rose to the level of a constitutional

violation.

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

13

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. Corr. Med.

Servs., 512 F.3d 488, 499 (8th Cir. 2008) (internal quotation marks and citations omitted). A

plaintiff must show that an official “actually knew of but deliberately disregarded his serious

medical need.” Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006). However, intentionally

denying or delaying access to medical care may constitute deliberate indifference. See Estelle,

429 U.S. at 104-05; Dulany, 132 F.3d at 1239. Whether an official was deliberately indifferent to

the inmate’s serious medical need is a question of fact. Schaub, 638 F.3d at 914 (citing Coleman

v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)).

The court will first address whether Defendant Flournoy is entitled to summary judgment

on this claim and then determine whether Defendants Gentry and Walcott are entitled to summary

judgment.

1. Defendant Flournoy

Plaintiff alleges Defendant Flournoy was deliberately indifferent to his medical needs when

she ignored his complaints of severe pain from his hernia and ulcers.

The summary judgment record establishes that Plaintiff submitted multiple medical

requests relating to blood in his urine and extreme pain from both his hernia and ulcers in his

mouth. The record is also clear that on September 21, 2017, after evaluating Plaintiff, the physician

at the emergency room ordered that he be referred to a surgeon for consult. The physician’s

specific orders stated, “[Plaintiff] needs to see a surgeon next week.” Four days later, Plaintiff

submitted two grievances complaining that he had not yet seen a surgeon. On September 28, 2017,

Defendant Flournoy sent a request to the ADC for Plaintiff’s surgical consult. In addition, after

Plaintiff was diagnosed with ulcers in his mouth, he was not provided his medication for four days

while he suffered in pain.

Defendant Flournoy explains the delay in responding to the emergency room physician’s

orders and ordering Plaintiff’s oral rinse prescription by pointing out that she was not on duty on

the day Plaintiff was sent to the hospital or during the week thereafter. However, Defendant

Flournoy admits that she was contacted on September 21, 2017—her day off—by someone at the

SCDC about Plaintiff’s condition and she approved or directed that Plaintiff be taken to the

hospital. She goes on to state that she was not on duty the day Nurse Steven Foltz examined

Plaintiff and ordered the mouth rinse. As previously stated, deliberate indifference may be

demonstrated by prison officials who intentionally deny or delay access to medical care. Estelle,

429 U.S. at 105. Moreover, when an official denies a person treatment that has been ordered or

medication that has been prescribed, constitutional liability may follow. See, e.g., Foulks v. Cole

Cnty., Mo., 991 F.2d 454 (8th Cir. 1993) (liability where jail officials disregarded an instruction

sheet from the plaintiff’s doctor, ignored complaints of sickness and pain).

The summary judgment record is not clear as to who was on duty during the events in

question. Likewise, the record is not clear as to if Defendant Flournoy, while off duty, was

responsible for handling Plaintiff’s medical requests and implementing instructions from the

emergency room doctor after she sent Plaintiff to the hospital, or if she could have ordered the

prescription for the ulcers in Plaintiff’s mouth sooner than she did. Defendant Walcott states in

his affidavit that the SCDC has nursing staff from Southern Health Partners, Inc. present six hours

a day, seven days a week. He also states that Defendant Flournoy was not the only medical

personnel on staff and Plaintiff could have complained to any other medical personnel at any point

during his incarceration. If this is the case, the Court is confused as to why no medical personnel

15

reviewed the emergency room physician’s orders the day Plaintiff returned from the hospital, why

there was a delay in responding to several of Plaintiff’s medical requests, and why Plaintiff’s

prescription oral rinse was not actually ordered on the day it was prescribed.

Accordingly, the Court finds there are genuine issues of disputed fact as to whether

Defendant Flournoy was deliberately indifferent to Plaintiff’s complaints of pain stemming from

his hernia and the ulcers in his mouth. Therefore, Defendant Flournoy’s motion for summary

judgment on Plaintiff’s claim of inadequate medical care arising from his complaints of pain

should be denied.

2. Defendants Gentry and Walcott

Defendants Gentry and Walcott argue that they are entitled to summary judgment because

they were not involved with the medical care provided to Plaintiff and consequently were not

deliberately indifferent to Plaintiff’s medical needs.

Both Defendants Gentry and Walcott held supervisory positions. At the time of the events

in question, Defendant Gentry was the Sheriff of Sevier County and Defendant Walcott was the

Jail Administrator at the SCDC. General responsibility for supervising a detention center is

insufficient to establish personal involvement. Reynolds v. Dormire, 636 F.3d 976, 981 (8th Cir.

2011). However, supervisors can incur liability for their personal involvement in a constitutional

violation, or when their corrective inaction amounts to deliberate indifference to, or tacit

authorization of, the violative practices. See Langford, 614 F.3d at 460. “Where a prisoner needs

medical treatment prison officials are under a constitutional duty to see that it is furnished.”

Crooks v. Nix, 872 F.2d 800, 804 (8th Cir. 1989) (citing Estelle, 429 U.S. at 103). It follows that

where the duty to furnish treatment is unfulfilled, contracting for services with an independent

contractor, such as Southern Health Partners, Inc. does not immunize county officials from liability

for damages in failing to provide a prisoner with the opportunity for such treatment. See Langford,

614 F.3d at 460.

i. Defendant Gentry

The summary judgment record does not reflect that Defendant Gentry had any personal

knowledge of the grievances or the health services requests filed by Plaintiff. Defendant Gentry

has submitted an affidavit stating he does not receive or respond to grievances and he was not

aware that Plaintiff was in pain during his incarceration in the SCDC. (ECF No. 60-6). He goes

on to state that the only time he was aware of “a medical emergency regarding the Plaintiff” was

when Plaintiff was taken to the emergency room on September 21, 2017. Id.

