Burton v. McMillin et al
Filing
26
ORDER granting in part and denying in part 6 Motion for Summary Judgment Premised on Qualified Immunity. Within 10 days of this Order's entry, the parties shall consult with the magistrate judge regarding a case management order. Signed by District Judge Carlton W. Reeves on 04/19/2012 (WB)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
RONNIE BURTON
PLAINTIFF
V.
CAUSE NO. 3:11-CV-00646-CWR-FKB
SHERIFF MALCOLM MCMILLIN,
DEPUTY KEITH BURNETT, DEPUTY
MARQUETTE FUNCHESS, SHAWONDA
OWENS, M.O., AND JOYCE SIMON, M.O.,
IN THEIR INDIVIDUAL AND OFFICIAL
CAPACITIES, AND MIKIMBE HARRIS,
M.O., IN HER OFFICIAL CAPACITY
DEFENDANTS
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT PREMISED ON QUALIFIED IMMUNITY
The above-styled matter is before the Court on the motion for summary judgment1 of
Sheriff Malcolm McMillin, Shawonda Owens, M.O., and Joyce Simon, M.O., in their individual
capacities.2 The Court has considered the arguments contained therein, as well as those presented
by the plaintiff in opposition thereto, and after due consideration has concluded that the motion
should be granted in part and denied in part.
FACTS
1
Motion for Summary Judgment Premised on Qualified Immunity [Docket No. 6]
(hereinafter “Motion”).
2
When the defendants filed the motion for summary judgment, Mikimbe Harris, M.O., in
her individual capacity, counted herself among the movants. Motion at 1. However, since that
time, the claims against Harris in her individual capacity have been dismissed. See Agreed Order
[Docket No. 25]. For that reason, the styling of the case reflects the fact that Harris remains a
party to the case in her official capacity only, and this Order does not affect her.
1
Ronnie Burton is an officer in the United States Army Reserve.3 Late in the evening of
September 12, 2008, Burton was standing in front of a house near the corner of Flag Chapel and
Lyndon B. Johnson in Jackson, Mississippi. When Burton saw a truck approaching him at a high
rate of speed, he assumed that he was the target of a drive-by shooting, and indeed, he was fired
upon and was shot.4 According to Burton, the bullet “went in and out.”5 Burton later learned that
the occupants in the vehicle were law enforcement officers, and they fired the shots that injured
him.6 Burton was taken by ambulance to University Medical Center,7 where he was treated.
While at UMC, Burton was prescribed Percocet for pain8 and was told to “[t]ake one or two
every six hours if needed.”9
After his release from UMC on September 13, 2008, he was taken to the Hinds County
Detention Facility in Raymond, Mississippi, and was booked at 5:10 p.m.10 At the time of his
booking, he gave his prescription to detention center personnel and was told that “they couldn’t
3
Exhibit H to Motion for Summary Judgment Premised on Qualified Immunity
(hereinafter “Burton Deposition”) [Docket No. 6-8] at 4.
4
State Court Record [Docket No. 1-1] at 6.
5
Burton Deposition at 6.
6
State Court Record at 6.
7
Burton Deposition at 4.
8
See Burton Deposition at 23-24.
9
Burton Deposition at 24.
10
Burton Deposition at 5.
2
fill the actual prescription, but they’d give me some medicine in place of it.”11 Ultimately, he was
released from the detention facility on September 15, 2008, at approximately 8 p.m.12 During his
time at the detention facility, Burton claims that he was treated by a nurse on the afternoon of
September 14, 2008, and on September 15, 2008, and on both occasions he received 800
milligrams of ibuprofen rather than Percocet.13 Although he suffered no further physical injuries,
such as an infection,14 Burton alleges that he suffered from pain during the time he was denied
his prescribed medication.15 According to Burton, “I was in pain until I got the medicine. I asked
for the medicine over and over.”16
On September 9, 2011, Burton filed suit in Hinds County Circuit Court against Sheriff
Malcolm McMillin, two deputies, and three medical officers, all in their individual and official
capacities.17 Specifically, Burton’s Complaint invokes Title 42, Section 1983 of the United States
Code to allege “that the Defendants intentionally, recklessly, and with a reckless disregard for
11
Burton Deposition at 10. Under deposition, Sheriff Malcolm McMillin testified that the
detention center operates under a policy not to honor prescriptions written by any “physician . . .
[that] did not have privileges to practice at the Raymond Detention Center.” Reply to Plaintiff’s
Response to Motion for Summary Judgment Premised on Qualified Immunity [Docket No. 11]
(hereinafter “Defendants’ Reply Brief”) at 3.§
12
Burton Deposition at 5-6. Defense counsel’s records purport to show that Burton was
released at 4:28 p.m. on the afternoon of September 15, 2008, but Burton disputes that.
