Reyes v. Faulkner County Detention Center

Filing 50

ORDER granting 31 Motion for Summary Judgment; denying 41 Motion to Strike ; and finding as moot 47 Motion in Limine. The complaint is dismissed with prejudice. Signed by Judge D. P. Marshall Jr. on 4/27/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

DOMINIQUE Y. REYES

v.

PLAINTIFF

No.4:11-cv-133-DPM

FAULKNER COUNTY, ARKANSAS

DEFENDANT

ORDER
Dominique Reyes was about eight months pregnant when she came into
the hands of the Faulkner County Detention Center. She remained at the jail
until about a month after she delivered a healthy baby girl. Reyes alleges that
the jail's policies for taking care of pregnant inmates are constitutionally
deficient,. and that those deficient policies led to post-partum complications
aild injuries -lack of proper medication, constipation, rectal bleeding, and
pain. The County seeks summary judgment, arguing no proof of deliberate
indifference. Reyes says there are disputed material facts that must be tried.
Reyes has not sued an officer or jail worker; she does not make the usual kind
of claim: Officer Doe knew about my medical problems and ignored them.

Reyes has sued Faulkner County. She challenges, and only challenges, the

County's policies head on.
1. In support of her response to the County's motion for summary
judgment, Reyes included and relied on an affidavit from Dr. Carolyn Vogler.
Reyes acknowledges that she did not make the expert-testimony disclosures
required by Federal Rule of Civil Procedure 26. She just recently consulted
Dr. Vogler. The County moves to strike Dr. Vogler's affidavit from the
summary-judgment record.
We are five weeks from trial. Allowing Reyes to rely on an undisclosed
expert at this late point could unfairly prejudice the County.

Timely

disclosure of Vogler's opinion would have allowed the County to depose
Vogler, retain its own expert, or both. Cf Davis v. U.S. Bancorp, 383 F.3d 761,
765 (8th Cir. 2004). The County has moved for summary judgment based on
the record as it existed at the time, a record without any expert opinions. The
Court nonetheless concludes that, under the circumstances, Reyes's failure to
disclose was harmless because Vogler's opinions do not change the outcome
on summary judgment. FED. R. CN. P. 37(c)(1). The motion to strike is
therefore denied.

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2. Reyes's claim fails as a matter of law. The County can be liable under

§ '1983 if an 1/ action pursuant to official [County] policy of some nature caused

a constitutional tort." Monell v. Department ofSocial Services ofNew York,436
U.S. 658,691 (1978). Proof of the County's culpability is also required. The
County has policies about detainee health care in general and about pregnant
inmates in particular: the policies cover diet and basic care during pregnancy.
They have no specifics about post-partum care, which would therefore be
covered by the policy provisions about medical care in general. For example,
if Reyes's doctor' prescribed medicine for her post-partum care, general
policies were in place to ensure Reyes received her medication at the proper
time and in the prescribed dose. Document No. 33-2, at 6-7. The policies
further required the jail staff to review the results of Reyes's outside medical
appointments, report those findings to the jail's doctor, and strictly comply
with any aftercare instructions. Document No. 33-2, at 3 & 5. The policies do
not violate federal law on their face. Reyes must therefore present evidence
that the County acted with deliberate indifference to the "known or obvious
consequences" of its policies. Board ofCounty Commissioners v. Brown, 520 U.S.
397,407 (1997).

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Reyes has offered no proof about deliberate indifference. Showing that
the County was negligent-or even grossly negligent-in maintaining an
inadequate medical policy for pregnant jail detainees is not sufficient. Ibid.

/lIf a program does not prevent constitutional violations, municipal
decisionmakers may eventually be put on notice that a new program is called
for. Their continued adherence to an approach that they know or should
know has failed to prevent tortious conduct by employees may establish the
conscious disregard for the consequences of their action - the deliberate
I

indifference' -necessary to trigger municipal liability." Ibid. But here, Reyes
has focused exclusively on showing that the medical policies were per se
constitutionally insufficient and that the insufficient policies caused her
injury. There is no evidence of deliberate indifference.
It is not enough that the County negligently kept inadequate policies in

place. If the County was aware that the policies were inadequate - perhaps
because other women had suffered complications like Reyes's - and
nonetheless kept the policies in place, there might be a basis for liability.
Reyes has offered no such evidence. Without any showing of deliberate
indifference, Reyes's § 1983 claim fails as a matter of law.

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* * *

Motion to strike, Document No. 41, denied.

Motion for summary

judgment, Document No. 31, granted. Reyes's complaint is dismissed with
prejudice.

The Court thanks Reyes's appointed counsel for his work

representing her.
So Ordered.

D.P. Marshall Jr.
1/

United States District Judge

f

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