Rubio v. Larkin

Filing 53

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 26, 2010. (src)

IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS FA Y E T T E V ILLE DIVISION

M A R C O ANTONIO TORRES RUBIO v. C iv il No. 07-5156

PLAINTIFF

DEPUTY LARKIN, Benton County D eten tio n Center; and DEPUTY COLLINS, B en to n County Detention Center

D E FE N D A N T S

MEMORANDUM OPINION This is a civil rights case filed under 42 U.S.C. § 1983. The Plaintiff proceeds pro se and in forma pauperis. The case is before the Court for decision pursuant to the consent of the parties (Doc. 46). In this case, Plaintiff alleges that Defendants Dana Larkin and Casey Collins, deputies at the Benton County Detention Center (BCDC), used excessive force against him on August 8, 2007. A bench trial was held on February 16, 2010. The Plaintiff also has a second case Rubio v. Dr. Huskins, Civil No. 08-5011. In case 08-5011, Plaintiff alleges the Defendant, Dr. John Huskins, denied him adequate medical care. For the ease of the parties and the Court, the bench trials of the two cases were held simultaneously. At the conclusion of the trial, Defendants were directed to provide the Court with: the records missing from Plaintiff's jail medical record; copies of Plaintiff's requests/grievances dated December 16, 2007, and December 27, 2007; and, a complete copy of Plaintiff's medication logs. The case was taken under advisement pending receipt of these documents and preparation of this memorandum opinion.

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I. EVIDENCE PRESENTED The Court heard the testimony of the following individuals: (1) Marco Antonio Torres Rubio, the Plaintiff; (2) Joe Arreola (telephonic testimony); (3) Maci Davis (telephonic testimony); (4) Shawn Sarver (telephonic testimony); (5) Elmer Rodriguez (telephonic

testimony); (6) Dr. John Huskins, the named Defendant in Civil No. 08-5011; (7) Nurse Marsha Smith; (8) Deputy Larkin, a named Defendant in Civil No. 07-5156; and (9) Deputy Collins, a named Defendant in Civil No. 07-5156. The testimony of these witnesses will be summarized in the first person. Marco Antonio Torres Rubio
I was incarcerated at the BCDC from April of 2007 until January of 2008. I am currently in federal prison in Marion, Illinois. O n August 8, 2007, early in the morning, about 7 or 8 a.m., I approached the door to ask fo r toilet paper to use in the restroom. I was inside the pod standing at the door. Larkin opened the door; other officers were there too. I asked if they could give me toilet p ap er to use in the restroom. Larkin said no. I said I needed to use the restroom. Then I asked the officers if they could open my room b ecau se I had toilet paper in my room. Larkin and Collins charged in and put me on the floor. Larkin hit me on one side of the face. He grabbed me with one hand and hit me with the other. He threw me on the floor. He started hitting and kicking me. I was hit in the head and then they started hitting and kicking me all over my body and head. I was receiving a lot of kicks from all of them.

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I covered my face and curled up in a ball. I was hit and kicked a lot. There were other o fficers involved but I cannot identify them. I did not see them. I am not sure if the other officers h it me. When they picked me up, there were a lot of officers there. C o llin s then started handcuffing me. My arms were handcuffed behind my back. Once I w as handcuffed, they had me on my knees. Larkin kept hitting me in the head. He hit me ten or fifteen times in the head. He also kicked me right above my left testicle. Larkin was yelling at me, cu rsin g me, and calling me a mother f-----. Larkin was upset. Collins was grabbing me by the shoulders. He was holding me on my knees while Larkin w as hitting me in the head. I never said or did anything. I was taken to the hallway and put on my kn ees. Collins was there. Larkin went to the computer because he was going to put me in the hole. Larkin came back. He said Mexican mother f----- and started hitting and cursing me again. Collins lifted me up and I was then taken to the place they call the hole. Larkin has that way of behaving there. I do not know why; maybe he does not like his job o r does not like Hispanics. It all happened really fast. They picked me up and handcuffed me and took me outside. Collins was holding me by the arms and Larkin was hitting me in the head. I never refused to do anything on August 8th. I was simply asking for a roll of paper. They n ev er gave me any order. Larkin just came after me. I did not resist. I had been there for several m o n th s. I saw how they hit people. I knew it would be worse if I resisted. I have seen Larkin hit o th ers. I saw him hit a man known as Pinocchio but he has been deported. A t lunch time, Larkin came and threatened me. He put his fist in my face when they were giv in g food out. Because I do not speak English well, I did not understand everything he said. I stayed in the hole about ten days. They put me in the hole and said I was guilty.

