Blazer v. Gall et al

Filing 101

ORDER denying 75 Motion for Summary Judgment; granting in part and denying in part 79 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 3/2/20. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
ROBERT BLAZER,

1:16-CV-01046-KES
Plaintiff,

vs.
KEITH GALL, CORSON COUNTY
SHERIFF, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; JOSH BOLL,
WALWORTH COUNTY SHERIFF, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
DEPUTY ALAN D DALE, DEPUTY AT
CORSON COUNTY SD, INDIVIDUALLY
AND OFFICIAL CAPACITY; DEPUTY
JUSTIN TVEDT, DEPUTY AT CORSON
COUNTY SD, INDIVIDUALLY AND
OFFICIAL CAPACITY; DEPUTY MIKE
VARILEK, DEPUTY AT CORSON
COUNTY SD, INDIVIDUALLY AND
OFFICIAL CAPACITY; JAILER/GUARD
KILEY FRANKLIN, JAILER/GUARD AT
WALWORTH COUNTY JAIL,
INDIVIDUALLY AND OFFICIAL
CAPACITY; JAILER/GUARD KIMBERLY
LONGBRAKE, JAILER/GUARD AT THE
WALWORTH COUNTY JAIL,
INDIVIDUALLY AND OFFICIAL
CAPACITY; JUSTIN JUNGWIRTH,
WALWORTH COUNTY JAIL SD,
INDIVIDUALLY AND OFFICIAL
CAPACITY; JAILER/GUARD MARRISSA
MICKELSON, JAILER/GUARD AT
WALWORTH COUNTY JAIL,
INDIVIDUALLY AND OFFICIAL
CAPACITY; JAILER/GUARD HEATHER
KROONJE, JAILER/GUARD AT
WALWORTH COUNTY JAIL,
INDIVIDUALLY AND OFFICIAL

ORDER GRANTING AND DENYING
DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT

CAPACITY; JAILER/GUARD PATTY
DUNWOODY, JAILER/GUARD AT
WALWORTH COUNTY JAIL,
INDIVIDUALLY AND OFFICIAL
CAPACITY; JAILER/GUARD JEREMY
JOHNSON, JAILER/GUARD AT
WALWORTH COUNTY SD JAIL,
INDIVIDUALLY AND OFFICIAL
CAPACITY; JAILER/GUARD LANCE
SCHNAIBLE, JAILER/GUARD AT
WALWORTH COUNTY JAIL SD,
INDIVIDUALLY AND OFFICIAL
CAPACITY; DEPUTY TRAVIS BENTZ,
DEPUTY AT WALWORTH COUNTY
JAIL, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITY; RONNIE
DUCHENEAUX, JAILER/GUARD AT
WALWORTH COUNTY JAIL, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITY;
GLENN BISSETT, JAILER/GUARD AT
THE WALWORTH COUNTY JAIL, IN HIS
INDVIDUAL AND OFFICIAL CAPACITY;
TAMMY RICHARDS, JAILER/GUARD
AT THE WALWORTH COUNTY JAIL, IN
HER INDIVIDUAL AND OFFICIAL
CAPACITY; CINDY STRONGHEART,
GUARD/JAILER AT THE WALWORTH
COUNTY JAIL SD, IN HER INDIVIDUAL
AND OFFICIAL CAPACITY; WALWORTH
COUNTY, SOUTH DAKOTA; CORSON
COUNTY, SOUTH DAKOTA,
Defendants.

Plaintiff, Robert Blazer, a former pretrial detainee at the Walworth
County Jail, filed suit against Keith Gall, the Corson County Sheriff; Josh Boll,
the Walworth County Sheriff; Alan D. Dale, Justin Tvedt, and Mike Varilek,
Corson County deputies; Kylee Franklin, Kimberly Longbrake, Justin
Jungwirth, Marissa Mickelson, Heather Kroonje, Patty Dunwoody, Jeremy
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Johnson, Lance Schnaible, Travis Bentz, Ronnie Ducheneaux, Glenn Bissett,
Tammy Richards, and Cindy Strongheart, correctional officers and employees
at the Walworth County Jail; and Corson and Walworth Counties. 1 See Dockets
1, 8, 57. He sued all individual defendants in both their individual and official
capacities. Dockets 1, 8, 57. Blazer alleged a civil rights violation under 28
U.S.C. § 1983 against all defendants. Dockets 1, 8, 57. Walworth County
defendants (Bentz, Bissett, Boll, Ducheneaux, Dunwoody, Franklin, Johnson,
Jungwirth, Kroonje, Longbrake, Mickelson, Richards, Strongheart, and
Walworth County) and Corson County defendants (Dale, Gall, Tvedt, Varilek,
and Corson County) each moved separately for summary judgment. Dockets
75, 79. For the following reasons, the court denies Walworth County
defendants’ summary judgment motion, denies Corson County defendants’
summary judgment motions as to Corson County and the defendants in their
official capacities, and grants Corson County defendants’ summary judgment
motion as to the defendants in their individual capacities.
FACTUAL BACKGROUND
The facts, viewed in the light most favorable to the non-moving party, are
as follows:
Blazer was arrested on Corson County charges on October 14, 2015.
Docket 86 ¶ 4. Dale transported Blazer to the Walworth County Jail on October

Blazer originally sued Corson County State’s Attorney Eric Bogue along with
the above defendants, but his Second Amended Complaint terminated the suit
against Bogue. Docket 57.
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15, 2015, where he was held as a pretrial detainee until June 20, 2016. Id.
¶¶ 5-6. Corson County does not operate its own jail. See Docket 82-10, at 8-11.
Instead, it contracts with Walworth County to house pretrial detainees in the
Walworth County Jail. Id. The contract between the two counties states, in
part:
. . . Walworth County understands and agrees that it will provide
medical and dental care for prisoners and detainees of [Corson
County], provided, however, [Corson County] agrees to pay directly
Walworth County for the entire expense of all medical or dental
facilities, hospital expenses, drug expenses, physician fees, and
any other necessary and proper expenses arising out of required
medical or dental care. [Corson County] further understands and
agrees that the determination as to whether or not medical and
dental care is necessary is left to the sale [sic] discretion of the
Walworth County Sheriff’s Office.
Id. at 9. Under this agreement, Walworth County is responsible for providing
Corson County pretrial detainees with medical and dental care and
determining what care is necessary, and Corson County is responsible for
reimbursing Walworth County for the care it provides. 2 Id.
In practice, during the time Blazer was detained at the Walworth County
Jail, Corson County was responsible for ordering medications and arranging
medical treatment for Corson County detainees held at the Walworth County
Jail. See Docket 89-4 at 3; Docket 89-11 at 2. If a Corson County detainee had
to see the doctor, “it would be on [Corson] [C]ounty to come get [him] to take

