Hicks v. Correct Care Solutions et al

Filing 46

ORDER denying as moot 44 Motion to Compel; granting 28 Motion for Summary Judgment. Signed by Chief Judge Karen E. Schreier on 7/5/2012. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
LAPETE HICKS, SR.,
Plaintiff,
vs.
CORRECT CARE SOLUTIONS, and
MINNEHAHA COUNTY JAIL,
Defendants.

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Civ. 11-4096-KES

ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

Plaintiff, LaPete Hicks, Sr., filed a pro se civil rights lawsuit against
defendants, Correct Care Solutions and the Minnehaha County Jail. Hicks is
currently incarcerated at the South Dakota State Penitentiary in Sioux Falls,
South Dakota, but at the time relevant to this action he was housed in the
Minnehaha County Jail in Sioux Falls, South Dakota. Hicks alleges that
defendants were deliberately indifferent to his serious medical needs when
they stopped providing him with free snacks, which Hicks claims he needed
to treat his hypoglycemia. Defendants move for summary judgment. Hicks
opposes defendants’ motion.
FACTS
Because Hicks failed to submit a statement of material facts,1 the
material facts set forth in defendants’ statement of material facts are deemed

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After defendants filed their motion for summary judgment, Hicks moved
to extend his deadline to respond to the summary judgment motion. The court
granted the motion and extended the deadline to respond by two months.
When Hicks did respond, he did not dispute any of defendants’ statement of
material facts.

admitted. See D.S.D. LR 56.1(D) (“All material facts set forth in the movant’s
statement of material facts will be deemed to be admitted unless controverted
by the opposing party’s statement of material facts.). Thus, in the light most
favorable to Hicks, the nonmoving party, the facts are as follows:
Defendant Correct Care Health Solutions (Correct Care) is the private
entity that provides healthcare services at the Minnehaha County Jail under
a contract with the county. Hicks claims that he was denied medical care and
treatment for his hypoglycemia while detained at the Minnehaha County Jail.
Dr. Jean Hesler is a licensed physician who works with Correct Care
Solutions to provide medical care to inmates at the Minnehaha County Jail.
Dr. Hesler was directly involved in Hicks’s medical care and treatment during
his detention at the jail. Dr. Hesler provided an affidavit relating to Hicks’s
medical treatment at the Minnehaha County Jail.
The Minnehaha County jail provides free snacks on a regular basis to
inmates diagnosed with diabetes in order to help them maintain regular blood
sugar levels. Free snacks are also provided to inmates on as needed basis for
a variety of reasons, including when inmates experience symptoms associated
with low blood sugar levels.
When Hicks entered the Minnehaha County Jail in July 2010, he
underwent a physical assessment and a review of his medical history. Hicks
reported a history of hypertension and asthma, but he did not indicate a
history of diabetes or low blood sugar levels. Hicks was put on a special diet

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to manage his hypertension and weight. Hicks later removed himself from the
diet and elected to consume the regular meals. In early 2011, Hicks
complained of a lack of energy and dizziness, which he attributed to low blood
sugar. Hicks’s condition was monitored and his blood sugar levels were
checked three times a week for two weeks. During that time, a medical order
was written giving Hicks access to free snacks to raise his blood sugar. On
January 9, 2011, at around 10:20 p.m., medical staff were called to Hicks’s
cell after he was found lying on the floor. Hicks’s blood sugar level was
checked and was normal. Earlier that evening, his blood sugar level had been
checked and had tested as slightly below normal. Hicks was given a snack at
the time, which raised his blood sugar levels.
During his detention at the Minnehaha County Jail, Hicks complained
several times of dizziness, which he believed was caused by low blood sugar
levels. In Dr. Heisler’s professional medical opinion, Hicks’s symptoms were
not objectively serious and were likely due to his hypertension, overexertion
while exercising, or his failure to eat meals when they were served. Dr. Heisler
also believed that his symptoms could have been an unavoidable side effect of
his medications. After reviewing Hicks’s blood sugar tests, Dr. Heisler
concluded that Hicks did not require special medication, special medical
treatment, additional testing, or free snacks on a regular daily basis for
hypoglycemia. Therefore, on or about February 1, 2011, Dr. Heisler entered a

