Johnson v. Crittenden County Detention Center et al
ORDER granting 55 Motion to Dismiss. Mr. Johnson's claims against Defendant Franks are dismissed, without prejudice. 27 Motion for Summary Judgment is granted in part and denied in part. Mr. Johnson's claims against Defendants Logan, W atts, Williams, and Davis are dismissed, with prejudice. The motion as to Defendant Franks is denied, as moot. 52 Motion for Summary Judgment is granted. Mr. Johnson's claims against Defendant Childress are dismissed, with prejudice. The Clerk is directed to close this case. Signed by Magistrate Judge Beth Deere on 9/7/2017. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
KEVIN LEE JOHNSON
CASE NO. 3:16-CV-219-BD
DETENTION CENTER, et al.
Kevin Lee Johnson, formerly an inmate at the Crittenden County Detention Center
(“Detention Center”), initially filed this civil rights lawsuit without the help of a lawyer.
(Docket entry #1) In his complaint, Mr. Johnson alleged that his ex-wife physically
assaulted him while he was being interrogated by Defendant Franks at the Detention
Center. He claimed that Defendant Franks violated his constitutional rights by failing to
intervene to assist him during the assault. In addition, he claimed that Defendants Cody,
Logan, Watts, Williams, Davis, and Allen failed to provide him medical care for the
injuries that he sustained during the incident.
On March 13, 2017, Defendants filed the pending summary judgment motion.
(#27) On March 22, 2017, the James Law Firm entered an appearance in this case as
retained counsel for Mr. Johnson. (#32) At that point, the Court gave the parties
additional time for discovery and extended the time allowed for Mr. Johnson to respond
to the motion for summary judgment. (#34)
On May 24, 2017, Mr. Johnson moved to amend his complaint, which the Court
granted. (#36, #42) Based on the allegations in his amended complaint, the Court
terminated Defendants Cody and Allen as parties, and added Mandy Childress as a
Defendant. (#42, #44)
Mr. Johnson has now responded to the Defendants’ motion for summary
judgment, and it is ripe for decision. (#49, #50) Meanwhile, Separate Defendant
Childress moved to adopt the Defendants’ motion for summary judgment. (#52) In
addition, Defendants moved to dismiss Defendant Franks pursuant to Federal Rule of
Civil Procedure 25. (#55)
A. Motion to Dismiss Defendant Franks 1
Federal Rule of Civil Procedure 25(a) provides, as follows:
If a party dies and the claim is not extinguished, the court may order substitution
of the proper party. A motion for substitution may be made by any party or by the
decedent’s successor or representative. If the motion is not made within 90 days
after service of a statement noting the death, the action by or against the decedent
must be dismissed.
On April 24, 2017, Defendants filed a “Suggestion of Death” for Defendant Bernis
Franks, thus notifying Mr. Johnson and the Court that Defendant Franks had died on
April 17, 2017. (#35) Since that date, Mr. Johnson has not moved to amend his complaint
to name a personal representative or Defendant Franks’s estate. 2 More than 90 days have
passed since the Defendants filed the Suggestion of Death for Defendant Franks, and Mr.
Mr. Johnson has not responded to the motion to dismiss Defendant Franks, and the time
for responding has expired.
In his amended complaint, Mr. Johnson specifically noted that Defendant Franks died
on April 17, 2017. (#38 at p.2)
Johnson has not filed a motion for substitution. Mr. Johnson’s claims against Defendant
Franks, therefore, must be dismissed.
B. Defendants’ Motion for Summary Judgment
In a summary judgment, the Court rules in favor of a party before trial. A party is
entitled to summary judgment if the evidence, viewed in a light most favorable to the
non-moving party, shows that there is no genuine dispute about any fact important to the
outcome of the case. FED.R.CIV.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322B23,
106 S.Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct.
2. Official Capacity Claims
Defendants argue that Mr. Johnson’s official capacity claims must be dismissed
for failure to state a federal claim for relief. The Court agrees. Official-capacity claims
against the Defendants are, in effect, claims against Crittenden County. Parrish v. Ball,
594 F.3d 993, 997 (8th Cir. 2010). Local governments are not automatically liable under
§ 1983 for injuries their employees inflict. Instead, counties can be held liable only when
their employees violate a prisoner’s rights while carrying out a county policy or custom. 3
Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018 (1978). Id.;
For purposes of § 1983, a policy is a “deliberate choice of a guiding principle or
procedure made by the municipal official who has final authority regarding such
matters.” Marksmeier v. Davie, 622 F.3d 896, 902 (8th Cir. 2010). To establish a custom,
a plaintiff must prove that the county engaged in a continuing pattern of unconstitutional
misconduct, not just a single unconstitutional act. Id. at 902-903.
Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 632 (8th Cir. 2009). Here, Mr.
Johnson does not allege that he suffered any injury as a result of a Crittenden County
policy or custom. Official-capacity claims, therefore, must be dismissed.
3. Deliberate Indifference – Individual Capacity Claims 4
a. Factual Background
On August 19, 2016, Mr. Johnson was escorted to the Detention Center’s
interrogation room where Defendant Franks was waiting. (#38 at p.3) Shortly after Mr.
