McCutcheon v. Parker et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
GENE EDWARD McCUTCHEON 	PLAINTIFF
v. 	Civil No. 3:23-cv-03041-TLB-MEF
JAIL ADMINISTRATOR HETTIE PARKER,
Searcy County Detention Center (SCDC);
JAILER/DISPATCHER JIM HENRY, SCDC; and
JAILER ANTONIO MARTINEZ 	DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, Gene Edward McCutcheon (“McCutcheon”), currently an inmate of the Ouachita
River Correctional Unit of the Arkansas Division of Correction (“ADC”), filed this civil rights
action under 42 U.S.C. § 1983. 	McCutcheon proceeds pro se and in forma pauperis.
McCutcheon contends he was denied adequate medical care by the Defendants while he was
incarcerated in the Searcy County Detention Center (“SCDC”).
Pursuant to the provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Timothy L.
Brooks, United States District Judge, referred this case to the undersigned for the purpose of
making a Report and Recommendation. 	The case is before the Court on a Motion for Summary
Judgment (ECF Nos. 31-33 & 35) filed by the Defendants. 	McCutcheon filed a response (ECF
No. 45). 	The Motion is ripe for decision.
I. 	BACKGROUND
McCutcheon was incarcerated in the SCDC from March 28, 2023, until March 23, 2024,
when he was transferred to the ADC. 	(ECF No. 31-1 at 2).1 	At the time of his booking,
1 For ease of location, all references to the summary judgment record are to the CM/ECF document
and page number rather than to the designation given to the exhibits by the parties.
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McCutcheon was a pretrial detainee. 	(ECF No. 1 at 2). 	The summary judgment record does not
indicate when McCutcheon was convicted.
McCutcheon states in his verified complaint that he had undergone three open heart
surgeries, had a pacemaker, and was on several heart medications. 	(ECF No. 1 at 4-5). 	He
alleges he was denied medication by all three Defendants and suffered chest pains as a result. 	Id.
at 5. 	He also asserts he was denied access for two weeks to his “latitude communicator” which
“reads” his pacemaker and sends the results to his cardiologist at the Walker Heart Institute. 	Id.
at 6. 	According to McCutcheon, he had an appointment with his cardiologist scheduled for June
12, 2023, which he was not transported to. 	Id. 	McCutcheon also had a large hernia which at
times caused him severe pain. 	(ECF No. 1 at 5). 	Despite this, McCutcheon states nothing was
done about the hernia. 	Id.
During the time of McCutcheon’s incarceration, in-house medical services were “provided
by nurse practitioner Darrell Elkin [“Elkin”] who came in once a week to see inmates in need of
medical services.” 	(ECF No. 31-1 at 2). 	In the event of an emergency, the inmate was sent to
the hospital. 	Id. 	If an appointment was needed outside the facility or with a specialist, Elkin was
required to approve it. 	Id.
McCutcheon brought prescription medications with him when he was booked in on March
28, 2023. 	(ECF No. 31-1 at 2). 	According to Defendant Parker, the medications were accepted
and “[a]fter checking that they were not expired and the pills were what the bottle said,” a list of
the medications was sent to Elkin for approval. 	Id. 	Defendant Parker indicates the approval
process took two days, or until March 30, 2023. 	Id. 	On that date, the following medications
were 	approved 	for 	McCutcheon’s 	use: 	“Metroprol, 	Entresto, 	Amiodarone/Cordorone,
Bumetanide/Edenbridge, aspirin, Spironolactone-diuretic, and El[]iquis.” 	Id. at 3.
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On March 30, 2023, McCutcheon complained of chest pains and numbness in his arm,
indicated he needed his medications, and requested an ambulance. 	(ECF No. 31-9 at 2).
Defendant Martinez called the North Arkansas Regional Medical Center (“North Ark”) and was
advised to contact Elkin. 	Id. 	Defendant Martinez contacted Elkin and gave McCutcheon the
approved medications. 	Id. 	North Ark personnel and Elkin advised Defendant Martinez to call
them back if the chest pains worsened. 	Id. 	The chest pains subsided. 	Id. 	Defendant Martinez
indicates McCutcheon “was watched to make sure he did not need to be transported.” 	Id. at 2-3;
see also ECF No. 31-3 at 2 (Defendant Martinez’s jail incident report).
With respect to McCutcheon’s appointment on June 12, 2023, Defendant Parker indicates
that in general any appointment known to the inmate and his family would need to be rescheduled
for security reasons. 	(ECF No. 31-1 at 3). 	In McCutcheon’s case, she recalled his appointments
had to be rescheduled a “few times” because his daughter was informed of the appointments. 	Id.
