Spradley v. LeFlore County Detention Center Public Trust Board et al

Filing 139

OPINION AND ORDER by District Judge James H. Payne: granting 105 Defendant Leflore County Detention Center Public Trust Board's Motion for Summary Judgment; granting 107 Defendant Ed Drury's Motion for Summary Judgment (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DAVID SPRADLEY,

)
)
Plaintiff,
)
v.
)
)
THE LEFLORE COUNTY
)
DETENTION CENTER PUBLIC )
TRUST BOARD and
)
ED DRURY, in his individual
)
capacity,
)
)
Defendants.
)

Case No. 15-CV-340-JHP

OPINION & ORDER
Before the Court are the (1) Motion for Summary Judgment filed by
Defendant Ed Drury (Dkt. 107) and (2) Motion for Summary Judgment filed by
Defendant Leflore County Detention Center Public Trust Board (Dkt. 105). In the
interest of efficiency, the Court will address both Motions in this Opinion and
Order. After consideration of the briefs, and for the reasons stated below, both
Motions are GRANTED.
BACKGROUND
Plaintiff David Spradley (“Plaintiff”) is a paraplegic with use of his upper
body, including his hands, arms, shoulders, neck, and head.

(Dkt. 107, at 3

(Drury’s Undisputed Fact Nos. 1-2)).1 Plaintiff has no use of his legs or control of
his bladder or bowel. (Dkt. 107-4 (DOC Letter)). Because of his paralysis,
Plaintiff is prone to bedsores (also known as decubitus ulcers or pressure sores),
and he requires special accommodations to lessen the probability of bedsores,
including a cushioned wheelchair and a gel-filled mattress for his bed. (Id.).
Plaintiff has repeatedly suffered from bedsores necessitating treatment since his
spinal injury occurred in 2011, through the date of his 2014 incarceration at the
Leflore County Detention Center (“LCDC”). (Dkts. 107-7 to 107-21 (Medical
Records for Plaintiff)). It is undisputed that paraplegics such as Plaintiff can
develop bedsores, and such bedsores can worsen, even with good care and absent
negligence. (Dkt. 107, at 12 (Drury’s Undisputed Fact No. 44)).
On September 2, 2014, Plaintiff was arrested and booked into LCDC
pursuant to an application to revoke his suspended sentence.

(Dkt. 107-28

(Application to Revoke Suspended Sentence)). He was booked into LCDC and
bonded out the next day. (Dkt. 107-29, at 2 (LCDC Jail Time Statement)). On
September 4, 2014, Plaintiff was re-arrested and re-booked into LCDC. (Id.).

1

In the Background section of this Opinion and Order, the Court refers primarily to the evidence
presented in Ed Drury’s Motion for Summary Judgment (Dkt. 107). However, the Leflore
County Detention Center Public Trust Board presents largely the same evidence in support of its
own Motion for Summary Judgment (Dkt. 105). Therefore, the evidence cited in this section is
relevant to both Motions.

2

Plaintiff remained in LCDC custody for eighteen days, until September 22, 2014.
(Dkt. 107, at 6 (Drury’s Undisputed Fact No. 12)).
Plaintiff was allowed to bring his own special gel mattress topper and
wheelchair to LCDC.

(Dkt. 107, at 6 (Drury’s Undisputed Fact No. 13)).

Plaintiff’s father later provided a shower chair, which Plaintiff was allowed to use
to shower at LCDC.

(Dkt. 107-31 (Drury Deposition), 64:8-24). Following

Plaintiff’s second booking on September 4, 2014, Defendant Nurse Ed Drury
(“Drury”) performed Plaintiff’s initial medical screening. (Dkt. 107-31 (Drury
Deposition), 36:7-39:8). Drury noted a pressure sore on Plaintiff’s right foot and a
sore that was healing on Plaintiff’s left foot. (Id. at 37:15-38:7). Drury also
observed a red mark on Plaintiff’s left hip. (Id. at 42:12-25).
Drury then called Nurse Practitioner Tim Olive (“Olive”) to come to the jail
to examine Plaintiff. (Id. at 39:9-40:2). Olive assessed Plaintiff on the evening of
September 4, 2014, noted the pressure sore on Plaintiff’s right foot and other
medical issues, and recommended that Plaintiff be seen at Eastern Oklahoma
Medical Center (“EOMC”). (Id. at 40:3-42:3; Dkt. 107-32 (Olive Deposition),
20:9-23:16). Olive further recommended use of wet-to-dry dressings on the right
foot sore, to be changed twice a day, and he recommended Plaintiff wear
compression hose to reduce swelling. (Dkt. 107-31 (Drury Deposition), 41:4-18;
3

43:2-4; Dkt. 107, at 7 (Drury’s Undisputed Fact No. 20)). Plaintiff declined
Olive’s recommendation to go to EOMC that night, because Plaintiff planned to be
released from jail shortly thereafter. (Dkt. 107-31 (Drury Deposition), 40:2341:3). Plaintiff also refused to wear the compression hose. (Dkt. 120-2 (Olive
Deposition), 24:8-12).
On September 6, 2014, Plaintiff went to EOMC for the assessment Olive
had ordered on September 4th. (Dkt. 107-31 (Drury Deposition), 48:4-24, 51:1620; Dkt. 107-6 (Dr. Stone Deposition), 129:10-19). At EOMC, Dr. Jeff Spears
provided wound care to Plaintiff and prescribed heel protectors before discharging
Plaintiff that same day. (Dkt. 107, at 8 (Drury’s Undisputed Fact No. 24)). No
bedsores were present on Plaintiff’s buttocks or hips on September 6, 2014. (Id.).
Following Plaintiff’s return to LCDC, Drury performed wound care for
Plaintiff, applying wet-to-dry dressings twice a day.

(Dkt. 107-31 (Drury

Deposition), 43:1-24; (Dkt. 107-1 (Plaintiff Deposition), 346:16-20, 359:8-16,
362:13-18, 368:15-18, 375:20-22).2 Plaintiff refused to wear the prescribed heel
protectors. (Dkt. 107-31 (Drury Deposition), 51:3-15). Drury assisted Plaintiff

2

Plaintiff stated in his deposition that on the week of September 14-20, Drury did not change his
bandages every day, but he did change them on some days. (See Dkt. 107-1 (Plaintiff
Deposition), 377:16-21). Accordingly, even if there remains some dispute regarding the
frequency with which Drury attended to Plaintiff’s dressings, it is undisputed that Drury
provided regular wound care.

