Scott Logan v. Sergeant Solice

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

SCOTT GREGORY LOGAN PLAINTIFF

v. Civil No. 3:22-cv-03023-TLB-MEF

3:22-cv-03045-TLB-MEF

SERGEANT MICHAEL SOLICE;

SERGEANT LEOPARD;

SERGEANT MONTROSS;

LIEUTENANT CALLAS; and

NURSE PRACTITIONER BRIANA NEWCOMB,

Turn Key Medical DEFENDANTS

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff, Scott G. Logan (“Logan”), filed these consolidated civil rights actions pursuant

to 42 U.S.C. § 1983. Logan proceeds in forma pauperis and pro se.

Currently before the Court is the Motion for Summary Judgment filed by Separate

Defendant Nurse Practitioner Briana Newcomb (ECF Nos. 38-40) and the Motion for Summary

Judgment filed by Separate Defendants Sergeants Solice, Leopard, and Montross and Lieutenant

Callas (hereinafter “the County Defendants”) (ECF Nos. 41-43). Logan filed a Response (ECF

No. 47) to which the County Defendants replied (ECF No. 49). The Motions are ready for

decision. Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy

L. Brooks, United States District Judge, referred this case to the undersigned for the purpose of

making this Report and Recommendation on these Motions.

I. PROCEDURAL HISTORY

On May 16, 2022, Logan filed the lead case, 3:22-cv-03023, against the County

Defendants. Logan’s claims against the County Defendants center on his being moved to a

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different housing unit where he was almost immediately involved in an altercation. Logan

suffered physical injuries that required a trip to the hospital. Additionally, Logan claims

appropriate procedures were not utilized in the disciplinary hearing process. (ECF No. 1, pp. 4-

7). The Complaint was served on the County Defendants, and they filed their Answer on July 7,

2022. (ECF No. 9). On July 8, 2022, an Initial Scheduling Order was entered. (ECF No. 12).

On July 26, 2022, Logan filed a Motion to Amend the Complaint. (ECF No. 13). Logan sought

leave to add “Mack” a staff nurse and Defendant Newcomb. Id. at 1. Logan stated he intended

to assert a denial of medical care claim. Id. He indicated that he desired to be taken to the

hospital. Id. at 2. Logan also asserted that another inmate was getting preferential treatment

outside the facility while all his requests were denied. Id. Leave to file an Amended Complaint

was granted on July 26, 2022. (ECF No. 14).

In his Amended Complaint (ECF No. 15), Logan added only Defendant Newcomb, who is

employed by Turn Key Medical. Logan alleged he was denied medical care following the March

30, 2022, altercation and following a slip and fall in the shower on August 3, 2022. This case was

opened on May 16, 2022. Since the August 2022 claims arose after the filing of the initial case,

and should have been filed as a separate case, the claims were severed. (ECF No. 16). This

resulted in the opening of Logan v. Newcomb, Case No. 3:22-cv-03045. Defendant Newcomb

later filed a Motion to Consolidate the cases. (3:22-cv-03045; ECF No. 13). The Motion was

granted. (3:22-cv-03045; ECF No. 15).

In the Amended Complaint, the only mention of the County Defendants is Logan’s

assertion that Defendants Solice and Callas were present during the “only face to face” contact he

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had Newcomb. (ECF No. 15 at 9-10). Logan asserts their presence violated HIPPA1 and the

Fourth Amendment. Id.

II. BACKGROUND

At all times relevant to this action, Logan was a pretrial detainee in the Carroll County

Detention Center (“CCDC”).2 (ECF No. 1 at 2). He had been at the CCDC since March 25,

2022. (ECF No. 43-1 at 24).3 In the Complaint, Logan alleges that in early April of 2022

Defendant Leopard and another officer woke him up and asked if he wanted to be moved to E-pod

or if he would have any problems with the inmates there. (ECF No. 1 at 4). Logan responded

that he was unaware of any problems. Id. at 5. Logan alleges that within 90 seconds of being

moved, he found himself in an altercation that left him with a cut above his left eye, a displaced

nose, and an injury to his neck and shoulder area. Id.

CCDC records indicate this altercation occurred on March 30, 2022. (ECF No. 43-1 at

27-28). Three inmates were involved in the altercation. Id. Logan was taken to the hospital.

