Jones v. Dr. Nannette Vowell

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

RICKY A. JONES PLAINTIFF

v. Civil No. 6:18-cv-6030

DR. NANNETTE VOWELL;

NURSE RICHARD MORGAN;

NURSE GWENDOLYN HART; and

NURSE C. ROBINSON DEFENDANTS

ORDER

Before the Court is the Report and Recommendation filed October 22, 2019, by the

Honorable Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.

(ECF No. 97). Plaintiff Ricky A. Jones has filed objections. (ECF No. 103). Defendants Nannette

Vowell, Richard Morgan, Gwendolyn Hart, and C. Robinson have also filed objections. (ECF No.

104). The Court finds the matter ripe for consideration. As discussed below, the Court will adopt

the instant Report and Recommendation in all respects, other than its findings, conclusions, and

recommendations regarding whether Plaintiff’s fully exhausted claims fail for lack of causation.

I. BACKGROUND

On March 29, 2018, Plaintiff, an inmate in the Ouachita River Correctional Unit of the

Arkansas Department of Correction (“ORCU”), filed this case pursuant to 42 U.S.C. § 1983.

Plaintiff alleges that Defendants violated his constitutional rights by exhibiting deliberate

indifference to his serious medical needs. Judge Bryant’s Report and Recommendation

extensively sets out the factual background giving rise to Plaintiff’s claims. (ECF No. 97, pp. 2-

15). The Court will not repeat those facts at length in this order. In short, Plaintiff alleges that,

upon his incarceration on December 8, 2014, ORCU staff took possession of his prescription

requests, Defendants failed to provide him with adequate eyewear to treat his Marfan’s syndrome.1

Consequently, Plaintiff alleges that his eyesight progressively deteriorated and he developed

glaucoma and subluxated lenses, ultimately requiring surgery on both eyes.

On March 15, 2019, Defendants filed a motion for partial summary judgment, arguing that

some of Plaintiff’s claims should be dismissed without prejudice because he failed to exhaust his

administrative remedies as to those claims prior to filing this case. (ECF No. 73). Defendants also

argued that Plaintiff’s recoverable damages for submitted grievances should be limited to a period

beginning fifteen days prior to each grievance’s submission and ending on the date each grievance

was resolved. On June 13, 2019, Defendants filed a separate, second motion for summary

judgment, arguing that Plaintiff’s exhausted claims fail on the merits and should be dismissed with

prejudice. (ECF No. 83). On October 22, 2019, Judge Bryant issued the instant Report and

Recommendation, addressing Defendants’ two summary judgment motions.

For the first summary judgment motion (ECF No. 73), Judge Bryant finds that Plaintiff

failed to exhaust his administrative remedies for all but four grievances he filed during the period

at issue. Thus, Judge Bryant recommends that Defendants’ motion for partial summary judgment

be granted as to Plaintiff’s unexhausted grievances and that his claims related to those grievances

should be dismissed without prejudice. Judge Bryant also found that Plaintiff exhausted his

administrative remedies for the following grievances: (1) OR-15-00397 against all Defendants;

(2) OR-17-00592 against Defendant Robinson; (3) OR-17-00976 against Defendants Robinson

and Vowell; (4) and OR-16-01367 against Defendants Vowell and Morgan. Judge Bryant

recommends that the motion for partial summary judgment be denied as to the above-listed

1 “Marfan’s syndrome . . . is a connective tissue disorder which can affect a number of body systems. Marfan’s

syndrome patients typically have a number of specific features, including but not limited to: 1) a tall and slender

build; 2) disproportionately long arms, legs, and fingers; 3) a breastbone that protrudes outward or dips inward; 4) a

high, arched palate and crowded teeth; 5) heart murmurs; 6) blurred vision and/or nearsightedness; 7) an abnormally

curved spine; and/or 7) flat feet, among others.” (ECF No. 84-4, pp. 1-2).

grievances, and that the motion be further denied to the extent that it asks the Court to limit

Plaintiff’s claims and the recovery of damages to a period beginning fifteen days prior to the filing

of each grievance and ending on the date each grievance was resolved.

For the second summary judgment motion (ECF No. 83), Judge Bryant finds that Plaintiff

failed to demonstrate a genuine dispute of material fact as to the viability of his official capacity

claims and as to a claim asserted against Defendant Robinson in grievance OR-17-00592. Thus,

Judge Bryant recommends that the motion be granted as to those claims and that they be dismissed

with prejudice. Judge Bryant finds further that a genuine dispute of material fact exists as to

Plaintiff’s remaining claims and recommends that the motion be denied in all other respects.

