Opinion
No. C00-0044.
August 1, 2001.
ORDER
This matter comes before the court pursuant to defendants' June 18, 2001 motion for summary judgment (docket number 19). The parties consented to the exercise of jurisdiction by a United States Magistrate Judge. For the reasons set forth below, the motion is granted
I. Background
Plaintiff Gary Snow filed this suit pursuant to 42 U.S.C. § 1983 against the Iowa Department of Corrections; W.L. Kautzky, the Director of the Department of Corrections for the State of Iowa; John Ault, II, the Warden of the Anamosa State Penitentiary ("ASP"); John Duffy, M.D., a physician working at ASP; Gerard Connolly, Administrator of the ASP Hospital/Infirmary; Kenneth Marlin, Timothy Bergfeld, Michael Willis, and Edmund Steiklein, correctional officers employed at ASP; and Margie Stoll, a nurse employed at ASP. He alleges that the defendants were deliberately indifferent to his medical needs and that his Eighth Amendment rights were violated.
Snow arrived at ASP on August 3, 1998. He had been treated for abdominal pain on August 3, 1998 while incarcerated at the Clarinda Correctional Facility. On October 2, 1998, Snow complained of extreme pain in the lower right abdominal region and back area. On October 6, 1998, Snow was evaluated by Dr. Duffy. Dr. Duffy suspected that Snow suffered from irritable bowel syndrome and prescribed Bentyl, Mitrolan and Simethicone. When Dr. Duffy next saw Snow on October 19, 1998, Snow was continually having five or six bowel movements per day. Dr. Duffy prescribed Immodium. Dr. Duffy next saw Snow on November 19, 1998. Dr. Duffy discontinued all medications.
Snow did not seek medical care for abdominal pain again until May 4, 1999. Snow's blood pressure was elevated, he was grimacing and walking with a protective gait, and he displayed rebound tenderness in the right lower quadrant. The nurse who treated him sent him to the Anamosa Community Hospital (ACH) emergency room and called Dr. Duffy with a report. At ACH, Dr. Weston evaluated Snow and recommended that he be observed for abdominal pain in the infirmary that night and be sent to the University of Iowa Hospital if he worsened. No tests were abnormal. Dr. Weston gave him a shot of Toradal, a non-narcotic pain reliever, before sending him back to ASP.
At approximately 9:05 a.m. on May 5, 1999, Dr. Duffy reviewed the ACH report. He noted that Snow's tests and examination were within normal limits. He stated that Snow should receive a clear liquid diet and flexoral as directed by Dr. Weston. Dr. Duffy saw him again at 9:45 a.m. Snow indicated he was fine and that his pain went away after they gave him the Demerol shot. Dr. Duffy noted that there was no record that Snow had received a narcotic pain reliever. The record which accompanied Snow back to ASP did not indicate that Snow had received the shot while at ACH. Dr. Duffy testified at his deposition that ACH issued a typed report stating Snow received the shot, but that this was not part of the medical record he reviewed as part of the ASP medical record.
At 11:15 p.m., Snow complained to Nurse Margie Stoll that he was in pain again and requested Demerol. His temperature and blood pressure were normal. According to Nurse Stoll, she spoke with Dr. Duffy who told her to put Snow in a locked side room to rest for the night until he could be seen in the morning. The parties dispute the extent of the events which occurred after 11:15 p.m. According to Nurse Stoll, Snow became disruptive and demanded to see the doctor and be given Demerol. Dr. Duffy testified that when he was called at home and told about these requests, he thought Snow was trying to manipulate the staff into giving him a narcotic pain reliever. When Snow refused to go to the locked side room of the infirmary, Correctional Officers Ed Stecklein, Tim Bergfeld and Mike Willis were called at 11:50 p.m. to take him from the medical ward to the side room.
According to the officers, Snow continued to complain about his medical condition. Captain Marlin informed him that he was moving to a side room and displayed the XR5000 stun gun. When Snow would not get off his bed, the officers lifted him and placed him on the floor. They had difficulty handcuffing him because he would not cooperate. Captain Marlin used the XR5000 stun gun in Snow's back twice to attempt to get him to cooperate in being cuffed. According to the officers, Snow reacted to being stunned but continued to be uncooperative. Snow was carried to the side room by the correctional officers where he was uncuffed and assisted to his bed. He had small abrasions on his back from the stun gun and on his wrist from the handcuffs. He refused to allow Nurse Stoll to treat him.
At 8:45 a.m. on May 6, 1999, Dr. Duffy saw Snow. There was no rebound tenderness but his blood pressure was elevated. He was checked on by nurses periodically throughout the day. At 8:40 p.m., he had a drop in blood pressure and elevated temperature. After a call from the nurse, Dr. Duffy instructed them to send Snow to University of Iowa Hospital and Clinics in Iowa City. Snow was admitted that night where he was diagnosed with acute cholecystitis and a conservative management course including IV antibiotics was followed until May 11. He underwent a laparoscopic cholecystectomy on May 11, 1999.
II. Summary Judgment Standard
A motion for summary judgment may be granted only if, after examining all of the evidence in the light most favorable to the nonmoving party, the court finds that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Kegel v. Runnels, 793 F.2d 924, 926 (8th Cir. 1986). Once the movant has properly supported its motion, the nonmovant "may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "To preclude the entry of summary judgment, the nonmovant must show that, on an element essential to [its] case and on which [it] will bear the burden of proof at trial, there are genuine issues of material fact." Noll v. Petrovsky, 828 F.2d 461, 462 (8th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Although "direct proof is not required to create a jury question, . . . to avoid summary judgment, `the facts and circumstances relied upon must attain the dignity of substantial evidence and must not be such as merely to create a suspicion.'"Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985) (quotingImpro Prod., Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983)). In applying these standards, the court must give the nonmoving party the benefit of all reasonable inferences to be drawn from the evidence. Krause v. Perryman, 827 F.2d 346, 350 (8th Cir. 1987).