In fact, Defendant Parker says: “We actually had to call his doctor a few times and explain the
security rules and tell them they could not tell his daughter when appointments were scheduled.”2
Id.
According to Defendant Parker, McCutcheon was transported and seen by outside doctors
on the following occasions:
• 	August 15, 2023, by the Arkansas Heart Hospital Clinic;
• 	September 6, 2023, by the Harrison Heart Clinic;
• 	September 20, 2023, by an unknown provider;3
2 Defendant Parker does not indicate what doctor she is referring to, what appointments needed to
be rescheduled, or when these phone calls were made.
3 The Court is uncertain how an outside provider appointment could have been approved,
scheduled, and McCutcheon transported to the appointment, yet the Defendants have no record of
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• 	October 24, 2023, by his Fayetteville cardiologist;
• 	November 14, 2023, by Washington Regional Medical Center;
• 	December 27, 2023, by his hernia doctor regarding surgery; and
• 	March 19, 2024, by the Boston Mountain Clinic.
(ECF No. 31-1 at 3).4
The SCDC’s detainee sick call policy requires detainees to submit sick call requests on the
medical section of the kiosk located in the detainee pod. 	(ECF No. 31-2 at 6). 	According to the
policy, the sick call requests are reviewed by the jail administrator—here, Defendant Parker—to
determine urgency. 	Id. 	According to the policy, Defendant Parker screens the requests daily,
Monday through Friday. 	Id. 	Defendant Parker sees “each detainee personally to determine the
detainees’ health care needs.” 	Id. 	Pursuant to the policy, Defendant Parker may provide over-
the-counter medications, refer more serious conditions to a doctor, or recommend referrals to
doctors, dentists, and outside health care professionals. 	Id. 	When medication is dispensed, the
policy provides that detainees are required to sign for it. 	Id. at 7. 	Defendant Parker’s affidavit
does not address these steps or indicate whether she performed the duties outlined in the policy.
The SCDC’s emergency medical policy provides that “[a]ll perceived emergency situations
shall receive immediate attention.” 	(ECF No. 31-2 at 2). 	The section of the policy where there
is supposed to be a list of emergency telephone numbers, approved physicians, and facilities is
blank. 	Id. 	The policy requires all medical emergencies to be reported to the SCDC’s on-call
nurse, Elkin, and to North Ark. 	Id.
Defendant Parker indicates that “[i]f an inmate says they want to die, or refuses life-
the provider’s name, or the name of the hospital or clinic involved.
4 The medical records from these visits have not been included in the summary judgment record.
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maintaining medications, the inmate is placed on suicide watch and re-evaluated, generally after
72 hours. 	If the inmate is still suicidal, we call Counseling Associates for an evaluation.” 	(ECF
No. 31-1 at 3). 	According to Defendant Parker, on April 1, 2023, McCutcheon refused his heart
medications and stated he wanted to die. 	Id. 	Defendant Parker states McCutcheon refused his
medications again on May 9 and October 16, 2023. 	Id. 	Defendant Parker maintains that on all
three occasions McCutcheon was placed on suicide watch and then re-evaluated.5 	Id. 	Upon re-
evaluation, McCutcheon agreed to take his medications.6 	Id. 	Because of this, Defendant Parker
says there was no need to contact Counseling Associates. 	Id.
Defendant Parker indicates she has attached McCutcheon’s medication logs which
establish that “he was given medications for his heart.” 	(ECF No. 31-1 at 4). 	These records,
however, do not show the prescribed medications were provided to McCutcheon daily. 	(ECF No.
31-5). 	Rather, the records merely show that medications were ordered in his name from Allcare
Pharmacy on various dates. 	Id. at 2-25. 	On at least one occasion, SCDC personnel allowed
McCutcheon to run out of Entresto and Amiodarone. 	(ECF No. 31-4 at 4).
Defendant Parker indicates that histogram checks “were done per [McCutcheon’s] doctor,
5 No logs or other jail records were submitted regarding the suicide watch or who performed the
re-evaluation.
6 The jail incident report from April 1, 2023, indicates that when McCutcheon was moved to
holding to be placed on suicide watch for 48-hours, he agreed to take his medication. 	(ECF No.
