Opinion
A1-99-15
September 7, 2001
MEMORANDUM AND ORDER
I. Introduction
Before the Court is a motion for summary judgment by defendant Bachmeier; defendant O'Neill is not involved (doc. # 40). Plaintiff resists the motion (doc. # 57). For the reasons set forth below, the motion for summary judgment is DENIED.
Also before the Court are a motion by plaintiff to strike defendant's reply brief or, in the alternative, to file a surreply brief (doc. # 66), and a motion by defendant for an extension of time to file her reply brief (doc. # 67). The motion to strike defendant's reply is DENIED; the alternative motion to file a surreply brief is GRANTED (doc. # 66), and the motion for an extension of time is GRANTED (doc. # 77). Therefore, the Court will consider all of the parties' filings relating to the summary judgment motion.
II. Background
Plaintiff William Thomas Meloy spent time at the North Dakota State Penitentiary (NDSP) beginning March 31, 1998. suffers from obstructive sleep apnea (OSA), a condition which causes him to stop breathing when he sleeps. He was apparently diagnosed with OSA by a physician in Kansas in December 1997, and from that time on he used a Continuous Positive Air Pressure (CPAP) machine, which alleviated this condition, when he slept. He continued to use such a machine when he was incarcerated at the Cass County Jail prior to his sentence to NDSP.
The Court notes that this is the second time it has considered this case. In February 1999, this Court dismissed the action according to a recommendation by the magistrate judge who conducted the initial PLRA review. That order was reversed in part by the Eighth Circuit, Meloy v. Schuetzle, 2000 WL 1160446 (8th Cir. August 17, 2000), and this case is now before the Court again.
This case ultimately revolves around Meloy's efforts to obtain a CPAP while at NDSP. Defendant Bachmeier, a trained nurse, is director of medical services at NDSP. According to her papers, her duties include, among others, "ensuring that inmates are provided equity and consistency in their medical services" and arranging for inmates to be seen by medical personnel and treated accordingly. Under NDSP's "team approach" to medical treatment, a nurse interviews inmates, takes notes and vital signs, and communicates the problems to the doctor either orally or by chart. Thus informed, the doctor examines the inmate and decides on treatment or, if necessary, referral to a specialist.
Upon his admission to NDSP on March 31, 1998, Meloy completed various intake health forms and was examined by a nurse. These forms indicated that Meloy suffered from sleep apnea and that he had used a CPAP to treat it. He then executed several releases authorizing NDSP to obtain his medical records from other institutions. These records, received by NDSP on April 6 or 7, detail his past diagnoses and treatments, including the OSA and use of the CPAP. (Ex.'s 1-6 to Def.'s Mot. for Summ. J.)
Nurse's notes from April 1, 1998, indicate that Meloy complained that day of pressure in his chest (Ex. 7.) He was examined by defendant O'Neill the next day. At that exam, O'Neill diagnosed sleep apnea and listed five items under "treatment;" one of them indicated Meloy "may use his own CPAP if available." (Ex. 14.) Nurse's notes then indicate Meloy complained of various problems on April 4 and 11. It is clear that his complaints on April 11 encompassed his OSA; the entry on April 4 is not entirely clear on this point. (Ex. 7.) The chart also indicates that Meloy's past medical records were received on April 7 and were made available for doctor review. On April 14, O'Neill apparently reviewed these records; he entered physician's notes indicating he "reviewed past medical summaries and stands by his orders of 4-2-98." (Ex. 15.)
Meloy was advised of this fact the same day by Bachmeier. She communicated this to him in a response to an inmate request he sent her on April 12, indicating that the OSA, and lack of a CPAP, was continuing to cause him trouble. Her response, dated April 14, indicated that "[i]f you provide your own CPAP machine you may use it in prison." (Ex. 16.) This prompted Meloy to file a grievance against the medical department on April 15; the response to this grievance, on June 26, indicated that the medical department had followed doctor's orders and noted that Meloy had by them received a CPAP, as explained below. (Ex. 23.)
