United States District Court, D. South Dakota
JEFFREY L. VIKEN, Chief District Judge.
Plaintiff Harold Hunt filed a second amended complaint against the defendants. (Docket 37). Count I asserts a violation of 42 U.S.C. § 1983 claiming cruel and unusual punishment under the Fourteenth Amendment against defendants Rob Yantis, Laurie Good and Tiffany Alexander ("County Defendants") while Mr. Hunt was a pre-trial detainee at the Pennington County Jail ("jail") in Rapid City, South Dakota. Id. at pp. 9-10. Count II asserts a medical negligence claim under the Fourteenth Amendment against Dr. Wessel for his services as a contract physician for the jail. Id. at pp. 10-11. The County Defendants filed an answer asserting, among other defenses, an affirmative defense of qualified immunity. (Docket 38 at ¶ 4). Dr. Wessel filed an answer denying he is a state actor subject to this lawsuit or that the services he provided to plaintiff constituted medical negligence. (Docket 41 ¶¶ 1 & 2).
Dr. Wessel filed a motion for summary judgment supported by a statement of undisputed material facts. (Dockets 48 & 48-1). The County Defendants filed a separate motion for summary judgment supported by their own statement of undisputed material facts. (Dockets 55 & 57). Mr. Hunt filed responses to both sets of statements of undisputed material facts and his own statement of material facts. (Dockets 67, 68 & 69). For the reasons stated below, Dr. Wessel's motion for summary judgment is granted and the County Defendants' motion for summary judgment is granted.
STANDARD OF REVIEW
Under Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment if the movant can "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at 248. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48 (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party fails to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "There can be no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In order to withstand a motion for summary judgment, the nonmoving party "must substantiate [her] allegations with sufficient probative evidence [that] would permit a finding in [her] favor on more than mere speculation, conjecture, or fantasy.'" Moody v. St. Charles County, 23 F.3d 1410, 1412 (8th Cir. 1994) (citing Gregory v. Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993)). "A mere scintilla of evidence is insufficient to avoid summary judgment." Moody, 23 F.3d at 1412. The key inquiry is "whether the evidence presents a sufficient disagreement to require 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.
Once the moving party meets its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing a genuine issue of material fact exists. Id. at 256; see also Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (mere allegations, unsupported by specific facts or evidence beyond a nonmoving party's own conclusions, are insufficient to withstand a motion for summary judgment); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) ( en banc ) ("The nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.") (internal quotation marks and citation omitted). The non-moving party's own conclusions, without supporting evidence, are insufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 256; Thomas, 483 F.3d at 527; Torgerson, 643 F.3d at 1042.
UNDISPUTED MATERIAL FACTS
The following recitation consists of the material facts undisputed by the parties. These facts are developed from the plaintiff's second amended complaint (Docket 37), Dr. Wessel's answer (Docket 41), defendants' statements of undisputed material facts (Dockets 48-1 & 57), and plaintiff's response to defendant's statement of undisputed material facts and additional statement of undisputed material facts (Dockets 67, 68 & 69). Additional facts may be included where indicated. Where a statement of fact is admitted by the opposing party, the court will only reference the initiating document.
Mr. Hunt was incarcerated at the Pennington County Jail beginning on or before August 25, 2012, as a pre-trial detainee awaiting a state court trial. (Docket 57 ¶ 1). He alleges he began having digestive problems and pain on October 12, 2012. Id. ¶ 4. On October 19, 2012, Michelle Hagan, a physician's assistant ("P.A.") employed by Dr. Wessel,  saw Mr. Hunt. (Docket 57 ¶¶ 5 & 6). Following an examination, P.A. Hunt diagnosed gastroesophageal reflux disease ("GERD"). Id. She prescribed omeprazole, a generic form of Prilosec, for one week. Id. ¶ 9. One week later Mr. Hunt reported that although he continued to experience a little pain, the omeprazole seemed to be working. (Docket 69 ¶ 5).
On November 15, 2012, Mr. Hunt complained that at night his chest pain returned and he was experiencing severe chest pain and stomach cramps. (Dockets 57 ¶ 10 & 69 ¶ 6). Dr. Wessel examined Mr. Hunt that day and prescribed omeprazole twice a day. (Dockets 57 ¶ 11 & 69 ¶ 7). On November 21, Dr. Wessel saw Mr. Hunt during a scheduled appointment for his chest and rib pain. (Docket 69 ¶ 8). Dr. Wessel's omeprazole prescription directed the jail staff to "not stop" this dosage. Id. ¶ 9. Tiffany Alexander, a jail staff registered nurse, failed to give the increased dosage and failed to notify other jail medical staff of its increase. Id. ¶ 10. On November 26, Dr. Wessel gave a verbal order to the jail medical staff to increase Mr. Hunt's omeprazole dosage. Id. ¶ 11.