4

with his bowel program and catheter when Drury was at the jail. (Dkt. 107-31
(Drury Deposition), 104:9-25; Dkt. 107-1 (Plaintiff Deposition), 375:12-19).
Drury also administered medications to Plaintiff, although Plaintiff disputes that it
was administered in the prescribed doses.

(Dkt. 107-1 (Plaintiff Deposition),

335:2-336:3, 476:8-11). Plaintiff also received assistance from Drury or other
LCDC guards in changing position at least twice per day. (Dkt. 120-4 (Plaintiff
Deposition), 537:22-538:19).

Jail Administrator Donnie Edwards walked by

Plaintiff’s jail cell every day he was on duty to check on him, and Plaintiff never
complained he was being mistreated by Drury or other LCDC staff. (Dkt. 107, at 9
(Drury’s Undisputed Fact No. 31)). Dr. Jeffrey Stone, Plaintiff’s wound care
expert, has no criticism of the treatment Drury provided for Plaintiff’s wounds
between September 7 and September 16, 2014.

(Dkt. 107-6 (Dr. Stone

Deposition), 135:16-24).3

3

Plaintiff testified in his deposition that he and Drury both observed wounds opening on his hips
and buttocks on September 8th. (Dkt. 120-3 (Plaintiff Deposition), 362:1-12; Dkt. 120-4
(Plaintiff Deposition), 553:1-23). However, this testimony is plainly contradicted by Drury’s
contemporaneous typewritten notes, upon which Plaintiff relies. (See Dkt. 120-6 (Drury’s
Notes)) (indicating no hip wounds present as of September 10th). Therefore, the Court finds no
genuine issue of material fact exists based on this testimony. See Scott v. Harris, 550 U.S. 372,
380 (2007) (“When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion for summary judgment.”).

5

Plaintiff received at least three or four showers at the jail during his stay.
(Dkt. 112-1 (Plaintiff Deposition), 543:12-14). To shower, Plaintiff undressed in
his cell and was wheeled through the booking area to reach the shower area. Drury
testified that Plaintiff was always covered with a blanket when he was wheeled to
the shower room. Dkt. 105-3 (Drury Deposition), 109:4-20). However, Plaintiff
testified that the first time he showered at LCDC, he was wheeled naked through
the booking area, in view of other inmates and several laughing jail employees.
(Dkt. 112-1 (Plaintiff Deposition), 544:21-547:13).
On September 16, 2014, Drury noted a closed reddened area on Plaintiff’s
left hip, including an area of necrotic tissue, for which Drury ordered wet-to-dry
dressing changes. (Dkt. 120-6 (Drury’s notes, dated Sept. 16, 2014)).4 Dr. Stone
testified that this kind of wound would not have required a physician’s
examination, and the standard of care was appropriate on September 16th. (Dkt.
107-6 (Dr. Stone Deposition), 137:10-22). On September 17, 2014, the closed
reddened area on the hip was unchanged, measuring two centimeters by two

4

In his Response to Drury’s Motion, Plaintiff insists that Drury’s typewritten notes from the 16th
indicate drainage was present at the hip wound. (See Dkt. 120 (Plaintiff’s Response), at 16-17).
However, Drury’s typed notes from the 16th indicate only “serous sangeous [sic] drainage
noted” on Plaintiff’s right heel and right ankle, and the left hip wound was noted as a “closed
area” with “dark looking necrotoc [sic] area to center of wound, closed.” (Dkt. 120-6 (Drury’s
Notes)).

6

centimeters. (Dkt. 120-8, at 7 (Nurse’s Notes, dated Sept. 17, 2014); Dkt. 107-6
(Dr. Stone Deposition), 138:9-17).

On September 18, 2014, Drury noted the

reddened area on the hip was the same size but was leaking a small amount of
serosanguinous drainage. (Dkt. 120-8, at 7 (Nurse’s Notes, dated Sept. 18, 2014)).
Dr. Stone testified this wound, while not requiring a physician’s examination,
would have caused him concern that Plaintiff was “heading down the path of
breaking down,” given Plaintiff’s medical history.

(Dkt. 107-6 (Dr. Stone

Deposition), 141:12-23; 143:4-6).
On September 19, 2014, Drury noted a reddened area on Plaintiff’s buttocks,
and he noted no new deterioration of the hip area. (Dkt. 120-8, at 7 (Nurse’s
Notes, dated Sept. 19, 2014)). Dr. Stone testified that these wounds, while not
requiring a physician’s examination or hospital care, would have warranted
checking on Plaintiff’s wounds “significantly more often.” (Dkt. 107-6 (Dr. Stone
Deposition), 144:16-22). Dr. Stone further testified that on the 18th and 19th,
Drury would have had to make a judgment call about how to treat the reddened
areas. (Id. at 145:20-23). In addition, Dr. Stone testified that there is room for a
reasonable difference of opinion concerning Drury’s actions in regard to his
treatment of Plaintiff’s sores. (Id. at 43:1-7).

7

Drury was not on duty on Saturday, September 20, 2014, or Sunday,
September 21, 2014, and he did not go to the jail that weekend. (Dkt. 107, at 11
(Drury’s Undisputed Fact No. 42)). Drury instructed Detention Officer James
Lowe (“Lowe”) on how to change Plaintiff’s wound dressings while Drury was not
on duty, and Lowe helped change the dressings when Drury was not on duty.
(Dkt. 107-33 (Lowe Deposition), 18:9-24, 21:17-19; Dkt. 107-31 (Drury
Deposition), 79:15-24; Dkt. 105, at 4 (Board’s Undisputed Fact No. 13)).5 Plaintiff
did not complain to Lowe about his bedsores or the medical treatment he was
receiving at the jail.

(Dkt. 107, at 10 (Drury’s Undisputed Fact No. 33)).

However, Plaintiff testified that on September 20th, he defecated on himself and
remained in his soiled clothing until Drury returned on September 22nd, because
the jailers refused to assist him with his bowel program or provide him with clean
clothes. (Dkt. 112-1 (Plaintiff Deposition), 558:10-560:17).
When Drury returned to work on September 22, 2014, he observed that the
wounds on Plaintiff’s hips and buttocks had worsened and opened. (Dkt. 120-8, at
8 (Nurse’s Notes, dated Sept. 22, 2014); Dkt. 107-31 (Drury Deposition), 82:2-11).

