Wesley v. Kinley et al

OCR transcription for search; preserved printed pages are authoritative

Case 1:22-cv-01026-SOH Document110 - Filed 05/31/23 Page 1 of 16 PagelD #:
<pagelD>

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION

KAVIEN LEMAR WESLEY PLAINTIFF

v. Civil No. 1:22-cv-01026-SOH-BAB

JAIL SUPERVISOR TIFFANCY KINLEY,
Ouachita County Detention Center (OCDC);
NURSE STEPHANIE HOLMES, Jail Nurse OCDC;
KEANE LIPPS A/K/A K. LIPPS; DR. JOSEPH
DELUCA, Jail Doctor, OCDC; and JAIL ADMINISTRATOR
CAMERON OWENS, OCDC DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Kaiven Lemar Wesley (“Wesley”), filed the above-captioned civil rights action
pursuant to 42 U.S.C. § 1983. Wesley is currently incarcerated in the Miller County Detention
Center. The events at issue in this lawsuit occurred while Wesley was incarcerated in the
Ouachita County Detention Center (““OCDC”). Wesley maintains he was denied adequate
medical care at the OCDC. Wesley has sued the Defendants in both their individual and official
capacities.
Pending before the Court is Wesley’s Motion For Summary Judgment (ECF No. 92).
Defendants have responded (ECF Nos. 60-62 & 97-98).! The Honorable Susan O. Hickey, Chief

United States District Judge, referred the case to the undersigned in accordance with 28 U.S.C. §

' Defendants have incorporated by reference their response to Wesley’s prior Motion for Summary
Judgment. (ECF No. 46). This Motion was filed before Plaintiff sought and was granted leave
to file an Amended Complaint. (ECF No. 74). The Motion was denied as premature and
Plaintiff advised he could refile after he filed his Amended Complaint. (ECF No. 74).

1

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

2
636(b)(1) and (3) for the purpose of making a Report and Recommendation on the pending
Summary Judgment Motion.
I. 	BACKGROUND
Wesley filed this case on May 4, 2022. 	(ECF No. 1). 	He was granted in forma pauperis
status that same day. 	(ECF No. 3). 	On August 12, 2022, default was entered against Defendant
Keane Lipps a/k/a K. Lipps. 	(ECF No. 26). 	On January 30, 2023, Wesley filed an Amended
Complaint. 	(ECF No. 84). 	The Amended Complaint sets forth six separate claims. 	Id.
Claim One alleges that between February 19, 2022, and February 21, 2022, Wesley
suffered from serious pain in his stomach and diarrhea. 	(ECF No. 84 at 4). 	He suffered from
serious cramping and whenever he had a bowel movement there “was nothing but blood.” 	Id.
Wesley asserts that Jail Administrator Owens, Jail Supervisor Kinley, Jailer Lipps, and Nurse
Holmes were aware of his serious condition and still did nothing. 	Id. at 5. 	Wesley alleges he
suffered both physically and mentally prior to being taken to the hospital where he was diagnosed
with anemia, a gastrointestinal bleed, and unspecified gastrointestinal hemorrhage. 	Id. 	Wesley
states he spent five days in the hospital and had to be given three units of blood. 	Id. 	As to his
official policy claim, Wesley alleges the OCDC policy provides that “necessary medical treatment
will be made available to all inmates.” 	Id. 	Additionally, he states medical issues are not subject
to the grievance procedure. 	Id.
To support his Motion for Summary Judgment on this claim, Wesley submits the following
documents:
• 	A request dated February 19, 2022, at 09:17:59 stating I need to see a Doctor ASAP “I[‘]m
shitting out blood and my kidneys are burning.” 	(ECF No. 92 at 20). 	Supervisor Kinley
responded: “I will make contact with the nurse and see what she advises.” 	Id.
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 2 of 16 PageID #:
<pageID>