(ECF No. 1 at 5).

Records from Mercy Hospital indicate stitches were used to close the laceration above his

eye. (ECF No. 43-3 at 1). Regarding his nose, the after-visit summary states as follows:

Your nose appears to be bruised but not newly broken. Your nose is crooked

secondary to old injuries. If you wish to have it checked and consider having it

straightened you should contact the ear nose and throat specialist listed, at your

earliest convenience. Straightening would most likely be an outpatient surgery

rather than an office procedure due to the age of the injury. Id.

1 The Health Insurance Portability and Accountability Act of 1996.

2 Logan has since been released from custody. (ECF No. 27).

3 All citations to the summary judgment record are to the CM/ECF document and page number

rather than the designation given to the documents by the parties.

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A specialist was listed on the form. Id.

It was suggested that Logan take ibuprofen or naproxen for pain and inflammation. (ECF

No. 43-3 at 1). His stitches were to be removed in five to seven days. Id. He was also advised

to put ice or a cold pack on his nose every one to two hours for the first three days, when he was

awake, or until the swelling went down, and to sleep with his head slightly raised. Id. at 3. The

final diagnoses were listed as facial laceration, contusion of nose, and strain of neck muscle. Id.

at 1. X-rays of Logan’s cervical spine were taken, but the results were not stated. Id. When he

returned to the facility, Logan was prescribed ibuprofen as needed, twice a day, for seven days.

(ECF No. 43-3 at 15).

Logan was placed on 23-hour lock-down. (ECF No. 1 at 5). As a result of the altercation,

Logan and one other inmate were charged with disciplinary violations. (ECF No. 43-1 at 28). A

written notice of disciplinary form indicates Logan was informed at 20:38 on March 30, 2022, that

he was being charged with battery/fighting, horseplay or activity that causes any accidental injury,

and conduct that interferes with jail operations. Id. at 29. In the area for the inmate’s signature,

it was noted: “Detainee Refused/c-38.” Id. On April 2, 2022, an appeal was heard by Corporal

Montrose.4 Id. at 30. Logan appealed on the grounds that the disciplinary hearing was not held

in a timely manner. Id. At the bottom of the first page of the form, the words “appeal to

sergeant” are written and a check mark placed indicating “approved” followed by an illegible

signature dated April 5, 2022. Id. at 30. The form next indicates it was appealed to a staff

sergeant, it is signed by Defendant Solice the same day, and he approved the decision. Id.

4 The results of the disciplinary hearing are indicated as being 15 days of lock-down and 15 days

loss of privileges; however, the County Defendants have not submitted any documentation

indicating when the initial disciplinary hearing was held and who was present.

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According to Logan, he was informed he had the option of “gathering” three witnesses who

could validate his version of the events. (ECF No. 1 at 6). Logan says the two officers did not

return until 36 hours later. Id. Logan objected because the 24-hour time had expired. Id. He

was “forced” to enter a plea. Id. He was not given an opportunity to present witnesses. Id.

Logan says he was never allowed to “make a written appeal.” Id. His next hearing was

“orchestrated” by Defendant Leopard. Id. Logan again objected due to the procedural

irregularities but was “forced” to enter a plea. Id. Logan was taken back to his cell for about 10

to 15 minutes and then given his third hearing by Defendant Solace. Id. Logan was quickly

sentenced to 15 days with seven days credited. Id.

The following morning two officers removed Logan’s mat from his cell between the hours

of 8:00 a.m. and 10 p.m. (ECF No. 1 at 6). This practice continued for seven days. Id. Logan

objected to this considering his neck and shoulder injuries and “broken nose.” Id. at 7. In fact,

Logan indicated the doctor recommended he see a specialist regarding his nose. Id. Logan

complained that he was in severe pain. Id.

On April 10, 2022, Logan submitted a grievance to the attention of the county sheriff

stating that the disciplinary procedures in the handbook were not followed. (ECF No. 43-1 at 32).

