Holden v. Hirner et al

Filing 70

MEMORANDUM AND ORDER : An appropriate judgment order is issued herewith denying as moot the motion of plaintiff to strike defendants' citation to requests for admission (Doc. 68 ) and sustaining the motion of defendants for summary judgment (Doc. 47 ).. Signed by Magistrate Judge David D. Noce on 9/7/10. (KKS)

Holden v. Hirner et al

Doc. 70

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI NORTHERN DIVISION WILLIAM HOLDEN, Plaintiff, v. LINDA HIRNER, et al., Defendants. ) ) ) ) ) ) ) ) ) MEMORANDUM This action is before the court on the motion of defendants Linda Hirner, Carla Lawson, David Lawson, Barb Powell, and Brian Young for summary judgment. exercise of (Doc. 47.) authority The parties have consented to the by the
1

No. 2:08 CV 68 DDN

plenary

undersigned

United

States Oral

Magistrate Judge pursuant to 28 U.S.C. § 636(c). arguments were heard on August 25, 2010. I.

(Doc. 52.)

BACKGROUND

Plaintiff, William Holden, brought this action against Linda Hirner, Carla Lawson, David Lawson, Barb Powell, Brian Young, Jimmy Shinn, Unknown Robertson, Scott Unknown, Bill Unknown, George Shotick, Peggy Porter, Thomas Reddington, and Judge Robert Clayton, alleging they violated his civil rights under 42 U.S.C. § 1983. (Doc. 1.) On January 6, 2009, Jimmy Shinn, Unknown Robertson, Bill Unknown, Thomas Reddington, and Judge Robert Clayton were dismissed from the suit without prejudice. 41.) (Doc. 7.) On November 4, 2009, this court granted (Docs. 39, the voluntary dismissal of Peggy Porter and George Shotick. of Scott Unknown. (Docs. 48, 51.)

On February 25, 2010, this court granted the voluntary dismissal According to the complaint, on October 15, 2007, while under

pretrial detention in the Protective Custody Pod in Marion County Jail,

The court thanks Christopher D. Baucom, Esq., and Jennifer S. Kings t o n , Esq. for their service as appointed counsel representing plaintiff William Holden in this matter.

1

Dockets.Justia.com

three other detainees assaulted Holden.

(Doc. 1 at 8, ¶¶ 1-2.)

Holden

alleges that he suffered numerous injuries stemming from the assault, including pain in his back, legs, knees, ankles, genitals, toes, neck, shoulders, chest, teeth, and mouth. (Doc. 1 at 9-10, ¶ 5.) According to the complaint, Linda Hirner, the Jail Administrator, along with Carla Lawson, David Lawson, Barb Powell, and Brian Young, all officers and employees of Marion County Jail, oversaw and permitted the housing of Holden with violent detainees and denied Holden medical care after the incident. (Doc. 1 at 8-14, ¶¶ 3-4, 6, 9, 11.) (Doc. 1 at 8, 16(Doc. 1 at 10-17, In his complaint, Holden alleges that defendants failed to protect him from the danger posed by other detainees. 17, ¶¶ 2, 19(a).) Holden also alleges that defendants showed deliberate indifference to his medical needs after the assault. ¶¶ 6-18, 19(b), (c), (d).) II. MOTION FOR SUMMARY JUDGMENT (Doc. 47.)

Defendants move for summary judgment on all claims.

Defendants argue that Holden did not face a substantial risk of serious harm by being placed with the other detainees, and that even if there was a substantial risk, defendants were unaware of it. 10-11.) (Doc. 47-1 at Defendants also argue that Holden only complained of suffering (Id. at

from pain, which was treated by the resident medical staff, and did not exhibit any symptoms of an objectively serious medical need. 7-8.) serio u s medical condition, they were not deliberately Defendants further argue that even if Holden did suffer from a indifferent

because they took all the available steps to diagnose and treat Holden's inju r i e s . entitled (Id. at 8-9.) to qualified In addition, defendants argue that they are for claims against them in their immunity (Id. at 6.)

