Gustafson v. Norris et al

Filing 98

MEMORANDUM OPINION AND ORDER adopting 90 Partial Report and Recommendations except as stated herein; DENYING AS MOOT 47 MOTION for Summary Judgment filed by Stephen Broughton and Deborah York; DENYING 50 MOTION for Partial Summary Judgment filed by CMS; 53 MOTION for Summary Judgment filed by ADC defts is GRANTED except as to the state negligence claim; 79 MOTION to Strike is DENIED. Signed by Judge Susan Webber Wright on 7/7/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

DEBBIE GUSTAFSON, EXECUTRIX
FOR THE ESTATE OF MITCHELL W.
GUSTAFSON, DECEASED
v.

PLAINTIFF

CASE NO. 5:09CV00282 SWW-JTK

EMMA HAMER, ET AL.

DEFENDANTS
Memorandum Opinion and Order

The Court has received proposed findings and recommendations from United States
Magistrate Judge Jerome T. Kearney. After careful review of the findings and recommendations
and the timely objections thereto, as well as a de novo review of the record, the Court concludes that
the findings and recommendations should be, and are hereby, approved and adopted as this Court’s
findings in all respects except the following.
Emma Prater Hamer. Plaintiff asserts that Hamer violated Gustafson’s constitutional rights
under the Eighth and Fourteenth Amendments not be subjected to cruel and unusual punishment.

A prison official's deliberate indifference to a prisoner's serious medical needs
constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Alberson v. Norris, 458 F.3d 762, 765-66 (8th Cir.2006). A prima facie case alleging
deliberate indifference requires the inmate-plaintiff to demonstrate that she suffered
from an objectively serious medical need and the ‘prison officials actually knew of
but deliberately disregarded that need.’ Id. Medical malpractice alone, however, is
not actionable under the Eighth Amendment. Smith, 458 F.3d at 724. For a claim of
deliberate indifference, ‘the prisoner must show more than negligence, more even
than gross negligence, and mere disagreement with treatment decisions does not rise
to the level of a constitutional violation.’ Estate of Rosenberg v. Crandell, 56 F.3d
35, 37 (8th Cir.1995). Deliberate indifference is akin to criminal recklessness, which
demands more than negligent misconduct. Olson v. Bloomberg, 339 F.3d 730, 736
(8th Cir.2003).
Popoalii v. Correctional Medical Servs., 512 F.3d 488, 499 (8th Cir. 2008).

The Court finds the evidence is undisputed that Jimmy Johnson designated Gustafson as a active
suicide risk in his case notes which were available to Hamer. Whether she saw the notes or otherwise
knew that Gustafson had been designated as a suicide risk is in dispute. The facts are undisputed that
Hamer interviewed Gustafson and completed a 12-page mental health social history assessment. She
noted that he had been diagnosed two months earlier with anxiety and prescribed Xanax. Hamer also
noted that Gustafson told her he had thought of killing himself because of his sentence, which he had
received two days earlier, and he had attempted to do so. She observed cuts in the bends of his arms.
Hamer assessed him a slight suicide risk. Hamer testified Gustafson willingly signed a “no harm”
contract by which he agreed to let prison staff know if he were having problems. Hamer said she told
him what to do in the event he needed to talk with someone. She did not attempt to contact a
psychologist or psychiatrist on duty or to call the physician who had prescribed Xanax. She did refer
Gustafson to see the psychiatrist, which means his name was placed on a list for the next available clinic.
She said Gustafson signed a release of medical information form and she passed that form along to the
secretary, Joy Thomas. Hamer testified she did not think it was necessary to contact the psychiatrist
about his medication based on her interview with Gustafson. The facts are that Hamer requested that
security staff house Gustafson where he could be seen until he saw the psychiatrist. She noted in the
request that he was not on precautions.
The Court finds there are no genuine issues of material fact in dispute as to whether Hamer
acted reasonably in the circumstances. Whether or not she knew Gustafson was considered an active
suicide prior to her contact with him, Hamer interviewed him without delay, made a detailed assessment,
and personally observed him and witnessed his conversation with his wife in which he instructed her
to take care of their property. She did not find him to be in crisis. Plaintiff cannot establish a genuine
issue of material fact that would support a finding of a deliberate indifference on the part of Hamer.

