Smith v. Gamble

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

CHEYENNE NICOLE SMITH

a/k/a Tucker PLAINTIFF

Civil No. 2:23-cv-02111-TLB-MEF

v.

JAILER MELISSA GAMBLE,

JAILER AUSTIN TERWILLIGER1,

SHERIFF SCOTT SAWYER,

JAIL ADMINISTRATOR CRAIG MOHR2 DEFENDANTS

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

This is a civil rights action filed under 42 U.S.C. § 1983. Pursuant to the provisions of 28

U.S.C. §§ 636(b)(1) and (3), the Hon. Timothy L. Brooks, United States District Judge, referred

this case to the undersigned for the purpose of making a Report and Recommendation.

Currently before the Court is the Defendants’ Motion for Summary Judgment, Brief in

Support, and Statement of Indisputable Material Facts filed on June 7, 2024. (ECF Nos. 51, 52,

53). Plaintiff filed her Response, Brief [in] Support, and Statement of Indisputable Material Facts

on August 5, 2024. (ECF Nos. 59, 60, 61). Defendants filed their Reply on August 19, 2024.

(ECF No. 64). The matter is ripe for decision.

1 Plaintiff was unable to provide a valid service address for Defendant Terwilliger, and the time to

do so has long passed. (ECF No. 20).

2 Plaintiff named Defendant “Craig Moore” as the Jail Administrator. (ECF No. 10). In his

Affidavit, the Defendant states his name is Craig Mohr. (ECF No. 53-1 at 1). The Court will use

the correct spelling of this Defendant’s name.

I. BACKGROUND

Plaintiff filed her Complaint on August 30, 2023. (ECF No. 1). She sought leave to amend,

which was granted (ECF Nos. 6, 9), and she filed her Amended Complaint (ECF No. 10) on

September 21, 2024.

As her first claim, Plaintiff alleges that she was arrested and booked into the Polk County

Jail on November 14, 2021, and she informed the staff at the jail that she was in the second

trimester of pregnancy. (ECF No. 10 at 5). She lists the dates of this claim as November 14, 2021,

through December 15, 2021. (Id.). She names as Defendants Sheriff Sawyer, Jail Administrator

Mohr, and the Polk County Jail3 for this claim. (Id.). Plaintiff alleges that Defendants Sawyer and

Mohr “are the ones that decide medical care at this facility and they chose not to provide prenatal

care that would have alerted to complications and the death of my baby.” (Id. at 5-6). She further

alleges Defendants did not offer any medical care until after she delivered her baby alone in her

cell. (Id. at 6). Plaintiff proceeds against Defendants Sawyer and Mohr in their official and

individual capacities. (Id.). To support her official capacity claim she alleges, “[d]enial for

medical care for a second trimester pregnancy to a prisoner in custody.” (Id.). Plaintiff alleges

that she delivered the baby in her cell on December 15, 2021. (Id. at 7).

For her second claim, Plaintiff alleges that from November 14, 2021, through December

15, 2021, Defendants Sawyer and Mohr denied her prenatal care for her second trimester

pregnancy. (ECF No. 10 at 6-7). Plaintiff alleges she put in a kiosk request for prenatal care the

first week of December. (Id. at 7). She requested that she be able to seek prenatal care, but her

request was denied by Sawyer and Mohr. (Id.). Plaintiff alleges she let them know that her first

3 The Polk County Detention Center was terminated as a Defendant in this case on September 22,

2023, as a jail is not a person or legal entity subject to suit. (ECF No. 11).

appointment was overdue by a month, and it was important for the health and safety of her baby.

(Id.). She alleges that lack of medical care caused the death of her baby. (Id.). Plaintiff proceeds

against Defendants in their official and individual capacity for this claim. (Id. at 8). For her official

capacity claim, Plaintiff alleges, “[d]enial of request of routine medical care for a second trimester

pregnancy to a prisoner in custody.” (Id.).

For her third claim, Plaintiff names Defendants Jailer Melissa Gamble and Austin

Terwilliger.4 (ECF No. 10 at 8). She alleges these Defendants denied her medical care on

December 14, 2021, through December 15, 2021, and that they denied her emergency medical care

on these days. (Id.). Plaintiff alleges that on December 14, 2021, she told Defendant Melissa

Gamble and Austin Terwilliger that she needed emergency medical care because she was bleeding,

had lost her mucous plug, and was hurting. (Id. at 9). Defendants told her to go lay down. (Id.).