5

In his Response to the Board’s Motion for Summary Judgment, Plaintiff admits that Lowe
helped change Plaintiff’s dressings when Drury was not on duty. (Dkt. 112, at 6). Conversely,
in his Response to Drury’s Motion for Summary Judgment, Plaintiff denies the same fact.
Because Lowe’s actions in caring for Plaintiff’s needs pertain only to the Board’s Motion, the
Court will deem this fact admitted.

8

Plaintiff was transported to EOMC that day for treatment. Dkt. 107-31 (Drury
Deposition), at 84:18-21). Later that day, Plaintiff was transferred from EOMC to
Hillcrest Hospital in Tulsa, Oklahoma, where he received anesthesia and surgical
debridement of the necrotic tissue. (Dkt. 120-4 (Plaintiff Deposition), 561:19562:25).
Following the initiation of this lawsuit, Drury was terminated from his
employment with LCDC for falsifying medical records as they pertained to
Plaintiff. (Dkt. 120-7 (Donnie Edwards Deposition), 44:20-46:21). Specifically,
Drury’s notes pertaining to Plaintiff described treatment on dates after Plaintiff had
already been transported to EOMC. (See Dkt. 120-8 (Nurse’s Notes), at 8-9)
(noting treatment of Plaintiff on Sept. 23-25, 2014).
Plaintiff filed a Complaint in this case on September 8, 2015. (Dkt. 3). In
the Complaint, Plaintiff asserts claims for (1) relief under 42 U.S.C. § 1983 against
Drury and the Leflore County Detention Center Public Trust Board (“Board) for
failure to provide medical treatment in violation of his rights under the Eighth and
Fourteenth Amendments to the United States Constitution; (2) relief under 42
U.S.C. § 1983 against the Board for negligent training and supervision related to
Plaintiff’s serious medical needs, in violation of his rights under the Eighth and
Fourteenth Amendments to the United States Constitution; (3) relief under 42
9

U.S.C. § 1983 against the Board for having a policy or engaging in a pattern and
practice of conduct that led to the violation of Plaintiff’s rights under the Eighth
and Fourteenth Amendments to the United States Constitution; (4) relief pursuant
to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 against the
Board for denial of the disabled Plaintiff’s ability to shower consistently, receive
proper toilet facilities, and obtain proper medical treatment; and (5) relief under the
Rehabilitation Act, 29 U.S.C. § 794, for discrimination Plaintiff suffered based on
his disability. (Dkt. 3, ¶¶ 27-49).6
Drury has now filed a Motion for Summary Judgment on Plaintiff’s claim
against him. (Dkt. 107). Plaintiff filed a Response in opposition (Dkt. 120), and
Drury filed a Reply (Dkt. 130). The Board has also filed a Motion for Summary
Judgment on Plaintiff’s claims against it. (Dkt. 105). Plaintiff filed a Response in
opposition (Dkt. 112), and The Board filed a Reply (Dkt. 119). The Motions are
fully briefed and ripe for review.
DISCUSSION
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.

6

Plaintiff also sued Defendant Donnie Edwards, Jail Administrator for the Board, in his official
capacity. However, Edwards was dismissed from this case on October 12, 2016. (Dkt. 99).

10

R. Civ. P. 56(a). A dispute is genuine if the evidence is such that “a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of
the suit under the governing law.”

Id.

In making this determination, “[t]he

evidence of the non-movant is to be believed, and all justifiable inferences are to
be drawn in his favor.” Id. at 255.
However, a party opposing a motion for summary judgment may not simply
allege there are disputed issues of fact; rather, the party must support its assertions
by citing to the record or by showing the moving party cannot produce admissible
evidence to support the fact. Fed. R. Civ. P. 56(c). See Cone v. Longmont United
Hosp. Ass’n, 14 F.3d 526, 530 (10th Cir. 1994) (“Even though all doubts must be
resolved in [the nonmovant’s] favor, allegations alone will not defeat summary
judgment.”) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
Moreover, “[i]n a response to a motion for summary judgment, a party cannot rely
on ignorance of facts, on speculation, or on suspicion and may not escape summary
judgment in the mere hope that something will turn up at trial.” Conaway v. Smith,
853 F.2d 789, 794 (10th Cir. 1988) (citations omitted). Thus, the inquiry for this
Court is “whether the evidence presents a sufficient disagreement to require

11

submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251-52.
I.

Motion of Drury
In his Motion for Summary Judgment, Drury argues Plaintiff fails to

establish a constitutional violation against him for denial of medical care. Drury
further argues he is entitled to qualified immunity and Plaintiff may not recover
punitive damages from him.

In his Response, Plaintiff argues he suffered a

constitutional deprivation because medical treatment was delayed. As a result of
this delayed treatment, Drury is not entitled to qualified immunity and Plaintiff is
entitled to punitive damages.
A.

Eighth Amendment Violation – Denial of Medical Care
1.

Standard of Review

42 U.S.C. § 1983 provides a claim for relief against state actors for violation
of a plaintiff’s constitutional rights. Becker v. Kroll, 494 F.3d 904, 914 (10th Cir.
2007). Under the Eighth Amendment, prisoners have a constitutional right to
medical care, which is violated when doctors or prison officials are deliberately
indifferent to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97,

12

103-04 (1976).7 The Tenth Circuit recognizes two types of conduct amounting to
deliberate indifference in the context of prisoner medical care. “First, a medical
professional may fail to treat a serious medical condition properly.” Sealock v.
Colorado, 218 F.3d 1205, 1211 (10th Cir. 2000). When this type of conduct is
alleged, “the medical professional has available the defense that he was merely
negligent in diagnosing or treating the medical condition, rather than deliberately
indifferent.” Id. (citing Estelle, 429 U.S. at 105-06). Second, prison officials may
“prevent an inmate from receiving treatment or deny him access to medical
personnel capable of evaluating the need for treatment.” Id. (citing Ramos v.
Lamm, 639 F.2d 559, 575 (10th Cir. 1980)). A prison medical professional who
serves solely “as a gatekeeper for other medical personnel capable of treating the
condition” may be liable under this standard if he or she “delays or refuses to fulfill
that gatekeeper role due to deliberate indifference.” Id.

