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Berthelot v. Thomas

United States District Court, N.D. Alabama, Western Division

December 23, 2014

PATRICK JON BERTHELOT, Plaintiff
v.
OFFICER THOMAS, et al., Defendants

Patrick Jon Berthelot, Plaintiff, Pro se, Mt. Meigs, AL.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HARWELL G. DAVIS, III, UNITED STATES MAGISTRATE JUDGE.

Plaintiff, Patrick Jon Berthelot, filed this pro se action pursuant to 42 U.S.C. § 1983 alleging that rights, privileges, or immunities afforded him under the Constitution or laws of the United States were abridged during his incarceration at Tuscaloosa County Jail in Tuscaloosa, Alabama.[1] In his amended complaint, he names Detention Officer Thomas and Deputy Sheriff Smith as defendants. As compensation for the alleged constitutional violations, the plaintiff seeks declaratory and injunctive relief[2] as well as monetary damages. In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(2), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136 (1991).

I. Procedural History

On April 16, 2014, the court entered an Order for Special Report directing that copies of the amended complaint in this action be forwarded to each of the named defendants and requesting that they file a special report addressing the factual allegations of the plaintiff's complaint. (Doc. 9). The defendants were advised that the special report could be submitted under oath or accompanied by affidavits and, if appropriate, would be considered as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. By the same Order, the plaintiff was advised that after he received a copy of the special report submitted by the defendants he should file counter affidavits if he wished to rebut the matters presented by defendants in the special report. The plaintiff was further advised that such affidavits should be filed within twenty days after receiving a copy of the defendants' special report.

On June 10, 2014, the defendants filed a special report accompanied by affidavits and certified copies of institutional records. (Doc. 12). Thereafter, the plaintiff was notified that he would have twenty days to respond to the motion for summary judgment, filing affidavits or other material if he chose. (Doc. 13). He also was advised of the consequences of any default or failure to comply with Fed.R.Civ.P. 56. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff has not filed a response to the defendants' motion for summary judgment.

II. Factual Allegations

The following facts are undisputed, or if disputed, taken in a light most favorable to the plaintiff.

The plaintiff does not dispute the defendants' assertion (doc. 12 at 1) that he was a pre-trial detainee at the Tuscaloosa County Jail during the time the events giving rise to this complaint occurred, which began when the plaintiff thought he broke his ankle around 12:30 p.m. on June 12, 2012. (Doc. 5 at 5). The plaintiff immediately notified jail personnel of his injury. (Id. at 4, 6). Officer Thomas admits the plaintiff " complained" of a foot injury, so he " reported that to the medical unit." (Doc. 12-3, Exhibit 3 at 1). " When the nurse arrived, [Thomas] escorted [the plaintiff] to the medical facility within the jail." (Id.).

The plaintiff declares Thomas escorted him to the medical unit around 4:00 p.m. (Doc. 5 at 6). The plaintiff told Officer Thomas that he " believed [his] ankle was broken and [he] could not walk on it[, ]" but Thomas " stated he was not going to get a wheelchair and [the plaintiff] had to walk to medical." (Id.).[3]

Upon examination at the medical unit, Nurse Dahn informed the plaintiff that his " ankle was probably just sprained and" would not send the plaintiff to the hospital " because he did not want to get in trouble." (Id.). Dahn " ordered 'Tylenol' every 8 hours[, ] . . . [an] ice pack every 4 hours[, ] . . . and told Thomas to push [the plaintiff] back to holding cell 247 in a wheelchair." (Id.).

At 9:30 a.m. the next morning, " 'Diane' came for morning medication . .., stated [the plaintiff's] ankle was defin[i]tely broken and told jail personnel [he] needed to go to the hospital." (Id.). An Inmate Medical Referral Transport Arrangement Form signed by Nurse D. Lutz on that date shows that the plaintiff was ordered to be transported by patrol car to the Druid County Hospital Emergency Room as soon as possible so that an x-ray could be performed on his ankle, and " if broken[, ]" that it be " splint[ed] there." (Doc. 12-1 at 1).

At 11:30 a.m. Officer David Smith told the plaintiff he " needed to go to booking." (Doc. 5 at 6). The plaintiff told Smith " he could not walk on [his] ankle[, ]" but Smith told the plaintiff he " had to because he 'wasn't pushing no damn inmate in a wheelchair.'" (Id.).[4] When he got to booking, Officer Simpson " got [the plaintiff] a pair of crutches and transported [him] to the hospital. (Id.). The plaintiff subsequently had surgery to repair five fractures to that ankle. (Id.).

III. Analysis

A. Official Capacity

To the extent the plaintiff requests monetary damages for the constitutional claims considered against the defendants in their official capacity, the defendants' motion for summary judgment is due to be granted. It is well settled that the Eleventh Amendment to the United States Constitution bars Section 1983 claims in federal court against the state or an agency of the state. Alabama v. Pugh, 438 U.S. 781 (1978); see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). The Supreme Court in Pugh, stated:

[T]here can be no doubt . . . that suit against the State and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v. Department of Treasury, 323 U.S. 459 (1945); Worcester County Trust Co. v. Riley, 302 U.S. 292 (1937). Respondents do not contend that Alabama has consented to this suit, and it appears that no consent could be given under Art. I, sec. 14, of the Alabama Constitution, which provides that " the State of Alabama shall never be made a defendant in any court of law or equity."

438 U.S. at 782 (parallel citations omitted). " Absent a legitimate abrogation of immunity by Congress or a waiver of immunity by the state being sued, the Eleventh Amendment is an absolute bar to suit by an individual against a state or its agencies in federal court." Gamble v. Florida Dept. of Health & Rehabilitative Services, 779 F.2d 1509, 1511 (11th Cir. 1986) (citing Edelman v. Jordan, 415 U.S. at 662-63). The Eleventh Amendment therefore applies to claims for monetary relief as well as claims for declaratory and injunctive relief. Jordan, 415 U.S. at 662-71 (monetary relief); Alabama v. Pugh, 438 U.S. at 782 (injunctive relief). Accordingly, the motion for summary judgment filed by the defendants is due to be granted as a matter of law to the extent they are sued in their official capacities. The remainder of this report and recommendation presumes the defendants are sued in their individual capacities.

B. Deliberate Indifference to Serious Medical Needs

It appears the plaintiff was a pre-trial detainee during the time the alleged incidents occurred. Whether the plaintiff was a pretrial detainee, protected by the Fourteenth Amendment, or a convicted prisoner, protected by the Eighth Amendment, the constitutional inquiries are the same. Andujar v. Rodriquez, 486 F.3d 1199, 1203 n.3 (11th Cir. 2007) (" Because '[w]e have held that the minimum standard for providing medical care to a pre-trial detainee under the Fourteenth Amendment is the same as the minimum standard required by the Eighth Amendment for a convicted prisoner, 'we analyze [the plaintiff's] claim under the decisional law of both amendments.") (quoting Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11th Cir. 1997)).

The courts have long recognized that the government has an obligation to provide medical care for those it has incarcerated and that inmates must necessarily rely on prison authorities to meet their medical needs as those needs arise. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Thus, a prison official's deliberate indifference to the serious medical needs of prisoners violates the Eighth Amendment. Id. at 104. In that regard, it is clear that a guard's intentional denial or delay in providing medical care to a prisoner or his interference with prescribed treatment can be evidence of deliberate indifference. Brown v. Hughes, 894 F.2d 1533 (11th Cir. 1990); Washington v. Dugger, 860 F.2d 1018 (11th Cir. 1988).

1. Officer Anthony Thomas

The plaintiff alleges defendant Thomas was deliberately indifferent to his broken ankle because he would not provide him a wheelchair to navigate to the medical unit on June 12, 2013. Officer Thomas states the plaintiff only told him that he injured his ankle, and he offered a wheelchair because he noticed the plaintiff was walking with a slight limp, but the plaintiff refused it. At the jail medical unit, Nurse Dahn thought the plaintiff had sprained his ankle and did not order transport to the hospital because he did not believe it was indicated. Nurse Dahn directed Officer Thomas to take the plaintiff back to his cell in a wheelchair, and Officer Thomas did so.

Even when the court assumes that Officer Thomas refused to provide the plaintiff a wheelchair to the medical unit, the plaintiff's allegations do not display genuinely disputed issues of material fact establishing that defendant Thomas was deliberately indifferent to a serious medical need.

Deliberate indifference to a detainee's serious medical needs requires 1) an objectively serious medical need and 2) a defendant who acted with deliberate indifference to that need. A " serious medical need" is " one that is diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would recognize the need for medical treatment." For liability, the defendant must 1) have subjective knowledge of a risk of serious harm, 2) disregard that risk, and 3) display conduct beyond gross negligence.

Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir. 2010) (citations omitted).

The five-bone fracture in the plaintiff's ankle was a serious medical need, but this fact was not determined until the plaintiff received an x-ray at Druid County Hospital on June 13, 2013. While the plaintiff alleges he told defendant Thomas on June 12, 2013, that he thought his ankle was broken and could not walk on it, he does not deny that Thomas reported the injury to the medical unit and escorted the plaintiff to that unit when the nurse arrived. The plaintiff also does not dispute that the only outward manifestation of his belief that his ankle was broken at that time was walking with a slight limp on the way to the medical unit. Moreover, the examining nurse on that date believed the plaintiff had only sprained his ankle. When the nurse told defendant Thomas to take the plaintiff back to his cell in a wheelchair, Thomas did so.

Taken as a whole, defendant Thomas's actions do not display that he was deliberately indifferent to the plaintiff's serious medical need. Admittedly, Thomas refused to provide a wheelchair while escorting the plaintiff to the medical unit, but other than being informed by the plaintiff that he thought his ankle was broken and that he could not walk on it, the only physical manifestation of that belief was that the plaintiff had a slight limp. The plaintiff does not allege that he was further injured because he did limp to the medical unit, and it was a medical professional's opinion that the plaintiff's ankle was sprained. Based upon the undisputed facts, the plaintiff has failed to establish that defendant Thomas was subjectively aware of and disregarded a risk of serious harm to the plaintiff when he did not provide him a wheelchair. Thomas did not display conduct toward the plaintiff's predicament that was beyond gross negligence.

2. Officer David Smith

Officer Smith attests he does not remember the incident about which the plaintiff complains and asserts that, for safety reasons, it was his practice to have a trustee push an inmate's wheelchair when conducting an escort. The plaintiff does not allege that he told defendant Smith that his ankle was broken, and there is no evidence that medical personnel ordered the plaintiff to be escorted to booking in a wheelchair. The plaintiff also does not assert that he physically displayed any signs that he could not walk to or was in pain while walking to booking other than a slight limp. On the other hand, since Smith was directed to escort the plaintiff to booking, the plaintiff told Smith he could not walk on his ankle and limped along the way, and Officer Simpson got the plaintiff a pair of crutches for the hospital transport once he arrived at booking, it appears that defendant Smith knew the plaintiff was being sent to booking to be transported to the hospital.

Even when the facts are considered in a light most favorable to the plaintiff, it does not follow that Smith was deliberately indifferent to the plaintiff's serious medical need. The plaintiff does not assert that he told defendant Smith that his ankle was broken -- as opposed to injured -- when Smith came to escort him to booking. Moreover, there is no evidence that medical personnel directed defendant Smith to provide the plaintiff a wheelchair when escorting the plaintiff from his cell to the booking room. The plaintiff does not assert that he was in extreme and obvious pain while navigating toward the booking room. Thus, the court is left with the same description of his condition as that witnessed by defendant Thomas -- a slight limp. Although defendant Simpson did provide the plaintiff crutches when he transported the plaintiff to the hospital, in light of the other allegations made by the plaintiff, this fact, standing alone, does not mean that all reasonable jail officials, as laypersons, would have recognized the plaintiff had a serious medical need that required ambulatory assistance.

Thus, while defendant Smith's rude and unprofessional response to the plaintiff's request is not to be commended, it does not establish a genuine dispute as to whether defendant Smith was subjectively aware of and disregarded a risk of serious harm to the plaintiff beyond gross negligence when he refused the plaintiff's request for a wheelchair. This is true even if it is assumed defendant Smith knew the plaintiff was being transported to the hospital as the plaintiff does not allege defendant Smith caused any injury to his foot, and he makes no allegations concerning any pain he suffered.

For the foregoing reasons, the plaintiff has failed to establish any genuine issues of disputed fact in support of his cruel and unusual punishment claim against defendant Smith.

IV. Recommendation

Accordingly, for the reasons stated above, the magistrate judge RECOMMENDS that the defendants' motion for summary judgment be GRANTED and this action DISMISSED WITH PREJUDICE.

V. Notice of Right to Object

Any party may file specific written objections to this report and recommendation within fourteen (14) days from the date it is filed with the clerk of the court. Any objections to the failure of the magistrate judge to address any contention raised in the petition must also be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which specifically identify those portions of the proposed findings and recommendations to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action. Frivolous, conclusive, or general objections will not be considered by the District Court.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendations to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions. Objections not meeting the specificity requirement set out above will not be considered by a district judge.

A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.

The Clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff and upon counsel for the defendants.


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