Although Plaintiff states in his affidavit that he “made numerous attempts through inmate

complaints to Defendants Gentry and Walcott, [and they] were aware of the seriousness of my

situation”, the record contradicts this allegation as it relates to Defendant Gentry. (ECF No. 62-

1). There is only one grievance submitted by Plaintiff that mentions Defendant Gentry. In this

grievance, Plaintiff asks to speak with Defendant Gentry but does not mention the subject matter

of his request. Defendant Walcott responded to this grievance indicating he would inform

Defendant Gentry of his request. However, there is no evidence that Defendant Gentry was ever

informed that Plaintiff was in pain by Defendant Walcott or anyone else.

Accordingly, upon review of the record, the Court finds that Defendant Gentry was

unaware of Plaintiff’s pain and was not involved in Plaintiff’s medical care. Therefore, Defendant

Gentry is entitled to summary judgment on Plaintiff’s claim regarding denial of medical care.

ii. Defendant Walcott

As for Defendant Walcott, the summary judgment record reflects that he read several of

Plaintiff’s grievances relating to the pain from his hernia and the ulcers in his mouth and responded

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to Plaintiff, telling him that he needed to file a medical request because he was not medically

trained. This occurred even after Plaintiff had been taken to the hospital on one occasion for blood

in his urine and pain from the hernia. This conduct appears to directly conflict with the SCDC’s

medical policy requiring jailers to submit all inmate medical reports to the medical provider. In

addition, Plaintiff’s severe pain is a symptom that constitutes an emergency under the SCDC’s

policy. Still, Defendant Walcott did not report Plaintiff’s complaints of pain to the medical

provider nor did he provide Plaintiff with any medical attention even though he was trained to

handle perceived medical emergencies.

As previously stated, the Eighth Circuit has held that “delays in treating painful medical

conditions, even if not life-threatening, may support an Eighth Amendment claim.” See Langford,

614 F.3d at 460 (citing Rodriguez, 577 F.3d at 829). Construing the facts in the light most

favorable to Plaintiff, the Court finds that there are genuine disputes of material fact as to whether

Defendant Walcott was personally involved in Plaintiff’s medical care and whether he was

deliberately indifferent to Plaintiff’s medical needs.

C. Qualified Immunity

The Court will now address whether Defendant Walcott is entitled to qualified immunity.8

Determining whether a defendant is entitled to qualified immunity requires a two-step inquiry.

Jones v. McNeese, 675 F.3d 1158, 1161 (8th Cir. 2012). First, the Court must determine whether

the facts demonstrate a deprivation of a constitutional right. Id. (citing Parrish v. Ball, 594 F.3d

993, 1001 (8th Cir. 2010)). If so, the Court must decide whether the implicated right was clearly

established at the time of the deprivation. Id. To determine if Plaintiff’s right was clearly

established at the time of the alleged deprivation, the Court “must . . . examine the information

8 It is not necessary to address the issue of qualified immunity with respect to Defendant Gentry as he was not

personally involved in Plaintiff’s medical care and therefore was not deliberately indifferent to his needs.

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, 614 F.3d at 461. “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). In other words, the Court must ask

whether the law at the time of the events in question gave the officers “fair warning” that their

conduct was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Here, the facts when viewed in a light most favorable to Plaintiff demonstrate that there is

a question of fact regarding whether Defendant Walcott violated Plaintiff’s constitutional rights

by ignoring his complaints of severe pain. Accordingly, the first prong of the qualified immunity

analysis is satisfied. As to the second prong, there is no question that in August 2017, the law

clearly established that a reasonable officer would know that it is unlawful to delay medical

treatment for an inmate with obvious signs of medical distress, especially when the inmate

communicates this distress directly to the officer. See Dadd v. Anoka Cnty., 827 F.3d 749, 753,

757 (8th Cir. 2016) (denying motion to dismiss based on qualified immunity, finding that jail staff

acted with deliberate indifference to inmates complaints of pain); Gordon v. Frank, 454 F.3d 858,

863 (8th Cir. 2006) (denying qualified immunity to officers when inmate informed officers of his

serious health issues, the officers ignored inmates’ shortness of breath and chest pain, and officers

were responsible for responding to medical emergencies). Accordingly, Defendant Walcott is not

entitled to qualified immunity regarding Plaintiff’s claim that he denied him adequate medical

care.

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IV. CONCLUSION

For the reasons stated above, Defendant Flournoy’s Supplemental Motion for Summary

Judgment (ECF No. 54) is DENIED. Plaintiff’s individual capacity claim against Defendant

Flournoy regarding denial of medical care based on Plaintiff’s complaints of pain remains for

resolution.

Further, Defendants Gentry and Walcott’s Motion for Summary Judgment (ECF No. 58)

is GRANTED IN PART and DENIED IN PART.

(1) The motion is GRANTED as to the individual capacity claim against Defendant

Walcott regarding the failure to provide copies of grievances and Plaintiff’s individual

capacity claim against Defendant Gentry for denial of medical care. These claims are

DISMISSED WITH PREJUDICE.

(2) The motion is DENIED as to the individual capacity claim against Defendant Walcott

regarding denial of medical care and the Court, further, finds that Defendant Walcott

is not entitled to qualified immunity in regard to this claim. Accordingly, this claim

shall remain for resolution.

IT IS SO ORDERED, this 17th day of June, 2019.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge