STEPHEN F. PORDON,
Plaintiff,
v.
DALE LARSON,
Individually, and in His Official Capacity as Lawrence County Jail Administrator; Richard
Mowell, Individually, and in His Official Capacity as Lawrence County Sheriff; Joe Harmon,
Individually, and in His Official Capacity as Chief Deputy, Lawrence County Jail; John
Fitzgerald, Individually, and in His Official Capacity as Lawrence County States Attorney; Doug
Weber, Individually, and in His Official Capacity as Warden, South Dakota State Penitentiary;
and Robert Williams, Individually, and in His Official Capacity as Jailer, Lawrence County Jail,
Defendants.
[2001 DSD 39]
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT WEBER'S
SECOND MOTION FOR SUMMARY JUDGMENT
Todd L. Brink, Lynn, Jackson, Shultz & Lebrun, Rapid City, SD
Attorney for Plaintiff
James E. Moore, Woods, Fuller, Shultz & Smith, Sioux Falls, SD
Attorney for Defendant Weber
Thomas E. Brady, Spearfish, SD
Attorney for all other defendants
Karen E. Schreier, U. S. District Judge
[¶1] Plaintiff, Steven Pordon, brings this action against defendants Dale Larson, Richard Mowell, Joe Harmon, John Fitzgerld, Doug Weber, and Robert Williams pursuant to 42 USC § 1983. Pordon alleges the defendants violated his Fifth and Fourteenth Amendment rights to due process by their deliberate indifference to his serious medical condition. Defendant Doug Weber moves for summary judgment pursuant to Rule 56(c), contending he did not know of Pordon's medical needs and was not involved with Pordon's medical care. This is the second motion for summary judgement filed by Weber. The Court has jurisdiction pursuant to 28 USC §§ 1331 and 1343(3).
[¶2] The facts of the case, resolving all genuine factual disputes and drawing all reasonable inferences in favor of Pordon, are as follows:
FACTS
[¶3] At all times relevant to this action, Pordon was a pretrial detainee in the custody of Lawrence County. Weber was the Warden at the South Dakota State Penitentiary in Sioux Falls. Pordon was arrested on or about August 6, 1999, and detained in the Lawrence County Jail in Deadwood, South Dakota. Pordon suffers from Post Traumatic Stress Disorder (PTSD) as a result of his military service in Vietnam. Pordon's PTSD manifests itself in the form of flashbacks, hallucinations, nightmares, and depression. Upon incarceration at the Lawrence County Jail, Pordon provided Lawrence County Jail medical personnel with a detailed history of his PTSD and medical treatment.
[¶4] On August 11, 1999, another inmate at the Lawrence County Jail reported seeing Pordon drink shampoo, talk crazy to himself, talk about killing himself, ask people to "call some VA doctor about some pills" and to call his kids if he died, discuss "'Nam' people watching him," tap on the wall in code, and go days without eating and drinking anything but coffee.
[¶5] On October 12, 1999, Pordon completed a medical emergency request form indicating his doctor was the Veterans Administration (VA) and that he was taking Trazadone and Restarill to control PTSD and its effects of recurring nightmares, flashbacks, and sleep disorders. Pordon then underwent a Lawrence County Jail physical examination on October 21, 1999, which indicated Pordon's chief complaint was a need for medication to control nightmares and flashbacks. The final assessment of the examination was that Pordon suffered from PTSD, sleep disturbance, and flashbacks.
[¶6] Pordon completed an inmate grievance on November 2, 1999, requesting jail officials notify his doctor that his medications were not working. Dale Larson wrote in his response to the grievance, "[y]ou were offered your meds this morning & refused to take them." That same day, Pordon received a letter from the Urgent Care Clinic of the Black Hills Healthcare System at Fort Meade confirming his appointment on November 3, 1999. Later that day, Pordon completed an inmate medical request form that indicated his condition was worsening and requested "transportation to a doctor[']s appointment for PTSD and bowels." The unsigned response to Pordon's request states: " [y]ou are already taking medication for this by Dr. Hogue and you refused to take it. When Dr. comes to jail you can address it with him. You have seen him 2x now and not brought this up to him." Pordon was not transported to Fort Meade for his scheduled appointment.