3
• 	A request at 12:00:32 stating he needs to see the doctor ASAP as he is bleeding whenever
he has a bowel movement and has lost a lot of blood. 	Id. at 1. 	At 13:02:34 Supervisor
Kinley indicated she would contact the nurse. 	Id.
• 	A request at 14:13:46 asking what the jail nurse said and noting he had lost a lot of blood
and was getting weaker. 	Id. at 15. 	Supervisor Kinley noted she was still waiting for a
response. 	Id. at 15.
• 	A request at 14:55:22 in which Wesley stated he was losing blood and was weak. 	Id. at
21. 	With no doctor or nurse available on the weekend, he asked to be checked out ASAP
or to be taken to the emergency room. 	Id. 	He further noted that he would show
Supervisor Kinley that he had “blood coming out . . . when [he] shit[s]” so that he could
get medical care. 	Id. 	Supervisor Kinley responded she was “[w]orking with medical to
see what needs to be done.” 	Id.
• 	A request at 14:56:53 stating “Ms Tiffany my health is very important and serious.” 	Id.
at 16. 	In response, Supervisor Kinley noted: 	“duplicate to previous response.” 	Id.
• 	A request at 15:39:14 stating I have “lost a lot of blood due to the fact Im shitting blood.”
Id. at 17. 	Supervisor Kinley responded: 	“inmate just spoke with an officer about matter.”
Id.
• 	A request at 20:31:31, asking if they had any luck getting transport. 	Id. at 14. 	At
22:04:57, Amanda Jones responded she was still working on it. 	Id.
• 	A request dated February 20, 2023, at 07:57:20 in which Wesley stated he had been
“shitting blood” for over 24 hours and awaiting transport to the emergency room. 	Id. at
22. 	He asked to speak to the day-shift lieutenant. 	Id. 	Supervisor Kinley responded: 	“I
will let them know when they are not on emergency traffic.” 	Id.
• 	A request at 08:20:33 stating he had not refused any medical care. 	Id. at 23. 	He was told
by the night shift lieutenant he could “stay back here in B-pod or I can come up front to
get transport to the emergency room.” 	Id. 	He was told it would be morning before he
was transported. 	Id. Supervisor Kinley responded: 	“duplicate.” 	Id.
• 	A request at 11:22:59 stating I need to go to the emergency room now. 	Id. at 18. 	“I’ve
been bleeding now for over 24 hours and I[‘]m weak . . . 	What do you want me to do so
I can get help I need to go to the hospital please.” 	Id. 	Supervisor Kinley responded: 	“I
do not have transport available right this minute.” 	Id.
• 	A request at 16:27:46, stating he had requested to see the jail lieutenant ten hours ago and
asking if the jail lieutenant had been on emergency calls all day or if he had even been
notified. 	Id. at 19. 	Supervisor Kinley responded: 	“duplicate.” 	Id.
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 3 of 16 PageID #:
<pageID>

4
• 	A request at 17:48:02 stating he was in pain and needed to get to the emergency room to
find out where all the blood was coming from. 	Id. at 24. 	He repeated he was given
permission by the night shift lieutenant to stay in B-pod awaiting transport. 	Wesley
denied refusing any medical treatment. 	Id. 	Night Supervisor Amanda Jones responded
she would be down when she got the chance. 	Id.
• 	A discharge summary and other records from Ouachita County Medical Center indicating
Wesley had been admitted on February 21, 2022, and discharged on February 24, 2022.
Id. at 25-27. 	His primary discharge diagnosis is listed as acute anemia due to
gastrointestinal blood loss. 	Id. at 25. 	Wesley was given 3 units of packed red blood cells
which raised his hemoglobin from a low of 7.3 to 8.8 at discharge. 	Id. 	He underwent a
EGD (esophagogastroduodenoscopy)and colonoscopy. 	Id. 	The EGD was normal. 	Id.
There was no active bleeding in the colon. 	Id. 	Large clots were noted and it was
remarked that he had a past history of diverticular bleed which might be the source of the
current bleed. 	Id. 	Dr. Arnold believed Wesley needed to be transferred to Baptist Health
as he was “likely still actively bleeding.” 	Id.
• 	A discharge summary from Baptist Health in North Little Rock showing Wesley was
admitted on February 24, 2022, and discharged on February 26, 2022. 	Id. at 28. 	His
discharge diagnosis was acute lower GI bleed likely diverticular. 	Id.
Claim Two alleges that on September 8, 2021, Wesley was found “in a ball on the floor in
serious pain and suffering from hernia; kidney; bladder problems and was still [urinating] blood.”
(ECF No. 84 at 6). 	Wesley alleges that Jailer Lipps and Supervisor Kinley put him in a wheelchair
and took him to a holding cell. 	Id. 	Wesley indicates he was told he would be transferred to the
emergency room. 	Id. 	Wesley says Nurse Holmes told him he was waiting for transport. 	Id.
Wesley asserts the transfer never happened. 	Id. 	Wesley’s official policy claim is the same as
stated in Claim One. 	Id.
In support of his Motion for Summary Judgment on this claim, Wesley offers the following
documentation:
• 	A report dated September 8, 2021, at 07:35 by Supervisor Kinley noting K. Lipps had
called her to come to B-pod because Wesley was lying on the floor in pain. 	(ECF No. 92
at 31). 	Wesley advised Supervisor Kinley that he had been having “major pain since last
night in his right lower abdominal region.” 	Id. 	When asked if he had a prior medical
condition that could be causing the pain, Wesley stated he had been told he had a hernia.
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 4 of 16 PageID #:
<pageID>

