Opinion
Civil Action No. 01-3353-KHV
December 13, 2002.
MEMORANDUM AND ORDER
Daniel J. Johnson, a former inmate at the Edwards County jail, brings suit against Sheriff Bryant Kurth, Deputy Sheriff Ken Schmidtt and the Sheriff's Department of Edwards County, Kansas. Under 42 U.S.C. § 1983, plaintiff alleges that defendants violated his constitutional rights by denying him adequate medical care. This matter is before the Court on defendants' Motion For Summary Judgment (Doc. #17) filed July 8, 2002. For reasons set forth below, the Court sustains defendants' motion.
Summary Judgment Standards
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Smith v. Midland Brake, Inc., 138 F.3d 1304, 1307 (10th Cir. 1998). The moving party bears the initial burden of showing that there is an absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
In considering a summary judgment motion the Court must view the evidence in the light most favorable to the nonmoving party. See Tom v. First Am. Credit Union, 151 F.3d 1289, 1291 (10th Cir. 1998). Summary judgment may be granted, however, if the nonmoving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-1. Thus, "`[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,' summary judgment in favor of the moving party is proper." Thomas v. IBM, 48 F.3d 478, 484 (10th Cir. 1995) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
In pro se prisoner litigation, the Tenth Circuit endorses the completion and filing of a "Martinez report" where the prison constructs an administrative record detailing the factual investigation of the events at issue. See Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978). The Martinez report "is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence." Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)). The pro se prisoner's complaint, when sworn and made under a penalty of perjury, is also treated as an affidavit and, like the Martinez report, serves as evidence for a summary judgment determination. See id.
Factual Background
The following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff.
From January 1, 2000 until October 8, 2000, plaintiff was an inmate at the Edwards County jail in Kinsley, Kansas. During his period of incarceration, plaintiff consulted a physician at the Kinsley Rural Health Clinic on 14 occasions: January 18, February 7, March 3 and 21, May 30, July 11 and 18, August 2, 11, 18 and 25, and September 6, 13 and 18. During five of these consultations, on February 7, March 3 and 21, May 30 and July 11, plaintiff sought treatment for an ear infection. On March 3, a doctor prescribed an oral antibiotic (Biaxin) to treat the infection. Jail staff gave plaintiff this medication as directed (twice a day for ten days). On March 14, a doctor refilled the Biaxin for ten additional days, but jail staff gave plaintiff the prescription only twice — once on March 14 and once on March 15. On March 21, a doctor prescribed antibiotic ear drops three times a day in each ear with no prescribed length for the regimen. Jail staff gave plaintiff the medication once on March 21, three times on March 22, twice on March 23, and once on March 24, then discontinued it. On April 13, a doctor refilled the prescription for antibiotic ear drops, but jail staff did not give plaintiff the medicine. On May 6, a doctor prescribed another antibiotic (Ampicillin). Jail staff gave plaintiff this medication as directed (three times a day for seven days) with only minor variation. On May 15, a doctor refilled the Ampicillin prescription. Jail staff again gave plaintiff this medication as directed (three times a day for seven days) with only minor variation. On May 30, a doctor prescribed different antibiotic ear drops (Cipro) two times a day in each ear, with no prescribed length for the regimen. Jail staff gave plaintiff Cipro for five continuous days until June 3, discontinued the prescription until June 27, then resumed it from June 27 through July 3. On July 3, a doctor prescribed an oral antibiotic (Erythromycin) and pediotic suspension ear drops. From July 3 through 8, with minor variations, jail staff gave plaintiff the medicines as directed: Erythromycin twice a day for five days and suspension ear drops three times a day in each ear. On July 11, a doctor again prescribed Cipro ear drops (twice a day in each ear). Jail staff gave plaintiff the Cipro ear drops from July 11 through 23.
Defendants have not produced evidence regarding the purpose for each consultation or the prescribed length of each medication regimen. Plaintiff has supplied this information, albeit in unsworn attachments to his opposition brief, and defendants do not dispute the information plaintiff has provided. Accordingly, to provide context as to the purpose of the doctor visits and the length of the prescription regimen, the Court has relied in part on Exhibits C and D to plaintiff's Reply, Counter-Claim And Oppositional Objection To Summary Judgment And Request For Trial By Jury Of This Action (Doc. #23) filed September 19, 2002 ("Plaintiff's Reply").
Jail staff gave plaintiff this medication only once on the first and last days (March 3 and 13).
Jail staff gave plaintiff this medication only twice on the first and second days (May 6 and 7) and only once on the last day (May 13).
Jail staff gave plaintiff this medication only once on the first day (May 15) and only twice on May 16, 20 and 22.
