Pordon v. Larson, 2001 DSD 40
STEPHEN F. PORDON,
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,
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN PART
LAWRENCE COUNTY DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT
AND DENYING PORDON'S MOTION FOR
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
Dated Nov 13, 2001.
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. Defendants Dale Larson, Richard Mowell, Joe Harmon, John Fitzgerald, and Robert Williams (Lawrence County defendants) are officials of Lawrence County. The Lawrence County defendants move for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Pordon moves for partial summary judgment against the Lawrence County defendants. The court has jurisdiction pursuant to 28 USC §§ 1331 and 1343(3). The facts of the case, resolving all genuine factual disputes and drawing all reasonable inferences in favor of Pordon (fn1), are as follows:
[¶2] 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.
[¶3] 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. Pordon was examined by Dr. Michael Hogue, the jail's doctor, on August 26, 1999. Dr. Hogue recommended that Pordon receive additional treatment from a psychiatrist. Pordon was not seen by a psychiatrist.
[¶4] 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. On October 21, 1999, Pordon underwent a Lawrence County Jail physical examination which was conducted by Dr. Hogue. The results of this examination indicated Pordon's chief complaint was a need for medication to control nightmares and flashbacks. Dr. Hogue concluded that Pordon suffered from PTSD, sleep disturbance, and flashbacks.
[¶5] 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 stated: " [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.
[¶6] 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 stated "was just here today."
[¶7] 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 indicated 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.
[¶8] 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. Dr. Hogue reviewed this letter and again recommended that Pordon be treated by a psychiatrist or psychologist. This examination was not performed. On December 14, 1999, Dr. Hogue again recommended a psychiatric evaluation. Dale Larson agreed to call Dr. Hogue following the examination. This examination was not performed. On December 29, 1999, Dr. Hogue again examined Pordon, and again recommended a psychological/psychiatric evaluation "ASAP." Neither a psychiatrist nor a psychologist examined Pordon.
[¶9] 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.
[¶10] Defendant Weber is the warden at the South Dakota State Penitentiary in Sioux Falls. He denies that anyone from Lawrence County told him that Pordon was transferred to the state penitentiary for the purpose of receiving mental health treatment. Dr. Hogue was not consulted regarding the decision to transfer Pordon to the state penitentiary. Pordon was transferred from the Lawrence County Jail and admitted to the state penitentiary on December 30, 1999. The Lawrence County defendants did not forward Pordon's medical records to the state penitentiary.
[¶11] During a significant portion of 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 state penitentiary, Pordon was not seen by a psychiatrist or psychologist. He was examined by a nurse practitioner who specializes in psychiatric nursing. The nurse practitioner changed Pordon's medication and scheduled a follow-up appointment for a week later on January 13, 2000. Pordon was transferred back to the Lawrence County Jail on January 12, 2000, before the follow-up appointment. No arrangements were made for a follow-up appointment after Pordon was returned to Lawrence County.
[¶12] On January 18, 2000, a call was made to Dr. Hogue who prescribed Xanax, a minor tranquilizer, in response to a request for a sleep aid. Dr. Hogue saw Pordon on January 26, 2000, in response to Pordon's request for medical care. Dr. Hogue prescribed Fibercon (for constipation), increased the Xanax prescription, and switched the administration of the Paxil (which had been prescribed while Pordon was at the state penitentiary). Dr. Hogue changed the Paxil from evening to morning because the Paxil at nighttime was causing Pordon some anxiety.
[¶13] Dr. Hogue saw Pordon on February 8, 2000, in response to Pordon's request for Fibercon and an increase in Paxil. Both requests were implemented by Dr. Hogue, along with a change in the Xanax administration. On March 14, 2000, Dr. Hogue saw Pordon for constipation and Pordon's request for an increase in Xanax. Dr. Hogue changed the laxative to Dulcolax and increased the Xanax. On March 16, 2000, Pordon was sentenced to credit for time served on his state charges and released from the Lawrence County Jail. It is undisputed that Chief Deputy Harmon received copies of the reports of Dr. Hogue's examinations. Jail administrator Larson is the first person to respond to grievances filed by inmates. Larson also receives a copy of inmate medical records.
SUMMARY JUDGMENT STANDARD
[¶14] 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).
[¶15] I. Claims Against Lawrence County Defendants in Their Official Capacity
[¶16] An action against an officer in his official capacity is in effect an action against a political entity. See Monell v. New York City Dep't of Social Servs., 436 US 658, 691, 98 SCt 2018, 56 LEd 2d 611 (1978). A political entity and its officers may only be held liable for constitutional violations which result from a policy or custom of that political entity. See id.; see also Yellow Horse v. Pennington County, 225 F3d 923, 928 (8th Cir. 2000). The Manual on Policies, Procedures and Operations of the Lawrence County Jail states that "[p]sychiatric, and psychological counseling will be provided to the inmate, if ordered by . . . a licensed physician," and further states that the care is to "be provided in the form of transportation to a licensed psychiatrist or psychologist in the Black Hills area." The medical policy of the Lawrence County Jail is not unconstitutional as devised; therefore, Lawrence County defendants acting in their official capacity are entitled to summary judgment.
