Smith v. Holder

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

CHRISTOPHER GERALD SMITH, )

)

Plaintiff(s), )

)

vs. ) Case No. 1:17-cv-00117 SRC

)

BOB HOLDER, et al., )

)

Defendant(s). )

MEMORANDUM AND ORDER

This matter comes before the Court on Defendants Ashley Grisham and Dr. Charles

Pewitt’s Motion for Summary Judgment [126] and Defendants Bob Holder, Nicole Green,

Jimmie Smith, and Dunklin County’s Motion for Summary Judgment [129]. The Court grants

the motions. The Court dismisses all claims, with prejudice.

I. BACKGROUND

On July 24, 2017, Plaintiff Christopher Gerald Smith filed a complaint in this Court

under 42 U.S.C. § 1983 alleging Defendants Bob Holder, Nicole Green, Ashley Grisham, Dr.

Pewitt, and the Dunklin County Justice Center violated his constitutional rights under the 1st,

8th, and 14th Amendments of the U.S. Constitution and his rights under the Americans with

Disabilities Act (“ADA”) and Rehabilitation Act (“RA”). The Court appointed pro bono counsel

for Smith on December 4, 2017. Smith also filed two other complaints in this district against the

same defendants, along with Jimmie Smith, with similar legal and factual issues. See Smith v.

Green, No. 1:17CV00144 JMB; Smith v. Green, 1:17CV00154 CAS. The Court consolidated the

three cases.

The Court liberally construes Smith’s complaints to include the following claims:

(1) Holder, Dr. Pewitt, Grisham and Green denied Smith a specific type of insulin

to treat his diabetes;

(2) Holder, Grisham, and Green retaliated against Smith for filing a grievance by

placing him on medical watch and telling jail staff not to answer the emergency call

button if Smith pressed it;

(3) Holder and Dunklin County failed to place emergency call buttons in individual

cells;

(4) Holder and Dunklin County failed to create sick-call procedures;

(5) Grisham and Green placed a wooden board over the window of his cell to

prevent him communicating with jail staff and other inmates;

(6) Grisham, Green, and Holder tampered, or allowed other inmates to tamper, with

Smith’s food;

(7) Holder, Dr. Pewitt, Grisham, and Green denied Smith medical treatment for his

infected finger;

(8) Grisham, Green, and Holder refused to provide Smith with a proper diabetic

diet;

(9) Holder and Dunklin County instructed jail staff to refuse to respond to call

buttons;

(10) medical malpractice, medical negligence, and breach of duty against Green;

(11) intentional infliction of emotional distress against Green;

(12) Holder, Green, Jailer Smith, and Dunklin County retaliated against Smith by

turning off water to handicapped showers;

(13) Holder, Green, and Jailer Smith placed him in administrative segregation

without due process of law;

(14) Holder, Green, Smith, and Dunklin County violated the Americans with

Disabilities Act and the Rehabilitation Act by refusing to turn the water on in

handicapped showers;

(15) Holder, Grisham, Green, Dr. Pewitt, and Jailer Smith retaliated against Smith

for filing grievances by refusing to move Smith back to general population.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally

construed, . . . and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers.”). Smith brings each of these claims against

each defendant in his/her individual and official capacities.

A. Undisputed Material Facts

1. Medical Care

The Dunklin County Adult Detention Center (“the Jail”) booked Smith in on June 27,

2017. The Jail housed Smith for the U.S. Marshals Service (“USMS”). Smith was released from

the Jail and transferred into the custody of the USMS on August 13, 2018. The USMS sets

requirements and procedures that the Jail must follow with regards to inmates that the Jail is

housing for the USMS. Unless there is a medical emergency, the USMS requires the Jail to

obtain approval from it before the Jail can transport an inmate to an outside medical provider for

medical treatment. Sheriff Holder is responsible for the general operation of the Jail and Jail

Administrator Green is responsible for managing the day-to-day operations and administration of

the Jail and its records. Jailer Smith was the lead supervisor at the time Smith was in the Jail.

In 2007, Dunklin County entered into a contract with Advanced Correctional Healthcare,

Inc. (“Advanced”) for it to provide health care services to inmates at the Jail. Advanced has

provided health care services to the inmates at the Jail since the contract was entered in 2007.

Pursuant to the contract, Advance provides an on-site nurse to be at the Jail for 30 hours each

week and provides a physician at the Jail once a week. Nurse Grisham has been the primary on-

site nurse assigned to the Jail since 2013. Dr. Pewitt has been the primary physician assigned to

the Jail since 2012. Dr. Pewitt goes to the Jail every Tuesday night. Dunklin County does not pay

Dr. Pewitt or Nurse Grisham directly for their services.