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medical order to discontinue Hicks’s free snacks because they were not
medically necessary.
Hicks objected to his free snacks being discontinued. On February 15,
2011, Hicks saw Dr. Heisler for a scheduled check-up and review of his
chronic health conditions. Hicks was uncooperative and refused further
treatment after Dr. Heisler informed him that he did not require free snacks
on a daily basis. According to Dr. Heisler, Hicks never reported an acute
incident of low blood sugar levels after she entered the order to discontinue
his free snacks. Hicks’s blood sugar levels were tested several times after his
free snacks were discontinued; his blood sugar levels were within normal
parameters.
If Hicks had reported an acute incident of low blood sugar levels, he
would have been given a snack, juice, or glucose tablets and his blood sugar
would have been tested and further treatment would have been provided if
necessary.
In July of 2011, Hicks asked to see medical staff because of low energy
levels, which Hicks believed were caused by hypoglycemia. Hicks was offered
a CMP, CBC, and thyroid test to determine if there was a medical reason for
his symptoms, but he refused to undergo testing.2 In August of 2011, Hicks

2

A CMP test, or a comprehensive metabolic panel, is a blood test that
measures glucose levels, electrolyte and fluid balance, kidney function, and
liver function. See WebMD, Comprehensive Metabolic Panel, Topic Overview,
http://www.webmd.com/a-to-z-guides/comprehensive-metabolic-panel-topic-o
verview (last visited July 3, 2012). A CBC test, or complete blood count, include
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saw a physician’s assistant for a chronic care check-up of his hypertension.
During that visit, he complained that he experienced hypoglycemia symptoms
after exercising. According to Dr. Heisler, this is normal and the standard
treatment approach is for the patient to take preventative and corrective
measures by avoiding overexertion. On August 2, 2011, Hicks reported feeling
dizzy and sweating when he got up from his bunk for recreation time. His
blood sugar levels tested normal and symptoms improved after several
minutes. On several occasions during his detention at the Minnehaha County
Jail, Hicks was noncompliant with medical orders or exercised his right to
refuse medical treatment.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary
judgment “should be rendered if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the
outcome of the case under the governing substantive law will properly
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Summary judgment is not appropriate if a dispute about a

information about the kinds and numbers of cells in the blood. See WebMD,
Complete Blood Count (CBC), http://www.webmd.com/a-to-z-guides/
complete-blood-count-cbc, (last visited July 3, 2012).
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material fact is genuine, that is, if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient
evidence to establish that there are no genuine issues of material fact and that
the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all
reasonable inferences to be drawn from the underlying facts in the record.
Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The
nonmoving party may not, however, merely rest upon allegations or denials in
its pleadings, but must set forth specific facts by affidavits or otherwise show
that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th
Cir. 2002).
Rule 56 of the Federal Rules of Civil Procedure applies to prisoner
litigants, despite the liberal construction afforded to their pro se pleadings.
Quam v. Minnehaha Cnty. Jail, 821 F.2d 522 (8th Cir. 1987). The district court
is not required to “plumb the record in order to find a genuine issue of
material fact.” Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir. 1996).
Courts must remain sensitive, however, to the special problems faced by
prisoners attempting to proceed pro se in vindicating their constitutional
rights, and the Eighth Circuit has explicitly disapproved of summary dismissal
of prisoner pro se claims without regard for these special problems. Nickens v.
White, 622 F.2d 967, 971 (8th Cir.), cert. denied, 449 U.S. 1018 (1980). “When

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dealing with summary judgment procedures the technical rigor is
inappropriate where . . . uninformed prisoners are involved.” Ross v. Franzen,
777 F.2d 1216, 1219 (7th Cir.1985).
DISCUSSION
Hicks filed suit under 42 U.S.C. § 1983, alleging that defendants
violated his rights under the Eighth Amendment. Hicks seeks damages and
prospective relief. Section 1983 provides a civil cause of action against any
person who, under color of state law, causes a deprivation of rights,
privileges, or immunities secured by the Constitution and laws of the United
States. 42 U.S.C. § 1983; McRaven v. Sanders, 577 F.3d 974, 979 (8th Cir.
2009).
It is well established that deliberate indifference to a prisoner’s serious
medical needs is prohibited by the Eighth Amendment. See Estelle v. Gamble,
429 U.S. 97, 106 (1976). “A prisoner’s Eighth Amendment rights are violated if
prison officials show ‘deliberate indifference’ to the prisoner’s ‘serious medical
needs.’ ” Olson v. Bloomberg, 339 F.3d 730, 735 (8th Cir. 2003) (quoting Estelle,
429 U.S. at 106).“The Eighth Amendment does not apply to pretrial detainees,
but the Due Process Clause of the Fourteenth Amendment imposes analogous
duties on jailers to care for detainees.” Christian v. Wagner, 623 F.3d 608, 613
(8th Cir. 2010).3 But regardless of whether Hicks was a prisoner or pretrial
detainee at the time relevant to this action, Hicks must demonstrate: “(1) that he
3