On November 25, 2019, Plaintiff filed what are styled as “written objections,” arguing that

grievance OR-16-01515 should be “admitted” and that his official capacity claims should not be

dismissed. On November 27, 2019, Defendants filed objections to the Report and

Recommendation, arguing that the Court should grant Defendants’ two summary judgment

motions.

II. DISCUSSION

The Court may designate a magistrate judge to hear pre- and post-trial matters and to

submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. §

636(b)(1). After conducting an appropriate review of the report and recommendation, the Court

may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by

the magistrate judge . . . or recommit the matter to the magistrate judge with instructions.” 28

U.S.C. § 636(b)(1).

“[T]he specific standard of review depends, in the first instance, upon whether or not a

party has objected to portions of the report and recommendation.” Anderson v. Evangelical

Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). Generally,

“objections must be timely and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d

356, 358-59 (8th Cir. 1990). The Court applies a liberal construction when determining whether

pro se objections are specific. Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).

As previously stated, both Plaintiff and Defendants have filed objections. The Court will

begin by addressing Plaintiff’s objections. The Court will then take up Defendants’ objections.

A. Plaintiff’s Objections

Plaintiff filed what he styles as “written objections,” but that seem to actually address

Defendants’ two motions for summary judgment. He argues that grievance OR-16-01515 should

be “admitted” because it shows that Defendants delayed in getting him medical treatment for his

eyes. He also argues that his official capacity claims should not be dismissed because grievances

OR-17-01367 and OR-17-00976 prove that Defendants violated their own policies and procedures,

thereby depriving him of proper eyewear for over two years.

As previously stated, the Court must liberally construe pro se objections to determine

whether they are specifically responsive to a Report and Recommendation. Id. In applying this

liberal construction, the Court will review each of Plaintiff’s objections even though they do not

specifically reference the instant Report and Recommendation.

1. Exhaustion of Grievance OR-16-01515

In grievance OR-16-01515, Plaintiff complained that his Eighth Amendment rights were

violated on September 29, 2016, when ORCU staff told him that he was leaving the facility for a

medical trip, put him in a holding cell to await transportation, and then left him in the cell all day.

(ECF No. 74-2, p. 5). This grievance was found to be without merit at both the unit level and on

appeal.2 (ECF No. 74, pp. 5-9). Defendants’ motion for partial summary judgment argues that

2 The ADC grievance process requires that a prisoner first submit an informal resolution. If the informal resolution is

not resolved to the prisoner’s satisfaction or is not responded to at all within a specified time frame, the prisoner may

then submit a formal grievance. If the formal grievance is not resolved at the unit level to the prisoner’s satisfaction

Plaintiff did not exhaust his administrative remedies as to grievance OR-16-01515, while Plaintiff

argues that he did.

Judge Bryant did not make an explicit finding as to whether Plaintiff exhausted his

administrative remedies as to grievance OR-16-01515. Instead, Judge Bryant declined to address

the grievance, reasoning that it concerned issues falling outside the scope of Plaintiff’s claims in

this case. Plaintiff objects, arguing that the grievance should be “admitted” because it shows that

Defendants delayed in getting him medical treatment for his eyes.

The Court expresses no opinion as to whether grievance OR-16-01515 concerns issues that

fall outside the scope of Plaintiff’s claims because, upon de novo review, the Court finds that

Plaintiff did not exhaust his administrative remedies as to that grievance before filing suit. The

Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect

to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. Nussle, 534

U.S. 516, 524-25 (2002). “[T]o properly exhaust administrative remedies[,] prisoners must

complete the administrative review process in accordance with the applicable procedural rules.”

Jones v. Bock, 599 U.S. 199, 218 (2007) (internal quotation marks omitted). “The level of detail

necessary in a grievance to comply with the grievance procedures will vary from system to system

and claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries

of proper exhaustion.” Id.

“[I]n considering motions to dismiss for failure to exhaust . . . the district court must look

to the time of filing, not the time the district court is rendering its decision, to determine if

or is not responded to at all within a specified time frame, the prisoner may then submit an appeal. Once a rejection

or written decision is issued on the appeal, the grievance process is completed and the prisoner’s remedies are

exhausted. (ECF No. 74-1, pp. 5-13).

exhaustion has occurred.” Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). If an inmate has

not exhausted his administrative remedies when he files his complaint, “dismissal is mandatory.”

Id. If “a trial court determines that a prisoner’s claims are unexhausted, it is required to dismiss

the case without prejudice—and it cannot proceed to reach the merits and dismiss the case, with

prejudice.” Reed v. Anderson, No. 5:11-cv-0111-DPM/JTR, 2011 WL 4709884, at *2 (E.D. Ark.

