Foster v. Cerro Gordo County et al
Filing
46
ORDER granting 37 Motion for Summary Judgment. Plaintiffs claims pursuant to 42 U.S.C. § 1983 against the County Defendants are hereby dismissed with prejudice. Plaintiffs remaining claims against the County Defendants, all of which are sta te law claims, are hereby dismissed without prejudice. Because this order disposes of all claims against the County Defendants, the County Defendants are hereby dismissed from this action. This action will proceed as scheduled on all claims against the City Defendants. Signed by Magistrate Judge Leonard T Strand on 1/28/2016. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
MARGARET RAE FOSTER,
Plaintiff,
No. C14-3013-LTS
vs.
CERRO GORDO COUNTY, an Iowa
Municipal Corporation, et al.;
ORDER ON THE COUNTY
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Defendants.
____________________
I.
INTRODUCTION
Plaintiff Margaret Rae Foster commenced this lawsuit on January 7, 2014, by
filing a state court petition and jury demand (Doc. No. 3) in the Iowa District Court for
Cerro Gordo County. The defendants then filed a notice of removal (Doc. No. 2) to
this court on March 3, 2014. Foster filed an amended complaint (Doc. No. 21) on July
25, 2014. As amended, the complaint names the following defendants: Cerro Gordo
County, the City of Mason City, Roungaroun Phaiboun, Josh Stratmann, Brandon
Neidermayer, Additional Unidentified Mason City Police Department Officers or
Employees, Kevin Pals, Shad Stoeffler, Terry Allen-Burns, Justin Faught, Chad
Harkema, Rusty Pals, Brenda Crom, Marc Kappmeyer and Additional Unidentified
Cerro Gordo County Jail Staff.
Doc. No. 21 at 1-2.
counts:
I.
II.
1
Negligence
Intentional1
That is, in fact, the entire title of Count II. Doc. No. 21 at 3.
Foster asserts the following
III.
Intentional Infliction of Emotional Distress
IV.
Violation of Civil Rights
Doc. No. 21. Foster seeks compensatory and punitive damages as well as attorney fees
and other relief. Id. at 6.
Foster alleges two, virtually independent, sets of circumstances. The first relates
to her arrest on January 19, 2012. Id. at 2, ¶ 3. She alleges that three officers of the
Mason City Police Department used excessive force, causing a fracture dislocation to her
elbow and other injuries. Id. Foster’s claims based on these allegations are directed
at the City of Mason City, Roungaroun Phaiboun, Josh Stratmann, Brandon Neidermayer
and “Additional Unidentified Mason City Police Department Officers or Employees”
(collectively, the City Defendants).
The second set of circumstances relates to events that occurred after Foster was
booked into the Cerro Gordo County Jail (Jail).
Id., ¶ 5. Foster alleges that even
though she was in obvious need of medical attention, Jail staff delayed and/or denied
necessary medical care. Id. Foster’s claims based on these allegations are directed at
Defendants Cerro Gordo County, Kevin Pals, Shad Stoeffler, Terry Allen-Burns, Justin
Faught, Chad Harkema, Rusty Pals, Brenda Crom, Marc Kappmeyer2 and “Additional
Unidentified Cerro Gordo County Jail Staff” (collectively, the County Defendants).
Upon the unanimous consent of the parties, this case has been assigned (Doc. No.
10) to me pursuant to 28 U.S.C. § 636(c)(3). The County Defendants have now moved
for summary judgment (Doc. No. 37). Foster has filed a resistance (Doc. No. 38) and
the County Defendants have filed a reply (Doc. No. 41). No party has requested oral
2
Kappmeyer has been sued as “Marc Kappmeyer.” Doc. No. 21. In various filings, the
County Defendants have spelled his first name as both “Marc” and “Mark.” See, e.g., Doc.
Nos. 29, 37.
2
argument and, in any event, I find that oral argument is not necessary.
See N.D. Ia.
L.R. 7(c). The motion is fully submitted.
II.
UNDISPUTED FACTS
Based on the parties’ respective filings, I find that the facts set forth below, unless
otherwise noted, are undisputed for purposes of the County Defendants’ motion for
summary judgment.