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Wh en I started having pain in my head, back, chest, and left testicle, I put in a medical req u est. I sent in the first medical request either the day it happened or the next day. I was not bleeding, I had knots on my head and body and bruises. At the BCDC, it takes th ree or four days to get a request and then go to see the doctor. It was about a week afterwards that I waited to get pain medication. I went to see the doctor to get checked. I told him what happened. I showed the doctor all m y bruises and bumps and about my contact with the deputies. When the doctor saw me, he only lifted my arms and gave me pills. He did not want to give m e a more in-depth examination because I was having a lot of pain all over my body, head, chest, an d left testicle. I asked the doctor to do an in-depth examination and to do x-rays to check. I told him I felt I had something wrong on the inside. He never checked me. He only gave me pain medication. He said nothing was wrong. S o m etim es after I saw him, I received pain medication. I received pain medication [acetam in o p h en ] from August 13th to August 18th. Defendants' Exhibit 3 in Civil No. 08-5011. The medication did not help much. A couple of days later, he stopped giving me medication. This is the reason I had to put in a lot of requests. I had surgery on my stomach after being shot in the back and the leg when I was about sev en teen . I think that is why all the blows affected me because I was weak. I did not have pain b efo re the August 8th incident. The pain did not start until after they hit me. Wh e n I saw the doctor again, he gave me more medication. Sometimes they gave me m ed icatio n and sometimes not. The last few times I saw him, he would not give me any m ed icatio n . It was a struggle there. Sometimes I did not even have my medication for diabetes.

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T h e longest period I went without my diabetes medication was one and one-half to two weeks. This h ap p en ed often. My attorney even sent them an e-mail about the medication. I do not know if the tim es I did not have the medication was a result of the doctor not giving it or if the guards did not giv e it to me. I would go and ask for my medication and they would say: "There is nothing here fo r you." When I did not get my diabetes medication, I felt very hot, I could not see, and what I could see was dark. Other diabetics told me to drink lots of water and walk. I told the doctor I was not receiving my diabetic medication maybe four or five times. Once h e said he would order the medication and it took several days. The second time, he said he would o rd er the medication. After I told him, I started receiving it a few days later. The third time I asked h im , he again said he was going to order it and I started receiving it some days later. When my atto rn ey got involved was when I started receiving it. S o m e tim es when I put in a request to see the doctor, they would not call for me. Other tim es, three or four times, I saw the nurse. There were times I just got my request back and was not seen . When you went to see the doctor, you would tell them one thing and they would try to get you o u t of there. I still have pain in half of my face, my head, my chest, my left leg, and between my belly b u tto n and left testicle. I also have throbbing pain in my left testicle and my back. Sometimes the p ain is really strong and sometimes it is not. Since leaving the BCDC, I have been in detention cen ters in Arkansas, Illinois, and Georgia. I have seen numerous doctors and nurses, but no one h as checked me in depth. I think I still need an x-ray of my head and body. When I was in Atlanta, th ey took an x-ray ­ I think to check for tuberculosis ­ but I never got the results. I have been

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takin g pain pills for three years. In the morning, I take two pills for pain. My head really starts h u rtin g and that is why I take the pills. Joe Arreola I am currently in the Federal Correctional Institution, Yazoo City Low, in Yazoo, M ississip p i. I was in the BCDC for nine months beginning in March of 2007. I remember a little bit about the incident with Rubio. He asked for toilet paper and they im m ed iately pulled him out of the pod. Once he was pulled out, I could not see anything. I did not see any hitting, kicking, or other body contact. I could hear noises--like slapping sounds. Rubio came back into the pod. He looked a little mad. I mind my own business. I try not to get involved in things like that. R u b io told me they hit him and threw him to the ground. I do not really remember if they m ad e him get on the ground. A lot of times when the deputies came into the pod, they gave a v erb al command for everyone to get on the floor. You would get on your stomach or knees. I do not remember Rubio requesting medication. M a ci D. Davis I am currently in the Federal Correctional Institution in Yazoo, Mississippi. I was in the B C D C from February of 2007 until April of 2008. I met Rubio at the BCDC. We were in the same p o d , but were not cell-mates. I have not spoken to him about my testimony, received any mail fro m him, or seen him since I was at the BCDC. I recall the events of August 8, 2007. Rubio went to the door and I heard him ask for toilet p ap er. I heard him. Rubio never went out of the pod. I guess Larkin and another officer told R u b io to come back inside the pod and Rubio again told them he needed toilet paper. I guess they

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go t mad and they rushed in the pod. We were playing spades at a table to the right when the d ep u ties came into the pod. I was maybe five or ten steps from Rubio. R u b io saw them coming and turned back. Larkin grabbed at him. They told everyone to get on the ground. I saw Larkin hit Rubio three or four times. The first one was in the back of the h ead . The other ones were to his upper body. Rubio was standing when Larkin hit him in the back o f the head. Rubio fell against the wall. He was slammed to the floor and hit in the upper body a co u p le of times. He was then put in handcuffs and taken out. Rubio did not resist the officers. The other officer involved ­ whom I do not know ­ did not hit Rubio. I do not know what h ap p en ed after they took Rubio out in handcuffs. I did not see him attacked after he was in h a n d c u ffs. R u b io came back a week or so later and he showed me bruises on his ribs. I know he was b ru is e d up pretty badly. They would not let him go to the doctor or the nurse. I know he was d efin itely trying to see the nurse. I am not aware he received medical attention. I think Larkin is a racist and does not care for Hispanics. I base this on his attitude and m an n erism s. I cannot say there were any specific problems with Rubio. B efo re I left the BCDC, I heard about the charges Rubio was going to press. He asked me if he should do it. Rubio and I did not really get along, so he only mentioned it once. S h a w n Sarver I am currently in the United States Penitentiary in White Deer, Pennsylvania. I was in carcerated in the BCDC beginning in March of 2007 for about five months. I was in the BCDC th e same time as Rubio. We played cards together, but I would not really say he was my friend. I did not find out about this lawsuit until Friday of last week. I have had no contact with Rubio sin ce we were at the BCDC.