5
Id. 	K. Lipps retrieved a wheelchair and Wesley was taken up front and put in a holding
cell until the jail nurse could look at him. 	Id. 	At the time of the report, Supervisor Kinley
noted she was waiting for the facility nurse to come on shift and evaluate Wesley. 	Id.
• 	A request dated September 10, 2021, at 11:53:55 in which Wesley stated he was supposed
to be transported to the emergency room on September 8th. 	(ECF No. 92 at 29). 	He
stated he was still in pain and urinating blood. 	Id. 	He indicated he had been on antibiotics
and was about to run out. 	Id. 	He stated he had tried everything he was asked to; but he
was still urinating blood. 	Id. 	Wesley asked when he would be seen by the doctor. 	Id.
Someone, who’s signature cannot be deciphered, wrote: 	“All records sent to USM
[United States Marshal’s] office. 	Nothing else to offer. 	Needs to see specialist.” 	Id.
• 	A request at 12:00:11 stating he had been told he was going to be transported to the
emergency room on the morning on September 9th and was never taken. 	Id. at 30.
Wesley asked when the jail doctor would be there. 	Id. 	William Hightower responded
that the nurse could let him know on Monday. 	Id.
Claim Three alleges that Wesley was seen by Dr. Joseph Deluca on January 7, 2022, and
informed that his ears were 80% closed. 	(ECF No. 84 at 8). 	Wesley indicates Dr. Deluca
directed Nurse Holmes to clean Wesley’s ears. 	Id. 	However, according to Wesley, Nurse
Holmes told him “that was not her job to do because she [doesn’t] get paid to do that.” 	Id.
Wesley states he received no treatment. 	Id. 	Wesley suffered from headaches, ringing and
popping of his ears; and he was unable to hear out of his right ear. 	Id. 	Wesley’s official policy
claim is the same as stated in Claim One. 	Id.
In 	support 	of 	his 	Motion 	for 	Summary 	Judgment, 	Wesley 	offers 	the 	following
documentation:
• 	A request dated November 28, 2021, in which Wesley stated both his ears were hurting.
(ECF No. 92 at 32). 	Someone hand wrote the following: 	“All: 	Tramadol. 	USM.” 	Id.
• 	A request dated December 13, 2021, in which Wesley stated his ears were ringing, irritated
and popping. 	Id. at 33. 	In response, someone, presumably the doctor, wrote that the
nurse was to check Wesley’s ears with an otoscope and irrigate if positive for a cerumen
impaction (earwax blockage). 	Id.
• 	A request dated January 5, 2022, complaining that his blood pressure was high; and he had
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 5 of 16 PageID #:
<pageID>

