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Lance v. Board of County

United States District Court, E.D. Oklahoma

September 20, 2019

DUSTIN LANCE, Plaintiff,
v.
1. BOARD OF COUNTY COMMISSIONERS OF PITTSBURG COUNTY, OKLA. 2. CHRIS MORRIS, Sheriff of Pittsburg County, Okla. in his official capacity 3. MIKE SMEAD, in his individual capacity, 4. DAKOTA MORGAN, in his individual capacity, 5. EDWARD MORGAN, in his individual capacity, 6. STEPHEN SPARKS, in his individual capacity, 7. MCALESTER REGIONAL HEALTH CENTER AUTHORITY, d/b/a McAlester Regional Hosptal, 8. GARY R. LEE, M.D., 9. JOEL KERNS, former sheriff of Pittsburg County, in his individual capacity, and 10. DANIEL HARPER, in his individual capacity, Defendants.

          ORDER AND OPINION [1]

          THE HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE

         This action was originally filed in the District Court of Pittsburg County, Oklahoma. It was removed to this court on October 10, 2017. With leave to amend, Plaintiff filed two amended complaints, on December 8, 2017 and on September 7, 2018. In his Second Amended Complaint, Plaintiff alleges that Defendants were indifferent and failed to provide him with constitutionally adequate medical care in response to an emergent health condition.

         Plaintiff brings the following claims:

I. Indifferent training and supervision pursuant to 42 U.S.C. § 1983 against Defendants Kerns and Morris[2];
II. Deliberate indifference to serious medical needs pursuant to § 1983 and the Oklahoma Constitution against Defendants Smead, Dakota Morgan, Edward Morgan, [3] Sparks, Harper, and the Board of County Commissioners of Pittsburg County, Oklahoma (“Board”); and
III. Unconstitutional policies or practices to deny adequate medical care pursuant to § 1983 against Defendants Kerns and Morris.[4]

         Plaintiff requests judgment in his favor and damages in excess of $5, 000, 000.00. Now before the court are motions for summary judgment filed by former Sheriff Joel Kerns [Docket No. 129], by Edward Morgan [Docket No. 130], by Mike Smead [Docket No. 131], by the Board [Docket No. 135], by Sheriff Chris Morris [Docket No. 136], and by Daniel Harper, Dakota Morgan, and Stephen Sparks [Docket No. 137].[5]

         I. Standard of Review

         The court will 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.” Fed.R.Civ.P. 56(a). The court’s function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In applying the summary judgment standard, the court views the evidence and draws reasonable inferences therefrom in the light most favorable to the nonmoving party. Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253, 1258 (10th Cir. 2006). At this stage, however, Plaintiff may not rely on mere allegations, but must have set forth, by affidavit or other evidence, specific facts in support of the Complaint. Id.

         “Conclusory allegations that are unsubstantiated do not create an issue of fact and are insufficient to oppose summary judgment.” Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1136 (10th Cir. 2003) (citation omitted).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

         While at the summary judgment stage evidence need not be submitted in a form that would be admissible at trial, the substance of the evidence must be admissible. For example, the court disregards “inadmissible hearsay statements contained in affidavits, as those statements could not be presented at trial in any form.” Id. (emphasis in original). “[A]ffidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.” Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). Similarly, “[t]estimony which is grounded on speculation does not suffice to create a genuine issue of material fact to withstand summary judgment.” Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 876 (10th Cir. 2004).

         Additionally, unauthenticated documents “cannot support a summary judgment motion, even if the documents in question are highly probative of a central and essential issue in the case.” Bell v. City of Topeka, Kan., 496 F.Supp.2d 1182, 1185 (D. Kan. 2007) (citation omitted). “To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Argo, 452 F.3d at 1199.

         Qualified Immunity

         The affirmative defense of qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). “When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id. (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)).

         When a defendant raises a qualified immunity defense in response to a motion to dismiss or a motion for summary judgment, [6] the burden shifts to the plaintiff and the court employs a two-part test. Morris v. Noe, 672 F.3d 1185, 1191 (10th Cir. 2012); Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir. 2011). The burden is a heavy one. Perry v. Durborow, 892 F.3d 1116, 1120 (10th Cir. 2018). A plaintiff must show that: (1) the defendant violated a constitutional right, and (2) the constitutional right was clearly established at the time of the defendant’s alleged misconduct. Id.