She alleges they did not alert the Sheriff or the Jail Administrator to get approval for emergency

care. (Id.). They padlocked her into her cell at 2:00 a.m., did not do routine checks, and there was

no emergency call button in her cell.5 (Id.). Plaintiff alleges that she “banged on” the door at 4:40

a.m. to get the jailer’s attention and they ignored her. (Id.). She alleges she delivered her baby at

4:35 a.m. alone in her cell. (Id.). She alleges she was in shock and did not know what to do. She

4 Plaintiff initially named this Defendant as Austin Vaught. This name was corrected to Terwilliger

on April 3, 2024. (ECF No. 45).

5 The case law that exists on this subject concludes that the mere lack of an intercom or call button

in a cell, standing alone, does not rise to the level of a constitutional violation. For example, in

Garner v. City of Philadelphia, 2013 WL 4401327, at *6 (E.D. Pa. Aug. 16, 2013), an Eighth

Amendment conditions of confinement case, the court concluded that “[a]lthough panic buttons

may offer inmates additional safety and protection, we cannot find that active panic buttons

constitute a ‘minimal civilized measure of life's necessities.’” See also DuPont v. Skrah, 2017 WL

1160584, at *3 (D. Or. Jan. 30, 2017), report and recommendation adopted, 2017 WL 1159723

(D. Or. Mr. 27, 2017) (“[A]lthough the Eighth Amendment requires inmates to be able to

communicate with corrections officers in order to summon medical assistance if necessary, it does

not specifically mandate the availability of a functioning intercom in each prisoner’s cell.”). This

portion of Plaintiff’s claim will not be considered further.

continued to try to get their attention until about 4:45 a.m. (Id. at 9-10). She alleges that instead

of immediately calling medical personnel, Defendant Gamble removed her from her cell with her

child still laying in the sink and put her in the cell next door with two other inmates. (Id. at 10).

Gamble allegedly told her she needed to contact the Jail Administrator to find out what to do. (Id.).

Defendant Mohr told her to call the ambulance. (Id.). She and the baby were then transported to

Mena Regional Hospital, and the baby was pronounced dead by Dr. John Mesto. (Id.). She stayed

overnight at the hospital and the Jail Administrator released her on her own recognizance. (Id.).

Plaintiff alleges that if medical care had been given, her child might not have died, or “at least

would not have been born in the manner she was born.” Plaintiff alleges she now suffers with

severe depression, PTSD, anxiety, pain and suffering. (Id.). Plaintiff proceeds against Defendants

in their official and individual capacity for this claim. (Id. at 9). For her official capacity claim,

she states, “[d]enial of emergency medical care for a second trimester pregnancy for a prisoner

while incarcerated.” (Id.).

Plaintiff seeks an unidentified amount of compensatory and punitive damages. (ECF No.

10 at 11).

Defendants filed their Motion for Summary Judgment and supporting documents on June

7, 2024. (ECF Nos. 51, 52, 53). They construe Plaintiff’s Amended Complaint to include three

specific claims: “1. A denial of general prenatal care; 2. A denial of emergency medical care for

symptoms occurring at 9:00 p.m. on December 14, 2021, and 3. A denial of emergency medical

care regarding her December 15, 2021 miscarriage.” (ECF No. 52 at 6 n. 1). Should the Court

find otherwise Defendants reserved the right to address any additional claims. (Id.).

They argue summary judgment in their favor is appropriate for several reasons. First, they

contend there is no proof that Sheriff Sawyer was personally involved. (ECF No. 52 at 3). Second,

they assert they were not deliberately indifferent because there was no objectively serious medical

need, stating: Plaintiff’s pregnancy did not escalate to an objectively serious medical need prior to

December 15, 2021; Plaintiff’s general prenatal care does not amount to a serious medical need;

and Plaintiff’s purported 9:00 p.m. symptoms on December 14, 2021, did not escalate to a serious

medical need. (Id. at 6-14). Third, Defendants argue they did not have subjective knowledge of a

serious medical need because: Plaintiff did not request general prenatal care during her

incarceration with PCDC; Defendant Gamble was not subjectively aware of a serious medical need

at 9:00 p.m. on December 14, 2021; and that Defendants did not disregard Plaintiff’s serious

medical need after her miscarriage on December 15, 2021. (Id. at 15-23). Fourth, Defendants

state they are entitled to qualified immunity. (Id. at 24-27). Fifth, Polk County had no policy

which violated Plaintiff’s constitutional rights. (Id. at 27-30).

Plaintiff filed her Response and supporting documents on August 5, 2024. (ECF Nos. 59,

60, 61). In her Response, Plaintiff attempts to add new claims on behalf of her deceased daughter.

