Opinion
No. 3:99-CV-1386-H.
September 6, 2000.
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' Supplemental Memorandum Brief in Support of Defendants' Motion for Summary Judgment, filed August 4, 2000; and Plaintiff's Supplemental Brief in Support of the Response to Defendant's Motion for Summary Judgment, filed August 25, 2000. Upon review of the briefs of the parties, as well as the evidence submitted in the supplemental and original appendices, the Court finds that Plaintiff has failed to demonstrate a genuine issue of material fact regarding a policy which resulted in the deliberate indifference of jail officials to Plaintiffs medical condition.
I. BACKGROUND
A. Procedural
On May 11, 2000, the Court entered a Memorandum Opinion and Order dismissing Plaintiffs claims for injunctive relief and his claims against Sheriff Jim Bowles for deliberate indifference. In that Order, the Court found that Plaintiff had demonstrated a genuine issue of material fact about whether unnamed Dallas County employees were subjectively aware and deliberately indifferent to Plaintiffs medical condition. However, the Court found that Plaintiff had failed to show that a policy or custom of the jail, adopted with objective indifference, caused the officials to violate Plaintiffs rights. The Court allowed Plaintiff to conduct further discovery and file a supplemental brief addressing policy or custom. Such is the issue before the Court today.
B. Factual
The evidence before the Court shows that Plaintiff did not receive the correct dosage of the medication Phenobarbital while at Dallas County Jail. Buffin was normally prescribed 100 milligrams of Dilantin (a non-narcotic) twice a day; additionally, he took one 30 milligram dose of Phenobarbital in the morning, and two 30 milligrams doses in the evening.
At approximately 3:20 pm on June 19, 1997, Buffin arrived at Central Intake at Dallas County Jail. He had received his medication that morning at Rockwall County Jail. The medical records reflect that Buffin received these dosages of Phenobarbital after his ingress to Dallas County Jail on the afternoon of June 19, 1997:
June 20 two doses at 8:00 pm
June 21 one dose at 8:00 am one dose at 8:00 pm
June 22 one dose at 8:00 am two doses at 8:00 pm
June 23 one dose at 8:00 am one dose at 8:00 pm
Prior to receiving his medication on June 24, Plaintiff was found lying on the floor of his cell and was taken by ambulance to Parkland Hospital. One assumes, as Plaintiff contends, that Plaintiff suffered a seizure, although there is no direct evidence of this.
II. STANDARD
A. Summary Judgment
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could possibly find for the nonmoving party as to any material fact. See FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. See Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. See FED.R.CIV.P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. See Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
B. Unconstitutional policy or procedure
Plaintiff alleges that the jail employees' failure to provide Plaintiff medical care is a result of certain jail policies regarding admission of infirm inmates and administration of medicine to Inmates.
In order to hold Dallas County liable for a constitutional violation, Plaintiff must first demonstrate a constitutional violation based on deliberate indifference by a county employee. See Hare v. City of Corinth, 74 F.3d 633, 639 n. 14 (5th Cir. 1996). Mere negligence or medical malpractice, however, are insufficient to establish deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
Plaintiff must also demonstrate that the employee's act resulted from a policy or custom adopted or maintained with objective deliberate indifference to Plaintiffs constitutional rights. See Hare v. City of Corinth, 74 F.3d 633, 639 n. 14 (5th Cir. 1996). The Fifth Circuit has defined policy or custom as:
"1. a policy statement, ordinance, regulation or decision that is officially adopted and promulgated by the [county's] lawmaking officers or by an official to whom the lawmakers have delegated policymaking authority; or
2. a persistent, wide-spread practice of [county] officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents [county] policy. Actual or constructive knowledge of such customs must be attributable to the governing body of the [county] or to an official to whom that body has delegated policy making authority." Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984).
Actions of officers or employees of a county do not render the county liable under § 1983 unless they execute official policy as above defined. See id. A plaintiff must (1) identify the policy or custom, (2) connect the policy or custom to the governmental entity itself and (3) show that his injury was incurred because of the application of that specific policy or custom. See Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir. 1984), cert. denied, 472 U.S. 1016 (1985). Isolated violations are not the persistent, often repeated, constant violations that constitute custom and policy. See id. at 768, n. 3.
III. ANALYSIS
Plaintiffs Response identifies numerous actions by Dallas County officials, allegedly pursuant to county policies and procedures (or lack of policies and procedures), that he contends caused his injury. The Court will address each policy individually, examining whether there is proof of the policy and its causation of Plaintiffs injury.