7

Although Plaintiff seeks relief pursuant to the “Fourteenth and/or Eighth Amendment” (see
Dkt. 3), his claims for deliberate indifference in providing medical treatment are properly
addressed under the Eighth Amendment, because he was a convicted inmate. Pretrial detainees
are protected under the Fourteenth Amendment’s due process clause while convicted inmates are
protected by the Eighth Amendment. Garcia v. Salt Lake Cnty., 768 F.2d 303, 307 (10th Cir.
1985). When Plaintiff was booked into the LCDC on September 4, 2014, he had been arrested
on a revocation of a suspended sentence. Accordingly, Plaintiff was not a pretrial detainee, as he
had already been convicted of a crime.

13

Deliberate indifference “involves both an objective and a subjective
component.” Olsen v. Layton Hills Mall, 312 F.3d 1304, 1315 (10th Cir. 2002)
(citing Sealock, 218 F.3d at 1209). To satisfy the objective component, “the
alleged deprivation must be ‘sufficiently serious’ to constitute a deprivation of
constitutional dimension.” Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “A medical need is
sufficiently serious ‘if it is one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.’” Sealock, 218 F.3d at 1209
(quoting Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999)). The question
raised by the objective prong “is whether the alleged harm . . . is sufficiently
serious . . . , rather than whether the symptoms displayed to the prison employee
are sufficiently serious.” Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005).
To satisfy the subjective component, there must be evidence that “the
official ‘knows of and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and [s]he must also draw the inference.’”
Mata, 427 F.3d at 751 (quoting Farmer, 511 U.S. at 837).

The subjective

component may be satisfied if the jury can “infer that a prison official had actual
14

knowledge of the constitutionally infirm condition based solely on circumstantial
evidence, such as the obviousness of the condition.” Tafoya v. Salazar, 516 F.3d
912, 916 (10th Cir. 2008) (citing Farmer, 511 U.S. at 842).
Moreover, the subjective component may be satisfied if the defendant’s
“delay in providing medical treatment caused either unnecessary pain or a
worsening of [his] condition. Even a brief delay may be unconstitutional.” Mata,
427 F.3d at 755. However, the “‘negligent failure to provide adequate medical
care, even one constituting medical malpractice, does not give rise to a
constitutional violation.’” Self, 439 F.3d at 1233 (quoting Perkins v. Kan. Dep’t of
Corr., 165 F.3d 803, 811 (10th Cir. 1999)).
2.

Objective Inquiry – Serious Medical Condition

Here, Plaintiff cannot satisfy the objective component required to prove
Drury committed an Eighth Amendment violation. Plaintiff’s allegations that a
constitutional violation occurred focus on the bedsores that developed on his hips
and buttocks while at LCDC. Prior to September 16, 2014, Plaintiff had no
noticeable bedsores on his hips or buttocks that required treatment. (See Dkt. 1076 (Dr. Stone Deposition), 135:7-10, 136:20-137:2). When the closed, reddened
sore appeared on Plaintiff’s hip on September 16, 2014, the condition did not
warrant sending Plaintiff to the hospital or even calling a doctor, according to
15

Plaintiff’s own expert, Dr. Stone. (See id. at 137:3-19). Nor did the hip wound or
the developing wound on Plaintiff’s buttocks warrant physician examination or
hospital transport on September 17, 18, or 19, according to Plaintiff’s expert. (See
id. at 143:1-6, 144:16-22).
Drury was not at the jail on September 20th, or 21st, which meant he was
not in a position to determine the seriousness of Plaintiff’s bedsores. (Dkt. 107, at
11 (Drury’s Undisputed Fact No. 42)). On September 22, 2014, the bedsores had
become serious, but Drury immediately arranged for hospital transport for Plaintiff
upon examination of those wounds.8 Dkt. 107-31 (Drury Deposition), at 84:1821). At no point when Drury was on duty prior to September 22 did Plaintiff’s
wounds obviously require a doctor’s attention. As a result, Plaintiff has failed to
satisfy the objective component by establishing his hip and buttocks sores were
sufficiently serious to require a physician’s care between September 4 and
September 19, 2014.

8

Plaintiff disputes whether Drury contacted Olive after observing Plaintiff’s bedsores on
September 22, 2014, pointing to Olive’s testimony contradicting Drury’s testimony to that effect.
(See Dkt. 120-2 (Olive Deposition), 29:10-20, 32:19-33:1). Plaintiff further disputes whether
Olive ordered Plaintiff’s transfer to EOMC. However, it is undisputed that Plaintiff went to
EOMC on September 22, 2014, immediately after Drury’s examination of Plaintiff’s wounds.
Therefore, it is immaterial for purposes of Drury’s Motion whether Olive or someone else
actually ordered the transfer to EOMC.

16

3.

Subjective Inquiry – Intentional Disregard of Substantial
Risk of Harm

Even if Plaintiff could establish his injuries were sufficiently serious prior to
September 22nd, Plaintiff fails to satisfy the subjective component of the deliberate
indifference test.

Drury submits ample evidence that he cared for Plaintiff’s

medical issues and treated Plaintiff’s bedsores in a manner he thought appropriate,
using his judgment as a medical professional. Plaintiff may have disagreed with
Drury’s treatment of his bedsores, but he provides no evidence that Drury failed to
treat him or ignored his serious medical issues. See Ramos, 639 F.2d at 575 (“a
mere difference of opinion between the prison’s medical staff and the inmate as to
the diagnosis or treatment which the inmate receives does not support a claim of
cruel and unusual punishment.”).
The evidence shows that, shortly after his booking on September 4, 2014,
Drury contacted Olive to evaluate the pressure sore on Plaintiff’s heel. (Dkt. 10731 (Drury Deposition), 39:9-40:2). At that time, Olive recommended Plaintiff
transfer to EOMC for evaluation, but Plaintiff refused.

(Dkt. 107-31 (Drury

Deposition), 40:23-41:3). Plaintiff also refused to wear his prescribed compression
hose to reduce his swelling. (Dkt. 120-2 (Olive Deposition), 24:8-12). Plaintiff
eventually agreed to go to EOMC for evaluation on September 6, 2014. (Dkt. 10717

31 (Drury Deposition), 48:4-24, 51:16-20). Following Plaintiff’s return to the jail,
Drury remained attentive to Plaintiff’s bedsores and was monitoring them daily.
(See Dkt. 107-31 (Drury Deposition), 43:1-24; Dkt. 107-1 (Plaintiff Deposition),
346:16-20, 359:8-16, 362:13-18, 368:15-18, 375:20-22).

