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Stella v. Davis County

United States District Court, D. Utah

September 23, 2019




         Plaintiff Cynthia Stella (“Stella”) filed suit on behalf of her deceased daughter Heather Miller (“Miller”), who died while in the custody of the Davis County Jail. Stella and the Estate of Heather Miller (“Plaintiffs”) filed a Motion for Partial Summary Judgment asking the court to grant judgment in their favor on their two federal claims brought under 42 U.S.C. § 1983, which assert violations of Miller's Eighth and/or Fourteenth Amendment rights. Defendants Davis County, Sheriff Todd Richardson, Nurse Mavin Anderson, and Nurse James Ondricek (“Defendants”) oppose the motion, contesting certain statements of material fact and objecting under Fed.R.Civ.P. 56(c)(2) to certain evidence on which Plaintiffs rely. Defendants also filed a Cross-Motion for Partial Summary Judgment seeking dismissal of the federal claims on grounds of qualified immunity and asking that the court decline to exercise supplemental jurisdiction over Plaintiffs' remaining state law claim.

         I. BACKGROUND

         A. Factual History[1]

         On December 20, 2016, twenty-eight-year-old Heather Ashton Miller (“Miller”) was booked into the Davis County Jail. She was assigned to a top bunk in the Kilo housing unit. On December 21, 2016, around 6:00 pm, Miller fell from the top bunk and landed on the concrete floor. Deputy Lloyd, who was the first to respond to the scene, witnessed Miller writhing on the floor. Miller's cellmate, Sherry Ackerman, informed Deputy Lloyd that Miller had slipped on the ladder while trying to get out of the bunk for the headcount and hit her head on the floor. When Ackerman tried to help Miller up, she fell again and hit her left side on a table. Deputy Lloyd called medical. Corporal Johnson also responded to the scene. Miller told Corporal Johnson that her ribs were hurting and that she was unable to breathe. Nurse Anderson arrived shortly after Corporal Johnson. Nurse Anderson and Corporal Johnson helped Miller off the floor and onto her cellmate's bed, where she laid down.

         Although Nurse Anderson had been called to perform an initial assessment of Miller, he did not bring any medical equipment with him. Miller told Nurse Anderson her side hurt and that she felt nauseous and dizzy. Nurse Anderson asked her if she was coming off of drugs. Miller responded “meth.” Nurse Anderson evaluated her head, neck and spine, and palpated her side. Miller did not obviously react to any spot in particular but kept stating that she hurt over and over. Nurse Anderson then inspected her for any obvious injury, such as bleeding or contusions, but there were no visible external injuries. He did not take her vitals. Nurse Anderson concluded Miller's dizziness must be from methamphetamine withdrawal and gave her ibuprofen.[2]

         Nurse Anderson decided that Miller should be moved to a different cell. A patient who has suffered a potentially serious injury or is suffering from withdrawal would normally be transferred to medical. However, medical was crowded, and the only available bunk was in a room with another inmate who was vomiting. Nurse Anderson and Corporal Johnson decided to transfer Miller to the “Lima unit” where she would have her own cell and a bottom bunk.

         Miller got up and put on her shoes unassisted. However, once outside of her cell, Miller repeated that she felt dizzy and was unable to walk on her own. Nurse Anderson and Corporal Johnson then assisted Miller to the stairs. It took her twenty seconds to walk twenty feet. When they reached a flight of stairs, Nurse Anderson went to get a wheelchair while Corporal Johnson had Miller sit at the top of the stairs. Johnson then suggested that Miller “scoot down” rather than walk down the stairs. Miller lowered herself down the stairs, step-by-step, in a seated position. At the bottom of the stairs, Miller was able to stand and walk a few steps to the wheelchair. She was assisted into the wheelchair. She was listless and tired and very quiet. Nurse Anderson wheeled Miller to the Lima unit where she was placed on a bottom bunk. Nurse Anderson scheduled a doctor appointment for the following day. Nurse Anderson told Miller to call medical if her condition worsened, but he did not return to check on her or schedule any medical check-ins that evening.