Relevant Parties. Foster is a resident of Cerro Gordo County, Iowa. During
the relevant time period, Kevin Pals was the Sherriff of Cerro Gordo County, Stoeffler
was the Jail Administrator at the Cerro Gordo County Jail (Jail), Allen-Burns was a nurse
at the Jail and Faught, Harkema, Rusty Pals, Crom and Kappmeyer were corrections
officers at the Jail.
Relevant Events. On January 19, 2012, shortly after 2 a.m., Mason City Police
Officers arrived at a residential apartment unit and were met by Foster, who was
intoxicated. During this encounter, officers tried to explain that Foster was “banging”
on the door of an apartment that was not hers. Ultimately, Foster was arrested and
transported to the Jail. While the exact time of Foster’s arrival is disputed, it occurred
at some point between 2:18 a.m. and 3:43 a.m.
The parties agree that she was
transported directly to the Jail, without any diversion. After her arrival, Foster’s blood
alcohol content was measured to be .237.
It is undisputed that Foster mentioned an injury to her arm to corrections officers
after booking. However, the parties dispute the details of her statement. The County
Defendants claim Foster stated that her arm was painful but that she would not state how
she injured it. Foster claims she told the corrections officers that her arm was broken
and requested to go to the hospital. Additionally, the parties dispute whether Foster
received an icepack before seeing a nurse.
3
The parties agree, however, that Nurse
Allen-Burns examined Foster’s arm at 8:40 a.m. At that time, Allen-Burns noted some
evidence of swelling and bruising, wrapped Foster’s arm, applied ice and administered
ibuprofen. Allen-Burns told Foster that while her arm was badly bruised, it was likely
not broken.
The Jail’s records indicate that Allen-Burns saw Foster again at 11:50 a.m.,
replaced her ice pack, administered additional ibuprofen and Tylenol, advised her that
she was likely to be released soon and encouraged her to follow up with her primary care
physician upon release.
Foster denies that this follow-up examination occurred.
However, she does acknowledge that she saw Allen-Burns again before being released.
Foster was released from the Jail at some point after 4:00 p.m. on the same day.3
She was then seen at a local emergency room, where x-rays revealed a dislocated right
elbow and a closed, non-displaced fracture of the radius with swelling. On January 20,
2012, she was examined by Dr. Richard Rattay. Dr. Rattay determined that surgery
was necessary but that it should be delayed due to swelling. Foster underwent surgery
on January 25, 2012. Dr. Rattay has opined that Foster’s overall outcome is worse due
to the delay between her injury and treatment.
In relevant part, the Jail’s policy provides (1) that inmates will receive prompt
medical care for injuries, (2) that nurses will be available from 8:00 a.m. until 4:00 p.m.
and will be on call twenty-four hours a day, (3) that medical care determinations in nonemergency cases will be made by licensed nurses and (4) that inmates with objectively
serious medical needs shall receive necessary medical attention if the injury is known to
correctional officers. The policy further states that a serious medical need is one that
3
The County Defendants state that Foster was released on January 20, 2012. Doc. No. 37-2 at
4, ¶ 12. Foster acknowledges that her release occurred on January 19. Doc. No. 38-2 at 4, ¶
13. Medical records show that she went to the emergency room on the 19th, not the 20th. See,
e.g., Doc. No. 37-3 at 13.
4
has been diagnosed by a physician as requiring treatment or is one that is so obvious that
even a layperson would easily recognize the need for a physician’s attention.
III.
SUMMARY JUDGMENT STANDARDS
Any party may move for summary judgment regarding all or any part of the claims
asserted in a case. Fed. R. Civ. P. 56(a). Summary judgment is appropriate when
“the pleadings, depositions, answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue of material fact and that the
moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
A material fact is one that “‘might affect the outcome of the suit under the
governing law.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
“the substantive law will identify which facts are material.”
Id.
Facts that are
“critical” under the substantive law are material, while facts that are “irrelevant or
unnecessary” are not.
Id.
An issue of material fact is genuine if it has a real basis in the record, Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or when “‘a reasonable jury could
return a verdict for the nonmoving party’ on the question,” Woods v. DaimlerChrysler
Corp., 409 F.3d 984, 990 (8th Cir. 2005) (quoting Anderson, 477 U.S. at 248).
Evidence that only provides “some metaphysical doubt as to the material facts,”
Matsushita, 475 U.S. at 586, or evidence that is “merely colorable” or “not significantly
probative,” Anderson, 477 U.S. at 249-50, does not make an issue of material fact
genuine.