         “A plaintiff may show clearly established law by pointing to either a Supreme Court or Tenth Circuit decision, or the weight of authority from other courts, existing at the time of the alleged violation.” Knopf v. Williams, 884 F.3d 939, 944 (10th Cir. 2018) (citation omitted). A law is not clearly established unless existing precedent has “placed the statutory or constitutional question beyond debate.” Id. (citation omitted). This is an objective test. Brown, 662 F.3d at 1164.

         The court must not “define clearly established law at a high level of generality.” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (citing Ashcroft, 563 U.S. at 742); Knopf, 884 F.3d at 944 (citing Ashcroft, 563 U.S. at 742). A prior case need not have identical facts. Perry, 892 F.3d at 1126; Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017). Still, the “clearly established law must be ‘particularized’ to the facts of the case.” Knopf, 884 F.3d at 944 (citation omitted).

         A plaintiff must establish both prongs to defeat a qualified immunity defense. Id. Only if a plaintiff first meets this two-part test does the defendant bear the traditional summary judgment burden to show that there are no genuine disputes of material fact and that he or she is entitled to summary judgment as a matter of law. Koch v. City of Del City, 660 F.3d 1228, 1238 (10th Cir. 2011). The court has discretion to decide which of the two prongs to address first in light of the circumstances of the case. Brown, 662 F.3d at 1164.

         II. State Law Claims

         Plaintiff brought claims for deliberate indifference to serious medical needs in violation of Article II, Section 7 of the Oklahoma Constitution through Bosh v. Cherokee Cnty. Governmental Bldg. Auth. 305 P.3d 994 (Okla. 2013) against Defendants Smead, Dakota Morgan, Edward Morgan, Sparks, Harper, and the Board.

         In an Opinion issued on December 4, 2018, the Oklahoma Supreme Court declined to extend its ruling in Bosh v. Cherokee Cnty. Governmental Bldg. Auth. 305 P.3d 994 (Okla. 2013) “to include tort claims brought by inmates alleging violations of their rights to due process and to be free from cruel or unusual punishments.” Barrios v. Haskell Cnty. Pub. Facilities Auth., et al., 432 P.3d 233, 235-41 (Okla. 2018). The Court recognized that the Oklahoma Legislature responded to its decision in Bosh by amending the Oklahoma Governmental Tort Claims Act “to clarify that the State’s immunity from suit extended even to so-called ‘constitutional’ torts.” Id.

         In his responses to Defendants’ summary judgment motions, Plaintiff states that based on Barrios, he is no longer pursing any state law claims. Docket Nos. 163 at 14, 168 at 29, 169 at 24, 171 at 1, and 197 at 15. Accordingly, the motions are granted as to the state law claims.[7]

         III. The Board

         In his brief response to the Board’s motion for summary judgment, Plaintiff states that he is no longer pursuing any claim against the Board. Docket No. 171 at 1. Accordingly, the Board’s motion is granted.[8]

         IV. Undisputed Material Facts[9]

         1. Plaintiff was booked into the Pittsburg County Criminal Justice Center (“PCCJC” or “jail”) on November 11, 2016 on charges of burglary in the second degree, possession of a controlled substance, and unlawful possession of paraphernalia. Docket Nos. 130, 131, 136, and 137, UMF# 1 (admitted in Plaintiff’s responses thereto).

         2. During Plaintiff’s November 11, 2016 through December 18, 2016 incarceration at PCCJC, Joel Kerns was the Sheriff of Pittsburg County and as Sheriff, he oversaw the operation and supervision of the PCCJC. Docket Nos. 136 and 137, UMF #2 (admitted in Plaintiff’s responses thereto).

         3. PCCJC had a policy requiring all inmates be medically screened upon entering the facility “and before being placed in the general population or housing area.” Docket Nos. 136 and 137, UMF #3 (admitted in Plaintiff’s responses thereto).

         4. Pursuant to PCCJC policy, a medical questionnaire was completed for and signed by Plaintiff. Docket Nos. 136 and 137, UMF #4 (admitted in Plaintiff’s responses thereto).

         5. As indicated on the medical questionnaire, during Lance’s initial medical screening Lance indicated he was not: taking any prescription medication, medical treatments, or medical programs at that time; currently taking any medications prescribed by a doctor; having anyone bring him medications to the PCCJC; or aware of any medical problems that PCCJS should know about. Docket Nos. 136 and 137, UMF #5 (admitted in Plaintiff’s responses thereto).

         6. Prior to Plaintiff’s arrest on November 11, 2016, Plaintiff had previously been incarcerated at PCCJC and experienced no issues or problems during those previous incarcerations. Docket Nos. 136 and 137, UMF #6 (admitted in Plaintiff’s responses thereto).