Sept. 9, 2011) (citing Barbee v. Corr. Med. Servs., 394 F. App’x. 337, 338 (8th Cir. 2010)).

In relevant part, the Arkansas Department of Correction’s (“ADC”) grievance policy

requires inmates to submit grievances that “specifically name each individual involved for a proper

investigation and response to be completed by the ADC.” (ECF No. 74-1, p. 4-5). Plaintiff did

not specifically name Defendants in grievance OR-16-01515. In fact, he did not name any

individual as being involved in the allegations made in the grievance. By failing to specifically

name Defendants, or anyone else, in grievance OR-16-01515, Plaintiff failed to exhaust his

administrative remedies as to that grievance because the ADC was not asked to evaluate

Defendants’ conduct or involvement with respect to the alleged incident. Burns v. Eaton, 752 F.3d

1136, 1141 (8th Cir. 2014). Accordingly, Plaintiff’s claims related to grievance OR-16-01515

must be dismissed without prejudice. Reed, 2011 WL 4709884, at *2 (stating that unexhausted

claims must be dismissed without prejudice).

The Court reaches this conclusion for different reasons than those articulated in the Report

and Recommendation. However, the Court nonetheless agrees with Judge Bryant’s recommended

outcome: that Defendants’ motion for partial summary judgment should be granted insofar as it

argues that Plaintiff’s claims related to grievance OR-16-01515 should be dismissed without

prejudice. Accordingly, the Court finds that Plaintiff’s objections present no reason to depart from

the Report and Recommendation on this issue.

2. Official Capacity Claims

In addressing Defendants’ second summary judgment motion, Judge Bryant found that

Plaintiff’s official capacity claims failed as a matter of law and should be dismissed with prejudice.

Specifically, Judge Bryant was unpersuaded by Plaintiff’s argument that his official capacity

claims should survive summary judgment because Defendants failed to follow their own internal

policy. Judge Bryant reasoned that Plaintiff did not show that an unconstitutional policy or custom

was the moving force behind the alleged constitutional violations and, thus, his official capacity

claims should be dismissed. Plaintiff objects, arguing that grievances OR-16-01367 and OR-17-

00976 prove that Defendants deprived him of healthcare for over two years, and that Defendants

violated their internal policy in doing so.

To begin, it appears that Plaintiff argued to Judge Bryant that grievances OR-16-01367 and

OR-17-00976 support his claims. (ECF No. 77, p.1). “Simply restating arguments and facts

already presented to the Magistrate Judge does not constitute a viable objection to a report and

recommendation.” Munt v. Larson, No. 15-cv-0582 SRN/SER, 2015 WL 5673108, at *7 (D.

Minn. Sept. 23, 2015). Thus, the Court believes that Plaintiff’s objection could and should be

overruled for merely being repetitive of an argument that Judge Bryant considered and rejected.

However, even if the Court assumes arguendo that this is a viable objection, it will nonetheless be

overruled for the following reasons.

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

both. Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). Official capacity claims are

“functionally equivalent to a suit against the employing governmental entity.” Veatch v. Bartels

Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010). Accordingly, Plaintiff’s official capacity

claims are treated as claims against Defendants’ employing governmental entity. See Murray v.

Lene, 595 F.3d 868, 873 (8th Cir. 2010).

An employing governmental entity “cannot be held liable on a respondeat superior theory,

that is, solely because it employs a tortfeasor.” Atkinson v. City of Mountain View, Mo., 709 F.3d

1201, 1214 (8th Cir. 2013). To establish Defendants’ liability under section 1983, a “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 establish 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). A custom

conflicting with a written policy can support an official capacity claim. Johnson v. Douglas Cnty.

Med. Dept., 725 F.3d 825, 829 (8th Cir. 2013). However, a single deviation from a written policy

does not establish a custom but, rather, to establish the existence of such a custom, Plaintiff must

demonstrate:

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 plaintiff was injured by acts pursuant to the governmental entity’s custom,

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

Id. at 828. Under this standard, “multiple incidents involving a single plaintiff could establish a

custom if some evidence indicates that the incidents occurred over a course of time sufficiently

long to permit notice of, and then deliberate indifference to or tacit authorization of, the conduct

by policymaking officials.” Id.

Plaintiff does not argue that Defendants violated his constitutional rights pursuant to an

unconstitutional policy. Rather, he argues that they ignored an unspecified policy, which is akin

to arguing that they acted pursuant to an unconstitutional custom. The Court agrees with Judge

Bryant that Plaintiff has failed to put forth evidence of an unconstitutional custom that was the

moving force behind Defendants’ alleged constitutional violations.