As such, a genuine issue of material fact requires “sufficient evidence supporting
the claimed factual dispute” so as to “require a jury or judge to resolve the parties'
5
differing versions of the truth at trial.” Anderson, 477 U.S. at 248-49.
The party
moving for entry of summary judgment bears “the initial responsibility of informing the
court of the basis for its motion and identifying those portions of the record which show
a lack of a genuine issue.” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at
323). Once the moving party has met this burden, the nonmoving party must go beyond
the pleadings and by depositions, affidavits, or otherwise, designate specific facts
showing that there is a genuine issue for trial.
Mosley v. City of Northwoods, 415 F.3d
910 (8th Cir. 2005). The nonmovant must show an alleged issue of fact is genuine and
material as it relates to the substantive law.
If a party fails to make a sufficient showing
of an essential element of a claim or defense with respect to which that party has the
burden of proof, then the opposing party is entitled to judgment as a matter of law.
Celotex, 477 U.S. at 322.
In determining if a genuine issue of material fact is present, I must view the
evidence in the light most favorable to the nonmoving party.
587-88.
Matsushita, 475 U.S. at
Further, I must give the nonmoving party the benefit of all reasonable
inferences that can be drawn from the facts.
Id. However, “because we view the facts
in the light most favorable to the nonmoving party, we do not weigh the evidence or
attempt to determine the credibility of the witnesses.” Kammueller v. Loomis, Fargo &
Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead, “the court's function is to determine
whether a dispute about a material fact is genuine.”
Quick v. Donaldson Co., Inc., 90
F.3d 1372, 1376-77 (8th Cir. 1996).
IV.
ANALYSIS
The amended complaint is hardly a model of clarity. However, when interpreted
with the benefit of the parties’ summary judgment briefing, it appears that the only federal
claim Foster asserts against the County Defendants is set forth in Count IV, which
6
includes a claim brought pursuant to 42 U.S.C. § 1983 that the County Defendants were
deliberately indifferent to Foster’s serious medical needs while she was an inmate at the
Jail. Id. at 5-6.
In seeking the entry of summary judgment in their favor, the County Defendants
raise certain arguments that are more akin to “failure to state a claim” arguments under
Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 37-1 at 4-6. At this stage, it
is not appropriate to consider the adequacy of Foster’s allegations.
See Fed. R. Civ. P.
12(b) (any motion raising the defense of failure to state a claim must be made before
pleading). Instead, I will consider the entire summary judgment record, not just Foster’s
amended complaint, in determining whether the County Defendants are entitled to
judgment in their favor as a matter of law.
The County Defendants contend that the record does not support Foster’s claim
that they violated her rights under the United States Constitution by being deliberately
indifferent to her medical needs.
They also contend that the individual County
Defendants are entitled to qualified immunity from suit. Finally, they argue that the
court should decline to exercise supplemental jurisdiction over Foster’s state law claims
against them. Foster disputes each argument. I will address them separately.
A.
Foster’s Deliberate Indifference Claim
1.
Applicable Standards
Deliberate indifference to an inmate's serious medical needs violates the Eighth
Amendment's ban on cruel and unusual punishments.
Farmer v. Brennan, 511 U.S.
825, 828 (1994). Where, as here, the inmate was a pretrial detainee as opposed to a
convicted offender, the Eighth Circuit Court of Appeals analyzes the inmate’s Section
1983 claim under the Due Process Clause of the Fourteenth Amendment, not under the
Eighth Amendment. McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009) (citing
7
Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir. 2007), cert. denied, 552 U.S. 826 (2007)).
“This makes little difference as a practical matter, though: Pretrial detainees are entitled
to the same protection under the Fourteenth Amendment as imprisoned convicts receive
under the Eighth Amendment.”
Id. at 979-80 (quoting Kahle, 477 F.3d at 550).
To prevail on a claim of deliberate indifference, an inmate must show “that (1) the
inmate suffered from an objectively serious medical need, and (2) the prison official knew
of the need yet deliberately disregarded it.”
Schaub v. VonWald, 638 F.3d 905, 914
(8th Cir. 2011) (citing Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997)). Under
the first requirement, an objectively serious medical need is “one that has been diagnosed
by a physician as requiring treatment, or one that is so obvious that even a layperson
would easily recognize the necessity for a doctor’s attention.”