31-8 at 3). 	It is not clear if he remained in holding and was placed on suicide watch or if he was
released immediately. 	Id. 	A jail incident report dated April 2, 2023, indicates an officer
overheard McCutcheon say that “all he had to do was quit taking his meds for 5 days and he would
die and that was what he was going to do.” 	(ECF No. 31-8 at 4). 	The note about the May 9,
2023, refusal indicates McCutcheon refused his medication because he was not feeling well. 	Id.
at 6. 	There is no mention of McCutcheon stating he wanted to die. 	A jailer was advised to place
McCutcheon on medical watch in a holding cell. 	Id. 	The incident report from October 16, 2023,
indicates McCutcheon refused to take his medication because he was fasting. 	Id. at 7. 	There is
no indication he was placed on any type of watch. 	There is no indication that McCutcheon stated
he wanted to die.
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as seen in the log attached as Exhibit 5.” 	(ECF No. 31-1 at 4). 	Exhibit 5 to Defendant Parker’s
affidavit is found at ECF No. 31-6. 	These records, which appear to be print outs from a device
check, all appear to be dated March 6, 2023. 	(ECF No. 31-6 at 2-15). 7 	No records were
submitted from McCutcheon’s doctor establishing at what intervals the device checks were to
occur.
McCutcheon’s medical requests indicate he continued to complain of chest pain and/or
requested to see his cardiologist on May 9, July 12, July 31, August 3, September 27, October 3,
October 5, and October 10, 2023. 	(ECF No. 31-4 at 7, 9, 10, 29, 16, 35, 37, 17, 39).
McCutcheon’s medical requests are not in chronological order and most contain no response.
With respect to his June 12 cardiology appointment, there is a note on one of McCutcheon’s
requests that says per administration he probably needs to be taken to the appointment. 	Id. at 7.
Later, when McCutcheon complained he had not been taken to the appointment, there is a notation
dated June 14 that states the appointment needs to be rescheduled. 	Id. at 8.
Although there are handwritten notes indicating McCutcheon’s prior medical records were
to be ordered from various facilities, no such records are contained within the summary judgment
record. 	The Court has been provided with no records indicating the dates on which McCutcheon
was seen by Elkin, or with any type of chart or record of Elkin’s diagnosis or orders. 	A couple of
McCutcheon’s requests have handwritten notes made on them, but the notes are unsigned. 	The
Court has not been provided with Elkin’s affidavit regarding the medical care provided to
7 There is one additional page that has three dates listed: 11/14/2023, 1/24/2024, and 4/23/2024.
A second column says duration and, 15, 15, and 20, are listed after the dates. 	Finally, a third
column lists resources under which two APRNs are listed and WHICC Home Device Checks.
(ECF No. 31-6 at 16). 	A handwritten notation says, “Pacemaker Clinic.” 	It is possible this page
indicates device checks on those dates, but no explanation is given by Defendant Parker, and she
does not list the dates on which device checks were done in her affidavit.
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McCutcheon.
With respect to McCutcheon’s hernia, there are handwritten notes, which were perhaps
made by Elkin, on McCutcheon’s May 5, 2023, request which indicate he had a large inguinal
hernia which was a pre-existing condition. 	(ECF No. 31-4 at 6). 	McCutcheon’s medical records
were to be ordered. 	Id. 	McCutcheon submitted medical requests regarding his hernia on May 9,
May 14, July 12, September 10, and November 20. 	See id. at 6, 9, 15, 23, & 45.
To Defendant Martinez’s knowledge, there was only one occasion, November 14, 2023,
when he did not provide McCutcheon with his medication. 	(ECF No. 31-9 at 3). 	On that day,
McCutcheon was out for a doctor’s appointment and did not return to the SCDC until after
Defendant Martinez left for the day. 	Id. 	Defendant Martinez had prepared McCutcheon’s
medications and placed them in a cup. 	Id. 	According to Defendant Martinez, McCutcheon
failed to notify anyone at the facility that he had not received his medication until the following
morning at the 4:00 a.m. medication call. 	Id.
II. 	APPLICABLE STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), 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).
“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 Commerce v. Dow Chemical Co., 165 F.3d
602, 607 (8th Cir. 1999).
The non-moving party “must do more than simply show that there is some metaphysical
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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
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 	“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 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
Defendants have moved for summary judgment on the basis that McCutcheon “received
not only medications, but access to an in-house nurse, and transport to and access to his doctors.”
(ECF No. 31-at 1). 	Defendants make the following arguments. 	First, Defendants argue there is
no evidence they were deliberately indifferent to McCutcheon’s serious medical needs. 	Second,
Defendants argue there is no verifying medical evidence that any delay in treatment had an adverse
effect on McCutcheon. 	Third, Defendants argue McCutcheon suffered no physical injury within
the meaning of the Prison Litigation Reform Act. 	Fourth, they maintain there is no basis for either
a supervisory liability claim against Defendant Parker or an official capacity claim against Searcy
County. 	Finally, Defendants contend they are entitled to qualified immunity.