individual capacity because they did not violate a clearly established constitutional right. Finally, defendants argue that the claims against them in their official capacity are barred due to the l a c k of a policy or custom which violated Holden's constitutional rights. (Id. at 11-12.) (Doc. 62.) Holden argues In response, Holden argues that material facts are in dispute, and thus that summary judgment is inappropriate. -2-

that defendants were aware of the high danger of assault against sex offenders by other detainees, and that defendants were recklessly indifferent specifically to the threat posed by another detainee, who assaulted another sex offender before assaulting Holden. that he was repeatedly denied dental care. (Id. at 6-8.) Holden Holden also argues that his tooth pain was a serious medical need, and (Id. at 9-10.) furthe r argues that his claims against defendants in their official capacities are not barred because it was prison policy that subjected him to assault and denied him dental care. III. (Id. at 10.)

STATEMENT OF UNDISPUTED FACTS

On August 23, 2007, William Holden was arrested, detained, and placed in the custody of Marion County Jail for failing to report a change of address as a convicted sex offender. 9; 62 at 7.) he was in custody at the Marion County Jail. (Docs. 47-2 at ¶ 1; 47(Doc. 47-2 at ¶ 2.) Holden was a pretrial detainee the majority of the time

H o l d e n was housed in the protective custody pod, which is used to provide protection for inmates who have a greater likelihood of being assaulted by other inmates.2 1 at 8, ¶ 2; Doc. 47-1 at 11.) On October 15, 2007, a fight erupted between Holden and Jones, Brown, and Kelso. (Doc. 1 at 8, ¶ 2; Doc. 47-2 at ¶ 7.) Roughly one minute after the fight started, Brian Young, a Marion County Jail employee, discovered and ended the fight. 5-6.) (Doc. 47-5, Young aff. at ¶¶ (Id. at ¶ 7.) Young's (Id.) was no knocked After breaking up the fight, Young gave Holden a change of Other inmates housed in the protective custody pod included Adrian Jones, Nathan Brown, and Steve Kelso. (Doc.

clothes and examined Holden for injuries.

immediate examination revealed minor swelling of Holden's leg, some bruising, and a small cut and minor abrasion on Holden's lip. None of Holden's injuries (Id. fight. required at ¶ (Id.) stitches, and there not significant bleeding. 12.) Holden was

unconscious during the

Holden was not bleeding from his

The protective custody pod has a glass front, which allows prison personnel to observe certain inmates more closely. (Doc. 47-1 at 10; Doc. 62 at 7.) -3-

2

gums, and did not have a loose tooth after the fight. Holden walked around without any noticeable difficulty. Young aff. at ¶ 10; Doc. 47-7, Hirner. aff. at ¶ 5.)

(Id. at ¶ 9) (Doc. 47-5,

In the hours following the fight, Holden complained of increased p ain, locking up and cramping of the neck and shoulders, lower back pain, a loose tooth, dizziness and lightheadedness, and swelling and discoloration on several areas of his body. but refused the ice pack. (Doc. 1 at 10, ¶ 6.) Holden was offered an ice pack for the pain and told to elevate his leg, (Doc. 47-5, Young. aff. at ¶ 11.) The next day, Peggy Porter, a licensed practical nurse and employee of Marion County Jail, received a Sick Call Request Form from Holden, in which Holden complained of pain. (Doc. 47-11, Porter aff. at ¶ (Id.) 10(m).) Specifically, Holden complained that a sudden pain shot through his entire lower back and inner right leg up to his groin. Holden also complained that his back went out, almost causing him to fall to the floor, and that the pain was spreading to his front side. (Id.) and Nurse Porter examined system, Holden, all of at which time Nurse Porter (Id.) evaluated Holden's vital signs, head, ears, nose, throat, lungs, heart, musculoskeletal which were normal. (Id.) The next (Doc. Accordingly, Nurse Porter directed Holden to use an ice pack, rest his right leg and back, and take ibuprofen for five days. pain. On October 21, 2007 and October 23, 2007, Holden complained of (Doc. 47-9 at 44; Doc. 47-11, Porter aff. at ¶ 10(n).) day, an examination revealed a right knee contusion and sprain. 47-11, Porter aff. at ¶ 10(n)) as lifting. In the (Id.) months following the assault, Holden made multiple (Doc. 47-2