13
Burton Deposition at 6. Defense counsel contends that Burton was treated at least two
other times by the nursing staff; Burton claims that records of such treatments have been
fabricated.
14
Burton Deposition at 10.
15
Burton Deposition at 26.
16
Burton Deposition at 10.
17
State Court Record at 4.
3
Plaintiff’s rights took actions to deprive the Plaintiff of his due process rights under federal laws,
equal protection rights under federal laws, and violated other of Plaintiff’s civil rights under
federal laws.”18 The Complaint does not indicate what “other . . . civil rights” stand violated.
The matter was removed to federal court on October 17, 2011.19 On October 19, 2011,
McMillin and the three medical officers – Mikimbe Harris, Shawanda Owens, and Joyce Simon
– moved for summary judgment in their individual capacities based on the doctrine of qualified
immunity.20 The October 19 motion does not concern the parties in their official capacities, nor
does it address the two deputies.
STANDARD OF REVIEW
Although motions for summary judgment are filed frequently, not every case is suitable
for that disposition. Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.”21 Once the movant shows the court that it is entitled to judgment as a matter of law, the
burden shifts to the resisting party to show why summary judgment is not proper.22 The nonmovant must point to and set forth specific facts as to the existence of a genuine issue of material
18
State Court Record at 8.
19
Notice of Removal [Docket No. 1]. The defendants invoked the district court’s
jurisdiction over the federal question presented by Burton’s claims. See 28 U.S.C. § 1331.
20
Harris, in her individual capacity, is no longer a party to this suit. See supra at n.2.§
21
Fed. R. Civ. P. 56(a).
22
Celotex v. Catrett, 477 U.S. 317, 324 (1986).
4
fact requiring a trial.23“‘Conclusional allegations and denials, speculation, improbable inferences,
unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific
facts showing a genuine issue for trial.’”24 An issue is genuine “if the evidence supporting its
resolution in favor of the party opposing summary judgement, together with an inference in such
party’s favor that the evidence allows would be sufficient to support a verdict in favor of the
party.”25 A fact is material if it is one which might affect the outcome of the suit under the
governing law.26 Factual disputes that are irrelevant or unnecessary will not be considered.27
The court has no duty whatsoever to sift through the record in search of evidence to
support a party’s opposition to summary judgment.28 Additionally, “[t]he court resolves factual
controversies for purposes of summary judgment in favor of the nonmoving party, but only when
there is an actual controversy, that is, when both parties have submitted evidence of contradictory
facts.”29 Where there is no proof of contradictory facts, the court will not assume that the
23
Walker v. J.E. Merit Constructors, Inc., 707 F. Supp. 254, 257 (S.D. Miss. 1988).
24
Davis v. Louisville Mun. Sch. Dist., 2010 WL 290956, *2 (N.D. Miss. 2010) (quoting
Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
25
Zisman v. Mason, 2008 WL 879726, *3 (S.D. Miss. 2008) (citing Amant v. Benoit, 806
F.2d 1294, 1297 (5th Cir. 1987)
26
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
27
Id.
28
Adams v. Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006). See also Fuentes v.
Postmaster Gen. of U.S. Postal Serv., 282 F. App’x 296, 300 (5th Cir. 2008) (citing Ragas v.
Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (not only must the non-movant point
to specific facts, she must articulate the precise manner in which that evidence support her
claim).
29
Zisman, 2008 WL 879726 at *3 (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994).
5
nonmoving party could or would prove the necessary facts.30
The responsibility to assess the probative value of the evidence rests ultimately with the
jury. As a consequence, a court must step back and refrain from making credibility
determinations, and it must not weigh evidence or draw from the facts legitimate inferences for
the movant.31 This Court is ever mindful that although a useful device, summary judgment “must
be employed cautiously because it is a final adjudication on the merits.”32
ANALYSIS
Qualified Immunity in General. Civil actions instituted pursuant to Section 1983 are
subject to common-law immunities that existed when Congress passed the Civil Rights Act of
1871.33 One such defense is qualified immunity, which stands for the proposition that a
government official “is not charged with predicting the future course of constitutional law.”34
Therefore, “[g]overnment official performing discretionary functions are entitled to qualified
immunity from suit unless their conduct violated clearly established statutory or constitutional
rights of which a reasonable person would have known.”35
Qualified immunity “provides ample protection to all but the plainly incompetent or those
30
Id. (citing Wallace v. Texas Tech Univ., 80 F.3d 1042, 1048 (5th Cir. 1996).
31
Strong v. Dep’t of Army, 414 F. Supp. 2d 625, 628 (S.D. Miss. 2005).
32
Jackson v. Cain, 865 F.2d 1235, 1241 (5th Cir. 1989).