         Deputy Lloyd and Corporal Johnson went to retrieve Miller's bedding and effects from the Kilo unit. When they returned, Miller was no longer on the bed, but was lying on the floor with her head on her shirt. She did not respond to the officers and they thought she was exhibiting signs of someone detoxing from methamphetamine. Officers performed wellbeing checks at 6:33 pm and 7:32 pm. Miller remained on the floor. She did not respond to officers. However, at approximately 8:20 pm, when Deputy Lloyd went to bring toilet paper to Miller's cell, he saw her lying, mostly naked, on the floor. He noticed blood on her chin. He asked if she were okay. She gave him a wave. He did not enter her cell.

         Deputy Lloyd then called medical. Nurse Layton answered the phone and asked if there were any signs of a new injury. Deputy Lloyd said Miller had taken her clothes off but appeared to be moving and breathing. Nurse Layton told Deputy Lloyd not to worry about her. Nurse Anderson was in the room with Nurse Layton, but was not aware that Nurse Layton and Deputy Lloyd were talking about Miller and did not hear the full conversation.

         Clerk Rogers called into Miller's cell. Miller did not respond. Deputy Lloyd stopped Deputy Lucius. They called Sergeant Wall, a female officer, to come check on Miller. Sergeant Wall arrived. Sergeant Wall said Miller had her leg propped on the toilet. Sergeant Wall saw blood on Miller's forearms and a one-inch gash on her chin. Sergeant Wall asked Miller to get dressed, but Miller would not stand up. She kept rolling around and moaning. The officers observed that she was cold, sweating, and pale in color.

         Sergeant Wall called medical. Medical told her to bring Miller to them. Sergeant Wall told Deputy Lloyd and Deputy Lucius that they were moving Miller to medical. Deputy Lucius went to fetch a wheelchair. Corporal Johnson arrived on scene. Corporal Johnson, Deputy Lucius, Deputy Lloyd, and Sergeant Wall placed Miller in the wheelchair. Miller appeared to start seizing.

         The officers brought Miller to medical. When they arrived, Miller was gray and totally flaccid. Nurse Anderson testified that she appeared dead. He told Sergeant Wall to call an ambulance. Miller slipped from the wheelchair and they placed her on the floor. Nurse Anderson took her blood pressure and her pulse. He attempted to give her oxygen. Miller started thrashing on the floor and kept pulling the oxygen mask off. She was screaming in pain. The ambulance and EMTs arrived at approximately 8:50 pm and left for the hospital at 9:03 pm.

         Miller went into cardiac arrest on her way to the hospital. She was pronounced dead at 10:06 pm. The medical examiner reported that Miller died from blunt force trauma to her side, which resulted in a complete transection of her spleen and 1.3 liters of internal bleeding. Miller's mother, Stella Davis, and Miller's estate filed suit against Davis County, Sheriff Richardson, Nurse Ondricek, and Nurse Anderson on January 3, 2018 seeking to recover for Miller's death under 28 U.S.C. § 1983 and the Utah State Constitution.

         B. Material Facts

         Plaintiffs submitted 74 allegedly undisputed material facts in support of their motion for summary judgment. Defendants contested 43 of those facts and included an additional 59 allegedly undisputed material facts in their opposition. Defendants also objected to the court considering certain exhibits and facts on grounds of hearsay, lack of foundation, lack of relevance, and lack of probative value under Fed.R.Civ.P. 56(c)(2). Plaintiffs then replied to eleven of Defendants' responses and objected to Defendants' additional facts that were based upon a medical report by Defendants' expert, Kennon Tubbs, M.D. (“Dr. Tubbs”). In reply, Defendants ask the court to deem admitted their additional facts to which Plaintiffs did not respond. Under Fed.R.Civ.P. 56(e)(2), when a party does not contest a fact offered by the opposing party, the court may “consider the fact undisputed for purposes of the motion, ” but the court is not required to do so. The court declines to do so here because, having exercised its discretion under Fed.R.Civ.P. 56(c)(3) to “consider other materials in the record, ” the court has identified those facts that are actually in dispute.