Corson County argues that Blazer’s assertion that Corson County was not
paying for his medical care is based on hearsay, which may not be considered
at summary judgment. Docket 99 at 2. The court does not consider the
portions of the affidavit that are based on hearsay.
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[him] to the doctor and be seen to get [his] medications refilled . . . .” Docket
89-4 at 3. Walworth County did not directly obtain medical care for Corson
County detainees; rather, if a Corson County detainee like Blazer needed care,
the Walworth County staff would “advise Corson County and they would
handle it from there.” Docket 89-11 at 2.
Walworth County Jail employees provide differing accounts of how the
Walworth County Jail handled detainee complaints. Ducheneaux stated that he
would verbally convey to Franklin that a Corson County detainee made medical
complaints and requested additional medication. See Docket 89-6 at 7. Boll
testified that when a detainee made a nonurgent medical request, the detainee
filled out a medical form that was forwarded to the county where he or she was
facing charges. Docket 89-7 at 4-6.
In a preliminary health screening on October 16, 2015 at the Walworth
County Jail, Blazer reported that he suffered from diabetes, post-traumatic
stress disorder, and shoulder and arthritic pain. Docket 78-3 at 1. He arrived at
the jail with gabapentin, zolpidem tartrate, and alprazolam. Id. at 2. He reported
that he needed to take metformin and gabapentin. Id.
Blazer was taken to see Dr. Regg Hagge on October 27, 2015. See Docket
78-4. At the appointment, Dr. Hagge confirmed that Blazer actively suffered
from bipolar disorder, a collar bone fracture, degenerative arthritis, depression,
diabetes, PTSD, and tobacco dependence. Id. at 2. He prescribed a number of
medications that were then transferred to Family Pharmacy in Mobridge, South
Dakota, to be filled. See Docket 82-10 at 15. According to Family Pharmacy’s
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records, Dr. Hagge prescribed, among other medications, gabapentin,
oxycodone, duloxetine, and metformin. Id. Walworth County Jail staff began
administering metformin, gabapentin, oxycodone, alprazolam, and duloxetine
to Blazer, and recorded the administrations of the medication in his medication
administration record (MAR). Docket 72-4 at 24.
Blazer’s next doctor visit was with Dr. Robert Marciano on December 31,
2015. See Docket 78-5. During that visit, Dr. Marciano tested Blazer’s
hemoglobin A1C level, a measure that estimates a diabetic patient’s average
blood sugar over the preceding 90-day period. Docket 78-6 at 3; Docket 85
¶ 10. Blazer’s A1C level was 6.5%. Docket 78-6 at 3; Docket 78-10 at 4. Dr.
Marciano continued the prescriptions for metformin, gabapentin, duloxetine,
and alprazolam, and those prescriptions were transmitted to Family Pharmacy
to be filled. Docket 82-10 at 15. The Walworth County Jail staff continued
administering the medications to Blazer. Docket 72-4 at 3.
Blazer was taken to the doctor for the third and final time during his
detention at the Walworth County Jail on February 17, 2016. See Docket 78-6.
Varilek, a Corson County Deputy Sherriff, accompanied Blazer to that
appointment. Docket 86 ¶ 20. Varilek was present in the examination room for
the visit. Id. ¶ 21; Docket 82-5 at 2.
During the February 17, 2016 appointment, Dr. Marciano prescribed
metformin to Blazer for his diabetes, gabapentin for his chronic pain issues,
and duloxetine for his PTSD, along with lisinopril for hypertension and Zantac

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for epigastric discomfort. Docket 78-6 at 4. Family Pharmacy only received
orders to fill the Zantac and lisinopril prescriptions. Docket 86 ¶¶ 31, 32.
Family Pharmacy did not receive any other prescriptions for Blazer on or
around February 17, 2016, including the prescriptions for duloxetine,
metformin, or gabapentin. Id. ¶ 34.
According to Varilek, Dr. Marciano stated that the medications
prescribed during the visit were transmitted to the pharmacy to be filled.
Docket 89-17 at 4. Varilek did not pick up Blazer’s prescriptions after the visit.
Docket 86 ¶ 23. Rather, he returned Blazer to the Walworth County Jail. Id.
According to Blazer, Varilek informed Blazer that he was returning that evening
to pick up the prescriptions. Id. Varilek asserts that he informed Jungwirth
about the prescriptions and Jungwirth was to make sure they were picked up.
Id.
After the February 17, 2016 visit, Blazer began complaining that he was
not receiving all his medications. Docket 85 ¶ 14. Blazer asserts that he asked
Varilek after his February 17, 2016 appointment if they were going to pick up
his medications, and Varilek stated he was going to pick up the medications
later in the night. Docket 89-2 at 2. Blazer states that he asked Dale “quite a
few” times when Dale transported him to court appearances when Blazer would
be receiving his remaining medications. Id. at 6. He also alleges he was denied
medical slips numerous times but wanted to fill them out to alert jail officials to
his complaints. Id. at 7.

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One medical request slip filled out by Blazer at the Walworth County Jail
was produced by Corson County. See Docket 66-4. The form stated that Blazer
needed “all [his] meds,” alleging that he was diabetic and did not have his
diabetes medications. Id. This form was faxed to Corson County and received
on April 1, 2016. See id. The medical request slip that Blazer filled out at the
Walworth County Jail was not produced by Walworth County during discovery
or included in summary judgment evidence by Walworth County. Docket 65 at
4; see Docket 78.
On April 5, 2016, after three months of not receiving his medications,
Blazer alleges that he acted out to draw attention to the medical problems he
was facing. Docket 66-5. He covered the camera in his cell and “be[came]
agitated saying he was being tortured” by the defendants, who were not giving
him his diabetes medications. Id. On April 15, 2016, the lawyer representing
Blazer in his criminal case emailed Boll and the Corson County and Walworth
County State’s Attorneys to inform them that Blazer was still “not receiving
some of his prescribed medications which include PTSD meds, diabetic
injections and certain pain meds.” Docket 66-6.
After Blazer stopped being provided metformin, gabapentin, and
duloxetine, he alleges that he experienced: flu-like symptoms; nausea;
dizziness; insomnia; fatigue; increases in his anxiety, depression, PTSD
symptoms, pain, and thirst; headaches; cold sweats; wrenching stomach; and
frequent urination. Docket 88 ¶ 4. Blazer provided evidence that these
symptoms are a risk when patients abruptly cease the use of metformin,
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gabapentin, and duloxetine. Docket 78-15 at 4-5. Blazer alleges that he
reported these symptoms to the defendants on numerous occasions. 3 Docket
88 ¶ 5. Blazer claims that almost daily he asked the defendants to either
provide him his missing medications for diabetes, pain, and his psychiatric
problems, or to take him back to the doctor. Id ¶ 6.
Blazer was not taken back to the doctor after his verbal and written
complaints in April of 2016. Id. ¶ 7; Docket 66-6. Individual Walworth County
defendants’ recollection of Blazer’s complaints differ at times from Blazer’s
account, but all agree that Blazer’s complaints about not receiving all his
medications were never addressed. Blazer alleges that on April 20, 2016, in
response to a request for his medications, Mickelson told Blazer that if he had
taken the plea deal that was “on the table” he would have been given his
medications. Docket 66-3 at 10. Mickelson claims she does not recall if Blazer
ever complained about not receiving his medication. Docket 89-11 at 5. She
does not recall ever looking into the issues surrounding Blazer’s claims that he

