United States District Court, D. North Dakota, Northwestern Division
For Charles Benjamin: Monte Lane Rogneby, LEAD ATTORNEY, James M. Cailao, VOGEL LAW FIRM, BISMARCK, ND.
For John Doe, Ward County, Defendants: Brian D. Schmidt, LEAD ATTORNEY, SMITH BAKKE PORSBORG SCHWEIGERT & ARMSTRONG, BISMARCK, ND; Scott K. Porsborg, LEAD ATTORNEY, SMITH BAKKE PORSBORG & SCHWEIGERT, BISMARCK, ND.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Charles S. Miller, Jr., United States Magistrate Judge.
Before the court is a renewed motion for summary judgment by Ward County and nominally " John Doe." (Doc. No. 92). For reasons discussed later, the court will treat this action as being against Ward County only, and the renewed motion for summary judgment will be granted. Unless otherwise indicated, the facts relied upon by the court are either undisputed, have not been sufficiently controverted, or favor Benjamin.
A. Procedural background
Benjamin initiated this action by filing a pro se complaint against Ward County and " John Doe," in his individual and official capacity, alleging violations of the Eighth and Fourteenth Amendments with respect to his treatment while a pretrial detainee in the Ward County Jail during which he became infected with the MRSA virus. (Doc. No. 8). Initially, the court denied Benjamin's request for a court-appointed attorney. However, after an initial motion for summary judgment was filed, the court reconsidered and appointed counsel. (Doc. No. 79). The court then held a telephonic conference with the parties and established new deadlines for completion of discovery, pretrial motions, and the filing of any new or renewed dispositive motions. (Doc. Nos. 87 & 89). Also, at the same time, the court denied without prejudice the blizzard of motions that had been filed by Benjamin and indicated in its order that new motions could be filed by counsel after separating the wheat from the chaff. (Doc. No. 88). Later, after discovery with respect to the merits, Ward County and " John Doe" renewed their motion for summary judgment. (Doc. No. 92).
Somewhat complicating this matter now is that, even though Ward County alleged the defense of failure to exhaust administrative remedies in its answer, both parties proceeded to litigate the merits. In fact, Ward County never mentioned the defense in its initial motion for summary judgment and, even now, gives it only perfunctory treatment at the end of its opening brief after addressing at length why there should be a merits dismissal. (Doc. Nos. 51-52 & 92-93).
B. Ward County Jail's policies covering medical services and communicable diseases
1. Medical Services
During the time of Benjamin's incarceration in the Ward County Jail, it had a written policy for providing medical services that was approved by the Ward County Commission. (Doc. No. 54-2). At the beginning of the policy, there is a statement of general provisions that includes:
1. No staff member will deny an inmate's right to medical services or care.
* * * *
4. Medication and treatment will be administered as directed by the Health Care Administrator, or his/her designee.
* * * *
Id. at p. 3). The policy then goes on to differentiate between " emergency medical procedures" ( i.e., those that require immediate care) and " non-emergency medical services." The former are required in " emergency situations," which are defined as:
Any health/life threatening condition, such as severe bleeding, unconsciousness, serious breathing difficulties, head injury, severe pain, suicide attempt, on-set of bizarre behavior, severe burns, medication reaction or anaphylaxis.
Id. at p. 6). For non-emergency situations, medical care is limited to a once-a-week sick call. (Id. at pp. 7-8).
The policy further provides that prisoners can request medical care by completing a medical care request form. When an inmate submits a request for medical care, the policy provides that:
4. The shift supervisor will relay medical requests to the Health Care Administrator or his/her designee when they are of an emergency nature. If they are of a non-emergency nature, the shift supervisor will set the inmate up for the next scheduled sick call day.
Id. at p. 8).
For both emergency and non-emergency care, the policy requires that the shift supervisor must " ensure that the instructions of the physician are followed." (Id. at p. 8). Also, when a physician requires that the inmate be taken to the emergency room or a specialist, the escorting officer must obtain from the doctor a " Sick/Injured Prisoner Report Form." (Id. at p. 8).
2. Communicable diseases
Ward County Jail also had a separate policy governing communicable diseases that similarly had been approved by the County Commission. The policy defined communicable diseases to include: " Any virus . . . that can be easily transmitted from one person to another." (Doc. No. 100-1, p. 1).
Under the policy, inmates suspected to have communicable diseases are to be isolated. In addition the policy requires:
5. The cell area will be thoroughly scrubbed with water and a cleaning agent when the inmate is removed. This cleaning will include washing mattresses, bunks, toilets, walls, and floors of the cell occupied by the inmate.