         7. Prior to Plaintiff’s arrest in November 2016, a doctor had never prescribed him prescription drugs. Docket Nos. 136 and 137, UMF #7 (admitted in Plaintiff’s responses thereto).

         8. While incarcerated at the PCCJC from November 11, 2016 to December 19, 2016, Plaintiff was housed in A-Pod per his request. Docket Nos. 136 and 137, UMF #8 (admitted in Plaintiff’s responses thereto).

         9. While incarcerated at PCCJC on November 25, 2016, Plaintiff filled out a “medical request” form requesting that his wisdom teeth be pulled. On November 28, 2016, Plaintiff was taken to the Indian Clinic for dental treatment per his request. Docket Nos. 130 and 131, UMF #2; 136, and 137, UMF #9 (admitted in Plaintiff’s responses thereto).

         10. Following Plaintiff’s dental work on November 28, 2016, Plaintiff was prescribed ibuprofen and penicillin. Jail staff administered the prescribed ibuprofen and penicillin to Plaintiff without incident. Docket Nos. 136 and 137, UMF #10 (admitted in Plaintiff’s responses thereto).

         11. On the evening of Thursday, December 15, 2016, shortly after dinnertime at around 5:00 p.m. or 6:00 p.m., Plaintiff took approximately three-fourths of a Trazadone pill given to him by another inmate. Docket Nos. 130 and 131, UMF #3; 136, and 137, UMF #11 (admitted in Plaintiff’s responses thereto).

         12. Plaintiff traded his next morning’s breakfast for the Trazadone pill, which Plaintiff hoped to use as a sleeping aid on the night of Thursday, December 15, 2016. Docket Nos. 130 and 131, UMF #4; 136, and 137, UMF #12 (admitted in Plaintiff’s responses thereto).

         13. Plaintiff had taken smaller doses of Trazadone from this inmate on previous occasions during his November 11, 2016 through December 19, 2016 stay at PCCJC, but before December 15, 2016, he had never taken up to three-fourths of a Trazadone pill. Docket Nos. 130 and 131, UMF #5; 136, and 137, UMF #13 (admitted in Plaintiff’s responses thereto).

         14. Plaintiff was not prescribed Trazadone and was not provided Trazadone through a “pill pass” by jailers or any other employee of the PCCJC. Docket Nos. 130 and 131, UMF #6; 136, and 137, UMF #14 (admitted in Plaintiff’s responses thereto).

         15. Plaintiff knew that the pill he took was Trazadone. Docket Nos. 130 and 131, UMF #7; 136, and 137, UMF #15 (admitted in Plaintiff’s responses thereto).

         16. Sometime after Plaintiff took the Trazadone pill, he fell asleep and then re-awoke in the early hours of Friday, December 16, 2016 with an erection. He used the restroom, and as he was unconcerned about his erection, he made no one aware of his condition. Docket Nos. 130 and 131, UMF #8; 136, and 137, UMF #16 (admitted in Plaintiff’s responses thereto).

         17. Plaintiff claims he had a prolonged erection from the early hours of Friday, December 16, 2016 to the morning of December 19, 2016 when he was sent to the emergency room for treatment. Docket Nos. 130 and 131, UMF #9 (admitted in Plaintiff’s responses thereto).

         18. Plaintiff testified that he awoke maybe three times in the early morning hours of December 16, 2016, but did not become alarmed until around breakfast time. Plaintiff testified that early in the morning hours of December 16, 2016, he used the intercom inside his cell and informed Edward “Tyler” Morgan that he had taken “that pill [he] found on the floor” the previous night and had an erection. Docket Nos. 136 and 137, UMF #s 17 and 18 (admitted in part and disputed in part[10] in Plaintiff’s responses thereto); and Plaintiff’s Depo., Docket No. 138-2, at 16-24.

         19. Plaintiff took the Trazadone approximately twelve hours before he notified anyone of his hours-long erection. There is no evidence, however, that Plaintiff experienced any painful or negative side-effects that would warrant reporting until sometime after 5:00 a.m. on December 16, 2016. Docket Nos. 136, 137, UMF #19; and 168.

         20. Plaintiff’s unauthorized use of another inmate’s prescription Trazadone resulted in a priapism, which is a prolonged erection without stimulation that will not dissipate or go away without medical intervention. Docket Nos. 136 and 137, UMF #20 (admitted in Plaintiff’s responses thereto).