[¶7] Pordon completed another inmate medical request form on November 10, 1999. Pordon used the medical request form to alert prison officials he needed to confer with a doctor because the medication was not working. The unsigned response states "was just here today."
[¶8] A prison official reported that on November 15, 1999, Pordon was observed tying a bed sheet "like a hangman's noose" to the shower curtain bar. As a result, Pordon was immediately placed in the isolation cell. A photo of the sheet hanging on the curtain rod indicates the noose was at waist height. Pordon testified at a subsequent evidentiary hearing that if he wanted to commit suicide, he would not have hung the sheet at waist height. He explained he had "set a snare to catch Viet Cong kids" who were trying to kill him. As a result of tying the "hangman's noose," Pordon's privileges were withdrawn and he was placed in isolation. Prison records also report that on November 19, 1999, Pordon's cell was searched and regurgitated medications were found and confiscated.
[¶9] On November 22, 1999, Stew Brown, Clinical Psychologist at the Veterans Center in Boulder, Colorado, wrote to Dale Larson, Lawrence County Jail Administrator, to inform him that Pordon had been a patient there for approximately eleven years. Brown also informed the jail administrator that Pordon is 70 percent disabled, that he is eligible for treatment at the VA Medical Center, and recommended Pordon receive treatment from the Fort Meade Medical Center.
[¶10] On December 30, 1999, the State of South Dakota filed a motion to house Pordon at the South Dakota State Penitentiary pending trial. The motion asserts Pordon's doctor had "recommended [him] to see a psychiatrist and since he poses an escape risk the best available facility for psychiatric care would be the South Dakota State Pen[itentiary]." A hearing was held on December 30, 1999, on Pordon's motion to dismiss the criminal charges against him and on the State's motion to house Pordon at the state penitentiary. At the hearing, Joe Harmon, chief deputy of the Lawrence County Sheriff's Office, testified that
Dr. Hogue from the clinic here in Deadwood that sees the prisoners has recommended that Mr. Pordon see a psychiatrist. Due to the charges and the seriousness of the charge that Mr. Pordon is charged with both in South Dakota as well as Colorado, we feel he's an escape risk. Fort Meade, where he's requested to go, or where the doctor suggested he go, does not have a lock-down facility and will not take him under those circumstances. I visited with the warden in the state pen this morning. The warden says they have an on-staff psychiatrist that could examine Mr. Pordon and probably handle his needs; and at the same time, he'd be secure.
[¶11] Defendant Weber is the warden at the South Dakota State Penitentiary in Sioux Falls. Pordon was transferred from the Lawrence County Jail and admitted to the South Dakota State Penitentiary on December 30, 1999. The state penitentiary was aware of Pordon's disabling PTSD and his use of anti-psychotic drugs.
[¶12] During Pordon's incarceration at the state penitentiary, he was housed in the disciplinary segregation cell, otherwise known as the "hole." Pordon alerted prison officials he was a pretrial detainee transferred to the penitentiary to see the doctor, and he requested a return to the general prison population. While at the penitentiary, Pordon was seen by as many as ten medical professionals, including Robin Doorn and John Erpenbach. Doorn is a mental health therapist with a bachelor's degree in psychology and a master's degree in guidance counseling. Doorn interviewed Pordon on January 2, 2000, and scheduled Pordon for a medication evaluation by a psychiatrist. Pordon was then examined on January 6, 2000, by John Erpenbach, who is a nurse practitioner with a graduate degree in psychiatric nursing. He is certified to diagnose and treat mental illness and is licensed to write prescriptions. Erpenbach diagnosed Pordon with PTSD and major depression. Because Pordon complained that his medication was not helpful, Erpenbach started him on different medication and scheduled a follow-up appointment for a week later. Pordon was transferred back to the Lawrence County Jail on January 12, 2000, however, before his follow-up appointment could take place.