At the jail, Plaintiff

refused to wear the heel protectors EOMC prescribed to prevent pressure sores.
(Dkt. 107-31 (Drury Deposition), 51:3-15).
In addition to regularly changing the dressings on Plaintiff’s foot and ankle
sores, Drury made sure Plaintiff was turned, administered Plaintiff’s medications,
and assisted Plaintiff with his bowel program and catheter procedure. (Dkt. 107-31
(Drury Deposition), 104:9-25; Dkt. 107-1 (Plaintiff Deposition), 335:2-336:3,
375:12-19, 476:8-11, 537:22-538:19).

Plaintiff’s wound care expert has no

criticism of the treatment Drury provided for Plaintiff’s wounds between
September 7 and September 16, 2014. (Dkt. 107-6 (Dr. Stone Deposition), 135:1624).
Drury monitored and applied dressings to the reddened area on Plaintiff’s
hip, when it appeared on September 16th. According to Plaintiff’s own wound
care expert, such reddening can occur without negligence, and such sores can
worsen even with appropriate treatment. (Dkt. 107-6 (Dr. Stone Deposition),
144:7-11). On September 16-19, that reddened area and additional reddened areas
18

did not warrant examination by a doctor or transport to the hospital. (Id. at 137:16140:15, 142:1-144:22). The wounds apparently worsened over the weekend of
September 20-21, when Drury was off duty and not at the jail. When Drury
returned to the jail on September 22, 2014, and observed that Plaintiff’s wounds
had worsened, he was sent immediately to EOMC for treatment. Dkt. 107-31
(Drury Deposition), at 84:18-21).
Plaintiff’s wound care expert testified to two concerns regarding Drury’s
treatment of Plaintiff after September 16th—that Drury should have been checking
Plaintiff more frequently than he did, and Drury should have made sure Plaintiff
was turned more often than he was. (Dkt. 107-6 (Dr. Stone Deposition), 138:1725, 141:14-23, 142:14-25, 144:19-22). However, Dr. Stone also testified there
could be a disagreement about how best to care for a person with Plaintiff’s
physical issues and injuries. (Dkt. 107-6 (Dr. Stone Deposition), 43:1-7). These
concerns, while perhaps rising to the level of medical negligence, fail to establish
deliberate indifference amounting to a constitutional violation. Negligence alone
does not amount to a constitutional violation. Self, 439 F.3d at 1233. There is no
evidence that Drury knew of and disregarded a substantial risk of harm to Plaintiff
caused by his bedsores.

No reasonably juror could conclude Drury’s actions

evince deliberate indifference to Plaintiff’s medical needs.
19

4.

Plaintiff’s Additional Arguments

In his Response, Plaintiff raises two additional arguments in support of his
claim that Drury acted with deliberate indifference. Each argument is addressed
below.
a)

Failure to Perform Gatekeeper Role

First, Plaintiff argues an issue of fact remains regarding Drury’s failure to
perform his role as a gatekeeper of medical information. As explained above, a
prison medical professional who serves “solely . . . as a gatekeeper for other
medical personnel capable of treating the condition” may be held liable under the
deliberate indifference standard if he “delays or refuses to fulfill that gatekeeper
role due to deliberate indifference.” Sealock, 218 F.3d at 1211. Plaintiff argues
Drury’s role as a gatekeeper has been established, because he was required to
report Plaintiff’s condition to Olive, the Nurse Practitioner at LCDC. Plaintiff
asserts Drury failed to fulfill his gatekeeping role by failing to contact Olive about
the “open sores” on Plaintiff’s hips and buttocks on September 16th. (Dkt. 120, at
20).

According to Plaintiff, Drury’s failure to call Olive rises to deliberate

indifference.
Plaintiff’s argument is not compelling. As an initial matter, Plaintiff cites to
no evidence supporting his contention that Drury was required to report any
20

change in Plaintiff’s condition to Olive, and Drury disputes this contention. The
evidence shows Drury himself was treating Plaintiff’s bedsores, using his own
judgment as a medical provider. Accordingly, Drury’s status as a “gatekeeper” is
itself questionable.
Second, Plaintiff provides no evidence to support his assertion that Drury
knew Plaintiff’s hip and buttocks wounds had opened by September 16th, which
would have necessitated a consultation with Olive. To the contrary, Drury’s typed
notes from that date indicate the hip and buttocks wounds were closed and he was
applying dressings to those wounds. (See Dkt. 120-6 (Drury’s Notes)). Plaintiff’s
wound care expert testified that Drury would have had to make a judgment call
about Plaintiff’s reddened areas as late as September 19th. (Dkt. 107-6 (Dr. Stone
Deposition), at 145:20-23). Accordingly, the decision as to when to call Olive was
also a matter of Drury’s judgment as a medical provider.
In short, there is no evidence that Drury refused to call Olive despite an
obvious condition that required more extensive medical care. “[T]he subjective
component is not satisfied, absent an extraordinary degree of neglect, where a
[prison health official] merely exercises his considered medical judgment,” which
traditionally includes decisions such as “whether to consult a specialist or
undertake additional medical testing.” Self, 439 F.3d at 1232. Thus, to the extent
21

Drury was acting as a gatekeeper of medical information, his failure to call Olive
on September 16th, 17th, 18th, or 19th did not rise to the level of deliberate
indifference.
b)

Falsification of Medical Records

Second, Plaintiff argues Drury’s falsification of medical records evidences
deliberate indifference to Plaintiff’s medical condition. It is undisputed that Drury
was terminated from his position for falsifying medical records as they related to
Plaintiff. Donnie Edwards, the Jail Administrator for LCDC, testified that Drury
was terminated because “[h]e went back on his memory and tried to make records
of everything that happened, and he got some of the dates wrong.” (Dkt. 120-7
(Edwards Deposition), 45:11-13).
It is apparent that Drury’s handwritten notes are at least partially inaccurate,
insofar as they describe treatment of Plaintiff at LCDC occurring after September
22nd, when Plaintiff was no longer at LCDC. (See Dkt. 120-8 (Nurse’s Notes), at
8-9) (noting treatment of Plaintiff on Sept. 23-25, 2014). Drury does not deny
Plaintiff’s allegation that the medical records were falsified, and he offers no
explanation for the plain inaccuracies in the notes. However, Drury maintains the
falsification of Plaintiff’s medical records, even if true, is insufficient to prove
deliberate indifference.
22

The Court agrees with Drury that the falsification of medical records is itself
insufficient to demonstrate deliberate indifference.

