Johnson v. Douglas County Medical Department

United States Court of Appeals

For the Eighth Circuit

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No. 13-1134

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David L. Johnson, Jr.

lllllllllllllllllllll Plaintiff - Appellant

v.

Douglas County Medical Department; Douglas County Correctional Medical Department

lllllllllllllllllllll Defendants

County of Douglas, Nebraska, a political subdivision of the State of Nebraska

lllllllllllllllllllll Defendant - Appellee

John Doe, Nos. I-IV; John Doe, I; John Doe, II; John Doe, III; John Doe, IV;

Cesar Inda, both individually and officially as a corrections officer of the Douglas

County Correctional Center; Don Coniglio, both individually and officially as a

corrections officer of the Douglas County Correctional Center; Susan M.

Wilkinson, both individually and officially as an agent of the County of Douglas,

Nebraska; Lieutenant Banks, both individually and officially as a corrections

officer of the Douglas County Correctoinal Center; Correct Care Solutions, a

Kansas limited liability company

lllllllllllllllllllll Defendants

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Appeal from United States District Court

for the District of Nebraska - Omaha

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Submitted: June 12, 2013

Filed: August 2, 2013

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Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.

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GRUENDER, Circuit Judge.

David Johnson seeks to impose municipal liability through 42 U.S.C. § 1983

on the County of Douglas, Nebraska (“the County”) after a jail operated by the

County failed to provide him with necessary medication while he was incarcerated.

The district court1 ruled that Johnson failed to present evidence of a custom of

unconstitutional deprivations at the jail and granted summary judgment to the County.

For the reasons discussed below, we affirm.

I. Background

We recite the facts in the light most favorable to Johnson. See, e.g., Doe ex

rel. Thomas v. Tsai, 648 F.3d 584, 585 (8th Cir. 2011). Johnson was arrested in the

morning hours of January 27, 2009 and held in the County jail pending an appearance

in federal district court on January 28. The arresting officers received a vial of

medicine for Johnson, labeled with the name “Dilantin” and dosage instructions, from

Johnson’s mother and delivered it to the jail. As part of the jail intake procedure,

agents of the County verified that Johnson required the medication twice per day, as

stated on the instructions, for a seizure disorder. Johnson had been taking the

medicine on schedule prior to his arrest, and his last dose prior to his arrest was on

the morning of January 27.

1

The Honorable Thomas D. Thalken, United States Magistrate Judge for the

District of Nebraska, presiding by consent of the parties pursuant to 28 U.S.C.

§ 636(c).

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Over the course of several hours on the morning of January 28, Johnson

repeatedly requested the anti-seizure medicine from at least three different groups of

County guards, all of whom refused to provide the medicine. First, Johnson was

awakened before sunrise and placed in a unit with two other inmates who were to be

transported to the federal courthouse that day. Johnson made three requests for the

medication to a night-shift guard in that unit. The guard refused to take action and

threatened to place Johnson in lockdown upon his return from the courthouse if he

continued to ask for the medicine. Second, another County guard escorted Johnson

to a holding cell in the administrative area to await transport to the courthouse.

Johnson requested his medicine from the escorting guard, who responded that “pill

call” was at 9:00 a.m. and that Johnson would receive his medicine when he returned

from the courthouse. Third, Johnson requested his medicine several times from

County guards in the administrative holding cell area. Although several guards were

present because the shift was changing from night to day, none responded to

Johnson’s requests for his medicine.

At approximately 8:30 a.m., United States Marshals collected Johnson and

delivered him to the federal courthouse. In a holding cell at the courthouse, Johnson

suffered a grand mal seizure. He was transported to Creighton University Medical

Center in Omaha, Nebraska, where the staff determined that the seizure occurred

because the level of Dilantin in Johnson’s blood was too low.

Johnson filed this suit against three individual corrections officers, the County,

and the medical services provider for the County jail and its director, alleging

violations of his civil rights based on the denial of medication. He later dismissed the

medical services provider and its director. In May 2012, the district court granted

summary judgment to the three individual corrections officers, ruling that

uncontroverted evidence demonstrated that none of the three had any contact with,

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or had any responsibility for, Johnson on the morning of January 28, 2009.2 Finally,

in December 2012, the district court granted summary judgment to the sole remaining

defendant, the County, on the basis that Johnson failed to present evidence of “a

continuing, widespread, persistent patten” of unconstitutional conduct at the County

jail. Johnson appeals the grant of summary judgment to the County, arguing that the

separate denials of his requests for medication by at least three different guards on the

morning of January 28 establish such a pattern.