He asked that the infractions be reviewed, and he be released from lock-down. Id. In response,

he was told the sheriff was not involved in the grievance process. Id. The chain of command for

appeals from grievances was listed as Staff Sergeant, Jail Commander, Jail Administrator, and

Chief Deputy. Id. On May 5, 2022, Logan submitted a grievance to the attention of Captain

Ingles. Id. at 33. The response was that the grievance did not comply with the proper protocol.

Id. He appealed saying CCDC officials had been wrong throughout his disciplinary process. Id.

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In response, Logan was advised he had filed a grievance on the same issue on April 10, 2022, and

did not appeal the answer. Id. Additionally, it was pointed out that the grievance was filed

“outside the eight hours allowed on filing a grievance.” Id. Logan appealed a second time. Id.

at 34. Logan stated he had appealed the lock-down sentence and been forced to make a plea.

Additionally, he stated that they had taken his mat despite his documented injuries. Id. In

response, he was told an extensive review had been conducted and “proper actions were taken with

the Turnkey policies and detention center policies, and [his] previous lockdown.” Id.

Logan’s grievance continued onto another form and was given a separate grievance

number. (ECF No. 43-1 at 35). He was initially told his grievance did not conform with

protocol. Id. Defendant Callas responded to the first appeal and stated that while in custody,

Logan’s medical care provider was Turnkey. Id. Should Logan want medical attention, he was

told to “go through our nurse as a medical request.” Id. Logan was then told to refer to the

grievance procedure. Id. Logan appealed a second time. Id. Logan was advised that after

review it was determined both the CCDC and Turn Key’s policies were followed. Id. at 36.

On May 11, 2022, Logan submitted a grievance stating he was being denied medical

treatment. (ECF No. 43-1 at 38). He asserted that his injury had persisted, and the nurse lacked

the equipment to analyze his condition. Id. Logan was told Turn Key was the medical provider

and he must submit a medical request to be seen by medical staff. Id. Logan continued to submit

grievances regarding the injury to his left shoulder and neck, suffering from chronic pain,

requesting diet changes to improve his healing, asking to see a specialist, requesting an MRI, and

requesting temporary medical leave. (See e.g., ECF No. 43-1 at 39, 43-44, 47-50, 52-54, 91 &

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99).5 In response, he was told that Turn Key made all treatment decisions and all decisions

regarding necessary changes in diet. Id. Logan also objected to paying for medical treatment

that he contended should be the obligation of the CCDC. (See e.g., ECF No. 43-1 at 94).

On August 3, 2022, Logan slipped and fell in the shower. (ECF No. 43-3 at 25, 35). He

was taken to Mercy Hospital emergency room. Id. He was diagnosed with a traumatic injury to

his head and an injury to his left shoulder. Id. X-rays of his shoulder showed no evidence of

“acute displaced fracture or traumatic malalignment of the left shoulder” and “[m]ild degenerative

changes of the AC joint.” Id. at 34. Logan was placed in a “sling for comfort secondary to an

AC joint injury.” Id. at 25. He was told he could ice the injury and use Tylenol and ibuprofen

as needed for the pain. Id. He was also informed that he may develop concussion-like

symptoms, possibly including headache, difficulty thinking, nausea, vomiting, sleepiness, fatigue,

or irritability. Id. It was suggested that Logan avoid any screen time. Id. In the area for review

of symptoms, the record indicates: Positive for arthralgias.” Id. at 31. Logan exhibited:

[f]ull active and passive range of motion of he left shoulder, tenderness to the left

paraspinous superior portion of the trapezius muscle with full neck range of motion,

no cervical spine step-offs, patient is able [to] make okay sign, twist second and

third digits, interosseous muscle strength is intact, grip strength, bicep, tricep and

deltoid strength is 5/5 bilaterally, sensation is intact in median, ulnar and radial

distribution bilaterally. Id. at 33.

Logan also submitted multiple medical requests.6 On May 6, 2022, Logan submitted a

request stating he was never informed about the x-ray results. (ECF No. 43-2 at 1). He also

5 Logan also submitted grievances regarding the lack of dental care and medical requests about

tooth pain. (See e.g., ECF No. 43-1 at 64-65 and ECF No. 43-2 at 59, 77). He does not, however,

assert a denial of dental care claim in either his original or amended complaints.

6 The Court notes that the exhibits submitted with the summary judgment motions are not in any

chronological order; thus, leaving the Court to piece through the exhibits looking for the relevant

entries.

