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Cox v. Ann

United States District Court, D. Kansas

February 27, 2015

NICHOLAS A. COX, Plaintiff,
v.
ANN (LNU), ET AL., Defendants.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiff Nicholas A. Cox filed this lawsuit against several defendants alleging that they violated the Eighth Amendment and Kansas state law by failing to provide him proper medical care during his incarceration at the New Century Adult Detention Center in Johnson County, Kansas. This matter comes before the Court on defendants Sheriff Frank Denning and Sergeant Duane Dvorak's Motion for Summary Judgment (Doc. 205); defendant Dr. Keith Pattison's Motion for Summary Judgment (Doc. 216); and defendants Correct Care Solutions, LLC ("CCS"), Nurse Ann, and Nurse Rethaford's (collectively, the "CCS Defendants") Motion for Summary Judgment (Doc. 221). In addition, plaintiff has filed a Motion for Continuance and for Defendant Pattison to Clear Up His Summary Judgment Motion (Doc. 234) and an Objection to Magistrate's Memorandum and Order (Doc. 251). For the following reasons, the Court grants defendants' motions for summary judgment and denies plaintiff's Motion for Continuance and for Defendant Pattison to Clear Up His Summary Judgment Motion and his Objection to Magistrate's Memorandum and Order.

I. Facts

The following facts are uncontroverted and stated in the light most favorable to plaintiff, the nonmoving party. On October 7, 2011, plaintiff was arrested on charges of aggravated battery and booked into the New Century Adult Detention Center ("Detention Center") in Johnson County, Kansas. Plaintiff remained in the Detention Center until April 13, 2012, when he was transferred to Larned State Hospital for a court-ordered medical exam. Plaintiff was diagnosed with alcohol and drug dependence, posttraumatic stress disorder, antisocial personality disorder with borderline personality traits, and problems interacting with the legal system. Plaintiff was discharged from Larned and returned to the Detention Center on May 2, 2012. Defendant CCS provides general medical care for inmates at the Detention Center. Upon his return, defendant Dr. Keith Pattison, a physician at the Detention Center, entered an order for plaintiff to receive two daily medications: Wellbutrin XL 150 mg and Seroquel 100 mg.

Inmates at the Detention Center must take their medication during the standard medication pass times each day. However, plaintiff soon began asking to receive his daily dosage at a different time, claiming the medicine was making him drowsy. To make this request, plaintiff filled out and submitted three "Internal Complaint Forms" ("ICF") to prison medical staff between May 13 and May 16, 2012. The medical staff denied all three of plaintiff's requests to take his medication at a different time, explaining that the Sheriff's Office, not medical staff, sets medication pass times.

Unsatisfied, plaintiff filed a grievance on June 1, 2012, again asking to take his medicine at a different time. In this grievance, however, plaintiff admitted, "I have been cheeking my medication and taking it at a later time." Doc. 223-5 at 1. Detention Center and CCS policy both prohibit inmates from "cheeking" their medicine. Paragraph 14(g)(2) of the Detention Center Inmate Orientation, Guidelines, and Rules states, "When you are given your medication, you are to remain in front of the Nurse and [O]fficer and take the medication, then open your mouth to show the Nurse and Officer that you have swallowed the medication." Doc. 207-1 at 1. Under CCS policy, "Inmates found to be cheeking or palming medications will have the medications discontinued. If medications cannot be discontinued, medications will be crushed or given in liquid form if available, upon physician request and order." Doc. 223-18 at 3. Under this policy, Dr. Pattison entered an order discontinuing plaintiff's medication on June 1, 2012, the same day plaintiff admitted to the cheeking violation.

This decision prompted plaintiff to begin filing grievances requesting his medication. The Detention Center provides a system for inmates to file grievances with supervisors in various parts of the prison ( i.e., medical, food service, security). Grievances are screened initially by the Grievance Coordinator, who reviews each grievance and then decides whether to accept or reject it. The grievance procedures prescribe several reasons making rejection appropriate, one of which applies when the inmate has failed to use the grievance "levels." These grievance "levels" refer to an appeals system an inmate must exhaust before filing a lawsuit based on the grievance or before filing another grievance about the same issue. Initially, an inmate must file his grievance at "Level I"-to a sergeant, nursing supervisor, or food service director. The recipient must respond to the grievance within 5 days. If the grievance is denied, the inmate can appeal the adverse decision to "Level II." The plaintiff again must receive an adverse decision before appealing to "Level III, " and the process repeats up to "Level IV." Defendant Sgt. Duane Dvorak served as the Grievance Coordinator for the grievances at issue in this case.