“A showing of deliberate

refusal to provide medical attention, as opposed to a particular course of treatment,
coupled with falsification of medical records may give rise to an Eighth
Amendment violation and is cognizable under 42 U.S.C. § 1983.”

Green v.

Branson, 108 F.3d 1296, 1304 (10th Cir. 1997). Under this standard, Plaintiff
must prove not only the falsification of the medical records, but also refusal to
provide medical treatment.
Plaintiff presents no evidence from which a jury could conclude that Drury
refused to provide him medical treatment. Rather, the undisputed facts show
Drury monitored Plaintiff’s condition and provided wound care throughout
Plaintiff’s stay at LCDC.

Drury also assisted Plaintiff with his showers,

medications, catheter, and bowel program. Drury determined on September 22nd
that Plaintiff needed transport to a hospital for further care of his bedsores.
Accordingly, no reasonable juror could find that Drury acted with deliberate
indifference based solely on the falsification of medical records.
***
Plaintiff’s dissatisfaction over the kind of care Drury provided at LCDC is
insufficient to establish a constitutional violation pursuant to 42 U.S.C. § 1983. A
23

mere difference of opinion regarding medical treatment does not amount to an
Eighth Amendment violation for cruel and unusual punishment. See Ramos, 639
F.2d at 575. Nor does the negligent failure to provide adequate medical care, even
if amounting to medical malpractice, give rise to a constitutional violation. Self,
439 F.3d at 1233. See Sanaah v. Howell, 384 F. App’x 737, 741 (10th Cir. 2010)
(finding Plaintiff’s disagreement with the amount of treatment received for a gash
on his head was “not sufficient to suggest a constitutional violation, much less
deliberate indifference.”). Accordingly, Drury is entitled to summary judgment in
his favor on Plaintiff’s 42 U.S.C. § 1983 claim against him.9
B.

Qualified Immunity

Drury also contends he is entitled to qualified immunity from personal
liability for the § 1983 deliberate indifference claim alleged against him. “The
doctrine of qualified immunity shields government officials performing
discretionary functions from liability for damages ‘insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Boles v. Neet, 486 F.3d 1177, 1180 (10th
Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

9

Because the Court concludes Drury committed no constitutional violation against Plaintiff, the
Court will not address Drury’s separate arguments pertaining to proof of causation.

24

Accordingly, in a § 1983 action in which the affirmative defense of qualified
immunity from liability is at issue, the plaintiff bears the burden to show (1) the
defendant’s conduct violated his constitutional rights, and (2) those rights were
clearly established at the time of the defendant’s alleged misconduct. Mick v.
Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996).
As explained above, Plaintiff has failed to demonstrate Drury violated
Plaintiff’s Eighth Amendment rights by failing to treat Plaintiff’s wounds properly
or send Plaintiff to the hospital prior to September 22, 2014. Plaintiff’s failure to
satisfy the first prong of the qualified immunity analysis renders it unnecessary for
the Court to consider whether Plaintiff satisfied his burden under the second prong.
See Hinton v. City of Elwood, Kan., 997 F.2d 774, 780 (10th Cir. 1993).
C.

Punitive Damages

Finally, Drury seeks summary judgment on Plaintiff’s claim for punitive
damages. Punitive damages are appropriate in an action under § 1983 only if the
challenged conduct is “‘shown to be motivated by evil motive or intent, or when it
involves reckless or callous indifference to the federally protected rights of
others.’” Searles v. Van Bebber, 251 F.3d 869, 879 (10th Cir. 2001) (quoting
Smith v. Wade, 461 U.S. 30, 56 (1983)).

Plaintiff offers no evidence to

demonstrate Drury exhibited malevolent intent or reckless indifference to
25

Plaintiff’s needs. To the contrary, the evidence described above shows Drury
attended to Plaintiff’s medical needs, including his bedsores.

At most, the

evidence points to possible negligence, which is a far cry from the evil intent or
callous indifference required to obtain punitive damages. Accordingly, Drury is
entitled to summary judgment in his favor on Plaintiff’s claim for punitive
damages.
II.

Motion of Board
A.

Section 1983 Municipal Liability

Plaintiff alleges the Board is liable under 42 U.S.C. § 1983 for failure to
provide medical treatment, in violation of his Eighth Amendment rights, and for
failure to train and supervise its employees, which led to constitutional violations.
The Board argues Plaintiff cannot prevail on this claim, because he cannot
establish municipal liability against the Board, which is a necessary element for a §
1983 claim against it. To state a claim under § 1983 against a municipality, a
plaintiff must prove: “(1) that a municipal employee committed a constitutional
violation, and (2) that a municipal policy or custom was the moving force behind
the constitutional deprivation.” Myers v. Okla. Cnty. Bd. of Cnty. Comm’rs, 151
F.3d 1313, 1316 (10th Cir. 1998) (citing Monell v. Dep’t of Social Servs., 436 U.S.
658, 694 (1978)).
26

The Court concludes Plaintiff’s municipal liability claim fails on the first
element of the test—that an employee committed an Eighth Amendment violation.
The Court has set forth the standard for evaluating an Eighth Amendment claim for
denial of medical treatment above, in Part I.A.1. The Board concedes Plaintiff was
suffering from a sufficiently serious medical condition, but asserts Plaintiff cannot
establish anyone at LCDC intentionally disregarded a substantial risk of harm to
Plaintiff. The Court agrees.
With respect to Plaintiff’s medical treatment, Plaintiff argues LCDC staff
was indifferent to his medical needs, which resulted in serious bedsores developing
on his hips and buttocks. However, for the reasons explained above in Part I, the
Court concludes the treatment of Plaintiff’s hip and buttocks bedsores did not
evince deliberate indifference, and Drury, who was primarily responsible for
Plaintiff’s wound care, did not commit a constitutional violation against Plaintiff.
Further, it is undisputed that other jail staff, including Lowe, assisted Plaintiff with
his medical and hygiene needs when Drury was not at the jail. (See Dkt. 105, at 45, 9 (Board’s Undisputed Fact Nos. 13, 16, 18, 24, 52, 53)). As explained above,
Plaintiff’s difference of opinion with Drury regarding the proper course of
treatment is insufficient to state a claim pursuant to 42 U.S.C. § 1983. See Ramos,
639 F.2d at 575 (“a mere difference of opinion between the prison’s medical staff
27

and the inmate as to the diagnosis or treatment which the inmate receives does not
support a claim of cruel and unusual punishment.”). Moreover, to the extent the
evidence supports a finding of medical negligence, deliberate indifference requires
more than negligence, even gross negligence. Barrie v. Grand Cnty., Utah, 119
F.3d 862, 869 (10th Cir. 1997) (citing Berry v. City of Muskogee, 900 F.2d 1489,
1495-96 (10th Cir. 1990)).
As shown above in Part I, the uncontroverted evidence fails to support a
constitutional claim for denial of medical care.