As stated above, a custom conflicting with a written policy can support an official capacity

claim. Id. at 829. However, Plaintiff’s objections do not explain how grievances OR-16-01367

and OR-17-00976 support his official capacity claims. Presumably, Plaintiff’s argument is his

submission of those grievances on September 9, 2016, and June 9, 2017, respectively, shows that

the alleged violations occurred for, at minimum, almost a year, which would demonstrate an

ongoing unconstitutional custom. However, the responses to each grievance show that ORCU

staff provided Plaintiff with eyeglasses, scheduled him for follow-up appointments at medical

clinics, and were evaluating his need for surgery or other corrective care such as medical contact

lenses. (ECF No. 74-2, pp. 10, 19).

Perhaps more importantly, grievances OR-16-01367 and OR-17-00976 establish, at best,

only that Plaintiff complained that he was not receiving proper eyecare from September 9, 2016

through June 9, 2017. The grievances are not sworn or notarized and, thus, do not establish that

Defendants indeed injured Plaintiff through a continuing, widespread, persistent pattern of

unconstitutional misconduct, or that the ORCU employees who responded to the grievances were

policymaking officials who were put on notice of such conduct and were either deliberately

indifferent to or tacitly authorized the conduct. The responses to the unsworn grievances also

indicated a willingness to correct a medical issue, as they state that Plaintiff had been scheduled

for medical appointments and had been prescribed eyeglasses. Thus, the grievances themselves

are insufficient to establish an unconstitutional custom. See Garcia v. Ctny. of El Paso, 79 F.

App’x 667, 670 (5th Cir. 2003) (finding that grievances did not show a custom when the responses

to the grievances indicated a willingness to correct the medical issue); Nasious v. Robinson, No.

CIV-08-cv-0262-CMAKMT, 2010 WL 1268135, at *7 (D. Colo. Feb. 17, 2010) (rejecting

unsworn prison grievances offered as evidence of an unconstitutional custom), report and

recommendation adopted, No. CIV-08-cv-0262-CMAKMT, 2010 WL 1268132 (D. Colo. Mar.

29, 2010), aff’d in part, appeal dismissed in part, 396 F. App’x 526 (10th Cir. 2010); Wardleigh

v. Slater, No. 1:07-cv-108, 2010 WL 414367, at *1 (D. Utah Jan. 28, 2010) (same). Moreover,

Plaintiff has pointed to no other summary judgment evidence demonstrating this, such as affidavits

or other sworn testimony. See Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996)

(stating that the party resisting summary judgment must “designate specific facts creating a triable

controversy”).

Accordingly, the Court agrees with Judge Bryant that Plaintiff has pointed to no record

evidence demonstrating: (1) “[t]he existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s employees;” (2) “[d]eliberate

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 entity’s custom.” Johnson, 725 F.3d at 828. Accordingly, Plaintiff’s

official capacity claims are subject to dismissal with prejudice.

3. Conclusion

For the above-stated reasons, the Court finds that Plaintiff’s objections present no basis

upon which to depart from Judge Bryant’s recommendations. Accordingly, the Court will overrule

Plaintiff’s objections.

B. Defendants’ Objections

Defendants also filed objections to the instant Report and Recommendation. They argue

that the Court should decline to adopt the Report and Recommendation in three respects. First,

they argue that the Report and Recommendation made erroneous findings regarding the applicable

statute of limitations. Second, they argue that the Report and Recommendation improperly relied

on evidence from outside the summary judgment record. Finally, they argue that the Report and

Recommendation failed to consider certain evidence when deciding the merits of Plaintiff’s

exhausted claims. The Court will separately address each argument.

1. Statute of Limitations

The Report and Recommendation contains a brief discussion related to the statute of

limitations. In a footnote, Judge Bryant noted that Plaintiff was booked into the ORCU on

December 8, 2014, and that he filed this case on March 29, 2018. Judge Bryant then stated the

well-established law that the applicable statute of limitations for section 1983 actions in Arkansas

is three years. He stated further that a civil cause of action accrues when the plaintiff knows or

had reason to know of the harm, and that a continuing violation may extend the accrual of a cause

of action if certain circumstances are present. Judge Bryant concluded by noting that the issue of

the statute of limitations was brought up in Plaintiff’s deposition, but that the issue was not raised

in Defendants’ summary judgment motions.

Defendants object, first arguing that they raised the affirmative defense of the statute of

limitations in both summary judgment motions, as well in other previously filed pleadings.