6
not eaten anything since yesterday. 	Id. at 34. 	Wesley complained he was in pain and
suffering and had a lot of medical issues. 	Id. 	Wesley indicated the emergency room
doctor had said he needed to be seen by a specialist for all his issues. 	Id. 	Finally, Wesley
complained that his ears had been hurting for over two months and no one had seen him
about the issue. 	Id. 	In response, someone wrote: 	“wants jail md to look @ his ears.”
Id.
• 	A January 7, 2022, note indicating Wesley was seen by Dr. DeLuca. 	Id. at 35. 	Dr.
DeLuca noted Wesley suffered from chronic hematoma and had been seen by urology
recently. 	Id. 	It was also noted that the USM had denied a CT. 	Id. 	With respect to
Wesley’s ears, a note was made that his right ear was completely impacted; his left ear was
80% impacted; and to irrigate his ears. 	Id.
Claim Four alleges that on July 22, 2022, Nurse Holmes refused to test him for COVID.
(ECF No. 84 at 9). 	The following afternoon Wesley had difficulty breathing and jail staff
contacted Administrator Owens who had Wesley placed in a holding cell. 	Id. 	Wesley states he
was told he would be going to the emergency room. 	Id. 	Wesley then tested positive for COVID.
Id. 	Wesley maintains Supervisor Kinley refused to send him to the emergency room. 	Id.
Wesley states he was in pain and suffering until finally on July 29, 2022, he was given medication.
Id. 	Wesley asserts that another inmate was sent to the emergency room for an infusion; he
recovered quickly from COVID; and did not suffer the way Wesley did. 	Id. 	Id. 	Wesley’s
official policy claim is the same as stated in Claim One. 	Id.
In support of his Motion for Summary Judgment on Claim Four, Wesley submits the
following documents:
• 	An incident report dated July 23, 2022, stating that at 04:00 Wesley informed Officer Gill-
Wesber that he was experiencing shortness of breath. 	(ECF No. 92 at 36). 	Supervisor
Jones indicated she informed the nurse of Wesley’s complaint. 	Id. 	The nurse stated
Wesley might need to go to the emergency room. 	Id. 	Supervisor Jones updated
Administrator Owens who suggested Wesley be brought to holding to be observed every
15-minutes until further action.
• 	An incident report stating Supervisor Kinley had administered a COVID test which was
positive. 	Id. at 37. 	Supervisor Kinley noted Wesley began to demand to go to the
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 6 of 16 PageID #:
<pageID>

7
hospital but for the time being she had no transport officers available. 	Id. 	Supervisor
Kinley offered Wesley Tylenol “as we have been directed to do by the facility nurse.” 	Id.
Supervisor Kinley said she saw no signs of obvious distress justifying a trip to the
emergency room or the need to call an ambulance. 	Id.
• 	The same incident report with written instructions dated July 27, 2022, for Zithromax,
Prednisone, Zyrtec, vitamins C and D, and zinc daily. 	Id. a 38. 	Note was also made to
report if Wesley experienced worsening symptoms. 	Id. 	If Wesley experienced shortness
of breath, he should be taken to the emergency room. 	Id. 	The signature is illegible. 	Id.
Claim Five alleges that on August 20, 2021, Dr. Deluca diagnosed Wesley with a hernia.
(ECF No. 84 at 11). 	Despite it being very painful, Wesley states Dr. Deluca “never did anything
about it.” 	Id. 	Wesley asserts his suffering went on for over a year. 	Id. 	Wesley maintains that
Dr. Deluca, Nurse Holmes, and Administrator Owens denied him treatment for the hernia. 	Id.
Wesley’s official policy claim is the same as stated in Claim One. 	Id.
In support of his Motion for Summary Judgment on Claim Five, Wesley submits the
following documents:
• 	A request dated August 16, 2021, in which Wesley complained of an ongoing medical
problem with pain in his bladder, kidney, and appendix area. 	(ECF No. 92 at 39).
Wesley reported that the prior evening Officer Hightower called Nurse Holmes and she
advised him to give Wesley three Ibuprofen and two Benadryl. 	Id. 	Wesley asked when
he would be seen by the doctor because he was in pain. 	Id.
• 	On the same request form a handwritten note dated August 20, 2021, stating that Wesley
had refused to urinate for evaluation. 	Id. 	He was to be given no additional treatment until
he submitted to a urine test for a complete evaluation. 	Id.
• 	On the same request form there are handwritten notes indicating Wesley had a small
abdominal hernia that was reducible. 	Id. 	Wesley was prescribed Tamsulosin 0.4 mg to
be given twice a day indefinitely. 	Id. 	For diverticulitis, Westly was prescribed docusate
100 mg twice a day. 2 	Id. 	Finally, note was made Wesley should be given a “boat
mattress” if one was available. 	Id.
• 	A request form dated October 18, 2021, in which Wesley indicated he was having more
2 No indication is given of the length of time Wesley should remain on this medication; nor was
the prescription written for a specific number of pills. 	(ECF No. 92 at 39).
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 7 of 16 PageID #:
<pageID>