Smith has had diabetes mellitus (Type I) since he was approximately 20 years old. Smith

has taken a variety of insulin types since the time of his diagnosis. At the time he was booked

into the Jail, Smith received 70/30 insulin twice a day.1 Nurse Grisham saw Smith on the day he

was booked into the Jail. She noted his blood sugar reading was “high” and notified Dr. Pewitt,

who saw Smith that same evening. Dr. Pewitt prescribed Smith 10 units of 70/30 insulin twice a

day. Smith began receiving the prescribed insulin on June 28, 2017. His insulin was adjusted on

the same date and he began receiving the adjusted dose of insulin that day. On June 29, Smith’s

insulin dose was again adjusted and he began receiving the adjusted dose in the morning on June

30. On this same date, Smith’s insulin dose was again adjusted and he began receiving the

adjusted dose in the evening of that date. Dr. Pewitt ordered Smith’s blood sugar be checked

every two hours and to remain near the nurse until further notice. He also ordered Smith to have

no snacks and receive a diabetic meal tray. The medical records contain a glucose log and

medication administration record which indicate that Smith’s glucose level was checked multiple

times per day and he was administered medication.

On July 3, Smith’s insulin dose was again adjusted and he began receiving the adjusted

dose on July 4. On July 6, Smith completed a Sick Call Request form about his right hand.

Nurse Grisham saw Smith on that date and the medical record indicates Smith hit a door with his

fist. Smith’s hand was almost three times its normal size and infected. Nurse Grisham believed

Smith should be sent to the emergency room for further evaluation of his hand. A Prisoner

Medical Request form was submitted to the USMS to request approval to transport Smith to an

outside medical provider for medical treatment for his hand. The USMS approved this request.

On July 10, Smith was transported to Twin Rivers Regional Medical Center for medical

1 At the time Defendants filed their motions for summary judgment, they did not attach an affidavit authenticating

the medical records submitted in support of their motions. An affidavit has since been submitted permitting the

Court to rely on the affidavits in analyzing the motions for summary judgment.

treatment of his hand. Twin Rivers diagnosed Smith with cellulitis in his right finger. Twin

Rivers prescribed 500 mg. of Amoxicillin twice a day for ten days.

Smith began receiving Amoxicillin at the Jail on July 11. The Jail dispensed Smith

Amoxicillin until July 17. On that date, a medical staff member at the Jail examined Smith’s

right hand again. The medical staff discontinued the Amoxicillin and instead, prescribed

Bactrim. Smith began receiving Bactrim on July 17. On July 19, a medical staff member at the

Jail examined Smith’s right hand again. The medical staff also adjusted his insulin. The medical

record for Smith’s medical examination on this date states “ok to move to gen. pop.” Smith

began receiving the adjusted dose of insulin on July 20.

On July 26, Smith’s medical records, under “Practitioner’s orders,” states, “Just take

away all Sweets None at all.” On July 27, the medical staff again adjusted Smith’s insulin. He

began receiving this dose on July 28. On August 8, medical staff examined Smith at the Jail.

Medical records state Smith’s diabetes is controlled while under observation and to “move back

to holding cell to keep under close monitoring of meds & diet.” On August 15, medical staff at

the Jail examined Smith and discontinued his prior insulin. They prescribed Smith 30 units of

Lantus insulin instead. The Jail dispensed Smith Lantus insulin starting August 16. On August

22, medical staff at the Jail examined Smith and adjusted his dose of Lantus insulin. He began

receiving this adjusted dose on August 23. The staff also ordered an “Orthopedic Consult.” The

Jail submitted a Prisoner Medical Request form to the USMS to request approval to transport

Smith for an orthopedic consult, which the USMS approved. An orthopedic doctor saw Smith.

On August 29, medical staff at the Jail adjusted Smith’s Lantus insulin and he began

receiving the adjusted dose on August 30. Smith began receiving another adjusted dose on

September 6. On September 12, medical staff at the Jail examined Smith. His medical records

state his blood sugar was poorly controlled and he did much better when taking the 70/30 insulin.

The medical staff discontinued the Lantus insulin and placed Smith back on the 70/30 insulin.

Smith began receiving the 70/30 insulin on September 12.

On September 15, Nurse Grisham ordered Smith be placed back in medical observation.

On September 26, medical staff at the Jail examined Smith and adjusted his insulin. He began

receiving this dose on September 27. This occurred again on October 3, and he began receiving

the adjusted dose on October 4. His medical records for this examination state “ok to return to

gen. pop.” On October 10, medical staff at the Jail examined Smith and adjusted his dose of

insulin which he began receiving on October 11. His medical records for this examination state

“he was in isolation & diet was monitored & he was doing fine – When he is returned to gen

population, he often eats whatever he wants & BS go high.”

On October 17, medical staff adjusted the dose of Smith’s insulin which he began

receiving on October 18. Smith refused his insulin on October 18 and 19. On October 24,

medical staff ordered an “Endocrinologist Consult” for Smith. The Jail submitted a Prisoner

Medical Request form to the USMS to request approval to transport Smith to an endocrinologist;

the USMS approved the request. On November 14, Smith saw Dr. Shaun Ross, an

endocrinologist. Dr. Ross changed Smith’s insulin to Novolog 15 units before meals and Lantus

50 units before bedtime. On November 15, the Jail began dispensing Novolog insulin to Smith

and on November 16, it began dispensing Lantus insulin to Smith.

On November 15, Smith’s blood sugar was high and he was taken to the emergency room

at Twin Rivers Regional Medical Center. Twin Rivers discharged him the same day. Nurse

Grisham ordered Smith moved back to the medical observation cell. On November 22, Nurse

Grisham received clarification from Dr. Ross’s office regarding Smith’s insulin and Smith began

receiving adjusted doses of Lantus and Novolog insulin on the same date. On December 5,

medical staff examined Smith and his medical records on this date state “ok to return to gen

pop.”