A. 	The Deliberate Indifferent Standard
While McCutcheon was a pretrial detainee for a portion of his incarceration and the
Fourteenth Amendment would have applied during this time, courts in the Eighth Circuit analyze
denial of medical care claims under the deliberate indifference standard of the Eighth Amendment
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for both pretrial detainees and convicted inmates. 	See e.g., Smith-Dandridge v. Geanolous, 97
F.4th 569 (8th Cir. 2024) (pretrial detainee has the same rights to medical care under the Due
Process 	Clause 	of 	the 	Fourteenth 	Amendment 	as 	an 	inmate 	has 	under 	the 	Eighth
Amendment). 	The Eighth Amendment’s prohibition on the infliction of cruel and unusual
punishment requires that the government “provide humane conditions of confinement” and
“ensure that inmates receive adequate food, clothing, shelter, and medical care.” 	Farmer v.
Brennan, 511 U.S. 825, 832 (1994).
To succeed on a denial of medical care claim, McCutcheon must demonstrate (1) that he
had an objectively serious medical need, and (2) that the Defendants actually knew of, but
deliberately disregarded, that serious medical need. 	See Ivey v. Audrain Cty., Mo., 968 F.3d 845,
848 (8th Cir. 2020).
B. 	Prong One: Existence of a Serious Medical Need
“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.” 	Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (internal quotations
omitted). 	McCutcheon’s heart condition clearly constitutes a serious medical need. 	He had a
history of heart problems, had a pacemaker, was under the care of a cardiologist, was taking several
prescription medications for his heart, had a latitude communicator, and was suffering from at least
intermittent chest pain. 	The record unequivocally establishes that McCutcheon informed
Defendants of his serious heart condition.
He also had a large hernia. 	While hernias do not always constitute a serious medical need,
Defendant Parker’s affidavit indicates McCutcheon was seen by “his hernia doctor regarding
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surgery” on December 27, 2023.8 	(ECF No. 31-1 at 3). 	There are no records indicating whether
Elkin believed the hernia required surgery; however, someone (presumably Elkin) indicated in
May of 2023 that McCutcheon’s hernia was serious enough to require re-evaluation once his
records were obtained. 	(ECF No. 31-4 at 6). 	See Hancock v. Arnott, 39 F.4th 482, 487 (8th Cir.
2022) (Because inmate failed to present evidence that the delay in the provision of hernia surgery
“caused him harm or changed his prognosis, we conclude [inmate] has not shown a serious medical
need requiring immediate surgery.”); Johnson v. Lockhart, 941 F.2d 705, 706-07 (8th Cir. 1991)
(Prison physician classified hernia repair surgery as priority one but surgery was delayed ten
months. 	It was “indisputable that the persistent delay in priority one surgery inflicts the sort of
pain and suffering which no one suggests would serve any penological purpose.”) (internal citation
and quotation marks omitted). 	McCutcheon reported the hernia had tripled in size and was
causing him severe pain. 	For purposes of this motion, the undersigned finds that the hernia
constituted a serious medical need.
C. 	Prong Two: Existence of Deliberate Indifference
“To demonstrate that a defendant actually knew of, but deliberately disregarded, a serious
medical need, the plaintiff must establish a mental state akin to criminal recklessness: disregarding
a known risk to the [detainee’s] health.” 	Barton v. Taber, 908 F.3d 1119, 1124 (8th Cir. 2018)
(internal quotations and citations omitted). 	The Eighth Circuit has stated that this “onerous
standard requires a showing more than negligence, more than even gross negligence, but less than
8 The summary judgment record does not contain the physician’s diagnosis or whether he or she
concluded surgery needed to be performed imminently. 	Additionally, other than stating they were
not aware of “any medical condition for which Mr. McCutcheon was not given treatment—
medications or medical care,” Defendants do not address the hernia. 	(ECF Nos. 31-1 at 4, 31-9
at 3, 35-1 at 3). 	McCutcheon’s response consists of his sworn response to the affidavits filed by
Defendants. 	For this reason, his response does not mention the hernia. 	(ECF No. 45).
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purposefully causing or knowingly bringing about a substantial risk of serious harm to the
inmate.” 	Thompson v. King, 730 F.3d 742, 747 (8th Cir. 2013) (internal quotations and citations
omitted).