Defendants also object to the extent that Judge Bryant applied the so-called “continuing-violation”

doctrine to extend the applicable three-year statute of limitations and considered claims that

accrued prior to March 29, 2015. Defendants argue that the Eighth Circuit has never adopted the

continuing-violation doctrine for use in section 1983 cases and that, even if it had, the doctrine

would not apply to the facts of this case. The Court will address each objection separately.

a. Whether Defendants Raised the Issue of Statute of Limitations

Defendants object to Judge Bryant’s statement that their summary judgment motions do

not raise the issue of statute of limitations. They cite to portions of each summary judgment motion

that they contend raises that issue. The cited passage from Defendants’ first summary judgment

motion reads as follows: “Plaintiff lodged nine medical grievances in the three years prior to filing

the instant lawsuit. This period of time tracks the three year statute of limitations brough pursuant

to 42 U.S.C. § 1983.” (ECF No. 75, pp. 1-2). Defendants’ second summary judgment motion

contains an identically worded passage. (ECF No. 85, p. 6).

To the extent that Defendants contend that Judge Bryant erred by stating that Defendants

did not seek summary judgment based on a statute of limitations argument, the Court disagrees.

The above-quoted passage does not seek dismissal of claims accruing prior to the three-year period

before Plaintiff filed this case; it merely states that Plaintiff filed nine grievances during the three-

year limitations period. Nowhere in Defendants’ summary judgment motions do they request

dismissal of claims based on a statute of limitations defense, and the Court declines to consider

that argument if Defendants now invite the Court to do so. Ridenour v. Boehringer Ingelheim

Pharm., Inc., 679 F.3d 1062, 1067 (8th Cir. 2012) (providing that a party may not assert arguments,

claims, or legal theories in objections to a magistrate judge’s report and recommendation that were

not first presented to the magistrate judge for consideration).

However, to the extent that Defendants contend that Judge Bryant erred merely by stating

that Defendants’ summary judgment motions do not make any reference to statutes of limitations,

that much is true. Defendants’ motions clearly reference the general three-year statute of

limitations for section 1983 claims in Arkansas. However, this inaccuracy has no bearing on the

remainder of the Report and Recommendation, so it is harmless error. Consequently, the Court

finds that Defendants’ objections should be overruled as to this point.

b. Continuing-Violation Doctrine

Defendants further object to Judge Bryant’s footnote regarding the applicable statute of

limitations for this case, arguing that he appears to have applied the continuing-violation doctrine

to consider claims that arose prior to March 29, 2015, three years prior to the date Plaintiff filed

this action. Defendants argue that the continuing-violation doctrine has not been adopted in the

Eighth Circuit for use in section 1983 cases and, even if it had been, the facts of this case do not

justify application of the doctrine. Thus, they argue that any of Plaintiffs’ claims that arose prior

to March 29, 2015 are time barred and the Court should decline to adopt the Report and

Recommendation to the extent that it considers those claims.

There is no need to address the applicability of the continuing-violation doctrine because

Defendants do not point the Court to any specific instance where Judge Bryant utilized that

doctrine to consider claims that arose prior to March 29, 2015. Instead, they state only that he

“appears” to have done so, with no further elaboration or specificity. “[G]eneral and conclusory

objections that do not direct the court to a specific error in the magistrate judge’s proposed findings

and recommendations” do not trigger de novo review. Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.

1994); Meyer v. Haeg, No. 15-cv-2564 (SRN/HB), 2016 WL 6916797, at *2 (D. Minn. Nov. 21,

2016). In the absence of any specifically challenged claims, the Court sees no clear error in Judge

Bryant’s Report and Recommendation on this issue. The Court could overrule Defendants’

objections for this reason.

However, even if the Court looks closer, the Court sees no claims that accrued prior to

March 29, 2015 that Judge Bryant recommended should survive summary judgment. Judge Bryant

found that Plaintiff exhausted his administrative remedies as to four grievances and recommended

that summary judgment should be denied as to Plaintiff’s claims related to those four grievances.

One of the grievances, OR-16-01367, was filed in late 2016, relating to alleged incidents occurring

in 2016. (ECF No. 74-2, pp. 10-12). Two of the grievances, OR-17-00592 and OR-17-0976, were

filed in 2017 and concern alleged incidents occurring in 2017. (ECF No. 74-2, pp. 16-23).

Obviously, Plaintiff’s claims related to these grievances fall within the three-year period between

March 29, 2015, and March 29, 2018, and Judge Bryant properly considered them.

That leaves grievance OR-15-00397, which Plaintiff filed on April 4, 2015. The grievance

form does not specifically indicate when the alleged incident occurred. At the summary judgment

stage, the Court must view the facts and draw all reasonable inferences in the light most favorable

to Plaintiff, the nonmoving party. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). A reasonable inference could be drawn that the incident Plaintiff complained of in

grievance OR-15-00397 occurred between March 29, 2015 and April 4, 2015. With the benefit of

this inference, Plaintiff’s claims related to grievance OR-15-00397 would have accrued within the

three-year period between March 29, 2015, and March 29, 2018, and Judge Bryant would have

properly considered them.