Since December 5, Smith has not returned to the medical observation cell. Smith believes

he has received adequate insulin and diabetic medical treatment at the Jail since Dr. Ross saw

him. The Jail has sick call procedures, as Smith agrees. Sheriff Holder was not responsible for

reviewing the sick call request forms submitted by inmates at the Jail and he did not review any

sick call request forms submitted by Smith.

2. Dr. Pewitt and Nurse Grisham

Ashley Grisham is a licensed practical nurse and Dr. Pewitt is a medical doctor licensed

to practice medicine. Both Nurse Grisham and Dr. Pewitt provide care to inmates through their

employment with Advanced.

Dr. Pewitt considers Type 1 and Type II diabetes a serious medical condition. Dr. Pewitt

believes Smith’s Type I diabetes was stable if Smith was put in a controlled environment where

his food intake and medications could be monitored. Dr. Pewitt also believes Smith’s blood

sugar was better controlled when Smith stayed in an isolation cell. Dr. Pewitt does not know how

many times he authorized Smith to be placed in medical observation. Staff at the Jail needed Dr.

Pewitt’s authorization to place an individual in the medical isolation cell.

Smith alerted Dr. Pewitt he had a history of liver disease yet Dr. Pewitt signed off on

Smith receiving two medications that included warnings not to be prescribed to patients with

severe liver disease. Dr. Pewitt testified he signs medical forms without looking at them. Dr.

Pewitt sent Smith to see Dr. Ross because of personal reasons; Smith was not compliant and

would not work with the Jail’s medical officials.

3. Food Service

Dunklin County contracts with Tiger Correctional Services (“TCS”) to provide onsite

meal preparation services and commissary items for inmates at the Jail. TCS provided these

services at the Jail when Smith was housed there. TCS provides all of the food, food trays, and

utensils that are used to prepare and serve meals at the Jail. TCS assigns two individuals to

prepare meals served to inmates. Dunklin County does not pay, compensate, or employ the two

individuals who prepare the meals. Four inmates assist the two TCS workers in preparing and

serving the meals. TCS has a nutritionist that determines the menu for each meal prepared and

served to inmates. TCS has a diabetic food menu that it serves to inmates with diabetes.

Plaintiff did not receive a diabetic meal the first one to two weeks after his arrival at the

Jail on June 27. Since then, he has continuously received a diabetic food tray. Smith alerted Jail

officials he required diabetic meals but was not receiving them. As a diabetic, Smith is limited

on what and how much he may eat. Smith does not have any knowledge or information that

anyone at the Jail specifically ordered or instructed anyone not to give Smith a diabetic food tray.

Smith does not have any knowledge that Sheriff Holder or Jail Administrator Green ever ordered

or instructed someone not to give Smith all of the food that should be on Smith’s diabetic food

tray.

4. Dunklin County Sheriff Office’s Correctional Officers’ Manual

Section 113(II)(6) of the Manual for Corrections Officers of the Dunklin County Sheriff’s

Office (“the Manual”) states “inmates cannot be denied medical or dental care.” Section

118(III)(9) states “medical and dental treatment is available when needed.” Section 117(II)(4)

states “inmates with proof of special dietary needs will be provided with those needs.”

5. Housing Pods and Jail Cells

The Jail has nine separate housing pods labeled alphabetically Pod A to Pod I. Each of

the nine housing pods have cells located adjacent to a large dayroom where inmates can perform

recreational activities. There are nine cells adjacent to the booking area at the jail, each with a

sink, toilet, and bed. There is one medical observation cell adjacent to the medical examination

room. Inside is a sink, toilet, and bed. The medical examination room has a shower.

Smith was housed in the medical observation cell, the booking cells, and the general

population cells in Pods H, I, and E. He was moved to the medical isolation cell and booking

cells on multiple occasions. Smith was held in medical isolation from July 28, 2017, until

September 2017. Smith has no information or knowledge that Sheriff Holder or Jail

Administrator Green ever instructed or ordered Smith to be placed in or transferred to the

medical observation cell.

Smith was denied recreation time on multiple occasions. He testified it is stressful being

in jail and being denied recreation time for multiple days at a time. Smith does not have any

information or knowledge that Sheriff Holder ever ordered or instructed anyone not to allow

Smith recreation time or access to recreation time while at the Jail.

6. Boarded Window

Smith has no idea who placed the board in the window of the medical observation cell.

When some officers removed the board covering the window, Jail supervisors would come by

and put the board back up. Smith has no information or knowledge that Sheriff older ever

ordered or instructed anyone to put a board in the window of the medical observation cell. Jail

Administrator Green did not place a wooden board over the window and never instructed or

ordered anyone to do so.

7. Call Buttons

A call button is an intercom that allows an individual to call the jailers working in the Jail

control room to speak with them. The Dunklin County Sheriff’s Office has a policy that all

jailers working in the control room of the Jail must answer a call button when it is pressed by an

inmate. The jailers must follow the policies of the Sheriff’s Office, including this policy to

answer a call button when it is pressed. Each of the nine booking cells has a call button, as does

the medical observation cell and the dayroom in each of the housing pods. Individual cells in

general population do not have call buttons.