The lack of a constitutional

violation by a municipal officer negates a finding of liability against the
municipality, even if the municipality’s policies might have authorized such harm.
Hinton, 997 F.2d at 782. Because Plaintiff’s claim for municipal liability fails on
this element, the Court will not examine whether a Board policy caused the alleged
constitutional violations.
In addition, Plaintiff has alleged the Board failed to properly train and
supervise its jail employees. A municipality may be liable under § 1983 for failure
to train “only where the failure to train amounts to deliberate indifference” to
inmate rights. City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989). Section
1983 liability for such a claim requires a failure to train that “reflects a ‘deliberate’
or ‘conscious’ choice by a municipality.” Id. at 389. To prevail on a failure to
28

supervise claim, a plaintiff must present evidence of an affirmative link between
the alleged constitutional violations and the municipality’s failure to supervise.
Meade v. Grubbs, 841 F.2d 1512, 1527 (10th Cir. 1988).
Here, as the Board points out, Plaintiff offers no evidence of any
deficiencies in the training of the LCDC staff who cared for Plaintiff, much less
evidence that this failure to train caused LCDC staff to be deliberately indifferent
to his medical needs. In addition, Plaintiff fails to establish any affirmative link
between any failure to supervise and a constitutional violation. Plaintiff simply
does not address these claims in his Response to the Board’s Motion for Summary
Judgment. As a result, summary judgment in favor of the Board is appropriate on
Plaintiff’s failure to train and failure to supervise claims.
B.

Americans with Disabilities Act

The Board next argues Plaintiff’s claims under the ADA must fail. With
respect to the ADA, Plaintiff alleges LCDC staff failed to provide proper medical
treatment or proper toilet facilities, would not allow him to shower consistently,
did not provide a trapeze bar or a special mattress, and provided unequal access to
communication mechanisms. To establish a claim under Title II of the ADA,
Plaintiff must demonstrate that (1) he is a qualified individual with a disability; (2)
he was excluded from participation in or denied the benefits of a public entity’s
29

services, programs, or activities; and (3) such exclusion, denial of benefits, or
discrimination was because of his disability.

Robertson v. Las Animas Cnty.

Sheriff’s Dep’t, 500 F.3d 1185, 1193 (10th Cir. 2007). See 42 U.S.C. § 12132.10
The Board admits Plaintiff is a qualified individual with a disability, but disputes
that Plaintiff was denied benefits, services, and activities at the LCDC because of
his disability.
1.

Failure to Provide Proper Medical Treatment

First, Plaintiff asserts his failure to receive adequate and timely medical care
is a violation of the ADA. However, the ADA does not provide a remedy for
medical negligence or a means to challenge “purely medical decisions” regarding a
course of treatment. Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th
Cir. 2005).

As explained above in Parts I.A and II.A, Plaintiff’s claim of

inadequate medical treatment amounts to no more than a negligence claim, as it
rests on a difference of opinion regarding the proper treatment for his bedsores. In
addition, Plaintiff has not alleged he received worse or different medical treatment
than non-disabled inmates because of his paraplegia, which also defeats his ADA
claim for inadequate medical treatment. See Schmidt v. Odell, 64 F. Supp. 2d

10

These protections extend to inmates detained in a county jail. See Pennsylvania Dep’t of Corr.
v. Yeskey, 524 U.S. 206, 210 (1998).

30

1014, 1031 (D. Kan. 1999) (finding that the ADA prohibits jails from
“discriminating against a qualified individual with a disability on account of that
disability.”) (emphasis added). Accordingly, Plaintiff presents no actionable claim
under the ADA based on inadequate medical treatment.
2.

Denial of Access to Proper Toilet Facilities

Second, Plaintiff asserts he was denied access to proper toilet facilities at
LCDC. Specifically, Plaintiff complains he received inadequate assistance with
his special catheter and bowel program, which he required because of his
paraplegia.11 As a factual matter, Plaintiff admits that Drury assisted Plaintiff with
his catheter and bowel program when Drury was on duty. (Dkt. 105, at 4-5
(Board’s Undisputed Fact Nos. 16, 18-10)). Plaintiff also admits LCDC staff
helped him change his catheter. (Dkt. 105-1 (Plaintiff Deposition), 373:4-14).
However, Plaintiff testified he was not assisted with his bowel program on two
occasions—on September 2, 2014, and over the weekend of September 20-21,
2014. Plaintiff testified that on September 2nd, he defecated on himself when
Drury refused to assist him with his bowel program, and jailers refused to help him
clean up.

(Dkt. 112-1 (Plaintiff Deposition), 547:20-550:12).

Plaintiff also

11

It is undisputed that Plaintiff’s cell at LCDC had a toilet and a sink. (Dkt. 105, at 8 (Board’s
Undisputed Fact No. 43)).

31

testified that on Saturday, September 20, jailers refused to provide him with bowel
assistance, causing him again to defecate on himself. (Id. at 558:10-559:21).
Plaintiff testified he had to remain in his soiled clothes until the following Monday,
because jailers refused to provide him with clean clothes. (Id. at 559:22-560:17).
Even if Plaintiff’s testimony is true, these matters are not properly remedied
by the ADA. Instead, such violations are properly raised as medical negligence or
constitutional claims. See Fitzgerald, 403 F.3d at 1144; Nasious v. Colorado, 495
F. App’x 899, 902 (10th Cir. 2012); Evans v. Rozum, 2008 WL 5068963, at *10
(W.D. Penn. Nov. 24, 2008) (“[S]howering, defecating, etc., is no more a program
or activity than is sleeping. Denial of [plaintiff’s] bowel program supplies . . . does
not constitute a violation of Title II of the ADA as a matter of law.”). Even if such
a claim were available, Plaintiff fails to demonstrate he was discriminated against
or treated differently than non-disabled inmates regarding toilet access because of
his disability. As a result, this ADA claim also fails.
3.