(ECF No. 59 at 1). Plaintiff also repeats her arguments that she should have been provided prenatal

care upon entry into the Polk County Jail. (Id. at 1). She argues that if prenatal care had been

provided, any health issues concerning the baby could have been detected and emergency medical

action taken. (Id. at 2). Plaintiff alleges that Defendant Gamble took time to serve the other

breakfasts on the morning in question, and that time could have saved her baby. She also argues

Gamble acted inhumanely by moving her to another cell and leaving her baby alone in her original

cell. (Id. at 2). She argues Sheriff Sawyer oversees his staff and is responsible for them following

policies. (Id.). In her Brief, Plaintiff largely repeats the allegations of her Amended Complaint.

(ECF No. 60). Plaintiff references the video for Dayroom 23 in the hallway, time stamp 28:50-

31:45. She states this is when she advised Defendant Gamble of spotting and a mucous plug. (Id.

at 2). She also references video for Hallway 31 as the second request for emergency help. (Id.).

She states that at this point she had already delivered her child. (Id.).

Although Plaintiff filed a document labelled as a Statement of Indisputable Facts (ECF No.

61), the 14 paragraphs included do not correspond to the 236 paragraphs of Defendants’ Statement

of Facts. She does reference several videos of the Dayroom and Hallway. She reports normal

daily activities in most of them. (Id. at 4-5). She references Dayroom Video 21 as when she

informed Defendant Gamble that she lost her mucous plug. (Id. at 4). She references Video

Hallway 31 and 32 as detailing activities occurring the morning of December 15, 2021. (Id. at 5).

Plaintiff also provides copies of exhibits with highlighting in places. No explanation is provided

with the highlighting, and the Court will not speculate. Further, as the Court explained in its Order

directing the Summary Judgment Response, the Court will not sift through documents attempting

to find factual support for claims.

Defendants filed their Reply on August 19, 2024. (ECF No. 64). Defendants note that

Plaintiff begins her Response by appearing to allege a separate cause of action on behalf of the

unborn child. (Id. at 1). They correctly argue that Plaintiff first raised this claim at this late stage

of the case. (Id.). They further argue that there is no evidence that Plaintiff has standing to raise

this claim. (Id.). They note that, according to this Court’s Scheduling Order, the deadline to amend

pleadings or join new parties was April 8, 2024. (Id. at 1-2). The Court will not address any

claims brought on behalf of the deceased child, as they are brought untimely.

Defendants address her argument that a routine prenatal visit would have alerted her to an

issue with the pregnancy. (ECF No. 64 at 2). They contend there is no medical evidence to support

this argument, which is speculative at best. (Id.). They believe Plaintiff was approximately 13-14

weeks pregnant at intake and approximately 18 weeks at delivery; thus, they say it is unlikely that

she would have had more than one or two visits at this stage of pregnancy. Further, they note that

Plaintiff admitted in her deposition that she knew she was pregnant prior to her incarceration and

failed to obtain prenatal care at that time. (Id.).

Defendants also note Plaintiff continues to argue that an emergency call button would have

resulted in a quicker response on the morning of December 15, 2024. (ECF No. 64 at 2). They

assert this argument is devoid of medical evidence and speculative. (Id.). They further point out

that the medical evidence from Mena Regional hospital indicates that the fetus appears to have

passed away approximately 3-5 days prior to delivery. (Id.). Of further significance, Plaintiff

testified that her labor and miscarriage occurred within minutes. (Id.). Thus, Defendants argue

there is no evidence that a quicker response would have resulted in a different outcome. (Id. at 2-

3).

Defendants respond to Plaintiff’s argument that Defendant Gamble failed to provide

emergency medical care after she gave birth. (ECF No. 64 at 3). They point to Plaintiff’s

deposition testimony that, upon learning of the Plaintiff’s miscarriage, Defendant Gamble called

an ambulance which arrived within 15 minutes of Plaintiff’s delivery. (Id. at 3).

They counter Plaintiff’s argument that routine medical care should have been scheduled by

stating:

There is no robust consensus of case law requiring a detention center to schedule

prenatal care for an inmate where there is no request for medical care during

incarceration, where the inmate did not have established prenatal care prior to her

incarceration, and where the inmate showed no signs of imminent labor or

complication. Plaintiff had the opportunity to seek medical care through the sick

call process, but she did not submit any sick call requests during her incarceration.

It is only now, after the fact, that Plaintiff argues that she needed prenatal care

during her incarceration.

(ECF No. 64 at 4). Thus, Defendants assert they are entitled to qualified immunity on this claim.

