Morrison v. Lingo

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HOT SPRINGS DIVISION

CLAYTON DEAN MORRISON PLAINTIFF

v. Civil No. 6:18-cv-6058

LIEUTENANT LINGO DEFENDANT

ORDER

Before the Court is the Report and Recommendation filed January 16, 2020, by the

Honorable Mark E. Ford, United States Magistrate Judge for the Western District of Arkansas.

(ECF No. 42). Judge Ford recommends that the Court grant Defendant’s motion for summary

judgment (ECF No. 30) and dismiss this case with prejudice. Plaintiff Clayton Dean Morrison

filed objections. (ECF No. 43). The Court finds the matter ripe for consideration.

I. BACKGROUND

Plaintiff filed this suit pursuant to 42 U.S.C. § 1983, alleging that Defendant was

deliberately indifferent to his serious medical needs by denying him surgery to repair broken bones

in his wrist while he was incarcerated in the Hot Spring County Detention Center (“HSCDC”)

from May 24, 2018, through June 19, 2018. Plaintiff asserts individual and official capacity claims

against Defendant.

On July 15, 2019, Defendant filed the instant motion for summary judgment. (ECF 30).

Defendant argues that Plaintiff’s official capacity claims fail as a matter of law and that he is

entitled to qualified immunity because Plaintiff failed to show an underlying constitutional

violation. On August 26, 2019, Plaintiff filed a response opposing the motion. (ECF No. 39).

On January 16, 2020, Judge Ford issued the instant Report and Recommendation. (ECF

No. 42). Judge Ford finds that Plaintiff failed to demonstrate that his injuries resulted from a

policy or custom of the HSCDC and, thus, the official capacity claims against Defendant fail as a

matter of law. Judge Ford also finds that Plaintiff’s individual capacity claim of deliberate

indifference fails as a matter of law because Plaintiff has not provided verifying medical evidence

to support the claim and because his allegations, at most, constitute negligence, which is not

actionable under section 1983. Thus, Judge Ford recommends that the Court grant Defendant’s

summary judgment motion and dismiss this case with prejudice.

On January 29, 2020, Plaintiff filed what is styled as a “Response to Summary Judgment.”

(ECF No. 43). Plaintiff appears to argue that his injury was so obvious that even a layperson would

recognize the need for medical treatment. He also seems to argue that he has demonstrated that

Defendant had a duty to provide him a certain standard of care and that Defendant failed to do so,

which proximately caused Plaintiff’s injuries.

Generally, objections to a Report and Recommendation must be “timely and specific” to

trigger de novo review. Thompson v. Nix, 897 F.2d 356, 358-59 (8th Cir. 1990). Although

Plaintiff’s response to summary judgment (ECF No. 43) does not specifically reference the Report

or Recommendation or its findings, the Court will construe it as an objection. See Hudson v.

Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (requiring a liberal construction of pro se objections).

II. DISCUSSION

The Court will first address Judge Ford’s findings regarding Plaintiff’s official capacity

claim. The Court will then address Plaintiff’s individual capacity claim.

A. Official Capacity Claim

Judge Ford finds that Plaintiff’s official capacity claim fails as a matter of law because

Plaintiff did not demonstrate that his injuries were caused by an official policy or custom of the

HSCDC. Even when liberally construed, Plaintiff’s objections are not responsive to this finding.

At most, Plaintiff seems to argue that the facts at issue in this case occurred while he was

incarcerated in the HSCDC.

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 Hot Spring County,

Arkansas. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir. 2010).

“[I]t is well established that a municipality [or county] 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 Hot Spring County’s

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.