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complained of continued pain and of numbness in his fingers. Id. He asked for a follow-up and

not just a trip to the nurse. Id. In response, Logan was advised that the emergency room (ER)

paperwork did not indicate a need for follow-up. Id. On May 7, 2022, Logan stated he had

suffered a broken nose during the altercation and needed to see a specialist to have it reset. Id. at

2. In response, he was told the ER records indicated Logan’s nose had previously been broken.

Id. On May 8, 2022, Logan complained his pain and discomfort was becoming more severe. Id.

at 3. On May 9, 2022, Logan refused sick-call and signed a waiver of treatment. (Id. at 1; ECF

No. 43-3 at 8). That same day, Logan stated he did not need Tylenol or a sick call; he needed to

be taken to the hospital for his follow-up. Id. at 4. He was again told the ER paperwork did not

indicate the need for follow-up. Id.

Over a period of months, Logan continued to submit requests regarding the amount of pain

he was in, the need for a proper evaluation of his neck and shoulder injury, including an MRI, and

for his broken nose to be reset. (ECF No. 43-2 at 5, 8-10, 20, 23, 25, 29, 33, 35-36, 38-41, 43-46,

50-53, 62-64, 66, 68, 71, 75, 78, 80, 82, 84, 86, 92-93, 98, 100, 102, 104, 106, 109, 115, 117). On

several occasions, Logan requested a bottom rack and/or extra mat due to discomfort. Id. at 13,

17, 27, 29. Logan submitted requests for changes to his diet to increase the nutrients his body

needed to heal. Id. at 18-19, 21-22. Logan also complained about his stress levels and the need

to have his mental health medication changed. Id. at 30, 34, 37, 45, 89, 111.

Defendant Newcomb indicates she is a nurse practitioner employed by Turn Key Health

Clinics, LLC, as a provider at the CCDC. (ECF No. 38-2 at 1). She indicates she is familiar with

Logan and provided “nursing services” to him. Id. Defendant Newcomb states Logan’s

complaint regarding shoulder and neck pain were evaluated multiple times, and he had

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appointments via telemedicine with her. Id. at 2. Logan was treated with acetaminophen and

cold packs “which was appropriate and within the standard of care.” Id.

According to Defendant Newcomb:

AC joint injuries are separations of soft tissue or inflammations to the

acromioclavicular joint. This injury generally heals quickly in about one week but

can take up to six weeks to heal. Injuries such as these do not require treatment

and simply heal on their own. As such, Mr. Logan did not have any medical

condition which required additional treatment beyond that which he was already

receiving. (ECF No. 38-2 at 2).

Defendant Newcomb noted that Logan had twice had off site x-rays of his shoulder and

both sets “revealed no fractures, no dislocations, and no soft tissue damage.” (ECF No. 38-2 at

2). While Logan was given a sling after his August 3 fall, Defendant Newcomb indicates it was

for “comfort to an AC joint injury.” Id.

Defendant Newcomb indicates she informed Turn Key’s medical director, Dr. Absalom

Tilley, of Logan’s condition, requests, and threats to file a lawsuit. (ECF No. 38-2 at 3).

According to Defendant Newcomb, Dr. Tilley “confirmed to me that no further evaluation was

necessary considering Mr. Logan’s repeated normal x-ray results and prior evaluations by two

independent, higher-level-of-care emergency physicians.” Id. 7 For this reason, Logan’s

requests for repeat x-rays or an MRI were denied as not medically necessary. Id.

Defendant Newcomb further states that Logan did not consistently wear his sling. Id.

Nurses reported to Defendant Newcomb that when they observed Logan in his environment, he

appeared to have no physical deficits. Id. Defendant Newcomb opines that Logan suffered no

7 This statement does not appear in the medical records and no affidavit was submitted by Dr.

Tilley.

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injury, harm, or worsening of his condition due to the care and treatment he received at the CCDC.

Id. at 4.

III. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the non-moving party, the record “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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

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

genuine issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602,

607 (8th Cir. 1999). A fact is “material” if it may “affect the outcome of the suit.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The non-moving party “must do more than simply show that there is some metaphysical

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

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

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

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

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

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

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

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

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IV. DISCUSSION

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Here, Defendants clearly acted under color of state law. The sole question is whether the

Constitution was violated. Having narrowed the focus, the Court turns to an examination of the

pending motions for summary judgment.