         C. Evidentiary Objections

         Under Fed.R.Civ.P. 56(c)(2), “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” But that “does not mean that [summary judgment] evidence must be submitted ‘in a form that would be admissible at trial.'” Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Rather, only “the content or substance of the evidence must be admissible.” Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016) (quoting Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995)). Defendants object to certain exhibits and facts on which Plaintiffs rely on grounds of hearsay, lack of foundation, lack of relevance, and lack of probative value. The court addresses these objections below.

         1. Objections Based on Hearsay and Lack of Foundation

         In their opposition, Defendants object on grounds of hearsay and lack of foundation to five exhibits on which Plaintiffs rely (Exhibit 10, Dr. Starr's Expert Report; Exhibit 11, Nurse Schultz's Expert Report; Exhibit 16, Todd Vinger's Expert Report; Exhibit 20, Clerk Austin Rogers' interview with a representative of the Attorney General's Office; and Exhibit 21, Nurse Daniel Layton's interview with a representative of the Attorney General's Office) and four facts identified in Plaintiffs' Motion for Summary Judgment (¶¶ 23, 33, 44, and 62).[3] But Defendants' objections are so conclusory and lacking in analysis that they entirely fail to allege why “the content or substance of the evidence” (or even the evidence as submitted) would not be admissible at trial. For example, in their response to paragraph 62 of Plaintiffs' statements of fact, Defendants state: “Objection based on hearsay (Rule 802) and the lack of foundation (Rule 901).” See Opp'n Mot. S.J. at 22. And that is the extent of their objection. Defendants' objections to three other statements of fact, see Id. at 11 (objecting to ¶ 23 for lack of foundation) and 15-16 (objecting to ¶¶ 33 and 44 as hearsay and for lack of foundation), and Defendants' objections to the five complete exhibits, see Id. at 5 n.1 (objecting on “basis of hearsay” and “lack of foundation”), are equally conclusory.

         Following oral argument on the cross-motions for summary judgment, the court ordered supplemental briefing on Defendants' previously asserted objections, noting that the objections were conclusory and that it is the objecting party's burden to “make its objection clear; the trial judge need not imagine all the possible grounds for an objection.” Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 960-61 (10th Cir. 1993). Defendants filed a supplemental response on May 15, 2019. Plaintiffs responded on May 17, 2019.[4] On June 3, 2019, Defendants filed a motion for leave to file additional objections. Having reviewed both parties' supplemental briefing, the court largely overrules Defendants' objections and denies its motion for leave to file additional objections.[5]

         a. Exhibit 10, Dr. Starr's Expert Report

         Defendants object to Dr. Starr's Expert Report on grounds of hearsay and lack of foundation and argue that it should be excluded in its entirety. Defendants do not address why the expert report and the statements contained therein constitute hearsay or lack foundation. Instead, they argue that Dr. Starr will not be able to testify at trial because his expert opinions “are contrary to the undisputed evidence.” But there is no rule of evidence requiring that expert testimony be based only upon facts that are undisputed.[6] If that were the case, then Defendants' expert Dr. Tubbs would not be allowed to testify either. Dr. Starr has submitted an affidavit that he would testify at trial to the opinions contained in his expert report. The court therefore overrules Defendants' objections to Dr. Starr's expert report at the summary judgment stage, including his testimony regarding the symptoms of blood loss, because those statements can be presented in a form admissible at trial.[7]

         b. Exhibit 11, Nurse Schultz's Expert Report

         Defendants object to Nurse Deborah Schultz's Expert Report on grounds of hearsay and lack of foundation. Again, they fail to explain why the statements in their current form, as part of an expert report, constitute hearsay or lack foundation. Nevertheless, Defendants argue, assuming that the evidence is inadmissible as offered, that Nurse Schultz may not testify because her opinions go to whether Nurse Anderson violated state law or committed medical malpractice and not to whether Nurse Anderson violated Miller's constitutional rights. In other words, Defendants argue that Nurse Schultz may not testify because her opinion is not relevant.

         While Defendants are correct that a deliberate indifference claim must be based on more than a violation of state law, the court finds that the standard of medical care, whether defined in the Utah Nurse Practice Act or based upon general nursing standards, is relevant to the elements of a deliberate indifference claim. Plaintiffs must establish that Miller had a serious medical need that Nurse Anderson deliberately ignored. The applicable standard of care is relevant to both the objective and subjective elements of that test. Because Nurse Schultz has signed an affidavit stating that she would testify at trial to the opinions and facts contained in her expert report, Defendants' objections are overruled.

         c. Exhibit 16, Todd Vinger's Expert Report

         Defendants object to Todd Vinger's Expert Report on grounds of hearsay and lack of foundation. They do not explain why his report is inadmissible in the form offered, but argue that he would not be able to testify at trial as to whether Davis County Jail should have maintained a written medical policy because “the Utah Department of Professional Licensing required Davis County to do away with its medical treatment protocols . . ., and because the failure to comply with the Jail policy to implement treatment protocols will not support a section 1983 deliberate indifference claim.” But Defendants do not explain how these arguments render Mr. Vinger's testimony inadmissible. To the extent Defendants are arguing that Mr. Vinger's testimony is irrelevant, the court overrules that objection. The court finds that Mr. Vinger's testimony is relevant to a municipal liability deliberate indifference claim because it goes to the obviousness of the risk presented by a lack of written medical policies.

         Defendants also argue that “Mr. Vinger does not offer any opinion to the effect that the failure to have treatment protocols was the proximate cause of any injury to Ms. Miller and that he could not give such an opinion due to his not being a physician or other qualified medical professional.” The court fails to see how Mr. Vinger's lack of an opinion as to causation renders inadmissible his opinion on other matters. The court therefore overrules Defendants' objections to Mr. Vinger's report and the statements of fact relying on his report, including paragraph 62.

         d. Exhibit 20, Clerk Austin Rogers' Interview with the Attorney General

         Defendants object to the recording of the interview of Clerk Austin Rogers, a Davis County Jail Clerk who was on duty the night of the incident, which was conducted by a representative of the Utah Attorney General's office. They object to the recording in the form presented because it was not administered under oath and argue that two opinions expressed by Clerk Rogers, relied upon by Plaintiffs at paragraphs 23 and 33 of their statement of facts, would not be admissible in any form at trial. Defendants' objection to the recording is overruled because Clerk Rogers may be called as a witness at trial. If he appears at trial, the information contained in the interview can be presented in an admissible form.

         Defendants also object to two specific opinions expressed by Clerk Rogers, which form the basis for paragraphs 23 and 33 of Plaintiffs' statement of undisputed facts. Defendants first object to Clerk Rogers' opinion that he thought Miller should have been taken to the hospital immediately after the bunk fall. Defendants object that Rogers is not qualified to give medical opinions and therefore his lay opinion should be excluded. This objection is overruled because the objective prong of the deliberate indifference standard asks whether or not a serious medical need was so obvious that a lay person would have realized the need for medical attention. Clerk Rogers' opinion as a lay person on Miller's state after her fall is therefore relevant.

         Next, Defendants object to Clerk Rogers' opinion that he thought the nurses at the jail were lazy, arguing that his opinion as to the quality of the Davis County Jail nurses generally is irrelevant because it does not specifically address Nurse Anderson. The court sustains this objection. Clerk Rogers' opinions on the general character of the nurses at the Davis County Jail, including any opinion he may have about Nurse Anderson, are simply not relevant to whether Nurse Anderson was deliberately indifferent to Miller's medical needs.[8] Defendants' objection to paragraph 23 on grounds of hearsay, lack of foundation, and relevance are overruled, but Defendants' objection to paragraph 33 for lack of relevance is sustained.

         e. Exhibit 21, Nurse Daniel Layton's Interview with the Attorney General

         Defendants object to the complete recording of the interview of Nurse Daniel Layton, a Davis County Jail Nurse who was on duty the night of the incident, which was conducted by a representative of the Utah Attorney General's office. Defendants' hearsay objections as to the recording are overruled because Nurse Layton may be called as a witness at trial. If so, the information contained in the recording can be presented in an admissible form. Defendants also object to Nurse Layton describing the contents of a telephone conversation that he had with Deputy Lloyd concerning Miller. These objections are also overruled. Nurse Layton can testify as to his end of the conversation and Deputy Lloyd can likewise testify as to what he said to Nurse Layton. And it appears that the statements may not necessarily be offered for the truth of the matter asserted.

         2. Objections Based on Lack of Relevance and Probative Value

         Defendants also object to paragraphs 16, and 68-71 for lack of relevance and lack of probative value.

         a. Statement of Fact ¶ 16

         Defendants object on relevance grounds to the statement that Nurse Anderson violated his usual practice by not taking Miller's vitals because taking her vitals may not have helped diagnose her injury. The court overrules this objection. While the question of whether Miller would have survived had her vitals been taken is hotly disputed, the question of whether Nurse Anderson should have taken her vitals is clearly relevant to Plaintiffs' deliberate indifference claim.

         b. Statements of Fact ¶¶ 68-71

         Defendants object to paragraphs 68 through 71 on the grounds that they are irrelevant and lack probative value. Paragraphs 68 to 71 relate to the review and training policies that Nurse Ondricek either did or did not have in place at the time of Miller's death. Because one of Plaintiffs' claims is deliberate indifference by Nurse Ondricek as a supervisor, which is predicated on Nurse Ondricek's failure to train and supervise Nurse Anderson, the court finds that these facts are both relevant and probative. Defendants' objections are therefore overruled.

         II. ANALYSIS

         Plaintiffs move for summary judgment on their first and second causes of action brought pursuant to 42 U.S.C. § 1983. Summary judgment is proper “if the movant 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). “A fact is material if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013) (quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)).

         Defendants filed a cross-motion for summary judgment asserting the defense of qualified immunity on behalf of Sheriff Richardson, Nurse Anderson, and Nurse Ondricek in their individual capacities and moving to dismiss all claims against Davis County and against Sheriff Richardson in his official capacity. Because “[q]ualified immunity is designed to shield public officials from liability, ” the issue must be resolved at “the earliest possible stage in litigation.” Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Therefore, the court addresses the issue of qualified immunity first.

         A. Qualified Immunity of the Individual Defendants

         Because the individual defendants have raised the defense of qualified immunity, the court proceeds differently than it does when considering a typical motion for summary judgment. See Nelson v. McMullen, 207 F.3d 1202, 1205-06 (10th Cir. 2000). “When a defendant asserts qualified immunity at summary judgment, the burden shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2) the constitutional right was clearly established.” Keith v. Koerner, 843 F.3d 833, 837 (10th Cir. 2016) (quoting Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009)). “If, and only if, the plaintiff meets this two-part test does a defendant then bear the traditional burden of the movant for summary judgment-showing that there are no genuine issues of material fact and that he or she is entitled to judgment as a matter of law.” Id. (quoting Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008)).

         “In determining whether the plaintiff has met [his or her] burden of establishing” the violation of a clearly established constitutional right, the court “will construe the facts in the light most favorable to the plaintiff as the nonmoving party.” Thomson, 584 F.3d at 1312; see also Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (“The plaintiff must demonstrate on the facts alleged both that the defendant violated his constitutional or statutory rights, and that the right was clearly established at the time of the alleged unlawful activity.”). “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'” Mullenix v. Luna, 136 S.Ct. 305, 308 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).[9] The clearly established prong will be met if there is “a Supreme Court or Tenth Circuit decision ...

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