Foell v. County of Lincoln et al

Filing 97

MEMORANDUM AND ORDER - IT IS ORDERED: Plaintiff's Motion to Strike Defendants' Expert Affidavits, Filing No. 69 , is denied. Plaintiff is afforded until August 9, 2019 to depose Defendants' experts and if he chooses to do so, may disclose responsive experts on or before September 6, 2019. Plaintiff's Motion to Strike the letter from Laura Kubitz, Filing No. 84 , is granted. Defendants' Motion for Summary Judgment, (Filing No. 64 ), is granted in part and denie d in part as follows: a. Defendants' motion is granted in its entirety as to John Does 1-10, including but not necessarily limited to "the staff of LCDC, in their individual and official capacities."b. Defendants' motion is denie d in its entirety as to Defendants Hicks and Kramer with respect to Plaintiffs 42 U.S.C. § 1983 claim for Cruel and Unusual Punishment under the Eighth Amendment.c. Defendants' motion is granted as to Plaintiff's "Failure to Train " claim and denied as to Plaintiff's "Policy or Custom" claim as to the County of Lincoln with respect to Plaintiffs 42 U.S.C. § 1983 claim for Cruel and Unusual Punishment under the Eighth Amendment. d. Defendants' mo tion is granted as to Plaintiff's state law claim for negligence against Sheriff Kramer; governmental immunity is afforded under the discretionary function exemption to the Political Subdivision Tort Claims Act. Neb. Rev. Stat. § § 13-901 et seq. e. Defendants' motion is denied as to Plaintiff's PSTCA claim for negligence against Defendant Hicks. For good cause shown, Defendants' motion to continue the trial, (Filing No. 93 ), is granted. The parties' e fforts toward settlement should continue, with Judge Bazis' assistance as needed. The parties shall contact my chambers on or before July 26, 2019 to re-schedule the trial and if necessary, Plaintiff's expert deposition deadline and expert disclosure deadline. Ordered by Magistrate Judge Cheryl R. Zwart. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
FRANK G. FOELL,
Plaintiff,

4:17CV3044

vs.
MEMORANDUM AND ORDER
COUNTY OF LINCOLN, a Nebraska
Political Subdivision; PAMELA HICKS,
in her individual and official capacities;
JEROME KRAMER, in his individual
and official capacities; and JOHN
DOES 1-10,
Defendants.
Plaintiff Frank Foell has filed a civil rights action under 42 U.S.C. § 1983
against the County of Lincoln, Nebraska (“Lincoln County”) and against Lincoln
County Detention Center (“LCDC”) nurse, Pamela Hicks; Lincoln County Sheriff,
Jerome Kramer; and John Does 1-10, each in their individual and official
capacities. Foell alleges Defendants were deliberately indifferent to his serious
medical needs while he was incarcerated at LCDC. He also alleges pendant state
law claims for negligence under the Political Subdivision Tort Claims Act. Neb.
Rev. Stat. § § 13-901 et seq.

Defendants now move for summary judgment as to all claims and
Defendants based upon qualified immunity, the discretionary function exemption
of the Political Subdivision Tort Claims Act, lack of proximate causation, and lack
of any genuine issue as to any material fact. For the reasons stated below,
Defendants’ motion will be granted in full as to John Does 1-10, granted in part
and denied in part as to Defendants Kramer and the County of Lincoln, and denied
in full as to Defendant Hicks.

MOTIONS TO STRIKE

A.

Standard of Review

Before the court evaluates the facts and legal issues raised on Defendants’
motion for summary judgment, it must address the parties’ respective objections
to the proffered evidence. On summary judgment, “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). “The objection functions much
as an objection at trial, adjusted for the pretrial setting. The burden is on the
proponent to show that the material is admissible as presented or to explain the
admissible form that is anticipated.” Advisory Committee Notes to 2010
Amendment, Subdivision(c)(2). “[T]he standard is not whether the evidence at the
summary judgment stage would be admissible at trial—it is whether it could be
presented at trial in an admissible form.” Gannon Int’l, Ltd. v. Blocker, 684 F.3d
785, 793 (8th Cir. 2012).

B.

Plaintiff’s Motion to Strike Defendants’ Expert Affidavits

Plaintiff claims Defendants failed to disclose their expert reports in
accordance with the court-ordered case progression schedule. He therefore
moves this court to strike exhibits 4, 11, and 12 from Defendants’ Index of
Evidence, and he moves that these exhibits not be considered on Summary
Judgment. (Filing No. 71). Specifically, Plaintiff argues that Defendants: (1) did not
timely identify Barbara Eshleman, R.N. (“Eshleman”) as an expert; and (2) failed
to timely provide expert witness reports from all three experts—Eduardo Freitas,
M.D. (“Freitas”), Daniel Evans (“Evans”), and Eshleman—as required by Fed. R.
Civ. P. 26(a)(2)(B). Plaintiff asserts that to now permit Defendants to rely upon
2

these previously undisclosed expert opinions will unduly prejudice the plaintiff.
(Filing No. 71, at CM/ECF pp. 3–4).
Defendants dispute Plaintiff’s interpretation of the expert progression
deadline, arguing that both their identification of experts and their disclosure of the
three reports were timely. (Filing No. 82, at CM/ECF p. 2). Defendants argue that
the court did not set new expert deadlines after the stay imposed for the settlement
conference was lifted. (Id.) Therefore, Defendants argue that in the absence of a
stipulation by the parties or a court order, expert disclosures must be made “at
least 90 days before the date set for trial or for the case to be ready for trial.”
Fed.R.Civ.P 26(a)(2)(D)(i)).

Trial in this case is currently scheduled for August 26, 2019. Under Fed. R.
Civ. P. 26(a)(2)(D), expert reports were therefore due by May 28, 2019.
Defendants state that they did not have expert reports from Freitas, Eshleman, or
Evans until March 28, 2019, and that these reports were provided to Plaintiff via
email the next day, on March 29, 2019. (Filing No. 82, at CM/ECF p. 2). Therefore,
Defendants argue that the identification of experts and disclosure of reports were
done in a timely manner, two months ahead of the deadline. (Filing No. 82, at
CM/ECF p. 2). Defendants further attest that Plaintiff was provided signed
affidavits from each of the three experts two business days after Defendants
received them. (Id.)

Plaintiff counters that the law still militates against a finding for Defendants,
explaining:
[T]here is a reasoned order in how a case progresses from the
pleading to trial stage. Both parties are to be provided with the
necessary discovery about the evidence and witnesses the other side
is going to rely on for trial well in advance so the parties can do their
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due diligence in a timely fashion to determine if there is a need for
rebuttal witnesses, lay or expert.
...
The reason that the summary judgment and Daubert motion in limine
deadlines come after the end of the discovery deadline is to allow both
parties to do the necessary discovery so there are no unfair surprises
when a summary judgment is filed or a Daubert challenge to an expert
witness is made.
(Filing No. 86, at CM/ECF p. 2). In sum, Plaintiff argues that permitting Defendants
to evade the progression schedule’s mandate would undermine the operational
objective of the rules themselves.

Plaintiff raises a valid point. Nevertheless, under the instant facts,
Defendants’ expert reports must be deemed timely under the plain language of
Fed.R.Civ.P 26(a)(2)(D). Accordingly, because expert report deadlines were not
included in the case progression order entered after the stay of progression, the
90-day rule applied. Plaintiff’s motion to strike exhibits 4, 11, and 12 will be denied.
That said, it appears the parties’ expert deadline dispute arose because of
the court’s mistake. Specifically, I overlooked setting new expert deadlines when I
entered a post-stay progression order, and the defendants took advantage of that
oversight. As such, and in the interest of justice, the court will grant Plaintiff
additional time to depose Defendants’ experts in preparation for trial, and to
disclose experts if he chooses to do so.

C.

Plaintiff’s Motion to Strike letter from Laura Kubitz

Plaintiff moves this court to Strike Exhibit 3 from Defendants’ Index of
Evidence in Support of Defendants’ Reply Brief for Summary Judgment. (Filing No.
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84). Exhibit 3 is a letter from Laura Kubitz, Administrative Assistant for the
Nebraska Department of Health and Human Services, addressed to Defendant,
Pamela Hicks (hereafter “Kubitz letter”). (Filing No. 81, at CM/ECF p. 8). The Kubitz
letter informs Defendant Hicks that the Professional Board and the Attorney
General have decided not to pursue an investigation into a complaint filed against
Hicks. (Id.)