Johnson arrived, his ex-wife Sheila Cosgrove-Johnson entered the interrogation room.
(Id.) Defendant Franks and Mrs. Cosgrove-Johnson presented Mr. Johnson a pre-written
statement, but Mr. Johnson refused to sign it. Mrs. Cosgrove-Johnson then verbally
castigated Mr. Johnson and punched him in the face. (Id.) As a result of the assault, one
of Mr. Johnson’s front teeth was loosened. (Id.; #29-4 at p.2)
On the same date, Mr. Johnson filed a medical request form. (#29-5 at p.2) In that
request, Mr. Johnson complained of a swollen face, a loose tooth, severe pain, and
trouble chewing his food. (Id.) In addition to his written requests, Mr. Johnson alleges
that he made two verbal requests for medical treatment to Defendant Williams, two
verbal requests for medical treatment to Defendant Logan, and four verbal requests for
medical treatment from Defendant Watts. (#38 at p.4)
In their motion for summary judgment, Defendants argue that, because Mr. Johnson did
not specify in what capacity he was suing the Defendants, the Court must construe his
complaint as only pursing official capacity claims. After Defendants filed their summary
judgment motion, however, Mr. Johnson filed an amended complaint suing the
Defendants in both their individual and official capacities. (#38) As a result, that
argument is now moot.
On August 20th, Mr. Johnson submitted a written request for medical treatment to
Defendant Logan and verbally requested medical treatment from Defendant Davis. (Id.)
On August 21st, he submitted another written request for medical treatment to Defendant
Logan. (Id.) On August 22, 2017, Defendant Childress evaluated Mr. Johnson and noted
“front bottom tooth loose [no] bruising/swelling noted anywhere on face – T.O.
[telephone order] Harrell/Ibu . . . x7 days dentist appointment.” (#29-4 at pp.3, #29-5 at
On September 8th, Mr. Johnson submitted another written request for medical
treatment to Defendant Davis. (#38 at p.4) On September 29, he submitted a grievance
complaining that the medical staff had ignored his requests for medical treatment; that he
was still in pain; that he had not seen a dentist, in spite of the fact that a dental
appointment had been scheduled more than a month before; and that he was “praying to
have these teeth pulled.” (#29-5 at p.3)
On October 3, Mr. Johnson submitted another grievance about his lack of medical
treatment. (#29-5 at p.4) He also complained that he was in “excruciating pain” and was
suffering from an “infection at the site.” (Id.) Defendant Childress responded to the
complaint by stating, “I/M has written these to everyone except medical staff – See
request form sent to T. Bonner ...” (Id.)
On October 4th, Defendant Childress examined Mr. Johnson and noted:
I/M informed that this is 1st request received from him since initial . . . incident
when he was seen on 8-22-16. I/M informed he does have dental appt scheduled
(10-5-16 @ 8:00 am.) I/M was give Rx . . . which was completed [w/out] further
request till today. (OTC pain meds are also available @ all times on commissary).
I/M has [no] swelling [no] [signs/symptoms] infection just “loose tooth”
[w/][complaints/of] general pain – I/M states to have discomfort when eating but
states he is eating and has [no] visible signs of wt loss. OTC Ibu given – I/M will
keep dental appointment.
(#29-4 at p.3, #29-5 at p.3)
On October 5th, Richard Scarbrough, D.D.S., who is not a defendant in this case,
extracted Mr. Johnson’s tooth. (#29-5 at p.5; #29-6 at p.5) Dr. Scarbrough prescribed
ibuprofen for Mr. Johnson’s pain. (#29-5 at p.5)
Deliberate indifference to a prisoner’s serious medical needs is prohibited by the
United States Constitution. 5 McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009);
Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prove deliberate indifference, Mr.
Johnson must demonstrate that he suffered from an objectively serious medical need and
that the Defendants knew of the need, yet deliberately disregarded it. Hartsfield v.
Colburn, 371 F.3d 454, 457 (8th Cir. 2004). In this context, a “serious medical need” is a
condition or illness that has been diagnosed by a doctor as requiring treatment, or a need
so apparent that a lay person would easily recognize the need for medical attention.
Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997).
Because Mr. Johnson was a pre-trial detainee at the time the events giving rise to this
lawsuit occurred, his claims regarding inadequate medical care are analyzed under the
Fourteenth Amendment’s Due Process Clause. (#29-1 at p.2) Bell v. Wolfish, 441 U.S.
520, 535 (1979). However, the Eighth Circuit applies the same standard to claims for
inadequate medical care whether based on the Fourteenth or Eighth Amendment. Vaughn
v. Greene County, Ark., 438 F.3d 845, 850 (8th Cir. 2006).
The Defendants are liable only if they “actually knew of but deliberately
disregarded” Mr. Johnson’s serious medical needs. Id. This showing requires a mental
state “akin to criminal recklessness.” Id. (quoting Gordon v. Frank, 454 F.3d 858, 862
(8th Cir. 2006)). Mr. Johnson must show “more than negligence, more even than gross
negligence.” Fourte v. Faulkner County, Ark., 746 F.3d 384, 387 (8th Cir. 2014) (quoting
Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000)). Stated another way, to prevail on
this claim, Mr. Johnson must show that the Defendants’ actions were “so inappropriate as
to evidence intentional maltreatment or a refusal to provide essential care.” Dulany v.