Plaintiff filed his first grievance requesting his medication on June 2, 2012, the day after Dr. Pattison discontinued it. Plaintiff directed this first grievance to the nursing supervisor, writing, "I am grieving the fact that my meds were taken. I have a serious mental health disease and I need them. They were taken without even consulting with me. This is a deliberate indifference to a serious medical need. I would like the name of who is responsible." Doc. 223-7. On the same day, plaintiff submitted a largely identical second grievance to "Mental Health, " which again stated that plaintiff had a "serious medical need for those medications" and that discontinuing them was "deliberate indifference to my serious medical need." Doc. 223-9. Like the first grievance, the second June 2 grievance made no claim that plaintiff was physically sick or injured. On June 3, plaintiff filed a third grievance with "Mental Health." Doc. 223-10. This third grievance largely resembled the first two, except it stated, "I have been ill for 3 days withdrawing from my medication I shouldn't have had to withdraw[] from." Id.

On June 3, 2012, defendant Nurse Rethaford responded to plaintiff's first June 2 grievance, stating, "Your medication was discontinued by the Psychiatrist as it was reported, and you have yourself confirmed, that you were cheeking your medication." Doc. 223-8. On June 4, Sgt. Dvorak, the Grievance Coordinator, provided a response to plaintiff rejecting his second June 2 grievance and his June 3 grievance because those two grievances complained about the same incident as plaintiff's first one. Sgt. Dvorak wrote: "All three grievances regard the same matter. Multiple grievances regarding the same matter will not be accepted.... [Y]ou may grieve to Lt. Prothe [at Level II] if you are not satisfied." Doc. 223-11 at 1.

Plaintiff followed Sgt. Dvorak's suggestion and continued the internal appeals process, filing a grievance with Lt. Prothe on June 5, 2012. The June 5 grievance was the first time plaintiff complained about specific symptoms: "I suffered headaches, throwing up, sleeplessness, and other untold injury...." Doc. 212 at 24. Lt. Prothe rejected this grievance because plaintiff had admitted to cheeking his medicine, but he also wrote: "You list several medical needs in your ICF. You should submit a medical request form if you want these to be addressed by our medical staff." Doc. 212 at 25. Unlike grievances, which the Grievance Coordinator screens, medical request forms go directly to prison medical staff. Under CCS policy, "Inmates will have the opportunity to request health care daily. Their requests will be documented, triaged and referred as appropriate." Doc. 223-19 at 1. CCS policy also states that "inmates do not go through security staff for non-emergent health care requests." Id.

Also on June 5, plaintiff submitted an ICF addressed to "Psych Dr." Doc. 223-12. It stated, "I need my meds. I am very mentally ill." Id. In response, defendant Nurse Ann wrote, "Mr. Cox, Dr. Pattison has denied your medications." Id. On June 8, 2012, plaintiff submitted a Request for Medical Care that said: "I NEED MY MEDS." Doc. 223-13. At the bottom of this Request, someone wrote, "Reply on ICF, " referring plaintiff to the decision denying his June 5 ICF. Id. The June 8 Request for Medical Care was the only request plaintiff submitted directly to the medical staff during the times relevant to this lawsuit.

On June 9, 2012, plaintiff continued the appeal of his original June 2 grievance. He submitted a grievance to Capt. Shafer (Level III) that said, "I have sustained injury (physical), pain, and suffering. The doctor hasn't seen me or responded. It's been 10 days. I have suffered through depression, a broken finger, headaches, throwin[g] up, and other issues...." Doc. 212 at 26. Capt. Shafer denied this grievance and instructed plaintiff to complete a "medical request form" to be treated by the medical staff. Doc. 212 at 27. On June 14, 2012, plaintiff filed a grievance with Major Cortright, the last level of appeal (Level IV). Plaintiff again complained about the decision to discontinue his medication and stated that he had suffered a broken finger. Major Cortright denied plaintiff's grievance but discussed plaintiff's allegedly broken finger. He wrote: "I talked with the Medical Staff and they state they have no documentation of any type of finger injury. They tell me that you have not requested to see them for this issue. I have asked that you be added to the list to be seen for your finger and they assured me that you would be seen." Doc. 212 at 30.