Plaintiff argues the letter is inadmissible hearsay without foundation, lacks
relevance, and it should be stricken from evidence accordingly. (Filing No. 85, at
CM/ECF p. 2). Defendant counters that the letter falls under the Public Records
exception to hearsay and is relevant, arguing:
The letter serves the purpose of demonstrating the lack of any
evidence the Plaintiff has to support his claim that Nurse Hicks’
actions fell below the standard of care under the Nebraska Standards.
It also serves as a rebuttal for Nebraska Nursing Standards that the
Plaintiff brought before this Court in the Plaintiff’s Brief in Opposition
to the Motion for Summary Judgment.
(Filing No. 89, at CM/ECF pp. 2–3).
Defendants have not shown the letter is admissible, or that it could be
admissible at trial. The allegations of the complaint against Nurse Hicks are
unknown. (See Filing No. 81, at CM/ECF p. 8). The same is true of the investigation
details and the rationale underlying the decision not to pursue prosecution. (Id.).
The information and criteria considered by the Professional Board and the Attorney
General is statutorily confidential under Nebraska law and therefore shielded from
subpoena or discovery. Neb. Rev. Stat. § 38-1,106. Further, Defendants’ purported
purpose of using the letter “as a rebuttal for Nebraska nursing standards” serves
as an improper, undisclosed expert opinion without reference to a scintilla of
supporting foundation. (See, Filing No. 89, at CM/ECF pp. 2–3). Therefore, the

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Kubitz letter is not probative of any issue and cannot be used at trial. Moreover, to
the extent Plaintiff’s claims are based on Hicks’ alleged violations of state nursing
regulations, a letter purporting to conclude that an investigation of such claims is
unnecessary addresses the ultimate issue to be decided, invades the province of
a jury, and is more prejudicial than probative.
Plaintiff’s motion to strike exhibit 3 will be granted.

MOTION FOR SUMMARY JUDGMENT

A.

Standard of Review

Under Fed. R. Civ. P. 56(c), summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any 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). The party seeking summary judgment bears
the initial burden of articulating the basis for its motion and directing the court’s
attention to those portions of the record which prove the absence of a genuine
issue of material fact. Id. at 323. Where Plaintiff bears the ultimate burden of proof
on a dispositive issue at trial, this can be met by Defendants “pointing out to the
district court—that there is an absence of evidence to support the non-moving
party’s case.” Id. at 325. After Defendant has met this burden, it is up to Plaintiff to
set forth specific facts, beyond the pleadings, showing that there is a genuine issue
for trial. Fed. R. Civ. P. 56(e).
An issue is “genuine” if the evidence could lead a reasonable jury to return
a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc, 477 U.S. 242,

6

248 (1986). A fact is “material” if the dispute might affect the outcome of the case
under governing law. Id. In ruling on a motion for summary judgment, the court
must view the evidence in the light most favorable to the non-moving party, giving
that party the benefit of all inferences that may be reasonably drawn from the
evidence. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the
court’s function to weigh evidence in the summary judgment record to determine
the truth of any factual issue; the court merely determines whether there is
evidence creating a genuine issue for trial. Bell v. Conopco, Inc., 186 F.3d 1099,
1101 (8th Cir. 1999). See also, Anderson, 477 U.S. at 251-52 (“Credibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge . . . . The evidence
of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.”) (internal citations omitted). Where the party who bears the ultimate
burden of proof presents sufficient probative evidence that would permit a
favorable finding based on more than mere speculation, conjecture, or fantasy,
summary judgment must be denied.

B.

Statement of Facts

Limited to the admissible evidence, and for the purposes of the pending
motion, the following facts are either undisputed or considered undisputed when
viewed in the light most favorable to Plaintiff.
Defendant Jerome Kramer is the Lincoln County Sheriff (“Sheriff Kramer”),
having served in this capacity since August 2006. As commanding officer of
Pamela Hicks, LPN (“Nurse Hicks”), and John Does 1-10, Sheriff Kramer was at
all relevant times responsible for the training, supervision, and conduct of
Defendants. In this capacity, Kramer also established and instituted policies and

7

procedures to ensure that the LCDC staff obeyed state and federal laws, and
enforced the regulations of Lincoln County.

Nurse Hicks is a licensed practical nurse in the State of Nebraska, and at all
relevant times served as the head detention center nurse for LCDC.

In June 2011, Sheriff Kramer approached the Lincoln County Board of
Commissioners to discuss the county’s current contract for LCDC medical services
with Sandhills Health District (“Sandhills”). The county’s contract with Sandhills for
the current fiscal year was scheduled to lapse on June 25, 2011, at which point the
proposed contract for the next fiscal year was to be raised to $145,973—an
increase of $83,973 from the current contractual rate of $62,000. To avoid this cost
increase, Sheriff Kramer proposed that the county instead hire a fulltime LPN to
work for the county, noting that Drs. Walt and Deb Weaver had volunteered1 to be
doctors for the detention center. (Filing No. 74-2, at CM/ECF p. 111–12). Sheriff

1

Deposition of Sheriff Kramer, October 24, 2018:
Q. And when it indicates that they volunteered to be the doctors, what do
you understand that to mean?
A: I guess just that. They agreed to take on that role.
Q: But they—not that they wouldn’t be paid, correct?
A: Right.
Q: And what did you understand their role -- role would be if this plan was
adopted?
A: Well, they would be the direct contact for the jail nurse.
Q: They would be the direct contact for the nurse? What does that mean?
A: That would mean we have a nurse that’s going to assess your daily needs
in the jail, the assessments, and if she needed any advice, prescriptions,
so on, that were above her daily assessment, she would refer to them.

(Filing No. 74-2, at CM/ECF p. 115.)

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Kramer stated that he believed the county could make this program work for
$62,228 for the next fiscal year. The plan was unanimously approved and the
Sandhills contract was not renewed. (Filing No. 74-2, at CM/ECF p. 6).
As LCDC medical directors, the Weavers’ primary role was to modify
departmental protocols as needed, including implementing updates to LCDC’s
policy manual. (Filing No. 74-2, at CM/ECF p. 133–34). One main purpose of these
revised protocols was to allow for the detention center’s on-duty LPN to order and
administer prescription medicine for identified conditions without contacting a
doctor for further authorization. The Weavers’ role of performing actual medical
examinations for detainees or inmates at LCDC was “reserved . . . for extreme
circumstances.” (Filing No. 74-2, at CM/ECF pp. 135–36).

On November 15, 2015, Foell was arrested for DUI and resisting arrest by
the North Platte police. Foell, who was heavily intoxicated and combative toward
law enforcement, was taken to LCDC at approximately 10:20 p.m. (Filing No. 741 at CM/ECF p. 1). When he arrived at the LCDC, he was bleeding from the head,
ankles, and foot, and he had wrist injuries, cellulitis on his left elbow, and a tooth
infection, all of which were reported upon admission to the LCDC.

On November 16, 2015, upon his intake to the detention center, Plaintiff was
running a fever of 101 degrees, and his blood pressure as measured by Nurse
Hicks was reportedly high. Hicks restricted Plaintiff’s salt intake.

9

Plaintiff remained segregated in confinement until November 19, 2015.2
Plaintiff was provided acetaminophen on November 17, 18, 19, 20, and 21, 2015,
two times per day and at night. (Filing No. 74-1, at CM/ECF p. 2).
On November 19, 2015, Defendant was moved to the “General Population”
at LCDC. That same day, Plaintiff submitted a medical request via the kiosk—the
sole way for inmates to communicate their medical needs to staff. Foell stated that
his injured elbow had become infected and that he suspected he was running a
fever. Nurse Hicks later came by Plaintiff’s cell, speaking to Foell through a trayopening on his cell door. (Filing No. 74-1, at CM/ECF p. 2). Based on this
communication, Nurse Hicks put Defendant on antibiotic Cephalexin, a generic
form of Keflex. (Filing No. 74-2, at CM/ECF pp. 48–58). Nurse Hicks also started
Foell on diphenhydramine (Benadryl), which he was ultimately given every night
through December 24, 2015 “to help [him] sleep.” (Filing No. 74-1, at CM/ECF p.
3). Nurse Hicks did not take any of Foell’s vitals, perform an examination of his
elbow, or confer with a physician prior to starting Plaintiff on the Cephalexin
prescription.