Id.) (emphasis added). With respect to the cleaning agent, the policy further states:
4. The North Dakota State Health Department recommends that a freshly prepared solution of one part household chlorine bleach and nine parts water be utilized for cleaning contaminated areas.
Id. at p. 2).
C. Benjamin's knee becomes infected and the claimed failure to provide medical attention until he was seen on sick call on March 31, 2010
1. What Benjamin claims
Benjamin was admitted to the Ward County Jail on February 3, 2010, as a pretrial detainee. (Doc. No. 93-1, p. 13). In his most recently filed affidavit, Benjamin claims he first noticed a sore on his left knee on or about March 25, 2010, " which had blistered and then busted." He claims the area was hot and caused him extreme pain, making it difficult for him to walk. He also claims he began experiencing a fever and chills. (Doc. No. 99, p. 2).
Benjamin further claims in his affidavit that he told Jail staff about his condition on several occasions as it worsened in terms of the pain, heat, swelling, and leaking of puss, but that they refused him medical treatment, stating he had to wait
until the scheduled day for sick call, which was Wednesday, March 31. Benjamin claims that, on Sunday March 28, 2010, he submitted both a written request for medical care and a grievance for the Jail's failure to provide medical attention. (Id. at pp. 2-3).
2. What Ward County claims
Benjamin's account is disputed by Ward County both as to the claimed severity of his condition prior to his seeing the doctor at sick call and as to whether he ever submitted a grievance. With respect to Benjamin's condition, Ward County points to his written request for medical care submitted on March 28, which stated merely that he was experiencing sharp pain in his back and legs and had a swollen and red kneecap with no mention of the pain being severe, the wound leaking puss, or that he was experiencing fever and chills. (Doc. No. 54-3). They also point to two medical records from Trinity Hospital that recount what Benjamin later said about the history of his condition. The first is a March 31, 2010, report of the emergency room physician stating that Benjamin had the sore on his knee for about a week and that it had been getting worse, including drainage and chills. (Doc. No. 54-5, p. 1). The second is a report of the doctor who admitted him to the hospital, which states: " He [Benjamin] mentioned that he did have a sore over his right knee for almost a week and for the last 2 days the sore has been getting worse." (Id. at p. 5) (italics added).
The record also reflects a third report that was made by the surgeon who saw him on the same day as the emergency room physician and the admitting doctor. Although this report was not cited by Ward County, it too is arguably consistent with its version of what transpired. In the history portion of the report, the surgeon states: " He [Benjamin] presented with a 1 week history of left anterior knee pain, swelling, and in the past few days he noticed drainage." (Id. at p. 8). Then, in the portion of the report entitled " Physical Examination," the surgeon notes that he was able to move his [Benjamin's] left knee to flexion/extension " with minimal discomfort." (Id. at p. 9).
With respect to Benjamin's claim that he filed a grievance on March 28, 2010, Ward County points to what it contends was contrary testimony by Benjamin in his deposition. The import of that testimony (which is set out in detail later) was that he asked for a grievance form, was told he had to follow the procedure for making a request for medical relief, and was provided a form for that instead.
What Ward County contends actually happened prior to Benjamin being seen by a doctor at sick call was that he submitted a request for medical care on Sunday, March 28, which was reviewed by the shift supervisor to ascertain whether the condition warranted immediate attention. And, since it appeared there was no emergency based on what Benjamin reported, he was added to the sick call list to be seen on the following Wednesday, which was the normal day for sick call. (Doc. No. 53, p. 1). Ward County further contends that Benjamin never advised Jail personnel after he submitted his written request for medical care that his condition changed and, as already discussed, that he did not submit a written grievance.
D. The examination by the doctor during sick call
Benjamin was seen on Wednesday, March 31, 2010, during sick call by Dr. Schmidt. After observing the condition of Benjamin's left knee, Dr. Schmidt determined he should be taken to the emergency room for knee-draining. (Doc. Nos. 54-1, p. 4; 54-3). Benjamin was transported to the emergency room at Trinity Hospital the same day.
E. Benjamin's admission to the hospital for debridement of the infection, the positive test for the MRSA virus, and his week long stay in the hospital
Benjamin was first seen by Dr. Olson in the emergency room. In addition to what was noted in his patient history as recounted earlier, Dr. Olson characterized the infected area as cellulitis with pain, swelling, redness, and drainage. He also noted that Benjamin had symptoms of chills/rigors. He then summarized: " The degree of symptoms is severe." (Doc. No. 54-5, p. 1).