(Id.).

Defendants deny that the video footage supports Plaintiff allegations, particularly as there

is no audio. (ECF No. 64 at 4-5). On August 23, 2024, Defendants submitted copies of the videos

which had been provided to Plaintiff in the discovery process. (ECF No. 65).

On September 9, 2024, Plaintiff filed a Sur-Reply. (ECF No. 66). This unauthorized

pleading was struck from the summary judgment record the next day. (ECF No. 68).

Defendant Gamble’s Incident Report

To provide context to the claims and video clips, Defendant Gamble’s Incident Report is

quoted:

On 12/15/2021 at or around 0500, I (Officer Melissa Brecheisen, D5) went to North

wing to serve breakfast trays. As I set inmate Cheyenne Smith’s tray in the bean

hole of her cell, she stated “Melissa I think I just had a miscarriage.” I asked her

what was going on, and if she was bleeding. She said she was and asked me to turn

on the cell lights so I could look in her cell. I turned the lights on and found a large

amount of blood and toilet paper in the toilet, and what looked to be a fetus in the

sink. I then had Smith step out of her cell and told her that I’d let her sit in the cell

with Richey and Shores, as she preferred. I then quickly finished serving the

females trays and reported to Officer Austin Terwilliger about what was going on.

I then called jail administrator Craig Mohr at 0504, to which he advised to call EMS

to have her transported to the hospital to be checked out. I called EMS at 0508.

They got a crew in route, and I went back to North wing to inform Smith and gather

more information. She told me that last night (12/14/2021) around 2000-2100, she

noticed that she had some discharge and that she didn’t think too much of it. Then

she said that about an hour and a half before I served breakfast, she began to cramp,

and she described it as feeling like contractions. She stated that she told the other

females in the wing but didn’t tell us (jail staff) in case “it turned out to be nothing.”

Then she said that she had “passed it” “just a little while” before I came to the wing

to serve trays. EMS arrived at 0516, removed the fetus from the cell, and then

transported Smith to the hospital.

(ECF No. 53-4 at 1; ECF No. 61 at 6).

Videos

The Court has reviewed the videos referenced by Plaintiff in her Brief and Statement of

Facts. As previously noted, the Court confirms there is no audio.

Dayroom 21: In her Statement of Facts, Plaintiff identifies this video as when she told

Defendant Gamble about the slightly bloody mucous she discovered on her toilet paper after she

urinated on the evening of December 14, 2021. (ECF No. 61 at 4). In this video there are three

female inmates in the dayroom, including Plaintiff. What appears to be animated discussions occur

between the inmates throughout the video, with the inmates smiling and laughing at times.

Plaintiff and another inmate tinker with some sort of equipment with a lit screen on the wall. At

00:35:43 one inmate leaves the dayroom and appears to come back with a tissue. Plaintiff appears

to dab her eyes, but she continues watching the lit screen. The inmate pats her on the back and

gives her a one-armed hug. Plaintiff appears to blow her nose. The back pat and hug are repeated.

Plaintiff appears to smile and continues looking at the screen. Other inmates are seen smiling and

laughing. Plaintiff approaches the screen and taps at it. She hugs the second inmate. At 00:42:36

Plaintiff leaves the dayroom, but she returns at 00:50:31. The inmates are seen laying down to

watch TV. At 00:52:51 Defendant Gamble and a male guard open the dayroom door. One inmate

points at Plaintiff and Plaintiff comes to the door and takes something from the guard. She then

immediately returns to the screen on the wall. The female guard returns and Plaintiff points to

something on the screen. Plaintiff and a male guard look in the dayroom and then leave the

doorway. The three inmates stand in the doorway and hall and appear to talk to the guards. They

come back into the cell and appear to be wiping something from a small cup onto their feet. At

00:56:23 Plaintiff leaves the dayroom again and then returns at 00:59:14. None of the inmates

appeared to be in any physical distress. Other than the brief period of possible tears from Plaintiff,

the overall mood of the group appeared to be light-hearted.

Dayroom 23 Hallway: In her Brief, Plaintiff identifies this video as when she contacted

Defendant Gamble concerning the bloody mucous on her toilet paper. (ECF No. 60 at 2). At

timestamp 00:17:41 Plaintiff backs out of the cell nearest the camera and walks down the hall to

her cell. She fiddles with hair bun. At 00:18:17 another inmate walks down to Plaintiff’s cell

doorway and then walks back. At 00:19:17 the same inmate appears at the door of the closest cell

briefly. At 00:25:11 Plaintiff exits her cell and walks into the second cell. At 00:27:34, the head

of a masked female guard appears. She opens the cell door closest to the camera. The top of a tan

hat appears briefly beside her to the left. The guard moves off-screen. A blonde inmate comes

out of the cell. She seems to be talking to the guard, but one can mostly see only the top of the

inmate’s head. A guard moves partially back into screen view. A male guard with a tan hat appears

briefly and talks though the cell door. A third inmate and the blonde inmate appear on the screen.