On June 14, Dr. Pattison entered an order for plaintiff to begin receiving his medication again. Nevertheless, plaintiff refused to take his medicine on June 14-18, 20-22, 24, 26, and 30; July 4, 6, 8, 12, 14, 18, 20, 22, and 28; August 21, 23, 25, 27, and 29; and September 5. Doc. 222-5 at 1. On June 15, plaintiff's finger was examined in the prison medical clinic, but the treating doctor found "no noticeable issues" with his finger. Doc. 223-15. The doctor ordered an x-ray which revealed "no fracture, dislocation or bony reaction." Doc. 223-16.

Plaintiff filed this lawsuit in state court on September 14, 2012, and defendants removed the case on October 18, 2012. Plaintiff has twice amended his initial pleading, and the Second Amended Complaint (Doc. 159) now controls. Counts I-III of the Second Amended Complaint assert claims under 42 U.S.C. § 1983 that defendants were deliberately indifferent to his serious medical needs when they failed to treat him during the two week period he was off of his medication. Counts IV and V bring state law negligence claims against defendants. Defendants have filed three motions for summary judgment, which the Court considers here.

II. Legal Standards

A. Pro Se Litigant's Lack of Compliance with Local Rules

Defendants satisfied D. Kan. Rule 56.1(f) by sending plaintiff a "Notice To Pro Se Litigant Who Opposes a Motion For Summary Judgment" for each of the three motions they filed. See Docs. 208, 224, 226. These notices advised plaintiff that if he did "not respond to the motion[s] for summary judgment on time with affidavits and/or documents contradicting the material facts asserted by the defendant[s], the court may accept defendant[s'] facts as true, in which event [plaintiff's] case may be dismissed and judgment entered in defendant[s'] favor without a trial."

Plaintiff explicitly declined to respond to Dr. Pattison's and the CCS Defendants' motions for summary judgment. Doc. 251 at 2. He filed a brief opposing Sheriff Denning and Sgt. Dvorak's motion for summary judgment (Doc. 212) but failed to controvert facts asserted by those defendants or support facts he included for the first time in his brief. Our Court's local rules provide that "[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." D. Kan. Rule 56.1(a). To controvert facts in the fashion the rule requires, the nonmoving party must number the facts and "refer with particularity to those portions of the record upon which the opposing party relies, and, if applicable, state the number of movant's fact that is disputed." D. Kan. Rule 56.1(b)(1). Here, plaintiff has disputed some of defendants' facts but failed to cite any part of the summary judgment record for support. Because plaintiff has not controverted defendants' facts in the manner prescribed by the local rules, the Court deems defendants' properly supported facts admitted and accepts them as true.

In addition, plaintiff has asserted 14 additional factual statements as part of his brief opposing Sheriff Denning and Sgt. Dvorak's motion for summary judgment. Defendants have controverted all 14 statements, arguing plaintiff did not support them properly as required by Fed.R.Civ.P. 56(c) and D. Kan. Rule 56.1(b). D. Kan. Rule 56.1(b)(2) provides, "If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record...." The Court has reviewed plaintiff's statements of fact and concludes that he has supported just two with citation to the record. The Court considers those two but need not accept the rest.

Although plaintiff is a pro se litigant and the Court must construe his filings liberally, the Court will not serve as his advocate and will not accept as true conclusory allegations unsupported by evidence in the record. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Plaintiff's pro se status does not excuse him from complying with federal and local rules. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) ("This court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." (citations and internal quotation marks omitted)). Thus, the Court does not accept plaintiff's factual statements that are not supported by proper evidence.

B. Summary Judgment Standard

Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When it applies this standard, the Court views the evidence and draws inferences in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). "An issue of fact is genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party' on the issue." Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "An issue of fact is material' if under the substantive law it is essential to the proper disposition of the claim' or defense." Id. (quoting Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).