Jail staff gave plaintiff Erythromycin only once on the first and last days (July 3 and 8). Jail staff gave plaintiff ear drops only once on the first and last days (July 3 and 8) and only twice on July 4 and 7.
In his complaint, plaintiff alleges that defendants inflicted cruel and unusual punishment in violation of the Eighth Amendment because they did not immediately treat his ear infection when he complained. Defendants deny that plaintiff had serious medical needs and argue that because plaintiff consulted a doctor 14 times during his nine-month period of incarceration and received prescribed medication, he cannot show that they were deliberately indifferent to any serious medical needs.
On November 15, 2001, the Court ordered plaintiff to supplement his complaint to provide the specific dates of defendants' alleged conduct. See Order (Doc. #6) at 2. Plaintiff now alleges that defendants infringed his constitutional rights during his incarceration from January 1 through October 8, 2000. See Supplemental Complaint (Doc. #10) filed December 18, 2001.
In opposition to defendants' motion for summary judgment, plaintiff attempts to raise two additional claims: (1) the physician prescribed conservative treatment for his ear infection and (2) jail staff did not correctly administer prescribed medications. See Plaintiff's Reply (Doc. #23) at 3-6. The Court will not consider claims which plaintiff did not include in his complaint and presents for the first time in a response brief. See Turner v. McKune, No. 00-3456, 2001 WL 1715793, at *3 (D.Kan. Dec. 21, 2001); Davis v. Seiter, No. 96-3316, 1998 WL 404354, at *8 (D.Kan. June 30, 1998). On the merits, however, the Court notes that (1) a mere disagreement with the course of treatment is insufficient to state a claim of deliberate indifference to a prisoner's medical needs and (2) to be actionable, a failure to correctly administer prescribed medication must cause "serious" harm and defendants must have known that plaintiff faced a substantial risk of serious harm absent strict compliance with the prescribed regimens. See Farmer v. Brennan, 511 U.S. 825, 835-37 (1994); Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993); Smart v. Villar 547 F.2d 112, 114 (10th Cir. 1976).
In another brief, plaintiff asserts that defendants were negligent and that he intends to ask for discovery on such a claim. See Motion To Dismiss Summary Judgment And Reply To Defendant's Renewed Request For Summary Judgment (Doc. #25) filed October 22, 2002 at 2. As explained below, however, Section 1983 does not provide a remedy for negligent or inadvertent failure to provide adequate medical care, negligent diagnosis or treatment. See Riddle v. Mondragon, 83 F.3d 1197, 1203 (10th Cir. 1996); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981).
Even if plaintiff's complaint could be construed to assert these additional claims, defendants would be entitled to summary judgment because plaintiff has produced no admissible evidence to show that a reasonable juror could find in his favor on any of his claims.
Analysis Plaintiff's complaint alleges that defendants inflicted cruel and unusual punishment in violation of the Eighth Amendment because they did not immediately treat his ear infection when he complained. Defendants argue that they are entitled to summary judgment because plaintiff cannot show that they were deliberately indifferent to any serious medical needs. More specifically, defendants argue that as a matter of law, (1) plaintiff had no serious medical need and (2) they took reasonable steps to deal with his ear infection.
As a pretrial detainee, plaintiff's claim for cruel and unusual punishment arises under the Fourteenth Amendment's Due Process Clause rather than the Eighth Amendment. The same analysis applies, however, to both types of claims. See Lopez v. LeMaster, 172 F.3d 756, 759 n. 2 (10th Cir. 1999).
Prison officials violate the Eighth Amendment when they are deliberately indifferent to an inmate's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). A medical need is "serious" if it has been diagnosed by a physician as one requiring treatment or if it is so obvious that even a lay person would easily recognize the need for a doctor's attention. Id. Indications that a prisoner has a "serious" need for medical treatment include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; and the existence of chronic and substantial pain. See McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (cited in Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997).
Prison officials act with deliberate indifference to an inmate's health if they know that he faces a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it. See Farmer v. Brennan, 511 U.S. 825, 835-37 (1994). Such indifference may be proven by showing that prison officials intentionally denied, delayed access to, or interfered with an inmate's necessary medical care. See Estelle, 429 U.S. at 104-05; Jones v. Hannigan, 959 F. Supp. 1400, 1406 (D.Kan. 1997). Under this standard, plaintiff must show more than a negligent or inadvertent failure to provide adequate medical care and more than a mere difference of opinion between him and the prison medical staff regarding the proper course of treatment. See Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993); Smart v. Villar 547 F.2d 112, 114 (10th Cir. 1976); Jones, 959 F. Supp. at 1406. Accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or treatment, do not constitute a medical wrong under the Eighth Amendment. See Ramos, 639 F.2d at 575; Riddle, 83 F.3d at 1203. Similarly, a prisoner's difference of opinion regarding the medical treatment he has received will not support a claim of cruel and unusual punishment. See Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993); Stephan, 6 F.3d at 692; Ramos, 639 F.2d at 575.