He was given Ibuprofen for seven days,

and directed to refrain from activities that would strain his knee, such

complaints of pain, received medical attention and ibuprofen, and was observed walking without any noticeable pain or discomfort. at ¶¶ 17, 19-20; Doc. 47-11, Porter aff. at ¶¶ 10(q)-(pp), 11.) Holden also made multiple complaints about an ache in his lower front tooth. (Doc. 47-11, Porter aff. at ¶ 10(p).) Along with his Holden other complaints of pain, Holden sought dental treatment on October 23, 2007, for pain in his lower front tooth. -4(Doc. 47-9 at 36.)

sought dental treatment for his tooth pain again on October 28, 2007, and November 4, 2007. (Id. at 38, 40.) In response, Nurse Porter told (Id. at 40; Doc. 47-11, (Doc. 66-1 (Doc. Holden multiple times that Marion County Jail did not have a dentist, and could only treat the symptoms of toothache. Porter aff. at ¶ 10(p).) at 1.) When given the opportunity to have a dentist

extract the damaged tooth on June 20, 2008, Holden refused. 62-8, Ex. H.)

The tooth ultimately was extracted on October 13, 2008.

Throu g hout his remaining time at Marion County Jail after the fight, Holden changed cells, and was not placed with Jones, Brown, or Kelso again. Corrections. (Doc. 47-5, Young. aff. at ¶ 14.) (Doc. 1 at 16, ¶ 18.) IV. MOTION FOR SUMMARY JUDGMENT STANDARD On April 29, 2008, Holden was transferred from Marion County Jail to the Department of

Summary judgment must be granted when the pleadings and proffer of evidence demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Devin v. Schwan's Home Serv., Inc., 491 F.3d 778, 785 (8th Cir. 2007). The court must view the evidence in the light most favorable to the nonmoving party and accord it the benefit of all reasonable inferences. Devin, 491 F.3d at 785. A fact is "material" if it could affect the ultimate disposition of the case, and a factual dispute is "genuine" if there is substantial evidence to support a reasonable jury verdict in favor of the non-moving party. Die-Cutting Diversified, Inc. v. United Nat'l Ins. Co., 353 F. Supp. 2d 1053, 1054-55 (E.D. Mo. 2004). Initially, the moving party must demonstrate the absence of an issue for trial. made and Celotex, 477 U.S. at 323. the nonmoving party Once a motion is properly may not rest upon the that supported, but must

allegati o ns in its pleadings or in general denials of the movant's assertions, instead proffer admissible evidence demonstrates a genuine issue of material fact. Fed. R. Civ. P. 56(e);

Howard v. Columbia Pub. Sch. Dist., 363 F.3d 797, 800 (8th Cir. 2004); Krein v. DBA Corp., 327 F.3d 723, 726 (8th Cir. 2003); Essex Ins. Co. -5-

v. Stone, No. 1:09 cv 1 SNLJ, 2010 WL 330328, at *2 (E.D.Mo. Jan. 21, 2010). V. DISCUSSION

Section 1983 provides a civil cause of action against any person who, under color of state law, causes a deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States. 42 U.S.C. § 1983; McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009). A. Failure to Protect Prison officials have an Eighth Amendment duty to "provide humane conditions of confinement." (1994). measures Id. to guarantee the Farmer v. Brennan, 511 U.S. 825, 832 safety of the inmates," which include To fulfill that duty, prison officials must "take reasonable