The moving party bears "both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law." Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (internal quotation marks omitted). To meet this burden, the moving party "need not negate the non-movant's claim, but need only point to an absence of evidence to support the non-movant's claim." Id. (internal quotation marks omitted).

If the moving party satisfies its initial burden, the non-moving party "may not rest on its pleadings but must bring forward specific facts showing a genuine issue for trial as to those dispositive matters for which it carries the burden of proof." Id. (internal quotation marks omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 248-49. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Adler, 144 F.3d at 671. A court "need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3).

Summary judgment is not a "disfavored procedural shortcut." Celotex, 477 U.S. at 327. Rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action.'" Id. (quoting Fed.R.Civ.P. 1).

C. Qualified Immunity Standard

Sheriff Denning and Sgt. Dvorak, as municipal employees, assert a qualified immunity defense in their motion for summary judgment. When a defendant moves for summary judgment based on qualified immunity, the Court applies a different standard than the one applied to summary judgment rulings. Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008). "When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff to satisfy a strict two-part test: first, the plaintiff must show that the defendant's actions violated a constitutional or statutory right'; second, the plaintiff must show that this right was clearly established at the time of the conduct at issue.'" Id. (quoting Nelson v. McMullen, 207 F.3d 1202, 1205 (10th Cir. 2000)). "If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment-showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.'" Id. (quoting Nelson, 207 F.3d at 1205).

To decide whether the plaintiff has met his burden of establishing a constitutional violation that was clearly established, the Court must construe the facts in the light most favorable to plaintiff. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). "However, because at summary judgment we are beyond the pleading phase of the litigation, a plaintiff's version of the facts must find support in the record: more specifically, as with any motion for summary judgment, 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." Id. (citations and internal quotations marks and alterations omitted).

III. Analysis

A. Plaintiff's Motion for Continuance and for Defendant Pattison to Clear Up His Summary Judgment Motion (Doc. 234)

Before reaching defendants' summary judgment motions, the Court must discuss plaintiff's Motion for Continuance and for Defendant Pattison to Clear Up His Summary Judgment Motion, which he filed on July 21, 2014. In the motion, plaintiff points out an error in Dr. Pattison's memorandum in support of his motion for summary judgment (Doc. 217). Dr. Pattison's memorandum refers to an Exhibit 2 with page numbers that do not correspond to the Exhibit 2 that he attached to his memorandum. Furthermore, ¶ 7 of the memorandum identifies Exhibit 2 as "(Defendant Pattison's attached Exhibit 2, Report by Dr. Joseph V. Penn, pg. 24)." Later paragraphs simply refer to Exhibit 2 at pages 24, 25, or 26. See Doc. 217 at ¶¶ 8, 9, 12, 15, 18-22, 31, 33-37, 39, and 41. But despite these references within the memorandum, Dr. Pattison attached plaintiff's Amended Petition (Doc. 55) as Exhibit 2. It is evident that Dr. Pattison attached the wrong Exhibit 2 to his memorandum.

Plaintiff identifies this error in his motion but does not ask for any particular relief from the Court, other than a continuance. Plaintiff argues that he "cannot accurately concur or challenge [Dr. Pattison's] uncontroverted facts if I do not have the appropriate exhibit." Doc. 234 at 2. But plaintiff need not challenge the facts citing Exhibit 2 because the party moving for summary judgment has the burden of supporting factual assertions by accurately citing the record. Fed.R.Civ.P. 56(c).

The fact that Dr. Pattison misidentified an exhibit in his memorandum does not prevent the Court from granting summary judgment, however. While the Court will not consider the factual statements supported by the misidentified Exhibit 2, the Court may still "grant summary judgment if the motion and supporting materials-including the facts considered undisputed- show that the movant is entitled to it...." Fed.R.Civ.P. 56(e)(3). As fully discussed below, the Court has considered the properly supported undisputed facts in Dr. Pattison's memorandum in support of his motion for summary judgment and concludes that he is entitled to summary judgment on the claims against him in this lawsuit.

