Ellenberger v. Hayden

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

BRIAN ELLENBERGER PLAINTIFF

v. Civil No. 2:23-cv-02030-PKH-MEF

JAILER NICHOLUS HAYDEN DEFENDANT

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Plaintiff, Brian Ellenberger, presently an inmate of the Wrightsville Unit of the Arkansas

Division of Correction, filed this civil rights action under 42 U.S.C. § 1983. Ellenberger proceeds

pro se and in forma pauperis. Ellenberger’s claim arose while he was incarcerated in the Scott

County Detention Center (“SCDC”). Specifically, Ellenberger maintains he was denied adequate

medical care.

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

III, Senior United States District Judge, referred this case to the undersigned for the purpose of

making a Report and Recommendation. Presently before the Court is the Motion for Summary

Judgment filed by Defendant Hayden. (ECF Nos. ECF Nos. 35-37). Ellenberger has responded

to the Motion. (ECF No. 42). The Motion for Summary Judgment is ready for decision.

I. BACKGROUND

Ellenberger has high blood pressure and while incarcerated in the SCDC was taking two

prescription blood pressure medications. (ECF No. 35-2 at 9). During his deposition,

Ellenberger testified that on February 13, 2023, when he went to pill call, Defendant Hayden said

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something like: “Crap, crap, crap. I gave your medicine to Donald [Horn].” Id. at 10-11.

Defendant Hayden then asked if Ellenberger took the same medication as Donald. Id. at 10.

Ellenberger responded he did not. Id. At this point, Defendant Hayden “just told me to take it

and put it in my hand, and I – I took it. And then, like, a little later, my throat was swelling up

and stuff, and I couldn’t hardly swallow, and I was having chest pains.” Id. Ellenberger told the

jailers about his reaction to the medication and submitted a grievance, but nothing was done. Id.

Further, Ellenberger testified he never received his correct prescription medication that day. Id.

at 11.

While Ellenberger testified, he did not specifically ask to see a doctor or go to the

emergency room, he stated he was asking the jailers to be checked out and told them he was having

trouble swallowing and was having chest pains. (ECF No. 35-2 at 11-12). When asked what

specific words he used when speaking to the jailers, Ellenberger responded: “That Nicholus

Hayden gave me the wrong medicine, and my throat was swelling up, and I couldn’t hardly

swallow, and I was having chest pains.” Id. at 12. Ellenberger conceded this was a description

of his symptoms. Id. The swelling and after-effects went away the following day. Id. After

February 13, 2023, Ellenberger testified he was given the correct blood pressure medication while

he was in the SCDC. Id.

When asked if he had anything to suggest Defendant Hayden intentionally gave Donald

the wrong medication on purpose, Ellenberger responded: “I mean, he gave me Donald’s medicine

on purpose. I know that, because he asked me if I took what Donald took. I said, ‘No,’ but he

put it in my hand anyways. I don’t even know why I ate it, but I did.” (ECF No. 35-2 at 13).

If he had not taken the medication, Ellenberger testified he would not have suffered the

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adverse symptoms. (ECF No. 35-2 at 13). He asked Horn what the medication was but could

not recall its name at the time the deposition was taken. Id. at 14. Ellenberger did not know what

health condition the medication was for. Id.

In Defendant Hayden’s affidavit he states: “On February 13, 2023, I was providing inmates

with their prescribed medication when I accidentally gave [Ellenberger] another inmate’s

medication. I told [Ellenberger] I had given him the wrong medication, yet [Ellenberger] chose

to take the medication anyways.” (ECF No. 35-1 at 1).

On February 13, 2023, Defendant Hayden wrote an incident report. (ECF No. 35-1 at 3).

The report provides as follows:

At 0550, I went into D pod to give out OTC’s and medication. All detainees came

to the door to take their medication and I proceeded to give everyone the correct

medication. I then let Donald Horn out to take his medication. I put the

medication in his hand after he signed, he looked at it clearly, and he proceeded to

take it. I then let Donald Horn back into D pod, and brought out Brian Ellenberger.

I looked at what I thought was Ellenberger’s medication, but was actually Donald

Horn’s. He then handed the medication back to me, and signed his prescription

paper, and went back into D pod. I called Donald back to the door, and he was

fully aware that he had taken the wrong meds, and told me that he was ok, and that

he would sleep good that night. I then proceeded to do everyone else’s medication,

and put back Brian Ellenberger’s meds.

Id.

II. 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

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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).

III. DISCUSSION

Section 1983 provides a federal cause of action for the deprivation, under color of law, of

a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” of the United

States. To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1) the defendant

acted under color of state law, and (2) that he or she violated a right secured by the constitution.

West v. Atkins, 487 U.S. 42 (1988); Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir. 1999).

There is no question that Defendant Hayden was acting under color of law. The sole question is

whether Ellenberger’s constitutional rights were violated.

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Defendant Hayden moves for summary judgment on the following grounds: (1) the

undisputed facts fail to show any deliberate indifference on his part, and (2) he is entitled to

qualified immunity.