Camberos v. Branstad,
73 F.3d 174, 176 (8th Cir. 1995) (quoting Johnson v. Busby, 953 F.2d 349, 351 (8th
Cir. 1991)).
Under the second requirement, an official is deliberately indifferent “if he or she
actually knows of the substantial risk and fails to respond reasonably to it.”
Young v.
Selk, 508 F.3d 868, 873 (8th Cir. 2007). “Although the level of blameworthiness must
rise above negligence, a plaintiff does not have to show that the prison officials acted ‘for
the very purpose of causing harm or with knowledge that harm w[ould] result.’”
Letterman v. Does, 789 F.3d 856, 862 (8th Cir. 2015) (quoting Farmer, 511 U.S. at
835). Similarly, a claimant’s “mere disagreement with treatment decisions does not rise
to the level of constitutional violation.”
Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th
Cir. 2000) (quoting Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)).
The claim that an officer deliberately disregarding a risk is evaluated “in light of the
information he possessed at the time, the practical limitations of his position and
alternative courses of action that would have been apparent to an official in that position.”
8
Letterman, 789 F.3d at 862 (quoting Gregoire v. Class, 236 F.3d 413, 419 (8th Cir.
2000)).
2.
Analysis
a.
Did Foster have an objectively serious medical need?
The parties dispute whether Foster exhibited an objectively serious medical need
while at the Jail. As noted above, Foster must show that her injury either (a) had “been
diagnosed by a physician as requiring treatment” or (b) was “so obvious that even a
layperson would easily recognize the necessity for a doctor’s attention.” Camberos, 73
F.3d at 176. Because there is no evidence that Foster’s arm had “been diagnosed by a
physician as requiring treatment,” while she was at the Jail, the question is whether the
injury was “so obvious that even a layperson would easily recognize the necessity for a
doctor’s attention.” Id.
Foster argues that other courts have found that injuries requiring surgery constitute
a serious medical need.
See Doc. No. 38-1 at 7 (citing Starbeck v. Linn County Jail,
871 F. Supp. 1129, 1141 (N.D. Iowa 1991)). In Starbeck, Judge Bennett observed that
“[f]ederal courts have frequently found that medical needs of prisoners which require
surgery constitute serious medical needs.”
871 F. Supp. at 1141 (citing cases).
However, Starbeck did not hold that a per se rule exists such that a subsequent
determination of the need for surgery conclusively demonstrates the existence of a serious
medical need at the time of incarceration. Indeed, a medical condition is not per se
obvious to a layperson even if it later results in death.
Jones v. Minnesota Dept. of
Corrections, 512 F.3d 478, 483 (8th Cir. 2008).
In arguing that Foster did not have an objectively serious medical need, the County
Defendants rely on a booking questionnaire indicating that Foster reported having no
broken bones. Doc. No. 37-5 at 15-16. While the questionnaire does indicate that
9
Foster reported arm pain, it states that she would not describe what was causing that pain.
Id. Foster disputes this information and contends that she repeatedly requested medical
assistance while at the Jail, that she was in “obvious pain” and that the swelling and
bruising of her arm was readily apparent. See, e.g., Doc. No. 38-4 at 55-58. Viewing
the evidence in a light most favorable to Foster – as I must – I find that the record is
adequate to permit reasonable jurors to find that Foster had an objectively-serious medical
need while at the Jail.
b.
Were any of the County Defendants deliberately indifferent?
Foster alleges that the Jail’s correctional officers were deliberately indifferent to
her serious medical need and that the care ultimately provided by Nurse Allen-Burns also
amounted to deliberate indifference. She further contends that Cerro Gordo County and
its supervisory staff fostered the deliberate indifference through policies and inadequate
training. The County Defendants contend that no deliberate indifference occurred.
i.
The Correctional Officers
Foster alleges that the correctional officer defendants (Faught, Harkema, Rusty
Pals, Crom and Kappmeyer) were deliberately indifferent to her serious medical need by
not providing her with immediate access to medical care. The County Defendants argue
that the correctional officers acted appropriately under the circumstances.
At the outset, a claim of deliberate indifference is precluded if the record does not
contain any verifying medical evidence that a delay resulted in a detrimental effect.
Coleman, 114 F.3d at 785 (citing Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir.