When held in general population cells, Smith did not have access to a call button from

10:00 P.M. to 5:30 A.M. Smith’s cellmate had multiple seizures. Smith could not use a call

button for help while his roommate had a seizure until he gained access to the buttons at 5:30

A.M.

When Smith pressed the call buttons for aid, Jail officials failed to answer on multiple

occasions. Smith never heard Sheriff Holder, Jail Administrator Green, or Jailer Smith order

anyone not to answer the call buttons. Smith does not have any information or knowledge that

Sheriff Holder, Jail Administrator Green, or Jailer Smith instructed or ordered anyone not to

answer any call buttons.

8. Handicap Accessible Shower Stalls

Each of the nine housing pods has one handicap accessible shower. Each handicap

accessible shower stall has a steel bench to sit on and two steel grab bars on the walls. Inmates

may use the handicap accessible shower without specifically asking permission from a jailer.

Every shower in the housing pods, including the handicap accessible showers, should have a

shower curtain.

Smith never asked Sheriff Holder, Jail Administrator Green, or Jailer Smith for access to

the handicapped shower stalls. Smith fell in the shower one time resulting in a bump on his head.

He stated these injuries were “nothing significant.” He did not submit a sick call request for these

injuries.

Smith alleges he needs to use the handicap shower because he gets off balance sometimes

and has neuropathy in his feet and legs. Smith got dizzy while at the Jail many times; when it

occurred, he would inform the officer working and Nurse Grisham. Smith had access to a

handicap shower in the medical observation unit. He saw someone use the handicap shower stall

in H pod and it had a curtain and worked properly.

II. STANDARD

A court shall grant a motion for summary judgment only if the moving party shows

“there is no genuine dispute as to any material fact and that the movant is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

By definition, material facts “might affect the outcome of the suit under the governing law,” and

a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for

the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the non-

moving party has failed to “make a showing sufficient to establish the existence of an element

essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a

complete failure of proof concerning an essential element of the non-moving party’s case

necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.

The moving party bears the initial burden of proof in establishing “the non-existence of

any genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa

v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the moving party meets

this initial burden, the non-moving party must then set forth affirmative evidence and specific

facts demonstrating a genuine dispute on the specific issue. Anderson, 477 U.S. at 250. When the

burden shifts, the non-moving party may not rest on the allegations in its pleadings, but, by

affidavit and other evidence, must set forth specific facts showing a genuine dispute of material

fact exists. Fed. R. Civ. P. 56(c)(1); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465

(8th Cir. 2002). The non-moving party must demonstrate sufficient favorable evidence that could

enable a jury to return a verdict for it. Anderson, 477 U.S. at 249. “If the non-moving party fails

to produce such evidence, summary judgment is proper.” Olson v. Pennzoil Co., 943 F.2d 881,

883 (8th Cir. 1991).

In ruling on a motion for summary judgment, the Court may not “weigh the evidence in

the summary judgment record, decide credibility questions, or determine the truth of any factual

issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court

instead “perform[s] only a gatekeeper function of determining whether there is evidence in the

summary judgment record generating a genuine issue of material fact for trial on each essential

element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light

most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir.

2009).

III. DISCUSSION

As outlined in Section I, Smith asserts 15 different claims against the various defendants

in this matter that remain pending. These claims include allegations of inadequate medical care,

retaliation for filing grievances, failure to place emergency call buttons in cells, failure to provide

accommodations for Smith’s disability, and several state law claims. Defendants raise several

arguments in support of summary judgment, which the Court does not list due to the length of

the arguments.

A. Smith’s Status as Pretrial Detainee and Prisoner

From June 27, 2017, until March 12, 2018, when Smith pled guilty to a federal offense,

the USMS held Smith in the Jail as a pretrial detainee. After his plea of guilty on March 12,

2018, Smith was a convicted prisoner. Smith’s change in status from a pretrial detainee to a

prisoner does not affect the Court’s analysis of his claims. The Eighth Amendment imposes

duties on prison officials with regards to inmates. Christian v. Wagner, 623 F.3d 608, 612 (8th

Cir. 2010). But it does not apply to pretrial detainees; instead, the Due Process Clause of the

Fourteenth Amendment imposes similar duties on jailers of detainees. Id. at 613. “‘[U]nder the

Fourteenth Amendment, pretrial detainees are entitled to ‘at least as great protection’ as that

afforded convicted prisoners under the Eighth Amendment.’” Crow v. Montgomery, 403 F.3d

598, 601 (8th Cir. 2005) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).

Therefore, the Court’s analysis regarding the constitutional duties imposed by the Eighth

Amendment equally applies to Smith’s time as a pretrial detainee under the Fourteenth

Amendment.

B. Municipal Liability Claims

Section 1983 of Title 42 allows individuals to bring causes of action for violations of the

U.S. Constitution. The section states:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress . . .

42 U.S.C. § 1983. A municipality can be sued under § 1983 for an officer’s misconduct where

the misconduct is alleged to have implemented or executed a policy, ordinance, regulation,

decision, or custom of the municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690

(1978). A municipality cannot be held liable under § 1983 on a respondeat superior theory. Id.

at 691. When a plaintiff sues an officer in his/her official capacity, it “generally represent[s]

only another way of pleading an action against an entity of which an officer is an agent.”

Kentucky v. Graham, 473 U.S. 159, 165 (1985). “[A]n official-capacity suit is, in all respects

other than name, to be treated as a suit against the entity.” Id. at 166. The Court analyzes

Smith’s claims against individual defendants in their official capacities as claims against Dunklin

County.

C. Inadequate Medical Care – Diabetes

Smith asserts several claims against Sheriff Holder, Nurse Grisham, Dr. Pewitt, Jail

Administrator Green, and Dunklin County alleging he received inadequate medical care for his

diabetes in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution.

Specifically, Smith alleges Sheriff Holder, Dr. Pewitt, Nurse Grisham, and Jail Administrator

Green denied Smith adequate medical care by providing him with generic insulin rather than

Humalog or Lantus insulin, and he alleges they failed to provide him with a proper diabetic diet

at times.

The Eighth Amendment requires prison officials to provide inmates with medical care.

Laughlin v. Schriro, 430 F.3d 927, 928 (8th Cir. 2005). “[D]eliberate indifference to serious

medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed

by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal citations and

quotations omitted). Claims of medical malpractice or negligence in diagnosing or treating a

medical condition do not state a valid claim for inadequate medical treatment in violation of the

Eighth Amendment. Id. at 106. To establish a claim, a prisoner must show he “suffered

objectively serious medical needs” and that the defendants “actually knew of but deliberately

disregarded those needs.” Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). “[P]rison

guards who intentionally deny or delay access to medical care or intentionally interfere with

prescribed treatment or [] prison doctors who fail to respond to a prisoner’s serious medical

needs” demonstrate deliberate indifference. Id. “Deliberate indifference is akin to criminal

recklessness.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008). “Jailers bear

only the responsibility to identify medical needs that are so obvious that even a layperson would

easily recognize the necessity for a doctor’s attention.” Jenkins v. Cty. of Hennepin, 557 F.3d

628, 633 (8th Cir. 2009) (internal quotations omitted).

“Prisoners do not have a constitutional right to a particular type of treatment.” Long v.

Nix, 86 F.3d 761, 765 (8th Cir. 1996). “Nothing in the Eighth Amendment prevents prison

doctors from exercising their independent medical judgment.” Id. “[T]he prisoner must show

more than negligence, more even than gross negligence, and mere disagreement with treatment

decisions does not rise to the level of a constitutional violation.” Popoalii, 512 F.3d at 499.

The undisputed evidence in this case establishes that Smith did not receive inadequate

medical care for his diabetes. Over the course of approximately five months, Nurse Grisham,

examined Smith, Dr. Pewitt examined Smith, and he was taken to an endocrinologist, Dr. Ross,

outside the jail for examination, as well as a hospital, twice. Medical professionals adjusted his

insulin approximately 17 times, after each adjustment, the Jail provided the adjusted dose of

insulin with 24 hours. No defendant was deliberately indifferent to Smith’s serious medical

needs as to his diabetes.

Although Smith complains he did not receive the specific type of insulin he requested,

this does establish a constitutional violation because a prisoner has no right to a particular and

requested course of treatment. Dulany, 132 F.3d at 1239; see also Long, 86 F.3d at 765

(“Prisoners do not have a constitutional right to any particular type of treatment.”). The record

establishes that Dr. Pewitt, Nurse Grisham, and Dr. Ross changed the type of insulin Smith

received based on the effectiveness of the insulin on lowering Smith’s blood sugar. At various

times, the medical professionals prescribed Smith 70/30, Lantus, and Novolog insulin. Smith

cites no facts indicating any defendant was deliberately indifferent to his diabetes or that he was

refused medical treatment for his diabetes. He simply disagrees with the course of treatment

provided to him, but that does not create a sufficient basis for an Eighth Amendment violation.

See Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985) (finding that a disagreement with

medical treatment does not constitute a constitutional violation); see also Kayser v. Caspari, 16

F.3d 280, 281 (8th Cir. 1994) (same).

Smith also asserts Defendants were deliberately indifferent to his serious medical need by

denying him diabetic meal trays. The undisputed facts show that Smith did not receive diabetic

meal trays for the first one to two weeks after he arrived at the Jail. Since then, he has

continuously received a diabetic meal tray. When an inmate alleges a delay in medical

treatment, “the objective seriousness of the deprivation should [] be measured by reference to the

effect of delay in treatment.” Laughlin, 430 F.3d at 929 (internal quotations omitted). “To

establish this effect, the inmate must place verifying medical evidence in the record to establish

the detrimental effect of delay in medical treatment.” Id. Smith has not placed any evidence in

the record establishing that his delay in receiving diabetic meal trays had a detrimental effect on

him. Additionally, while he did not receive a diabetic meal tray upon entering the Jail, he was

immediately seen by Dr. Pewitt on June 27th and prescribed insulin to treat his diabetes.

