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Clark v. Colbert

United States District Court, E.D. Oklahoma

July 18, 2017

GARY CLARK, Plaintiff,
v.
ROBERT COLBERT, in his official and individual capacity as Sheriff of Wagoner County, Okla.,, Defendants.

          OPINION AND ORDER

          James H. Payne, United States District Judge Eastern District of Oklahoma

         Now before the Court is the Defendants Dustin Dorr and Vicki Holland's Motion for Summary Judgment [Dkt. 94]. After consideration of the pleadings, affidavits, and briefs, the Court grants Defendants' motion.

         I. STANDARD OF REVIEW

         Rule 56(a) of the Federal Rules of Civil Procedure provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Summary judgment is not a disfavored procedural shortcut, but an integral part of the federal rules as a whole. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

         In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court held that “there is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” The Court further held that “if the evidence is merely colorable, or not significantly probative, summary judgment may be granted.” Id. In addition, the Anderson Court stated that “the mere existence of a scintilla of evidence in support of a plaintiff's position will be insufficient; there must be evidence on which a jury could reasonably find for the plaintiff.” Id. A movant's summary judgment burden may properly be met by reference to the lack of evidence in support of plaintiff's position. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citing Celotex, 477 U.S. at 325).

         Furthermore, as described by the court in Cone v. Longmont United Hosp. Ass'n., 14 F.3d 526 (10th Cir. 1994), “Even though all doubts must be resolved in (the nonmovant's) favor, allegations alone will not defeat summary judgment.” Cone at 530 (citing Celotex, 477 U.S. at 324). See also Hall v. Bellmon, 935 F.2d 1106, 111');">111');">111');">1111 (10th Cir. 1991); Roemer v. Pub. Serv. Co. of Colo., 911 F.Supp. 464, 469 (D. Colo. 1996). Moreover, “(i)n response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial.” Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

         II. UNDISPUTED FACTS

         Reviewing the evidentiary material submitted by the parties, the Court finds that there are no material disputes as to the following facts:

         On August 19, 2014, the Wagoner County District Attorney filed a criminal Information in Wagoner County District Court Case No. CF-14-421 alleging Plaintiff had assaulted and battered Larry Clark and had assaulted Defendant Dorr on August 18, 2014. The Information charged Plaintiff with one count of assault and battery with a dangerous weapon and one count of assault with a deadly weapon. On August 22, 2014, the District Attorney filed a Second Page Information setting forth information regarding Plaintiff's prior convictions.

         On August 18, 2014, an Affidavit for Search Warrant was executed and ultimately filed of record in the Wagoner County District Court Case No. CF-14-421 on August 25, 2014. The Affidavit states the Broken Arrow Police received a call for assistance from the Wagoner County Sheriff's Office on August 18, 2014 in reference to assault at 9501 South Hillcrest Drive in Wagoner County. The Affidavit states the victim advised officers that Plaintiff had attacked him using a kitchen knife, the victim advised officers that Plaintiff had been off of prescribed medications for a mental condition, and that this was not the first incident in which Plaintiff had been involved with law enforcement due to mental issues.

         On August 19, 2014, Defendant Dorr executed a Probable Cause Affidavit for Arrest Without Warrant regarding the underlying incident and outlining possible criminal charges for the Plaintiff's assault of his brother, Larry Clark. The Affidavit was filed of record in Wagoner County District Court Case No. CF-14-421 on September 3, 2014. On August 19, 2014, Defendant Dorr also executed a Probable Cause Affidavit for Arrest Without Warrant regarding the underlying incident and outlining possible criminal charges for the Plaintiff's assault of peace officers. This Affidavit was not filed of record in Wagoner County District Court Case No. CF-14-421.

         On August 25, 2014, Defendant Dorr executed a Probable Cause Affidavit for Arrest Without Warrant regarding the underlying incident and outlining possible criminal charges for the Plaintiff's assault of Larry Clark and peace officers. The Affidavit was filed of record in Wagoner County District Court Case No. CF-14-421 on September 3, 2014. (Ex. 6, Third Probable Cause Affidavit for Arrest Without Warrant).

         On January 27, 2015, a preliminary hearing was held in Wagoner County District Court Case No. CF-14-421 at which Plaintiff was represented by counsel. At the hearing, the court heard extensive testimony regarding the reasons that Larry Clark called the Sheriff's Office about Plaintiff on August 18, 2014, and about Plaintiff's mental health status on that date. The Wagoner County District Court overruled Plaintiff's demurrer, found probable cause existed to believe that Plaintiff committed the crimes alleged in the Information and bound Plaintiff over for trial. A Preliminary Hearing Bind Over Order was filed of record that same day, January 27, On June 5, 2015, the District Attorney filed an Amended Information and an Amended Second Page Information in the underlying criminal action. The filing did not alter or amend the charges against Plaintiff, but rather amended the information regarding Plaintiff's prior convictions.

         Defendant Holland was employed by the Wagoner County Sheriff's Office, part-time, to provide medical care and treatment to the inmates in the Wagoner County Jail. She was employed in this capacity from September 14, 2013 until August 1, 2015. During this same time period, she was employed by the Jack C. Montgomery VA Medical Center in a full-time capacity and is still employed full-time by the Jack C. Montgomery VA Medical Center. Defendant Holland is an Advanced Practice Registered Nurse-Certified Nurse Practitioner (APRN-CNP). She has held her APRN-CNP certification since October 7, 1996. Her Prescriptive Authority recognition was first issued on February 4, 1997. She was first licensed as a Registered Nurse on September 5, 1978. As an APRN-CNP in Oklahoma, Defendant Holland is allowed to independently diagnose and treat patients without physician involvement and is also allowed to independently prescribe medications. She is a primary care provider.