Deliberate indifference may also be manifested by “prison guards in intentionally denying
or 	delaying 	access 	to 	medical 	care 	or 	intentionally 	interfering 	with 	the 	treatment 	once
prescribed.” 	Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). 	Detention center personnel are
allowed to rely on a medical professional’s opinion if the opinion is reasonable. 	McRaven v.
Sanders, 577 F.3d 974 (8th Cir. 2009).
A prisoner whose claim is based solely on “a delay in treatment must present verifying
medical evidence that the prison officials ignored an acute or escalating situation or that these
delays adversely affected his prognosis[,]” Holden v. Hirner, 663 F.3d 336, 342 (8th Cir. 2011)
(internal quotations omitted), unless the need for medical attention is obvious to a layperson, in
which case the plaintiff need not submit verifying medical evidence to show the detrimental effects
of delay. 	See Schaub v. VonWald, 638 F.3d 905, 919 (8th Cir. 2011) (citing Roberson v.
Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999)); see also Boyd v. Knox, 47 F.3d 966, 969 (8th Cir.
1995) (holding a three-week delay “coupled with knowledge of inmate-patient’s suffering, can
support a finding of an Eighth Amendment violation”).
Liability in a § 1983 case is personal. 	Frederick v. Motsinger, 873 F.3d 641, 646 (8th Cir.
2017). 	“To prevail on a § 1983 claim, a plaintiff must show each individual defendant’s personal
involvement.” 	White v. Jackson, 865 F.3d 1064, 1081 (8th Cir. 2017); see also S.M. v. Krigbaum,
808 F.3d 335, 340 (8th Cir. 2015) (“[g]overnment officials are personally liable only for their own
misconduct”). 	Additionally, § 1983 liability “requires a causal link to, and direct responsibility
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for, the deprivation of rights.” 	Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006)
(quoting Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)). 	It is, therefore, necessary to
examine separately the claims against each Defendant.
1. 	Defendant Martinez
According to McCutcheon, he told Defendant Martinez that he was a heart patient, had
undergone three open heart surgeries, had a pacemaker and needed to take the medications he
brought with him. 	(ECF No. 1 at 4; ECF No. 45 at 1). 	Despite this, McCutcheon states
Defendant Martinez refused to provide McCutcheon with his heart medications from March 28 to
March 30, 2023. 	(ECF No. 45 at 1). 	When the emergency medical technicians (EMTs) from
North Ark came to the SCDC on March 30 and did an EKG, McCutchen states they informed
Martinez that if McCutcheon missed a single dose of his heart medication it could cause a heart
attack, a stroke, or possibly his death. 	Id. 	At this point, Defendant Martinez gave McCutcheon
his evening medications. 	Id. 	McCutcheon indicates that in May he did not receive his
medications for five days because they had allowed the medications to run out. 	Id. at 2. 	Finally,
McCutcheon states on one occasion Defendant Martinez gave him another inmate’s medication.
Id.
Part of Defendant Martinez’s job was to distribute medications. 	It is undisputed that
McCutcheon did not receive his heart medications until March 30, 2023, and that he suffered chest
pain and numbness in his arm as a result. 	While Defendant Martinez disputes McCutcheon’s
claim that he refused to provide him medication and asserts there was only a single day when he
could not distribute the medication because McCutcheon was not at the facility at the distribution
time, as discussed below, the record does not support Defendant Martinez’s statement. 	Defendant
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Martinez does not dispute that he was aware of McCutcheon’s serious heart condition. 	Defendant
Martinez does not dispute that he was advised of the serious consequences of McCutchen missing
even a single dose of his heart medications.
Although 	Defendants 	did 	submit 	records 	indicating 	they 	ordered 	McCutcheon’s
prescriptions from Allcare Pharmacy, no medication administration records have been submitted.
There are no records showing the daily distribution of medications, what medications were
distributed, what times medications were distributed, and no record of McCutcheon signing for his
daily medications. 	The evidence submitted establishes that on at least one occasion refills of two
medications were not ordered in a timely manner causing McCutcheon to miss doses of these
medications. 	At the very least, this puts into serious question Defendant Martinez’s statement
that McCutcheon received his medications daily. 	The Court simply cannot determine what
medications were distributed to McCutcheon and when. 	On the single occasion Defendant
Martinez mentions that McCutcheon was not at the facility when he prepared McCutcheon’s
medication for distribution, despite Defendant Martinez’s knowledge of the serious consequences
of McCutcheon missing a single dose of medication, there is nothing in the record to suggest
Defendant Martinez left any instruction that personnel on the next shift administer the medication.