On August 1, 2019, the court granted in part Blazer’s motion for spoliation
sanctions (Docket 64). See Docket 91. The court found that Walworth County
and Sheriff Boll spoliated evidence with the intent to deprive Blazer of the
evidence’s use in litigation. Id. at 13. The court granted sanctions under Rule
37(e)(1) and e(2), and ordered that at trial a jury instruction would be given
permitting the jury to presume the content of the overwritten recordings was
adverse to Walworth County and Sheriff Boll. Id. Thus, for purposes of these
summary judgment motions, the court presumes that the destroyed recordings
would support Blazer’s assertions that he informed the Walworth County
defendants numerous times that he was not receiving his medications, that he
suffered adverse symptoms as a result of him not receiving medications, and
that he told the Walworth County defendants that he was suffering those
symptoms. See Docket 87 at 3, n.1.
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did not receive his medications, despite authoring an email stating he was
taken off all medications except lisinopril and ranitidine. Id. at 7-8; Docket 8210 at 7. She states that she may have called someone about his medications,
or she may have looked at his MAR to determine what medications were being
administered to him. Docket 78-13 at 5.
Blazer alleges that Franklin told him he no longer had diabetes. Docket
66-3 at 12. But Franklin implies Blazer did not complain about any medical
issues after April 17, 2016, because he would have been taken to the doctor
every time he complained and he was not taken to the doctor after that date.
Docket 89-12 at 2-3. According to an April 19, 2016 email from Tvedt to Eric
Bogue, the Corson County State’s Attorney, Franklin told Tvedt that Blazer
“was taken off medications” because his glucose levels have been fine. Docket
82-10 at 12.
Longbrake recalls that “quite often” Blazer orally made medical requests
related to his diabetes, but she does not recall specifically what, if anything,
she did to address the complaints. Docket 89-3 at 3-5. Bisset and Strongheart
do not recall assisting Blazer in getting medical care other than providing a
medical request form to him, or that Blazer complained about not receiving his
medications. Docket 89-4 at 4-9; Docket 89-5 at 3-4. Ducheneaux recalls that
Blazer complained about not receiving medications but stated that he did not
perform any follow-up or attempt to make sure he received the medications,
other than providing Blazer with medical request forms. Docket 89-6 at 3-7.
Boll does not recall Blazer making any complaints about not receiving
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medications. Docket 89-7 at 10. Jungwirth similarly does not recall Blazer
making any complaints. Docket 89-8 at 3. Dunwoody stated that when Blazer
made complaints about not receiving his medications, she would have relayed
the complaints to someone at Corson County, possibly Tvedt or Varilek.
Docket 89-13 at 2-4. Schnaible testified that he provided Blazer six medical
forms to fill out, which were forwarded to Franklin. Docket 89-14 at 2-3.
Factual disputes also exist as to Corson County’s handling of Blazer’s
complaints. Gall recalls that he received a fax from the Walworth County Jail
indicating that Blazer was complaining about not receiving the care he needed
and having a sore on his toe. Docket 89-15 at 3-5. Gall followed up with
Walworth County about the sore on Blazer’s toe but did nothing about Blazer’s
complaint that he wasn’t receiving all of his medications. Id. at 5-6. Dale did
not recall ever being aware that Blazer was complaining about not receiving his
medications or doing anything in response. Docket 89-16 at 2-3. Varilek stated
he did not know which prescriptions were or were not refilled. Docket 89-17 at
3-4. After Blazer’s criminal attorney contacted the Corson County State’s
Attorney, Tvedt sent an email indicating that Franklin informed him that Blazer
was taken off his medications. Docket 82-10 at 12. Corson County defendants
did not attempt to contact Dr. Marciano or the Family Pharmacy where Blazer’s
prescriptions were sent to verify whether an error may have occurred in
transmitting the medicines. See Docket 86 ¶¶ 35-47. Corson County
defendants did not take Blazer back to see a doctor after the April complaints.
See id.
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Russ Hatch, a pharmacist at Family Pharmacy—where Blazer’s
prescriptions were typically sent—stated that he never received any calls
asking about Blazer’s medications. Docket 89-19 at 2. He confirmed that had
the jail asked for a refill request for Blazer’s missing medications he would have
sent that request to Blazer’s doctor for refill. Id. at 3-4. Dr. Marciano, who
prescribed the medications on February 17, 2016, confirmed that had Blazer or
the Walworth County Jail called the clinic to ask if Blazer should have been
receiving additional medications, he would have “certainly” looked into his
records to determine if more medications should have been transmitted to the
pharmacy. Docket 89-1 at 7-9.
Blazer claims that he continues to suffer psychological and emotional
injuries because he was denied medical care in the Walworth County Jail.
Docket 88 ¶ 8. He has nightmares, panic attacks, and is paranoid, and he
believes the defendants were trying to kill him. Id. When Blazer was transferred
to the South Dakota Department of Corrections, his A1C levels were tested
again on July 30, 2016. Docket 78-11 at 2. His A1C level was 7.4, 0.9 higher
than what it had been on December 31, 2015, and higher than the goal level
for a patient his age. Id.; Docket 78-10 at 4.
LEGAL STANDARD
Summary judgment is proper “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.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,

12

323 (1986) (“[A] party seeking summary judgment always bears the initial
responsibility of . . . demonstrat[ing] the absence of a genuine issue of material
fact.”).
Once the moving party meets its initial burden, the nonmoving party
must establish “that a fact . . . is genuinely disputed” either by “citing to
particular parts of materials in the record,” or by “showing that the materials
cited do not establish the absence . . . of a genuine dispute[.]” Fed. R. Civ. P.
56(c). “The nonmoving party may not ‘rest on mere allegations or denials, but
must demonstrate on the record the existence of specific facts which create a
genuine issue for trial.’ ” Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th
Cir. 2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir.
1995)). For purposes of summary judgment, the facts and inferences drawn
from those facts are “viewed in the light most favorable to the party opposing
the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)).
DISCUSSION
I.