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O n the day of the incident, I was sitting at the very first table playing cards and Rubio was righ t there in front of me inside the pod, holding up the toilet paper roll at the window. What he said was in Spanish and I do not speak Spanish, but I assume he was holding up the roll to get an o th er roll of tissue. Just one officer came into the pod. The pod door was opened, and the officer rushed in and h it Rubio in the neck. Rubio was pushed to the wall and then to the floor. The officer picked R u b io up, body-slammed him onto the floor, and then the rest of the officers came in and Rubio w as handcuffed. Rubio was then escorted out of the pod. You cannot see what happens outside the pod. I d id not hear anything. You could probably hear loud noises but it is so noisy in the pod I honestly d o not know. E v eryo n e in the pod thought it was odd the way it happened. An officer came in there and d id all this damage to Rubio over a roll of toilet paper. I was able to hear everything but I do not u n d erstan d Spanish. I only saw one officer use force against Rubio. Rubio had no clue anything w as coming. I have no clue as to why it would happen. There were times the SERT (Special E m ergen cy Response Team) would come in and slam us to the wall. I do not think I was in the pod when Rubio came back from the hole. I never saw any in ju ries. I am not sure about Rubio's medical care. E lm er Rodriguez I am currently in a Federal Correctional Institution in Indiana. I was in the BCDC in 2006. I remained there for a year and a half. I met Rubio in the BCDC and we became friends. I last sp o ke to him about two years ago in the BCDC.

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I was sitting at a table talking to a friend when Rubio went to the door and asked for toilet p a p e r. He was inside the pod but the door was open. Rubio stepped outside the pod. He came b a c k in because they would not give him any toilet paper. Rubio closed the pod door and then I saw Larkin approaching him. Larkin was the first deputy to come in the pod. There were two d e p u tie s at first and then a third one came in. Rubio was first thrown to the floor and then they started hitting him. I do not know how many times Rubio was hit but they beat him up. I remember all three deputies hit Rubio. Rubio was not resisting in any way. I do not remember if Rubio was handcuffed when they took him out of the pod. I did not se e or hear anything after he was taken out. I do not know why they would hit Rubio over toilet p a p er. I really do not know if he got to see the doctor. I can remember him asking for medical care ab o u t his diabetes. Rubio wrote a request I think he showed it to me. We did not talk about the incident after it happened. Rubio did tell me he was going to sue after he got back to the pod. I agreed to testify because I saw it. I do not recall all the events that day. However, I know it did happen. D ep u ty Dana Larkin I work for the Benton County Sheriff's Department as a transport deputy, but previously w o rked in the jail. I was an instructor on pressure points and control tactics. The tactics are d esign ed to take down inmates in a manner using the least force. O n August 8, 2007, there was an incident with Rubio. I made a record of the incident. Defendants' Exhibit 2 in Civil No. 07-5156. Deputy Collins was on duty with me and we were le ttin g inmates in D-150 out for recreation. When the inmates come out of the pods, they go

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o u ts id e to a recreation area. I cannot recall how many inmates were in the pod. Usually, if the in m ates have a chance to go outside, they go. Rubio came out to pod-control asking for toilet paper. Toilet paper had been handed out th e day before and also passed out at morning shift. We told Rubio to go back in the pod and he said ­ in English ­ "no I want toilet paper." I went down to where he was standing and grabbed his left arm to escort him back into the pod. He was told at least twice to return to the pod. Collins to ld him the first time. I told him the second. I had to walk eight to ten feet to get to Rubio. Collins was standing to the left of me. When w e started to go through the D-150 door, Rubio started resisting. He tensed up and balled his fist. I thought he was going to hit me. I immediately put him on the floor using a straight-arm bar take d o w n technique.1 You bend them straight down at the waist. The take down occurred right in the d o o rw ay. Other inmates could have seen it. C o llin s was standing in pod control when this happened. When Rubio was on the ground C o llin s came and assisted in putting the handcuffs on. His hands were handcuffed behind his back. Rubio was still acting aggressively so we placed him on his knees. He was staying real ten se and not following direct commands. I still felt threatened by him so I wanted him on his kn ees. It looked like he was going to hit me. Placing an inmate on his knees gives him a minute o r two to calm down and prevents the inmate from kicking us. Rubio had refused to go to his knees so I delivered one knee strike to his right common p ero n eal located at the side of the leg. The technique is designed to cause motor dysfunction. I did not hit, kick, or strike Rubio. I didn't slam him against the wall. He did hit the floor.

1 This maneuver is designed to bring the inmate to the ground, face down, to allow handcuffing. See e.g., Wright v. City of Canton, Ohio, 138 F. Supp. 2d 955, 959 (N.D. Ohio 2001).