Plaintiff appears at the door, although her face shows only briefly. It is mostly her hair bun that

appears on screen. The three appear to be talking to the guards. The blonde inmate smiles and is

seen talking, then she smiles again. The three inmates return to the cell. At 00:29:52 Plaintiff

exits the cell and returns to the next cell down. She then comes back out again and returns to cell

closest to camera with the other inmates. At 00:31:12 Plaintiff exits the cell again and walks down

the hall. She looks out the window by the exit briefly and returns to the far cell. At 00:33:52

Plaintiff walks back to the other cell. Plaintiff is seen fiddling with hair again. At 00:34:27 another

inmate comes out of the cell, looks out the window, looks in the far cell, and comes back to the

closest cell. No further activity occurs during the rest of the video.

Hallway 31: In her Brief, Plaintiff describes this as her second request for emergency help,

and indicates it is post-delivery. (ECF No. 60 at 2). Timestamp 00:39:00: Jailer Gamble squats

down and talks through bean-hole. Jailer Gamble immediately walks down the hall and comes

back quickly with the key. She opens the cell door and pauses a second. She talks to a male guard.

She turns from the cell with what appears to be a shocked expression and gestures with her hands

while walking back toward the male guard. The male guard looks in cell and walks away quickly.

Timestamp 00:40:36: Jailer Gamble comes back and gestures for Plaintiff to come out of the cell.

Plaintiff appears wrapped in a blanket and follows Jailer Gamble down the hall. Plaintiff appears

to be crying; she leans against the wall. She goes into the next cell. Timestamp 00:41:33: Jailer

Gamble comes back and finishes breakfast delivery. Both male and female guard looking through

the bean-hole to the second cell. Timestamp 00:55:48: Jailer Gamble takes away a food tray.

Timestamp 00:56:24: Jailer Gamble comes back and talks through the bean-hole again. Both

guards’ body language and facial expressions (to the extent that any could be seen with face masks)

appear to show concern and empathy throughout the video. At 01:00:00 Plaintiff is still in the cell.

Elapsed time is approximately 21 minutes.

Hallway 32: In her Statement of Facts, Plaintiff identifies this as a continuation of the post-

delivery response. (ECF No. 61 at 5). An inmate appears in the hallway at timestamp 00:00:12,

and then returns to a cell carrying what something white. Time stamp 00:00:44: Jailer Gamble

hands a roll of toilet paper into the cell. At time stamp 00:00:53, an inmate reappears at the cell

door and hands Jailer Gamble a white drawstring bag. At 00:01:10 Plaintiff appears in the doorway

and rewraps herself in blanket as she walks. She goes back to her initial cell. An EMT appears at

00:03:12 and is seen moments later coming out of cell carrying the fetus in a biohazard bag at

00:06:42.

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, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986), 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).

“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.” National Bank of Commerce v. Dow Chemical Co., 165

F.3d 602, 607 (8th Cir. 1999).

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.” National 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. ANALYSIS

A. Plaintiff’s Failure to Comply with Local Rules

Plaintiff submitted a document entitled “Statement of Indisputable Material Facts” with

her Summary Judgment Response. (ECF No. 61). This document was not filed in compliance

with either the Court’s Order directing her Summary Judgment Response or the Local Rules of

Civil Procedure. Local Rule 56.1(a) requires any party moving for summary judgment to submit

a separate statement of undisputed material facts. Local Rule 56.1(b) requires the non-moving

party opposing the summary judgment motion to file a separate statement of disputed facts. Pro

se inmates are advised of this requirement in the Order directing them to file a summary judgment

response. Specifically, pro se inmates are advised in the Order directing their Response that “[i]f

you dispute any facts contained in the Defendants numbered Statement of Undisputed Facts, you

must identify the number of the paragraph you dispute and you must explain why you dispute the

statement.” Pro se inmates are also advised of this requirement in the District’s Prisoner Litigation

Guide, which contains an example to help them understand the concept of using the same

paragraph numbering as that used by the moving party in their own statement of disputed facts.

