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Spencer v. Garden

United States District Court, D. Utah, Central Division

June 28, 2018

STEVE SPENCER, representative of the ESTATE OF BRIAN MAGUIRE, Plaintiff,
DR. RICHARD GARDEN, et al., Defendants.




         This case is about the medical care provided to Brian Maguire, an inmate who was incarcerated at the Utah State Prison. All defendants and all claims have been dismissed except for one: the Fifth Claim for Relief stated in Plaintiffs Amended Complaint.[1] In this claim, Maguire alleges that from 8:30 p.m. through 5:00 a.m. on the night of June 15-16, 2008, the "counting officer"-one of John Does #5, #6, or #7-failed to contact medical to respond to Maguire's requests for help, following a "man down call" in which he was treated for seizure symptoms, and failed to document the requests.[2] Maguire later alleged that Sergeant Jerry Miller was "John Doe #5."[3]

         Before, during, or after the "man down" incident, Maguire suffered a stroke. He alleges that Sgt. Miller's failure to respond to alleged requests for help, failure to take action before the man down, failure to affirmatively follow-up on Maguire's condition, and failure to pass on information about Maguire's condition to corrections officers taking over the next shift violated Maguire's Eighth Amendment right to be free from cruel and unusual punishment, and that such deliberate indifference caused or exacerbated his stroke.

         Sgt. Miller moved for summary judgment, arguing that he was not deliberately indifferent to any serious medical need, or, in the alternative, that the rights asserted by Maguire were not clearly established on the date of the incident.[4]Maguire opposed the motion, and oral argument was held on June 15, 2018. At oral argument, the Court determined that there is a lack of admissible evidence to suggest that Defendant Miller acted with deliberate indifference to Plaintiffs serious medical needs. For the reasons stated at the hearing, and for the reasons stated herein, Defendant Miller's Motion for Summary Judgment will be granted.


         The following facts, viewed in a light most favorable to Maguire, form the basis of the Court's order:[5]

         Sergeant Jerry Miller was, at all relevant times, employed as a sergeant with the Utah Department of Corrections. He was on duty in the Uinta 5 unit of the Utah State Prison in Draper, Utah, at about 7:40 p.m. July 15, 2008 when a "man down" call came out for Plaintiff Brian Maguire, an inmate housed in the unit.[6] At that time, Maguire was displaying symptoms consistent with a seizure: he was convulsing, shaking, couldn't control his hand, and "flopping around like a fish."[7] That led other inmates in the housing unit to call for assistance.[8]

         Sgt. Miller heard the man down call and responded.[9] Two prison med-techs (EMTs) Craig Jensen and Rodger Macfarlane, who were already in the building, responded.[10] By the time they arrived, Maguire was responsive and communicative.[11] The med-techs took Maguire's vital signs, spoke with him, and determined that he likely had a seizure.[12] Consistent with the common practice for treating a seizure, the med-techs told Maguire to place his mattress on the floor to ensure that he would not injure himself if he had another seizure that night and suggested that he see a physician in the morning.[13] They told him that if he had additional problems, to alert Sgt. Miller, and then they would come and talk to him.[14] After the med-techs provided care, they left.[15]

         One of the tasks to be completed following-the incident was the "count" of inmates at 8:30 p.m., about forty-five minutes after the end of the incident.[16] This was a "stand-up" count where officers required the inmates to stand up to be counted and had to match the inmates with a log book containing photographs of their faces.[17] Two officers are responsible for completing the 8:30 count.[18]

         Though Sgt. Miller does not remember being part of the 8:30 count, [19]documents indicate he played a role, and the Court accepts that he participated in the count for the purpose of this motion.[20] When one of the counting officers came to Maguire, the counting officer asked Maguire to get up.[21] Maguire told the counting officer "I can't stand up, I can't even sit up."[22] Though the counting officer threatened to report Maguire for refusing a direct order, no sanction came "because obviously [the counting officer] talked to the other officers that were they, and they told him that it was a disputation where ... they had received instructions from medical to leave me on the floor ...."[23]