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Robert Parker. As administrator of mental health services for the ADC, Parker was responsible
for training mental health staff. The Magistrate Judge determined there was an issue of fact as to
whether Parker had adequately trained his staff. “A supervisor may be held individually liable under §
1983 . . . if a failure to properly supervise and train the offending employee caused a deprivation of
constitutional rights. The plaintiff must demonstrate that the supervisor was deliberately indifferent or
tacitly authorized the offending acts. This requires a showing that the supervisor had notice that the
training procedures and supervision were inadequate and likely to result in a constitutional violation.”
Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996).
The evidence establishes that the ADC had policies in place to deal with inmates who are in
crisis, specifically with regard to placing inmates on treatment precautions. There is also a policy
addressing psychiatric services, including 24-hour on-call service for mental health needs. There is no
evidence that Hamer was unaware of or did not follow the policies in place. She testified she knew she
could call a psychiatrist and decided it was not necessary to do so in Gustafson’s case. She also
determined he was not in crisis and decided not to place him on any treatment precautions. There is
no evidence that Parker had any notice that the training procedures in place were deficient. Even if the
Court were to find a constitutional violation, there are no facts in dispute by which a jury could find
such a violation was the result of inadequate supervision or training.
John Byus. As administrator of medical and dental services, Byus was responsible for ensuring
that inmates had access to qualified health care providers.1 In accommodating the delivery of medical
services to inmates, the ADC contracted with CMS to provide those services. Defendant Byus was one
of the persons responsible for contracting with CMS. He is responsible for monitoring CMS’
compliance with policies, contract provisions, and management/clinical protocols. Under the contract,

1

In their objections, the ADC defendants submit an affidavit of John Byus that was an exhibit in a
previous case filed against CMS and the ADC, Fegans v. CMS, et al., 5:04cv155 JLH.

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CMS provides doctors, dentists, and other health care staff.

CMS employees are responsible for

administering medication and medical and dental services to inmates.

Defendant Byus is not a

physician and was not involved in the day-to- day delivery of medical services. He does not supervise
care giving staff, including psychiatrists. The contract between the ADC and CMS required CMS to
provide twenty-four hour a day access to psychiatric services.
There is no evidence that Byus had any responsibility or control over whether a medical
physician was brought in by CMS to review Gustafson’s medication upon his arrival at the ADC. There
is no evidence that any such inaction was brought to the attention of Byus. The Court finds plaintiff
fails to establish a genuine issue of material fact exists as to a violation of Gustafson’s constitutional
rights on the part of Byus.
John Gore. The Court finds there are no genuine issues of material fact in dispute as to whether
Gore was deliberately indifferent to Gustafson’s serious medical needs. Whether or not Hamer was one
of the staff members Gore told that Gustafson would be arriving from the county jail, Hamer did
promptly interview Gustafson. She learned about Gustafson’s suicide attempt at the county jail from
him. Upon his return to the unit, Gore spoke with Hamer, who told him about her assessment of
Gustafson. Based on these undisputed facts, the Court finds Gore is entitled to summary judgment.
Tracy Mungle. Defendant Mungle testified he did not know Gustafson was on suicide watch,
was on psychotropic medications, and was to be observed. However, the undisputed evidence is that
Gustafson was placed in a cell directly across from the control booth, and except for the seconds it took
Gustafson to walk under the control booth in order to use the phone, Mungle able to observe, and did
observe, Gustafson exit his cell, walk down the stairs to the phone, talk on the phone, and then proceed
up the stairs. Nothing about Gustafson’s behavior was unusual.
There is no evidence that Mungle’s decision to let Gustafson out of his cell to use the phone was
made with deliberate indifference to a serious medical need. There is no evidence that he had any
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specific instructions regarding Gustafson. Even assuming some inmates heard Gustafson ask for
medication, there is no evidence Mungle heard and ignored such a request. Accordingly, the Court finds
defendants’ motion for summary judgment as to Defendants Hamer, Parker, Byus, Gore, and Mungle
as to the constitutional claims should be granted.
IT IS, THEREFORE, ORDERED that the summary judgment motion of Defendants Dr.
Stephen Broughton and Deborah York (Doc. No. 47) is DENIED as MOOT; that CMS Defendant’s
motion for partial summary judgment (Doc. No. 50) is DENIED; and that ADC Defendants’ motion
for summary judgment (Doc. No. 53) be GRANTED except as to the state negligence claim.
IT IS FURTHER ORDERED that the MOTION TO STRIKE (Doc. No. 79) is hereby
DENIED.
DATED this 7th day of July, 2011.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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