Records indicate Meloy next complained of chest pain on April 18. Apparently, the nurse discussed Meloy's desire for a CPAP with him; the chart indicates that the nurse discussed the issue with "Kathy," presumably defendant Bachmeier, and wrote that "inmate to bring in one." (Ex. 7.) Meloy was admitted to the infirmary that night; the next day he reported no chest pains. He was given an EKG on April 19, and he ultimately remained in the infirmary until May 8. During this time he was closely monitored, and his complaints of chest pain seemed to come and go. (Ex.'s 8-10.) On May 8, Meloy saw a cardiologist, Dr. Kearney. She ultimately recommended that he "be placed on CPAP to on a nightly basis to avoid severe and life threatening complications of sleep apnea and/or that he be able to maintain the head of his bed at approximately 45x." (Ex. 21.) He then received a CPAP machine within a few hours.
Meloy also claims that some nonmedical staff at NDSP noticed his problems. Specifically, he claims that a guard named Mark Beyer noticed his difficulty breathing and indicated his willingness to confirm Meloy's problems; however, he has not submitted an affidavit from Beyer. He has submitted two affidavits, one from a former inmate and one from a former employee, both of which cast general aspersions on Bachmeier's conduct as medical director.
III. Analysis
A. Summary judgment standard
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is "material" if it might affect the outcome of a case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Churchill Bus. Credit, Inc. v. Pacific Mut. Door Co., 49 F.3d 1334, 1336 (8th Cir. 1995).
The basic inquiry for summary judgment purposes is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." However, the nonmovant must do more than merely restate earlier pleadings. See McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510 (8th Cir. 1995). Thus, mere arguments or allegations are insufficient to defeat summary judgment; the nonmoving party must advance specific facts to create a genuine issue of material fact for trial. See, e.g., F.D.I.C. v. Bell, 106 F.3d 258, 263 (8th Cir. 1997). This requirement is not satisfied by "mere speculation, conjecture, or fantasy"; rather, it requires sufficient probative evidence to allow a finding in its favor, assuming the evidence is established at trial. See Wilson v. International Business Machines Corp., 62 F.3d 237, 241 (8th Cir. 1995).
B. Application to plaintiff's claims
Meloy's claim is that Bachmeier's failure to provide him with a CPAP immediately constitutes a violation of the Eighth Amendment's prohibition of cruel and unusual punishments. This requires showing that defendant was "deliberately indifferent" to plaintiff's known and serious medical needs. As the Eighth Circuit has explained:
[A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, sufficiently serious. Second, a prison official must be, as a subjective state of mind, deliberately indifferent to the prisoner's health or safety.
Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995) (internal citations and quotations omitted). Thus, "an inmate must show both that he or she had an objectively serious medical need and that the defendant knew of and disregarded that need." Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). To survive summary judgment, Meloy must therefore show that a question of material fact exists as to whether denying him a CPAP was an objectively serious deprivation and whether Bachmeier was deliberately indifferent to the risk posed to his health or safety. Id.
1. Serious medical need
The Court has little trouble holding that a fact question exists as to whether denial of the CPAP was an objectively serious deprivation. A serious medical need is "one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention." Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995). There can be no question that plaintiff's OSA could be found by a jury to fit into this category. He was diagnosed with it by several doctors, including O'Neill, all of whom prescribed various treatments.
Plaintiff must also show that denial of the CPAP was objectively serious. When an inmate alleges that a delay in medical treatment constituted a constitutional deprivation, "the objective seriousness of the deprivation should also be measured by reference to the effect of delay in treatment." Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997). Further, "failure to place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment precludes a claim of deliberate indifference to medical needs." Id.
