Garcia v. US Marshalls et al

Filing 47

MEMORANDUM AND ORDER - Defendant's Motion for Summary Judgment (filing 45 ) is granted, and this case is dismissed with prejudice. A separate judgment will be entered. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELEAZAR GARCIA,
Plaintiff,

4:20CV3049

vs.
MEMORANDUM AND ORDER
JEFF DAVIS, Sarpy County Sheriff, in
his individual capacity;
Defendant.
This matter is before the court on Defendant’s Motion for Summary
Judgment. (Filing 45). For the reasons that follow, the Motion is granted.
I. BACKGROUND
Pursuant to 42 U.S.C. § 1983, Plaintiff filed a Complaint (filing 1) and
Amended Complaint (filing 22), alleging that during his arrest on September 30,
2017, in Underwood, Iowa, U.S. Marshals severely injured his arm. Plaintiff was
taken to a hospital in Council Bluffs, Iowa, where a doctor recommended that he
undergo surgery as soon as possible. Surgery was scheduled for two days later,
which was a Monday. Plaintiff was taken to the Pottawattamie County Jail in Iowa
for holding over the weekend.
On Monday, the U.S. Marshals picked Plaintiff up from the jail and
transported him to the Sarpy County Jail instead of to the hospital for surgery. When
Plaintiff arrived at the Sarpy County Jail, he asked to be taken to the hospital or for
pain medication because the pain was causing him to feel faint. Plaintiff claims
“[t]hey just came by to look at [him] but did nothing to help [him].” (Filing 1 at
CM/ECF p. 6.) He further claims he “did not get the proper medical attention he
needed” from the Sarpy County Jail staff. (Filing 22 at CM/ECF p. 2.)

Plaintiff alleges that two weeks later, he was taken to see a doctor at an offsite clinic, where he was told that he needed surgery as soon as possible. Plaintiff
asserts that two weeks later, on October 30, 2017, he had surgery. While the doctor
recommended that Plaintiff stay overnight in the hospital, jail staff disagreed and
ordered Plaintiff to return to the Sarpy County Jail three hours after surgery was
complete. Plaintiff alleges that after returning to the jail, he repeatedly asked for, but
was denied, pain medication for his “excruciating” pain. (Filing 1 at CM/ECF p. 7.)
At a follow-up appointment two weeks later with his surgeon, he was told,
after more x-rays, that he needed a second surgery to replace his elbow. Plaintiff
underwent surgery on November 30, 2017 and was allowed to stay the night in the
hospital so he could receive pain medication. At his three-week follow-up
appointment, the surgeon told Plaintiff there was nothing further that could be done.
Since that time, a neurologist advised Plaintiff that he has severe nerve and tendon
damage, which prevents Plaintiff from fully extending his arm and causes chronic
daily pain. The neurologist advised Plaintiff he “would have to be on disability for
the rest of [his] life.” (Id. at CM/ECF p. 8.)
Plaintiff alleges that Jeff Davis, Sarpy County Sheriff (“Sheriff Davis” or
“Defendant”), “is responsible for the lack of medical attention [Plaintiff] received
from [Sheriff Davis’s] staff.” (Filing 22 at CM/ECF p. 2.) Plaintiff requests
$2,000,000 in damages. (Filing 1 at CM/ECF p. 9.)
After initial review of Plaintiff’s Complaint (id.) and Amended Complaint
(Filing 22), the court determined that Plaintiff plausibly stated claims against Sheriff
Davis in his individual capacity for deliberate indifference to Plaintiff’s serious
medical needs when Plaintiff was a pretrial detainee. (Filing 24.)1 Sheriff Davis now
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The court also determined that Plaintiff plausibly stated claims against
Special Deputy U.S. Marshals David Coombs, Jr., and Jacob Betsworth in their
individual capacities for excessive force. (Filing 24.) The court later dismissed those
claims as barred by the statute of limitations. (Filing 38.)
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moves for summary judgment based on qualified immunity and lack of evidentiary
support. (Filings 45 & 46.)
II. SUMMARY JUDGMENT STANDARD
“A party may move for summary judgment, identifying each claim or
defense—or the part of each claim or defense—on which summary judgment is
sought. The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law. The court should state on the record the reasons for granting or
denying the motion.” Fed. R. Civ. P. 56(a).
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. See 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. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51 (1986); Bell v.
Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999), abrogated on other grounds by
Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011).
“There is a genuine dispute when the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Dick v. Dickinson State Univ., 826
F.3d 1054, 1061 (8th Cir. 2016) (internal quotations and citations omitted). “A fact
is material if it ‘might affect the outcome of the suit.’” Id. (quoting Anderson, 477
U.S. at 248).
The moving party bears the initial responsibility of informing the court of the
basis for the motion and must identify those portions of the record which the moving

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party believes show the lack of a genuine issue of material fact.2 Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party
does so, the burden then shifts to the nonmoving party, who “may not rest upon mere
allegation or denials of his pleading, but must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 256. If the record taken as
a whole could not lead a rational trier of fact to find for the nonmoving party,
summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946
F.3d 420, 424 (8th Cir. 2019).
III. SUMMARY JUDGMENT PROCEDURE
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
This court’s local rules further specify that “[t]he moving party must include
in the brief in support of the summary judgment motion a separate statement of
This burden “may be discharged by ‘showing’—that is, pointing out to the
district court—that there is an absence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “The moving party can
satisfy its burden in either of two ways: it can produce evidence negating an essential
element of the nonmoving party’s case, or it can show that the nonmoving party does
not have enough evidence of an essential element of its claim to carry its ultimate
burden of persuasion at trial.” Bedford v. Doe, 880 F.3d 993, 996 (8th Cir. 2018).
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material facts,” which “should consist of short numbered paragraphs, each
containing pinpoint references to affidavits, pleadings, discovery responses,
deposition testimony (by page and line), or other materials that support the material
facts stated in the paragraph.” NECivR 56.1(a) (underlining in original). “The
statement must not contain legal conclusions.” Id.
The opposing party’s brief must include “a concise response to the moving
party’s statement of material facts.” NECivR 56.1(b)(1). “Each material fact in the
response must be set forth in a separate numbered paragraph, must include pinpoint
references to affidavits, pleadings, discovery responses, deposition testimony (by
page and line), or other materials upon which the opposing party relies, and, if
applicable, must state the number of the paragraph in the movant’s statement of
material facts that is disputed.” Id.
A party’s failure to comply with these requirements can have serious
consequences: The moving party’s “[f]ailure to submit a statement of facts” or
“[f]ailure to provide citations to the exact locations in the record supporting the
factual allegations may be grounds to deny the motion for summary judgment.”
NECivR 56.1(1)(a) (underlining omitted). On the other hand, “[p]roperly referenced
material facts in the movant’s statement are considered admitted unless controverted
in the opposing party’s response.” NECivR 56.1(1)(b)(1) (underlining omitted).
IV. EVIDENCE PRESENTED
In this case, Defendant’s brief in support of his Motion for Summary
Judgment contains a separate, 28-paragraph statement of material facts with proper
references to the record. (Filing 26 at CM/ECF pp. 4-8). The documents referenced
include: the affidavit of Defendant (filing 46-1); the affidavit of Captain Dan Shukis
(Filing 46-2), who at all relevant times served as the Facility Administrator of the
Sarpy County Jail (also known as Jail Captain); the affidavit of Jo Martin (filing 463), who at all relevant times served as a Sarpy County Deputy; and Plaintiff’s Sarpy
County Jail records, which included medical records (filings 46-4 & 46-5). Plaintiff
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has not responded to Defendant’s Motion for Summary Judgment. While Plaintiff’s
failure to file an opposing brief is not considered a confession of the motion, see
NECivR 7.1(b)(1)(C), his failure to controvert Defendant’s statement of material
facts is considered an admission for purposes of deciding the motion. See NECivR
56.1(1)(b)(1); Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . . consider
the fact undisputed for purposes of the motion . . . .”).
V. STATEMENT OF FACTS
The court finds there is no genuine dispute regarding the following facts:
1.
On or about September 30, 2017,3 Plaintiff was arrested by U.S.
Marshals in Underwood, Iowa. (Filing 22 at CM/ECF, p. 1.)
2.

During the course of the arrest, Plaintiff’s arm was severely injured.

(Id. )
3.
After the arrest, Plaintiff was taken to a Council Bluffs, Iowa hospital
where he was examined and a doctor recommended surgery on his arm. (Id.; Filing
46-3 at CM/ECF p. 2, ¶ 6; Filing 46-4 at CM/ECF, p. 9.)
4.
Surgery was scheduled for Tuesday, October 3, 2017 at an Omaha,
Nebraska hospital.4 (Filing 46-3 at CM/ECF pp. 2, 7, ¶¶ 6, 7; Filing 46-4 at CM/ECF,
pp. 8-10; Filing 46-5 at CM/ECF p. 11.)
Both parties represent that the date of Plaintiff’s arrest was September 30,
2017, but there are documents in the record indicating that the date of Plaintiff’s
arrest may have been September 29, 2017. (Filing 46-4 at CM/ECF p. 9.) Any
discrepancy in dates is immaterial and does not affect the disposition of the case.
3

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Although both parties represent that the surgery was scheduled for a Monday,
the record indicates it was scheduled for October 3, 2017, which was a Tuesday. In
addition, Defendant, citing Plaintiff’s Amended Complaint, states that Plaintiff’s
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5.
Plaintiff was taken to the Pottawattamie County Jail in Iowa for holding
over the weekend. (Filing 22 at CM/ECF p. 1; Filing 46-3 at CM/ECF p. 2, ¶ 6;
Filing 46-4 at CM/ECF, p. 9.)
6.
On Monday, October 2, 2017, Plaintiff was transferred and booked into
the Sarpy County Jail. (Filing 46-2 at CM/ECF p. 2, ¶ 4; Filing 46-3 at CM/ECF p.
7, ¶ 7; Filing 46-5 at CM/ECF pp. 1-3, 11.)
7.
During intake at the Sarpy County Jail, jail personnel acknowledged
Plaintiff had a fractured left elbow and that surgery was scheduled for October 3,
2017. (Filing 46-2 at CM/ECF p. 2, ¶ 4; Filing 46-3 at CM/ECF pp. 2, 7, ¶¶ 6, 7;
Filing 46-4 at CM/ECF pp. 7-8; Filing 46-5 at CM/ECF p. 11.)
8.
The jail nurse was informed by Court Services that there were not
officers available on such short notice for a two-officer escort on October 3, 2017.
The jail nurse was also informed by the surgeon’s office that Plaintiff’s surgery could
only be rescheduled at a hospital in Council Bluffs, Iowa. Court Services informed
the jail nurse that Plaintiff could not be transported across state lines for medical
treatment. (Filing 46-3 at CM/ECF pp. 2, 7, ¶¶ 6, 7; Filing 46-4 at CM/ECF p. 8;
Filing 46-5 at CM/ECF p. 11.)
9.
It was the policy of the Sarpy County Jail that prisoners would not be
transported across state lines for medical treatment because such transportation
could require an extradition order in order to bring the prisoner back to Sarpy

surgery was scheduled at a hospital in Iowa. (Filing 46 at CM/EF p. 4, ¶ 3.) Plaintiff’s
Amended Complaint does not explicitly state where the surgery was to take place.
(See Filing 22.) Nonetheless, the medical records indicate that the surgery was
scheduled for a hospital in Omaha, Nebraska, and that post-operative appointments
were scheduled at a medical clinic in Council Bluffs, Iowa. (Filing 46-3 at CM/ECF
pp. 2, 7, ¶¶ 6, 7; Filing 46-4 at CM/ECF, pp. 8-10; Filing 46-5 at CM/ECF p. 11.)
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County. (Filing 46-1 at CM/ECF p. 2, ¶ 10; Filing 46-3 at CM/ECF pp. 2, 7, ¶¶ 6, 7;
Filing 46-4 at CM/ECF p. 8; Filing 46-5 at CM/ECF p. 11.)
10. The jail nurse arranged for a different doctor to take over Plaintiff’s
care “due to inability to transport inmate across state lines and for scheduling
difficulties.” (Filing 46-3 at CM/ECF pp. 2, 7, ¶¶ 6, 7; Filing 46-4 at CM/ECF p. 8;
Filing 46-5 at CM/ECF p. 11.)
11. On October 3, 2017, the day after Plaintiff was booked into the Sarpy
County Jail, jail personnel transported Plaintiff to a doctor’s office in Omaha,
Nebraska to have his arm examined and to evaluate Plaintiff for surgery. (Filing 463 at CM/ECF pp. 2, 7, ¶¶ 6, 7; Filing 46-4 at CM/ECF pp. 17-20; Filing 46-5 at
CM/ECF p. 11.)
12. Plaintiff underwent surgery on his left elbow on October 12, 2017.
(Filing 46-3 at CM/ECF p. 2, ¶ 6; Filing 46-4 at CM/ECF pp. 31-34.) He was
prescribed pain medication and discharged the same day. (Filing 46-3 at CM/ECF p.
2, ¶ 6; Filing 46-4 at CM/ECF pp. 36-37.)
13. Due to the extent of his injuries, Plaintiff underwent a second surgery
on his left elbow on November 1, 2017. (Filing 46-3 at CM/ECF p. 2, ¶ 6; Filing 464 at CM/ECF pp. 67-69.)
14. Plaintiff had several post-operative doctor’s visits, and his recovery was
consistent with the surgeon’s expectations. (Filing 46-3 at CM/ECF p. 2, ¶ 6; Filing
46-4 at CM/ECF pp. 79, 81-85, 87-92.)
15. In 2017, the Sarpy County Sheriff’s Office, a department within Sarpy
County, Nebraska, had six major divisions handling distinct types of public services,
one of which was the Jail Division. (Filing 46-1 at CM/ECF p. 1, ¶ 3.)

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16. Sheriff Davis oversees the entire Sarpy County Sheriff’s Office. His
days are primarily consumed with handling administrative functions, including
being responsible for the approximately $19.5 million Sheriff’s Office budget, and
handling personnel matters that arise regarding the approximately 245 sworn law
enforcement and civilian employees within the Sheriff’s Office. (Id. at CM/ECF p.
2, ¶ 4.)
17. In 2017, a Captain-ranked deputy had the responsibility of serving as
the Commander of the Jail Division within the Sarpy County Sheriff’s Department,
and a Lieutenant-ranked deputy was assigned to assist the Captain with day-to-day
jail operations and overseeing the lower-ranked commissioned and civilian staff. (Id.
at CM/ECF p. 2, ¶ 5.)
18. In October 2017, Dan Shukis was the Captain assigned to the Jail
Division, and Brian Richards was the Lieutenant assigned to the Jail Division. (Id.
at CM/ECF p. 2, ¶ 6; Filing 46-2 at CM/ECF p. 2, ¶ 3.)
19. In October 2017, there were approximately eight Sergeants in the Jail
Division of the Sheriff’s Department who were below the Lieutenant in the chain of
command and acted as shift supervisors. (Filing 46-1 at CM/ECF p. 2, ¶ 7.)
20. In October 2017, below those Sergeants in the chain of command were
approximately fifty sworn law enforcement deputies who worked “on the floor” at
the jail and approximately seven civilian booking clerks. (Id. at CM/ECF p. 2, ¶ 8.)
21. In the usual course of business, Sheriff Davis was not personally
present in the jail on a daily basis as the day-to-day operations of the jail were
supervised by the Captain, Lieutenant, and Sergeants assigned to the Jail Division.
(Id. at CM/ECF p. 2, ¶ 9.)
22. Sheriff Davis never had any direct contact with Plaintiff or any other
inmate in the Sarpy County Jail in 2017. (Id. at CM/ECF p. 3, ¶ 11.)
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23. Sheriff Davis had no personal knowledge of the medical evaluations or
treatment received by Plaintiff while he was in the Sarpy County Jail, nor did Sheriff
Davis have personal knowledge of the decision-making process of the jail’s
supervisors in scheduling Plaintiff’s surgeries. (Id. at CM/ECF p. 3, ¶ 12.)
24. Sarpy County Jail personnel never discussed with Sheriff Davis any
details regarding Plaintiff’s injuries or his medical treatment. (Id. at CM/ECF p. 3, ¶
13.)
25. Sheriff Davis did not direct any Sarpy County employee to not transport
Plaintiff for surgery scheduled on October 3, 2017, nor did he instruct any employee
to schedule and transport him to a doctor’s visit on October 3, 2017. (Id. at CM/ECF
p. 3, ¶ 14.)
26. No member of the Sarpy County Jail staff contacted Sheriff Davis about
Plaintiff’s injuries or medical treatment. (Id. at CM/ECF p. 3, ¶ 15.)
27. The first time that Sheriff Davis became aware of Plaintiff’s existence,
or any of the circumstances alleged in the Complaint, was after Plaintiff filed the
original Complaint in this matter. (Id. at CM/ECF p. 3, ¶ 16.)
28. Sheriff Davis did not author the written policies or standard operating
procedures of the Jail Division; generally, they were drafted by jail command staff
and then the Chief Deputy reviewed and signed off on the policies. (Id. at CM/ECF
p. 3, ¶ 17.)
29. Sheriff Davis did not make any of the operational decisions regarding
when Plaintiff received medication or medical treatment during the time when
Plaintiff was an inmate at the Sarpy County Jail. (Filing 46-2 at CM/ECF p. 3, ¶ 9.)

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VI. DISCUSSION
A. Qualified Immunity
Qualified immunity shields government officials from suits for damages
under § 1983 if their “conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Hamner v.
Burls, 937 F.3d 1171, 1175 (8th Cir. 2019), as amended (Nov. 26, 2019) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “The immunity is an immunity from
suit, not merely from liability.” Id. (emphasis in original).
Qualified immunity is designed “to avoid ‘subject[ing] government officials
either to the costs of trial or to the burdens of broad-reaching discovery’ in cases
where the legal norms the officials are alleged to have violated were not clearly
established at the time.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (alteration in
original) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)). “The
qualified immunity standard gives ample room for mistaken judgments by protecting
all but the plainly incompetent or those who knowingly violate the law.” Anderson
as trustee for next-of-kin of Anderson v. City of Minneapolis, 934 F.3d 876, 881 (8th
Cir. 2019) (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)).
“Whether a given set of facts entitles the official to summary judgment on
qualified immunity grounds is a question of law. But if there is a genuine dispute
concerning predicate facts material to the qualified immunity issue, there can be no
summary judgment.” Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003)
(quoting Greiner v. City of Champlin, 27 F.3d 1346, 1352 (8th Cir. 1994)).
The court must follow a two-step inquiry in a qualified immunity analysis:
“(1) whether the facts shown by the plaintiff make out a violation of a constitutional
or statutory right, and (2) whether that right was clearly established at the time of the
defendant’s alleged misconduct.” Jackson v. Stair, 944 F.3d 704, 710 (8th Cir. 2019)
(quoting Brown v. City of Golden Valley, 574 F.3d 491, 496 (8th Cir. 2009)). If
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Plaintiff cannot satisfy both prongs, Defendant is entitled to qualified immunity. See
Correia v. Jones, 943 F.3d 845, 847 (8th Cir. 2019); Recca v. Pignotti, 456 F. Supp.
3d 1154, 1161 (D. Neb. 2020); see also Davis v. Chase Cnty. Sch. Dist. No. 536, No.
7:17-CV-5007, 2019 WL 1506690, at *4 (D. Neb. Apr. 5, 2019) (“To withstand a
motion for summary judgment on qualified immunity grounds, a civil rights plaintiff
must (1) assert a violation of a constitutional right; (2) demonstrate that the alleged
right is clearly established; and (3) raise a genuine issue of fact as to whether the
official would have known that his alleged conduct would have violated the
plaintiff’s clearly established right.”). Courts “have discretion to decide which of the
two prongs of qualified-immunity analysis to tackle first.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (citation omitted).
B. Deliberate Indifference to a Serious Medical Need
The constitutional obligation to provide medical care to those in custody may
be violated when officials “intentionally deny[ ] or delay[ ] access to medical care
or intentionally interfer[e] with the treatment once prescribed.” Estelle v. Gamble,
429 U.S. 97, 104-05 (1976); see also Langford v. Norris, 614 F.3d 445, 460 (8th Cir.
2010) (“[D]elays in treating painful medical conditions, even if not life-threatening,
may support an Eighth Amendment claim.”) (quotations omitted).5

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Plaintiff alleges that Sheriff Davis was deliberately indifferent to his serious
medical needs when he was a pretrial detainee. A convicted prisoner’s conditions of
confinement are subject to scrutiny under the Eighth Amendment, while a pretrial
detainee’s challenge to such conditions is analyzed under the Fourteenth
Amendment’s Due Process Clause. “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.” Davis v. Oregon Cnty. Mo., 607 F.3d 543, 548 (8th Cir. 2010)
(internal quotation and citation omitted). Therefore, cases discussing the Eighth
Amendment are applicable to this case despite Plaintiff’s status as a pretrial detainee
during the events at issue.
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To prevail on this claim, Plaintiff must prove that Sheriff Davis acted with
deliberate indifference to Plaintiff’s serious medical needs. See Estelle, 429 U.S. at
106. The deliberate-indifference standard includes both an objective and a subjective
component. Plaintiff must demonstrate that (1) he suffered from objectively serious
medical needs, and (2) Sheriff Davis knew of, but deliberately disregarded, those
needs. See Gibson v. Weber, 433 F.3d 642, 646 (8th Cir. 2006) (Eighth Amendment
claim based on inadequate medical attention requires proof that officials knew about
excessive risks to inmate’s health but disregarded them and that their
unconstitutional actions in fact caused inmate’s injuries); Jolly v. Knudsen, 205 F.3d
1094, 1096 (8th Cir. 2000).
“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.” Schaub v. VonWald, 638 F.3d 905,
914 (8th Cir. 2011) (internal quotations and citations omitted).
“Deliberate indifference is equivalent to criminal-law recklessness, which is
more blameworthy than negligence, yet less blameworthy than purposefully causing
or knowingly bringing about a substantial risk of serious harm to the inmate.”
Schaub, 638 F.3d at 914-15 (internal quotations and citation omitted). “An obvious
risk of harm justifies an inference that a prison official subjectively disregarded a
substantial risk of serious harm to the inmate.” Id. at 915 (citation omitted).
“Deliberate indifference must be measured by the official’s knowledge at the time
in question, not by hindsight’s perfect vision.” Id. (internal quotations and citation
omitted).
C. Sheriff Davis—Supervisory Liability
It is undisputed, and Sheriff Davis concedes, that Plaintiff suffered from a
serious medical need. (See Filing 46 at CM/ECF p. 18 (“Plaintiff did have a
relatively serious medical need.”).) Having clearly established the objective
component of the “deliberate indifference” claim, the court moves to the subjective
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component as applied to Sheriff Davis. Plaintiff alleges that Sheriff Davis “is
responsible for the lack of medical attention [Plaintiff] received from [Sheriff
Davis’s] staff.” (Filing 22 at CM/ECF p. 2.) The court understands Plaintiff is
asserting that Sheriff Davis is liable in his capacity as a supervisor.
In section 1983 actions, supervisory liability is limited. Ottman v. City of
Indep., Mo., 341 F.3d 751, 761 (8th Cir. 2003); Boyd v. Knox, 47 F.3d 966, 968 (8th
Cir. 1995). A supervisor cannot be held liable for an employee’s unconstitutional
actions based on a theory of respondeat superior. Ottman, 341 F.3d at 761; Boyd, 47
F.3d at 968; White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); Fruit v. Norris, 905
F.2d 1147, 1151 (8th Cir. 1990). Rather, a supervisor incurs liability for a violation
of a federally protected right when the supervisor is personally involved in the
violation or when the supervisor’s corrective inaction constitutes deliberate
indifference to or tacit authorization of the violative practices. Langford, 614 F.3d
at 460; Ottman, 341 F.3d at 761; Choate v. Lockhart, 7 F.3d 1370, 1376 (8th Cir.
1993). “The supervisor must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what [he or she] might see.” Ripson v.
Alles, 21 F.3d 805, 809 (8th Cir. 1994) (quoting Jones v. City of Chicago, 856 F.2d
985, 992 (7th Cir. 1988)); accord Ottman, 341 F.3d at 761.
Plaintiff has presented no evidence that Sheriff Davis was personally involved
in any delay or denial of medical care to Plaintiff. There is no evidence that the acts
complained of were done at the direction or with the knowledge or consent of Sheriff
Davis. At all relevant times, a captain, a lieutenant, and shift sergeants handled the
day-to-day operations of the jail; Sheriff Davis had no direct contact with Plaintiff
or any other inmate in the Sarpy County Jail in 2017. There also is no indication
from the record that Sheriff Davis knew about Plaintiff’s broken elbow or the
medical care Plaintiff received while at the jail or the decision-making process used
by the jail supervisors in scheduling Plaintiff’s surgeries. Indeed, Sheriff Davis’s
affidavit establishes that he has never personally met Plaintiff, was entirely unaware
of Plaintiff’s incarceration or alleged medical needs until being served with the
Complaint herein, and had no personal involvement whatsoever in any events or
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omissions alleged in the Complaint or Amended Complaint. Dan Shukis, who was
jail captain at all relevant times, confirms that, during 2017, Sheriff Davis did not
personally participate in decisions regarding medical matters involving detainees or
inmates at the Sarpy County Jail. Sheriff Davis could not have intentionally denied
or delayed Plaintiff’s access to medical treatment when he did not know about
Plaintiff’s medical situation.
Plaintiff also has not presented any evidence that Sheriff Davis tacitly
authorized the circumstances about which Plaintiff complains. The undisputed
evidence demonstrates that, during the time when Plaintiff was an inmate at the
Sarpy County Jail, Sheriff Davis did not author the written policies or standard
operating procedures of the Jail Division or make any of the operational decisions
regarding when Plaintiff received medication or medical treatment. There is also no
evidence that Sheriff Davis was directly involved in any policies that may have
contributed to any delay or denial of treatment. Plaintiff has not presented evidence
that Sheriff Davis knew about any scheduling issues that may have contributed to a
delay in treatment or that Sheriff Davis was responsible for remedying those
scheduling issues. See Ottman, 341 F.3d at 761.
Because there is no evidence that Sheriff Davis had any knowledge of
Plaintiff’s medical needs, or that he was personally involved in any delay or denial
of medical care to Plaintiff, or that he tacitly authorized the circumstances
complained of in this action, he is entitled to the entry of summary judgment. See
Vaughn v. Green Cnty., Ark., 438 F.3d 845, 851-52 (8th Cir. 2006) (county sheriff
entitled to qualified immunity when he had no personal interaction with the detainee
and there was no evidence suggesting he was actually aware of the detainee’s
specific medical symptoms and complaints while incarcerated; sheriff reasonably
delegated to others certain duties with respect to direct inmate supervision).

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IT IS THEREFORE ORDERED that:
1.
Defendant’s Motion for Summary Judgment (filing 45) is granted, and
this case is dismissed with prejudice.
2.

A separate judgment will be entered.

Dated this 30th day of June, 2021.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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