Defendants’ Motion is not supported with any of McCutcheon’s past medical records
which were allegedly ordered, any records from his visits to outside medical personnel, any records
regarding visits and examinations conducted by Elkin, or the affidavits of any medical personnel
suggesting that a failure to administer McCutcheon’s medication on these occasions would not
have caused any injury, illness, or serious discomfort to McCutcheon. 	Cf. Dulany v. Carnahan,
132 F.3d 1234, 1240 (8th Cir. 1997) (“In the face of medical records indicating treatment was
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provided and physician affidavits indicating that the care provided was adequate, an inmate cannot
create a question of fact by merely stating that [he] did not feel [he] received adequate treatment”).
While there are cases broadly holding that the occasional missed dose of medication
constitutes negligence at most, examination of those cases indicates the facts differ significantly
from those presented here. 	For instance, in Zentmyer, a case frequently cited by courts within this
circuit, the Seventh Circuit noted that on the record before it “each of several guards failed
occasionally to administer doses of medication without knowledge that serious consequences
might result from their lack of due diligence in treating an earache.” 	Zentmyer v. Kendall Cty,
Ill., 220 F.3d 805, 811-12 (7th Cir. 2000). 	The Seventh Circuit stated: “Given that the deputies
knew only that Zentmyer suffered from an ear infection, the deputies were not so neglectful that
deliberate indifference is apparent under the facts alleged.” 	Id. at 812 (citing Mahan v. Plymouth
Cty. House of Corr., 64 F.3d 14, 18 (1st Cir. 1995) (finding that failure to administer prescribed
medication did not constitute deliberate indifference absent evidence that prison officials knew the
plaintiff would suffer serious medical consequences without medication)).
In this case, McCutcheon had a serious heart condition of which Defendant Martinez was
aware. 	When McCutcheon missed doses, he suffered chest pain and numbness in his arm and on
at least one occasion emergency medical personnel had to be called. 	Contrary to the facts before
the court in Zentmyer, the record evidence here is that missed doses resulted in serious life-
threatening consequences. 	Defendant Martinez was aware of the serious consequences that could
result—heart attack, stroke, or death.
Defendants also argue they are entitled to summary judgment because McCutcheon has
failed to produce verifying medical evidence that any delay in McCutcheon’s receipt of medication
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had any adverse effect on his prognosis. 	This argument is without merit. 	McCutcheon’s claim,
at least with respect to the medication, is not based on a delay in the receipt of the medication but
on the failure to administer medication or misadministering the medication. 	See Presson v. Reed,
65 F.4th 357, 368-69 (8th Cir. 2023).
Given the paucity of the record, the seriousness of McCutcheon’s heart condition, and the
knowledge that can be attributed to Defendant Martinez, there are genuine issues of material fact
as to whether Defendant Martinez exhibited deliberate indifference to McCutcheon’s serious
medical needs regarding medication distribution. 	The Court agrees, however, that there is no
evidence suggesting Defendant Martinez was involved in determining whether McCutcheon
should be provided medical treatment for his hernia or the scheduling of his visits with his
cardiologist.
2. 	Defendant Henry
Regarding Defendant Henry, McCutcheon states he knew McCutcheon was a heart patient
and had to have his medications on time every day. 	(ECF No. 45 at 3). 	Despite this,
McCutcheon asserts Defendant Henry let him run out of medication. 	Id. 	When Defendant Henry
stated it would take 12 to 24 hours to get the medication, McCutcheon asked Defendant Henry
why it had taken five days in May “when [you] let me run out of three of [my] main meds.” 	Id.
Defendant Henry responded: “tell your lawyer.” 	Id. 	In his verified Complaint, McCutcheon also
states that Defendant Henry was in charge of morning medication distribution and had refused him
medication resulting in his suffering chest pains. 	(ECF No. 1 at 4).
In his affidavit, Defendant Henry indicates part of his job “is to assist in getting the
medications for inmates approved by our in-house nurse.” 	(ECF No. 35-1 at 2). 	Defendant
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Henry, however, fails to describe in detail what steps he took to obtain Elkin’s approval of the
medications and whether there were any steps taken to speed up the process given the seriousness
of McCutcheon’s heart condition. 	Id. 	According to Defendant Henry, to his knowledge,
McCutcheon received his medications daily except for the day McCutcheon was late returning
from a doctor’s appointment and did not ask for his medication until early the following morning.
Id. at 3. 	As discussed in connection with Defendant Martinez, the record does not support this
statement.