A. Ordering of medications
The first policy Plaintiff identifies is an informal practice by two nurses of ordering medications from the pharmacy only once a week, even when the quantity of available medications dwindles. Plaintiff argues that this practice could hypothetically cause an inmate to go up to five days without medication. Assuming arguendo that two nurses' actions satisfy the "persistent, widespread practice" requirement, this policy could not have caused Plaintiff's injury. Plaintiff does not dispute that his medication was ordered on June 20, 1997, the day after he was admitted, and that he did not go more than 24 hours without medication. No delay in ordering medications occurred here, where it is undisputed that Plaintiffs medication was ordered within a day of intake. Although it is troublesome that a detainee could go five days without medication, such a hypothetical is irrelevant to the facts before the Court.
The evidence does not show, however, whether the ordered medication arrived before Plaintiffs injury on June 24, 1997, four days after it was requested. Dr. Bowers and Nurse Baggot stated that it usually takes two to three days to fill a prescription. (Pltf's Ex. 2 at 70; Pltf's Ex. 3 at 19). A delay of more than three days could have potentially resulted in the denial of medication to Buffin on the evening of June 23 and the morning of June 24. However, Plaintiff does not allege (and there is no evidence of) a policy of delay in Parkland Hospital pharmacy or the jail pharmacy in filling perscriptions ordered by the jail employees.
Finally, Plaintiff points to the fact that Nurse Olive would not use drugs from the other nursing stations if her station was out of a needed medication, but would rather wait until a doctor filled the prescription. (Pltf's Ex. 5 at 15). The inference Plaintiff draws is that Nurse Olive neglected to borrow Phenobarbital from another nursing station when Buffin's drugs depleted. While this may be an instance of deliberate indifference, a plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident of unconstitutional action by a non-policymaking employee. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality opinion); cf. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). The evidence shows that it was permissible practice to get drugs from another nurse's station, and the fact that one nurse might not have followed this custom does not establish an unconstitutional policy.
B. "Keep on person" medications
The second allegedly unconstitutional policy relates to "keep on person" or "KOP" medications. The official, written, KOP policy requires that a medication sheet be kept in the inmate's file, which records detailed information about the drugs kept by the prisoner. (Pltf's Ex. 6). Plaintiff points to the fact that there was no "KOP sheet" in his medical chart, and that "this was in violation of policy." (Pltf's Supplemental Brief at 11). It is clear from this statement that Plaintiff is not alleging that the KOP policy is unconstitutional, but rather that a constitutional policy was not followed. Failure to keep a KOP sheet would be the fault of the individual responsible for its recording, but would not place liability on the County for an unconstitutional policy.
Plaintiff additionally argues that the lack of policy for determining whether Dilantin is a KOP drug may have caused the denial of this medication. There is no evidence that the lack of a KOP identification policy caused Plaintiffs injury or the jail officials' indifference. Dr. Bowers testified that Dilantin was identified on Plaintiffs "med card," which means that "the medication had been identified and was noted that he was going to be taking that." (Pltf's Ex. 2 at 44). Bowers also stated that Dilantin was not a narcotic, and thus would be KOP. (Pltf's Ex. 2 at 42-44). There is no evidence that the lack of a policy specifically identifying Dilantin as a KOP drug resulted in the denial of Dilantin to Plaintiff. As KOP drugs are administered by the inmate himself, there is no evidence that Plaintiff did or did not receive the Dilantin.
C. Delay in reviewing medical charts of detainees after intake
The third policy identified by Plaintiff is that medications are not given to an inmate until after a doctor reviews his medical chart, even when the inmate provides his own medications. The policy itself is facially valid; the issue is whether this written policy creates a "widespread, persistent practice" of delay in inmates' receipt of medicine after intake. Plaintiff has presented no evidence that this policy persistently causes a delay in inmates receiving their drugs. Dr. Bowers described the procedures by which an inmate recently admitted can receive medication at Central Intake: (1) through calling the doctor on call or (2) through a standing order. (Pltf's Ex. 2 at 29). Providing drugs at Central Intake allows an inmate to receive medication without direct review of his chart by a doctor and presumably without delay. (Pltf's Ex. 2 at 29).
Further, as Dr. Bowers stated, after being interviewed by a nurse at Central Intake, "any controlled substances are put in an envelope and sent with the medical record to the nurse's station at the location where he's going to be housed either temporarily or permanently." (Pltf's Ex. 2 at 26). This policy would require that Plaintiffs Phenobarbital be sent to the nurse station in the area where he was initially housed on the evening of June 19th. It appears that this did not happen, but Plaintiff has not identified the person responsible for the failure to transfer his medications from Central Intake. As Plaintiff agrees, there was "no reason" why Plaintiff did not receive his medication on the evening of June 19th. The fact that Plaintiff did not receive his medication that night cannot be a result of a deficient policy, but is a result of a medical official failing to follow the policy by sending the medications to the appropriate nurse's station.