33
Cousin v. Small, 325 F.3d 627, 631 (5th Cir. 2003).
34
Pierson v. Ray, 386 U.S. 547, 557 (1967).
35
Gunaca v. State of Texas, 65 F.3d 467, 473 (5th Cir. 1995).
6
who knowingly violate the law.”36 However, if the defense is raised at the summary-judgment
phase and a genuine issue of material fact exists on a question material to qualified immunity’s
application, then the plaintiff should be allowed to proceed with his claims.37
McMillin’s Invocation of Qualified Immunity. As to McMillin, the issue of qualified
immunity is easily addressed. Burton’s memorandum in opposition to the motion for summary
judgment does not defend his claim against McMillin in McMillin’s individual capacity; instead,
it focuses solely on the official-capacity claim.38 But the defendants reiterate that the motion
concerns only the claims leveled against McMillin in his individual capacity,39 and indeed,
qualified immunity – the only subject discussed in the defendants’ motion – is inapplicable to
official-capacity claims brought under Section 1983.40
Therefore, to the extent that the motion seeks summary judgment on behalf of McMillin
in his individual capacity, the motion is granted in part.
The Medical Officers’ Invocation of Qualified Immunity. In his response41 to the
motion for summary judgment, Burton does not argue that defendants Shawonda Owens and
36
Malley v. Briggs, 475 U.S. 335, 341 (1986).
37
Enlow v. Tishomingo Cnty., Miss., 962 F.2d 501, 509 (5th Cir. 1992).
38
Plaintiff’s Memorandum of Authorities in Opposition to Defendants’ Motion for
Summary Judgment Premised on Qualified Immunity [Docket No. 10] (hereinafter “Plaintiff’s
Brief”) at 4-7.
39
Defendants’ Reply Brief at 1.
40
Hafer v. Melo, 502 U.S. 21, 26 (1991) (“[O]fficials sued in their personal capacities,
unlike those sued in their official capacities, may assert personal immunity defenses such as
objectively reasonable reliance on existing law.”).
41
Plaintiff’s Brief at 7-11.
7
Joyce Simon (hereinafter “the medical officers”) violated his rights established by the Equal
Protection Clause or “other . . . civil rights.”42 Instead, Burton frames his claim purely as one of
deliberate indifference.43 Therefore, to the extent that the motion for summary judgment attacks
Burton’s claim under the Equal Protection Clause and any other statutory or constitutional source
of civil rights, the motion is granted in part.
As to the claim of deliberate indifference, although Burton frames his case as one
implicating the Eighth Amendment’s prohibition against cruel and unusual punishment,44 that
provision chiefly protects those who have been convicted of crimes; on the other hand, pretrial
detainees are protected from deliberate indifference by the Due Process Clause of the Fourteenth
Amendment.45 Broadly speaking, this is not a distinction without a difference: while the Eighth
Amendment does not forbid all punishments but only those that are cruel and unusual, due
process precludes a State from punishing a pretrial detainee at all.46
However, in the context of medical care, “the State owes the same duty under the Due
Process Clause and the Eighth Amendment to provide both pretrial detainees and convicted
inmates with basic human needs, including medical care . . . during their confinement[.]47
Additionally, “a state jail official’s liability for episodic acts or omissions cannot attach unless
42
See State Court Record at 8.
43
Plaintiff’s Brief at 7-11.
44
Plaintiff’s Response at 7.
45
Hare v. City of Corinth, Miss., 74 F.3d 633, 639 (5th Cir. 1996).
46
Id.
47
Id. at 650.
8
the official had subjective knowledge of a substantial risk of serious harm to a pretrial detainee
but responded with deliberate indifference to that risk.”48
“To find that an official is deliberately indifferent, it must be proven that ‘the official
knows of and disregards an excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.”49 In other words, “the plaintiff must show that the
officials refused to treat him, ignored his complaints, intentionally treated him incorrectly, or
engaged in any similar conduct that would clearly evince a wanton disregard for any serious
medical needs.”50 Moreover, the deliberate indifference must “result[ ] in substantial harm”51 in
order to amount to a constitutional violation.
The medical officers’ first argument is that Burton did not suffer from any “serious
medical need.”52 In their view, Burton was in stable condition when he arrived at the jail53 and,
by his own admission, suffered no additional injury as a result of the medical officers’ actions or
inactions.54 Essentially, the medical officers’ position is that Burton’s pain was not a “serious
medical need.”
48
Id.
49
Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)).
50
Domino v. Texas Dep’t of Crim. Justice, 239 F.3d 752, 756 (5th Cir. 2001).
51
Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).
52
Defendants’ Reply Brief at 2.
53
Defendants’ Reply Brief at 2.