The only relief plaintiff requested in his July 21, 2014 motion was a continuance, which Judge Rushfelt eventually granted. See Doc. 250. Because the Court already has granted the sole relief plaintiff requested, the Court denies as moot plaintiff's Motion for Continuance and for Defendant Pattison to Clear Up His Summary Judgment Motion.

B. 42 U.S.C. § 1983 - Deliberate Indifference to a Serious Medical Need

The Court now turns to plaintiff's constitutional claims, Counts I-III in his Second Amended Complaint. The Eighth Amendment prohibits unnecessary and wanton infliction of pain caused by a prison official's deliberate indifference to serious medical needs of prisoners. Al-Turki v. Robinson, 762 F.3d 1188, 1192 (10th Cir. 2014). Pretrial detainees-like plaintiff in this case-are protected under the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment. Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002). However, in pretrial detainee cases the Tenth Circuit "applies an analysis identical to that applied in Eighth Amendment cases brought pursuant to § 1983.'" Id. (quoting Lopez v. LeMaster, 172 F.3d 756, 759 n.2 (10th Cir. 1999)). For that reason, the protection provided plaintiff here is the same protection the Eighth Amendment provides prisoners.

An Eighth Amendment deliberate indifference claim requires a plaintiff to prove both an objective and a subjective component. Al- Turki, 762 F.3d at 1192. The objective prong asks: was the prisoner's medical condition "sufficiently serious" to violate the Eighth Amendment? Id. The subjective prong asks: did the defendant-official know of and disregard an excessive risk to inmate health or safety? Id.

1. Plaintiff Has Failed to Present Evidence that His Injuries Were "Sufficiently Serious"

Defendants are entitled to summary judgment on Counts I-III because plaintiff has failed to produce sufficient evidence in support of the objective prong of the deliberate indifference test. "A medical need is considered sufficiently serious to satisfy the objective prong if the condition has been diagnosed by a physician as mandating treatment or is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.'" Id. at 1192-93 (quoting Oxendine v. Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001)). "Where a prisoner claims that harm was caused by a delay in medical treatment he must show that the delay resulted in substantial harm...." Id. at 1193 (citations and internal quotation marks omitted). The "substantial harm" requirement can be satisfied by "lifelong handicap, permanent loss, or considerable pain." Id. (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)). "Thus, the substantial harm' caused by a delay in treatment may be a permanent physical injury, or it may be an intermediate injury, such as the pain experienced while waiting for treatment or analgesics.'" Id. (internal citations omitted). Although not every "twinge of pain" suffered as a result of delay in medical care is actionable, when the pain experienced during the delay is substantial, the prisoner sufficiently establishes the objective element of the deliberate indifference test. Id.

In his Second Amended Complaint, plaintiff alleges that he felt severe withdrawal symptoms after Dr. Pattison discontinued his medication. Specifically, plaintiff asserts that during the two week period without medicine he suffered: "severe depression, throwing up, severe headaches/migraines, stomach aches/pains, loss of appetite, no sleep for three days, the shakes, ' suicidal thoughts, and a broken finger." Doc. 159 at ¶ 34. He states that he sustained the broken finger on June 2, 2012, when he "punched the wall in frustration and desperation from medical staff letting me suffer." Id. at ¶ 35. Plaintiff asserts that his broken finger will cause "arthritis [] for the rest of my life." Id. at ¶ 54.

Based on these allegations, the Court construes plaintiff's Second Amended Complaint to assert two types of "substantial harm": (1) "intermediate injury" from the pain he suffered for the two weeks without his medication and (2) "permanent loss" from the broken finger he alleges will cause arthritis for the rest of his life. Al- Turki, 762 F.3d at 1193.

The most significant problem with plaintiff's injury claims is that he has failed to support them with any evidence from the record as Fed.R.Civ.P. 56 and this Court's local rules require. As discussed above, plaintiff did not controvert any of the factual statements in defendants' motions for summary judgment, either because he did not respond to the motions or because he did not controvert defendants' facts by citing to the record. As a result, the Court deems admitted all properly supported facts in defendants' three motions for summary judgment.[1] Plaintiff includes a statement of facts in his brief opposing Sheriff Denning and Sgt. Dvorak's motion for summary ...


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