"protect[ing] prisoners from violence at the hands of other prisoners." This is because "being subjected to violent assaults is not `part of the penalty that criminal offenders pay for their offenses . . . .'" Jensen v. Clarke, 94 F.3d 1191, 1197 (8th Cir. 1996) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). To establish a claim of failure to protect, a plaintiff must prove two things: First, the plaintiff must prove that he or she was "incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. This is an objective requirement which Jensen, 94 F.3d at 1197. "ensures that the deprivation is sufficiently serious to amount to a deprivati o n of constitutional dimension." Second, the plaintiff must show that the prison official had a state of mind that was one of "deliberate indifference" to inmate health or safety. Farmer, 511 U.S. at 834. This is a subjective requirement, which mandates that the plaintiff prove that the prison official both knew of and disregarded "an excessive risk to inmate health or safety." Id. at 837. Holden argues that defendants failed to protect him from other detainees. (Doc. 1 at 8-9, ¶¶ 2-4.) Holden argues that defendants were aware of the danger sex offenders face in prison, and failed to take -6-

necessary precautions.

(Id.)

More specifically, Holden argues that (Id.) Defendants argue Defendants

after Adrian Jones assaulted another detainee, defendants should have, but failed to, move Holden away from Jones. detainees specifically to Holden. Holden from any violence. (Id.) that they were unaware of any substantial risk posed by the other (Doc. 47-1 at 10-11.) a l s o argue that they took all available reasonable steps to protect Holden cites cases from the Tenth Circuit for the proposition that child molesters face substantial risks of serious harm while imprisoned. (Doc. 62 at 6-7.) See, e.g., Brown v. Narvais, No. CIV-06-228-F, 2009 WL 736674, at *4 (W.D. Okla. Mar. 17, 2009) (recognizing that "it is well known that convicted child molesters may be in danger in a general prison population") (internal quotations omitted). 1 at 8, ¶ 1.) However, Holden was (Doc. not in the general prison population when the assault occurred.

Rather, Holden was placed in the protective custody pod,

which is used to provide protection for those inmates who have a greater likelihood of being assaulted by other inmates. Thus, even if Holden would have faced a "substantial risk of serious harm" in the general prison population, defendants protected Holden by placing him in the protective custody pod. offenders faced in the general prison population. 62, Ex. A-E.) in the general prison population is irrelevant. Holden points to d e f endants' affidavits to show that they knew of the dangers sex (Doc. 62 at 8; Doc. However, whether or not Holden would have been in danger In sum, Holden did not

face a "substantial risk of serious harm" while in the protective custody pod solely because he was a sex offender. Holden has also failed to proffer any evidence that defendants knew Adrian Jones assaulted another inmate four days prior to assaulting Holden and why Jones committed the earlier assault. report. (Doc. 62, Ex. F.) The only evidence Holden has submitted to show defendants' knowledge is an incident The incident report, written by Officer Anna, only states that Officer Anna observed Jones hitting another inmate, William Hopkins, because Hopkins refused to say what his charges were. (Id.) The report does not state that Hopkins was a sex offender, (Id.) or that Jones assaulted him because he was a sex offender. -7-

Holden has not proffered any evidence that any defendants were aware of motiva t i o n for the assault. Defendants have produced affidavits supporting their contention that they had no knowledge of any specific danger posed to Holden by Jones while in the protective custody pod. (Doc. 47-3, C. Lawson aff. at ¶ 10; Doc. 47-4, D. Lawson aff. at ¶ 5; Doc. 47-5, Young aff. at ¶ 8; Doc. 47-6, Powell aff. at ¶ 7; Doc. 47-7, Hirner aff. at ¶ 7.) Therefore, because Holden has not shown that he faced a substantial risk of serious harm in the protective custody pod, Holden has failed to satisfy the first element of his failure to protect claim. Even if Holden did face a "substantial risk of serious harm" while in the protective custody pod, Holden has failed to produce any evidence showing defendants were deliberately indifferent to the danger. Holden has not proffered any evidence that any defendant had knowledge of the danger Jones posed to Holden, nor any evidence that any defendant deliberately chose to ignore the danger. (Id.) As discussed above, defendants took reasonable, routine precautions by placing Holden in the protective custody pod for additional safety and greater observation. (Doc. 1 at 8, ¶ 1, Doc. 62, Ex. A-E.) Thus, because Holden has neither submitted any evidence showing that defendants actually knew the details of, nor that they consciously ignored, the danger posed by Jones, Holden failed to satisfy the second element of his failure to protect claim. Furthermore, defendants cite Norman v. Schuetzle, 585 F.3d 1097 (8th Cir. 2009), where the Eighth Circuit held that an inmate's history of violence alone was insufficient to impute to prison officials The subjective knowledge of the inmate's danger to all other inmates.