1997)). Here, Foster has presented an opinion from Dr. Rattay that her overnight stay
at the Jail “likely worsened her overall result and progressive arthritis.” Doc. No. 384 at 51. As such, Foster has met this threshold requirement.
10
Next, Foster must show that the defendants “acted with a sufficiently culpable
state of mind, namely, that they actually knew of, but deliberately disregarded [her]
medical needs.”
Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009) (internal
citations and quotation marks omitted). To put it another way, deliberate indifference
occurs when an official “knows that an inmate faces a substantial risk of serious harm
and disregards that risk by failing to take reasonable measures to abate it.” Schaub, 638
F.3d at 916 (citing Farmer, 511 U.S. at 847). Deliberate indifference is akin to criminal
recklessness and rises above the standard of gross negligence.
Id. at 933.
At the summary judgment stage, “[the court] must take as true those facts asserted
by plaintiff that are properly supported in the record.”
Pool v. Sebastian County, Ark.,
418 F.3d 934, 944-45 (8th Cir. 2005) (quoting Tlamka v. Serrell, 244 F.3d 628, 632 (8th
Cir. 2001)). While Foster presents no evidence that any particular correctional officer
defendant actually saw her injured arm, she does allege that she repeatedly cried out in
pain and asked for help.
Doc. No. 38-4 at 28-30, 53-58. Assuming the truth of this
allegation, the jury could find that each correctional officer on duty at the time had
knowledge that Foster had an arm injury. The question is whether the record allows a
finding of deliberate disregard.
Intentional delay in providing medical treatment shows deliberate disregard if a
reasonable person would know that the inmate requires medical attention or the actions
of the officers are so dangerous that a knowledge of the risk may be presumed. Gordon
ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006) (citing Plemmons v. Roberts,
439 F.3d 818, 823 (8th Cir. 2006)). This is where Foster’s claim against the correction
officers fails. The evidence does not support a finding that a reasonable person would
have understood, from the available facts, that Foster needed immediate medical
treatment. Nor does the evidence support a finding that the actions of the officers were
so dangerous that knowledge of the risk may be presumed.
11
Even if each of the
correctional officer defendants saw Foster’s arm, and heard her complaints of pain, there
is no evidence suggesting that a reasonable person would have realized that waiting a few
hours for a nurse to arrive was dangerous.
Indeed, even when Nurse Allen-Burns
examined Foster – approximately six hours after Foster arrived at the Jail – she did not
diagnose a fracture or conclude that hospitalization was necessary. Instead, Allen-Burns
observed swelling and bruising and treated Foster’s arm with ice.4
The fact that a trained medical professional examined Foster’s arm and detected
no fracture or other serious condition requiring advanced care weighs heavily against
Foster’s claim of deliberate indifference on the part of the correctional officers. The
record contains no evidence indicating that before Allen-Burns arrived, any officer
perceived a dangerous condition and deliberately ignored it.5 Once Allen-Burns became
involved, the correctional officer defendants were entitled to assume that she would
provide appropriate care.
“A prison official may rely on a medical professional's
opinion if such reliance is reasonable.”
McRaven, 577 F.3d at 981 (citing Meloy v.
Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002)); Johnson v. Doughty, 433 F.3d 1001,
1010 (7th Cir. 2006) (“Except in the unusual case where it would be evident to a
4
This is consistent with the subsequent emergency room records, which indicate that Foster
presented with swelling and tenderness and was able to move her fingers. Doc. No. 37-3 at 13.
The records do not describe an obvious, critical injury, such as an open fracture or disfigurement.
5
Foster claims that the correctional officers responded to her cries for help “by shutting off the
intercom to her cell.” Doc. No. 38-3 at 2, ¶ 4. However, the portions of the record that she
cites for this allegation do not support it. She generally cites her own amended complaint, which
is not verified. Doc. No. 21. She also cites to portions of her deposition testimony and
interrogatory answers. Doc. No. 38-3 at 2, ¶ 4. The referenced portions contain no allegation
that the officers shut off the intercom to Foster’s cell, let alone an explanation as to how Foster
obtained such information. As such, Foster’s allegation that the officers shut off the intercom
to her cell is an unsworn statement that cannot be considered at the summary judgment stage.
See, e.g., Risdal v. Nixon, 589 Fed. Appx. 801, 803 (8th Cir. 2014) (per curium) (citing Mays
v. Rhodes, 255 F.3d 644, 647 (8th Cir. 2001)).