The Court concludes that a question of material fact exists on this point. Obviously, the specialist who ultimately saw plaintiff concluded a CPAP was one of two alternative measures necessary to mitigate the "life-threatening" effects of sleep apnea. Further, his consistent and documented complaints about chest pain and the fact that he spent a month in the NDSP infirmary could be found to constitute the verifying medical evidence needed to show the seriousness of denial of the CPAP. Defendant argues that plaintiff has not provided such verifying medical evidence, but for purposes of this motion, the Court finds that the jail medical records from his time without a CPAP are sufficient to show medical seriousness. Thus, the Court concludes plaintiff has met his burden as to the first point.
2. Deliberate indifference
This point is concededly more complicated. Here, plaintiff must show defendant was deliberately indifferent to his medical needs. The Eighth Circuit has explained that this phrase "includes something more than negligence but less than actual intent to harm; it requires proof of a reckless disregard of the known risk." Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998). Thus, showing deliberate indifference requires showing that defendant had actual knowledge of the medical needs at issue. See Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).
Here, the Court concludes that a jury could find defendant had actual knowledge of plaintiff's OSA and need for a CPAP. This information was contained in his intake materials as of March 31, 1998. Further, the NDSP received his medical records as of April 7; these records detailed his past diagnoses and treatments. Further, it is apparent that plaintiff discussed his OSA and made a number of requests for a CPAP of the nursing staff, and the chart indicates one discussed this fact with Bachmeier. Meloy also sent Bachmeier at least one internal message complaining of his problems. In light of the evidence the file reveals plaintiff could offer on this point, the Court holds a question of material fact exists as to whether Bachmeier had actual knowledge of his need for a CPAP.
The final question is whether a question of material facts exists as to whether Bachmeier recklessly disregarded this risk. Her main argument as to this point is that she was entitled to rely on the recommendations of Dr. O'Neill, and that her reliance on those recommendations prevents her from being deliberately indifferent. The Court recognizes that defendant cites a number of cases which arguably support this proposition. See, e.g., Keeper, 130 F.3d at 1314; Camberos, 73 F.3d at 176. However, the Court finds that these cases do not control the case at bar.
First, several cases plaintiff cites involve plaintiffs attempting to impose liability on nonmedical prison staff. See Keeper, 130 F.3d at 1309 (attempting to impose liability on warden); Miltier v. Beorn, 896 F.2d 848, 854-55 (4th Cir. 1990) (rejecting liability for wardens). These cases are therefore distinguishable from the case at bar; unlike those defendants, Bachmeier was the director of medical services at NDSP. Additionally, she was herself medically trained as a nurse, distinguishing this case from Camberos, 73 F.3d at 176, in which the Eighth Circuit noted that a medical director who "lacked medical expertise" could not be liable "for the medical staff's diagnostic decision." This Court is unwilling to provide to defendant, who is a medical professional, the blanket protection seemingly afforded those without medical expertise.
Stewart v. Murphy, 174 F.3d 530 (5th Cir. 1999), cited by defendant, is also distinguishable. There, the court found that the medical director, though medically trained, did not know plaintiff was being treated improperly. In the instant case, the Court has held that a jury could find Bachmeier had actual knowledge that Meloy was denied a CPAP and the effects it was having on him.
The Court also declines to follow the cases, cited by defendant, which seem to hold that medical staff cannot be liable if they follow the orders of a physician. See, e.g., Thornton v. United States Dept. of Justice, 93 F. Supp.2d 1057, 1065 (D.Minn. 2000); Douglas v. Stanwick, 93 F. Supp.2d 320, 326-27 (W.D.N Y 2000). Crucially, defendant Bachmeier was the director of medical services. Therefore, while she may be entitled to make a practice of relying on physicians' orders, the Court is unwilling to exculpate her entirely at this early stage on these grounds. The record reflects that she had information which suggested that O'Neill's orders were not helping Meloy sufficiently and that he continued to be in pain and danger. As a supervisor with direct knowledge of Meloy's case, she cannot escape liability solely by following orders.
This fact — that a jury could find Bachmeier had personal knowledge of Meloy's conditions — distinguishes this case from those which provide generally that medical personnel cannot be held liable for inadequate treatment by other medical personnel. See Smith v. Marcatino, 910 F.2d 500, 502 (8th Cir. 1990) (noting that respondeat superior is not a basis of § 1983 liability).