Carnahan, 132 F.3d 1234, 1240–41 (8th Cir. 1997).
Defendants first argue that Mr. Johnson’s claims against Defendants Logan,
Watts, Williams, Davis, and Franks should be dismissed because they are not medical
personnel. This argument, however, is not well founded. Deliberate indifference may be
manifested by “prison guards in intentionally denying or delaying access to medical care
or intentionally interfering with the treatment once prescribed.” Estelle v. Gamble, 429
U.S. 97, 104–05 (1976).
These Defendants are not entitled to judgment as a matter of law based on the fact
that they are not direct medical providers, but it is important to note that the “Constitution
does not require jailers to handle every medical complaint as quickly as each inmate
might wish.” Jenkins v. County of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009).
Generally, the objective seriousness of a delay in treatment must be supported by
verifying medical evidence in the record. Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir.
2005). If the need for medical attention is obvious to a layperson, however, a plaintiff is
excused from producing verifying medical evidence to show the detrimental effects of
delay. See Schaub v. Yon Wald, 638 F.3d 905, 919 (8th Cir. 2011) (citing Roberson v.
Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.
1995) (“noting that a delay in treatment, coupled with knowledge that an inmate is
suffering, can support a finding of an Eighth Amendment violation”)). See Hartsfield v.
Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (concluding a plaintiff who had severe pain
“from loose and infected teeth, which caused blood to seep from his gums, swelling, and
difficulty sleeping and eating” had alleged an objectively serious medical need for dental
care in an Eighth Amendment ' 1983 action); McAlphin v. Toney, 281 F.3d 709, 711 (8th
Cir. 2002) (holding a plaintiff who claimed five prior delayed tooth extractions with two
more extractions necessary and still delayed, and a spreading mouth infection,
demonstrated a sufficient allegation of imminent danger of physical injury under 28
U.S.C. ' 1915(g)); Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (deciding a “three
week delay in dental care, coupled with knowledge of the inmate-patient’s suffering, can
support a finding of an Eighth Amendment violation under section 1983” when inmate
could barely open his mouth and “pus regularly oozed from the infection”); and Fields v.
Gander, 734 F.2d 1313, 1315 (8th Cir. 1984) (three-week delay in treatment of a painful
condition, including a swollen face and “severely infected tooth” stated a claim).
Here, it is undisputed that Mr. Johnson experienced a delay in having a dentist
examine him and extract his loose tooth. But that fact, standing alone, is insufficient to
defeat the Defendants’ motion for summary judgment. Negligence, gross negligence, and
malpractice do not rise to the level of a constitutional violation. Langford v. Norris, 614
F.3d 445, 460 (8th Cir. 2010) (plaintiff must show more than even gross negligence, and
mere disagreement with treatment decisions does not rise to level of constitutional
Under the circumstances of this case, Mr. Johnson’s need for medical treatment
would not have been obvious to a lay (non-medical) person. There is no medical evidence
that Mr. Johnson suffered any infection or even swelling as a result of a delay in
receiving treatment. It is undisputed that Mr. Johnson was prescribed ibuprofen at the
time of the incident and that he could have obtained over-the-counter pain medication
from the commissary at any time to alleviate pain. Moreover, although Mr. Johnson
complains that he suffered from “abdominal pain, cramps, bouts of constipation and
hunger from being unable to chew certain foods,” there is no evidence in the record, such
as weight loss, to support these allegations. (#50 at p.10) Contrary to Mr. Johnson’s
conclusory statements, Defendant Childress noted that Mr. Johnson had not suffered from
any weight loss when she examined him in October 2016. (#29-5 at p.3) Notably, after
extracting Mr. Johnson’s tooth, Dr. Scarbrough prescribed only ibuprofen for pain and
did not note any sort of infection and/or swelling.
Because Mr. Johnson has failed to come forward with any medical evidence that
he suffered detrimental effects as a result of any delay in receiving medical treatment,
Defendants Logan, Watts, Williams, Davis, or Childress are entitled to summary
judgment on claims that they acted with deliberate indifference to Mr. Johnson’s serious
The Defendants’ motion to dismiss Defendant Franks (#55) is GRANTED. Mr.
Johnson’s claims against Defendant Franks are DISMISSED, without prejudice. In
addition, the motion for summary judgment filed by Defendants Logan, Watts, Williams,
Franks, and Davis (#27) is GRANTED, in part, and DENIED, in part. Mr. Johnson’s
claims against Defendants Logan, Watts, Williams, and Davis are DISMISSED, with
prejudice. The motion as to Defendant Franks is DENIED, as moot. Finally, Defendant
Childress’s motion for summary judgment (#52) is GRANTED. Mr. Johnson’s claims
against Defendant Childress are DISMISSED, with prejudice. The Clerk is directed to
close this case.
DATED this 7th day of September, 2017.
UNITED STATES MAGISTRATE JUDGE
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