It is unclear why the Report and Recommendation included a rule statement from a non-

binding jurisdiction regarding the continuing-violation doctrine. The Report and

Recommendation does not invoke the doctrine in connection with any claim at issue, and other

than one reference in a footnote, the doctrine is not mentioned again. As discussed above, it does

not appear that any grievance which Judge Bryant deemed exhausted falls outside the three-year

statute of limitations period for this case. Thus, the Court sees no mistake of fact or law justifying

departure from the Report and Recommendation, and Defendants’ objections will be overruled on

this point.

2. Independent Court Research

Defendants object to the inclusion of three footnotes in the Report and Recommendation’s

background section. The footnotes read as follows:

Marfan syndrome is a disorder that affects the connective tissue in many parts of

the body. Connective tissue provides strength and flexibility to structures such as

bones, ligaments, muscles, blood vessels, and heart valves. The signs and

symptoms of Marfan syndrome vary widely in severity, timing of onset, and rate of

progression. Because connective tissue is found throughout the body, Marfan

syndrome can affect many systems, often causing abnormalities in the heart, blood

vessels, eyes, bones, and joints. The two primary features of Marfan syndrome are

vision problems caused by a dislocated lens (ectopia lentis) in one or both eyes and

defects in the large blood vessel that distributes blood from the heart to the rest of

the body (the aorta).” https://ghr.nlm.nih.gov/condition/marfansyndrome (accessed

October 2, 2019).

(ECF No. 97, p.1).

Visual acuity is the sharpness of vision, especially as tested with a Snellen chart.

Normal visual acuity based on the Snellen chart is 20/20. Medical Dictionary for

the Health Professions and Nursing © Farlex 2012. “If you have 20/200 visual

acuity, the smallest letters you can identify from a distance of 20 feet are the size

of the smallest letters a person with historically defined ‘normal vision’ can see

from a much greater distance – 200 feet, in this case.”

https://www.allaboutvision.com/lowvision/legally-blind.htm (accessed October 9,

2019).

(ECF No. 97, p. 3).

C/d or cup-to-disc ratio is a measurement to assess the progression of glaucoma.

https://www.hopkinsmedicine.org/wilmer/services/glaucoma/book/ch06s03.html

(accessed October 9, 2019).

(ECF No. 97, p. 5).

Defendants argue that these footnotes were not based on any record evidence and that Judge

Bryant independently conducted Internet research and relied on that research to fact-find and/or

make conclusions of law. Defendants urge the Court to decline to adopt the Report and

Recommendation to the extent that it relies on the Internet sources because it is the parties’

responsibility to build the summary judgment record, not the Court’s. In support of this argument,

Defendants cite to a dissenting opinion from the Seventh Circuit that opines, in relevant part, that

appellate court decisions should be based solely on the appellate record and not on any independent

research conducted by the court. Rowe v. Gibson, 798 F.3d 622, 636 (7th Cir. 2015) (Hamilton,

J., dissenting). Defendants argue that the logic in the Rowe dissent should apply here, and that

Judge Bryant’s reliance on independently researched Internet sources was inappropriate.

The Court finds this argument unpersuasive. Defendants cite no binding authority in

support of their argument, and the Court is not bound by the Seventh Circuit’s decision in Rowe.

United States v. Auginash, 266 F.3d 781, 784 (8th Cir. 2001). Moreover, the Court is unaware of

any Eighth Circuit authority addressing this issue.

Even if the Court assumes arguendo that Defendants’ position would be the prevailing

view in the Eighth Circuit, Rowe’s dissent is nonetheless distinguishable from this case. Putting

aside the obvious distinction that Rowe concerned, inter alia, whether an appellate court may base

its decision on sources not contained in the appellate record, Defendants cite to no specific

examples of where Judge Bryant based his legal analysis or recommendations on any

independently researched Internet sources. Instead, Defendants only make the conclusory

assertion that Judge Bryant did so. The Court has reviewed the Report and Recommendation and

can find no instance where Judge Bryant’s analysis or recommended disposition relies on

information from the challenged footnotes.