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The force I used was consistent with my training and was a reasonable response given the situation. Rubio didn't complain that he was hurting. R u b io was checked out to the lock-down pod, E pod. I then went back to my duties. D ep u ty Casey Collins I have worked at the BCDC since October of 2005, as a corrections officer. I was working o n August 8, 2007. The incident occurred about 7:45 a.m. I prepared an incident report. Defendants' Exhibit 1 in Civil No. 07-5156. We lined up the inmates for outside recreation. Rubio cam e out and crossed the red line. I told him he was not supposed to be out of the pod. He said h e needed toilet paper. I ordered him back in the pod. Larkin stepped down and took Rubio's arm to escort him back into the pod. I saw Rubio tense up, ball his fist, and turn away from Larkin. Larkin placed Rubio on the floor using an arm-bar take down. I did not hear them hit the ground. It is not the intention of this technique to slam an inmate to the ground. It is just to move him in th at direction. The inmate has another arm to pad himself when he goes down. Rubio did not hit th e wall. When Rubio was placed on the ground it was appropriate. I left pod control to assist. I h an d cu ffed Rubio and then we each took an arm and escorted him eight to ten feet back to pod co n tro l. He was tensing up and very rigid. I do not recall him pulling against me. We were still w o rried he could harm us so we ordered him to his knees as a safety precaution. Rubio was ordered tw ice to get on his knees, but he did not comply. Larkin and I simultaneously delivered common p ero n eal knee strikes. This technique is used for motor dysfunction and balance displacement. The tech n iq u e was used because Rubio was not complying. D efen d an ts' Exhibit 3 in Civil No. 07-5156 is the disciplinary action form that I filled out w h en the initial reports were written. Rubio was charged with refusing to obey the order of a

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d ep u ty. When a disciplinary action form is written, the inmate is escorted to lock-down. The sergean t then comes down and gets the documents and gives the inmate the opportunity to respond. The officers involved in the incident do not take part in the due process hearing. Rubio was found gu ilty of disobeying an order and given ten days lock-down and loss of privileges. The form in d icates Rubio admitted to not going back into the pod when he was told to do so. I did not hit, kick, punch, or slam Rubio in anyway. I did the knee-strike at the same time as Larkin. I knew it had to happen and we both did it. Things can escalate out of control quickly an d it is vital to maintain control for our safety. I did not hear Rubio talk about being hurt or needing to see a doctor. Dr. John Huskins I have been a physician for thirty-six years. I have been employed as the jail doctor for four years. I am also employed at Mercy Hospital. I go to the jail three times a week. I see all the patients on the list. Generally, I do not see th e inmate's requests or grievances. I really do not remember Rubio. I never refused to see him. I see anyone they bring in. If I was not there, Rubio would have seen the nurse. I use my independent judgment when deciding what care is needed. When I see a patient, I make notes. D efen d an ts' Exhibit 1 in Civil No. 08-5011 contains my notes on Rubio. I saw him

o n April 25, 2007, for diabetes. Defendants' Exhibit 1 in Civil No. 08-5011 at page 3. He was p res c rib ed Glucophage®2 and placed on a diabetic diet. Defendants' Exhibit 3 in Civil No. 085 0 1 1 . There is a separate blood sugar chart to record the sugar levels. Plaintiff's Exhibit 2 in Civil N o . 08-5011 . With diabetes, you are normally looking for high sugar levels.

2

Glucophage® is the brand name. Metformin is the generic name.

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R ev iew in g the blood-sugar chart, I do not see any blood sugar levels that would cause me to change Rubio's medication. If he was consistently staying over 200, I would do something. One d ay over 200 would not do anything; Rubio should not have felt any symptoms. Between September 6, 2007, and November 13, 2007, Rubio's blood sugar level was not m o n ito red . Plaintiff's Exhibit 2 in Civil No. 08-5011. If Rubio did not have complaints, we would h av e stopped monitoring. On November 13th, Rubio's blood sugar level was 85. Plaintiff's E x h ib it 2 in Civil No. 08-5011. We would monitor for a week or two and then only if he had co m p lain ts. He would continue to receive his medication. The medication he was on, Glucophage o r Metformin, lowers the blood sugar level but does not increase the insulin level. If he went for sev eral days without medication, his sugar would go up. Rubio was seen by the nurse on August 22, 2007. He was complaining of cracked feet and th e nurse gave him hydrocortisone cream. Rubio was next seen on September 3rd. He was complaining of a rash on his feet. I gave h im a fungus cream. R u b io was seen by the nurse on October 10th. He was complaining of itching feet and p rescrib ed an anti-fungal cream. I saw Rubio on October 17th. He was complaining of back pain and congestion in his eye. He was given Tylenol for a week and Benadryl® 3 for five days. O n October 26th, I saw Rubio for complaints of indigestion and sinus congestion. I p rescrib ed Maalox and Benadryl for one week.

3

Benadryl® is a brand name for diphenhydramine.