Here, Defendants provided a Statement of Indisputable Material Facts comprised of 236 numbered

paragraphs. Plaintiff’s Statement of Facts is comprised of 14 paragraphs, and Plaintiff does not

attempt to correspond those 14 paragraphs to any of those in Defendants’ Statement of Facts or to

dispute any identifiable paragraphs.

Due to Plaintiff’s failure, Defendants’ Statement of Facts is deemed admitted pursuant to

Local Rule 56.1(c). In determining whether there are genuine disputes of material fact, however,

the Court has also considered the allegations set forth in Plaintiff’s verified Amended Complaint.

A verified complaint is the equivalent of an affidavit for summary judgment purposes. See, e.g.,

Roberson v. Hayti Police Dep’t., 241 F.3d 992, 994-95 (8th Cir. 2001). “[A] complaint signed and

dated as true under penalty of perjury satisfies the requirements of a verified complaint . . ..” Id.

As the Court in Roberson pointed out, “[a]lthough a party may not generally rest on his pleadings

to create a fact issue sufficient to survive summary judgment, the facts alleged in a verified

complaint need not be repeated in a responsive affidavit to survive the summary judgment motion.

Id. The Court will, therefore, “piece[] together [Plaintiff’s] version of the facts from the verified

complaint . . ..” McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5,

2016).

B. No Evidence of Deliberate Indifference

The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate

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

Cir. 2012). To prevail on her Eighth Amendment claim, Plaintiff must prove that Defendants acted

with deliberate indifference to her serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106

(1976).

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

component: ‘The [Plaintiff] must demonstrate (1) that [she] 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 she suffered from an objectively serious medical need, the Plaintiff must

show she “has been diagnosed by a physician as requiring treatment” or has an injury “that is so

obvious that even a layperson would easily recognize the necessity for a doctor’s attention.”

Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (citation omitted).

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. Correctional 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.

It is well settled that “[a] prisoner’s mere difference of opinion over matters of expert

medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional

violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal citation omitted). An

“inmate must clear a substantial evidentiary threshold to show the prison’s medical staff

deliberately disregarded the inmate’s needs by administering inadequate treatment.” Id. (internal

citations omitted). Despite this, issues of fact exist when there is a question of whether medical

staff exercised independent medical judgment, and whether the decisions made by medical staff

fell so far below the reasonable standard of care as to constitute deliberate indifference. See Smith

v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).

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

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

Estelle, 429 U.S. at 104–05. However, the “Constitution does not require jailers to handle every

medical complaint as quickly as each inmate might wish.” Jenkins v. County of Hennepin, Minn.,

557 F.3d 628, 633 (8th Cir. 2009). “A prisoner alleging a delay in treatment must present verifying

medical evidence that the prison officials ‘ignored an acute or escalating situation or that [these]

delays adversely affected his prognosis[,]’” Holden v. Hirner, 663 F.3d 336, 342 (8th Cir. 2011)

(citations omitted), unless the need for medical attention is obvious to a layperson, in which case

the plaintiff need not submit verifying medical evidence to show the detrimental effects of delay.

See Schaub, 638 F.3d at 919 (citing Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999));

Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995); cf. Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.

1995) (“noting that a delay in treatment, coupled with knowledge that an inmate is suffering, can

support a finding of an Eighth Amendment violation”).

The Court wishes to stress that it is very sympathetic to Plaintiff’s loss. Plaintiff’s

allegations concerning that loss, however, fail to meet either prong of the deliberate indifference

test. Plaintiff also failed to provide any verifying medical evidence that any delay in treatment

adversely affected her prognosis.

Concerning the objective prong of the test, Plaintiff was not diagnosed as pregnant by a

physician or other medical professional, either before or during incarceration. Instead, Plaintiff

testified that she reported herself pregnant on intake based on the results of a home pregnancy test

she bought at the Dollar Store. (ECF No. 53-6 at 23, 28). She took this test at the end of August

2021. (Id. at 27). She testified that she did not receive prenatal care with a physician prior to being

incarcerated. (Id. at 23-24, 28). She had scheduled an appointment with the county health

department, but she did not attend the appointment because she and her “ex” were fighting and

arguing at the time. (Id. at 24). Thus, she was never diagnosed as pregnant by any medical

professional prior to being incarcerated. She was incarcerated for eight days in October 2021 prior

to the incarceration at issue in this case (which occurred in November and December 2021). (Id.).