c o u rt reasoned that while a fact-finder could determine that a prison official knew of a substantial risk because the risk was obvious, "the fact remains that the prison official must still draw the inference." Id. at 1105. The court also held that a prison official who learned, two weeks prior to the assault, that someone was looking to hire an inmate to assault the victim was not liable because that information alone was insufficient to establish subjective knowledge of danger and that preventative measures could have been taken but were not. 1107-08. -8Id. at

As discussed above, here, like the victim-inmate in Norman, Holden has not proffered any evidence that defendants were subjectively aware of the risk posed by Jones. segregation only days Even though defendants released Jones from he assaulted another inmate, Norman after

recognized that prison officials need not indefinitely segregate all inmates who engage in violence while incarcerated. Id. at 1105. Courts "must give substantial deference to prison officials to determine the best methods for dealing pod, with which dangerous Id. provided inmates greater in the volatile and environment that is prison life." protective custody Placing Holden and Jones in the supervision

protection, was a logical means of preventing violence. Id. at 1105-07. Therefore, summary judgment is appropriate on Holden's failure to protect claim. B. Deliberate Indifference to a Serious Medical Condition "Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." McRaven, 577 F.3d at 979 (quotations omitted). "This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or Id. intentionally interfering with the treatment once prescribed." (quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). 1983. McRaven, 577 F.3d at 979. Pretrial detainee § 1983 claims are analyzed under the Fourteenth A m e ndment's Due Process Clause, rather than the Eighth Amendment prohibition against cruel and unusual punishment. 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. To prevail on a deliberate indifference claim, a plaintiff must show "(1) he suffered from an objectively serious medical need, and (2) -9-

Deliberate

indifference to a prisoner's medical needs is actionable under Section

defendants

knew

of

the

need

yet

deliberately

disregarded

it."

Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004).

A 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." 114 F.3d 778, 784 (8th Cir. 1997). criminal recklessness. (8th Cir. 2009). Although Holden alleged in his complaint deliberate indifference arising out of the medical care given to all of his injuries, in his response to defendants' Motion for Summary Judgment, Holden only (Doc. responds to and proffers evidence in support of his tooth pain. Coleman v. Rahija, To prevail, a plaintiff must

establish that the defendant acted with a level of culpability equal to Jenkins v. Cnty. of Hennepin, 557 F.3d 628, 632

62 at 9-10.) Defendants have submitted multiple affidavits and Holden's medical file to rebut any possible claims arising out of the medical care given to Holden beyond that relating to his tooth. 47-4, 47-5, 47-6, 47-7, 47-9.) material facts. (Docs. 47-3, In addition, Holden did not include any

relevant medical-related facts in his own statement of uncontroverted (Doc. 62 at 4-5.) Therefore, summary judgment is appropriate on the deliberate indifference claim arising out of injuries not relating to Holden's tooth pain. See Morlock v. West Cent. Educ. Dist., 46 F. Supp. 2d 892, 924 (D. Minn. 1999) (granting summary judgment for defendants on claims raised in plaintiffs complaint but not argued by plaintiff in her opposition to summary judgment brief). Holden alleges that his tooth pain was a serious medical need, and that defendants were deliberately indifferent to it. (Doc. 62 at 9-10.) An inmate's complaints of dental pain can be a serious medical need. McAlphin v. Toney, 281 F.3d 709, 711 (8th Cir. 2002) (plaintiff who had five tooth extractions, needed two more, and had an infection spreading in his mouth had shown serious medical need for dental care); Hartsfield, 491 F.3d at 397 (8th Cir. 2007) (plaintiff who "suffered extreme pain from loose and infected teeth, which caused blood to seep from his gums, swelling, and difficulty sleeping and eating" had a serious medical need for dental care); Boyd v. Knox, 47 F.3d 966, 969 - 10 -