In summary, then, the Court finds that the record contains enough evidence to allow a jury to find both that Bachmeier had actual knowledge of Meloy's condition and need for a CPAP and that she was deliberately indifferent to his need. Certainly, Bachmeier will be free to argue to the jury that she was reasonable in following O'Neill's advice, but, in light of the particular facts of this case, she cannot obtain summary judgment on these grounds. Therefore, the motion for summary judgment on the merits of the claim is DENIED.
C. Qualified immunity
Bachmeier also argues that she is entitled to qualified immunity on Meloy's claim. The doctrine of qualified immunity generally shield public officials in the exercise of their discretionary functions. See Gregoire v. Class, 236 F.3d 413, 417 (8th Cir. 2000). However, this immunity can be overcome. As the Eighth Circuit has explained, this requires three elements:
To overcome this qualified immunity, the plaintiff must assert a violation of a constitutional or statutory right; that right must have been clearly established at the time of the violation; and, given the facts most favorable to the plaintiff, there must be no genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right.
Id. (citing Liebe v. Norton, 157 F.3d 574, 577 (8th Cir. 1998)).
The first and third elements of this test are easily met here. Initially, it is beyond question that "the Eighth Amendment prohibition on cruel and unusual punishment extends to protect prisoners from deliberate indifference to serious medical needs." Gregoire, 236 F.3d at 417. The Court has already addressed above whether a case for deliberate indifference can stand on the record thus far, and it has concluded that plaintiff's case can stand. Therefore, the remaining point is whether the law allegedly violated by Bachmeier was clearly established.
The Eighth Circuit has explained how courts should approach this inquiry:
This court has . . . taken a broad view of what constitutes clearly established law for the purposes of a qualified immunity inquiry[.] For a right to be deemed clearly established, the contours of the right must be sufficiently clear that a reasonable official would understand that what [s]he is doing violates that right.
Phillips v. Collings, 256 F.3d 843, 850 (8th Cir. 2001) (internal citations and quotations omitted).
Defendant, of course, argues she did not violate clearly established law. Specifically, Bachmeier argues that it was not clearly established that she could not rely on O'Neill's medical judgment; that it was not clearly established that Meloy could have his choice of medical treatments; and that it was not clearly established that treatment could not be delayed if that delay had no detrimental effect on the prisoner. In the Court's view, however, these formulations of the right at issue require the Court to assume as true facts which must be proven.
In Moore v. Duffy, 255 F.3d 543, 544 (8th Cir. 2001), the Eighth Circuit held that it is clearly established that medical treatment may so deviate from the applicable standard of care as to constitute deliberate indifference on the part of a physician. Thus, if a plaintiff establishes a material question of fact as to whether a particular course of care so deviated from the standard of care, a question which will require expert testimony for the finder of fact to answer, qualified immunity is inappropriate. Id. Here, the facts that Meloy continued to have trouble while under O'Neill's care and that the cardiologist immediately prescribed a CPAP, among others, lead the Court to conclude such a fact question exists.
Further, as explained above, the Court has found that, because of her training, supervisory duties, and actual knowledge of Meloy's condition, Bachmeier cannot escape liability merely by claiming she followed orders. Therefore, the Court concludes that the law allegedly violated by Bachmeier, when viewed broadly, was clearly established. Meloy had a right to be free of deliberate indifference by prison medical staff and to receive treatment conforming to the applicable standard of care, and these rights were clearly established when the events at issue occurred. See generally Foulks v. Cole County, Mo., 991 F.2d 454, 456-57 (8th Cir. 1993). Fact questions abound as to whether this right was violated by Bachmeier and O'Neill, making both summary judgment and qualified immunity inappropriate here.
IV. Conclusion
As set forth above, defendant Bachmeier's motion for summary judgment (doc. # 40) is DENIED.
IT IS SO ORDERED.