A. Defendant Newcomb’s Motion for Summary Judgment (ECF No. 38)

Defendant Newcomb argues she is entitled to judgment in her favor on the following

grounds: (1) she was not deliberately indifferent to Logan’s serious medical needs; (2) Logan can

produce no verifying medical evidence that any delay in his receipt of care adversely affected his

prognosis; and (3) there is no basis for an official capacity claim.

1. Denial of Medical Care—Individual Capacity Claim

The Eighth Amendment’s prohibition of cruel and unusual punishment prohibits deliberate

indifference to prisoners’ serious medical needs. See e.g., Luckert v. Dodge Cty., 684 F.3d 808,

817 (8th Cir. 2012). Although Logan was a pretrial detainee and his claim is brought under the

Fourteenth Amendment, the Eighth Circuit has continually applied the Eighth Amendment’s

deliberate indifference standard to claims brought by pretrial detainees. See e.g., Carpenter v.

Gage, 686 F.3d 644, 650 (8th Cir. 2012). To prevail on his claim, Logan must prove that

Defendant Newcomb acted with deliberate indifference to his serious medical needs. Estelle v.

Gamble, 429 U.S. 97, 106 (1976).

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

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

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

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

132 F.3d 1234, 1239 (8th Cir. 1997)).

To show that he suffered from an objectively serious medical need Logan must show he

“had been diagnosed by a physician as requiring treatment” or had 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) (citation omitted). During the March 2022

altercation, Logan sustained a laceration above one of his eyes, a contusion to his nose, and his

neck and shoulder were injured. The neck and shoulder injury continued to bother him for months

and was re-injured when he fell in the shower. He was taken twice to the emergency room, treated

with cold packs, pain medication, and anxiety medication. For the purposes of this Motion, the

Court concludes that Logan suffered from one or more serious medical conditions.

For 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.” Popoalii v. Corr. Med. Servs., 512

F.3d 488, 499 (8th Cir. 2008) (citation omitted). “Deliberate indifference is akin to criminal

recklessness, which demands more than negligent misconduct.” Id.

Defendant Newcomb naturally contends she was not deliberately indifferent to Logan’s

serious medical needs. (ECF No. 38-2). She asserts that Logan was evaluated by nursing staff

multiple times and had appointments via telemedicine with her. Id. at 2. Logan was treated with

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Acetaminophen and cold packs which she states, “was appropriate and within the standard of care.”

Id. Defendant Newcomb asserts that Logan was simply not happy with his care and wanted a

different course of treatment. Id.

Logan’s response is a single unverified page. (ECF No. 47). He asserts he was not non-

compliant with wearing his sling as Defendant Newcomb asserts. Id. Instead, he states he wore

it faithfully for the 10 days he was in the medical pod. Id. When he was moved out of the pod

by facility staff, the sling was taken away. Id. Finally, he asserts he was in fact diagnosed with

muscle separation in his shoulder. Id.

While Logan was “evaluated” on multiple occasions by nursing staff as illustrated by the

medical records, at most, the treatment consisted of an order for a cold pack for a 24-hour period

or an over-the-counter pain reliever for a period of seven days. To receive further care, Logan

had to be seen again and was charged for each visit. Defendant Newcomb, who was the only

medical care provider Logan had access to, never personally examined him. Without access to

other medical care providers, Logan cannot effectively raise a genuine issue of material fact as to

whether Defendant Newcomb’s treatment of him had a detrimental effect on his shoulder and neck

injury.

Despite prisoners’ limited access to health care, the Eighth Amendment deliberate

indifference standard is a difficult one to meet. It “requires a highly culpable state of mind

approaching actual intent.” Kulkay v. Roy, 847 F.3d 637, 643 (8th Cir. 2017) (quotation omitted).