8
trouble urinating and his kidneys hurt. 	Id. at 40. 	He stated he needed to see a specialist
for his kidney and bladder issues and added that his hernia was very painful. 	Id. 	Wesley
complained that the socks he was able to obtain at the WCDC cut off his blood circulation
and the bottom of his feet turned blue and were cold. 	Id. 	His legs were also swelling.
Id. 	With all his medical problems and because he is a diabetic, Wesley stated he needed
to see a doctor as soon as possible. 	Id. 	A handwritten note on the form states: 	“USM
declined referral to urology & referral for hernia due to not enough supporting info.” 	Id.
The signature is indecipherable. 	Id.
• 	A request dated November 1, 2021, in which Wesley complained about having trouble
urinating; his kidneys hurting; his painful hernia; and needing to see a specialist about his
bladder. 	Id. at 41. 	Westley noted he was a diabetic; had high blood pressure; and had a
“brain problem [resulting from] when [he] was shot in his head.” 	Id. 	Wesley asserted he
needed to be seen by a specialist. 	Id. 	In response, a handwritten note states: 	“Inmate
was seen by Dr. J. Lewis 11/2/21.” 	Once again, the signature is indecipherable.
• 	A request dated December 21, 2021, in which Wesley complained of having suffered
serious pain over the weekend due to ongoing problems with his kidneys, bladder, hernia,
ears, and head. 	Id. at 41. 	Wesley noted there was still blood in his urine. 	Id. 	A
handwritten note states: 	“All appts & tests are currently on hold until Capt Owens has the
meeting with Tim Greer—USM.” 	Id. 	The signature is indecipherable. 	Id.
Claim Six alleges Administrator Owens has failed to train detention center employees how
to deal with medical situations.3 	(ECF No. 84 at 12). 	Wesley maintains he was refused medical
treatment because the USM would not pay the medical bill at the doctor’s office. 	Id. 	As a result,
Wesley states he has continued to suffer physically, emotionally, and mentally. 	Id. at 13.
Wesley’s official policy claim is the same as stated in Claim One. 	Id.
In support of Claim Six, Wesley offers the following documentation:
• 	A document dated June 17, 2021,4 from UAMS (University of Arkansas for Medical
Sciences) which stated Wesley’s diverticular disease had deteriorated since he was last
seen. 	(ECF No. 92 at 43). 	The notes indicate the physician was concerned Wesley might
have IBS or IBD including Crohn’s or ulcerative colitis. 	Id. 	It was stated that Wesley
3 Wesley originally included United States Deputy Marshal Timothy Greer and Caroline Kastings,
an employee of the United States Marshal Service, as Defendants. 	(ECF No. 84). 	However, they
have been dismissed from this lawsuit. 	(ECF No. 99).
4 According to the affidavit submitted by Jail Administrator Owens, Wesley was not booked into
the OCDC until June 25, 2021. 	The two records from UAMS predate his incarceration.
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 8 of 16 PageID #:
<pageID>

9
would need further workup with GI including an EGD and colonoscopy. 	Id. 	Note was
made that Wesley continued to have hematuria and had been seen by a urologist who ruled
out “urethral/bladder cause to hematuria.” 	Id. 	Wesley needed further evaluation by
nephrology to rule out glomerulonephritis. 	Id. 	Finally, a note was made that Wesley
could not be seen by C&C “due to outstanding balance” and the referral would be sent to
“LR vs. Dr. Blankenship.” 	Id.
• 	A second document from UAMS, on the same date, which indicates the visit was via
telephone. 	Id. at 44. 	This document mentions Wesley’s final problem was a complaint
about his hernia. 	Id. 	They “discussed that if his hernia is ever unable to reduce that he
needs to go to the ED immediately for evaluation for incarcerated hernia and possible
surgical consult.” 	Id.
• 	A medical submission form dated June 23, 2022, to the USMS by OCDC asking for
approval for a nephrology consult. 	Id. at 45. 	The notes state: 	“Gross Hematuria-
chronic, Urology ruled out urethral/bladder cause. 	Will need further evaluation by
nephrology to rule out glomerulonephritis. 	Referred to Collum&Carney but will not see
due to outstanding balance.” 	Id.
In opposition, Defendants have submitted the affidavit of Administrator Owens. 	(ECF
No. 61 at 1). 	Administrator Owens asserts that the Defendants have been diligent in providing
Wesley medical treatment from the time he was booked in on June 25, 2021. 	Id. 	Owens then
provides the following table:
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 9 of 16 PageID #:
<pageID>

Case 1:22-cv-01026-SOH Document110 _ Filed 05/31/23 Page 10 of 16 PagelD #:

<pagelD>
Ouachita County
6 10/20/21 Joseph Deluca, MD Hheientien Canine
7 11/2/21 Jonathan Lewis, MD | The Lewis Clinic
Seth Aulds CHI St. Vincent Urology
, Be Hollenbach, MD
9 12/6/21-12/9/21 | Naveen Patil AR Department of Health
Ouachita County Medical
10 12/13/21 Joseph Deluca, MD Cape
1 1/3/20 jatar Tap tips | Comets County Metical
Center
Ouachita County
12 1/7/22 Joseph Deluca, MD Thciestien Ceates
19 2/21/22 John Henriksen, MD Ouachita County Medical
Ceuler
William Wesley Baptist Health Medical
Thorpe, DO; Center
"4 a a Jonathan Clark
Watson, MD
A Ouachita County Medical
15 3/21/22 William Dunn, MD Center
16 3/30/22 Robert J. Amato, MD | UAMS—Little Rock
Jason T. Pickelman, | Collom & Carney Clinic
Y 4/19/22
MD
18 5/6/22 Robert J. Amato, MD | UAMS (telehealth visit)
19 6/17/22 Robert J. Amato, MD | UAMS (telehealth visit)

9

10

11
II. 	SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, the record “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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“Once a party moving for summary judgment has made a sufficient showing, the burden rests with
the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.” 	Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602,
607 (8th Cir. 1999). 	A fact is “material” if it may “affect the outcome of the suit.” 	Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” 	Matsushita, 475 U.S. at 586. 	“They must show there is sufficient
evidence to support a jury verdict in their favor.” 	Nat’l Bank, 165 F.3d at 607 (citing Anderson,
477 U.S. at 249). 	“A case founded on speculation or suspicion is insufficient to survive a motion
for summary judgment.” 	Id. 	(citing Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)).
“When opposing parties tell two different stories, one of which is blatantly contradicted by the
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 11 of 16 PageID #:
<pageID>

12
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” 	Scott v. Harris, 550 U.S. 372, 380
(2007).
III. 	DISCUSSION
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” 	West v. Atkins, 487 U.S. 42, 48 (1988).
Here, Defendants clearly acted under color of state law. 	The sole question is whether the
Constitution was violated.
1. 	Individual Capacity Claims
The Eighth Amendment’s prohibition of cruel and unusual punishment prohibits deliberate
indifference to prisoners’ serious medical needs. 	See e.g., Luckert v. Dodge Cnty., 684 F.3d 808,
817 (8th Cir. 2012).5 Although Wesley was a pretrial detainee and his claim is brought under the
Fourteenth Amendment, the Eighth Circuit has continually applied the Eighth Amendment’s
deliberate indifference standard to claims brought by pretrial detainees. 	See e.g., Barton v. Taber,
820 F.3d 958, 964 (8th Cir. 2016). 	To prevail on his claim, Wesley must prove that each
Defendant acted with deliberate indifference to his serious medical needs. 	Estelle v. Gamble, 429
U.S. 97, 106 (1976).
The deliberate indifference standard includes “both an objective and a subjective
5 In Briesemeister v. Johnston, 827 Fed. Appx. 615, 616 n.2 (8th Cir. 2020), the Eighth Circuit
rejected the argument that the objective reasonableness standard which the Supreme Court adopted
in Kingsley v. Hendrickson, 576 U.S. 389 (2015), in connection with excessive force claims
brought by pretrial detainees under the Due Process Clause, had altered the standard applicable to
denial of medical care claims brought by pretrial detainees.
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 12 of 16 PageID #:
<pageID>

13
component: ‘[Wesley] must demonstrate (1) that [he] suffered [from] objectively serious medical
needs and (2) that the prison officials actually knew of but deliberately disregarded those
needs.’” 	Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan,
132 F.3d 1234, 1239 (8th Cir. 1997)).
To show that he suffered from an objectively serious medical need Wesley must show he
“had been diagnosed by a physician as requiring treatment” or had an injury “that is so obvious
that even a layperson would easily recognize the necessity for a doctor’s attention.” 	Schaub v.
VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (citation omitted). 	The undisputed facts establish
Wesley suffered and/or suffers from a number of serious medical conditions.
For the subjective prong of deliberate indifference, “the prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment decisions
does not give rise to the level of a constitutional violation.” 	Popoalii v. Correctional Med. Servs.,
512 F.3d 488, 499 (8th Cir. 2008) (citation omitted). 	“Deliberate indifference is akin to criminal
recklessness, which demands more than negligent misconduct.” 	Id.
This subjective component requires Wesley to prove that each named Defendant had a
“sufficiently culpable state of mind;” in other words, he or she actually knew of the substantial
risk of serious harm and failed to respond reasonably to it. 	Nelson v. Shuffman, 603 F.3d 439,
446-47 (8th Cir. 2010). 	“Liability for damages for a federal constitutional tort is personal; so,
each defendant’s conduct must be independently assessed.” 	Wilson v. Northcutt, 441 F.3d 586,
591 (8th Cir. 2006).
“Because [Wesley’] deliberate-indifference claim is based on a delay in medical treatment,
we measure the objective seriousness of the deprivation . . . by reference to the effect of delay in
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 13 of 16 PageID #:
<pageID>