Viewing the facts and all reasonable inferences in a light most favorable to Smith, the

Court concludes no defendant violated Smith’s constitutional rights because they were not

deliberately indifferent to his serious medical needs for his diabetes. The Court grants summary

judgment in favor of Defendants on these claims and dismisses them.

D. Inadequate Medical Care – Right Hand

Smith also asserts a claim for inadequate medical care in violation of the Eighth and

Fourteenth Amendments for an injury he endured to his right hand and an alleged failure by Jail

officials to create sick call procedures. The undisputed facts show that on July 6th, Smith

completed a Sick Call Request Form and he was seen by Nurse Grisham on that date. Smith hit

a door with his fist. Nurse Grisham believed he should be sent to the emergency room and a

request form for transport was submitted to and approved by the USMS. On July 10th, Smith

was transported to the Twin Rivers Regional Medical Center where a doctor diagnosed him with

cellulitis in his right finger. The doctor prescribed Amoxicillin to be taken twice a day for ten

days. Smith received Amoxicillin on July 11th to July 17th. Medical staff at the Jail reexamined

his hand at that time and prescribed him Bactrim, which he began receiving on July 17th. On

July 19th, medical staff again examined his hand. On August 23rd, medical staff ordered an

orthopedic consult which was approved by the USMS. An orthopedic doctor saw Smith for his

hand. Smith also admitted that the Jail had sick call procedures. Viewing the facts and all

reasonable inferences in a light most favorable to Smith, the Court concludes no defendant

violated Smith’s constitutional rights because they were not deliberately indifferent to his serious

medical needs for his hand and the Jail had created sick call procedures. The Court grants

summary judgment in favor of Defendants on these claims and dismisses them.

E. Retaliation

Smith asserts Sheriff Holder, Nurse Grisham, Jail Administrator Green, Jailer Smith, and

Dunklin County retaliated against him in violation of the First Amendment for filing grievances

regarding his alleged inadequate medical care by transferring him to a medical observation cell,

not answering call buttons when pressed by Smith, placing a wooden board over the window of

his cell, placing him on lockdown all day, refusing him recreation time, turning off water to the

showers, and tampering with his food.

To establish a retaliation claim, Smith must show “(1) he engaged in a protected activity,

(2) the government official took adverse action against him that would chill a person of ordinary

firmness from continuing in the activity, and (3) the adverse action was motivated at least in part

by the exercise of the protected activity.” Revels v. Vincenz, 382 F.3d 870, 876 (8th Cir. 2004).

“The right to be free from retaliation for availing one’s self of the prison grievance process has

been clearly established in this circuit for more than twenty years.” Santiago v. Blair, 707 F.3d

984, 991 (8th Cir. 2013).

The record contains no evidence that any defendant retaliated against Smith. He has

provided no evidence to establish that a defendant ever placed Smith on lockdown or tampered

with his food. While there is evidence Smith missed some recreation time, call buttons were not

answered, and a board was placed over the window of his cell, Smith presents no evidence these

defendants ever ordered anyone to deny Smith his recreation time, not answer call buttons, or

place a board over the window of his cell, much less that these defendants ordered these actions

in retaliation for Smith using the prison grievance process.

The record makes clear that Dr. Pewitt and Nurse Grisham moved Smith to the medical

observation cell multiple times because of issues Smith had in controlling his diabetes, not in

retaliation for Smith filing prison grievances.2 Because Smith’s blood sugar would increase

when in general population, Dr. Pewitt ordered Smith, after the recommendation of Nurse

Grisham, be placed in the medical observation cell. When Smith’s blood sugar was under

control, Smith was moved back to general population. In a retaliatory transfer claim, an inmate

must show the transfer would not have occurred but for an unconstitutional, retaliatory motive,

and Smith has not done so here. Sisneros v. Nix, 95 F.3d 749, 752 (8th Cir. 1996).

Viewing the facts and all reasonable inferences in a light most favorable to Smith, the

Court concludes no defendant violated Smith’s constitutional rights because he has not

established any defendant acted in retaliation against him for using the prison grievance process.

The Court grants summary judgment in favor of Defendants on these claims and dismisses them.

F. Failure to Provide Call Buttons

Smith asserts the Jail’s failure to provide call buttons in each individual cell violates his

Eighth Amendment rights because it creates an unsafe environment. Smith brings this claim

against Sheriff Holder and Dunklin County.

The conditions under which an institution confines a prisoner are subject to scrutiny

under the Eighth Amendment. Brown v. Nix, 33 F.3d 951, 954 (8th Cir. 1994). However,

“[r]outine discomfort is part of the penalty that criminal offenders pay for their offenses against

society. . .” Hudson v. McMillian, 503 U.S. 1, 9, (1992). Thus, a prison official violates the

Eighth Amendment only when two requirements are met: “(1) the deprivation alleged is

sufficiently serious – the prison official’s act or omission results in the denial of the minimal

2 In his complaint, Smith alleges he was placed in administrative segregation. No facts support this allegation.

Smith was placed in the medical observation cell.

civilized measure of life’s necessities; and (2) the prison official acts with deliberate indifference

– he knows of and disregards an excessive risk to inmate health and safety.” Brown, 33 F.3d at

955 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)).