In cases where some medical care is provided, a plaintiff “is entitled to prove his case by

establishing the course of treatment, or lack thereof, so deviated from professional standards that

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it amounted to deliberate indifference.” Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015)

(quotation omitted). Moreover,

[n]othing in the Eighth Amendment prevents prison doctors from exercising their

independent medical judgment. Prisoners do not have a constitutional right to any

particular type of treatment. Prison officials do not violate the Eighth Amendment

when, in the exercise of their medical judgment, they refuse to implement a

prisoner’s requested course of treatment.

Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996).

This is precisely what occurred in the present case. Defendant Newcomb found no

medical necessity for Logan to have an MRI or be seen by another outside doctor. Logan

disagreed. While Logan’s AC joint injury may have taken longer to heal than the one to six

weeks’ time frame suggested by Defendant Newcomb, Logan did, as indicated in the medical

records, show improvement over several months. Logan’s August 3, 2022, slip and fall further

delayed the healing process. Logan simply has no right to specific medical care or treatment.8

On the record before the Court, no reasonable trier of fact could conclude that a genuine

issue of material fact exists as to whether Defendant Newcomb was deliberately indifferent to

Logan’s serious medical needs. This is not to say that defendants may always escape liability by

providing some measure of care. Rather, the Court merely holds on the record before it that

Defendant Newcomb is entitled to summary judgment on the individual capacity claims against

her.

8 Logan also alleges another inmate, who was not injured in the facility, was given preferential

treatment over him, and taken outside the facility for medical care on multiple occasions. This

single allegation, without more, is clearly insufficient to state an Equal Protection Claim. See

Robbins v. Becker, 794 F.3d 988, 996 (8th Cir. 2015) (“To be similarly situated for purposes of a

class-of-one equal-protection claim, the persons alleged to have been treated more favorably must

be identical or directly comparable to the plaintiff in all materials aspects”).

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2. Denial of Medical Care—Official Capacity Claim

“A suit against a government officer in his official capacity is functionally equivalent to a

suit against the employing governmental entity.” McKay v. City of St. Louis, 960 F.3d 1094, 1102

(8th Cir. 2020) (quotation omitted). In this case, Carroll County contracted with Turn Key to

fulfill a constitutional duty, the provision of medical care. While Turn Key is a private

corporation contracted to provide medical services for prisoners at the CCDC, a suit against

Defendant Newcomb in her official capacity is the same as a suit against Turn Key. Sanders v.

Sears, Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir. 1993) (“[A] corporation acting under color

of state law will only be held liable for its own unconstitutional policies”). To state a claim against

Turn Key, Logan “must show that there was a policy, custom, or official action that inflicted an

actionable injury.” Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006).

In the area of Amended Complaint where Plaintiff was asked to describe the custom,

policy, or widespread practice that be believes caused the violation of his constitutional rights,

Logan simply responded: “Denial of Medical” and “8th Amendment violation.” (3:22-cv-03023,

ECF No. 15 at 5) (3:22-cv-03045, ECF No. 2 at 5).

Logan has failed to sufficiently allege the existence of any policy, custom, or official action

that contributed to the alleged denial of medical treatment. Logan does not maintain that

Defendant Newcomb was the final policymaker for the Turn Key. Finally, Logan has not asserted

any failure to train or supervise claim against Defendant Newcomb. Defendant Newcomb is

entitled to summary judgment on the official capacity claims.

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B. The County Defendants’ Motion for Summary Judgment (ECF No. 41)

The first issue that must be addressed is whether the Amended Complaint (ECF No. 15)

supercedes the original complaint. The well-established rule is that “an amended complaint

supercedes an original complaint and renders it without legal effect.” In re Atlas Van Lines, Inc.,

209 F.3d 1064, 1067 (8th Cir. 2000). Logan was advised of this rule in the Order granting his

Motion to Amend. (ECF No. 14). The County Defendants rely on this and maintain the claims

regarding his movement into another pod, the altercation, and his disciplinary procedures, are no

longer at issue. Pro se documents are, however, to be liberally construed. Haines v. Kerner, 404

U.S. 519, 520 (1972) (pro se litigant’s allegations are construed liberally). It is clear when the

two complaints are reviewed together that Logan intended for the Amended Complaint to

supplement the original Complaint. See e.g., Kiir v. North Dakota Public Health, 651 F. App’x

567, 568 (8th Cir. 2016) (amendment “intended to supplement, rather than supplant, the original

complaint,” should be read together with the original complaint as pro se plaintiff’s complaint);

Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir. 1999) (“It seems clear, however, that Cooper

intended to have the two complaints read together”); Ford v. Donovan, 891 F. Supp. 2d 60, 62

(D.D.C. 2012) (“Instead of superseding his original Complaint, as a typical Amended Complaint

does, this later pleading supplements it. Given his pro se status, the Court will treat the combined

pleadings as one joint Complaint”). The County Defendants’ Motion is, therefore, deemed to be

a Motion for Partial Summary Judgment.