Defendant Henry’s affidavit does not mention his having any responsibility for arranging
for medication refills; however, except for two forms which contain no signature and no date and
are for aspirin, review of the orders for refills of McCutcheon’s medications submitted to Allcare
Pharmacy indicate they were each signed by Defendant Henry. 	(ECF No. 31-5 at 20-21, 2-19, &
22-25).9
The records are not in chronological order, some are barely legible, others contain no date
at all, and they do not cover the entire time McCutcheon was incarcerated at the SCDC. 	(ECF
No. 31-5). 	In fact, one of the Defendants’ records contains a notation that they were out of two
of McCutcheon’s medications and needed them refilled ASAP. 	Additionally, while the
prescriptions were written for 30 tablets (except for Eliquis which was written for 60 tablets), there
appears to be no consistency in the dates on which refills were ordered. 	It is not the Court’s job
to attempt to hunt through these records to determine whether McCutcheon’s prescriptions were
ordered in sufficient time for him to receive his medications on the prescribed basis.
9 In a separate exhibit, there is a record dated April 12, 2023, where Elkin wrote refills for
Metoprolol, Eliquis, Entresto, Aspirin, Alactone, and Amiodarone. 	(ECF No. 31-4 at 2). 	There
is no indication, however, that this record was submitted to the pharmacy rather than merely being
a directive to Defendant Henry.
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Defendant Henry was aware of the seriousness of McCutcheon’s heart condition and the
need for the medications to be distributed on the prescribed basis. 	Yet, from what is before the
Court, Defendant Henry did not ensure that McCutcheon had his life-sustaining heart medications
so they could be provided daily.
In short, there are genuine issues of material fact as to whether Defendant Henry exhibited
deliberate indifference to McCutcheon’s serious medical needs regarding the availability and
distribution of his medication. 	The Court agrees there is no evidence suggesting Defendant Henry
was involved in determining whether McCutcheon should be provided medical treatment for his
hernia or the scheduling of his visits with his cardiologist.
3. 	Defendant Parker
As for Defendant Parker, McCutcheon argues she knew the following: Defendant Martínez
did not give McCutcheon his medications from March 28 to March 30, 2023; McCutcheon did not
receive his medication for five days in May 2023; and Defendant Martinez gave him another
person’s medications one day. 	(ECF No. 45 at 2). 	In his verified Complaint, McCutcheon
alleges Defendant Parker denied him medication and treatment for his hernia, refused him access
to his latitude communicator for a two-week period, failed to take him to his cardiologist, and left
him to wonder why he was suffering from chest pain. 	(ECF No. 1 at 5-6).
Defendant Parker argues she was not deliberately indifferent to McCutcheon’s serious
medical needs and cannot be held liable merely because she supervises Defendants Martinez and
Henry. 	It is true Defendant Parker cannot be held liable for the unconstitutional conduct of a
subordinate based solely on the fact that she has general responsibility for supervising the
operations of the SCDC; however, Defendant Parker can be held liable in her individual capacity
for her own personal involvement in the constitutional violations or when her corrective inaction
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amounts to deliberate indifference or tacit authorization of the violative practices. 	Ashcroft v.
Iqbal, 556 U.S, 662, 676 (2009); Luckert v. Dodge Cty., 684 F3d 808, 817 (8th Cir. 2012).
While McCutcheon alleges in his verified Complaint that Defendant Parker denied him
medication, he alleges no facts indicating Defendant Parker was personally involved in approving
his medication, refilling it, or in its daily distribution. 	(ECF No. 1 at 5). 	The medical policy
submitted by Defendants indicates Defendant Parker screens sick call requests, can supply over
the counter medication, refers more serious conditions to a doctor, and recommends referrals to
doctors, dentists, and outside health care professionals. 	(ECF No. 31-2 at 6). 	Defendant Parker
is also responsible for arranging transportation to appointments, and the policy provides that
appointments may be cancelled “only in the event of emergency.” 	Id. at 7. 	The policy also
provides that when medications are prescribed during an outside appointment, Defendant Parker
“will arrange to have any prescriptions filled so the detainee can start taking prescribed
medications without delay.” 	Id.
Defendant Parker does not address her duties under the policy in her affidavit. 	While the
failure to follow a jail policy does not necessarily equate to a constitutional violation, doing nothing
to ensure that McCutcheon received his heart medications, was taken to his cardiologist, or
received any treatment or evaluation of the seriousness of his hernia, could constitute deliberate
indifference.