These footnotes clearly exist for the reader’s benefit because they define medical terms

used throughout the Report and Recommendation’s background section. Rowe’s majority opinion

noted that this is an allowable practice, acknowledging “the need to distinguish between judicial

web searches for mere background information that will help the judges and the readers of their

opinions understand the case . . . and web searches for facts normally determined by the factfinder

after an adversary procedure that produces a district court or administrative record.” Rowe, 798

F.3d at 628. The Court believes that the challenged footnotes fall into the former category, not the

latter. To be sure, the best practice would be to avoid inserting judicially researched sources into

opinions, whenever possible. However, the Court finds no error in Judge Bryant’s inclusion of the

challenged footnotes and, should any error exist, it is harmless because the Report and

Recommendation does not base its legal analysis or conclusions on that information.

Consequently, this objection will be overruled.

3. Unconsidered Facts

Defendants’ second summary judgment motion argues for dismissal of all exhausted claims

because the summary judgment evidence shows that Defendants were not deliberately indifferent

to Plaintiff’s serious medical needs. Judge Bryant found that argument unavailing. Specifically,

Judge Bryant found that Plaintiff’s need for medical attention was obvious to a layperson because

his vision was impaired to the extent that it affected his daily living. Judge Bryant also found that

the record demonstrates that Defendants were aware of Plaintiff’s vision problems and that they

did not provide him with either prescription contact lenses or eyeglasses. Thus, Judge Bryant

concluded that a genuine issue of material fact exists as to whether Defendants were deliberately

indifferent to Plaintiff’s serious medical needs and, furthermore, that Defendants are not entitled

to qualified immunity on those claims.

Defendants object, arguing that the Report and Recommendation failed to consider certain

unrebutted summary judgment evidence. They argue that they offered the affidavit of their expert

witness, Dr. Jeffery Stieve, who opined that Plaintiff’s development of glaucoma and subluxated

lenses was unrelated to whether he used prescription contact lenses during his incarceration. (ECF

No. 84-4, pp. 2-3). Dr. Stieve also opined that Defendants provided appropriate medical care and

treatment to Plaintiff. Defendants argue that Plaintiff has offered no evidence, other than his own

subjective belief that he received inadequate medical treatment, to rebut Dr. Stieve’s expert

testimony. Thus, they argue that Plaintiff has failed to establish causation or, in other words, that

the lack of prescription contact lenses harmed him. Defendants also argue that the Report and

Recommendation did not consider evidence showing that Plaintiff purchased reader eyeglasses

from the prison commissary and had them in his possession at all relevant times, and that he was

able to successfully complete classes taught at the prison and fill out various forms during the

relevant time period, which demonstrates that he was able to ably engage in daily activities.

Consequently, Defendants argue it was not objectively apparent to any reasonable person that

Plaintiff was unable to see due to a lack of prescription corrective eyewear.

The Eighth Amendment prohibits deliberate indifference to prisoners’ serious medical

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

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

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

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

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

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

needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (alterations in original). To show

that 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). To satisfy 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. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (internal quotation

marks and citation omitted). Further, it is well settled that a “prisoner’s mere difference of opinion

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

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

in original). An “inmate must clear a substantial evidentiary threshold to show the prison’s medical

staff deliberately disregarded the inmate’s needs by administering inadequate treatment.” Id.

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

each inmate might wish.” Jenkins v. Cnty. of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009).

The objective seriousness of a delay in treatment must be measured by reference to the effect of

delay, which must be shown by verifying medical evidence in the record. Laughlin v. Schriro, 430

F.3d 927, 929 (8th Cir. 2005). However, a plaintiff need not submit verifying medical evidence

when the need for medical attention was obvious to a layperson. See Schaub, 638 F.3d at 919.

In this case, Plaintiff alleges that Defendants intentionally delayed and denied his access

to prescribed medical treatment, his contact lenses. Thus, he must submit verifying medical

evidence to measure the effect of the delay unless his need for medical attention was obvious to a

layperson. Id. Judge Bryant found that Plaintiff’s need for medical attention related to his eyesight

was obvious to a layperson and, consequently, excused Plaintiff’s failure to submit verifying

medical evidence. Respectfully, the Court disagrees for the following reasons.

“Where the complaint involves treatment of a prisoner’s sophisticated medical condition,

expert testimony is required to show proof of causation.” Alberson v. Norris, 458 F.3d 762, 765-

66 (8th Cir. 2006). The Court finds the Eighth Circuit’s reasoning in Robinson v. Hager, 292 F.3d

560 (8th Cir. 2002), to be instructive. In Robinson, a prisoner suffered a stroke after prison officials

failed to provide him with blood pressure medication, and the prisoner subsequently filed suit,

alleging deliberate indifference. Id. at 562-63. The Robinson court acknowledged that “[a] causal

connection between an event and an injury may be inferred in cases in which a visible injury or a

sudden onset of an injury occurs. However, when the injury is a ‘sophisticated’ one, i.e., requiring

surgical intervention or other highly scientific technique for diagnosis, proof of causation is not

within the realm of lay understanding and must be established through expert testimony.” Id. at

564 (quoting Turner v. Iowa Fire Equip. Co., 229 F.3d 1202, 1210 (8th Cir. 2000)). Consequently,

Robinson held that “although a person suffering from a stroke may exhibit visible symptoms, the

stroke itself is a sophisticated injury which could be caused by numerous factors other than lack

of medication. Therefore, expert medical testimony is needed to prove causation.” Id.