III. Exhaustion of Administrative Remedies
The defendants contend that this action should be dismissed because Snow failed to exhaust administrative remedies provided by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a). Section 1997e(a) provides: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." The defendants contend Snow should have filed a grievance with the Iowa Department of Corrections before filing this action.
In Booth v. Churner, 121 S.Ct. 1819 (2001), the prisoner argued that he was not required to exhaust administrative remedies because the state administrative procedure did not provide him with monetary relief. The Supreme Court held that a prisoner must exhaust all available administrative remedies before filing suit in federal court, regardless of the remedy provided in the administrative proceeding. The defendants argue that the Iowa Department of Corrections has a grievance policy which was available to Snow and he did not file a grievance. Snow argues that the exhaustion requirement does not apply to particularized complaints and relies primarily in Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000), cert. granted sub nom. Porter v. Nussle, 121 S.Ct. 2213 (2001). In Nussle, the Second Circuit, noting a split among the circuits, held that the term "prison conditions" did not refer to excessive force claims under the Eighth Amendment and therefore the exhaustion requirement did not apply. Id. The Supreme Court granted certiorari in June 2001 to resolve the conflict among the circuits.
In Castano v. Nebraska Department of Corrections, 201 F.3d 1023 (8th Cir. 2000), the Eighth Circuit declined to give the term "prison conditions" the more narrow definition from Nussle. InCastano, Spanish-speaking inmates argued their due process rights had been violated because they had not been provided with qualified interpreters at disciplinary hearings. The Prison Litigation Reform Act (PRLA) provides:
[T]he term "civil action with respect to prison conditions" means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.18 U.S.C. § 3626(g)(2); Castano, 201 F.3d at 1024 n. 2. The Eighth Circuit determined that § 3626 is broad and that the plaintiffs were required to exhaust their administrative under § 1997e(a). While Castano involved a due process claim and not an Eighth Amendment claim, the Eighth Circuit ruling broadly defining "prison conditions" requires that Snow failed to exhaust his administrative remedies before filing suit. Because he did not exhaust his administrative remedies, he is precluded from proceeding in federal court.
IV.Liability under Section 1983
Snow has filed suit against the Iowa Department of Corrections; W.L. Kautzky, the Director of the Department of Corrections for the State of Iowa; John Ault, II, the Warden of the ASP; and Gerard Connolly, Administrator of the ASP Hospital/Infirmary. The Eleventh Amendment bars suit against the Iowa Department of Corrections. See Morstad v. Department of Corrections and Rehabilitation, 147 F.3d 741 (8th Cir. 1998). "A supervisor may not be held liable under § 1983 for the constitutional violations of a subordinate on a respondeat superior theory." Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir. 2001). A supervisor is liable only if "`he directly participates in a constitutional violation or if a failure to properly supervise and train the offending employee caused a deprivation of constitutional rights. . . ." Id. (quoting Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996)). The plaintiff has not alleged any facts from which to conclude that Kautzky, Ault or Connolly participated in the alleged violation or failed to train or supervise the offending employees. Therefore, Kautzky, Ault and Connolly cannot be held liable under § 1983.
V. Medical Treatment
The plaintiff argues that Dr. Duffy and Nurse Stoll were deliberately indifferent to his medical condition. He argues that their failure to administer pain medication constituted deliberate indifference. He also argues that calling the correctional officers to move him from the infirmary to the locked side room, knowing that the use of a stun gun was possible, would inflict further pain on him and, therefore, they were deliberately indifferent to his condition.
"Prison officials or their agents violate the eighth amendment if they commit acts or omission sufficiently harmful to evidence deliberate indifference to an inmate's serious medical needs."Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (alterations and quotations omitted). The standard contains "both an objective and subjective component: `The plaintiff must demonstrate (1) that he suffered from objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs.'" Id. (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)) (alterations omitted). The plaintiff is required to "make a showing of subjective awareness by the prison officials of a ` substantial risk' of ` serious harm' to a prisoner in order to establish an Eighth Amendment deliberate indifference cause of action."Williams v. Kelso, 201 F.3d 1060, 1065 (8th Cir. 2000) (quotingFarmer v. Brennan, 511 U.S. 825, 828 (1994)).
The Supreme Court has likened deliberate indifference to a criminal recklessness standard . . . . Under this standard, an official is deliberately indifferent (reckless) if he disregards a known risk to a prisoner's health. To establish a constitutional violation, it is not enough that a reasonable official should have known the risk, a plaintiff must establish that the official in question did in fact know of the risk. However, this knowledge is subject to proof by all the obviousness of the risk. . . . [E]ven if an official knows of a risk, he is not liable for the subsequent injury if he responded reasonably to the known risk.
Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000) (citations omitted).
Snow has not met the deliberate indifference standard. When Snow complained of abdominal pain on May 4, 1999, he was immediately sent to the Anamosa Community Hospital emergency room. The emergency room doctor, Dr. Weston, recommended he be observed in the infirmary and sent to the University of Iowa Hospitals and Clinics if he worsened. Snow was observed that night and then monitored the following day, May 5. At the time he complained of pain and requested a narcotic pain reliever, his vital signs were normal. He was examined by Dr. Duffy and monitored again on May 6. As soon as he had a drop in blood pressure and elevated temperature, he was sent to the University of Iowa Hospital. Snow has not been able to show that Dr. Duffy or Nurse Stoll acted with deliberate indifference to his medical needs.
IT IS ORDERED
The defendants' June 18, 2001, motion for summary judgment (docket number 19) is granted. This matter is dismissed. The Clerk of Court shall enter judgment for the defendants.