Deliberate Indifference of Individual Defendants in Their Individual
Capacities
Blazer claims that the defendants failed to provide him medical care, a

civil rights violation under 42 U.S.C. § 1983. Section 1983 provides that
“[e]very person who, under color of [law], subjects, or causes to be subjected,

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any citizen . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured . . . .”
42 U.S.C. § 1983. The Eighth Amendment protects post-conviction prisoners
from “wanton infliction of unnecessary pain.” Estelle v. Gamble, 429 U.S. 97,
105 (1976). The Fourteenth Amendment provides pretrial detainees protection
that is “at least as great” as that afforded to post-conviction prisoners. Walton
v. Dawson, 752 F.3d 1109, 1117 (8th Cir. 2014) (emphasis removed) (internal
quotations omitted).
Pretrial detainees are protected from deliberate indifference to their
medical needs. See Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir. 1997).
Deliberate indifference includes intentional denial or delay of access to medical
care or intentional interference with treatment once prescribed. Estelle, 429
U.S. at 104-05. To establish a deliberate indifference claim, a prisoner must
show (1) that he suffered objectively serious medical needs and (2) that the
defendants knew of and disregarded those needs. Coleman, 114 F.3d at 784.
Here, Blazer claims that he was denied three of his prescriptions for over
four months—between his February 17, 2016 doctor’s appointment and his
transfer to the South Dakota Department of Corrections on June 20, 2016.
Docket 87 at 2. Blazer claims that the defendants failed to secure Blazer’s
prescriptions, despite his complaints to them and asking for their help. Id.

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Blazer claims that these actions amount to deliberate indifference to his
serious medical needs. 4 Id. at 12-14.
A.

Whether Blazer Suffered Objectively Serious Medical Needs

“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.’ ” Coleman, 114 F.3d at
784 (quoting Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995)). Here,
Blazer placed medical evidence in the record showing that a physician
diagnosed him as requiring metformin, gabapentin, and duloxetine to treat his
diabetes, pain, and psychological issues. Docket 76 ¶ 6; Docket 86 ¶ 9. Dr.
Marciano prescribed diabetes and pain medications during Blazer’s February
17, 2016 appointment and Dr. Hagge had prescribed them earlier on October
27, 2015. Docket 85 ¶¶ 3-7; Docket 86 ¶¶ 9, 19. Blazer presented evidence
that a physician diagnosed him as requiring treatment in the form of multiple
medications. Thus, he successfully showed that he suffered a serious medical
need.
Walworth County defendants and Corson County defendants argue that
Blazer failed to place verifying medical evidence in the record, and as a result
he has not shown that he suffered a serious medical need. Docket 77 at 15;

Blazer claims that the defendants were deliberately indifferent by denying
Blazer medical care. Docket 87 at 14. Walworth County defendants argue that
they were not deliberately indifferent for intentionally interfering with treatment
once prescribed. Docket 77 at 9. The court addresses Blazer’s argument, that
the alleged deliberate indifference occurred because the defendants denied or
delayed Blazer’s medical treatment.
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Docket 99 at 10 (Corson County adopting Walworth Count Defendants’
argument). Defendants argue that evidence of the effect of a delay in treatment
is required to support a deliberate indifference claim, not just evidence of the
condition itself. Docket 77 at 15 (citing Scott v. Coleman, 439 F. App’x 783, 784
(11th Cir. 2011)). Defendants also suggest that a plaintiff must show evidence
of a worsening of the underlying condition, rather than merely adverse
symptoms, to move forward with a deliberate indifference claim. Docket 77 at
17 (“ . . . Oliver and Bailey made clear that there must be a worsening in the
underlying condition, in contrast to symptoms experienced by the detainee.”)
(citing Bailey v. Feltmann, 810 F.3d 589, 594 (8th Cir. 2016); Oliver v. Cty. of
Gregory, 2016 WL 958171, at *10-13 (D.S.D. March 8, 2016)).
Blazer can show a serious medical need by showing either verifying
medical evidence or that his condition would be obvious to a layperson. See
Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999). Roberson is factually
similar to Blazer’s case and supports a finding that Blazer raised sufficient
evidence to show that he suffered from a serious medical need. In Roberson,
the plaintiff was denied his diabetes medications but did not present verifying
medical evidence that the delay in treatment had caused him long-term harm.
Id. The court found that it was enough that the plaintiff alleged that he
“suffered from and complained about serious physical conditions resulting
from the failure to treat his diabetes.” Id. Those complaints “would have been
obvious to a layman.” Id. Thus, the plaintiff showed he suffered from a serious
medical need. Id.
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Here, Blazer alleges that he reported his symptoms to the Walworth
County and Corson County defendants on numerous occasions. Docket 88 ¶ 5.
The court presumes that the video and audio recordings destroyed by Walworth
County and Boll would show, as Blazer claims, that Blazer was presenting
symptoms and complaining of them to staff. Docket 86 ¶ 58; see also Docket
87 at 3, n.1. And Corson County defendants were made aware of Blazer’s
symptoms by Varilek being present for his doctor’s appointment, the fax to Gall
stating that Blazer was complaining about not receiving his medications, the
email from Blazer’s criminal lawyer, and Blazer’s complaints to Dale when Dale
transported him. Docket 89-17 at 2; Docket 89-15 at 3; Docket 66-6; Docket
89-2 at 6. These complaints are similar to those of the plaintiff in Roberson.
Thus, it would have been obvious to a layperson that Blazer was suffering from
an objectively serious medical need and Blazer need not also present verifying
medical evidence.
The Eighth Circuit has found that in some circumstances a failure to
present verifying medical evidence of the detrimental effects of a delay in
treatment is fatal to an inmate’s § 1983 claim. See Jackson v. Reibold, 815
F.3d, 1114, 1119-20 (8th Cir. 2016). In Jackson, the plaintiff “provided no
evidence showing that any delay in treatment had a detrimental effect,” and
merely showed that he was diagnosed with a condition that required treatment.
Id. at 1120. Unlike the plaintiff in Jackson, Blazer showed that his medical
need “had a detrimental effect” on his condition because he showed he was
suffering symptoms as a result of the delay in treatment. See Docket 88 ¶ 5;
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Docket 86 ¶ 58; see also Docket 87 at 3, n.1; Docket 89-17 at 2; Docket 89-15
at 3; Docket 66-6; Docket 89-2 at 6. Blazer also showed that when he was
transferred to the South Dakota Department of Corrections following his time
in the Walworth County Jail, his A1C levels were worse than before the alleged
delay in medical care. Docket 78-11 at 2. His A1C level was 7.4, 0.9 higher
than what it had been on December 31, 2015, and higher than the goal level
for a patient his age, showing a worsening in his condition. Id.; Docket 78-10 at
4. Finally, after Blazer stopped being provided metformin, gabapentin, and
duloxetine, he alleges that he experienced a number of symptoms, including
nausea, dizziness, pain, and depression. Docket 88 ¶ 4. Blazer provided
evidence from a medical doctor that these symptoms are a risk when patients
abruptly cease the use of metformin, gabapentin, and duloxetine. Docket 78-15
at 4-5. Blazer asserts that because he was not taken to the doctor, a medical
professional was not able to medically verify those symptoms while they were
present. Docket 87 at 20. Thus, his claim does not fail because of a lack of
verifying medical evidence.
Even if Blazer is required to present verifying medical evidence, a lack of
evidence that his underlying condition worsened is not fatal to his claim.
Neither Oliver nor Bailey, the two cases relied on by defendants, distinguish
between the harm caused by worsening symptoms and the harm caused by
worsening of a plaintiff’s underlying disease. See Bailey 810 F.3d at 594
(plaintiff who cut his hand immediately before arrest did not show adverse
effect of a delay of treatment when he did not complain to the arresting officer
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or request treatment, had been seen by a paramedic before arrest, and received
treatment immediately upon release from jail the next morning); Oliver, 2016
WL 958171, at *10-13 (plaintiff who suffered a broken ankle did not
demonstrate the detrimental effect of a one-day delay in treatment by providing
testimony from an expert that he went one day without pain medication, an ice
pack, or proper medication, and the defendant showed that there was no
“adverse medical effect on [plaintiff] or his ankle” because of the one-day delay).
Both cases found that there was no verifying medical evidence of any adverse
effect, and do not distinguish between an adverse symptom and a worsening
underlying condition.
Blazer successfully raised a genuine issue of material fact as to whether
he suffered from a serious medical need by raising evidence that he had been
diagnosed with diseases and was prescribed medications for treatment and
similar to Roberson by showing that he suffered symptoms and complained of
those symptoms to defendants.
B.