It appears that Hicks was a pretrial detainee during his time at the
Minnehaha County Jail.
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suffered from objectively serious medical needs and (2) that the prison officials
actually knew of but deliberately disregarded those needs.” Jolly v. Knudsen,
205 F.3d 1094, 1096 (8th Cir. 2000). “A serious medical need is one that has
been diagnosed by a physician as requiring treatment or one that is so obvious
even a layperson would easily recognize the necessity for a doctor's attention.”
Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). “Deliberate indifference
may be manifested by prison doctors in responding to the prisoner’s needs or by
prison officials in intentionally denying or delaying access to medical care or
intentionally interfering with prescribed treatment.” Meloy v. Bachmeier, 302
F.3d 845, 849 (8th Cir. 2002).
Hicks claims that defendants were deliberately indifferent to his serious
medical needs when they denied him the diabetic snacks needed to treat his
hypoglycemia. Defendants assert that Hicks was never diagnosed as
hypoglycemic and argue that even if there were a genuine issue of material
fact on that issue, they are entitled to summary judgment because the
Minnehaha County Jail is not a sueable entity, Hicks’s criminal conviction and
transfer to the South Dakota State Penitentiary render his claims for
injunctive relief moot, and he has failed to allege that an unconstitutional
policy or custom led to the alleged deliberate indifference to his serious
medical needs.

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I.

The Minnehaha County Jail is Not a Sueable Entity.
Defendants argue that the Minnehaha County Jail is not a legal entity

amenable to suit under 42 U.S.C. § 1983. Hicks has not responded to this
argument. Rule 17(b)(3) of the Federal Rules of Civil Procedure provides that
the capacity to sue and be sued of an entity, other than a natural person or
corporation, is determined “by the law of the state where the court is located.”
Under South Dakota law, jails are established by the board of county
commissioners and are operated at county expense. See SDCL 24-11-2.
“[C]ounty jails are not legal entities amenable to suit.” Owens v. Scott Cnty.
Jail, 328 F.3d 1026, 1026 (8th Cir. 2003). See also De La Garza v. Kandiyohi
Cnty. Jail, 18 Fed. App’x 436, 437 (8th Cir. 2001) (per curiam) (same); Kahle
v. Leonard, 2006 WL 1519518 at *4 (D.S.D. 2006) (holding that the
Pennington County Jail was not a sueable entity). Thus, defendants’ motion
for summary judgment is granted with respect to Hicks’s claims against the
Minnehaha County Jail.
II.

Hicks’s Claims for Injunctive Relief Are Moot.
In addition to money damages, Hicks has requested that several Correct

Care employees be terminated. This could be construed as seeking equitable
relief. At the time of the events that led to this lawsuit, Hicks was detained at
the Minnehaha County Jail. He has since been transferred to the South
Dakota State Penitentiary. Because Hicks is no longer subject to the same
conditions of confinement, his claim for injunctive relief is moot. See Gladson

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v. Iowa Dept. of Corr., 551 F.3d 825, 835 (8th Cir. 2009) (“[B]ecause [plaintiff]
is no longer incarcerated at the ISP and subject to the allegedly offending
policy, his claims are moot.”); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.
1985) (“[A] prisoner’s claim for injunctive relief to improve prison conditions is
moot if he or she is no longer subject to those conditions.”). Thus, defendants’
motion for summary judgment is granted on Hicks’s claims for injunctive
relief.
III.