(8th Cir. 1995) (holding that "[a] three-week delay in dental care, coupled with knowledge of the inmate-patient's suffering, can support a finding of an Eighth Amendment violation under section 1983"). Viewing the evidence in the light most favorable to the plaintiff, Holden has failed to show that defendants were deliberately indifferent to his tooth pain. The Supreme Court has explained that for liability to attach to a prison official in a deliberate indifference claim, "the official must be both 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." Farmer, 511 U.S. at 837. Holden has not proffered any evidence that any of the remaining defendants were actually aware of or responsible for his dental care. The only relevant evidence indicates that none of the defendants were aware of any serious injuries Holden might have had, (Docs. 47-3, 47-4, 47-5, 47-6, 47-7, 47-9), and that defendants complied with Holden's requests to courier his Sick Call Request Forms to Nurse Porter. (Doc. 66-1, Young depo. at 31-34; Doc. 66-1, D. Lawson depo. at 13-14; Doc. 66-1, C. Lawson depo. at 17-18.) Defendants fulfilled their duties in this regard, and cannot be held liable for the diagnostic decisions of the medical staff regarding Holden's dental care, as defendants lacked medical expertise.3 Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) ("Moreover, because [the defendants] lacked medical expertise, they cannot be held liable for the medical staff's diagnostic decision not to refer [the inmate] to a doctor to treat his shoulder injury."). See also Box v. Dwyer, No. 1:05CV6 HEA, 2006 WL 2850528, at *2 (E.D. Mo. Sept. 29, 2006) ("Standing alone, [evidence that the defendant signed the inmate's grievance form] is insufficient to establish that defendant was aware of plaintiff's m edical needs and deliberately disregarded those needs; defendant, an individual with no medical training, is entitled to rely on the medical decisions of medical personnel.").

Nurse Peggy Porter and Dr. George Shotick, the Marion County Jail medical staff members who diagnosed and treated Holden, were originally named as defendants in this suit, but this court granted Holden's motion to voluntarily dismiss Nurse Porter and Dr. Shotick on November 4, 2009. (Docs. 39, 41.) - 11 -

3

In addition, although Holden complained of tooth pain on October 23, October 28, and November 4, 2007, (Doc. 47-9 at 36, 38, 40), Nurse Porter told Holden that Marion County Jail did not have a dentist, and could only treat the pain. 10(p).) e x tracted, Holden refused. (Id. at 40; Doc. 47-11, Porter aff. at ¶ (Doc. 66-1 at 1.) Refusing medical When the opportunity arose on June 20, 2008 to have the tooth

treatment can undermine an inmate's claim of deliberate indifference. See Logan v. Clarke, 119 F.3d 647, 649-50 (8th Cir. 1997) (holding that a prison's offer of pain treatment, even though the inmate refused, "demonstrate[d] the doctors were not consciously disregarding [plaintiff's] need."); Williams v. Chandler, No. 4:05CV00661 ERW, 2006

WL 2795382, at *7 (E.D. Mo. Sept. 27, 2006) (holding that a plaintiffs "refusal of medical evaluations and treatment made available to him" supported summary judgment against the plaintiff). Here, all available steps were taken to relieve Holden's tooth pain and when given the opportunity to completely rid himself of the pain via tooth extraction, Holden refused. Summary judgment is therefore appropriate on Holden's deliberate indifference claim. C. Qualified Immunity Defendants argue that they are entitled to qualified immunity because Holden cannot establish the violation of a clearly established constitutional right. (Doc. 47-1 at 6.) "Qualified immunity shields government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Crow v. Montgomery, 403 F.3d 598, 601 (8th Cir. 2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity may be invoked by a public official being sued in his o r her individual capacity. Cir. 2009). Qualified Serna v. Goodno, 567 F.3d 944, 952 (8th "protects all but the plainly McRaven, 577 F.3d immunity

incompetent or those who knowingly violate the law." at 979 (internal quotations omitted).