Later, when Foell renewed his complaint of a suspected abscessed tooth,
Nurse Hicks informed him that per dental protocol, two antibiotics needed to be
given before an inmate would be allowed to see a dentist. (Filing No. 72, at
CM/ECF p. 7). Accordingly, on November 30, 2015, Foell sent the following written
medical communication to Nurse Hicks through the Kiosk system:

i still have an absest [sic] front tooth and need another round of
antibiotics thank u frank foell
2

The parties dispute why Plaintiff was kept in a holding cell through November 19,
2015. Although Plaintiff admits he was initially placed in the holding cell for threatening
staff, Plaintiff alleges his confinement there was prolonged because he was running a
fever.

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(Filing No. 74-1, at CM/ECF p. 13). Nurse Hicks responded the next day, “I will get
this ordered tomorrow and you will start tomorrow night or the next am.” Foell was
never seen by a dentist while incarcerated at LCDC.

On December 1, 2015, Plaintiff sent another communication through the
kiosk, notifying Nurse Hicks that he was now experiencing excruciating back pain:

im [sic] having issues with my back, i [sic] have had problems with it
in the past also do [sic] to car wrecks my back hurts so bad now i can
hardly breath cant [sic] sleep and hurts bad to sit at table for chow
could u [sic] please give something for the pain or even some muscle
relaxers to get it unlock i [sic] seriously can’t take the pain much
longier [sic] thanks for any help in this matter frank foell.
(Filing No. 74-1, at CM/ECF p. 14). Foell further complained that he was
constipated, having not had a bowel movement in days. Nurse Hicks responded
by giving Foell Ibuprofen. Hicks did not further investigate or address Plaintiff’s
medical complaints but documented this response as “evaluated and treatment
plan in place.” (Filing No. 74-1, at CM/ECF p.14).

Early the next morning, on December 2, 2015, Foell again communicated to
the nurse that he was “in serious pain”, and it was all he could “do to get out of
bed” and was “having difficulty” getting up for count. (Filing No. 74-1, at CM/ECF
p. 15). He again requested that he be allowed to see a physician for the “cruel and
unusual” pain he was being made to suffer. (Id.)
Nurse Hicks responded to Plaintiff’s complaints by speaking with him
through the tray opening in his cell door. Based on this visit, Nurse Hicks continued

11

providing ibuprofen and Benadryl, and further provided Cleocin, docusate sodium,3
and milk of magnesia. She did not perform any physical examination of plaintiff,
take his pulse, temperature, or blood pressure, or refer him for evaluation by a
physician. But she again documented that Foell’s medical complaint was
“evaluated and treatment plan made”. (Filing No. 74-1, at CM/ECF 14).

On December 3, 2015, at 8:25 a.m., Plaintiff submitted another written
communication, begging Nurse Hicks to address his “severe pain”, stating that he
was about to lose his mind, that he hadn’t slept in 5 nights and that he was keeping
his cellmate up with his moans of pain. (Filing No. 74-1, at CM/ECF p. 17). Plaintiff
further stated that he still hadn’t had a bowel movement and felt that he was about
to have a hernia from the pressure. (Id.) At this point, Nurse Hicks responded to
Plaintiff, “I am changing the pain medications for a week to Tramadol”, a Class IV
Controlled Substance. Once again, she performed no physical examination of
Plaintiff, nor did she assess any of his vitals, refer him for evaluation by a physician,
or indicate that she conferred with Dr. Deb Weaver. (Filing No. 74-1, at CM/ECF
p. 5).

Later that day, Defendant was sentenced to 90 days in jail after he pleaded
guilty to driving under the influence. His custodial status was therefore changed
from “detainee” to “inmate.”

On December 5, 2015, Plaintiff submitted another communication via the
kiosk to Nurse Hicks, requesting that he be put on the dental list to have his tooth
pulled. On December 7, 2015, Nurse Hicks again replied that Plaintiff needed to

Both Cleocin and docusate sodium require a physician’s prescription under
Nebraska state law.
3

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be on two rounds of antibiotics before he could be scheduled to see the dentist.
(Filing No. 74-1, at CM/ECF p. 18).4

At 4:08 p.m. on December 7, 2015, Plaintiff submitted another
communication via the kiosk to Nurse Hicks, stating that he was “in so much pain”
it was “almost more than [he could] take.” (Filing No. 74-2, at CM/ECF p. 104).
Plaintiff further relayed that he hadn’t slept in days, and he requested an increase
in his Unisom dosage. By this point, Plaintiff had been taking 50 mg of Tramadol
twice a day since December 4, 2015, and Milk of Magnesia and Docusate Sodium
since December 2, 2015. Later that day, Plaintiff submitted another communication
via the kiosk:
Please we have to do something about my back, I can’t eat [sic] I can’t
sleep [sic] I can’t sit Im [sic]ready to pass out on my feet [sic] I can’t
even go to the bathroom right [sic] I have never had anything hurt this
bad for this long [sic] pain scale of 1 to 10 would be a 10 please help
(Filing No. 74-2, at CM/ECF p. 105).
At this juncture, Nurse Hicks removed Plaintiff from his cell and took him to
a private room to examine his back. Once there she identified and palpated a lump
around the area of Foell’s midback and attempted to “massage it away.” Foell
reacted to this with a great deal of pain. (Filing No. 74-1, at CM/ECF p. 7). Nurse
Hicks returned Plaintiff to his cell and did nothing further to address the palpated
but undiagnosed lump or the worsening back pain.

On December 10, 2015, Defendant started work release at the Super 8
Motel where he worked prior to his arrest. Plaintiff recounts that the work was

4

The record indicates that by December 7, 2015, Plaintiff had already been put on
two rounds of antibiotics (cephalexin and clindamycin).

13

physically difficult for him due to pain. However, his supervisor permitted him to
limit his tasks to only those he was able to perform. (Filing No. 74-1, at CM/ECF
pp. 6-7).

On December 13, 2015, Plaintiff received his last dose of his antibiotics.
(Filing No. 74-2, at CM/ECF p. 74). The next day, Nurse Hicks advised Plaintiff that
she had scheduled a dental appointment for him—after his January 7, 2016 LCDC
discharge date. (Filing No. 74-1, at CM/ECF p. 7).
By December 18, 2015, Foell was “begging the Detention Center Staff to
take [him] to the doctor or the Emergency Room because of [his] pain.” (Filing No.
74-1, at CM/ECF p. 8). Plaintiff was so desperate he even asked an LCDC staff
member what would happen if he went to the Emergency Room while on work
release. The staff member advised him that he would be charged with escape.
(Filing No. 74-1, at CM/ECF p. 7). On this same day, Nurse Hicks put Plaintiff on
four Ibuprofen, 200 mg twice daily, and withdrew the Tramadol prescription.

On December 20, 2015, Plaintiff was scheduled for 6-7 hours of work
release. However, after working just an hour, he had to return to LCDC due to
severe back pain. For the remainder of the day, Foell struggled to get up from his
bunk for count or to eat. At 7:00 p.m. that evening, Foell sent another
communication to Nurse Hicks via the kiosk to state that the medication was not
working, pleading that, “nobody should have [sic] hurt this bad for this long?”
(Filing No. 74-1, at CM/ECF p. 21). Nurse Hicks provided no response to Foell that
day.
The next day, Nurse Hicks documented her kiosk reply: “We spoke about
this today at am med pass…we will get the pain under control.” (Id.) Once again,

14

she did not physically examine Plaintiff, take any of his vitals, mention any need to
see a physician, or indicate that she conferred with Dr. Deb Weaver about how to
properly get Plaintiff’s pain under control. Following another conversation through
the cell door’s tray opening, Nurse Hicks put Plaintiff back on 50 mg Tramadol
twice daily and docusate sodium. (Filing No. 74-2, at CM/ECF pp. 80-81).

By December 20, 2015, Plaintiff was no longer physically able to get out of
bed and walk to the kiosk to convey additional medical complaints. Meanwhile, his
back pain continued to progress in severity despite the increased dosages of
Tramadol and Ibuprofen administered by Nurse Hicks. (Filing No. 74-1, at CM/ECF
p. 8). On December 23, 2015, Plaintiff advised the medication aide that he was
experiencing uncontrollable back spasms. (Id. at CM/ECF p. 9). He was not
allowed to see a physician.
The next day, on December 24, 2015, Foell “woke up in excruciating pain
and . . . had difficulty breathing.” (Filing No. 74-1, at CM/ECF p. 9). Observing
these symptoms, Nurse Hicks prescribed Flexeril and docusate sodium. Foell was
not referred for examination by a physician.