Defendants argue that plaintiff cannot show that his alleged injuries were serious. Plaintiff has not presented evidence on this point. Defendants' own records, however, establish that plaintiff had an ear infection and that he needed treatment. While defendants argue that as a matter of law such injuries were not "serious," a reasonable jury could find otherwise. See Ramos, 639 F.2d at 575 (medical need "serious" if diagnosed by physician as requiring treatment or lay person would recognize obvious need for medical attention).
Plaintiff's complaint and opposition brief are unsworn and the factual assertions therein do not constitute admissible evidence for purposes of defendants' motion for summary judgment. See D. Kan. Rule 56.1; Fed.R.Civ.P. 56(e). The signature on plaintiff's opposition brief is notarized, but the notary simply certifies that plaintiff signed the document. Cf. 28 U.S.C. § 1746 (valid declaration under penalty of perjury must be in substantially following form: "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date)").
Next, defendants argue that because plaintiff consulted a doctor 14 times during his incarceration and received prescribed medication on many occasions, he cannot show that they were deliberately indifferent to his reasonable medical needs. Plaintiff does not deny that he had access to medical care, but he maintains that defendants did not immediately provide medical treatment when they first learned of his ear problems. Plaintiff's complaint does not allege when he first notified defendants of his ear problems or when he first consulted a physician. Moreover, plaintiff has offered no admissible evidence on this issue, on which he bears the burden of proof at trial. Absent admissible evidence on which a reasonable juror could find in favor of plaintiff, the Court must sustain defendants' motion for summary judgment. See Celotex, 477 U.S. at 322 (summary judgment may be entered against party who fails to make sufficient showing to establish existence of element essential to that party's case); Hall, 935 F.2d at 1111 (once movant points out absence of proof on essential element of nonmovant's case, burden shifts to nonmovant to provide contrary evidence); Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (nonmoving party may not rest on pleadings but must set forth specific facts showing genuine issue for trial as to dispositive matters for which it carries burden of proof).
Even if the Court considered the factual assertions in plaintiff's opposition brief, it would reach the same result. Plaintiff states that he told defendants of his ear problems "on or about the second week of February, 2002." Plaintiff's Reply (Doc. #23) at 6. The Court assumes that plaintiff is referring to February 2000, but by plaintiff's own admission, he visited a doctor for ear-related problems on Monday, February 7, 2000. See id., Exhibit D, at 3. Accordingly, he cannot establish that defendants intentionally denied, delayed access to, or interfered with his necessary medical care. See Estelle, 429 U.S. at 104-05.
Plaintiff's unsworn factual assertions also include a claim that at a hearing in state court, a judge ordered Sheriff Kurth to take plaintiff to a doctor because "infectious fluids were [obviously] flowing freely from plaintiff's ears," Complaint (Doc. #1) at 2, and plaintiff obviously could not hear what the judge was saying. See Plaintiff's Reply (Doc. #23), Exhibit H at 1. Even if plaintiff offered admissible evidence on this allegation, he has not shown that defendants knew his condition, or deliberately delayed discovering his condition, before the state court hearing.
Plaintiff's complaint also alleges that defendants violated K.S.A. § 19-1919 which provides that "[a]ll prisoners shall be treated with humanity, and in a manner which promotes their reform." Defendants have not addressed this claim and the Court declines to exercise jurisdiction over it. A district court may decline to exercise supplemental jurisdiction once it has dismissed the claims over which it had original jurisdiction. See 28 U.S.C. § 1367(c)(3); Lancaster v. Independent Sch. Dist. No. 5, 149 F.3d 1228, 1236 (10th Cir. 1998). If all federal claims are dismissed before trial, state law claims will generally be dismissed as well. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-26 (1966); Thatcher Enters. v. Cache County Corp., 902 F.2d 1472, 1478 (10th Cir. 1990). Because the Court has dismissed plaintiff's federal claim, the Court declines to exercise supplemental jurisdiction over the state law claim under K.S.A. § 19-1919.
IT IS THEREFORE ORDERED that defendants' Motion For Summary Judgment (Doc. #17) filed July 8, 2002 be and hereby is SUSTAINED. IT IS FURTHER ORDERED that plaintiff's claim under K.S.A. § 19-1919 is hereby DISMISSED without prejudice.
Dated this 13th day of December, 2002 at Kansas City, Kansas.