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To overcome the defense of qualified immunity, a plaintiff must p r o v e that (1) the facts, viewed in a light most favorable to the plaintiff, show a deprivation of a constitutional right, and (2) the right was clearly established at the time of the deprivation. v. Gray, 557 F.3d 904, 908 (8th Cir. 2009). As discussed above, even when viewed in the light most favorable to the plaintiff, Holden has failed to establish a deprivation of his constitutional rights.4 immunity. D. Official Capacities A suit against an individual in his or her official capacity is treated as a suit against the entity that employs the individual. Hafer v. Melo, 502 U.S. 21, 25 (1991). than name, to be treated as See also Kentucky v. Graham, 473 U.S. a suit against the entity."). A 159, 166 (1985) ("[A]n official-capacity suit is, in all respects other municipality cannot be held vicariously liable under Section 1983 for the actions of its agents. 658, 691 (1978). injury. Monell v. Dep't of Soc. Servs., 436 U.S. Thus, to succeed in an official-capacity suit, the As such, defendants are entitled to qualified Vaughn

plaintiff must show that the entity's policy or custom caused his or her Id. at 694.

The court notes that both a pretrial detainee's right to medical care and right to protection from violence from other inmates are clearly established. Boswell v. Sherburne County, 849 F.2d 1117, 1121 (8th Cir. 1988) (medical care); Foulks v. Cole Cnty., 991 F.2d 454, 45657 (8th Cir. 1993) (medical care); Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996) (protection from violence from other inmates). However, because Holden has not proffered any evidence of suffering a deprivation of a constitutional right, defendants are entitled to qualified immunity. See Bradford v. Huckabee, 394 F.3d 1012, 1015 (8th Cir. 2005) ("The better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all."); Abdouch v. Burger, 426 F.3d 982, 987 (8th Cir. 2005) ("In the present case, we need not reach this second step of the qualified immunity analysis because we conclude that the defendants' conduct, viewed in a light most favorable to the plaintiff, did not violate a constitutional right."). - 13 -

4

A policy is an "official policy, a deliberate choice of a guiding principle or procedure made by the municipal official who has final authority regarding such matters." 1157, 1160 (8th Cir. 2001). at 694. A custom involves "a pattern of persistent and widespread practices w h i c h become so permanent and well settled as to have the effect and force of law." Brockinton v. City of Sherwood, 503 F.3d 667, 674 (8th To establish a custom, a Cir. 2007) (internal quotations omitted). Bechtel v. City of Belton, 250 F.3d Monell, 436 U.S. To be actionable, the policy must have been

the "moving force of the constitutional violation."

plaintiff must proffer evidence of a "continuing, widespread, persistent pattern of unconstitutional misconduct," along with evidence that either " p olicymakers were deliberately indifferent to the misconduct or that they tacitly authorized it." Jenkins, 557 F.3d at 634 (8th Cir. 2009) (internal quotations omitted). As discussed above, defendants are entitled to summary judgment on both claims against them in their individual capacities, because Holden has failed to show a constitutional violation. Because Holden has failed to show legally sufficient evidence that he was deprived of any of his constitutional rights, his claims against defendants in their official capacities also fail. VI. MOTION TO STRIKE

Holden moves to strike all references to defendants' requests for admission made in defendants' memoranda in support of summary judgment. (Doc. 68.) The court considered defendants' motion for summary judgment without the use of the disputed requests for admissions and nevertheless found summary judgment appropriate for defendants. motion to strike is moot. VII. CONCLUSION Therefore, Holden's

An appropriate judgment order is issued herewith denying as moot the motion of plaintiff to strike defendants' citation to requests for admission (Doc. 68) and sustaining the motion of defendants for summary judgment (Doc. 47). - 14 -

/S/ David D. Noce UNITED STATES MAGISTRATE JUDGE Signed on September 7, 2010.

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