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O n November 9th, I saw him for complaints of headache and backache. He also wanted h is diabetes checked. I prescribed Motrin®4 and daily blood sugar tests. O n November 23rd, I saw Rubio for complaints of pain through his chest. I prescribed Z a n t a c ® .5 R u b io was next seen on November 30th. He complained of a headache and was prescribed A l e v e ® .6 O n December 9th, I saw Rubio for complaints of shoulder, head, back, and knee pain. I gav e him Aleve for five days. O n December 13th, Rubio was seen by the nurse for complaints of constipation. He was giv en Milk of Magnesia® 7 for three days. I saw Rubio on December 16th for complaints of headache, chest ache, backache, and co n stip atio n . I prescribed Milk of Magnesia and Aleve. R u b io was seen by the nurse on December 19th for complaints of constipation. He was again prescribed Milk of Magnesia. O n December 25th, I saw Rubio for complaints regarding his foot and aching all over. I p rescrib ed fungus cream and Aleve for five days. I next saw Rubio on January 4, 2008. He was complaining of a problem with his foot and o f aching all over. I prescribed Flexeril® 8 and fungus cream.

4

Motrin® is a brand name for ibuprofen. Zantac® is a brand name for ranitidine. Aleve® is a brand name for naproxen. Milk of Magnesia® is a brand name for magnesium hydroxide. Flexeril® is the brand name for cyclobenzaprine.

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R u b io was seen again on January 15th complaining of aching all over. I prescribed Aleve fo r six days. A cco rd in g to Defendant's Exhibit 1, the first time I saw Rubio was April 25, 2007. The last tim e I saw him was on January 7, 2008. I do not recall seeing him right after the incident. When I saw him on September 3rd, he w as only complaining of a rash on his feet. I would not have refused to examine Rubio. My routine practice is to do an examination. If a patient reported being in a physical altercation and being hit in the head and chest, I would ex am in e his head for fractures. I would look to see if his pupils were even. I would move the p atien t's limbs. I would listen to breath sounds to exclude a punctured lung. Most head injuries have some residual affect but I should have been able to pick that up fro m a physical examination. If he had an increase in pressure, I would have had to put him in the h o sp ital for a CT scan. If he had swelling, we would have seen it. If he had a hematoma, he would h av e had some serious symptoms. T h ere is no really good treatment for rib fractures. X-rays would not have helped in this case. I would not think a testicle injury would linger. Usually such an injury resolves quickly. Scar tissue could have formed and caused him some pain. If a patient does not tell me he is not getting his medication, I would have no way of kn o w in g it. Rubio was seen two times in October, three times in November, and three times in D ecem b er and he never said he was not getting his medication.

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A d d itio n a l Records A fter the hearing, Defendants supplied the Court with three additional pages from Rubio's m ed ical chart and one typewritten patient note regarding a visit to Dr. Huskins on August 13, 2007. T h e three additional pages from the medical chart indicate as follows: 2/27/2007--seen for diabetes an d prescribed medication and diabetic diet;9 4/11/2007--seen for diabetes and a fungus and p rescrib ed medication;10 4/25/2007--seen for diabetes and prescribed medication and diabetic diet; 5 /7 /2 0 0 7 --p rescrib ed a regular diet and two snacks; 7/18/2007--seen for a foot fungus and p re s c rib ed medication; 8/6/2007--seen complaining his snack at night was too small--told the kitch en would be talked to; 8/13/2007--seen for complaints of back, neck, and knee pain and p rescrib ed Tylenol. Dr. Huskins' typewritten notes regarding the August 13, 2007 visit also in d icate that Rubio reported having a previous surgery on his abdomen after an injury. He co m p lain ed that his scar stayed sore. Nurse Marsha Smith I am a registered nurse and have been employed by the BCDC for over three years. Usually an inmate will fill out a medical request and let us know he is diabetic. Plaintiff's E x h ib it 2 in Civil No. 08-5011 are the logs that show when Rubio's blood sugar level was checked. We do four blood sugar checks a day if the inmate is on insulin. Two checks a day are done if the in m ate is on medication. However, if the inmate has been on medication for a long time, the checks

9 The date of this entry appears to be February 27, 2007. However, if this date is correct, the record is apparently from a prior incarceration. According to booking records submitted in connection with the summary judgment motions filed in these cases, Rubio was booked into the BCDC on April 12, 2007, and released on January 17, 2008. Civil No. 07-5156 (Doc. 29, Exhibit 1 at page 1); Civil No. 08-5011 (Doc. 20, Exhibit 1 at page 1).

The date on this record is April 11, 2007, one day before Plaintiff's admission date. While the records indicate diabetic medication was ordered on this date, the medication logs indicate Plaintiff did not begin receiving the medication until after he was seen by Dr. Huskins on April 25th. The records indicate Rubio began receiving medication on April 26th.

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m ay only be done once a day. The inmate usually sticks himself to perform the checks; we are only th ere to supervise. The blood sugar checks are done at the nurse's station. They are usually scheduled, but if an inmate is having symptoms and he tells a deputy, the inmate will be brought to the station where th ere are supplies to check his blood sugar. From the blood sugar logs, it looks like Rubio's blood sugar level was checked once a day fro m April 27th to May 2nd. Plaintiff's Exhibit 2 in Civil No. 08-5011 at page 1. On the top of this sh eet, it indicates the doctor only ordered the checks for one week. Id. From May 2nd to May 7th, it looks like there were no checks. Plaintiff's Exhibit 2 in Civil N o . 08-5011 at page 2. On the top of the sheet, it looks like it indicates the checks are only to be d o n e once a week. Id. I do not know what that means without seeing the doctor's order. The sergean ts fill out the top of this sheet. Some people on Metformin do not check their blood sugar at all unless they are having symptoms. T h e doctor usually says to check an inmate's blood sugar level for a week. Then I show h im the log and he says if he wants it continued. I put it back in Dr. Huskins' court to determine if the level needed to be checked. The level was checked six times in May, once in June, three tim es in July, twice in August, once in September and then again on November 13th. Plaintiff's E xh ib it 2 at pages 1-4. On November 9th, it was ordered that the checks be made once a day for sev en days, but the only check done in November was on the 13th. Id. at pg. 3. T h e doctor decides whether blood sugar checks are warranted. I write out the medication sh eets so the deputies know what he ordered. Sometimes an inmate will ask to have his blood sugar lev el checked. This may be why there are random dates on Rubio's sheets. All checks are recorded o n these sheets.