[¶17] II. Claims Against Larson and Harmon in Their Personal Capacity
[¶18] 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)).
[¶19] 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 Larson's and Harmon's failure to treat his condition caused him to engage in "bad behavior" for which he was punished. Pordon has asserted the violation of a constitutional right.
[¶20] 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.
[¶21] 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 Larson's and Harmon'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). There is an objective and subjective component to a claim of deliberate indifference. Pordon must demonstrate: "(1) that he suffered objectively serious medical needs, and (2) that the prison officials actually knew of but deliberately disregarded those needs." See Tlamka v. Serrell, 244 F3d 628, 633 (8th Cir. 2001) (quoting Dulany, 132 F3d at 1239).
[¶22] It is undisputed that Pordon suffered objectively serious medical needs. A serious medical need may be established by the obviousness of the need, or the medical evidence, such as a physician's diagnosis. See Roberson v. Bradshaw, 198 F3d 645, 648 (8th Cir. 1999). While at the Lawrence County Jail, Pordon suffered from medically documented hallucinations, flashback, nightmares, coughing up blood, and extreme constipation. Dr. Hogue concluded that Pordon suffered from PTSD, sleep disturbances, and flashbacks. Larson and Harmon both received copies of Dr. Harmon's reports and should have been aware of Pordon's medical condition.
[¶23] With regard to the second element, Larson and Harmon contend there is no evidence they deliberately disregarded Pordon's medical needs. "Deliberate indifference may be demonstrated by prison guards who intentionally deny or delay access to medical care or intentionally interfere with prescribed treatment . . . Mere negligence . . . however, [is] insufficient to rise to a constitutional violation." Dulany, 132 F3d at 1239. A delay in treatment becomes a constitutional violation when the information available to a prison official is such that a reasonable person would know the inmate requires medical attention, or the prison official's action is so dangerous to the health of an inmate that the official can be presumed to have knowledge of the risk to the inmate's health. See Tlamka, 244 F3d at 633.
[¶24] Viewing the evidence in the light most favorable to Pordon, the court concludes a genuine issue of material fact exists for trial on Pordon's claim against Larson and Harmon. Larson and Harmon knew Pordon required psychological/psychiatric medical treatment. Dr. Hogue, the Lawrence County Jail's doctor, examined Pordon on August 26, 1999, and ordered treatment by a psychiatrist or psychologist. Dr. Hogue again ordered that Pordon be treated by a psychiatrist or psychologist on November 22, 1999, and December 14, 1999. On December 29, 1999, Dr. Hogue ordered that Pordon be treated by a psychiatrist or a psychologist "ASAP." Both Larson and Harmon received copies of Dr. Hogue's medical records. Dr. Hogue is neither a psychologist nor a psychiatrist. There is a question of fact as to whether Larson and Harmon deprived Pordon of psychological/psychiatric treatment prescribed by Dr. Hogue.
[¶25] Pordon did not see a psychiatrist at any time during his incarceration. Although he was transferred to the state penitentiary for two weeks ostensibly for the purpose of receiving psychiatric care, Larson and Harmon did not forward a copy of Pordon's medical records to the penitentiary. Warden Weber testified that he was unaware that the purpose for the transfer was to provide psychiatric care to Pordon. Pordon was not examined by either a psychiatrist or a psychologist during his stay at the state penitentiary. Pordon was examined by a nurse practitioner and placed on psychotropic medication, but he was transferred back to Lawrence County before his follow-up exam was completed. Upon his return, neither Larson nor Harmon arranged for a follow-up exam.
[¶26] Larson and Harmon also assert that Pordon did not suffer harm as a result of the denial of treatment. This is not, however, a case in which Pordon is alleging that a delay in treatment caused a deterioration of his medical condition. Pordon, rather, is claiming he behaved badly because treatment was denied and then he was punished for the bad behavior. Pordon contends his hallucinations resulted in continuous physical assault by prison guards, withdrawal of privileges, and placement in isolation. Accordingly, the court finds there is a legitimate question of fact as to whether Larson and Harmon deliberately disregarded a serious medical need which resulted in Pordon's bad behavior and subsequent punishment. The motion for summary judgment is denied.
[¶27] III. Claims Against Sheriff Rick Mowell
[¶28] Supervisors are not liable under 42 USC § 1983 on a respondeat superior theory. See Boyd v. Knox, 47 F3d 966, 968 (8th Cir. 1995). Supervisory liability may be established, however, when the supervisor participates directly in a constitutional violation or when the supervisor had notice the training procedures and supervision were inadequate and likely to result in a constitutional violation. See Andrews v. Fowler, 98 F3d 1069, 1078 (8th Cir. 1996). Pordon does not allege that Sheriff Mowell directly participated in the alleged denial of medical treatment. Rather he alleges that Sheriff Mowell inadequately trained and supervised the jail staff. Sheriff Mowell testified that the training consists of providing the jail staff a copy of the Policy and Procedure Manual and informally asking them questions about it. If the jail staff had followed the Policy and Procedure Manual, Pordon would have received psychiatric or psychological counseling. The record is void of any facts that would have alerted Sheriff Mowell that the jail staff was inadequately trained, and thus he had no notice that the training procedures and supervision were inadequate. Based on the record, no reasonable fact finder could have concluded that Sheriff Mowell violated Pordon's constitutional rights by failing to properly train the jail staff. See Tlamka v. Serrell, 244 F3d at 633. Sheriff Mowell is, therefore, entitled to summary judgment.