II. Discussion

We review a grant of summary judgment de novo, affirming if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Tsai, 648 F.3d at 587 (quoting Fed. R. Civ. P. 56(a)). “The

non-moving party receives the benefit of all reasonable inferences supported by the

evidence, but has ‘the obligation to come forward with specific facts showing that

there is a genuine issue for trial.’” Atkinson v. City of Mountain View, Mo., 709 F.3d

1201, 1207 (8th Cir. 2013) (quoting Dahl v. Rice Cnty., Minn., 621 F.3d 740, 743 (8th

Cir. 2010)).

“The purpose of § 1983 is to deter state actors from using the badge of their

authority to deprive individuals of their federally guaranteed rights and to provide

relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).

2

Johnson does not appeal the grant of summary judgment to the individual

corrections officers. Because that decision was based on a failure to identify

accurately the individuals who allegedly denied Johnson’s requests for medication,

rather than a determination that the alleged conduct of those individuals did not

amount to a constitutional deprivation, that decision does not foreclose Johnson’s

claim against the County. Cf. McCoy v. City of Monticello, 411 F.3d 920, 922 (8th

Cir. 2005) (“This circuit has consistently recognized a general rule that, in order for

municipal liability to attach, individual liability first must be found on an underlying

substantive claim.”).

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Johnson seeks to impose municipal liability on the County through § 1983 for the

allegedly unconstitutional actions of its agents in depriving him of his anti-seizure

medication. “[I]t is well established ‘that a municipality cannot be held liable on a

respondeat superior theory, that is, solely because it employs a tortfeasor.’”

Atkinson, 709 F.3d at 1214 (quoting Szabla v. City of Brooklyn Park, Minn., 486 F.3d

385, 389 (8th Cir. 2007)). However,

[l]ocal governing bodies . . . can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where . . . the action that is

alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers. Moreover, . . . local governments

. . . may be sued for constitutional deprivations visited pursuant to

governmental ‘custom’ even though such a custom has not received

formal approval through the body’s official decisionmaking channels.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).

The County’s official written policy is to provide comprehensive healthcare

services to the inmates. Johnson concedes the “lack of an official, written policy

promulgated by the County which would have been the cause of the constitutional

deprivation alleged by Mr. Johnson.” He contends instead that there is at least a

genuine issue of fact as to whether the County has a custom of ignoring that written

policy in allowing its jail personnel to deny medication to inmates. To establish a

claim for “custom” liability, Johnson 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

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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.

Thelma D. ex rel. Delores A. v. Bd. of Educ. of City of St. Louis, 934 F.2d 929, 932-33

(8th Cir. 1991) (quoting Jane Doe A v. Special Sch. Dist. of St. Louis, 901 F.2d 642,

646 (8th Cir. 1990)).

With respect to the first element, “a single deviation from a written, official

policy does not prove a conflicting custom.” Wedemeier v. City of Ballwin, Mo., 931

F.2d 24, 26 (8th Cir. 1991). Johnson presents no evidence that other inmates have

been denied medication at the County jail, but he contends that the multiple denials

of his medication by different guards constitute multiple deviations. He relies on

McGautha v. Jackson County, Missouri, Collections Department, 36 F.3d 53 (8th Cir.

1994), in which actions by different government employees towards a single plaintiff

over the course of about three years entitled the plaintiff to a jury instruction

regarding “custom” liability. See id. at 55.

Like the district court, we do not find McGautha controlling here. To be sure,

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. In the instant case, however, Johnson presents no

evidence to suggest that the County’s policymaking officials would have received

notice of the denial of his medication in the early morning hours of January 28 and

made a deliberate choice to ignore or tacitly authorize the denial, all in the course of

those few hours. Because Johnson fails to present evidence of “a continuing,

widespread, persistent pattern of unconstitutional misconduct by the governmental

entity’s employees,” Thelma D., 934 F.2d at 932-33 (quoting Jane Doe A, 901 F.2d

at 646), the grant of summary judgment to the County must be affirmed.

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III. Conclusion

For the foregoing reasons, we affirm the grant of summary judgment to the

County.

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