The Constitution requires prison officials to provide pretrial detainees and convicted

prisoners with constitutionally adequate medical care. Hancock v. Arnott, 39 F.4th 482, 486 (8th

Cir. 2022). “What the Constitution considers ‘adequate’ in a prison or a jail is significantly

different than what a member of the general public would consider ‘adequate’ for his or her own

purposes.” Curtis v. Taylor, Case No. 4:22-cv-00328, 2023 WL 2499956, *4 (E.D. Ark. March

14, 2023). The Constitution “guarantees a minimal standard of care—pretrial detainees’ and

prisoners’ serious medical needs will not be ignored.” Id. at 6. Officials may not turn a “blind

eye to unmet serious medical needs.” Id.

In his Complaint and during his deposition, Ellenberger indicated he was incarcerated due

to pending criminal charges and a parole violation. (ECF No. 1 at 2; ECF No. 35-2 at 6-7).

While the claim of a pretrial detainee is brought under the Due Process Clause of the Fourteenth

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

indifference standard to claims brought by pretrial detainees.1 See e.g., Smith v. Lisenbe, 73 F.4th

596, 600 (8th Cir. 2023). Thus, whatever Ellenberger’s status was on February 13, 2023, the same

deliberate indifference standard applies.

1 In Spencer v. Knapheide Truck Equip. Co., 183 F.3d 902, 906 (8th Cir. 1999), the Eighth Circuit

acknowledged that pretrial detainee’s claims may be entitled to “a more stringent standard than

deliberate indifference” but applied the deliberate indifference standard as it did not believe the

“facts of this case call for a determination of this issue.” The Court further stated that

“[r]egardless of whether framed as a subjective or objective test, the alleged deprivation must still

be ‘sufficiently serious’ and ‘pose a substantial risk of serious harm.’” Id. (quoting Farmer v.

Brennan, 511 U.S. 825, 834 (1994)).

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

component: ‘[Ellenberger] 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.’” Smith, 73 F.4th at 600.

To demonstrate that he suffered from an objectively serious medical need, Ellenberger 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). Ellenberger

had been diagnosed with high blood pressure and prescribed two medications. Given these facts,

no argument can be made that Ellenberger’s high blood pressure did not constitute a serious

medical need.

For the second prong, the deliberate indifference standard establishes a high threshold that

goes well beyond negligence or gross negligence. Landford v. Norris, 614 F.3d 445, 460 (8th

Cir. 2010). There must be evidence Defendant Hayden “recognized that a substantial risk of harm

existed and knew that [his] conduct was inappropriate in light of that risk.” Shipp v. Murphy, 9

F.4th 694, 703 (8th Cir. 2021) (internal quotations marks and citation omitted) (emphasis in

original). A mere disagreement with the course of medical care does not rise to the level of a

constitutional violation. “Grossly incompetent or inadequate care can constitute deliberate

indifference, as can a doctor’s decision to take an easier and less efficacious course of treatment.

Medical care so inappropriate as to evidence intentional maltreatment or a refusal to provide

essential care violates the eighth amendment.” Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).

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In this case, Defendant Hayden gave Ellenberger’s medication to Horn. Defendant Hayden

then presented Horn’s medication to Ellenberger despite Ellenberger having said he did not take

the same medication as Horn. Although this presents more than accidentally providing the wrong

medication to an inmate, the Court does not believe Defendant Hayden can be said to have acted

with deliberate indifference. Rather, the Court believes Defendant Hayden demonstrated gross

incompetence when he presented Horn’s medication to Ellenberger. See e.g., Jordan v. Karas

Health Care, Civil No. 5:16-cv-05161, 2017 WL 3405551, 4 (W.D. Ark. July 19, 2017)

(accidentally giving an inmate the wrong dose of medication on a single occasion at most supports

a finding of negligence). This conclusion is buttressed by the fact that Ellenberger knew the

medication was not his, but he took it anyway.

While Ellenberger testified Defendant Hayden told him to take the medication, Ellenberger

does not contend Defendant Hayden threatened him, forced him to take the medication, or overrode

Ellenberger’s own refusal to take the medication. In fact, Ellenberger states he does not know

why he took the medication. Additionally, Ellenberger testified his symptoms resolved by the

following day without any lasting effects. “Claims under the Eighth Amendment require a

compensable injury to be greater than de minimis.” Irving v. Dormire, 519 F.3d 441, 448 (8th

Cir. 2008).

Having found no genuine issue of material fact exists as to whether Defendant Hayden

violated Ellenberger’s constitutional rights, Defendant Hayden is 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).

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IV. CONCLUSION

For the reasons stated, it is recommended that Defendant Hayden’s Motion for Summary

Judgment (ECF No. 35) be GRANTED and this case be DISMISSED WITH PREJUDICE.

Status of Referral: The referral terminates upon the filing of this Report and

Recommendation.

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 13th day of June 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE

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