She did not seek prenatal care from the medical providers at the jail in October. (Id.). She did not

seek prenatal care from the medical providers the jail in November or December. (Id. at 24, 26,

54). Instead, she only asked for “Tums and stuff.” (Id. at 26). She did not see the jail’s doctor for

any reason. (ECF No. 53-6 at 54). Even if she had been diagnosed as pregnant by a physician, it

is well-established in the Eighth Circuit that “a woman’s pregnancy is generally not, alone, a

serious medical need.” Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir. 1997).

In the absence of a medical diagnosis of a serious medical need, any symptoms concerning

her pregnancy must have been so obvious that a layperson would easily recognize the need for

treatment. See Jones v. Minnesota Dept. of Corrections, 512 F.3d 478, 482 (8th Cir. 2008)

(Because the deceased inmate was not diagnosed by a physician as requiring treatment, his

condition “must have been so obvious that a layperson could easily recognize the need for

treatment” to establish a serious medical need.). For example, in Pool v. Sebastian County, Ark.,

418 F.3d 934, 945 (8th Cir. 2005), the Eighth Circuit found a serious medical need that was

obvious to a layperson where an inmate was pregnant, bleeding, and passing blood clots. In

Coleman, the pregnant inmate’s medical records indicated a history of rapid labor and premature

delivery. Coleman, 114 F.3d at 784-85. The inmate complained of an increase in vaginal

discharge, “bloody show,” uterine contractions six minutes apart, and abdominal pain. (Id. at 784.)

Of particular importance to the current case, the inmate in Coleman — a layperson — believed

herself to be in pre-term labor and asked directly and repeatedly for specific and immediate

medical care. (Id. at 782-85).

Regarding general prenatal care prior to December 14, 2021, Plaintiff alleges she spoke

with Defendant Mohr, the Jail Administrator, about prenatal care. She testified she told Defendant

Mohr that she had an upcoming appointment scheduled at the end of November with Dr. Rocha,

but she did not remember the exact date of the appointment, and her father did not bring the

appointment sheet to the jail because he is disabled. (ECF No. 53-6 at 22-23, 29). Defendants’

Statement of Facts indicates that the last scheduled appointment with Dr. Rocha of the Mena

Center for Women’s Health was February 17, 2017. (ECF No. 53 at 1). Plaintiff also testified she

spoke with Defendant Mohr briefly in person about two weeks after being incarcerated, and after

that, she put in a kiosk request. (ECF No. 53-6 at 55). Defendant Mohr stated in his affidavit that

Plaintiff did not ask him for prenatal care, and he was not aware of any risks or complications with

her pregnancy. (ECF No. 53-1 at 1). He noted she had regular access to medical care through the

facility medical provider. (Id.). He states Plaintiff put in a Request Form on December 10, 2021,

but he interpreted this request to be one for release from the detention center, not a medical request

for prenatal care. (Id. at 2). He stressed that if she was seeking medical care, she should have put

in a Medical Request rather than a general Request Form. (Id.). Defendants attached copies of

Plaintiff’s kiosk requests. The Request Form dated December 10, 2021, states:

craig I got a plea offer of 72 months yesterday would you and Scot Sawyer consider

letting me out waiting on a bed like ya’all did last time if I was to sign for it so I

can get everything straight at home with my dad and little brothers and all my affairs

and be able to say bye to my daughter and go to the doctor and get everything put

in place for this baby im pregnant with

(ECF No. 53-3 at 8). The Court agrees with Defendant Mohr that the emphasis in this request is

on release, not prenatal care. Plaintiff also made a request to Defendant Mohr for release with an

ankle monitor on December 13, 2021. No mention is made of her baby or prenatal care in that

request either. (Id. at 9). Plaintiff did not submit any medical requests between her intake on

November 14, 2021, and her miscarriage on December 15, 2021. (ECF No. 53 at 1). Plaintiff also

testified that she had been pregnant twice before, and she did not have a history of complications.

(ECF No. 53-6 at 51). She lost her first pregnancy at 16 when she was hit in the stomach during

a fight. (Id. at 47). Her second pregnancy carried to term when she was 22 and resulted in her

daughter. (Id. at 48).

Plaintiff also did not make any requests for emergency medical or prenatal care, including

a doctor or an ambulance, the evening of December 14, 2021. (ECF No. 53-6 at 35). In her

deposition testimony she described the vaginal discharge as “snot with a little bit of blood,” “just

enough to see it in the mucous,” and stated she “didn’t think much about it,” and did not know

anything was wrong until 4:40 a.m. when she went into labor. (Id. at 58, 61-62). She further

testified that when they told her to lay down, she went to the dayroom and watched TV for a little

bit and then fell asleep. (Id. at 59). The Court viewed the videos Plaintiff indicates covered this

time, and Plaintiff exhibited no obvious signs of physical distress. Plaintiff testified that

Defendants Gamble and Terwilliger came in at 2:00 a.m. and told the inmates it was time for

lockdown. (Id. at 59, 61). They asked her if she was okay, and she told them she was okay

because, “at that point, I thought maybe I was since I hadn’t been doing nothing.” (Id. at 61). She

also testified she was not having any pain at that time. (Id.). She then laid down in her cell and

slept until 4:40 a.m. when she woke up with sharp pain and feeling as though she needed to urinate.