But later that day, LCDC staff advised Plaintiff he would be permitted to see
Dr. Deb Weaver—provided he arranged for his own transportation. (Filing No. 741, at CM/ECF p. 9). Plaintiff was in such pain by this point that he needed help
calling his longtime partner to arrange for a ride. He could not button his clothes or
bend over to tie his shoes. Once out the detention center’s door, he required
assistance to make it to the waiting vehicle. (Filing No. 74-1, at CM/ECF p. 9).
When Plaintiff arrived at Dr. Deb Weaver’s office he was seen by Kelly
Lewandowski, APRN. (Filing No. 74-1, at CM/ECF p. 10). This was the first and

15

only time Plaintiff was permitted to see a medical professional other than an LPN
during his detention and subsequent incarceration at LCDC. Lewandowski
promptly referred Plaintiff to the Emergency Room.

At the Great Plains Regional Center Emergency Room, Plaintiff was advised
that he was septic and there was a chance he would not survive. (Filing No. 72, at
CM/ECF p. 12). An MRI established that Plaintiff had developed a large phlegmon
(8 by 6 by 5 centimeters) on his thoracic spine and discitis at the T8-9 level. Foell
was advised that because he may need surgery, he would require emergency
transportation to Kearney Good Samaritan Medical Center where a neurosurgeon
would perform the surgery. (Filing No. 74-1, at CM/ECF p. 10).

While Plaintiff was still in the Emergency Room, Cecilia Childers from the
LCDC staff rushed into the facility with a Medical Discharge form for Plaintiff to
sign. (Id.) The result of this discharge was to excuse the detention center of
financial liability with respect to Plaintiff’s subsequently incurred medical bills.

Plaintiff was then transported by ambulance to Kearney Good Samaritan
Medical Center. There, it was determined that Plaintiff was suffering from an
infection which had caused his C reactive protein to skyrocket to around 120 and
his sedimentation rate to rise to 99 or close to 100. (Filing No. 74-2, at CM/ECF p.
169). Blood cultures from Plaintiff’s labs revealed that the infection was caused by
Staphylococcus Aureus, a bacteria which that had been “brewing” on his spine for
several weeks by the time he got to the emergency room. (Filing No. 72, at
CM/ECF p. 12).

Dr. Jeffrey Sartin, M.D. initially recommended the phlegmon be drained
through interventional radiology percutaneously or surgically. (Filing No. 74-2, at

16

CM/ECF pp. 177–78). Ultimately, an alternative treatment course was undertaken,
whereby Plaintiff was administered intravenous antibiotics and heavy pain killers.
At one point during his hospitalization, Plaintiff was advised that his kidneys were
failing due to the heavy antibiotics he now required. (Filing No. 72, at CM/ECF p.
13). Plaintiff remained at Kearney Good Samaritan Hospital from December 24,
2015, through January 18, 2015. He was then transferred to “stepdown facility”
ICU, where he stayed until February 21, 2016. (Filing No. 74-1, at CM/ECF p. 11).

Upon his discharge, Plaintiff was advised that although the infection on his
thoracic spine had shrunken, it had resulted in a change to the disc height in this
region. (Id.) Ultimately, Plaintiff was given a prescription for painkillers and directed
to follow-up with epidemiologist, Dr. Freitas. (Id.) Plaintiff initially followed up with
Dr. Freitas as directed but was financially unable to continue with the
recommended visits. (Id.)
After his discharge, Plaintiff’s capacity for physical work was diminished due
to the level of pain he continued to experience in his mid-back. (Filing No. 74-1, at
CM/ECF p. 11). Unable to physically keep up with his job at Dairy Queen, Plaintiff
has been homeless since the summer of 2017. (Id.) Plaintiff continues to
experience midback pain but is unable to afford medical care. (Id.)

On May 17, 2016, Plaintiff sent a Political Subdivision Tort Claim to the
Lincoln County Clerk. (Filing No. 1, at CM/ECF p. 2). On June 1, 2016, the Lincoln
County Commissioners voted to take no action and referred the Political
Subdivision Tort Claim to its insurer. (Id.) On March 23, 2017, counsel for the
Plaintiff withdrew the Claim so that the matter could be filed in federal court. (Id.)

17

C.

Analysis

This action is brought pursuant to the provisions of 42 U.S.C. § 1983 and
Neb. Rev. Stat. §13-901–13-927. This court has jurisdiction pursuant to 28 U.S.C.
§ 1331, which grants original jurisdiction to federal district courts over questions of
federal law, and 28 U.S.C. § 1367(a), which grants supplemental jurisdiction over
claims so related to the original jurisdiction claims as to form part of the same case
or controversy.

i.
42 U.S.C.§ 1983: Eighth Amendment Deliberate Indifference to
Medical Needs Claims.
By enacting 42 U.S.C. § 1983, Congress ensured that:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law.
An employee or official need not have complied with state law to be
considered as acting under the color of state law. Under § 1983, liability exists
where the action was taken within the scope of the defendant’s official authority,
even where the individual abused that authority. West v. Atkins, 487 U.S. 42, 49–
50 (1988).
“[D]eliberate indifference to serious medical needs of prisoners constitutes
the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir. 2009) (quoting
Estelle v. Gamble, 429 U.S. 97, 104, (1976)). “This is true whether the indifference
is manifested by prison doctors in their response to the prisoner's needs or by
18

prison guards in intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once prescribed.” Estelle, 429 at 104–
05 (footnotes omitted). “An official who is deliberately indifferent to a prisoner's
medical needs is subject to suit under § 1983.” McRaven, 577 U.S. at 979.

A claim of deliberate indifference to medical needs requires proof of two
components: (1) an objectively serious medical need (“objective component”); and
(2) that prison officials knew of the need but deliberately or recklessly disregarded
it (“subjective component”). Langdon v. Norris, 614 F.3d 445, 459–60 (8th Cir.
2010) (citing Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir. 2005)).

The objective component requires that the alleged deprivation be
adequately serious to constitute an Eighth Amendment violation. Prisoners do not
enjoy a guarantee of unfettered access to health care. Hudson v. McMillian, 503
U.S. 1, 9 (1992). “The objective component of an Eighth Amendment claim is
therefore

contextual

and

responsive

to

‘contemporary

standards

of

decency’ . . . only those deprivations denying the ‘minimal civilized measure of
life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment
violation.” Id. (internal marks omitted). “[W]hen the inmate alleges that the delay in
treatment is the constitutional deprivation, the objective seriousness of the
deprivation should also be measured by reference to the effect of delay in
treatment.” Crowley v. Hedgepeth, 109 F.3d 500, 502 (1997) (quoting Beyerbach
v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995) (quoting Hill v. Dekalb Regional Youth
Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994) (emphasis in Hill) (“An inmate who
complains that delay in medical treatment rose to a constitutional violation must
place verifying medical evidence in the record to establish the detrimental effect of
delay in medical treatment to succeed.”) (footnote omitted). Medical evidence
indicating that a delay in treatment resulted in an adverse effect raises a genuine

19

issue of fact and supports denial of a summary judgment motion. (See, Laughlin
v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005).
The subjective component looks to Defendant’s actual knowledge; whether
the prison official(s) acted with deliberate indifference or recklessly ignored the
prisoner’s medical need. Langdon, 614 F.3d at 460 (“The plaintiff ‘must show more
than negligence, more even than gross negligence, and mere disagreement with
treatment decisions does not rise to the level of a constitutional violation.’”)
(quoting Alberson v. Norris, 458 F.3d 762, 765 (8th Cir.2006) (quoting Estate of
Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.1995)). However, demonstration of
a total deprivation of care is not required either; “[g]rossly incompetent or
inadequate care can [also] constitute deliberate indifference, as can a doctor's
decision to take an easier and less efficacious course of treatment.” Langdon, 614
F.3d at 460 (quoting Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir.1990) (citations
omitted)).

