United States District Court, D. Idaho
KATHLEEN HOWARTH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRIAN HOWARTH, AND INDIVIDUALLY Plaintiffs,
BOUNDARY COUNTY, et al, Defendants.
MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY
Honorable Ronald E. Bush Chief U.S. Magistrate Judge.
before the Court is a Motion for Summary Judgment (Dkt. 29),
in which Defendants Boundary County, Boundary County
Sheriff's Office, Boundary County Detention Facility,
David Colby, Richard Schmitz, Greg Sprungl, Robert Pew, John
McClelland, Kathleen Vanmeter, Jeff Hoff, John Doe Elam, and
James Ranlett (collectively “the Defendants”) ask
the Court to dismiss claims filed against them by Plaintiff
Kathleen Howarth. The Court heard oral argument on
Defendants' Motion for Summary Judgment, and on their
related Motion to Strike (Dkt. 44), on April 4, 2016. On May
10, 2016, the Court issued a decision in which it denied the
Motion to Strike in part, and gave Defendants an opportunity
to obtain their own forensic expert witness to rebut the
claims of Plaintiff's late-disclosed expert, Gregg
Stutchman. (Dkt. 54). The Court has now reviewed not only the
original briefing and submissions of the parties, but also
the additional evidence and briefs submitted in accordance
with the Court's Order on the Motion to Strike, and now
issues the following Order. This Order also addresses the
remaining issues in Defendant's Motion to Strike (Dkt.
44), which was partially denied in the previous order of May
a medical care deliberate indifference case arising under the
Eighth Amendment to the United States Constitution. The
Plaintiff, Kathleen Howarth, seeks damages arising from the
death of her husband Brian. Brian died of acute pneumonia
while in the custody of the Boundary County Detention
Facility. Though the specific facts related to the deliberate
indifference claims against each defendant will be discussed
in detail in the analysis section of this opinion, generally
and for purposes of background, the events giving rise to
this lawsuit are as follows.
Boundary County Detention Facility is located in Bonners
Ferry, Idaho. It is a jail that houses, on average, between
twenty and twenty-five inmates per month. (Defendants'
Statement of Facts, Dkt. 29-2, p.2). Brian Howarth was taken
into custody on January 14, 2014, on charges related to
driving while intoxicated. (Id.). At the
time of his booking Mr. Howarth was in good health. However,
he began to feel ill around January 20, 2014. On that day, he
phoned his wife Kathleen and said he had caught a virus that
she had been ill with prior to his incarceration. That same
day, Mr. Howarth told Sgt. David Colby that he was not
feeling well. (Id.). Sgt. Colby encouraged Mr.
Howarth to fill out a “request for medical Care”
form, which led to Mr. Howarth being seen the next day by Dr.
Troy Geyman. (Id., at pp. 3-4.) Dr. Geyman, who was
a contracted medical provider, diagnosed Mr. Howarth with a
sinus infection. He prescribed 800 mg of Ibuprofen to be
taken three times a day, as well as Sulfamethoxa/Thrimthopr,
an antibiotic. Mr. Howarth began taking these medications as
prescribed. Dr. Geyman also instructed the detention deputies
to take Mr. Howarth to the emergency room if he did not get
better within the next few days. (Id. at p. 4).
days later, Mr. Howarth was still sick. During the night
shift on January 22, 2014, Deputy Robert Pew noticed that
Howarth appeared unwell, that he was coughing, and that his
breathing seemed shallow. Deputy Pew was concerned enough
about Mr. Howarth's health that he did not put Howarth on
“lock down, ” that night. That meant Mr. Howarth
was free to move about the jail's day room, rather than
being locked in his cell. This allowed Deputy Pew to keep a
closer eye on Mr. Howarth. (Id. p. 5). The following
morning, Deputy Pew told Mr. Howarth that he needed to go to
the hospital, and Mr. Howarth agreed to go. (Id. p.
Robert Elam transported Mr. Howarth to the Boundary Community
Hospital on the morning of January 23, 2014, and helped him
check into the Emergency Room. (Id. p. 6-7). Dr.
Gordon Luther, who treated Mr. Howarth during this outpatient
ER visit, suspected pneumonia. However, Dr. Luther did not
order a chest x-ray to confirm this diagnosis, and provided
discharge instructions for bronchitis instead of pneumonia.
Dr. Luther did this, he explained, because the treatment for
both bronchitis and pneumonia was essentially the same.
(Plaintiff's Statement of Facts, Dkt. 31, ¶ 13). Mr.