Logan asserts that both HIPPA and his constitutional rights were violated when Defendants

Solice and Callas were present when he was being medically evaluated. Defendants Solice and

Callas have moved for summary judgment on the following grounds: (1) Logan had no expectation

16

of privacy during the medical examination; (2) Logan failed to exhaust his administrative

remedies; (3) they are entitled to qualified immunity; and (4) there is no basis for an official

capacity claim.

1. Right to Privacy—Defendants’ Presence During Medical Examination

HIPPA does not expressly or impliedly create a private cause of action. Dodd v. Jones,

623 F.3d 563, 569 (8th Cir. 2010) (“HIPPA does not create a private cause of action”). Thus,

Logan’s claims premised on violations of HIPPA fail as a matter of law.

The Supreme Court has recognized a constitutionally protected zone of privacy that

extends to medical records and medical communications. Whalen v. Roe, 429 U.S. 589, 598-99

(1977) (zone of privacy which includes an interest in avoiding disclosure of personal matters);

Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (expectation of privacy in not having

medical information shared with non-medical personnel without consent). The Eighth Circuit has

said that “to violate the constitutional right of privacy the information disclosed must be either a

shocking degradation or an egregious humiliation . . ., or a flagrant bre[a]ch of a pledge of

confidentiality which was instrumental in obtaining the personal information.” Van Zee v.

Hansen, 630 F.3d 1126, 1128 (8th Cir. 2011) (quotation marks and citation omitted).9

In the context of incarcerated persons, it has been held that although “prisoners do not shed

all constitutional rights at the prison gate, . . . lawful incarceration brings about the necessary

withdrawal or limitation of many privileges and rights, a retraction justified by the considerations

underlying our penal system.” Sandin v. Conner, 515 U.S. 472, 485 (1995). A constitutional

9 In Dillard v. O’Kelly, 961 F.3d 1048, 1054 (8th Cir. 2020) (en banc), cert. denied, 141 S. Ct.

1071 (2021), a case outside the prison system, the Eighth Circuit repudiated broad readings of

Whalen.

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right to medical privacy has been held to exist within the prisons. See e.g., Doe v. Delie, 257 F.3d

309, 317 (3d Cir. 2001). The general right to privacy is, however, subject to broad exceptions for

legitimate penological reasons. See e.g., Seaton v. Mayberg, 610 F.3d 530, 535 (9th Cir. 2010);

Doe, 257 F.3d at 311; Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999); Tokar v. Armontrout,

97 F.3d 1078, 1084 (8th Cir. 1996) (“no clearly established constitutional right to nondisclosure

of HIV status”).

The constitution does not require prison officials to leave an inmate unsupervised during a

medical examination. See e.g., Lomon v. Beyers, 2020 WL 7828766, *3 (D. Kansas Dec. 31,

2020) (no violation of constitutional right of privacy when jail officers attended medical

examination); Haid v. Cradduck, Case No. 5:14-cv-05119, 2016 WL 3555032, *6 (W.D. Ark. June

24, 2016) (“In most instances, the constitution does not require a prison guard to leave an inmate

unsupervised during a doctor’s visit”); Franklin v. McCaughtry, 110 F. App’x 715, 719 (7th Cir.

2004) (unpublished) (rejecting prisoner’s argument that receiving medical treatment in front of

staff members was constitutionally offensive). Clearly, prison officials have legitimate

penological interests in ensuring the safety of medical personnel. Cf. United States v. Maddox,

27 F.4th 668, 674 (8th Cir. 2022) (gunshot victim had no reasonable expectation of privacy in his

hospital room; officer did not violate his Fourth Amendment rights by entering the room).