Defendants herein allege a qualified immunity defense, arguing that their
conduct or lack thereof did not, as a matter of law, violate the foregoing
constitutional standards. In determining whether Defendants are entitled to
qualified immunity as a matter of law, the court must determine “(1) whether the
facts alleged or shown, construed in the light most favorable to [the plaintiffs],
establish a violation of a constitutional right, and (2) whether that constitutional
right was clearly established as of [the time of the relevant conduct], such that a
reasonable official would have known that his actions were unlawful.” Krout v.
Goemmer, 583 F.3d 557, 564 (8th Cir. 2009)(citing Pearson v. Callahan, 555 U.S.
223, 232 (2009).

20

The parties do not dispute that a prison official who is deliberately indifferent
to the medical needs of a prisoner violates the prisoner’s Eighth Amendment rights.
Thus, it is uncontested the constitutional right was clearly established at all relevant
times herein. Rather, Defendants challenge whether their actions, as supported by
the evidence and reasonable inferences drawn therefrom and taken in the light
most favorable to Plaintiff, establish deliberate indifference.

The court must therefore apply the two-part deliberate indifference to
medical needs standard to determine whether, as to each defendant, Plaintiff’s
claims are barred by the defense of qualified immunity.

a.

Nurse Hicks

“Whether a prison's medical staff deliberately disregarded the needs of an
inmate is a factually-intensive inquiry.” Meuir v. Greene County Jail Employees,
487 F.3d 1115, 1118 (8th Cir.2007). “The plaintiff-inmate must clear a substantial
evidentiary threshold to show that the prison's medical staff deliberately
disregarded the inmate's needs by administering an inadequate treatment.” Id.
“Grossly incompetent or inadequate care can constitute deliberate indifference.”
Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).

As to Nurse Hicks, Foell has placed evidence in the record—a declaration,
an affidavit, deposition testimony of examining doctor Jeffrey Sartin, M.D.,5 and

5

Q. And are you able to ascertain with any reasonable degree of medical
certainty the cause of the infection in this case or the cause of the phlegmon?
A. Well, the cause was the Staphylococcus aureus germ that was
isolated, yes.
Q. Okay. And you know that because the lab report found a particular germ. Is
that the basis for your opinion, Doctor?

21

medical kite records—which, taken as true, satisfies the objective component of
the analysis. See, Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997) (“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.’” (quoting Camberos v. Branstad, 73 F.3d
174, 176 (8th Cir. 1995). Foell suffered from a staph infection that increased in
severity over several weeks, resulting in increasing back pain, the appearance of
an unidentified mass on his thoracic spine, and in later weeks, his difficulty
breathing, eating, sleeping, or sitting upright. Despite his continued complaints and
requests, he was denied access to a physician.

Defendant Hicks has produced no documentation of any evaluation or
assessment she made on Plaintiff and admits that “if it’s not documented, it didn’t
happen.” (Filing No. 74-2, at CM/ECF p. 154). Nor has she produced
documentation of even a single phone call or other communication showing that
her assessment, diagnosis, and ongoing treatment of Plaintiff was at the direction
of a licensed doctor or even a registered nurse.

Considered in the light most favorable to Plaintiff, and fully supported by the
evidence and Nurse Hicks’ own statements, a reasonable jury could conclude that
Nurse Hicks inadequately responded to Plaintiff’s continued complaints, perhaps
because she acted beyond the scope of her medical education and LPN license
when providing Plaintiff’s diagnosis and treatment, and she failed to use
appropriate judgment when administering safe nursing practices The evidence

A. Yes. So he had blood cultures showing the Staphylococcus aureus. And I
think in this situation with the disc infection and the blood culture showing
staph, I think there's, you know, virtual certainty that that's the cause of discitis.
(Filing No. 74-2, at CM/ECF p. 172).

22

supports a finding that as a LPN and trained medical professional, Nurse Hicks
was aware of the serious risks associated with the symptoms Foell was exhibiting
and was aware or clearly should have been aware of the serious underlying
conditions that accompany infection and unexplained severe back pain—
particularly when accompanied by her palpation of an unexplained and painful
lump, and that she failed to actually examine and evaluate Plaintiff before
prescribing medications. A reasonable jury could further find that by the time Foell
was allowed to see Dr. Weaver’s APRN, on the condition that he arrange his own
transportation, his untreated staph infection had progressed to cause a lifethreatening sepsis, T8-T9 diskitis with a large (8 x 6 x 5 cent.) phlegmon, and a
Methicillin-susceptible Staphylococcus Aureus (MSSA) bacteremia, later resulting
in an acute kidney injury due to the necessary heavy dosage of antibiotics.

Plaintiff has therefore submitted evidence to support both the objective
seriousness caused by Nurse Hicks’ treatment actions and omissions and the
deleterious results of her delay in denying Foell’s ability to be evaluated by a
physician, and her reckless or intentional failure to address Plaintiff’s medical
needs. Defendant Hicks is therefore not entitled to qualified immunity as a matter
of law on Plaintiff’s claim of deliberate indifference to his serious medical needs in
violation of the Eighth Amendment.

b.

Sheriff Kramer

The objective component of the “deliberate indifference” claim is applicable
to all Defendants. Having clearly established that Foell suffered from a serious
medical need, an untreated staph infection on his spine that “brew[ed]” for weeks
before he was permitted to see a physician, the court moves to the subjective
component as applied to Sheriff Kramer. (See, Filing No. 74-2, at CM/ECF p. 175).

23

‘Supervisors are not liable for Eighth Amendment claims brought under
section 1983 on a respondeat superior theory.” Fruit v. Norris, 905 F.2d 1147, 1151
(8th Cir. 1990). Personal involvement of supervisory officials, like that of Sheriff
Kramer, therefore constitutes the touchstone of their liability. In other words, “if the
acts complained of were done at the direction or with the knowledge or consent of
a defendant supervisor then the defendant supervisor can be held liable.” See,
Howard v. Adkinson, 887 F.2d 134, (8th Cir. 1989).
Defendant Kramer argues that because “Plaintiff was one of the 112 inmates
at the Detention Center and he did not know anything about the Plaintiff’s
Condition,” or “the specific circumstances that led to the Plaintiff needing a medical
release on December 24, 2015,” or “how Plaintiff was medically taken care of when
he was in custody in November and December 2015,” he was not “personally
involved in causing the deprivation of a constitutional right” and is therefore
shielded by qualified immunity. (Filing No. 65, at CM/ECF pp. 16–17) (quoting
Tripleet v. Azordegan, 570 F.2d 819, 823 (8th Cir. 1978).

Based on the evidnce before the court, as a chief supervisory figure for
Lincoln County, Sheriff Kramer created, presented, and approved a program
which, by its very design, enabled an LPN to diagnose medical problems and
render treatment without contacting a doctor, and to unilaterally decide when a
doctor was needed. (See, Filing 74-2). The evidence indicates that Sheriff Kramer
promoted and allowed the use of medical “protocols” that permitted an LPN to
diagnose conditions and prescribe prescription medications with full knowledge
that Dr. Deb Weaver would not physically see or evaluate the inmates absent
“extreme circumstances.” Although Sheriff Kramer personally designed the
county’s new medical program, and he hired an LPN to implement it, he admittedly

24

did not supervise Nurse Hicks or otherwise assure that she was not implementing
his plan in a manner which provided medical care to detainees and inmates
beyond the qualifications of Nurse Hicks’ license.6 A jury could therefore find that
Sheriff Kramer’s plan, his decision to hire an LPN to be onsite, and his lack of any
supervision to make sure she was actually consulting with a doctor before
rendering a diagnosis and prescribing medication thereby effectively denied
Plaintiff’s access to a competent medical evaluation under life-threatening
circumstances.

Q: And you understand what the limit of a licensed practical nurse’s practice is?
A: Between the two of them, they would figure out what was beyond her
means and what needed to be done with that—with that patient.
Q: Did you—do you know whether or not a licensed practical nurse can
prescribe medicine?
A: Yes, I do.
Q: And—what’s your understanding?
A: They need to have a doctor prescribe medicine. That’s part of the reason
we have a doctor in the loop.
Q: And do you understand that in order for a doctor to prescribe medicine, that
doctor needs to see the patient?
6

...
A: I know that the doctor and the nurse know what—what is a proper
procedure for medicating a patient.
Q: So you didn’t do any independent research on your own to find out
whether or not your plan would meet with the law.
A: I know my plan would meet with the law because I have a doctor and I have a
nurse and they know how to prescribe medicine.
Q: So you did not do anything independently—other than knowing that you
had a doctor who would tell your nurse if she had a question, you did no further
research than that.
A: I knew I was properly staffed; yes, I did.
Q: And what did you do to insure that was accurate?
A: I hired a doctor and a nurse.
(Deposition of Sheriff Kramer, Filing No. 74-2, pp. 116-17).

