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Livingston v. Warren County

United States District Court, E.D. Missouri, Eastern Division

June 12, 2017

BERRY LEE LIVINGSTON, Plaintiff,
v.
WARREN COUNTY, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG, UNITED STATES DISTRICT JUDGE

         Plaintiff Berry Lee Livingston brings this action under 42 U.S.C. § 1983, alleging deliberate indifference to his serious medical condition of an umbilical hernia while he was a pre-trial detainee at the Warren County, Missouri, Detention Center (“Detention Center”). The matter is now before the Court on two separate motions for summary judgment: (1) the motion of Defendants Dr. Richard Buckles, the doctor who provides medical care to inmates at the Detention Center; and Advanced Correctional Healthcare, Inc., (“ACHI”), the private entity that employs Dr. Buckles; and (2) the motion of Defendants Kevin Harrison, Sheriff of Warren County; Lesa Hobusch, the nurse at the Detention Center; and Doug Stonebarger, the administrator of the Detention Center. For the reasons set forth below, both motions will be granted.

         BACKGROUND

         Plaintiff entered the Detention Center on April 24, 2015, as a pre-trial detainee. Plaintiff indicated on a medical questionnaire upon his entry that he had an umbilical hernia (since at least 1996). It is disputed as to whether Plaintiff had a hernia belt. On May 13, 2015, Dr. Buckles conducted his initial evaluation of Plaintiff, at which time Dr. Buckles noted that Plaintiff had a reducible “golf ball size” abdominal hernia. Dr. Buckles observed that there was no bowel strangulation and that Plaintiff's abdomen was not tender. Dr. Buckles told Plaintiff not to strain, prescribed a daily stool-softener, and ordered a surgical evaluation. In a sworn declaration dated November 24, 2015, Dr. Buckles stated that he ordered the surgical evaluation to “appease” Plaintiff; that he did not believe that Plaintiff required surgery, as the risks of surgery outweighed the benefits; and that unless there is a strangulation, surgery to repair a hernia is “an elective procedure that is non-emergent.” ECF No. 117-1. Dr. Buckles testified by deposition on August 12, 2016, that he expected that a consultation and surgery would be scheduled based on his order to do so. He also testified that a hernia belt does not do much good for an umbilical hernia. ECF No. 117-6.

         Nurse Hobusch's notes (ECF No. 121-5) show that within three days of Plaintiff's initial visit with Dr. Buckles, she contacted a private surgical group to arrange for the evaluation and was told that it would not see Plaintiff without a $300 payment up front. On July 15, 2015, Hobusch contacted an area hospital that agreed to see Plaintiff for a consultation for $50, also to be paid in advance, but Plaintiff “refused to pay.” Notes dated July 16, 2015, state that a consultation was set for August 25, 2015. Plaintiff was told to make sure to have $50 in his commissary account on that date to cover the fee. On August 3, 2015, the surgical consultation was cancelled due to Plaintiff's lack of funds. On August 24, 2015, Hobusch rescheduled Plaintiff's surgical consultation for September 9, 2015, and advised Plaintiff that the hospital would not reschedule his surgical consultation in the event he did not have the $50.00 to pay.

         Hobusch's medical notes during this period (EFC No. 121-5 at 17-26) state that Plaintiff was not taking the stool softener (he reported that it caused him diarrhea) or wearing a hernia belt. The notes also state that Hobusch observed Plaintiff on several occasions using stairs without a problem, doing a sit up from a picnic table, being social, and voicing no complaints. Her notes dated July 16, 2015, reflect that on that date Plaintiff told her that he thought his hernia was strangulated because he had not had a bowel movement for five days.

         Plaintiff initiated this action pro se on August 25, 2015, claiming that Detention Center officials were deliberately indifferent to his serious medical needs by their failure to provide surgical treatment for his umbilical hernia because he did not have the funds in his inmate account to pay for a surgical consultation. Plaintiff alleged that the hernia was the size of a baseball and was causing continual pain and other problems. He stated that he wanted to have his hernia fixed, and asked for actual and punitive damages. Claims against the current four individual Defendants, named in their official and individual capacities, survived the Court's review under 28 U.S.C. § 19125(e).

         On September 8, 2015, Plaintiff did not have the $50.00 in his commissary account to pay for the surgical consultation, and his appointment was cancelled and not rescheduled. In October 2015, Hobusch contacted Dr. William Truong, who agreed to provide Plaintiff with a surgical evaluation without a consultation fee. Dr. Truong ordered a CT scan for Plaintiff that was conducted on February 26, 2015, and revealed a small umbilical hernia. By deposition dated May 24, 2016, Dr. Truong testified that he saw Plaintiff on February 26, 2016 and diagnosed a fat-containing umbilical hernia, that is, a hernia without any bowel content. Dr. Truong testified that people can live with such a hernia for months or years. He testified that he offered Plaintiff surgical treatment “because of his pain and to reduce the risk of [the hernia] becoming worse such as a stangulated bowel, ” but had “no qualms” about Plaintiff not having such treatment. Dr. Truong further testified that on March 2, 2016, he advised Stonebarger that if warning signs of hernia strangulation were to present, such as progressive pain or cessation of bowel function, Plaintiff would need to be seen immediately “for urgent vs. emergent repair of his hernia”; however, Plaintiff currently had a hernia that could be “electively repaired in the future.” ECF No. 121- 7 at 4-7.

         In his second amended complaint (ECF No. 67), filed on May 27, 2016, with the assistance of appointed counsel, Plaintiff added ACHI as a Defendant. He alleges that his hernia is the size of a baseball, causes him continuous pain, and hinders him from exercising, causing muscle atrophy. He claims that Defendants have demonstrated deliberate indifference to his serious medical needs by denying his repeated requests for necessary surgery to repair his hernia. Plaintiff seeks damages for the violation of his constitutional rights and for his pain and suffering, including emotional distress. He also seeks injunctive relief in the form of a court order directing Defendants to schedule Plaintiff for surgery to repair his umbilical hernia, regardless of his ability to prepay for such treatment.

         Plaintiff's expert witness, Dr. Gustavo van der Lancken, testified by deposition dated November 11, 2016, that he reviewed Plaintiff's medical record, and concluded that in the case of a patient with Plaintiff's “type of symptoms, ” although hernia repair surgery was not “urgent, ” in the sense that it had to be done within 24-48 hours, he would recommend fixing the hernia surgically within weeks. ECF No. 121-8.

         In his memorandum in opposition to the Warren County Defendants' motion for summary judgment, Plaintiff states that on or about April 14, 2017, he was transferred to the Fulton Reception and Diagnostic Center (a facility that is part of the Missouri Department of Corrections). ECF No. 137 at 1 n.1. The Court takes judicial notice of the fact that on that date, Plaintiff began service of a 15 year sentence on drug charges. https://www.courts.mo.gov/casenet/cases/charges.do [case no. 13BB-CR00988-02]

         ARGUMENTS OF THE PARTIES

         ACHI and Dr. Buckles

         Defendants ACHI and Dr. Buckles first argue that they are entitled to summary judgment because Plaintiff did not exhaust his administrative remedies. ACHI and Dr. Buckles, sued in his official and individual capacity, point to the facts that none of the grievances Plaintiff filed while at the Detention Center mentioned them, and that Plaintiff failed to appeal decisions of the shift supervisor and the jail administrator (Stonebarger). ACHI next argues that it should be granted summary judgment because there is no respondeat superior liability under § 1983, and Plaintiff cannot establish, as a matter of law, that ACHI had a policy that violated his constitutional rights. According to these ...


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