Whether Defendants Knew of and Intentionally Disregarded
Blazer’s Objectively Serious Needs

A plaintiff must show that the defendants knew of and disregarded an
excessive risk to an inmate to succeed on a claim of deliberate indifference.
Letterman v. Does, 789 F.3d 856, 862 (8th Cir. 2015). “[T]he evidence must
show that the officers recognized that a substantial risk of harm existed and
knew that their conduct was inappropriate in light of that risk.” Id. (emphasis
in the original) (citing Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009)).
19

The plaintiff need not show that the defendants actually knew of the risk. Id.
The court may “infer knowledge if the risk was obvious.” Id.
Once knowledge is established, the plaintiff “then must demonstrate
[that] the actor deliberately disregarded that risk.” Id. “Deliberate indifference
constitutes more than mere negligence.” Id. The “plaintiff does not have to
show that the prison officials acted ‘for the very purpose of causing harm or
with the knowledge that harm w[ould] result.’ ” Id. (quoting Farmer v. Brennan,
511 U.S. 825, 835 (1994)). “The obvious inadequacy of a response to a risk may
support an inference that [the defendant] recognized the inappropriateness of
[the] conduct.” Id. (internal quotation omitted).
1.

Walworth County Defendants

Blazer raised a genuine issue of material fact as to whether the Walworth
County defendants knew of his serious medical needs. First, he stated that
when he was booked on October 16, 2015, he made the Walworth County
defendants aware that he had diabetes, PTSD, and shoulder and arthritic pain,
and that he needed prescription medications to treat those conditions. Docket
78-3. And Blazer alleges that he regularly complained that he was not receiving
all his prescription medications and that he was experiencing a multitude of
medical problems as a result. Docket 86 ¶ 58. The court presumes that the
video and audio recordings destroyed by Walworth County and Boll would
show, as Blazer claims, that Blazer was presenting symptoms and complaining
of them to staff. Id.

20

Blazer also alleges that on April 5, 2016, he acted out to draw attention
to the medical problems he was facing. Docket 66-5. He covered the camera in
his cell and “be[came] agitated saying he was being tortured” by the
defendants, who were not giving him his diabetes medications. Id. Blazer filled
out a medical request form around April 1, 2016 that stated he needed “all [his]
meds,” alleging that he was diabetic and did not have all his diabetes
medications. Docket 66-4. Because Walworth County failed to produce the
medical request form that it had faxed to Corson County, and because
Schnaible stated that he provided Blazer six medical request forms, a jury
could conclude that more forms were filled out than were produced by either
county. Docket 91 at 13. This strengthens Blazer’s assertion that the Walworth
County defendants were aware of his medical needs. On April 15, 2016,
Blazer’s lawyer contacted the Walworth County state’s attorney to inform him
that Blazer was still “not receiving some of his prescribed medications which
include PTSD meds, diabetic injections and certain pain meds.” Docket 66-6.
These facts show that Blazer vociferously advocated to get the medication he
claimed he was missing, making it unlikely Walworth County defendants were
unaware of his serious medical needs and raising a genuine question about
whether the Walworth County defendants would have known of those needs.
Blazer alleged facts about each individual Walworth County defendant
that give rise to genuine issues of material fact about whether each Walworth
County defendant knew about his medical needs. Longbrake recalls that “quite
often” Blazer orally made medical requests related to his diabetes. Docket 89-3
21

at 3-5. On April 15, 2016, Blazer’s lawyer sent an email to Boll that stated
Blazer was still “not receiving some of his prescribed medications which
include PTSD meds, diabetic injections and certain pain meds.” Docket 66-6.
Ducheneaux recalls that Blazer requested additional medications at the jail.
Docket 89-6 at 3. Strongheart states she does not recall Blazer ever
complaining about not receiving his medication, but she stated that she
“probably” would have provided him with medical request forms in which he
might have asked to be taken to the doctor. Docket 89-5 at 3-4. Strongheart
and Ducheneaux testified that they would convey to Franklin and Jungwirth
when a Corson County detainee made medical complaints. Docket 89-5 at 5;
Docket 89-6 at 7. This leads to an inference that Franklin and Jungwirth were
also aware of Blazer’s complaints. Blazer states that Franklin told him he no
longer had diabetes, but Franklin claims she does not remember addressing
Blazer’s complaints. Docket 89-12 at 2; Docket 89-12 at 2-3. Blazer alleges
that he asked Strongheart and Richards for medication and they ignored his
request. Docket 66-3 at 18. Blazer states that on April 20, 2016, he requested
his medications from Mickelson. Id. at 10. While Kroonje does not recall Blazer
asking for his medications, Blazer alleges that she was asked about the
missing medications. Docket 89-9 at 8-9; Docket 66-3 at 15-16. Dunwoody
recalls Blazer complaining that he was not getting his medications. Docket 8913 at 2. According to Blazer, he asked Johnson about his medications on at
least one occasion. Docket 66-3 at 16. Schnaible recalls Blazer filling out six
medical request forms. Docket 89-14 at 3. Blazer alleges that he asked Bentz
22