Howarth was prescribed a second antibiotic, Zithromax, and
given a nebulizer inhaler. The remainder of the one-page
discharge instruction sheet advised rest, fluids, using the
inhaler as needed, and called for the patient to return to
the emergency room if the symptoms worsened. (Defendants'
Statement of Facts, p. 7-8).
until this point in time, the parties agree upon nearly all
of the facts. After Mr. Howarth returned from the hospital to
the jail, however, their accounts begin to diverge. The
Defendants contend that, even though Mr. Howarth continued to
cough and exhibit shortness of breath after he returned from
the hospital, his symptoms were not different from, or worse
than, those that the detention facility deputies observed
prior to the emergency room visit. (Defense Brief, Dkt. 29-1,
p. 10). In contrast, Mr. Howarth's wife Kathleen
testified that Mr. Howarth's appearance and manner on the
afternoon of January 23, 2014 caused her great concern.
Howarth's cell mate, Gerald Clark, testified that Mr.
Howarth's condition during the evening hours of January
23 and the early morning hours of January 24 was noticeably
worse than it had been before.
Mr. Clark and Ms. Howarth were concerned enough that they
each separately suggested to various jail deputies that Mr.
Howarth should be taken back to the hospital.
(Plaintiff's Statement of Facts, Dkt. 31, ¶ 19-25).
Several contacts were made by jail deputies with Mr. Howarth
during the night, which will be discussed in more detail
below. On the morning of January 24, 2014, at about 6:30
a.m., jail staff found Mr. Howarth unresponsive in his cell.
An ambulance was called, but Howarth was dead upon his
arrival at the Boundary Community Hospital around 7:30 a.m.,
due to a bilateral pneumonia from an infection of methicillin
resistant staphlycoccus areus (MRSA).
Summary Judgment Standards
judgment is appropriate where a party can show that, as to a
particular claim or defense, “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). One
of the principal purposes of the summary judgment rule
“is to isolate and dispose of factually unsupported
claims or defenses.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986). It is not “a disfavored
procedural shortcut, ” but is instead the
“principal tool[ ] by which factually insufficient
claims or defenses [can] be isolated and prevented from going
to trial with the attendant unwarranted consumption of public
and private resources.” Id. at 327.
“[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment ....”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). Rather, there must be no genuine dispute as to
any material fact in order for a case to survive summary
judgment. Material facts are those “that might affect
the outcome of the suit.” Id. at 248. Disputes
over facts that are not material to the resolution of the
motion will not preclude summary judgment. T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987).
moving party is entitled to summary judgment if that party
shows that each material fact cannot be disputed. To show
that the material facts are not in dispute, a party may cite
to particular parts of materials in the record, or show that
the adverse party is unable to produce admissible evidence to
support the fact. Fed.R.Civ.P. 56(c)(1)(A) & (B). The Court
must consider “the cited materials, ” but it may
also consider “other materials in the record.”
moving party meets its initial responsibility, then the
burden shifts to the opposing party to establish that a
genuine dispute as to any material fact actually does exist.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The existence of a scintilla of
evidence in support of the non-moving party's position is
insufficient. Rather, “there must be evidence on which
the jury could reasonably find for the [non-moving
party].” Anderson, 477 U.S. at 252.
Motion to Strike (Dkt. 44)
Court previously denied Defendants' Motion to Strike to
the extent that it sought to prevent the Plaintiff from using
the opinions of Gary Stutchman, a forensic expert who
enhanced the audio portions of the recordings made by the
surveillance cameras in the Boundary County Jail. However,
the Court permitted Defendants to obtain their own expert
testimony about such matters, and the opinions of that expert
are now in the record. The only remaining issue raised by the
Motion to Strike concerns the declaration of Plaintiff's
other expert, Roy T. Gravette, a former corrections officer
who expresses extensive criticisms of the conduct of
correctional officers and of the jail policies and
procedures. Specifically, Defendants argue that the Gravette
Declaration (Dkt. 34) should be stricken because it includes
legal conclusions about an ultimate issue of law.
the ultimate question of deliberate indifference is for the
jury to decide, Defendants contend that an expert should not
be allowed to testify that individual correctional officers
acted with deliberate indifference. This argument is often
well-made, as a general matter. Stakey v. Stander,
2011 WL 887563 (D. Idaho 2011). However, questions of the
exact boundaries of expert testimony are best decided in the
context of motions in limine submitted before trial, and even
if opinions focusing upon the ultimate issue of deliberate
indifference were stricken, such a ruling would not justify
striking the entire Gravette declaration. The
declaration discusses many facets of the events leading up to
Mr. Howarth's death, with various criticisms of the
conduct of correctional officers, and Mr. Gravette only
occasionally invokes terms such as “deliberate
indifference.” Because Defendants do not sort out the
arguably objectionable testimony from unobjectionable
testimony, and instead request that the entire Gravette
declaration be stricken, the motion to strike will be denied.
(Defendants' Brief, Dkt. 44, p. 10-11). In any event, as
the following discussion shows, there is ample evidence in
the record from which a reasonable trier of fact could infer
that several of the Defendants acted with the state of mind
necessary to prove deliberate indifference, even without
relying on opinions of Mr. Gravette that may or may not touch
on ultimate conclusions.
Issues of Fact Preclude Summary Judgment on the Eighth
Eighth Amendment claims and the various defendants in this
case can be placed into two distinct groups, each of which
requires a somewhat different analysis. The first group
consists of Officers David Colby, Richard Schmitz, Robert
Pew, John McClelland, Kathleen Vanmeter, Jeff Hoff, and James
Rantlett, as well as the Defendant designated as “John
Doe Elam” who is identified throughout the record as
Sergeant Robert Elam. The second group of Defendants consists
of Boundary County itself, the Boundary County Sheriff's
Office, the Boundary County Detention facility, as well as
Greg Sprungl, who is the Boundary County Sheriff. The Court
addresses the claims against the individual detention
deputies first, followed by the claims against the
Eighth Amendment Deliberate Indifference Standards.
Eighth Amendment includes the right to adequate medical care
in prison, and prison officials or prison medical providers
can be held liable for Eighth Amendment violations if their
“acts or omissions [were] sufficiently harmful to
evidence deliberate indifference to serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 106
(1976). A prison official or prison medical provider acts
with “deliberate indifference . . . only if the [prison
official] knows of and disregards an excessive risk to inmate
health and safety.” Gibson v. Cnty. of Washoe,
290 F.3d 1175, 1187 (9th Cir. 2002) (citation and internal
quotation marks omitted), (overruled on other grounds,
Castro v. County of Los Angeles, ___ F.3d ___, 2016
WL 4268955 (9th Cir. 2016). In the medical
context, to prove that a defendant acted with deliberate
indifference the plaintiff must show both “a purposeful
act or failure to respond to a prisoner's pain or
possible medical need and . . . harm caused by the
indifference.” Jett v. Penner, 439 F.3d 1091,
1096 (9th Cir. 2006). Deliberate indifference can be
“manifested by prison doctors in their response to the
prisoner's needs or by prison guards in intentionally
denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.”
Estelle, 429 U.S. at 104-05 (footnotes
omitted).Critical to the inquiry in this case, an Eighth
Amendment claim requires a plaintiff to satisfy “both
an objective standard-that the deprivation was serious enough
to constitute cruel and unusual punishment-and a subjective
standard-deliberate indifference.” Snow v.
McDaniel, 681 F.3d 978, 985 (9th Cir. 2012),
overruled in part on other grounds by Peralta v.
Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc). The
subjective prong of the deliberate indifference standard
“entails something more than mere negligence, [but] is
satisfied by something less than acts or omissions for the
very purpose of causing harm or with knowledge that harm will
result.” Farmer v. Brennan, 511 U.S. 825, 835
(1994). “Under this standard, the prison official must
not only ‘be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, ' but that person ‘must also draw the
inference.'” Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004) (quoting Farmer, 511 U.S.
at 837). “If a [prison official] should have been aware
of the risk, but was not, then the [official] has not
violated the Eighth Amendment, no matter how severe the
risk.” Gibson 290 F.3d at 1188. However,
“[w]hether a prison official had the requisite
knowledge of a substantial risk is a question of fact subject
to demonstration in the usual ways, including inference from
circumstantial evidence, . . . and a fact-finder may conclude
that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Farmer,
511 U.S. at 842; see also Lolli v. County of Orange,
351 F.3d 410, 421 (9th Cir. 2003) (“[D]eliberate
indifference to medical needs may be shown by circumstantial
evidence when the facts are sufficient to demonstrate that a
defendant actually knew of a risk of harm.”).
however, mere indifference, medical malpractice, or
negligence will not support a claim under the Eighth
Amendment. Broughton v. Cutter Labs., 622 F.2d 458,
460 (9th Cir. 1980) (per curiam). If medical personnel have
been “consistently responsive to [the inmate's]
medical needs, ” and there has been no showing that the
medical personnel had “subjective knowledge and
conscious disregard of a substantial risk of serious injury,
” there has been no Eighth Amendment violation.
Toguchi, 391 F.3d at 1061. Further, non-medical
personnel generally are entitled to rely on the opinions of
medical professionals with respect to the medical treatment
of an inmate. Even so, if “a reasonable person would
likely determine [the medical treatment] ...