For pretrial detainees, the Court asks whether the conditions of confinement “amount to

punishment of the detainee.” Smith v. Copeland, 87 F.3d 265, 268 (8th Cir. 1996) (citing Bell v.

Wolfish, 411 U.S. 520 (1979)). Under the Due Process Clause of the Fourteenth Amendment, a

detainee may not be punished prior to an adjudication of guilt. Id. A particular condition of

confinement does not amount to punishment if it reasonably relates to a legitimate governmental

objective. Id.

Smith has not established that a failure to provide call buttons in every cell is an

unconstitutional condition of confinement. Courts that have addressed the absence of call

buttons in cells have uniformly found that it does not constitute a violation of the Eighth or

Fourteenth Amendments. See Parsons v. Wilkinson, 490 F.3d 490 (6th Cir. 1998) (unpublished

table decision) (finding the plaintiff failed to demonstrate that the absence of an emergency call

button in his cell subjected him to a serious deprivation of life’s necessities); Garner v. City of

Philadelphia, No. 11-cv-5960, 2013 WL 4401327 at *6 (E.D. Pa. Aug. 16, 2013) (finding that

although panic buttons may offer inmates additional safety and protection, the court could not

find that panic buttons constitute a minimal civilized measure of life’s necessities); Torres v.

Wright, No. 3:17-cv-01919 JAM, 2018 WL 1175408 at *4 (D. Conn. Mar. 6, 2018) (finding that

prisoners do not have an Eighth Amendment right to a cell equipped with an emergency call

button); Price v. Bailey, No. 1:09-cv-12, 2009 WL 198962 at *3 (E.D. Mich. Jan. 26, 2009)

(finding that a failure to provide an emergency call button does not constitute deliberate

indifference). The Jail’s failure to provide call buttons in each individual cell does not create an

unconstitutional condition of confinement and does not violate Smith’s rights under the Eighth

and Fourteenth Amendments. Viewing the facts and all reasonable inferences in a light most

favorable to Smith, the Court concludes no defendant violated Smith’s constitutional rights by

failing to provide call buttons in each individual cell. The Court grants summary judgment in

favor of Defendants on these claims and dismisses them.

G. Dunklin County’s Liability

Because Smith does not establish any constitutional violations by individual defendants,

the Court need not address the issue of Dunklin County’s liability pursuant to Monell v.

Department of Social Services, 436 U.S. 658 (1978). See Speer v. City of Wynne, 276 F.3d 980,

986 (8th Cir. 2002) (municipal liability cannot be sustained where there has been no violation of

the plaintiff’s constitutional rights).

H. ADA and RA

Smith asserts Defendants violated the ADA and RA by failing to provide handicap

accessible showers with shower curtains and failing to turn on the water in the handicap

accessible showers.

Title II of the ADA states: “no qualified individual shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs, or activities of

a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

Similarly, the RA states:

No otherwise qualified individual with a disability in the United States, as defined

in section 705(20) of this title, shall, solely by reason of her or his disability, be

excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance

or under any program or activity conducted by any Executive agency or by the

United States Postal Service.

29 U.S.C. § 794(a).

With the exception of the RA’s federal funding requirement, the ADA and RA are similar

in substance and cases interpreting either are applicable and interchangeable. Gorman v. Bartch,

152 F.3d 907, 912 (8th Cir. 1998). This includes cases interpreting the definition of “disability”

under the ADA and “handicap” under the RA, two substantially similar definitions. Wooten v.

Farmland Foods, 58 F.3d 382, 385 n.2 (8th Cir. 1995). To state a claim under the ADA, a

plaintiff must show “(1) he is a person with a disability as defined by statute; (2) he is otherwise

qualified for the benefit in question; and (3) he was excluded from the benefit due to

discrimination based upon disability.” Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).

“The RA contains the additional requirement that the plaintiff show the program or activity from

which he is excluded receives federal financial assistance.” Id. “‘Recreational activities,

medical services, and educational and vocational programs’ at state prisons are benefits within

the meaning of Title II.” Mason v. Corr. Med. Servs., Inc., 559 F.3d 880, 886 (8th Cir. 2009)

(quoting Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998)).

The ADA defines “public entity” as “(A) any State or local government; (B) any

department, agency, special purpose district, or other instrumentality of a State or States or local

government; and (C) the National Railroad Passenger Corporation, and any commuter

authority.” 42 U.S.C. § 12131(1). State prisons, are within the statutory definition of “public

entity.” Gorman, 152 F.3d at 912. This term does not include individuals. Alsbrook v. City of

Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999); see also K.L. v. Mo. State. High Sch.

Activities Ass’n, 178 F. Supp. 3d 792, 808 (E.D. Mo. 2016) (finding that individuals cannot be

construed as a public entity under the ADA definition). Thus, the Court must grant summary

judgment on the claims against Sheriff Holder, Jail Administrator, and Jailer Smith in their

individual capacities because they do not qualify as “public entit[ies].”