         Plaintiff was discharged from the St. John Medical Center on August 29, 2014, by Brandon King, APRN-CNP. Plaintiff's Clinical Discharge Instructions advised he should have a follow-up with Jules Dumais of Tulsa Bone and Joint within 7-10 days, follow-up with St. John Trauma Service as needed - only if needed, follow-up with Barry Eisen of St. John Clinic -Gastroenterology as needed, and a follow-up with his primary care provider within 3-4 days. Plaintiff was first booked into jail following his injury on August 29, 2014. According to his records, the Plaintiff was injured by gunshots on August 19, 2014. During his initial inmate intake and medical screening, Plaintiff indicated that he did not have any pain, injury or medical condition that required the care of a doctor.

         Defendant Holland was not scheduled to work in the Wagoner County Jail on August 29, 2014. However, shortly after the Plaintiff was booked into the Wagoner County Jail, she received his Clinical Discharge Instructions from St. John Medical Center. After her review of the discharge instructions, she called the discharging nurse practitioner, Brandon King, APRN-CNP, to discuss the Plaintiff's medical care and treatment needs. During her conversation with Brandon King, APRN-CNP, she took notes on the discharge paperwork. She also verified the Plaintiff's current prescriptions. Brandon King, APRN-CNP, confirmed that there was no need for follow up care with any other doctor or specialist at the time since the Plaintiff would be in Defendant Holland's care during his incarceration. From the time of Plaintiff's incarceration in the Wagoner County Jail from August 29, 2014 until her last day working in the jail on August 1, 2015, Defendant Holland examined the Plaintiff on ten occasions.

         On August 30, 2014, Defendant Holland made a special trip to the Wagoner County Jail for the sole purpose of providing medical care and treatment to the Plaintiff after learning about his release from the hospital and transfer to the jail one day earlier. During her examination of the Plaintiff on August 30, 2014, among other things, Defendant Holland noted Plaintiff's injuries and that he had no active bleeding. She also noted that Plaintiff had healing surgical wounds at his right femur and on his abdomen; the gunshot wounds on Plaintiff's left flank and left upper back were seeping, but there were no signs or symptoms of infection. Her instructions to the medical staff and jailers were to provide a bath daily to the Plaintiff, wash the gunshot wounds with soap and water and place dry dressings over the two wounds which were still draining, walk the Plaintiff every three hours, Plaintiff was to use the bathroom as needed and was to sit up for all meals. She prescribed Plaintiff 325mg of Aspirin daily to suppress blood clot presentations and ordered him to continue all other medications prescribed from the hospital.

         On September 4, 2014, Defendant Holland again evaluated Plaintiff's gunshot wounds. The gunshot wounds on Plaintiff's back and abdomen were all healing well with minimal clear drainage; however, the incision on Plaintiff's right femur was red and warm to the touch and had began draining with a foul odor. She prescribed Plaintiff Clindamycin three times per day for seven days and Augmentin twice daily for seven days to treat any infection. She also ordered that Plaintiff's daily baths and changing of the dressings on his wounds to continue.

         On September 11, 2014, Defendant Holland performed an evaluation of Plaintiff's gunshot wounds and surgical incision on his right leg. The surgical incision was still draining but had less redness and appeared to be much better. She ordered his prescriptions of antibiotics to continue for an additional seven days.

         On September 18, 2014, Defendant Holland performed a follow up examination of the Plaintiff's injuries. Plaintiff reported that he was feeling good, but that his right leg was stiff. The wounds on Plaintiff's back and abdomen were continuing to heal with no drainage. She removed the staples on the upper portion of his surgical incision. She did not remove the staples from the incision around the knee due to some continuing redness and drainage. She ordered that his prescription antibiotics continue for an additional seven days and Plaintiff's dry dressing to continue with daily changes.

         On September 25, 2014, Defendant Holland removed all the remaining staples on Plaintiff's surgical incision on his right knee. There was less redness on the knee, but there was a large amount of thick white substance. All other wounds were healing well. Plaintiff was moved out of the lock-up observation cell and ordered to finish any remaining antibiotics.

         On October 30, 2014, Defendant Holland examined the Plaintiff who was complaining of right knee swelling due to an increase in his activities. Plaintiff was not in need of additional treatment due to the swelling as gradual improvement over time was anticipated.

         On November 13, 2014, Defendant Holland examined Plaintiff who complained of swelling in his right knee with no increase in pain. There was no warmth or redness appearing in the knee, but swelling was noted. She ordered Plaintiff's Ibuprofen to stop due to his pale skin color which she suspected was caused by anemia. She ordered Plaintiff be provided a warm pack for his knee twice daily and started him on daily B12 and iron supplements for his suspected anemia.

         On November 28, 2014, Defendant Holland examined Plaintiff who complained of an enlarged, soft area of swelling on his left side. Plaintiff had no history of injury to this location, but there appeared to be an 8-10 cm enlarged nodule which was soft, non-tender, compressible with no warmth or redness associated. She felt this was due to a soft tissue injury or possible hernia. No treatment was warranted.

         On January 15, 2015, Defendant Holland examined Plaintiff who complained of a bulge in the center of his abdomen which he claimed had been there for two to three weeks. Plaintiff indicated he was feeling fine. It appeared Plaintiff had a soft hernia on one of his incisions. This hernia could be reduced without pain. It was also noted Plaintiff's color had improved although he still appeared to be pale. No treatment was needed for his small incisional hernia, but an additional supplement of B12 was added to his prescription to improve his paleness.

         On May 7, 2015, Defendant Holland treated Plaintiff for an abscess under his arm. Plaintiff was provided a ...


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