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Howarth v. Boundary County

United States District Court, D. Idaho

September 30, 2016

KATHLEEN HOWARTH, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRIAN HOWARTH, AND INDIVIDUALLY Plaintiffs,
v.
BOUNDARY COUNTY, et al, Defendants.

          MEMORANDUM DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

          Honorable Ronald E. Bush Chief U.S. Magistrate Judge.

         Pending 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 10, 2016.

         BACKGROUND

         This is 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.

         The 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).

         Two 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. 6).

         Deputy 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).

         Up 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.

         Both 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).

         LEGAL STANDARDS

         A. Summary Judgment Standards

         Summary 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).

         The 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.” Fed.R.Civ.P. 56(c)(3).

         If the 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.

         ANALYSIS

         A. Motion to Strike (Dkt. 44)

         The 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.

         Because 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.

         B. Issues of Fact Preclude Summary Judgment on the Eighth Amendment Claims

         The 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 Institutional Defendants.

         1. Eighth Amendment Deliberate Indifference Standards.

         The 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.”).

         Significantly, 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] ...


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