Denial of Access to Shower Facilities

Third, Plaintiff alleges he was denied access to shower facilities. The Board
argues this claim is deficient, because Plaintiff cannot prove any of the three
theories of discrimination under the ADA:

(1) intentional discrimination, (2)

discriminatory impact, or (3) a refusal to make a reasonable modification.
32

Swenson v. Lincoln Cnty. Sch. Dist. No. 2, 260 F. Supp. 2d 1136, 1144 (D. Wyo.
2003).
Plaintiff testified he received three or four showers during the eighteen days
he was incarcerated at LCDC, but he was not allowed to take a shower whenever
he requested one. (Dkt. 112-1 (Plaintiff Deposition), 541:22-542:2, 543:12-14).
Plaintiff was allowed to bring his shower chair from home and use it while housed
in the jail. Plaintiff testified he was wheeled naked once through the booking area
to reach the shower area. (Dkt. 112-1 (Plaintiff Deposition), 544:21-547:13).
Plaintiff further testified the jail employees laughed as he was wheeled naked
through the booking area to the shower room. (Dkt. 112-1 (Plaintiff Deposition),
546:10-17).12
The Court concludes Plaintiff’s testimony, even if true, does not suffice to
demonstrate any of the three theories of ADA discrimination. First, the LCDC did
not intentionally discriminate against Plaintiff due to his disability. This standard
is akin to the deliberate indifference standard. See Swenson, 260 F. Supp. 2d at
1144-45. LCDC staff provided Plaintiff assistance with his showering and, after
Plaintiff refused to use the jail-provided shower chair, allowed Plaintiff to use his

12

By contrast, Drury’s testified that Plaintiff was always covered with a blanket when he was
wheeled to the shower room. (Dkt. 105-3 (Drury Deposition), 109:4-20).

33

own shower chair from home. (Dkt. 105, at 5 (Board’s Undisputed Fact Nos. 2223)). Jail staff wheeled Plaintiff to the shower room at least three times during his
eighteen-day stay at LCDC. It is undisputed that LCDC inmates in holding cells,
such as Plaintiff, were asked daily whether they wanted to take a shower. (Dkt.
105, at 5 (Board’s Undisputed Fact No. 21)).13 Although there remains a dispute
as to whether jail staff wheeled Plaintiff naked through the booking area once on
the way to the shower room, it is undisputed that he was covered with a blanket on
subsequent trips to the shower. These facts fail to establish a “sufficiently culpable
state of mind” amounting to deliberate indifference to a substantial risk of violating
Plaintiff’s rights under the ADA. See Farmer v. Brennan, 511 U.S. 825, 834
(1994)). Plaintiff’s dissatisfaction with the frequency of showers, and his one-time
embarrassment from being wheeled naked through the booking area, which was
remedied on subsequent trips to the shower room, do not evidence deliberate
indifference.
Second, Plaintiff cannot establish discriminatory impact.

Plaintiff was

assisted with his showers, and he offers no evidence that other non-disabled
inmates were permitted to shower more frequently.

Third, Plaintiff cannot

13

Plaintiff denies this Undisputed Fact in his Response, but his supporting testimony states only
that he was unable to shower whenever he requested it. (Dkt. 112-1 (Plaintiff Deposition),
541:18-543:7).

34

establish an ADA violation under a reasonable modification theory. Plaintiff was
able to shower effectively by use of the reasonable modification of a shower chair.
An existing building may be considered ADA-compliant, without making
structural changes, “where other methods are effective in achieving compliance.”
Tyler v. City of Manhattan, 857 F. Supp. 800, 813 (D. Kan. 1994) (quoting 28
C.F.R. § 35.150(b)(1)) (quotation marks omitted). Here, the method of using a
shower chair was effective in achieving compliance. As a result, Plaintiff cannot
establish a violation of the ADA based on access to showering facilities.
4.

Denial of Access to Trapeze Bar and Special Mattress

In the Complaint, Plaintiff alleges that he was not provided a trapeze bar to
lift himself out of bed, which violated the ADA. The Board argues this claim fails,
because Plaintiff was able to pull himself out of bed using the top bunk and a slide
board to transfer to his wheelchair. (Dkt. 105, at 8 (Board’s Undisputed Fact No.
44)). The Board also argues that, to the extent Plaintiff asserts an ADA violation
based on denial of a special mattress for his bed at LCDC, this claim must fail.
Plaintiff was allowed to bring his gel mattress topper from home, and Plaintiff
never requested further accommodation.

(See Dkt. 105, at 3, 8 (Board’s

Undisputed Material Fact Nos. 4, 48)).

Plaintiff does not respond to these

35

arguments.

The Court considers these matters waived and grants summary

judgment in the Board’s favor on these issues.
5.

Denial of Access to Communication Mechanisms

Finally, in his Response brief, Plaintiff asserts he was “not provided the
same access to mechanisms for communicating with LCDC staff, as were nondisabled inmates.” (Dkt. 112, at 25). Plaintiff does not expand on this argument or
cite to any evidence in support. Plaintiff’s unsupported allegation is insufficient to
raise a genuine issue of material fact. The Court finds the Board is entitled to
summary judgment with respect to this issue.
C.

Rehabilitation Act

Lastly, the Board seeks summary judgment on Plaintiff’s claim under the
Rehabilitation Act.

The Rehabilitation Act prohibits discrimination against

disabled individuals by entities or programs that receive federal financial
assistance. 29 U.S.C. § 794. To prove a Rehabilitation Act claim, a plaintiff must
demonstrate four elements: (1) the plaintiff is disabled under the Act; (2) he is
“otherwise qualified” to participate in the program; (3) the program receives
federal financial assistance; and (4) the program has discriminated against the
plaintiff. See McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004). The
Board argues Plaintiff cannot prove this claim, because LCDC did not receive
36

federal funding during Plaintiff’s 2014 incarceration. (See Dkt. 105, at 7 (Board’s
Undisputed Fact No. 37)). In his Response brief, Plaintiff does not dispute the
Board’s statement of fact in this regard, and he does not respond to the Board’s
argument or otherwise address his Rehabilitation Act claim. Accordingly, the
Board is entitled to summary judgment on the Rehabilitation Act claim.
CONCLUSION
For the reasons detailed above, Defendant Ed Drury’s Motion for Summary
Judgment (Dkt. 107) is GRANTED. Defendant Leflore County Detention Center
Public Trust Board’s Motion for Summary Judgment (Dkt. 105) is GRANTED.
IT IS SO ORDERED this 2nd day of May, 2018.

37