Benjamin was immediately admitted to the inpatient unit of Trinity Hospital where he was seen by Dr. Farah, a Trinity Hospital physician, and scheduled for surgery for debridement of the infected area by Dr. Benaissa, an orthopedic surgeon. (Doc. No. 54-5, pp. 4-8). The surgery was performed the same day. (Doc. No. 54-5, p. 10). A culture taken at that time of the surgery tested positive for MRSA. (Doc. Nos. 54-7; 54-12).
Following the surgery, Benjamin remained in the hospital for approximately a week. The record does not reflect, and the court assumes for purposes of what follows, that Benjamin was not under guard during the time he was in the hospital.
On April 7, 2010, Benjamin was discharged from the hospital and returned to the Ward County Jail. (Doc. No. 54-7).
F. Evidence of violations by the Ward County Jail staff of the doctor's discharge instructions and its own Jail policies
1. Discharge information and instructions
The medical records reflect that Benjamin was discharged with the following instructions and information: (1) " close outpatient infectious disease and surgical follow up" (Doc. No. 54-6, p. 3); (2) daily return for a change of wound dressings to the surgeon's office during the week and the emergency room on weekends (Doc. Nos. 54-4, pp. 2-4; 54-7, p. 1; 54-11, p. 2); and (3) written information about MRSA (Doc. No. 54-4, pp. 9-11). The medical records indicate that the discharging physician " discussed with the warden who is currently guarding the patient about my discharge instructions." (Doc. No. 54-7, p. 2).
In addition to discharge instructions being verbally communicated to whomever from the Jail was there to take custody of Benjamin, the requirement for a daily change of dressing and the reason for it were clearly spelled out on the form that the Jail's policy required be completed, which was its " Ward County Jail Sick/Injured Prisoner Report." (Doc. No. 54-11). Also, near the bottom of the form, the following question was posited in bold and capital letters:
IS THERE ANY REASON THAT THIS INMATE'S CONDITION WOULD BE ENDANGERED BY BEING HELD IN WARD COUNTY JAIL?
And, in the space below where the physician was directed to check " yes" or " no," the discharging physician checked " yes" and handwrote in the following note: " for Bacterial Resistant Infection (MRSA)." (Id. at p. 2).
Further, in addition to the discharge instruction specifically mentioning " infectious disease," the information sheet provided with the discharge instructions stated, among other things, the following with respect to MRSA:
Staph bacteria and MRSA can spread among people having close contact with infected people. MRSA is almost always
spread by direct physical contact, and not through the air. Spread may also occur through indirect contact by touching objects (i.e., towels, sheets, wound dressings, clothes, workout areas, sports equipment) contaminated by the infected skin of a person with MRSA or staph bacteria. It is frequently seen in schools, restaurants, health clubs, cruise ships and anyplace where many people gather together.
Doc. No. 54-4, p. 10).
In short, there is no question that the Jail was advised verbally and in writing on its own form that Benjamin had a virus that was communicable, i.e., a disease within the definition of its communicable disease policy. How much of the discharge instructions and information was shared with Benjamin may be disputed, however. Benjamin claims the information was given only to Jail personnel. (Doc. No. 99, pp. 3-6).
2. Evidence of violation of the doctor's discharge instructions and the Jail's medical services and communicable disease policies
a. Missed daily changes of dressings
It is undisputed that the Jail did not return Benjamin for daily changes of his dressing as directed by the discharging physician. Rather, it let two successive days pass without a change of dressing - April 17 and April 18 (which were a Saturday and Sunday) - purportedly due to the lack of staff to transport Benjamin for a dressing change on those days. (Doc. No. 65-7, p. 3). Arguably, this violated that portion of the Jail's medical service policy requiring that a doctor's instructions be followed.
b. Lack of compliance with the communicable disease policy
It also appears that Jail personnel made no affirmative effort to clean Benjamin's cell and bedding before his return following his first surgery and hospital stay per the requirement of the communicable disease policy that this be done after an inmate, who is determined to have such a disease, is removed from his or her cell. In fact, it appears that Jail personnel simply ignored the communicable disease policy altogether and followed its general policy with respect to cell cleaning, which was that it was up to the prisoner to keep the cell clean using ordinary cleaning supplies furnished by the Jail. (Doc. No. 54-2, pp. 25-30). There is some dispute whether these supplies were sufficient for attacking the MRSA virus.
G. Course of treatment following missed days of dressing changes and evidence that the MRSA ...