and Bissett why he wasn’t being given his medications. Docket 66-3 at 17-18.
Blazer created a genuine issue of material fact about whether each Walworth
County defendant was aware of his objectively serious medical needs.
Blazer also raised a genuine issue of material fact as to whether the
Walworth County defendants disregarded his serious medical needs. The
Walworth County defendants state that they could not “chase their tales [sic]
around” looking into Blazer’s medical requests. Docket 72-1. But Walworth
County individual defendants did not take Blazer back to the doctor when they
were made aware on at least four occasions that he was not receiving his
medication. See Docket 85. Nor did they call the pharmacy or Dr. Marciano to
verify if all prescriptions were transmitted. Id. This shows an “obvious
inadequacy of a response to a risk[.]” Krout, 583 F.3d at 567. Blazer showed
that after repeated requests from Blazer and his attorney, Walworth County
defendants’ decision to not take Blazer back to the doctor, make a telephone
call to the doctor, or take his requests for medical help seriously rose to the
level of intentional indifference to a serious medical risk.
2.

Corson County Defendants

Blazer also raised a genuine issue of material fact as to whether each of
the Corson County defendants knew of his serious medical needs. He alleged
that Varilek was in the examination room when Dr. Marciano refilled Blazer’s
medications, and Varilek recalled that the appointment was to refill the
medications Blazer took for his medical conditions. Docket 89-17 at 2-4. Gall
recalls Blazer complaining that he was being refused medications. Docket 8923

15 at 3-4. He also recalled receiving a fax stating that Blazer complained of
being refused medications and care at the jail. Id. On April 15, 2016, Blazer’s
lawyer contacted Boll and the Corson County and Walworth County states
attorneys informing them that Blazer was still “not receiving some of his
prescribed medications which include PTSD meds, diabetic injections and
certain pain meds.” Docket 66-6. Blazer states that he asked Dale “quite a few”
times when Dale transported him to court appearances when Blazer would be
receiving his remaining medications. Docket 89-2 at 6. Blazer showed that
Tvedt knew about Blazer not receiving medications because Tvedt sent an
email to Bogue about Blazer’s complaints. Docket 82-10 at 12. Corson County
received a faxed copy of Blazer’s medical request form stating he was not
receiving all of his medications. Docket 66-4. He provided evidence that his
attorney contacted the Corson County state’s attorney on April 15, 2016 to
inquire about the medications. Docket 66-6. These facts raise a genuine issue
for trial as to whether the Corson County defendants knew about Blazer’s
objectively serious medical needs.
Blazer presents evidence to show that the Corson County defendants
were indifferent to his medical needs. Despite Corson County’s knowledge that
he was not receiving his medication, none of the Corson County defendants
directed Walworth County to take Blazer to the doctor. Corson County argues
that Blazer cannot show that Corson County was refusing to pay for his
medication. Docket 99 at 3-4. But refusal to pay for his medication is not the
only way Blazer can establish that Corson County was deliberately indifferent.
24

See Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (“ ‘[W]here the duty to
furnish treatment is unfulfilled, the mere contracting of services with an
independent contractor does not immunize the State from liability for damages
in failing to provide’ ” treatment.) (quoting Crooks v. Nix, 872 F.2d 800, 804
(8th Cir. 1989))). Corson County contracts with Walworth County to provide
housing for pretrial detainees like Blazer. Docket 86 ¶ 2. But Corson County
has not alleged facts showing it is responsible for only the costs of those
detainees’ medical care. Once Corson County became aware of Blazer’s medical
needs, it took no action and did not direct Walworth County to provide Blazer
with medical care. Failing to look into why Blazer’s and Franklin’s accounts
differed despite Blazer’s numerous complaints is an inadequate response.
Thus, assuming these facts to be true as the court must do on summary
judgment, Blazer showed that the Corson County defendants were deliberately
indifferent to his serious medical needs.
C.

Qualified Immunity

Qualified immunity shields government officials from § 1983 suits in
their individual capacities if an official’s “conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This
inquiry requires that a plaintiff show both (1) an official violated his statutory
or constitutional right, and (2) the right was “clearly established” at the time of
the violation. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). If a plaintiff fails to
establish either prong of this test, he cannot overcome an official’s claim of
25

qualified immunity. Id. Blazer showed that his constitutional rights were
violated by the Corson County and Walworth County defendants. The court
determines next whether the rights alleged were “clearly established” at the
time of the violation.
For a right to be “clearly established,” its contours “must be sufficiently
clear [so] that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). This
inquiry focuses on “whether the officer had fair notice that [his] conduct was
unlawful[.]” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). The clearly
established requirement “gives government officials breathing room to make
reasonable but mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law.” Stanton v. Sims, 571 U.S.
3, 6, (2013) (internal quotation omitted).
To determine clear establishment, the court must consider the “specific
facts at issue” and refer to authorities “squarely govern[ing]” those facts. Kelsay
v. Ernst, 933 F.3d 975, 980 (8th Cir. 2019) (en banc) (internal quotation
omitted). Courts must “ ‘not . . . define clearly established law at a high level of
generality.’ ” Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th Cir. 2014)
(quoting Ashcroft, 563 U.S. at 742). “ ‘[P]recedent must be clear enough that
every reasonable official would interpret it to establish the particular rule the
plaintiff seeks to apply.’ ” Lane v. Nading, 927 F.3d 1018, 1022 (8th Cir. 2019)
(quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)). The rule
cannot be merely “suggested” by existing precedent. Id.
26

1.

Corson County Defendants

Blazer asserts that the Corson County defendants were deliberately
indifferent to his serious medical needs. See Docket 87 at 11. Blazer raised a
genuine issue of material fact as to whether the Corson County defendants
violated his constitutional rights when they knew of and deliberately
disregarded his serious medical needs. Deliberate indifference to a pretrial
detainee’s rights is a clearly established violation of the detainee’s
constitutional rights. See Estelle, 429 U.S. at 104. But this level of generality is
not sufficient to defeat a claim of qualified immunity. Rather, Blazer must show
that the specific right at issue was clearly established when the Corson County
defendants failed to provide him with treatment for his diabetes. To determine
clear establishment, the court must consider the “specific facts at issue” and
refer to authorities “squarely govern[ing]” those facts. Kelsay, 933 F.3d at 980.
Thus, the court views the rights violation committed by the Corson County
defendants as a contracting county’s failure to verify that a detainee is
receiving care in a contractor’s custody, when the detainee’s complaints have
reached the contracting county but the contractor has provided surface-level
assurance contradicting the detainee’s account that the detainee is receiving
the necessary care.
Here, Blazer does not point to, and the court cannot identify, any Eighth
Circuit or Supreme Court case law establishing Corson County defendants’
responsibility to investigate Blazer’s complaints after Franklin informed them
that Blazer was no longer diabetic. Thus, while the court finds that there is
27

evidence that Blazer’s rights were violated by Corson County’s unreasonable
failure to investigate Blazer’s complaints, the Corson County defendants are
entitled to qualified immunity because that right was not clearly established in
2015-2016.
2.