Defendants Solice and Callas are entitled to summary judgment on this claim.

2. Exhaustion of Administrative Remedies

In their brief, the County Defendants argue Logan filed no grievance regarding the officers

being present when Logan was seen by a health professional. (ECF No. 42 at 7-8). They

maintain this is fatal to Logan’s claim. While the County Defendants have provided the Court

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with copies of their grievance policy, and they argue an examination of all grievances (ECF No.

43-1 at 32-66) establishes Logan did not file a grievance, no affidavit of the record keeper is

provided to establish these pages contain all grievances submitted by Logan. For this reason, the

Court will not further address the County Defendants’ failure to exhaust argument.

3. Qualified Immunity

Having found that the facts do not make out a constitutional violation, Defendants are

entitled to qualified immunity. See, e.g., Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)

(unless the facts make out a violation of a constitutional right the Defendant is entitled to qualified

immunity). Even if the Court had found a genuine issue of material fact existed as to whether

there was a constitutional violation, Defendants Solice and Callas would be entitled to qualified

immunity.

“The purpose of the doctrine of qualified immunity is to protect public officials called upon

to perform discretionary tasks from personal liability for the good faith performance of these tasks.

Snyder v. Kurvers, 767 F.2d 489, 497 (8th Cir. 1985); see also Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Qualified immunity “protects all but the plainly incompetent or those who knowingly

violate the law.” Mullenix v. Luna, 577 U.S. 7, 11 (2015).

Defendants Solice and Callas are entitled to qualified immunity unless Logan has (1) stated

a claim for violation of his constitutional right to privacy and (2) that right was clearly established

at the time of the alleged violation. Thurmond v. Andrews, 972 F.3d 1007, 1011 (8th Cir. 2020).

A right is clearly established if it is “sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658, 664

(2012) (cleaned up and citation omitted). “We do not require a case directly on point, but existing

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precedent must have placed the statutory or constitutional question beyond debate.” Ashcraft v.

al-Kidd, 563 U.S. 731, 741 (2011). The Eighth Circuit has cautioned against too broad or

generalized interpretations of whether a right is clearly established, instead requiring “[a] more

specific and particularized inquiry in order to assess clearly established law in the context of an

assertion of qualified immunity.” Thurmond, 972 F.3d at 1012.

There is no published United States Supreme Court or Eighth Circuit case indicating that

corrections officers (of the same gender as the prisoner) being present during a medical

examination constitutes a violation of the prisoner’s right to privacy. In fact, as previously noted,

Dillard calls into question the existence of any constitutional right to privacy. Dillard, 961 F.3d

at 1054 (“However, even if the right is assumed to exist, in reviewing the denial of qualified

immunity [NASA v.] Nelson, [562 U.S. 134 (2011)] raises an essential question: whether a right

the Supreme Court has only assumed may exist, and this court has never held to be violated, can

be a clearly established constitutional right”). In the absence of such precedent, Logan cannot

show the violation of a clearly established right to privacy.

4. Official Capacity Claims

The official capacity claims against Solice and Callas are treated as claims against Carroll

County. Crawford v. Van Buren Cty., 678 F.3d 666, 669 (8th Cir. 2012). Logan has not alleged

any violation of an official policy or custom, or a deliberately indifferent failure to train and

supervise. Jackson v. Stair, 944 F.3d 704, 709 (8th Cir. 2019). Further, having found that no

individual Defendant violated Logan’s right to privacy, the county cannot be held liable. See e.g.,

Ivey v. Aundrain Cty., Mo., 968 F.3d 845, 851 (8th Cir. 2020).

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V. CONCLUSION

For the reasons discussed above, the undersigned recommends that:

• Defendant Newcomb’s Motion for Summary Judgment (ECF No. 38) be

GRANTED, and she be dismissed as a Defendant; and,

• The County Defendants’ Motion for Summary Judgment (ECF No. 41) on the right

to privacy claim be GRANTED.

By separate Order the undersigned will authorize the County Defendants to file a

supplemental motion for summary judgment on Logan’s other claims against them.

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file

timely objections may result in waiver of the right to appeal questions of fact. The parties

are reminded that objections must be both timely and specific to trigger de novo review by

the district court.

DATED this 12th day of December 2023.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

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