12
layperson that a prisoner is receiving inadequate or inappropriate treatment, prison
officials may reasonably rely on the judgment of medical professionals.”) (citation
omitted).
On this record, I conclude reasonable jurors could not find that the correctional
officer defendants acted with deliberate indifference to Foster’s serious medical needs.
As such, I will grant summary judgment in favor of defendants Faught, Harkema, Rusty
Pals, Crom and Kappmeyer on this claim.
ii.
Nurse Allen-Burns
Foster contends that Allen-Burns was deliberately indifferent to her serious
medical needs by conducting only a “cursory examination” and dismissing “the potential
seriousness of the injury.”
Doc. No. 38-1 at 9.
Based on the evidence already
discussed above, however, I find that no reasonable jurors could determine that AllenBurns acted with deliberate indifference.
Deliberate indifference requires more than gross negligence or a disagreement with
the treatment decisions.
Slack v. Turntine, 608 Fed. Appx. 442, 443 (8th Cir. 2015).
“Negligent misdiagnosis does not cause a cognizable claim under § 1983.”
McRaven,
577 F.3d at 982. Thus, mere medical malpractice is not actionable under the Eighth
Amendment. Id. (citing Popoalli v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir.
2008). However, “medical treatment may so deviate from the applicable standard of
care as to evidence a physician's deliberate indifference.”
Id. (quoting Moore v. Duffy,
255 F.3d 543, 545 (8th Cir. 2001)).
Here, Allen-Burns examined Foster’s arm, concluded that it likely was not broken
and determined that no x-ray was necessary. She then provided Foster with an icepack,
an ace wrap and pain medication while advising her to follow up with her physician upon
release. There is no evidence that Allen-Burns actually perceived the injury to be more
13
severe and purposely withheld necessary treatment.
At worst, Allen-Burns was
negligent in failing to comprehend the severity of the injury. Such an error does not
rise to the level of deliberate indifference. See, e.g., Estelle v. Gamble, 429 U.S. 97,
107 (1976) (finding that “[a] medical decision not to order an x-ray” is not “cruel and
unusual punishment” and “at most it is medical malpractice”); Jenkins v. County of
Hennepin, Minn., 557 F.3d 628, 632 (8th Cir. 2009) (no deliberate indifference when
nurse determined inmate should be sent for an x-ray in a day or two based on her
determination that the injury wasn’t urgent); Johnson v. Busby, 452 F.3d at 971 (only
negligence despite the fact that an x-ray was performed a month after nurse determined
hand might be broken).
The situation here is similar to that in Slack v. Turntine, No. 4:13-CV-1170, 2014
WL 7335165 (E.D. Mo. 2014), aff’d, 608 Fed. Appx. 442 (8th Cir. 2015). In that
case, a nurse examined an inmate’s injured finger and, believing no fracture to be present,
did not order an x-ray or splint.
2014 WL 7335165, at *5.
The finger was later
determined to be broken. Id. In rejecting the plaintiff’s claim that the nurse acted with
deliberate indifference to a serious medical need, the court stated:
The records show that although Nurse Pratt misdiagnosed plaintiff's injury
as a sprain, she treated his symptoms. He was given pain medication and
instructed to apply ice. She also provided him documentation to excuse
him from his work assignment for several days. He was told to follow up
with medical if his pain continued. Plaintiff has submitted no evidence
that this misdiagnosis was outside the standard of care, much less that it
was deliberately indifferent to his medical needs. While plaintiff's
treatment involved a misdiagnosis, a misdiagnosis does not rise to the level
of deliberate indifference.
Id. (citing McRaven, 577 F.3d at 982). The same is true here. In hindsight, it is clear
that Nurse Allen-Burns misdiagnosed Foster’s injury. However, there is no evidence
that she was deliberately indifferent.
As such, Allen-Burns is entitled to summary
judgment on that claim.
14
iii.
The Other County Defendants
Foster does not claim that Sheriff Pals or Jail Administrator Stoeffler participated
directly in the alleged deprivation of her constitutional rights by jail staff or Nurse AllenBurns.
Instead, she alleges liability against them, and against Cerro Gordo County
itself, based on Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978).