The Court agrees with Judge Ford that Plaintiff has not provided any evidence showing

that he suffered a constitutional violation pursuant to an official custom, policy, or practice of Hot

Spring County. Neither Plaintiff’s response to the summary judgment motion (ECF No. 39) nor

his objections to the Report and Recommendation (ECF No. 43) point the Court to any evidence

along these lines. “[A] party opposing a motion for summary judgment may not rest upon the

mere allegations or denials of the pleadings, but by affidavits or as otherwise provided in Rule 56

must set forth specific facts showing that there is a genuine issue for trial.” Jaurequi v. Carter

Mfg. Co., 173 F.3d 1076, 1085 (8th Cir. 1999) (alteration in original). “A district court has no

obligation to plumb the record in order to find a genuine issue of material fact.” Barge v. Anheuser-

Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996) (internal quotation marks omitted). “Nor is the court

required to speculate on which portion of the record the nonmoving party relies, nor is it obligated

to wade through and search the entire record for some specific facts that might support the

nonmoving party’s claim.” Id. (internal quotation marks omitted).

Plaintiff has not set forth evidence of specific facts demonstrating that he suffered a

constitutional violation pursuant to an official custom, policy, or practice of Hot Spring County.

Accordingly, the Court finds that Plaintiff’s official capacity claim fails as a matter of law and

summary judgment is appropriate on this claim.

B. Individual Capacity Claim

Judge Ford also finds that Plaintiff’s deliberate indifference claim fails as a matter of law

because he did not provide verifying medical evidence and because his allegations establish

negligence, at most, which is not actionable under section 1983. Plaintiff objects, arguing that his

injury was so obvious that even a layperson could recognize the need for medical treatment.

Plaintiff also appears to assert that he has established the requisite elements for a negligence claim.

The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate

indifference to prisoners’ serious medical needs. Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th

Cir. 2012). To prevail on his Eighth Amendment claim, Plaintiff must prove that Defendant 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).

Deliberate indifference may be manifested by “prison guards in intentionally denying or

delaying access to medical care or intentionally interfering with the treatment once prescribed.”

Estelle, 429 U.S. at 104-05 (1976) (internal footnotes omitted). However, 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 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). But see Schaub, 638 F.3d at 919 (stating that submission of verifying medical evidence is

unnecessary where the need for medical attention would have been obvious to a layperson).

Plaintiff’s argument seems to be that he is not required to provide verifying medical

evidence measuring the effect of the delay in treatment because his wrist injury was so serious that

even a layperson would have known that medical attention was necessary. However, he has

provided nothing but his own argument that his injury was so serious that a layperson would have

recognized the need for immediate treatment. Judge Ford noted that Plaintiff received medical

care on the day of his arrest and received pain medication from the jail doctor at the HSCDC.

Although it is undisputed that Plaintiff was diagnosed with a closed wrist fracture on the day of

his arrest, he was discharged with instructions to schedule an orthopedics appointment. Judge

Ford noted that neither Plaintiff’s medical records, nor his medical request, indicated that he

needed immediate surgery on his wrist.

As stated above, Plaintiff bears the burden of setting forth evidence demonstrating specific

facts creating a genuine issue for trial. Without any evidence that his injury was so serious that a

layperson would recognize the need for immediate medical treatment, Plaintiff is not excused from

his obligation to place verifying medical evidence in the record showing the objective seriousness

of delay in treatment. Plaintiff did not point to any verifying medical evidence, and the Court

agrees with Judge Ford that, at most, the undisputed facts in this case constitute negligence, which

is not actionable under section 1983. Popoalii, 512 F.3d at 499. Accordingly, the Court finds that

Plaintiff’s deliberate indifference claim fails as a matter of law and summary judgment should be

granted on the claim.

III. CONCLUSION

Upon de novo review of the Report and Recommendation and for the reasons discussed

above, the Court finds that Plaintiff’s objections offer neither error of law nor fact which would

cause the Court to deviate from Judge Ford’s Report and Recommendation. Thus, the Court

hereby overrules Plaintiff’s objections and adopts the Report and Recommendation (ECF No. 42)

in toto. Defendant’s motion for summary judgment (ECF No. 30) is hereby GRANTED. This

case is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED, this 31st day of January, 2020.

/s/ Susan O. Hickey

Susan O. Hickey

Chief United States District Judge