[¶29] IV. Claims Against Williams
[¶30] Williams moves for summary on the alleged assault claim. The appropriate standard is whether Williams' actions inflicted unnecessary and wanton pain and suffering on Pordon. See Whitley v. Albers, 475 US 312, 320, 106 SCt 1078, 89 LEd 2d 251 (1986). The issue is typically resolved by determining "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Stenzel v. Ellis, 916 F2d 423, 427 (8th Cir. 1990) (quoting Whitley, 475 US at 320-21, 106 SCt at 1085). The court may consider the extent of the injury as a relevant factor in determining whether the punishment inflicted was cruel and unusual. See id. at 427.
[¶31] Williams asserts he carried Pordon to the isolation cell because he was unresponsive to orders. Pordon contends during one of his delusional states he was kicked repeatedly by Williams and then dragged to the isolation cell. There is no evidence that Williams maliciously and sadistically applied force to Pordon for the purpose of causing harm. Although the conduct Pordon alleges may have given rise to a state law claim for assault and battery, it does not rise to the level of a constitutional violation. See id. at 427.
[¶32] Williams also moves for summary judgment on the § 1983 claim. Because there is no evidence that Williams knew of Pordon's medical condition or that he played a role in deliberately disregarding Pordon's condition, Williams is entitled to summary judgment.
[¶33] V. Conspiracy to Punish Pordon
[¶34] The Lawrence County defendants contend there are no specific facts to support a claim of conspiracy and therefore seek summary judgment. See Rogers v. Bruntrager, 841 F2d 853, 856 (8th Cir. 1988). A civil rights conspiracy claim pursuant to 42 USC § 1985 requires Pordon to provide some facts suggesting a mutual understanding between defendants to commit unconstitutional acts. See Kurtz v. City of Shrewsbury, 245 F3d 753, 758 (8th Cir. 2001). There is evidence, when viewed in the light most favorable to Pordon, that Harmon and Larson participated in the decision to refuse Dr. Hogue's four requests for a psychiatric/psychological examination and to send Pordon to the state penitentiary. The warden of the state penitentiary, Weber, asserts he never promised the state penitentiary would take care of Pordon's psychiatric needs. This evidence, considered in the light most favorable to Pordon, raises a genuine issue of material fact on the issue of whether Harmon and Larson conspired to deny or delay treatment to Pordon and whether the transfer to the state penitentiary was for punishment purposes. Summary judgment is denied to Harmon and Larson, but granted to Williams and Mowell on the conspiracy cause of action.
[¶35] VI. Claims Against Fitzgerald
[¶36] Fitzgerald is the state's attorney in Lawrence County. Actions taken by him as a prosecutor during the judicial phase of the criminal process are entitled to the protections of absolute immunity. See Imbler v. Pachtman, 424 US 409, 431-32, 96 SCt 984, 995, 47 LEd 2d 128 (1976); see also Buckley v. Fitzsimmons, 509 US 259, 273, 113 SCt 2606, 125 LEd 2d 209 (1993). Pordon alleges Fitzgerald cancelled a grand jury hearing on Pordon's alleged destruction of jail property because he lacked the evidence to indict Pordon. Later that day, Fitzgerald asked Judge Johns to transfer Pordon to the state penitentiary because he was destroying jail property. This evidence, read in the light most favorable to Pordon, does not raise a question of material fact as to whether Fitzgerald was exercising his prosecutorial duties. Fitzgerald is entitled to summary judgment.
[¶37] VII. Pordon's Motion for Partial Summary Judgment
[¶38] Viewing the evidence in the light most favorable to Larson and Harmon, as identified previously, genuine issues of material fact exist for the jury to determine. Pordon's partial motion for summary judgment is denied. Accordingly, it is hereby
[¶39] ORDERED that Lawrence County defendants' motion for summary judgment (Docket 70) is granted regarding the claims against the Lawrence County defendants in their official capacity.
[¶40] IT IS FURTHER ORDERED the motion for summary judgment regarding all claims against John Fitzgerald, Richard Mowell, and Robert Williams are granted.
[¶41] IT IS FURTHER ORDERED that the motion for summary judgment against Dale Larson and Joe Harmon, individually, is denied.
[¶42] IT IS FURTHER ORDERED that Pordon's motion for partial summary judgment (docket 76) is denied.
1. In ruling on Pordon's motion for summary judgment, the court will resolve all genuine factual disputes and draw all reasonable inferences in favor of the Lawrence County defendants.