D. Transfer of medications within the jail
Fourth, Plaintiff argues that the practice that narcotic medicines are transferred with an inmates' medical records to the nurse's station, and not with inmate himself, is unconstitutional and caused Plaintiffs injury. Once again, upon review of the evidence, it is clear that it was not the policy that caused the denial of medicine, but the failure to follow the policy. Plaintiff observes that on June 20, 1997, his chart was sent to the North Tower, but that his Phenobarbital was not with the chart. (Pltf's Ex. 2 at 52; Pltf's Ex. 1). Under jail policy, the narcotic medications like Phenobarbital should have been transferred with the chart. (Pltf's Ex. 2 at 26). This is an example of jail officials' failure to follow a sound policy.
Plaintiff further argues that because Plaintiff was twice transferred on June 22 within the jail (while his Phenobarbital was transferred with his medical chart), his medication was delayed. The medical chart shows that Plaintiff received his proper dosage of Phenobarbital on June 22 (one in the morning, two in the evening), but does not state at what time he received the evening dose. (Pltf's Ex. 1). Dr. Bowers stated that the evening dose was "delayed" but declined to speculate on what effect this could have on Plaintiff's propensity to have a seizure. (Pltf's Ex. 2 at 58). There is no evidence that this delay was significant, or that the delay caused Plaintiff's injury. Therefore, Plaintiff has failed to establish that the jail policy of transferring narcotic medications with an inmate's medical chart resulted in the jail officials' deliberate indifference in denying Plaintiff his medication.
E. Objective deliberate indifference
Finally, the Court notes that any policy must have been adopted with objective deliberate indifference to the inmate's constitutional rights. See Hare v. City of Corinth, 74 F.3d 633, 649 (5th Cir. 1996). Under the "objective deliberate indifference" standard, Plaintiff must provide evidence that the county knew or should of known of the risk that inmates at Dallas County Jail would not receive their medication under the existing policies. See Scott v. Moore, 114 F.3d 51, 55 (5th Cir. 1997). There is no evidence that policymakers at Dallas County or at the jail were aware or should of been aware that its policies were insufficient to guarantee that inmates would receive their proper medications. Nor is there proof that Buffin filed a written complaint with the jail policymakers that he was not receiving his medication, which would have given "actual or constructive knowledge" of the problem to Dallas County. The evidence proffered shows that the medical staff could be much more conscientious in following the existing policies, but it does not show that the policies themselves were adopted with objective deliberate indifference to Buffin's rights.
When taken as a whole, it appears that Plaintiffs overall argument is that Dallas County should be liable for its employees' allegedly widespread failure to follow the written policies on inmate medication. Plaintiff has been unable to meet his burden of establishing sufficient instances of denial of medication "so common and well settled as to constitute a custom that fairly represents County policy." See Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984). There is no evidence that there is a pre-existing pattern of ignorance of written policy on medication of inmates that would draw the attention of County policymakers.
In sum, although the Court considers it inexcusable that Plaintiff did not receive the proper dosage of his medication while incarcerated in Dallas County Jail, Plaintiff does not connect the failure to properly administer medicine to Plaintiff with a policy or custom of the Dallas County Jail. The County cannot be held liable merely because it employs a tortfeasor, see Esteves v. Brock, 106 F.3d 674, 677 (1997), or because an employee failed to follow a duly promulgated policy. See Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (no liability when problem was in "the execution, not the adoption, of offic[ial] policy") Plaintiff has failed to demonstrate a genuine issue of material fact regarding the existence of a policy or custom on medication of inmates that caused Plaintiffs injury.
IV. DEFENDANTS' MOTION TO DISMISS UNDER FED. R. CIV. P. 4(M), FILED AUGUST 4, 2000.
Plaintiff represents that it does not plan to pursue its claims against the Unknown Employees of Dallas County. See Plaintiffs Response, filed August 25, 2000. Therefore Defendants' Motion to Dismiss is DENIED as MOOT.
V. CONCLUSION
For the reasons stated above, Defendants' Motion for Summary Judgment is GRANTED. All claims against Defendants are DISMISSED WITH PREJUDICE. Judgment will be entered accordingly.
SO ORDERED.