25

Defendant Kramer is not entitled to qualified immunity as a matter of law on
Foell’s Eighth Amendment claim of deliberate indifference to his medical needs.

c.

John Does 1-10

Plaintiff alleges that John Does 1-10 (unnamed prison officials) are also
liable for their deliberate indifference to Plaintiff’s serious medical needs for their
failure to make sure Foell received adequate medical care. (Filing No. 1, at
CM/ECF pp. 10-11).

Defendants counter that their motion for summary judgment should be
granted as to John Does 1-10. (Filing No. 65, at CM/ECF pp. 16–17.) Defendants
argue that Plaintiff’s Complaint was filed in March 2017, and Plaintiff has yet to
establish who these individuals are and what they specifically did or failed to do.
(Filing No. 65, at CM/ECF pp. 16–17). Additionally, Defendants allege that Plaintiff
has offered no evidence the unidentified John Does 1-10 had actual or even
constructive knowledge of the Plaintiff’s medical needs or that those needs were
not being met. (Id.) In the absence of such facts, Defendants argue the plaintiff
cannot prove the John Doe defendants acted with deliberate indifference in
violation of Plaintiff’s constitutional rights. (Id.)

Plaintiff did not address Defendants’ motion for summary judgment with
respect to John Does 1-10 in his opposition briefing.

The court finds that Plaintiff has not alleged facts to establish John Does 110 violated any constitutional right. Although Plaintiff’s complaint was filed more
than two years ago, he has yet to name these Defendants or explain with specificity
how they are responsible for Plaintiff’s alleged lack of access to proper medical

26

care. Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir. 2009). Summary judgment
will be granted in favor of John Does 1-10.

d.

Lincoln County

Policy or Custom.

In Monell v. Department of Social Services of the City of New York, 436 U.S.
658 (1978), the Supreme Court held:
[A] local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when
execution of a government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an
entity is responsible for under § 1983.
Id. at 694. Thus, “a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Id. at 691. It follows that “[a] government entity may not be held
liable under 42 U.S.C. § 1983 unless a policy, practice, or custom of the entity can
be shown to be a moving force behind a violation of constitutional rights.”
Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011)(emphasis supplied).

Plaintiff has alleged that various policies, practices, and customs of Lincoln
County unconstitutionally infringed on his rights. (Filing No. 72, at CM/ECF p. 18).
Plaintiff contends that as final policymaker for the Lincoln County, Sheriff Kramer
signed off on policies that unlawfully permitted an LPN to practice medicine and
prescribe medication to inmates based upon protocols that Dr. Deb. Weaver, as
the county’s medical director, approved. (Filing No. 73, at CM/ECF p. 18). Plaintiff
further challenges LCDC’s practice and custom of failing to maintain patient
records, permitting a licensed nurse to serve as “gatekeeper” to an inmate’s ability
27

to see a physician, and the practice of allowing inmates access to a physician only
when they are so sick that they face possible hospitalization. (Filing No. 72, at
CM/ECF p. 18). Finally, Plaintiff challenges the policy which allowed the county to
medically discharge Foell while he was critically ill in the emergency room, thereby
avoiding liability for his medical expenses. (Filing No. 72, at CM/ECF p. 18).
Plaintiff argues that his Eighth Amendment rights were violated through execution
of these official practices, customs, and policies of the County of Lincoln.
In support of his claim, Plaintiff points to Lincoln County’s policies governing
the medical treatment provided to pretrial detainees and inmates. Construing the
facts and all justifiable inferences in Plaintiff’s favor, a jury could find that Lincoln
County’s protocols7 and practices8 led to Foell’s serious deprivation of medical
care while incarcerated. See, Bd. Of County Comm’rs v. Brown, 520 U.S. 397, 404
(1997) (A plaintiff must demonstrate “a direct causal link between the municipal
action and the deprivation of federal rights.” For this reason, the county is not
immune from suit.

Failure to Train.
“[T]here are limited circumstances in which an allegation of a ‘failure to train’
can be the basis for liability under § 1983.” City of Canton, Ohio v. Harris, 489 U.S.
378, 387 (1989). The issue, in such cases, will hinge on whether the “training
program is adequate; and if it is not, the question becomes whether such
inadequate training can justifiably be said to represent ‘city policy.’” Id. at 390.

7

For example, protocols that permitted the unauthorized practice of medicine,
dentistry, and for a nurse to prescribe or withdraw prescription medication.
8

Such as, allowing a LPN full discretion in deciding which inmates are allowed to
see a doctor.

28

It may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need. In that event, the failure to
provide proper training may fairly be said to represent a policy for
which the city is responsible, and for which the city may be held liable
if it actually causes injury.
(Id. )

Plaintiff argues that Sheriff Kramer, as final policymaker for Lincoln County
and commanding officer of Nurse Hicks and other prison officials, failed to train
and supervise LCDC staff as to the medical care to which inmates were
constitutionally entitled. (Id.) Lincoln County has not addressed Plaintiff’s Monell
claim as it relates to the county’s failure to provide proper training.

Based on the evidence cited by Plaintiff, the court finds that Dr. Weaver
developed “protocols” for Nurse Hicks to follow. There is no evidence regarding
what training, if any, she received on implementing those protocols or protocol
exceptions as appropriate. There is also no evidence of what the training should
have been or how that training could have changed the outcome as to Plaintiff. So,
even assuming Nurse Hicks was wholly untrained by Lincoln County, there is no
evidence of any causal link between the alleged lack of training and Plaintiff’s
injuries and damages. Plantiff’s claim based on failure to train must therefore be
dismissed.

29

ii.

Negligence Claims.

a.

Immunity.

Plaintiff alleges he is entitled to recover against the defendants on common
law negligence theories. As a political subdivision of Nebraska, Lincoln County is
shielded by immunity from tort recovery unless it has expressly waived this
immunity. See, e.g., Doe v. Bd. of Regents of Univ. Of Neb., 280 Neb. 492 (2010).
As applicable to this case, any governmental immunity applicable to the County’s
immunity is set forth in the Political Subdivision Tort Claims Act (“PSTCA”), Neb.
Rev. Stat § 13-910 (Cum. Supp. 2017).

The PSTCA includes limited waivers of immunity, subject to statutory
exceptions. Kimmina v. City of Hastings, 291 Neb. 133, 141 (2015). It further
provides that claims against a political subdivision employee for acts and
omissions performed in the course and scope of employment are deemed actions
against the county and not the employee personally. See Cappel v. State, 298
Neb. 445, 452 (2018).

Here, Plaintiff has alleged state negligence claims: (1) against Defendant
Kramer for his failure to provide safe and timely medical care;9 and (2) against
Defendant Hicks for her breach of the applicable standard of nursing care. (Filing
No. 1 ¶¶ 1–34; 49–55, at CM/ECF pp. 1–9, 13–14). The parties apparently agree

Plaintiff’s original complaint also named the staff of LCDC, in their individual and
official capacities. However, as Plaintiff has not addressed these Defendants in his
opposition to Defendants’ summary judgment motion, and has not pleaded with specificity
any alleged wrongful acts or ommissions by the staff or its specific members, the court
deems Defendants’ summary judgment motion granted as to the detention center staff.
9

30

that as to the claims alleged, Kramer and Hicks were acting within the scope of his
or her public employment. Lamb v. Fraternal Order of Police Lodge No. 36, 293
Neb. 138, 146 (2016). As such, the alleged negligence claims against Defendants
Kramer and Hicks are actions against Lincoln County, and except as permitted
under the statutory waiver set forth in Nebraska’s PSTCA, Lincoln County is
immune from liability for such claims.

The remaining question presented is whether, under the facts presented,
the language of the PSTCA waives the County’s immunity from suit on Plaintiff’s
common law negligence claims. The County does not dispute that Plaintiff
complied with the procedural prerequisites of the PSTCA. But the parties disagree
on whether the County retains immunity under the “discretionary function”
exception of the PSTCA. Under that exception, the PSTCA does not waive the
County’s immunity as to “any claim based upon the exercise or performance of or
the failure to exercise or perform a discretionary function or duty on the part of the
political subdivision or an employee of the political subdivision, whether or not the
discretion is abused.” Nev. Rev. Stat. § 13-910(2). See also, Neb. Rev. Stat. § 81–
8,219(1) (the State Tort Claims Act (“SCTA”) containing similar language).
The purpose of discretionary function immunity “is to prevent judicial
‘second-guessing’ of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” A.B. v.
Millard Public School Dist., 2009 WL 725974 * 3 (Dist. Neb. 2009). Discretionary
function immunity extends to only basic policy decisions. It does not apply to
discretionary acts performed at an operational level.

Examples of discretionary functions include the initiation of programs
and activities, establishment of plans and schedules, and judgmental
decisions within a broad regulatory framework lacking specific
31

standards. The exception, properly construed, therefore protects only
governmental actions and decisions based on considerations of
public policy. The political subdivision remains liable for negligence of
its employees at the operational level, where there is no room for
policy judgment.
A.B. v. Millard Public School Dist., 2009 WL 725974 * 3 (Dist. Neb. 2009) (quoting
Doe v. Omaha Public School Dist., 727 N.W. 2d 447, 456–57 (Neb. 2007).
As an initial matter, Plaintiff contends that Defendants cannot raise the
discretionary function exemption because they failed to allege it in their answer or
at any time prior to moving for summary judgment. (Filing No. 72, at CM/ECF p.
19). Prior to 2017, the discretionary function exemption was considered a defense
which must be affirmatively pleaded. But Davis v. State, 297 Neb. 955, 961 (2017),
reversed that holding, explaining:
We overrule Nebraska cases holding that an exception to the State’s
waiver of immunity for tort claims under the STCA is an affirmative
defense that the State must plead and prove. Because the exceptions
are jurisdictional in nature, we hold that a court can consider an STCA
exception sua sponte or on appeal.
...
[C]ourts have a duty to determine whether they have subject matter
jurisdiction over a matter, treating the STCA exceptions as waivable
affirmative defenses places courts in an impossible position when a
jurisdictional problem appears on the face of a plaintiff’s complaint.
Davis v. State, 297 Neb. 955, 961, 978 (2017). See also, Big Crow v. City of
Rushville, 266 Neb. 750 (2003) (“[W]here language in the PSTCA is similar to
language in the [SCTA], cases construing the one statute are applicable to
construction of the other.”). Applying the current Nebraska law as enunciated in
Davis, the discretionary function exception to immunity is not an affirmative
defense which is waived if not pleaded. Even absent any allegation raising the
32

discretionary function exception, the court must decide whether the exception is
applicable to determine whether it has subject-matter jurisdiction to adjudicate
Plaintiff’s tort claims against the County.

Courts apply a two-step analysis to determine whether the discretionary
function exception of the PSTCA affords immunity. Shipley v. Dept. of Roads, 283
Neb. 832, 840 (2012). The court must first determine whether the alleged negligent
act or omission was a matter of choice for the acting employee. If the employee’s
conduct was specifically prescribed by statute, regulation, or policy such that the
employee “has no rightful option but to adhere to the directive,” the employee’s
conduct was not discretionary. Berkovitz v. United States, 486 U.S. 531, 536
(1988). But if the challenged conduct was performed based on an employee’s
judgment or choice, the discretionary function exemption may preserve a political
subdivision’s immunity from tort liability. Assuming the employee’s challenged
conduct was based on a judgment or choice, the court must then decide whether
the discretionary function exception was designed to shield that conduct. (Id. at
840). The principal focus of this second part of the test is on “the nature of the
actions taken and on whether they are susceptible to policy analysis.” United
States v. Gaubert, 499 U.S. 315, 325 (1991). Decisions regarding how to best use
local and limited governmental resources are based on legislative judgments. The
discretionary function exception was enacted to shield governmental entities from
lawsuits challenging this type of decision or judgment. See, Kiehn v. United States,
984 F.2d 1100, 1107 (10th Cir. 1993); Fang v. United States, 140 F.3d 1238 (9th
Cir. 1998). On the other hand, if the Plaintiff’s claims do not challenge actions
which are the product of competing policy-based judgments and decisions, the
political subdivision cannot claim immunity based on the discretionary function
exception. Political subdivisions are not entitled to the immunity preserved under
the discretionary function exception, and remain liable for the negligence of their

33

employees at the operational level, if the employee decisions were not based on
policy judgments.

Defendants contend that claims based on alleged negligence in instituting
inmate medical care policies and in failing to develop adequate protocols for
deciding when emergency care is required are discretionary functions. Defendants
argue the discretionary function exemption affords them immunity, thereby
protecting them from lawsuits like the Plaintiff’s. (Filing No. 65, at CM/ECF p. 27).
Plaintiff disagrees, arguing “[t]he discretionary function exception is not available
to claims challenging the actual administration of medical care by governmental
employees,” noting Nurse Hicks herself denied having any policymaking authority.
(Filing No. 72, at CM/ECF p. 19).
As applied to Plaintiff’s claims, Sheriff Kramer’s and Nurse Hicks’ challenged
conduct was fundamentally different and must be separately evaluated. Under the
evidence presented, Sheriff Kramer’s decisions regarding LCDC’s program for
medical services, related budgetary allocations, and the institution of protocols
thereto were policy-based choices on how to properly allocate and use limited
resources without the judicial branch second-guessing their legislative or
administrative decisions. Sheriff Kramer’s alleged conduct therefore involved the
discretionary balancing of interests—the pros and cons of retaining a third party
resource to provide detainee and inmate medical care compared to handling such
responsibilities in-house by hiring a nurse, retaining a doctor, and implementing
protocols and procedures to administer medical care. In this case, Sheriff Kramer’s
alleged negligence was proposing and implementing a cost-saving program for
affording medical care which, in turn, resulted in inadequate care provided to
Plaintiff. Sheriff Kramer’s alleged negligent conduct was policy-based and

34

discretionary. The County is therefore immune from lawsuits challenging that
conduct under the discretionary function exemption to the PSTCA.
But once the County’s policy decisions, and the programs created based on
those decisions, were implemented, “the policy shield of the discretionary function
exception disappears.” Fang, 140 F.3d 1238, 1242 (1998). Claims which challenge
the actual administration of medical care based on the choices and decisions made
by employees are not afforded immunity.10 Fang, 140 F.3d at 1241–42. “[T]he need
to protect the exercise of policy judgment from the spectre of tort liability does not
mean that Congress intended a mere medical error or mistake to be similarly
shielded.” Id. at 1241.
Here, Nurse Hicks was hired to implement the County’s program for inmate
medical care, and she allegedly failed to appropriately assess and treat, and to
properly refer Foell to a physician. Plaintiff’s allegations against Defendant Hicks
do not challenge policy-based decisions. Instead, Plaintiff alleges Hicks provided
medical care below the standard owed to the Plaintiff.

For the foregoing reasons, the court finds that the discretionary function
exception to the PSTCA’s immunity waiver does not apply to Defendant Hicks. The
PSTCA waives the County’s immunity as to allegations that Hicks was negligent.
But as to Defendant Kramer, the PSTCA’s waiver of immunity is inapplicable; that
is, the County has not waived its immunity and this court lacks subject matter

10

Policy-based choices entail those legislative and administrative choices
grounded in social, economic, and political strategy. McGauley v. Washington County,
297 Neb. 134, 139 (Neb. 2017).

35

jurisdiction to decide whether Sheriff Kramer’s alleged conduct--all of which was
policy-based—was negligent.11

b.