Dunklin County argues Smith does not have a disability and he cannot show Dunklin

County excluded him from a benefit due to discrimination based upon his disability. Whether

diabetes qualifies as a disability under the ADA and RA is a question of fact based on the

severity of the individual’s diabetes. Courts across the country have found diabetes is a

disability in some cases, and have found it is not in others. See Griffin v. United Parcel Serv.,

Inc., 661 F.3d 216, 223 (5th Cir. 2011) (finding that the analysis of when and under what

conditions diabetes is considered a disability is a matter of degree); Carreras v. Sajo, Garcia &

Partners, 596 F.3d 25, 33-35 (1st Cir. 2010) (finding that the existence of a disability is fact-

intensive and individualized and in this case, the plaintiff’s diabetes did not qualify as a disability

because it did not substantially limit a major life activity); Lawson v. CSX Transp., Inc., 245 F.3d

916, 923-26 (7th Cir. 2001) (finding the plaintiff’s insulin-dependent diabetes qualified as a

disability); Fraser v. Goodale, 342 F.3d 1032, 1038-39 (9th Cir. 2003) (finding that diabetes is a

“physical impairment” under the ADA but deciding that whether diabetes qualified as a

disability was a question of fact); Montalvo v. Lamy, 139 F. Supp. 3d 597, 611 (W.D. N.Y. 2015)

(“numerous courts have held that diabetes . . . is not necessarily a disability under the ADA.”).

Here, the Court does not need to decide if Smith’s diabetes qualifies as a disability,

because even if he is disabled, he fails to establish Dunklin County excluded him from a benefit

due to discrimination based upon his disability. The record contains no facts, either disputed or

undisputed, showing that Smith told Dunklin County he needed to use a handicapped shower.

To establish an ADA claim, Smith must show that he requested an accommodation and Dunklin

County refused to provide it. Lue v. Moore, 43 F.3d 1203, 1206 (8th Cir. 1994). Unlike in

Kutrip v. City of St. Louis,3 a case cited by Smith, and other cases finding that a plaintiff does not

3 329 Fed. Appx. 683, 684-85 (8th Cir. 2009).

need to request an accommodation where the plaintiff’s disability and need for accommodation

is obvious,4 here it is not obvious that Smith’s diabetes caused him to need to use a handicap

accessible shower. The undisputed facts show that Smith never informed Dunklin County

through Sheriff Holder, Jail Administrator, or Jailer Smith that he needed an accommodation, or

that he did not have access to the handicap accessible showers that were available in the housing

units. Viewing the facts and all reasonable inferences in a light most favorable to Smith, the

Court concludes Dunklin County did not violate Smith’s rights under the ADA or RA because he

has not shown Dunklin County was aware he needed an accommodation or that he did not have

access to the handicap accessible showers already available. The Court grants summary

judgment in favor of Dunklin County on these claims and dismisses them.

I. State Law Claims

Smith asserts state law claims of medical malpractice, medical negligence, and breach of

duty against Jail Administrator Green, and intentional infliction of emotional distress against

Sheriff Holder and Jail Administrator Green. The record contains no facts to support any of

these claims. First, to state a claim for intentional infliction of emotional distress, Smith must

show that Sheriff Holder and Jail Administrator Green committed extreme and outrageous

conduct that intentionally or recklessly caused Smith emotional distress that resulted in bodily

harm, and he has not done so. Gibson v. Brewer, 952 S.W.2d 239, 249 (Mo. 1997).

Second, to establish a claim for medical malpractice, or medical negligence,5 in Missouri,

Smith must show that Jail Administrator Green is a “health care provider [that] failed to use [the]

4 See Robertson v. Las Animas Cty Sheriff’s Dep’t, 500 F.3d 1185, 1197 (10th Cir. 2007) (collecting cases for

proposition that entity will know of handicapped individuals need for accommodation under ADA when need is

obvious).

5 A claim for “medical negligence” is also referred to as “medical malpractice.” Brown v. Bailey, 210 S.W.3d 397,

404 (Mo. Ct. App. 2006).

degree of skill and learning ordinarily used under the same or similar circumstances by members

of the defendant’s profession and that such failure directly caused or contributed to cause

[Smith’s] injury.” Mo. Rev. Stat. § 538.210.1. Smith does not show that Jail Administrator

Green provided him any healthcare, or that she acted in a manner to directly cause or contribute

to cause an injury to Smith. Finally, Smith’s claim for breach of duty against Jail Administrator

Green cannot stand because he did not establish what duty Jail Administrator Green owed him,

nor did he provide any facts in support of a breach of duty by Jail Administrator Green. Because

Smith provided no facts to support his claims, the Court dismisses Smith’s state law claims

against all defendants.

Accordingly,

IT IS HEREBY ORDERED that Defendants Ashley Grisham and Dr. Charles Pewitt’s

Motion for Summary Judgment [126] is GRANTED. The Court dismisses all claims against

Ashley Grisham and Dr. Charles Pewitt with prejudice.

IT IS FURTHER ORDERED that Defendants Bob Holder, Nicole Green, Jimmie

Smith, and Dunklin County’s Motion for Summary Judgment [129] is GRANTED. The Court

dismisses all claims against Bob Holder, Nicole Green, Jimmie Smith, and Dunklin County with

prejudice.

So Ordered this 2nd day of January, 2020. ee / eC. C CS

STEPHEN R. CLARK

UNITED STATES DISTRICT JUDGE

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