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T h e sergeants put medical requests in a basket. I decide if an inmate gets to see the doctor o r if I see him. The decision is based on the inmate's complaints. I write out the instructions on the medication sheets. The deputies dispense the medication. Rubio's medication logs indicate he received Metformin twice a day. Defendants' Exhibit 3 in C iv il No. 08-5011. He received the medication from April 26th to May 16th. Id. He received the m ed icatio n again starting on May 23rd. Id. During this time period, I was not on day shift and

an o th er nurse was in charge of ordering medication. I came in at 2:00 p.m. When I am in charge o f ordering medication, I check all blister packs once a week and see what I need to re-order. I do n o t know what her method was. The Metformin is a continuing medication; a new prescription fro m the doctor would not be required. O n e week without medication could have made Rubio's blood sugar a little higher, but he w as also on a diabetic diet, so he was not getting extra sugar. His blood sugar level would need to b e really high to cause symptoms. Rubio did not receive Metformin from May 16th to May 23rd. Defendants' Exhibit 3 in C iv il No. 08-5011. On May 8th, his blood sugar level was 193. Plaintiff's Exhibit 2 in Civil No. 0 8 -5 0 1 1 at page 2. On May 24th, it was 204. These levels are not dangerous at all. I do not recall seeing Rubio after he complained of being subjected to excessive force. I d o not recall any bruises. I believe at that time I was the only nurse. I saw him on August 22nd. I do not recall if I saw any bruises. If I had seen significant b ru ises, I would have noted that. If he had been seen or treated already, I might not have made n o t a t io n s .

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II. DISCUSSION IN CIVIL NO. 07-5156 R u b io maintains Larkin and Collins used excessive force against him. Rubio was a c o n v ic te d inmate, being held for the Arkansas Department of Correction. "[T]he Eighth

A m e n d m e n t's ban on cruel and unusual punishment applies to excessive-force claims brought b y convicted criminals serving their sentences." Wilson v. Spain, 209 F.3d 713 (8th Cir. 2 0 0 0 )(c itin g Whitley v. Albers, 475 U.S. 312, 318-322 (1986)). "The Eighth Amendment p ro te c ts inmates from the unnecessary and wanton infliction of pain by correctional officers re ga rd le s s of whether an inmate suffers serious injury as a result." Treats v. Morgan, 308 F.3d 8 6 8 , 872 (8th Cir. 2002)(citations omitted). The Supreme Court has held that when "prison officials maliciously and sadistically use fo rc e to cause harm, contemporary standards of decency always are violated . . . whether or not s ign ific a n t injury is evident. Otherwise, the Eighth Amendment would permit any physical p u n is h m e n t, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of in ju ry." Hudson v. McMillian, 503 U.S. 1, 9 (1992). "Whenever prison officials stand accused of using excessive physical force in violation o f the Eighth Amendment, the 'core judicial inquiry' is whether the force was applied in a good fa ith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Jones v . Shields, 207 F.3d 491, 495 (8th Cir. 2000) (quoting Hudson, 503 U.S. at 6-7). To make this d e te rm in a tio n , the Court is to consider, among other things, the following factors: "the need for th e application of physical force; the relationship between the need for physical force and the a m o u n t of force applied; and the extent of injury suffered by the inmate." Jones, 207 F.3d at 495 (c ita tio n s omitted).

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T u rn in g to an examination of the facts of this case, Rubio testified that the attack against h im was completely unprovoked. He stated he was first hit on the side of the face, then thrown to the floor, and finally hit and kicked all over his body. Additionally, Rubio maintained that s o m e blows were administered by Larkin after Rubio was handcuffed and on his knees. Rubio te s tifie d that Larkin hit him in the head ten or fifteen times. He asserted that he did not refuse to obey any orders and was not resisting in anyway. Rubio's testimony is substantiated in part by the testimony of inmates Maci Davis, Shawn S a rv e r, and Elmer Rodriguez. Davis testified that the deputies rushed into the pod and Larkin gra b b e d Rubio. Davis indicated that Larkin hit Rubio three or four times ­ once on the back of th e head and the other blows to his upper body. Davis also testified that when Rubio came back in to the pod he was bruised up pretty badly. Sarver testified that Larkin hit Rubio in the neck and slammed him onto the floor. This w a s the only use of force against Rubio that Sarver witnessed. However, Sarver commented that e v e ryo n e in the pod thought it was odd the way this incident happened ­ all the damage to Rubio o v e r a roll of toilet paper. R o d rigu e z testified that as soon as Rubio closed the pod door Larkin approached him. According to Rodriguez, Rubio was thrown to the floor and three deputies started beating him. Both Sarver and Davis testified they only saw one officer, Larkin, use force against Rubio. In m a te Joe Arreola testified that as soon as Rubio asked for toilet paper he was pulled out o f the pod. Although he couldn't see anything, Arreola testified he could hear slapping sounds. T h is testimony contradicts that offered by Rubio, Davis, Sarver, and Rodriguez, who all testified th a t Larkin's initial use of force against Rubio occurred in the pod or pod doorway.