SUMMARY JUDGMENT STANDARD
[¶13] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if it can show that "there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999). In determining whether summary judgment should issue, the court must view the evidence and inferences reasonably drawn therefrom "in the light most favorable to the nonmoving party." Lambert v. City of Dumas, 187 F3d 931, 934 (8th Cir. 1999) (citing Enterprise Bank v. Magna Bank of Missouri, 92 F3d 743, 747 (8th Cir. 1996); Adkison v. G.D. Searle & Co., 971 F2d 132, 134 (8th Cir. 1992)). The burden is on the moving party to establish the absence of a genuine issue of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); see also Enterprise Bank v. Magna Bank of Missouri, 92 F3d 743, 747 (8th Cir. 1996); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 106 SCt 1348, 1356-57, 89 LEd 2d 538 (1986). "As to materiality . . . [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 US 242, 248, 106 SCt 2505, 2510, 91 LEd 2d 202 (1986). Once this burden has been met, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 US 242, 256, 106 SCt 2505, 2514, 91 LEd 2d 202 (1986).
DISCUSSION
[¶14] To state a claim under 42 USC § 1983, Pordon "must allege the violation of a right secured by the Constitution and the laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." See Roe v. Humke, 128 F3d 1213, 1215 (8th Cir. 1997) (quoting West v. Atkins, 487 US 42, 48, 108 SCt 2250, 2254-55, 1010 LEd 2d 40 (1988)). "To prevail on a claim of constitutionally inadequate medical care, [Pordon] must show that [Weber's] conduct amounted to deliberate indifference to [Pordon's] serious medical needs." See Dulany v. Carnahan, 132 F3d 1234 (8th Cir. 1997) (quoting Estelle v. Gamble, 429 US 97, 104, 97 SCt 285, 291, 50 L.Ed. 2d 251 (1976)). "A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention." See Coleman v. Rahija, 114 F3d 778, 783 (8th Cir. 1997) (quoting Crowley v. Hedgepeth, 109 F. 3d 500, 502 (8th Cir. 1997)).
[¶15] Weber alleges he is immune from suit under the doctrine of qualified immunity. Qualified immunity under 42 USC § 1983, "shields government officials from suit unless their conduct violated a clearly established constitutional or statutory right of which a reasonable person should have known." See Liebe v. Norton, 157 F3d 574, 577 (8th Cir. 1998) (quoting Yowell v. Combs, 89 F3d 542, 544 (8th Cir. 1996)). Once the affirmative defense of qualified immunity is asserted, Pordon bears the burden of coming forward with facts sufficient to show that Weber's alleged conduct violated the law and that the law was clearly established when the purported violation occurred. See id.
[¶16] The court applies a three-part test to determine whether Weber is protected by qualified immunity: (1) Pordon must assert a violation of a constitutional or statutory right; (2) the right must clearly be established; and (3) taking all the facts in the light most favorable to Pordon, there are no genuine issues of material fact as to whether a reasonable official would have known the alleged action violated that right. See id. In order to defeat summary judgment, Pordon must offer evidence that Weber was deliberately indifferent to his serious medical needs. See Vaughan v. Lacey, 49 F3d 1344, 1346 (8th Cir. 1995). "[I]f there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment." Id.