54
Defendants’ Reply Brief at 3
9
The Court rejects that argument. When addressing Eighth Amendment claims of
deliberate indifference, the Fifth Circuit frequently recites the proposition that “[p]rison officials
violate the Eighth Amendment when they demonstrate deliberate indifference to a prisoner’s
serious medical needs constituting an unnecessary and wanton infliction of pain.”55 Deliberate
indifference and the unnecessary, wanton infliction of pain go hand in hand, and even when no
physical manifestation makes itself known, pain can be a “serious medical need.” No matter how
dismissively the defendants treat Burton’s injury, it is not disputed that he sustained a gunshot
wound from a law enforcement officer and that wound required attention from medical providers
in the UMC emergency room.
The medical officers also seek refuge behind the detention center’s policy of filling
detainees’ prescriptions only when issued by physicians approved by the facility.56 The Court
likewise rejects this argument. In a 1981 decision, the Eighth Circuit held that although qualified
immunity might save officials who were following orders, “if they knew or should have known
that their [failure to act was] violating the plaintiff’s constitutional rights, . . . they may not hide
behind the cloak of institutional loyalty.”57 An en banc sitting of the Fifth Circuit has endorsed
that view.58 Another circuit has posited that prison officials cannot “substitute their judgments for
55
Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009) (citing Wilson v. Seiter, 501 U.S.
294, 297 (1991)).
56
Defendants’ Reply Brief at 3.
57
Villanueva v. George, 659 F.2d 851, 855 (8th Cir. 1981) (en banc).
58
Hare, 36 F.3d at 416 n.19.
10
a medical professional’s prescription,”59 and this Court agrees.60 Unconstitutional actions and
inactions cannot be forgiven simply because the violators were “told to do it.”
Also, the medical officers claim that Burton “never complained” of pain and that, if he
had complained, he would have been offered more painkillers.61 Burton contends that he did but
to no avail.62 Such a dispute regarding a material fact cannot give rise to summary judgment.
Finally, the medical officers contend that, at worst, their decisions regarding Burton’s
medication was incorrect or negligent but that such a conclusion would not amount to a finding
of deliberate indifference. Although the medical officers are correct that negligence and
deliberate indifference are distinct concepts,63 the judgment inherent to the practice of medicine
does not satisfy the ban on deliberate indifference when “prison officials refused to treat [a
detainee], ignored his complaints, intentionally treated him incorrectly, or engaged in any similar
conduct that would clearly evince a wanton disregard for any serious medical needs.”64 In the
59
Zentmyer v. Kendall Cnty., Ill., 220 F.3d 805, 812 (7th Cir. 2000). See also Ralston v.
McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999) (Posner, J.) (“Ralston was not seeking an
expensive or unconventional treatment; he just wanted the pain medicine that the prison doctor
had prescribed for him. The prison guard’s deliberate refusal of it was a gratuitous cruelty, and
not a trivial one, even if the context of cancer is ignored.”).
60
This point cannot be made more clear as Simon is a certified phlebotomist who did not
graduate from high school but received her GED. See Exhibit F [Docket No. 6-6] at 6. Harris’
medical credentials are also limited. She, however, did graduate from high school and attended
some EMT training at Holmes Community College. [Docket No. 6-7] at 5-6.
61
Defendants’ Reply Brief at 3.
62
Supra at n.16.
63
Sama v. Hannigan, 669 F.3d 585, 590 (5th Cir. 2012).
64
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quotations omitted).
11
case at hand, Burton has testified that his jailers did all of these things. Therefore, the Court
rejects the medical officers’ final argument as well.
CONCLUSION
The evidentiary burdens facing a plaintiff in a deliberate-indifference case are
exceedingly high, but the arguments offered by the medical officers do not counsel a ruling in
their favor when all evidence is viewed in the light most favorable to Burton’s case. The pain
from which he claims to have suffered was a “serious medical need.” The detention center’s
policy of offering Ibuprofen in place of any prescription written by an unapproved physician does
not excuse otherwise unconstitutional behavior. And if Burton’s testimony is to be believed, then
the medical officers’ inaction rose far above mere negligence when they “refused to treat
[Burton], ignored his complaints, [and] intentionally treated him incorrectly . . . .”65 The course
of conduct is one that violates a clearly established constitutional right of which a reasonable
person would be aware. Therefore, to the extent that the motion for summary judgment seeks
dismissal of the due process claims against the medical officers in their individual capacities, the
motion is denied in part.
In all other regards, the motion is granted in part. Within 10 days of this Order’s entry, the
parties shall consult with the magistrate judge regarding a case management order.
SO ORDERED this Nineteenth day of April 2012.
/s/ Carlton W. Reeves
Hon. Carlton W. Reeves
United States District Court Judge
65
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quotations omitted).
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