         Maguire has never described any interaction with Sgt. Miller during the 8:30 incident.[24] Maguire never alleged that he asked Sgt. Miller-or anyone-for help immediately following the man-down incident or at the 8:30 count.[25]

         It was not until 9 or 9:30 p.m. that Maguire himself believed he needed further medical assistance.[26] Starting at the 10:30 p.m. count (the next count after the 8:30 count), and continuing on through the night, Maguire specifically asked the officer performing each count to get medical, because he was having cramping muscle twitches.[27] Maguire did not yell for help, or call "man down" as had been done before because he did not want to disturb any other sleeping inmates.[28] At some point, perhaps by the 2:00 a.m. or 3:00 a.m. count, the officers simply stopped coming by Maguire' s cell.[29]

         But Sgt. Miller was not there to hear any requests for aid, nor observe Maguire's condition, because Sgt. Miller's shift ended at 10:00 p.m. that night.[30] After the 8:30 p.m. count, Miller had no more interaction with Maguire that day.[31]

         At the pill line the next morning, Maguire complained of left-sided weakness.[32] He was taken to the infirmary, and prison medical staff sent him to the hospital.[33] He was diagnosed as having a stroke.[34] He was returned to prison and was regularly treated for the effects of the stroke.[35] Maguire was later also diagnosed with terminal liver cancer, a condition unrelated to the stroke or seizures.[36] He passed away in 2015 from the cancer.[37]

         Before he passed away, Maguire sued medical staff, the responding med-techs, and Sgt. Miller, alleging they were deliberately indifferent to his serious medical needs, not only in responding to the man down call, but in a variety of ways in treating a variety of Maguire's ailments.[38] In a previous order, a judge of this Court granted summary judgment to most of the medical staff but denied summary judgment to the two med-techs and Sgt. Miller.[39] The Tenth Circuit reversed as to the med-techs, granting them summary judgment, but determined it did not have jurisdiction to reach Sgt. Miller's appeal and dismissed it.[40]

         The only claim remaining is Maguire's deliberate indifference claim lodged against Sgt. Miller. After remand, the parties engaged in limited discovery, and Sgt. Miller then moved for summary judgment. In his motion, Sgt. Miller asserts that, as a matter of law, he was not deliberately indifferent to any serious risk of harm to Maguire. By raising the defense of qualified immunity, he also asserts that any rights claimed to be violated by Maguire were not clearly established at the time of the incident.


         Sgt. Miller's summary-judgment motion is governed by Federal Rule of Civil Procedure 56. Summary judgment shall be granted to the moving party when the record shows "that 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); see also Jones v. Salt Lake County, 503 F.3d 1147, 1152-53 (10th Cir. 2007) (citing former Federal Rule of Civil Procedure 56(c)). Sgt. Miller has the initial burden to establish the absence of material fact to support the non-moving party's claims. Jensen v. Kimble, 1 F.3d 1073, 1076 (10th Cir.1993) (citing Celotex Corp. v. Catrett, 477 U.S.317, 323 (1986)). In so doing, he may cite to particular parts of materials in the record supporting the fact, or may show that the cited materials "do not establish the absence ... of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). If the non-movant fails to meet his burden as to one element of a claim, summary judgment is appropriate on the claim. Celotex Corp., 477 U.S. at 323

         Sgt. Miller has raised the defense of qualified immunity to Maguire's claims. Qualified immunity shields government officials who perform discretionary functions from § 1983 damages suits so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818) (1982)).

         Qualified immunity "is 'an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial' [and was created] to ensure that 'insubstantial claims' against government officials [will] be resolved prior to discovery." Pearson, 555 U.S. at 231 (quoting Mitchell v. Forsyth, 477 U.S. 511, 526 (1985)); Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987) (further citations and quotations omitted)). The doctrine protects "all but the plainly incompetent or those who knowingly violate the law." Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citations and quotations omitted).

         When a state official asserts qualified immunity, she creates a rebuttable presumption that she is immune from the plaintiffs § 1983 claims. See Medina v. Cram, 252 F.3d 1124, 1129 (10th Cir. 2001). Two elements exist in the qualified immunity analysis-first, whether, under the facts alleged by the plaintiff, the government officials violated a constitutional right, and second, whether the right at issue was "clearly established" at the time of the defendant's alleged misconduct...." Pearson, 555 U.S. at 231 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).

         Thus, if "at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates the right," the official is not qualifiedly immune. al-Kidd, 563 U.S. at 741. But if an official "might not have known for certain that the[ir] conduct was unlawful!, ] then the [official] is immune from liability." Ziglar v. Abbasi, ___U.S. ___, 137 S.Ct. 1843, 1867 (2017). The Court may address either prong of the qualified-immunity analysis first. Pearson at 236.


         The only claim remaining in Plaintiffs Amended Complaint-the active complaint in this case-is the Fifth Claim for Relief.[41] In it, Maguire alleges that, from 8:30 p.m. through 5:00 a.m. on the night of June 15-16, the "counting officer"-one of John Does #5, #6, or #7-failed to contact medical to respond to Maguire's requests for help, and failed to document the requests.[42] Maguire later clarified that Sergeant Miller is "John Doe #5."[43]

         As set forth in detail below, the Court concludes that Sgt. Miller is entitled to summary judgment because Maguire fails to identify admissible evidence that suggests Miller acted in a manner that was deliberately indifferent to Maguire's serious medical needs. The undisputed facts demonstrate that Miller adequately responded to Maguire's medical needs until his shift ended at 10:00 p.m. Thus, the court finds Miller is entitled to summary judgment on Maguire's Eighth Amendment claim.

         I. Admissibility of the Maguire Affidavit

         On summary judgment, a court may consider only evidence that could "be presented in a form that would be admissible in evidence" at trial. Fed.R.Civ.P. 56(c)(2). Previously in this case, a fellow judge in this District concluded there may be a jury question on whether Sgt. Miller was deliberately indifferent. The Court noted that Maguire stated in an affidavit that "at every hourly count, at some of which Maguire recognized [an officer later to be identified as Sgt. Miller, ] Maguire asked the counting officer to please call medical."[44] That, combined with Sgt. Miller's knowledge that Maguire had "(at the very least) a seizure" led to the conclusion that a jury could find Sgt. Miller to be deliberately indifferent.[45]

         For this motion, Maguire argues that this affidavit, combined with other evidence, indicates Sgt. Miller could have been deliberately indifferent to Maguire's health because it supports the propositions that (a) Maguire asked for help "at every hourly count" (with the inference that the statement includes the 8:30 count), and (b) that Sgt. Miller was present for counts after the 8:30 count.

         In addition to arguing that the affidavit does not create an issue of fact, Sgt. Miller objects to the inclusion of the affidavit as hearsay not subject to any exception. Fed.R.Evid. 801, 802, 803, 804. Maguire acknowledges that the affidavit is hearsay, but argues that the residual exception to the hearsay rule, found in Federal Rule of Evidence 807, should apply. The parties thus apparently agree that the affidavit is hearsay not subject to any express exception.

         A. The Court Declines to Admit Maguire's Declaration Under the Residual Hearsay Exception

         Maguire requests that the Court apply the residual hearsay exception, now codified at Federal Rule of Evidence 807, to allow the admission, and consideration, of the affidavit. The residual exception "is to be used in extraordinary circumstances ...." United States v. Farley, 992 F.2d 1122, 11226 (10th Cir. 1993) (discussing the exception codified in former Rule 803(24)). The Tenth Circuit has warned lower courts to "use caution when admitting evidence under Rule [807], for an expansive interpretation of the residual exception would threaten to swallow the entirety of the hearsay rule." United States v. Tome, 61 F.3d 1446, 1454 (10th Cir. 1995).

         To be admissible, the proponent of the evidence must overcome a "heavy burden" to demonstrate the materiality of the statement, that it demonstrates "circumstantial guarantees of trustworthiness" that are "equivalent" to the exceptions enumerated in Rules 803 and 804, that "it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts ...", and that its admission will serve the interest of justice. United States v. Trujillo, 136 F.3d 1388, 1396 (10th Cir. 1998); Fed.R.Evid. 807; see also United States v. Zamora, 784 F.2d 1025, 1031 (10th Cir. 1986); New England Mut. Life Ins. Co. v. Anderson, 888 F.2d 646, 650-51 (10th Cir. 1989) (both interpreting former rule 804(b)(5) and noting the burden on the proponent of the evidence to meet the exception). There is no doubt that the affidavit is material. But Maguire fails to shoulder his burden on the remaining three elements to meet the exception.

         First, there are serious questions of the trustworthiness of the statement. Though the statement was purported to be made under oath, that is "insufficient, standing alone, to meet the requirement of circumstantial guarantees of trustworthiness ...." Crawford ex rel. Crawford v. City of Kansas City, Kan., 952 F.Supp. 1467, 1473 (D. Kan. 1997). Here, there are circumstances that undermine the affidavit's reliability. For example, Maguire does not mention Sgt. Miller by name in the affidavit. Utilizing the document to identify Sgt. Miller as the one responsible requires logical leaps and an overly-technical synthesis of numerous facts. This reduces the trustworthiness of the affidavit.

         Also, the affidavit was originally proffered to the Utah Department of Occupational and Professional Licensing to support Maguire's claim of health care misconduct.[46] This was a document created in anticipation of litigation, affecting Maguire's motivation to be completely truthful. E.g., Wilander v. McDermott Int'l, Inc., 887 F.2d 88, 92 (5th Cir. 1989) (recognizing that statements "prepared in anticipation of litigation" was a factor in determining the statement untrustworthy). Beyond the inherent nature of the document, Maguire's focus in the document was clearly on the actions of the health care providers who treated him before, during, and after the man-down call, rather than the custody staff.

         Moreover, reading the affidavit as Maguire requests creates a conflict with other evidence in the record. See United States v. Hall, 165 F.3d 1095, 1110-11 (7th Cir. 1999) (recognizing that whether a statement is "insufficiently corroborated" is a consideration a district court may account for in determining trustworthiness). . The affidavit avers that "Officer #5" performed "at least" one of the counts later in the evening.[47] It also avers that Officer #5 was at the man-down scene. While Sgt. Miller was at the man-down call, evidence in the record suggests he did not perform any count identified in the affidavit. Officer #5 was not referred to in the 8:30 p.m. count (the only post-man-down count that could have involved Sgt. Miller). Instead, Maguire sets forth the 8:30 p.m. count in a separate paragraph, describing an interaction with a different officer (Officer 7). Also, Sgt. Miller could not have performed any of the counts past 10:00 p.m. because there is no evidence in the record to suggest Sgt. Miller worked past that time. Accordingly, the affidavit creates a conflict with other record evidence.

         All of these factors cast doubt on the reliability of a conclusory statement that (a) Maguire asked for help at "every hourly count" (including the 8:30 p.m. count) and (b) Sgt. Miller was involved in "some of the counts (after 8:30 p.m.). Cf. United States v. Fernandez, 892 F.2d 976, 983 (11th Cir. 1989) (recognizing that corroborating evidence must be "extraordinarily strong" to support admission of hearsay evidence under former 804(b)(5)).

         Second, turning to the relevant probity of the evidence, Maguire cannot demonstrate that he could not have elicited this evidence from another source-in particular Maguire's deposition. Counsel for Maguire was at Maguire's deposition, which was taken to perpetuate his testimony, knowing Maguire had an unrelated, terminal illness. Maguire's counsel did not ask about the affidavit, nor attempt to put it into context. The only time Sgt. Miller's name came up in Maguire's deposition (other than a discussion about a discovery issue) was when he was discussing the man-down incident.[48] Maguire knew about Sgt. Miller at the time, and he never clarified that he ...

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