Under Monell, local governments and government officials acting in their official
capacities are liable for constitutional violations that either (a) are committed pursuant to
official custom, policy or practice or (b) occur because of inadequate training or
supervision. See Monell, 436 U.S. at 690-91; see also Clemmons v. Armontrout, 477
F.3d 962, 967 (8th Cir. 2007) (liability under Section 1983 requires causal link to
deprivation of rights). Because I have concluded that Foster’s constitutional rights were
not violated by the correctional officers or Nurse Allen-Burns, it is unnecessary to address
Foster’s attempt to impose Monell liability on the County, Sheriff Pals or Administrator
Stoeffler. Like the other County Defendants, those defendants are entitled to judgment
in their favor as a matter of law on Foster’s deliberate indifference claim.
B.
Qualified Immunity
As an alternative argument, the individual County Defendants contend that they
are entitled to qualified immunity. “Qualified immunity protects a government official
from liability in a [section] 1983 claim unless his or her conduct violated a clearly
established statutory or constitutional right of which a reasonable person would have
known.” Vaughn v. Greene County, Ark., 438 F.3d 845, 849 (8th Cir. 2006) (quoting
Pool, 418 F.3d at 942). “To overcome qualified immunity, plaintiffs must demonstrate
both that ‘(1) there was a deprivation of a constitutional or statutory right, and (2) the
right was clearly established at the time of the deprivation.’”
15
Davis v. County of Gabe,
Nebraska, 807 F.3d 931, 936 (8th Cir. 2015) (quoting Parker v. Chard, 777 F.3d 977,
980 (8th Cir. 2015)). Here, I have already determined that Foster has failed to establish
that any of the County Defendants deprived her of a constitutional or statutory right. As
such, the individual County Defendants are entitled to qualified immunity.
This
provides an alternative basis for granting summary judgment in their favor.
C.
Foster’s State Law Claims
The County Defendants argue that upon the dismissal of Foster’s federal
constitutional claim against them, I should decline to exercise supplemental jurisdiction
over her state law claims, as well. Foster’s only argument to the contrary is that there
is no reason to dismiss the state law claims because the federal constitutional claim should
not be dismissed. Doc. 38-1 at 23. She does not argue that I should retain jurisdiction
over the state law claims against the County Defendants even if I dismiss the federal
claim. Id. By failing to advance an argument that the state law claims should remain
even if the federal claim is dismissed, I find that Foster has waived any such argument.
Cf. Cole v. Int'l Union, United Auto., Aerospace & Agric. Implement Workers, 533 F.3d
932, 936 (8th Cir. 2008) (a party may not assert arguments on appeal that were not
presented to the district court in opposing summary judgment).
Even if Foster did not waive this issue, I would find it appropriate to dismiss the
state law claims against the County Defendants. Supplemental jurisdiction exists only
to the extent that the state law claims “are so related to claims in the action within such
original jurisdiction that they form part of the same case or controversy.” 28 U.S.C. §
1367(a). As set forth above, this action presents two separate sets of circumstances.
Foster’s claims against the City Defendants arise from the events surrounding her arrest,
as she alleges that excessive force was used, thus causing serious injury. See, e.g.,
Doc. No. 21 at 2, ¶ 3. Her claims against the County Defendants arise from the events
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that occurred after she was placed into their custody at the Jail.
Id., ¶ 5. Foster does
not contend that the County Defendants caused her initial injury, but instead that they
failed to provide adequate medical care. Likewise, she does not appear to argue that the
City Defendants are liable for what happened, or did not happen, after Foster was booked
into the Jail.
In short, Foster asserts two independent sets of claims in a single case. If she
had never asserted a federal claim against the County Defendants, it is doubtful that this
court could have exercised supplemental jurisdiction over any state law claims against
those defendants. In other words, the state law claims against the County Defendants
do not “form part of the same case or controversy” as Foster’s federal claim against the
City Defendants.
Moreover, even if supplemental jurisdiction exists over the state law claims against
the County Defendants, I would decline to exercise that jurisdiction. This situation is
somewhat unique in that it does not fit perfectly within Section 1367(c)(3), which
provides that the court may decline to exercise jurisdiction over a state law claim that
would otherwise fall within the court’s supplemental jurisdiction if “the district court has
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Under Section 1367(c)(3), “[a] district court's decision whether to exercise that
jurisdiction after dismissing every claim over which it had original jurisdiction is purely
discretionary.” Crest Const. II, Inc. v. Doe, 660 F.3d 346, 359 (8th Cir. 2011) (quoting
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009)).
