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Weliever v. Heward

United States District Court, D. Idaho

September 18, 2017



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

         Pending before the Court is Defendant Darwin Johnson's Motion for Summary Judgment. (Dkt. 80). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge. (Dkt. 32). The parties have adequately presented the facts and legal arguments in the briefs and record and the Court finds that a decision would not be aided by oral argument. See D. Idaho L. Civ. R. 7.1(d). Therefore, having carefully reviewed the record, and otherwise being fully informed, the Court enters the following Order.

         I. BACKGROUND

         This is a civil rights case involving claims for violations of 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution, as well as state-law claims. During the events giving rise to this lawsuit, Plaintiff Robert Henry Weliever (“Weliever”) was incarcerated at the Mini-Cassia Criminal Justice Center (the “Jail”) in Burley, Idaho. Defendant, Lieutenant Darwin Johnson (“Johnson”) was the jail administrator at the Jail.

         Essentially, Weliever claims violations of his Eighth Amendment rights stemming from the care he received for chronic headaches and seizures during the spring of 2014. Weliever further contends that Johnson has policy-based supervisory liability for such claims, arising from Johnson's role as jail administrator. Weliever also raises state law claims.

         Weliever is currently in his early forties. He has a history of chronic migraine headaches and non-epileptic seizures dating back years. Though there is some suggestion in the medical records that the seizures may relate to boxing injuries sustained during his teenage years, the precise cause of these seizures remains unknown. (Defendant's Statement of Undisputed Facts, Dkt. 80-2 p. 8; Bell Declaration ¶ 12). When he was arrested, and for much of the relevant time frame of this lawsuit, Weliever was taking a prescription drug known as Lamotrigne, or Lamictral, to help control these seizures. (Dkt. 80-2, p. 9).

         Weliever was arrested on April 12, 2014 and booked into the Jail. During the booking process, Weliever was given an extensive questionnaire regarding his medical history. He was asked, among other things, whether he had a history of seizures. He answered “no.” Nevertheless, he was continuously provided with his anti-convulsant medication from the time he arrived at the Jail, including throughout the month of April, 2014, which was when he first began experiencing seizures while at the Jail. (Bell Affidavit Dtk. 80-3 at ¶ 11).

         Weliever experienced headaches and seizures throughout his time at the Jail; however, his claims for deliberate indifference in how he received care focus on two discrete time frames: April 23-25, 2014 and May 9-14, 2014. (Defense Brief at p. 80-1 & (Weliever depo., Dkt. 80-12 at p. 37). The following facts are pertinent to those two time frames.

         April 23-25, 2014. Weliever's first significant medical event while at the Jail occurred early in the morning of April 23, 2014. He experienced a significant headache early in the morning that day and around 5 a.m., when a guard found him lying on the floor of the cell holding his head and moaning in pain. (Bell Aff. ¶ 12). The guards were able to get Weliever into a wheelchair and took him to the nurse's station, where he showed signs of a seizure. The guards called Debbie Bell, a nurse practitioner who oversees medical care at the Jail. Ms. Bell instructed the guards to take Weliever to the hospital emergency room, which was several blocks away. Weliever was transported to the ER, as she instructed. There, Weliever was treated for seizures, headaches, and a broken rib caused by his fall. Medical records from that visit show that he was receiving medical attention from various emergency room providers from 7:30 a.m. to 9:30 a.m. (Dkt. 80-6 at ECF p. 10-18). He was discharged at 9:50 a.m. (Id. at ECF p. 18). As part of his discharge, the emergency room physician prescribed additional Lamotrigine, and 800 mg of ibuprofen, to be taken three times a day. (Bell Decl. at ¶¶ 11-12; See also, Dkt. 80- 7 at ¶ 19; Dkt. 80-4 at ECF page 47).

         Weliever also complains of the care he received upon his return to the Jail after his discharge from the hospital that morning. He contends that upon returning to the Jail, he was told that Jail policy allowed staff to administer medications only twice a day and that ibuprofen only could be dispensed in 200 mg pills. According to Weliever, because of this policy he initially did not receive the full course of ibuprofen that had been prescribed.

         Two days later, in response to a complaint that Weliever made about the medications not being provided as prescribed, Lieutenant Johnson allowed him to be given 800 milligrams of ibuprofen (i.e. four pills) at each of the two daily medication calls, so that he could save some pills and take them on an as needed basis. While the record is not clear on this point, it appears that even after Johnson lifted the standard jail policy as to Weliever, Weliever still may have received a total of only 1600 milligrams of ibuprofen per day as opposed to the total of 2400 milligrams (i.e. 800 mg three times per day) that the doctor had ordered. (Bell Aff. ¶¶ 13-14).

         May 9-14, 2014. On May 2, 2014, Weliever submitted several medical requests or grievances saying that he had been experiencing more tremors or seizures than usual. He also submitted grievances about his headaches and seizures on May 5 and May 7, 2014. On May 12, 2014, Weliever submitted a “medical request” indicating that he was having headaches and Nurse Bell referred him to a physician's assistant. (Johnson affidavit, Dkt. 80-7, ¶¶ 23-28). Later that same day, Weliever submitted a grievance saying that he did not have any Tylenol or ibuprofen and asserted that he was not receiving adequate medical care.

         In response, Johnson told Weliever that he was receiving medications and that he had money in his account to purchase additional over-the-counter medicines from the commissary. On May 14, Weliever submitted an appeal of this grievance, which Johnson answered by again reminding him that he had been provided with ibuprofen and Tylenol when he could not buy his own. Johnson further opined to Weliever that “maybe you should try them [i.e. medications] rather than spending your time complaining to staff.” (Id. ¶ 28; See also Dkt. 80-10 at ECF p. 9). That same day, Weliever made a second appeal of this same grievance. Following that, Johnson and Weliever had a conversation about the various grievances and grievance appeals. The parties dispute the content and tenor of that conversation. Weliever alleges that Johnson was threatening to him, and told him to stop submitting “kites” (the jail term for such messages and grievances) related to headaches and seizures. (Weliever Depo., Dkt. 80-12 at p. 73). Johnson denies Weliever's characterization of the conversation, and says he did not prohibit Weliever from submitting new medical grievances or requests if Weliever continued to have seizures and migraines. Johnson says that he only told Weliever that he could not continue to submit appeals on issues that had already been grieved. (Johnson Decl. ¶ 29).


         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 the facts material to the non-movant's claims are not disputed, and cannot support the claims that have been ...

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