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La rk in testified Rubio came out to pod control asking for toilet paper and refused at least tw o orders to return to the pod. When Larkin attempted to escort Rubio back to the pod, Larkin te s tifie d Rubio started resisting, tensed up, and balled up his fist. Larkin indicated he believed R u b io was going to hit him so he used a straight-arm bar take down to place Rubio on the floor. After he was handcuffed, Larkin testified Rubio continued to act aggressively and as a result he a n d Collins utilized a knee strike to force Rubio down. Larkin and Collins both testified that Rubio refused repeated orders to return to the pod. Rubio was found guilty of a disciplinary violation of failing to obey the orders of the deputies. Rubio testified that after his request for toilet paper was refused, he continued to tell the officers h e needed to use the restroom and alternatively ask if he could retrieve the toilet paper from his c e ll. Additionally, Rubio's disciplinary violation form indicates that he admitted disobeying o rd e rs to return to his pod. The Court believes the disciplinary violation conviction together with th e testimony of Rubio, Larkin, and Collins establishes that Rubio refused orders given to him. It is undisputed that both Larkin and Collins used some amount of force against Rubio. Given a repeated refusal to obey orders, it would not be unreasonable for Larkin or Collins to u tiliz e a reasonable amount of force in an effort to make Rubio comply with their orders. In Whitley, 475 U.S. at 319-20, the Supreme Court stated: T h e infliction of pain in the course of a prison security measure . . . does not a m o u n t to cruel and unusual punishment simply because it may appear in re tro s p e c t that the degree of force authorized or applied for security purposes was u n re a s o n a b le , and hence unnecessary in the strict sense. [Rather, it] is obduracy a n d wantonness, not inadvertence or error in good faith, that characterize the c o n d u c t prohibited by the Cruel and Unusual Punishments Clause, whether that c o n d u c t occurs in connection with establishing conditions of confinement, s u p p lyin g medical needs, or restoring official control over a tumultuous cellblock.

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T h e Court finds that Rubio has failed to prove by a preponderance of the evidence that La rk in repeatedly hit or struck him. The evidence establishes Larkin took Rubio to the floor and a ls o , with the assistance of Collins, utilized a control tactic to place Rubio on his knees. Rubio testified that Larkin struck him ten to fifteen times in the head. We find this te s tim o n y not to be credible. First, the testimony of Rubio's inmate witnesses did not support R u b io 's testimony. As noted above, Davis testified that he saw Larkin hit Rubio three or four tim e s but only one strike was to his head. Sarver testified he remembered one hit on Rubio's n e c k and his being slammed to the floor. With respect to the third inmate witness, Rodriguez te s tifi e d Rubio had been beaten; however, he stated he did not know how many times Larkin s tru c k Rubio and recalled three deputies striking Rubio. The fourth inmate witness, Arreola, te s tifie d any use of force occurred outside the pod where he could not see. Rubio's own w itn e s s e s do not support his testimony that Larkin hit and kicked him ten to fifteen times. S e c o n d , while the extent of the injury is only one factor to be considered, we believe that if Rubio had been kicked in the head ten to fifteen times he would have sustained noticeable in ju rie s to his head or neck. Although Davis testified he saw bruising on Rubio's ribs, no witness te s tifie d Rubio had sustained injuries to his head or neck. With respect to Larkin, we believe the credible evidence establishes that Larkin struck R u b io once or twice in the neck or head, took him to the ground, and utilized a common peroneal k n e e strike. At the time, Rubio had refused orders to return to the pod. Both Collins and Larkin te s tifie d Rubio tensed up and balled up his fist. We find this testimony credible. Under the circumstances, we do not believe the Defendants, in applying force, acted s o le ly because Rubio was not complying with their orders. See Treats v. Morgan, 308 F.3d 868,

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8 7 5 (8th Cir. 2002)(force may be justified to make an inmate comply with a lawful order only if the inmate's noncompliance poses a threat to other persons or to prison security); Hickey v. R e e d e r, 12 F.3d 754 (8th Cir. 1993) (correctional officers do not have a blank check to use force w h e n e v e r a prisoner is being difficult). Instead, we conclude Larkin and Collins reasonably b e lie v e d that a threat to officer safety existed as well as a threat to the order and control of the fa c ility. Certainly, we cannot say that Rubio has established, by a preponderance of the evidence, th a t either Defendant acted wantonly or maliciously. Larkin and Collins are therefore entitled to judgment in their favor. III. DISCUSSION IN CIVIL NO. 08-5011 R u b io maintains he was denied adequate medical care by Dr. Huskins. Specifically, R u b io contends Dr. Huskins did not give him an in-depth examination following the use of force b y Larkin and Collins. Rubio also maintains x-rays should have been taken to determine whether h e suffered any internal injuries. Finally, Rubio maintains his diabetes medication was not a lw a ys provided to him. Instead, he contends there were periods of time when the medication w a s not available.