Walworth County Defendants

The Walworth County defendants acknowledge that they are under a
constitutional obligation to provide Blazer with adequate medical care. Docket
77 at 20. The Walworth County defendants assert they did not have adequate
notice that their conduct was unlawful. Id. They claim that “the only methods
of verification available to the jail staff would be to review the MAR and contact
the pharmacy to verify that Blazer was receiving all medications that were
prescribed and transmitted to the pharmacy.” Id. at 21. This is not so.
First, Blazer asserts that his request to jail staff was to “provide [him his]
medications or take [him] back to the doctor.” Docket 88 ¶ 6 (emphasis added).
Blazer was not taken back to the doctor after his February 17, 2016 visit with
Dr. Marciano. Docket 85 ¶ 6. Blazer was taken to the doctor while housed at
the Walworth County Jail on three occasions: October 27, 2015, December 31,
2015, and February 17, 2016. Id. ¶¶ 3, 4, 6. These visits demonstrate that the
Walworth County defendants possessed the capacity to arrange doctor visits for
Blazer when he needed medical treatment. Bringing Blazer to the doctor was a
reasonable course of action that the Walworth County defendants were able to
arrange. Instead, they chose to “ignor[e] [Blazer’s] complaints” in contravention
of “clearly established” legal principles. Langford, 614 F.3d at 462.
28

Also, the contract between Walworth and Corson Counties empowers
Walworth County to take action to treat Corson County detainees’ medical
issues. The fact that Blazer complained numerous times between the February
visit and his transfer to the South Dakota Department of Corrections, yet was
not taken to see a doctor, shows that the Walworth County defendants were
aware of, but ignored, a course of action that would have addressed Blazer’s
complaints. Thus, they had adequate notice their conduct violated his
Constitutional rights by denying him medical care.
Second, Blazer raised a factual dispute as to whether Walworth County
defendants did perform any investigation into his complaints. Mickelson does
not remember Blazer ever complaining about not getting his medications.
Docket 89-11 at 5. She does not remember writing an email that stated Blazer
had been taken off the three medications he was not receiving, nor does she
remember the circumstances surrounding the email. Id. at 7. She believes she
would have gleaned this information from a note sent from the doctor’s office
but does not remember calling the doctor or pharmacy to verify and she did not
produce the note. Id. at 8. And Hatch, the pharmacist at Family Pharmacy,
stated that he never received a call from the Walworth County Jail asking
about Blazer’s medications. Docket 89-19 at 2. He confirmed that had the jail
asked for a refill request for Blazer’s missing medications, he would have sent
that request to Blazer’s doctor. Id. at 3-4. Dr. Marciano, who prescribed the
medications on February 17, 2016, confirmed that had Blazer or the Walworth
County Jail called the clinic to ask if Blazer should have been receiving
29

additional medications, he would have “certainly” looked into his records to
determine if more prescriptions should have been transmitted to the pharmacy.
Docket 89-1 at 7-9. Thus, Blazer raised an issue of fact as to whether the
Walworth County defendants performed any investigation into his complaints,
or if they simply told Corson County defendants that he had been taken off his
other medications. The right of a detainee to receive medical care for a diabetic
condition after the detainee complains about lack of treatment for his diabetic
condition was recognized in 1999 by the Eighth Circuit in Roberson. 198 F.3d
at 648. Thus, Walworth County defendants cannot make a claim of qualified
immunity to succeed on a summary judgment motion.
Walworth County defendants argue that calling Dr. Marciano to inquire
about Blazer’s medications would have been futile because HIPAA would
preclude disclosing information about what was prescribed. Docket 77 at 13.
But the Walworth County Jail Policies and Procedures requires that “[i]f an
inmate requests medical attention,” the inmate will be asked to fill out a
medical information release form. Docket 78-19 at 9. Thus, Walworth County
was empowered to contact Dr. Marciano to verify what medications were
prescribed compared to those that were received from Family Pharmacy.
Finally, Walworth County defendants argue that Blazer is attempting to
define his rights at a “high level of generality” by simply claiming a right to
medical care as a pretrial detainee, and their conduct is better characterized as
failure to correct another actor’s possible negligence. Docket 96 at 5-6. But
Blazer is not alleging that the Walworth County defendants violated his rights
30

by failing to correct the negligence of Dr. Marciano. Docket 87 at 21. Rather, he
asserts that his rights were violated when those defendants failed to provide
him access to medical care after repeated complaints that the was not receiving
the care he needed. Id. A diabetes patient is entitled to access to medication
and treatment while being held in custody under clear Eighth Circuit
precedent. See Roberson, 198 F.3d at 647. And clear precedent establishes that
“ignoring [a detainee’s] complaints about receiving deficient medical care
contravene[s] clearly established” Constitutional principles. Langford, 614 F.3d
at 462. Thus, Walworth County defendants in their individual capacities are
not entitled to summary judgment in their favor because of qualified immunity.
II.

Liability of Defendants in their Official Capacities and County
Defendants
A suit against a public employee in his or her official capacity is the legal

equivalent of a suit against the governmental entity itself. Bankhead v.
Knickrehm, 360 F.3d 839, 844 (8th Cir. 2004). In an official-capacity suit
against a local government body, a plaintiff must show that a violation of a
constitutional right was caused by an official policy or widespread custom.
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). “[N]either
municipalities nor government officials may be held liable for unconstitutional
conduct under a theory of respondeat superior.” Rogers v. King, 885 F.3d 1118,
1122-23 (8th Cir. 2018) (citing Monell, 436 U.S. at 691). Thus, a governmental
entity is liable under § 1983 “only when the entity itself is a ‘moving force’
behind the violation. That is, the entity’s official ‘policy or custom’ must have
31

‘caused’ the constitutional violation . . . .” Clay v. Conlee, 815 F.2d 1164, 1170
(8th Cir. 1987). “[I]t is when execution of a government’s policy or custom . . .
inflicts the injury that the government as an entity is responsible under
§ 1983.” Monell, 436 U.S. at 694.
Here, Blazer sues Walworth and Corson Counties, and all defendants,
county employees, in their official capacities. Thus, Blazer must present
evidence showing that the alleged deprivation of his right to adequate medical
care was caused by an official policy or widespread custom of Corson and
Walworth Counties.
According to Corson County defendants, Corson County is not
responsible for Blazer’s day-to-day medical needs and was only responsible for
paying bills related to Blazer’s medical care. 5 Docket 80 at 14. The agreement