The Court believes that this case is similar. Marfan’s syndrome, along with glaucoma and

subluxated lenses, are sophisticated medical conditions. See Awnings v. Fullerton, 912 F.3d 1089,

1098 (8th Cir. 2019) (stating that alleged no-visible injuries requiring sophisticated medical tools

to diagnose “are not within the range of common experience where inferences may be made”).

This is not a case in which a singular event caused the sudden onset of an injury. Although Plaintiff

exhibited visible symptoms from the glaucoma and subluxated lenses in the form of worsening

eyesight, his glaucoma and subluxated lenses nonetheless required sophisticated medical tools to

diagnose. Thus, these sophisticated medical conditions were not within the realm of lay

understanding. Id. Moreover, a determination of whether Defendants “should have provided

different treatment for [Plaintiff] . . . or indeed whether any treatment at all could have alleviated

his suffering or arrested the progress of the disease, is not within the realm of lay understanding.”

Alberson, 458 F.3d at 766. Thus, to survive summary judgment, Plaintiff must submit verifying

medical evidence that Defendants’ alleged inaction adversely impacted his prognosis.

Plaintiff failed to do so. The only medical evidence in the record on this issue is Dr.

Stieve’s affidavit, which indicates that Plaintiff’s development of glaucoma and subluxated lenses

was unrelated to whether he used prescription contact lenses while incarcerated, and that

Defendants provided him appropriate medical care and treatment. Plaintiff has pointed to no

probative medical evidence showing that his lack of prescription eyewear, and not some other

factor, caused his glaucoma and subluxated lenses. See Crowley v. Hedgepeth, 109 F.3d 500, 502

(8th Cir. 1997) (affirming district court’s grant of summary judgment where a prisoner offered no

verifying medical evidence that his eye damage was caused by the prison’s failure to provide him

with prescribed sunglasses following eye surgery). Plaintiff’s failure to produce expert testimony

or any other verifying medical evidence is fatal to his deliberate indifference claims as a matter of

law. Id.

Defendants’ objections will be sustained on this issue and the Court will depart from the

Report and Recommendation regarding Plaintiff’s failure to establish causation.3 Consequently,

Defendants’ second summary judgment motion (ECF No. 83) will be granted and Plaintiff’s

exhausted claims will be dismissed.4

4. Conclusion

In sum, the Court finds that Defendants’ objections should be sustained to the extent that

they argue that Plaintiff’s exhausted claims fail as a matter of law and should be dismissed for lack

of causation. Defendants’ remaining objections present no basis for departing from the Report and

Recommendation and will be overruled.

III. CONCLUSION

For the above-stated reasons and upon de novo review, the Court overrules Plaintiffs’

objections (ECF No. 103) in full and Defendants’ objections (ECF No. 104) in part. Defendants’

objections are sustained to the extent that they argue Plaintiffs’ exhausted claims should be

dismissed for lack of causation.

Accordingly, the Court adopts the instant Report and Recommendation (ECF No. 97) in

all respects, other than its findings, conclusions, and recommendations regarding whether

Plaintiff’s exhausted claims fail for lack of causation. Defendants’ motion for partial summary

3 In light of this finding, the Court need not address the remainder of the arguments related to this objection.

4 The dismissal of Plaintiff’s remaining claims further supports the Court’s above findings regarding the dismissal of

his official capacity claims. Where, like in this case, no defendant is found individually liable on an underlying

substantive claim, the employing governmental entity cannot be held liable under section 1983. Brockinton v. City of

Sherwood, Ark., 503 F.3d 667, 674 (8th Cir. 2007).

judgment (ECF No. 73) is hereby GRANTED IN PART AND DENIED IN PART. Plaintiff’s

claims related to any grievance discussed in the Report and Recommendation other than OR-15-

00397; OR-17-00592; OR-17-00976; and OR-16-01367 are DISMISSED WITHOUT

PREJUDICE. Defendants’ motion for summary judgment (ECF No. 83) is hereby GRANTED,

and Plaintiff’s remaining claims are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED, this 17th day of January, 2020.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge