Washington v. Foxhall et al

Filing 19

MEMORANDUM AND ORDER that Plaintiff's motion for reconsideration (Filing No. 18 ) is denied. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DEROISE J. WASHINGTON,
Plaintiff,
v.
ESCH, Medical Doctor,
Defendant.

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8:17CV6

MEMORANDUM
AND ORDER

In a Memorandum and Order entered on April 5, 2017, upon initial review of
Plaintiff’s Amended Complaint, the court determined that Plaintiff, a prisoner at Douglas
County Corrections (“DCC”), “has stated a plausible [Eighth or Fourteenth] claim for
relief against [Defendant] Esch in her individual capacity based on her alleged refusal to
provide treatment for known medical conditions” (Filing No. 16 at CM/ECF p. 8). The
court also ruled, however, that no facts are alleged to support Plaintiff’s claim that Esch
acted as a policymaker for DCC.
On April 14, 2017, Plaintiff filed a motion for reconsideration of this ruling in
which he points to “Captain Mary Earley’s reply to [Plaintiff’s] ‘Step Two’ grievance on
or about 15 December 2016 where Captain Earley clearly avers to say, ‘The medical
provider is the sole decision maker regarding treatment and care plans for individuals
housed here’” (Filing No. 18 at CM/ECF p. 2).1 Plaintiff’s motion for reconsideration
will be denied.
“Municipal liability attaches only where the decisionmaker possesses final
authority to establish municipal policy with respect to the action ordered.” Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986) (plurality opinion). Here, Plaintiff alleges

1

Capt. Earley’s reply to Plaintiff’s “step two” grievance is attached to the
original Complaint (Filing No. 1 at CM/ECF p. 26).

in the Amended Complaint that “Allen Bagby, Health Administrator, has policy-making
authority and is Esch’s supervisor” (Filing No. 15 at CM/ECF p. 4). The allegation that
Bagby supervises Esch negates any claim that Esch has final authority to establish policy
for DCC with regard to medical treatment provided to inmates. Even assuming has Esch
has discretionary authority regarding individual treatment plans, this does not make the
County liable for her actions. “The fact that a particular official—even a policymaking
official—has discretion in the exercise of particular functions does not, without more,
give rise to municipal liability based on an exercise of that discretion.” Id. at 481-82. See,
e.g., Brown v. Wichita Cty., No. 7:05-CV-108-O, 2011 WL 1562567, at *8 (N.D. Tex.
Apr. 26, 2011), (doctor under contract with county to supervise professional work of
jail’s medical staff was not delegated policymaking authority), aff’d sub nom. Brown v.
Bolin, 500 F. App’x 309 (5th Cir. 2012); Awalt v. Marketti, 74 F. Supp. 3d 909, 933-35
(N.D. Ill.), supplemented, 75 F. Supp. 3d 777 (N.D. Ill. 2014) (nurse’s discretionary
authority to make day-to-day decisions regarding the detainees’ medical care did not
make her a policymaker for sheriff’s office).
IT IS THEREFORE ORDERED that Plaintiff’s motion for reconsideration (Filing
No. 18) is denied.
DATED this 24th day of May, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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