The contract between the two counties states that both counties “desire to
enter into contract whereby the Contracting County’s prisoners and detainees
are housed and maintained at the Walworth County Jail pursuant to Chapter
23-11 of the South Dakota Codified Laws.” Docket 82-10 at 8. Because SDCL §
23-11 is a repealed law about riots and resistance of process, the court
assumes the parties intended to refer to SDCL § 24-11, which governs jails.
SDCL § 24-11-23 states that the entity responsible for the operation of a jail
“shall adopt written policies and procedures for the regulation of the jail”
regarding, among other things, “[t]he employment of medical and surgical aid
when necessary.” SDCL § 24-11-23. The Walworth County Jail Policies and
Procedures manual states that “[t]he proper staff will make necessary
arrangements for transportation to the medical facility” when detainees need
medical care. Docket 78-19 at 16. The manual does not state who the proper
staff are for Walworth County inmates or Corson County inmates housed in
Walworth County. The manual does not give instruction for caring for the
medical needs of Corson County inmates, and the contract between the
counties was purportedly not followed. Thus, the counties appear to be in
violation of their contract and SDCL § 24-11-23 by failing to put written
procedures in place to address Corson County detainees’ care. While violation
of a contract or state law is not dispositive of a constitutionally unsound
32
5

between Corson and Walworth Counties states that the determination as to
whether or not medical care is necessary is left to the “s[o]le discretion of the
Walworth County Sheriff’s office.” Docket 82-10 at 9. But numerous Walworth
County defendants testified that, in practice, Corson County was responsible
for ordering medications and arranging medical treatment for Corson County
detainees held at the Walworth County jail. Bissett testified that when Corson
County detainees needed medication, Corson County “would have to be
responsible for getting the medications refilled.” Docket 89-4 at 3. And if a
Corson County detainee had to see the doctor, “it would be on [Corson]
[C]ounty to come get them to take them to the doctor and be seen to get their
medications refilled . . . .” Id. at 3. Strongheart testified that Corson County
was responsible for getting Blazer medications, because Blazer was a Corson
County detainee. Docket 89-5 at 5. She also testified that she would “leave a
note” for Franklin or to contact Corson County if a Corson County inmate
requested medical care. Id. Ducheneaux testified that he would verbally convey
to Franklin when a Corson County detainee made medical complaints and
requested additional medication. Docket 89-6 at 7. Boll testified that when a
detainee makes a non-urgent medical request, the detainee fills out a medical
form that is forwarded to the county where he or she is facing charges. Docket
89-7 at 4-5. But Walworth County did not use a consistent policy to transfer

practice, the lack of a written procedure as required by South Dakota state law
does support Blazer’s assertion that both Corson and Walworth Counties were
under a duty to ensure that detainees in Blazer’s position received care.
33

information. Docket 89-7 at 9. Rather, whether inmate complaints were
transferred via fax, telephone, or email simply depended on who was sending
and receiving the information. Id. Mickelson recalled that if a Corson County
inmate like Blazer ran out of medication, the Walworth County staff would
“advise Corson County and they would handle it from there.” Docket 89-11 at
2. Similarly, she testified that if a Corson County detainee wanted to see a
doctor, Walworth County staff would notify Corson County, who would either
approve or deny the request. Id. at 4.
The process was similarly muddy on the Corson County side. Gall, the
Corson County sheriff, testified that “normally” Walworth county would call
and let him know that a medical “situation” was occurring, and then would
sometimes follow up with a fax. Docket 89-15 at 3. Neither party can point to a
consistent policy that ensured Corson County detainees being held at the
Walworth County Jail would have their medical complaints addressed by either
county.
These facts raise a genuine issue of material fact about whether Blazer’s
alleged injuries were caused by the policy, or a lack thereof, of Walworth and
Corson Counties. Each county believed it was the other’s responsibility to
provide detainees with medical care. As a result, Blazer raised a genuine
question of material fact as to whether his complaints were ever taken
seriously or investigated by either party. Prison officials are under a
constitutional duty to ensure that prisoners receive treatment when needed.
Langford, 614 F.3d at 460. Two counties were responsible for Blazer’s care,
34

both punting to the other the roll of taking steps to address his complaints.
Thus, Blazer raised a genuine issue as to whether Walworth County’s and
Corson County’s policy to ensure pretrial detainees like Blazer would receive
medical care is an unconstitutional policy or custom that renders defendants
liable in their official capacities under § 1983.
Blazer also showed that Walworth County did not have a policy in place
to ensure that medical complaints were addressed and taken seriously. Boll
testified that inmates were instructed to fill out a written medical request form.
Docket 89-7 at 4-5. But Kroonje stated that inmates’ requests were forwarded
verbally from a jail staff member to a supervisor. Docket 89-9 at 6. Jungwirth
testified that inmate complains were “mostly” transmitted internally via a
phone call. Docket 89-8 at 2. When asked how the complaints were “supposed”
to be transmitted, he stated that the complaints were typically transmitted
either by phone or email. Id. This shows a lack of structure in place that did
not ensure that medical complaints like Blazer’s were being taken seriously.
Walworth County is constitutionally obligated to ensure the care of those in its
custody when medical needs arise. Thus, its practice of failing to ensure that
inmate medical complaints were addressed and looked into is an unlawful
custom or practice sufficient to establish county liability.
CONCLUSION
Blazer raised genuine issues of material fact as to whether he suffered
from an objectively serious medical need, the defendants in their individual
capacities knew about that need, and they were deliberately indifferent to those
35

needs. Blazer raised genuine issues of material facts about whether Walworth
County defendants violated a clearly established Constitutional right. Blazer
did not, however, show that Corson County defendants in their individual
capacities violated a clearly established constitutional right, and thus those
defendants are entitled to qualified immunity. Blazer raised genuine issues of
material fact as to whether a policy or practice of Walworth County and Corson
County resulted in his alleged constitutional deprivation to fulfill the
requirements under Monell. Thus, it is
ORDERED that Walworth County defendants’ summary judgment
motion (Docket 75) is denied.
IT IS FURTHER ORDERED that Corson County defendants’ summary
judgment motion (Docket 79) is granted as to Keith Gall, Alan D. Dale, Justin
Tvedt and Mike Varilek in their individual capacities. The motion is denied as
to Corson County and to Keith Gall, Alan D. Dale, Justin Tvedt, and Mike
Varilek in their official capacities.
Dated March 2, 2020.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

36