         21. Plaintiff testified that he was in so much pain that he removed his jail pants on Friday and kept them off until he saw the nurse on Monday. Docket No. 168, UMF #17; Docket No. 172-11 at 38-39 and 137-39.

         22. Plaintiff claims that from the morning of December 16, 2016 through the morning of December 19, 2016, he made repeated requests for help utilizing the intercom system and to each and every jailer he encountered. Plaintiff Depo., Docket No. 172-11 at 73, 93, 113-14, 118 and 124; Plaintiff Decl., Docket No. 172-19 at 1-2.

         23. All Defendants deny that Plaintiff made anyone aware of his condition until about 9:20 a.m. on Monday, December 19, 2016, when a jailer became aware of Plaintiff’s condition and immediately took him to Jail Nurse Doris Crawford.[11] Docket Nos. 136, and 137, UMF #21 (“disputed as phrased” in Plaintiff’s responses thereto). As noted by Plaintiff, however, there is evidence that other jailers knew, particularly Mike Smead. Nurse Crawford’s Depo., Docket No. 172-13 at 70-72; Declarations of Plaintiff and other inmates, Docket Nos 172-19, 172-8, 172-9, and 172-10.

         24. Two inmates signed declarations stating that in December 2016, they observed Plaintiff walking around the pod with a visible erection, that it was obvious he was in pain from it, and that they heard and observed him reporting it to guards and asking them for help and medical treatment. Declarations of Jones and Stewart, Docket Nos. 172-8 and 172-10.

         25. None of the jailers contacted Nurse Crawford about Plaintiff from December 16-18, 2016. Docket No. 169, UMF. # 8.

         26. During Plaintiff’s initial interview with Nurse Crawford, he was a little apprehensive in telling her what medication he took and when he took it. Nurse Crawford Depo., Docket No. 138-9 at 14 and PCCJC Progress Note, Docket No. 138-15.

         27. After Plaintiff disclosed to Nurse Crawford that he had taken Trazadone and when he took it, she examined his erection and immediately arranged his transport to MRHC’s emergency room for further treatment. Docket Nos. 129, UMF #1; 136 and 137, UMF #23 (admitted in Plaintiff’s responses thereto).

         28. Plaintiff received no medical care for his condition at the jail until he saw Nurse Crawford at 9:20 a.m. on December 19, 2016. Docket No. 169, UMF #9.

         29. At approximately 9:30 a.m., Detention Officer Stephen Sparks transported Plaintiff to MRHC, but was relieved by jailer Brandon Wilkins[12] while at the hospital and did not bring Plaintiff back to the jail following his medical visit at the hospital. Docket Nos. 136 and 137, UMF #24 (admitted in Plaintiff’s responses thereto).

         30. At 11:47 a.m. on December 19, 2016, Lance was seen at MRHC by Dr. Lee, who diagnosed Plaintiff with priapism and treated him with injection, which failed to remedy the priapism. Between 12:01 p.m. and 12:50 p.m., Dr. Lee referred Plaintiff to a urologist in Tulsa at St. Francis Medical Center. Docket Nos. 136 and 137, UMF #25 (admitted in Plaintiff’s responses thereto). Dr. Lee directed that Plaintiff be transported to St. Francis immediately, but did not indicate on the transfer request form the means by which Plaintiff was to be transported. Docket Nos. 129, UMF #2 and 168, response to UMF #2.

         31. By 1:15 p.m., Plaintiff was returned to the PCCJC to be discharged on a medical recognizance bond. Docket Nos. 136 and 137, UMF #26 (“disputed as phrased” in Plaintiff’s responses thereto). Plaintiff adds that Dr. Lee unequivocally instructed the jailers to immediately transport him to St. Francis. Note by Dr. Lee, Docket No. 172-6.

         32. While Nurse Crawford understood that Plaintiff needed to go to St. Francis as soon as possible, she did not believe he required an ambulance. Docket Nos. 136 and 137, UMF #27 (“disputed as phrased” in Plaintiff’s responses thereto).[13]

         33. At 2:42 p.m. Plaintiff was released from the PCCJC on a medical recognizance bond and discharged to his father, who Nurse Crawford personally told to take Plaintiff to the urologist “now.” Docket Nos. 136 and 137, UMF #28 (admitted in Plaintiff’s responses thereto).

         34. After being discharged, Plaintiff accompanied his father and stepmother on several errands before his father drove him to St. Francis Medical Center in Tulsa, arriving at 7:16 p.m. Plaintiff underwent surgery for his priapism around 9:00 p.m. Docket ...


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