(Id. at 60). She testified that from 9:00 p.m. until 4:40 a.m. everything was fine. (Id. at 36).

Thus, Plaintiff herself did not believe anything was wrong and did not request emergency

medical care on the evening of December 14, 2021. Given this fact, the Court is unable to discern

how two layperson jailers could have known that she was at risk of miscarrying. The Court can

find no evidence of an objectively serious medical need obvious to a layperson in the summary

judgment record for December 14, 2021.

This leaves the morning of December 15, 2021. There is no dispute that Plaintiff’s

precipitous labor and delivery was an objectively serious medical need. Her allegations do not,

however, meet the second subjective prong of the deliberate indifference test. Plaintiff testified

everything was fine between 9:00 p.m. and 4:40 a.m. (ECF No. 53-6 at 36). She testified that she

did not bleed until right before she delivered the fetus. (Id. at 34-35, 62). She stated she banged

on the cell door at 4:40 a.m. because she was having pain in her back and stomach, or contractions.

(Id. at 36). She felt like she had to urinate, felt some pressure, and then the baby was delivered.

(Id. at 62-63). She estimated the “whole labor” took “a minute.” (Id.). She stated no one came

immediately because they were getting breakfast ready in the kitchen. (Id.). Defendant Gamble

got to her cell about five minutes after she banged on the door, at which point she told her that she

had delivered her baby. (Id. at 31, 36). Defendant Gamble then turned on the lights, pulled her

out of the cell and put her in with her cousin in the next cell over. She brought her a pair of clean

pants. She then finished serving breakfast and told Plaintiff she needed to figure out what she

needed to do. (Id.). Plaintiff confirmed that it was about five minutes from the time she had her

child until Defendant Gamble arrived at her cell. (Id. at 36). She testified it was about 15 minutes

after she started banging on the door before the EMT arrived. (Id. at 39, 40). The EMT placed

her baby in a biowaste bag, and they were taken in the ambulance to the hospital. (Id. at 32, 40).

The Court reviewed the video of that morning. The elapsed time from Gamble coming to

Plaintiff’s cell door until the EMT’s arrival was approximately 24 minutes. Based on the Court’s

review of the videos relied upon by Plaintiff, Defendant Gamble appeared to act quickly and

compassionately during that time. The Court can find no evidence in the videos, or in the rest of

the summary judgment record, that any Defendants’ action or inactions meet the second, subjective

prong of the deliberate indifference test.

Finally, there is no verifying medical evidence that the prison officials ignored an acute or

escalating situation on December 14 or 15, 2021, or that any delays in medical care adversely

affected Plaintiff’s prognosis. To the contrary, the medical records from the hospital indicate the

baby was a stillbirth, and it was estimated to have been deceased for 3-5 days prior to delivery.

(ECF No. 53 at 5; ECF No. 53-8 at 7; ECF No. 64-1 at 7). Further, Plaintiff testified that the

attending doctor after her miscarriage did not give a diagnosis or any reason as to why the

miscarriage had occurred. (ECF No. 53-6 at 42). She testified that he advised her to get an autopsy

of the fetus done, but she declined to do so because she “didn’t want her cut on.” (Id.). She also

testified the doctor did not tell her that prenatal care would have prevented the miscarriage. (Id.

at 43). Finally, Defendants correctly stress that no medical evidence in the summary judgment

record supports Plaintiff’s contention that general prenatal care would have alerted her to an issue

with the baby’s health and prevented a miscarriage. (ECF No. 64 at 2).

There is no evidence of deliberate indifference in the summary judgment record. As there

was no violation of Plaintiff’s constitutional rights, it is not necessary to address any of Defendants

other arguments at this time. Summary judgment is appropriate as a matter of law.

IV. CONCLUSION

For the reasons discussed above, it is RECOMMENDED that Plaintiff’s Amended

Complaint (ECF No. 10) be DISMISSED WITH PREJUDICE.

Referral Status: This case should not remain referred as all matters have been

recommended for dismissal in 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 30th day of December 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE