United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING
IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
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.
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
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.
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.
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
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.
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
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.
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
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.
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
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.
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 Based on Hearsay and Lack of Foundation
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). 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.
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. 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.
Exhibit 10, Dr. Starr's Expert Report
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. 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.
Exhibit 11, Nurse Schultz's Expert
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.
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.
Exhibit 16, Todd Vinger's Expert Report
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
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.
Exhibit 20, Clerk Austin Rogers' Interview with the
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
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.
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. 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.
Exhibit 21, Nurse Daniel Layton's Interview with the
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.
Objections Based on Lack of Relevance and Probative
also object to paragraphs 16, and 68-71 for lack of relevance
and lack of probative value.
Statement of Fact ¶ 16
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
Statements of Fact ¶¶ 68-71
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.
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)).
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.
Qualified Immunity of the Individual Defendants
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.
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)). The clearly
established prong will be met if there is “a Supreme
Court or Tenth Circuit decision ...