[¶17] The threshold question is whether Pordon alleged the violation of a right secured by the Constitution and laws of the United States. See West v. Atkins, 487 US 42, 48, 108 SCt 2250, 2254-55, 101 LEd 2d 40 (1988). Pordon was a pretrial detainee and beyond the power of the state to punish. The constitutional rights of a pretrial detainee flow from both the procedural and substantive due process guarantees of the Fourteenth Amendment. See Bell v. Wolfish, 441 US 520, 99 SCt 1861, 60 LEd 2d 447 (1979). "Pretrial detainees are entitled to at least as much protection as a convicted inmate." See Perkins v. Grimes, 161 F3d 1127, 1129 (8th Cir. 1998). Under the Eighth Amendment, "deliberate indifference to the serious medical needs of a prisoner constitutes cruel and unusual punishment." See Long v. Nix, 86 F3d 761, 765 (8th Cir. 1996) (citing Estelle, 429 US at 102-03, 97 SCt at 290). A serious medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." See Helling v. McKinney, 509 US 25, 32-33, 113 SCt 2475, 125 LEd 2d 22 (1993) (citing Estelle, 429 US at 104)). Serious medical needs include psychiatric needs or a psychological disorder. See Young v. Armontrout, 795 F2d 55, 56 (8th Cir. 1986); Smith v. Jenkins, 919 F2d 90 (8th Cir. 1990). Pordon alleges he suffered from a psychological disorder and that Weber's failure to treat to treat the injury caused unnecessary pain. Pordon has asserted the violation of a constitutional right.
[¶18] The second prong requires the right be clearly established. The law was clearly established on November 30, 1976, when the United States Supreme Court determined prison officials' actions may rise to the level of a constitutional violation if the officials intentionally deny or delay access to medical care. See Estelle, 429 US at 104-05, 97 SCt at 291. The right to appropriate medical care was clearly established at the time of the facts giving rise to Pordon's claim.
[¶19] The third prong requires that a reasonable official would have known the alleged action violated the clearly established right. The alleged action in this case is Weber's deliberate indifference to Pordon's serious medical and psychiatric needs. "A prison official exhibits deliberate indifference when the official actually 'knows of and disregards' a prisoner's serious medical needs." See Boyd v. Knox, 47 F3d 966, 968 (8th Cir. 1995) (quoting Farmer v. Brennan, 511 US 825, 114 SCt 1970, 1977, 1979, 128 LEd 2d 811 (1994)). Deliberate indifference may include the intentional denial or delay in access to medical care, or intentional interference with treatment or medication that has been prescribed. See Vaughan v. Lacey, 49 F3d 1344, 1346 (8th Cir. 1995)
[¶20] During Pordon's brief period of custody at the state penitentiary he was seen by numerous medical professionals, including Robin Doorn and John Erpenbach. Doorn saw him approximately one week after his arrival, completed a brief intake summary, and scheduled a psychiatric evaluation. Erpenbach, a nurse practitioner with a graduate degree in psychiatric nursing, examined Pordon four days later and diagnosed him with PTSD and major depression, started him on a different medication, and scheduled him for a follow-up appointment one week later. Although Pordon cannot recollect his visit with Erpenbach, he does not dispute that the examination occurred. The burden is on Pordon to show that Weber actually knew of and disregarded Pordon's serious medical needs. Here, Weber knew Pordon was receiving medical treatment. There is no evidence, however, that Weber intentionally denied or delayed Pordon's access to medical care or that he intentionally interfered with Pordon's prescribed treatments or delayed his treatments. See Estelle, 429 US 97, 104-05; Tlamka v. Serrell, 244 F3d 628, 633 (8th Cir. 2001). Pordon has failed to establish that Weber was deliberately indifferent to his serious medical condition as a matter of law. See, e.g., Lambert v. Dumas, 187 F3d 931, 937 (8th Cir. 1999).
[¶21] Pordon also alleges that he did not receive a full psychiatric evaluation during his two week stay at the state penitentiary. As a supervisor, Weber cannot be held liable for the acts of a subordinate without a showing of more than merely the existence of the supervisor-subordinate relationship. See Ripson v. Alles, 21 F3d 805, 809 (8th Cir. 1994). "The supervisor must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what [he] might see." Boyd v. Knox, 47 F3d 966, 968 (8th Cir. 1995) (citation omitted). Weber met his initial burden to show the absence of a genuine issue of material fact about his personal involvement in the substance of the medical treatment that Pordon received while at the state penitentiary and Pordon has not designated specific facts showing that there is a genuine issue for trial regarding Weber's personal involvement. Weber is therefore entitled to summary judgment in this action. Accordingly, it is hereby
[¶22] ORDERED that Weber's second motion for summary judgment (Docket 67) is granted.
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