To prevail on an Eighth Amendment denial of medical care claim, Rubio must prove that Defendant acted with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). The deliberate indifference standard includes "both an objective and a subjective component: 'The [Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs.'" Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000)(quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.1997)).

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"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 give rise to the level of a constitutional violation. Deliberate indifference is akin to criminal recklessness, which demands more than negligent misconduct." Popoalii v. Correctional Medical Services, 512 F.3d 488, 499 (8th Cir. 2008)(internal quotation marks and citations omitted). Inmates have "no constitutional right to receive a particular or requested course of treatment, and prison doctors remain free to exercise their independent medical judgment." Dulany, 132 F.3d at1239. "[A] prisoner's mere difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation." Taylor v. Bowers, 966 F.2d 417, 421 (8th Cir. 1992).
R u b io 's claims regarding his care following the use of excessive force fail for a number o f reasons. First, the question of whether Rubio was in need of x-rays or a more in-depth e x a m i n a tio n are questions of medical judgment and do not establish deliberate indifference. Estelle, 429 U.S. at 107 (medical decision not to order x-rays does not constitute cruel and u n u s u a l punishment); Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987)(showing that another p h ys ic ia n in the same circumstances would have ordered different tests and treatment raises q u e s tio n of medical judgment and does not show deliberate indifference). Second, even if Dr. H u s k in s was negligent in regard to his treatment or mis-diagnosed Rubio's condition, this does n o t state a valid claim under the Eighth Amendment. McRaven v. Sanders, 577 F.3d 974, 982 (8 th Cir. 2009). Third, Rubio has not established that Dr. Huskins actually knew of, but

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d e lib e ra te ly disregarded, Rubio's substantial medical needs. Krout v. Goemmer, 583 F.3d 557, 5 6 7 (8th Cir. 2009). When Rubio was seen on August 13, 2007, for complaints of back, neck, and knee pain, h e was prescribed Tylenol. On October 17th, Rubio was seen again for complaints of back pain a n d was prescribed Tylenol. The evidence establishes that each time Rubio complained of pain h e was prescribed some type of pain relieving medication. Since his incarceration in the BCDC, Rubio testified he has been in other detention fa c ilitie s in Arkansas, Georgia, and Illinois. No medical personnel at these facilities have found it necessary to conduct an in-depth examination of Rubio or to order other diagnostic tests due to his complaints of continuing pain. There is no evidence that the failure of Dr. Huskins to c o n d u c t a more in-depth examination or to order x-rays harmed Rubio in anyway. Rubio's claim regarding the provision of his diabetes medication also fails. Rubio was s e e n by Dr. Huskins on April 25, 2007, and prescribed Glucophage. Defendants' Exhibit 1 in C iv il No. 08-5011 at page 4. According to the medication logs, which Rubio did not maintain w e re inaccurate, he began receiving the medication the following day, April 26th. Defendants' E x h ib it 3 in Civil No. 08-5011. With the exception of May 16, 2007, to May 23, 2007, the logs s h o w Rubio received the medication throughout his incarceration. Id. With respect to the eight days Rubio was without medication, Nurse Smith testified that o n e week without his medication may have slightly increased Rubio's blood sugar level. However, she stated Rubio was on a diabetic diet so he was not getting any additional sugar. Moreover, she noted that there was little difference between his blood sugar level on May 8th, 1 9 3 , and May 24th, 204. She indicated these levels were not dangerous at all.

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W h ile it appears his blood sugar levels were checked on an intermittent basis, Plaintiff's E x h ib it 2 in Civil No. 08-5011, there was no evidence that Rubio brought this to the attention of D r. Huskins or Nurse Smith. See e.g., Plaintiff's Exhibit 1 in Civil No. 08-5011. Although R u b io submitted numerous medical requests and grievances, none mentioned the need for more frequent checks or the failure on the part of anyone to allow him to check his blood sugar levels. Id. There is no evidence that the failure on the Defendants' part to order more frequent c h e c k s or to have the checks performed on a routine basis harmed Rubio in anyway. In this re ga rd , Dr. Huskins testified that if Rubio did not complain, they would stop monitoring his b lo o d sugar level. After a review of Rubio's blood sugar chart, Dr. Huskins testified he did not s e e any blood sugar levels that would cause him to change Rubio's medication. For the reasons stated, we conclude Rubio has failed to establish that Dr. Huskins acted w ith deliberate indifference to his serious medical needs. Dr. Huskins is entitled to judgment in h is favor. I V . CONCLUSION W ith respect to the excessive force claim asserted against Larkin and Collins in Civil No. 0 7 -5 1 5 6 , judgment will be entered in their favor. With respect to the denial of adequate medical c a re claim asserted against Dr. Huskins in Civil No. 08-5011, judgment will be entered in his fa v o r . Dated this 26th day of May 2010. / s/

Erin L. Setser

HON. ERIN L. SETSER UNITED STATES MAGISTRATE JUDGE -26-

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