Here, I am not dismissing all federal claims, just the sole federal claim against
each of the County Defendants. All claims against the City Defendants, both state and
federal, remain. Section 1367(c)(3) does not specify if it is meant to apply when the
court has dismissed all federal claims against some parties, but retains a federal claim
against other parties. Some district courts have declined to exercise jurisdiction on a
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party-by-party basis. See, e.g., Germano v. Dzurenda, No. 09 Civ. 1316, 2011 WL
1214435, at *20 (D. Conn. Mar. 28, 2011) (dismissing without prejudice state claims
against twelve defendants once federal claims against those same twelve defendants were
dismissed, even though federal claims in the case remained viable against others); Lewis
v. Sieminski, No. 08 Civ. 728, 2010 WL 3827991, at *9 (D. Conn. Sept. 22, 2010)
(declining to exercise supplemental jurisdiction over state law claims against defendants
after dismissing the federal claims against them, even though federal claims against
another party continued). In Rosen v. County of Suffolk, 121 Fed. Appx. 885 (2d Cir.
2005), the Second Circuit Court of Appeals entered a remand order that stated: “In the
event that any of the defendants named in any of the state law claims over which the
District Court declined under 28 U.S.C. § 1367(c)(3) to assert supplemental jurisdiction
is a party to any claim remaining before the District Court following this remand, the
Court should reconsider its election to decline jurisdiction over claims involving such
party.” Id. at 887 [emphasis added].
Other courts have interpreted Section 1367(c)(3) to be inapplicable when any
federal claims remain in the litigation, even if those claims are asserted only against other
parties. See, e.g., Moore v. Natwest Mkts., No. 96 Civ. 1166, 1996 WL 507333, at *3
(S.D.N.Y. Sept. 6, 1996) (“Section 1367(c) does not apply when any federal claim exists
in the lawsuit against any of the parties.”); Rophaeil v. Aiken Murray Corp., No. 94 Civ.
9064, 1996 WL 221567, at *2 (S.D.N.Y. May 2, 1996) (“Since the Court has not
dismissed ‘all’ federal claims from this action ... the plain language of this provision does
not apply to the case at bar.”). There appears to be no binding precedent on this issue.
I find dismissal of the state law claims against the County Defendants to be
appropriate for three reasons.
First, as noted above, Foster waived any argument
against such dismissal by failing to address this situation in her resistance. Second, the
state law claims against the County Defendants arise from facts and circumstances that
18
differ from those that form the basis of Foster’s claims against the City Defendants. As
such, the presence of a federal claim against the City Defendants does not confer
supplemental jurisdiction over Foster’s state law claims against the County Defendants
within the meaning of Section 1367(a).
Third, and at least under the unique
circumstances present here, I find that Section 1367(c)(3) would permit this court to
decline to exercise supplemental jurisdiction over the state law claims against the County
Defendants, even if Section 1367(a) actually conferred such jurisdiction.
For these reasons, I will dismiss all remaining state law claims against the County
Defendants without prejudice. Foster is free to present those claims in state court.
V.
CONCLUSION
For the reasons set forth herein, the County Defendants’ motion for summary
judgment (Doc. No. 37) is granted, as follows:
1.
Foster’s claims pursuant to 42 U.S.C. § 1983 against the County
Defendants (Cerro Gordo County, Kevin Pals, Shad Stoeffler, Terry Allen-Burns, Justin
Faught, Chad Harkema, Rusty Pals, Brenda Crom, Marc Kappmeyer and “Additional
Unidentified Cerro Gordo County Jail Staff”) are hereby dismissed with prejudice.
2.
Foster’s remaining claims against the County Defendants, all of which are
state law claims, are hereby dismissed without prejudice.
3.
Because this order disposes of all claims against the County Defendants,
the County Defendants are hereby dismissed from this action.
4.
This action will proceed as scheduled on all claims against the City
Defendants (the City of Mason City, Roungaroun Phaiboun, Josh Stratmann, Brandon
Neidermayer and “Additional Unidentified Mason City Police Department Officers or
Employees”).
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IT IS SO ORDERED.
DATED this 28th day of January, 2016.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
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