Proximate Cause

Finally, Defendant argues that Plaintiff’s third and fourth negligence claims
must fail because there is no evidence the alleged negligence was a proximate
cause of Plaintiff’s injuries. As a preliminary matter, as to claims alleging Sheriff
Kramer was negligent, the County is immune from suit. Therefore, the sole
remaining question is whether there is a genuine issue of material fact as to
Plaintiff’s negligence claim against Nurse Hicks.
Applying federal procedural law to the pending summary judgment motion,12
Foell bears the burden of presenting evidence to support each element of his prima
facie case. Where medical malpractice is alleged, a plaintiff must show “(1) the
applicable standard of care, (2) that the defendant(s) deviated from that standard
of care, and (3) that this deviation was the proximate cause of the plaintiff's harm.”
Thone v. Regional West Medical Center, 275 Neb. 238, 242 (Neb. 2008). In
response to Defendant’s motion, Plaintiff must therefore present evidence that

It is further noted, “where a plaintiff's tort claim is based on the mere fact of
government employment (such as a respondeat superior claim) or on the employment
relationship between the intentional tort-feasor and the government (such as a negligent
supervision or negligent hiring claim), the intentional torts exception applies and the
political subdivision is immune from suit.” Britton v. City of Crawford, 282 Neb. 374, 386
(2011).
11

12

Unlike Nebraska summary judgment practice, (see Kaiser v. Union Pac. R.R.
Co., 927 N.W.2d 808, 816 (Neb. 2019)), a defendant moving for summary judgment in a
federal case need only show that Plaintiff has no evidence to support an element of a
claim for which Plaintiff bears the burden of proof. A defendant moving for summary
judgment need not first present evidence refuting the elements of Plaintiff’s claims.
Celotex, 477 U.S. at 325.
Here, the procedural distinction is not outcome determinative. Applying either
standard, Plaintiff has produced ample evidence to support his claim.

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Nurse Hicks committed professional negligence when caring for and treating Foell
and that such negligence was the proximate cause of Foell’s harm. Id.
A defendant’s negligence is not actionable unless it proximately causes the
plaintiff’s injuries or proximately contributed to them. Hamilton v. Bares, 267 Neb.
816, 678 N.W.2d 74 (2004). A proximate cause is that which produces a result in
a natural and continuous sequence and without which the result would not have
occurred. Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 17 (2010). A
defendant’s conduct is a proximate cause of an event if the event would not have
occurred but for that conduct, but it is not a proximate cause if the event would
have occurred without that conduct. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d
282 (2007).
Defendant argues Foell’s negligence claim must fail as a matter of law
because Defendants’ expert, Dr. Eduardo Freitas, MD,13 opines that Nurse Hicks
provided nursing care consistent with the applicable professional standards, the
cause and timeframe of the Plaintiff’s infection cannot be determined, and Nurse
Hicks’ actions or inactions did not proximately contribute to Plaintiff’s injuries.
(Filing No. 66, at CM/ECF pp. 37–42). For these reasons, Defendant argues that
Plaintiff will be unable to demonstrate proximate causation. (Filing No. 65, at
CM/ECF pp. 32–33).

As a general matter, a plaintiff seeking recovery under medical malpractice
law must present expert testimony to identify the applicable standard of care. See,
Fossett v. Board of Regents, 258 Neb. 703 (2000). However, the Nebraska
Supreme Court has “long recognized that a party can make a prima facie case of

13

Board Certified in Infectious Diseases. (Filing No. 66, ¶ 1 at CM/ECF p. 37).

37

professional negligence even without expert testimony in cases where ‘the
evidence and the circumstances are such that the recognition of the alleged
negligence may be presumed to be within the comprehension of laymen.’” Thone,
275 Neb. at 904 (quoting Halligan v. Cotton, 193 Neb. 331, 336 (1975).
Although Plaintiff has produced expert testimony of Foell’s examining
physician and Board-Certified Infectious Disease doctor, Jeffrey Sartin, M.D., 14
none of Dr. Sartin’s deposition testimony addresses the applicable standard of
professional nursing care for a licensed nurse. Nevertheless, the court finds based
on the “evidence and circumstances” presented, that this case involves the type of
“extreme and obvious misconduct” sufficient to trigger the “common-knowledge
exception.” Thone, 275 Neb. at 243–44. Under the common knowledge exception,
“[n]o expert testimony is required in order to show that the failure to attend a patient
altogether does not constitute reasonable care when common sense indicates
that, without attention, the patient may suffer serious consequences.” Id. at 244
(quoting 1 David W. Louisell & Harold Williams, Medical Malpractice § 8.05[4] at
8–81 (2007)).

Even if the precise date of the infection cannot be determined, a jury could
find, based on common sense, that due to Nurse Hicks’ consistent refusal to allow
Plaintiff to be evaluated by a physician—even after she palpated the painful and
unexplained lump on his back—Plaintiff endured (and fortunately survived) a
fulminating infection, sepsis, and related pain. Dr. Sartin testified that Foell had an
infection that had been “brewing” for several weeks, which he could ascertain with
a reasonable degree of medical certainty was caused by Staphylococcus Aureus
14

See Filing No. 74-2, at CM/ECF pp. 167-180. (Deposition of Jeffrey Sartin, M.D.,
taken before Morgan M. Catania, RPR, CSR(IA), General Notary Public within and for the
State of Nebraska, beginning at 12:58 p.m., on April 5, 2018, at Infectious Diseases and
Epidemiologist Associates, 17030 Lakeside Hills Plaza, Suite 202, Omaha, Nebraska).

38

based on Foell’s blood cultures. (Filing No. 74-2, at CM/ECF p. 172). Dr. Sartin
further testified that considering the extent of infection present, the Cephalexin and
Clindamycin prescribed by Nurse Hicks would not fully treat Foell’s staph infection.
Dr. Deb Weaver indicated that had she been allowed to see Foell, she would have
taken his vital signs, and possibly blood samples, in addition to testing his Creactive protein.

Based upon the evidence of record, a jury could find that Nurse Hicks
unlawfully prescribed antibiotics and controlled substance painkillers based on a
differential diagnosis she was not qualified to make--whether due to the lack of
adequate medical training or the lack of any actual evaluation of Plaintiff’s
complaints and medical condition. Proving a deviation from the standard of care
can be “straightforward,” requiring nothing more than “credible testimony from a
lay witness.” Thone, 275 Neb. at 907. Here, Dr. Sartin’s testimony and Plaintiff’s
declaration show there is a genuine issue of material fact as to whether Nurse
Hicks failed to exercise the standard of care owed by nursing professionals.15
Plaintiff’s failure to produce expert testimony on the applicable professional
standard of care for nurses or on the issue of proximate cause does not support
granting summary judgment in favor of Nurse Hicks.

15

The court notes that Nurse Hicks could arguably be held to the standard of care
owed by a physician since she performed the services of a physician--diagnosis and
treatment requiring a medical degree—and allegedly did so without a doctor’s supervision
or case-specific direction.

39

Accordingly,

IT IS ORDERED:

1)

Plaintiff’s Motion to Strike Defendants’ Expert Affidavits, Filing No. 69,
is denied. Plaintiff is afforded until August 9, 2019 to depose
Defendants’ experts and if he chooses to do so, may disclose
responsive experts on or before September 6, 2019.

2)

Plaintiff’s Motion to Strike the letter from Laura Kubitz, Filing No. 84,
is granted.

3)

Defendants’ Motion for Summary Judgment, (Filing No. 64), is granted
in part and denied in part as follows:
a. Defendants’ motion is granted in its entirety as to John Does 1-10,
including but not necessarily limited to “the staff of LCDC, in their
individual and official capacities.”
b. Defendants’ motion is denied in its entirety as to Defendants Hicks
and Kramer with respect to Plaintiff’s 42 U.S.C. § 1983 claim for
Cruel and Unusual Punishment under the Eighth Amendment.
c. Defendants’ motion is granted as to Plaintiff’s “Failure to Train”
claim and denied as to Plaintiff’s “Policy or Custom” claim as to the
County of Lincoln with respect to Plaintiff’s 42 U.S.C. § 1983 claim
for Cruel and Unusual Punishment under the Eighth Amendment.
d. Defendants’ motion is granted as to Plaintiff’s state law claim for
negligence against Sheriff Kramer; governmental immunity is
afforded under the discretionary function exemption to the Political
Subdivision Tort Claims Act. Neb. Rev. Stat. § § 13-901 et seq.
e. Defendants’ motion is denied as to Plaintiff’s PSTCA claim for
negligence against Defendant Hicks.

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4)

For good cause shown, Defendants’ motion to continue the trial,
(Filing No. 93), is granted. The parties’ efforts toward settlement
should continue, with Judge Bazis’ assistance as needed. The parties
shall contact my chambers on or before July 26, 2019 to re-schedule
the trial and if necessary, Plaintiff’s expert deposition deadline and
expert disclosure deadline.

Dated this 9th day of July, 2019.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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