Hicks Has Failed to Allege a Policy or Custom of Unconstitutional
Conduct.
Defendants argue that they are entitled to summary judgment because

Hicks has failed to allege the existence of an unconstitutional practice, policy,
or custom. Hicks does not dispute this contention, but does dispute
defendants’ assertion that he did not have a sufficiently serious medical
condition to warrant constitutional protection.
“A corporation acting under color of state law will only be held liable
under § 1983 for its own unconstitutional policies. The proper test is whether
there is a policy, custom, or action by those who represent official policy that
inflicts injury actionable under § 1983.” Sanders v. Sears, Roebuck & Co., 984
F.2d 972, 976 (8th Cir. 1993) (internal citations omitted). See also Burke v.
North Dakota Dep’t of Corr. and Rehab., 294 F.3d 1043, 1044 (8th Cir. 2002)
(per curiam) (holding that pro se inmate who asserted that Hepatitis C
treatment policy of private entity tasked with providing medical care to
inmates, coupled with the actions of the medical director, violated his Eighth
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Amendment rights); Spencer v. Williams, No. 8:09CV25, 2010 WL 456960 at
*2 (D. Neb. Feb. 3, 2010) (dismissing pro se inmate’s Eighth Amendment
claim against Correct Care Solutions, which contracted with the Tecumseh
State Correctional Institution, to provide medical care to inmates because he
failed to allege that Correct Care’s policies, practices, or customs caused his
alleged constitutional injury).
First, the court must analyze whether Correct Care acted under color of
state law when it provided Hicks with medical treatment. Defendants assert
that Correct Care acts under color of state law in providing healthcare to
inmates because it “is under contract to provide health care services for
various Minnehaha County facilities, including the Minnehaha County Jail.”
Docket 32, Affidavit of Pam Knopf. Other than an affidavit from a Correct
Care employee, defendants provide no evidence it acted under state law. But
the court assumes, without deciding, that Correct Care, a private corporation,
acted under color of state law because of SDCL 24-11-12.4 SDCL 24-11-12
provides that “[t]he board of county commissioners or governing body of the
municipality may appoint a physician for the jail or jails within its jurisdiction
and provide for the payment of his services[.]” Thus, Minnehaha County is

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The Eighth Circuit Court of Appeals adopted a similar approach to
evaluating whether a private corporation acts under state law in Saunders.,
984 F.2d at 973. A customer sued a department store security guard after
being detained for shoplifting. Id. The court assumed, without deciding, that
the department store acted under color of state law. Id. at 975. In reaching that
conclusion, the Court relied on a North Dakota statute permitting a private
“peace officer or merchant” to detain suspected shoplifters. Id. at n.5.
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authorized to contract for the provision of medical services and the court
assumes, without deciding that Correct Care acted under state law when it
provided Hicks with medical care during his detention at the Minnehaha
County Jail.
In order to proceed to trial on his claims, Hicks must show that Correct
Care had an unconstitutional policy or custom that led to a violation of his
rights under the Eighth Amendment. “To establish the existence of a policy,
[Hicks] must point to ‘a deliberate choice of a guiding principle or procedure
made by the municipal official who has final authority regarding such
matters.’ ” Jenkins v. Cnty. of Hennepin, Minn., 557 F.3d 628, 633 (8th Cir.
2009) (quoting Mettler v. Whitledge, 165 F.3d 1197, 1204 (8th Cir.1999)).
Hicks must also show that the policy was unconstitutional and that it was
“the moving force” behind the harm that he allegedly suffered. Id.
“Alternatively, liability may be established through proof that the alleged
misconduct was so pervasive among the non-policy making employees of the
municipality as to constitute a ‘custom or usage’ with the force of law.”
Crawford v. Van Buren Cnty, Ark., 678 F.3d 666, 669 (8th Cir. 2012) (internal
quotations omitted). But liability for an unconstitutional custom cannot arise
from a single act. Id.
Hicks does not allege a policy or custom of unconstitutional action on
the part of defendants regarding the medical treatment of inmates with low
blood sugar levels. The record demonstrates that defendants denied Hicks

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free snacks on a regular daily basis because he had no objective medical
need. The policy or custom that was followed meant that Hicks would have
been provided a free snack if, or when, he complained of low blood sugar
levels and it was determined that he needed a snack. Hicks has not alleged,
and there is no evidence to show, that he was unable to purchase his own
snacks from the commissary or that he was ever denied a snack when he was
in need. Thus, Hicks has failed to allege that an unconstitutional policy or
custom led to a violation of his rights. As a result, his claims against Correct
Care fail. Thus, the court need not address whether defendants were
deliberately indifferent to his medical needs. Therefore, it is
ORDERED that defendants’ motion for summary judgment (Docket 28)
is granted.
IT IS FURTHER ORDERED that Hicks’s motion to compel (Docket 44) is
denied as moot.
Dated July 5, 2012.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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