14
treatment.” 	Jackson v. Riebold, 815 F.3d 1114, 1119 (8th Cir. 2016)(cleaned up). 	“To establish
this effect, the inmate must place verifying medical evidence in the record to establish the
detrimental effect of delay in medical treatment.” 	Id. at 1119-20 (cleaned up). 	Wesley has
provided medical documentation that his medical conditions were deteriorating sufficiently that it
was necessary for him to be seen by a variety of specialists including a urologist and nephrologist
to obtain proper medical treatment. 	Thus, an issue of fact exists as to the detrimental effect of the
delay.
The Court believes Wesley has submitted insufficient proof to establish his entitlement to
judgment as a matter of law as against any of the named Defendants. 	Certainly, Wesley has
established there are genuine issues of fact as to whether the Defendants were deliberately
indifferent to his serious medical needs. 	The mere fact that Wesley has shown he was denied
medical treatment while the jail officials requested approval from the USM for treatment certainly
goes to the issue of Defendants’ deliberate indifference. 	Regardless of their agreement with the
USM, Wesley was in the OCDC’s custody and jail personnel had a constitutional duty to provide
Wesley with adequate medical care.
However, 	as 	previously 	discussed, 	the 	deliberate 	indifference 	standard 	imposes 	a
significant evidentiary burden on plaintiffs. 	It requires more than evidence of negligence, or even
gross negligence, and a prisoner’s mere disagreement with the course of care is not a sufficient
evidentiary basis to prove deliberate indifference. 	Langford v. Norris, 614 F.3d 445, 460 (8th Cir.
2010). 	Instead, deliberate indifference “requires proof of a reckless disregard for a known risk.”
Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001). 	Based on the summary judgment record, the
Court simply cannot say that Wesley has met his burden of showing there are no genuine issues of
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 14 of 16 PageID #:
<pageID>

15
material fact in dispute. 	Wesley is not entitled to summary judgment on his individual capacity
claims against the Defendants.
2. 	Official Capacity Claim
An official capacity claim is considered a claim against the employing governmental entity,
here, Ouachita County. 	Crawford v. Van Buren Cnty., 678 F.3d 666, 669 (8th Cir. 2012).
“Section 1983 liability for a constitutional violation may attach to an entity if the violation resulted
from (1) an ‘official entity policy,’ (2) an unofficial ‘custom,’ or (3) a deliberately indifferent
failure to train or supervise.” 	Corwin v. City of Independence, Mo., 829 F.3d 695, 699 (8th Cir.
2016)(citations omitted).
In his Amended Complaint (ECF No. 84) when Wesley was asked to describe the custom
or practice that he believed caused the violation of his constitutional rights, he responded by merely
stating OCDC policy required inmates to be given necessary medical treatment. 	He maintained
OCDC officials were not following the policy. 	The failure to follow policy is insufficient to
establish liability. 	See e.g., Walton v. Dawson, 752 F.3d 1109, 1122 (8th Cir. 2019)(failure to
follow internal policies does not state a constitutional violation). 	However, Wesley has submitted
documentation suggesting the OCDC officials have a practice of not providing medical treatment
to federal detainees unless the USM gives prior approval. 	Based on the record before the Court,
this is sufficient to establish a question of fact as to the official policy claim. 	Wesley, however,
is not entitled to summary judgment on this claim.
IV. 	CONCLUSION
For the reasons discussed above, the undersigned recommends that Wesley’s Motion for
Summary Judgment (ECF No. 92) be DENIED.
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 15 of 16 PageID #:
<pageID>

16
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). 	The failure to file
timely objections may result in waiver of the right to appeal questions of fact. 	The parties
are reminded that objections must be both timely and specific to trigger de novo review by
the district court.
DATED this 31st day of May 2023.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
Case 1:22-cv-01026-SOH Document 110 Filed 05/31/23 Page 16 of 16 PageID #:
<pageID>