The next day Mr. Hunt informed RN Alexander that "[s]omething has caused my digestive system to fail. Food continues to sit for a couple of days, making it hard for me to eat." Id. ¶ 12. Mr. Hunt wanted to know whether any medication could be causing this condition and requested materials regarding the side effects of his medications. Id. RN Alexander informed Mr. Hunt he needed to give the omeprazole more time to work "since it was just restarted...." Id. ¶ 13. She also informed Mr. Hunt that the only new medication was a liquid antacid which was supposed to help relieve the symptoms of upset stomach, heartburn, too much stomach acid, excess gas and bloat discomfort. Id. Mr. Hunt told her he had not had a bowel movement for three days and "felt full." Id. ¶ 14. RN Alexander prescribed a high fiber diet for the next seven days. Id. ¶ 15. She told Mr. Hunt to drink more water and walk around more and that she would put him on Dr. Wessel's patient list to discuss stool softeners. Id.
On November 28, 2012, Mr. Hunt sent an e-mail to RN Good telling her he did not need a change of diet and requested to see an outside specialist because neither Dr. Wessel nor P.A. Hagen, who Mr. Hunt thought was a physician, had done anything to relieve his symptoms. Id. ¶ 16; see also Docket 57 ¶ 24. RN Good examined Mr. Hunt, found he had bowel sounds and placed him on the schedule to be seen by a medical provider. (Docket 69 ¶ 17; see also Docket 57 ¶ 25). She told Mr. Hunt to take Milk of Magnesia twice a day, take the omeprazole as prescribed and drink liquids and exercise. (Docket 69 ¶ 17). On November 29 or 30 jail medical staff took Mr. Hunt's urine sample for laboratory testing. (Docket 69 ¶ 18). P.A. Hagen examined the laboratory test results and noted a slightly elevated amount of creatinine, which indicated a lower level of kidney functioning. Id. ¶ 20. She ordered a follow-up visit by Dr. Wessel. Id.
Mr. Hunt was seen by RN Good on December 3, 2012. (Docket 57 ¶ 27). She prescribed Prilosec, Milk of Magnesia and Zantac. Id. ¶ 28. On December 5, Mr. Hunt was seen by Dr. Wessel. (Docket 69 ¶ 21). Dr. Wessel ordered a stool softener medication, increased Zantac as needed, and ordered Milk of Magnesia at bedtime if there was no bowel movement that day. Id. ¶ 21. On December 8, 2012, Mr. Hunt requested an increase of Milk of Magnesia. Id. ¶ 22. RN Alexander informed him that he was only able to have Milk of Magnesia one time in the evening "if you have not had a bowel movement that day." Id. ¶ 23.
On December 17, Mr. Hunt asked to see a specialist. (Docket 57 ¶ 30). The next day another jail staff registered nurse advised Mr. Hunt his request was forwarded to a medical provider, presumably Dr. Wessel. Id. ¶ 31. On December 27, Mr. Hunt complained "I am still having the same issues with my stomach. I can only eat one meal a day because the food continues to sit and not digest properly. This has been going on now for three months and I've been very patient going through protocol. I would now like to be seen by a specialist because there is seriously something wrong and the three doctors I've seen has [sic] not resolved the problem." (Docket 69 ¶ 24). RN Good advised Mr. Hunt it was Dr. Wessel's decision whether to refer him to a specialist. (Docket 57 ¶ 69). On December 30, Mr. Hunt e-mailed Mr. Yantis, a captain on the jail staff, asking that his digestive issues be immediately addressed. Id. ¶ 34.
On January 6, 2013, Mr. Hunt showed vomit in his toilet to a jail officer. (Docket 69 ¶ 27). The vomit had corn in it and the last time corn had been served was three days prior. Id. This staff member told Mr. Hunt he should file a grievance. (Docket 57 ¶ 36). On January 8, Mr. Hunt was seen kneeling next to his bed with his head lying on the mattress. (Docket 69 ¶ 28). He told medical staff this was how he coped with his indigestion. Id. As he was rising to sit on his bed, Mr. Hunt belched loudly several times. Id. When asked if he wanted to see a provider, Mr. Hunt stated that the jail providers had not helped and he wanted to see "his own doctor." Id.
On January 9, 2013, Mr. Hunt was seen by Dr. Wessel. Id. ¶ 29. Mr. Hunt described the corn in his vomit and asked to see a specialist for his stomach issues. Id. Dr. Wessel increased the Zantac dosage and ordered that Mr. Hunt be scheduled for a colonoscopy. Id. ¶ 30. Dr. Wessel ordered Mr. Hunt to drink a gallon of Colyte, an electrolyte solution, ...