Defendant Parker relies on the “medication records” and other medical records submitted
as exhibits. 	The relevant records either fail to support her assertions or are simply missing or non-
existent. 	See e.g., Nur v. Olmsted Cty., 563 F. Supp. 3d 946, 961 (D. Minn. 2021) (Defendants
may not “simply fill in gaps in the record with facts they wish were established and then offer
those ‘facts’ to meet their initial burden under Rule 56”). 	Additionally, there is no record of a
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medical intake questionnaire or an intake medical evaluation, no record any effort was made to
obtain McCutcheon’s medical records, and no record an effort was made to contact his cardiologist
to obtain his treatment orders. 	These records, if generated or obtained, would have provided
Defendants with information on how to treat McCutcheon. 	Id. at 965 (“[T]he record supports an
inference that, if they did not know more, it was because they failed to do more to follow up on
the information they had”). 	There are no records of Elkin giving orders regarding the continuity
of care that should be provided to McCutcheon. 	Defendant Parker also knew McCutchen
continued to submit medical requests and grievances both about his heart condition and his hernia.
The law does not allow Defendant Parker to deliberately bury her head in the sand and then attempt
to argue she provided McCutcheon with adequate medical care. 	On the record, in her individual
capacity, Defendant Parker has failed to meet her burden imposed by Rule 56(a) of showing there
are no genuine disputes of material fact and that she is entitled to judgment as a matter of law.
To be held liable in her supervisory capacity for corrective inaction or tacit authorization,
there must be a showing that the training procedures and supervision were inadequate and likely
to result in a constitutional violation. 	Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996). 	It
would be reasonable for a jury to infer that some inmates, include McCutcheon, would have serious
medical needs, and require essential or life-sustaining medications. 	Further, a jury could
reasonably infer from the lack of medication administration records, medical evaluation or
treatment records, or any records from medical care providers except for a single visit to the
Arkansas Heart Hospital Clinic on August 15, 2023, that Defendant Parker failed to adequately
supervise and train SCDC staff regarding the provision of medication and medical care in general.
D. 	Qualified Immunity
“Government officials performing discretionary functions, generally are shielded from
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liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” 	Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). 	Qualified immunity balances two important interests: the need to hold
public officials accountable when they exercise power irresponsibly and the need to shield officials
from harassment, distraction, and liability when they perform their duties reasonably. 	Id. 	“The
qualified immunity standard ‘gives ample room for mistaken judgments’ by protecting ‘all but the
plainly incompetent or those who knowingly violate the law.’” 	Hunter v. Bryant, 502 U.S. 224,
229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341-43 (1986)).
In evaluating whether qualified immunity applies, the Court asks two questions: (1)
whether the facts shown by the plaintiff make out a violation of a constitutional right; and (2)
whether the right was clearly established at the time of the defendant’s alleged misconduct. 	The
questions may be answered in either order. 	Pearson v. Callahan, 555 U.S. 223, 236 (2009).
“When there are multiple defendants who played limited roles in the conduct complained of, the
determination whether an individual defendant is entitled to qualified immunity is based upon that
defendant’s knowledge and conduct at the time or times he or she participated in that conduct.”
Cannon v. Dehner, 112 F.4th 580, 586 (8th Cir. 2024), petition for cert docketed (Dec. 20, 2024).
Here, the first question has been answered. 	There are genuine issues of material fact as to
whether McCutcheon’s constitutional rights were violated by the Defendants.
“A clearly established right is one that is sufficiently clear that every reasonable official
would have understood what he is doing violates that right.” 	Mullenix v. Luna, 577 U.S. 7, 11
(2015) (internal quotation marks and citation omitted). 	What is clearly established law is not to
be defined “at a high level of generality,” Kisela v. Hughes, 584 U.S. 100, 104 (2018) (internal
quotation marks and citation omitted), but rather, the Court looks to controlling case law or “a
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robust consensus of cases of persuasive authority.” 	Dillard v. O’Kelley, 961 F.3d 1048, 1052 (8th
Cir. 2020) (internal quotation marks and citation omitted). 	It is not necessary that there be a case
precisely on point. 	Id. at 1053.
1. 	Prescription Medication
It is undisputed that McCutcheon has a constitutional right to adequate medical care. 	The
cases are clear that this right extends to access to prescribed medication. 	See e.g., Dadd v. Onoka
Cty., 827 F.3d 749 (8th Cir. 2016). 	In Krout v. Goemmer, 583 F.3d 557, 567 (8th Cir. 2009), the
Court stated that “[i]n the context of medical care, deliberate indifference may include
intentionally denying or delaying access to ... treatment or medication that has been prescribed.”
Id. (internal quotations and citations omitted). 	In Presson v. Reed, 65 F.4th 357, 368 (8th Cir.
2023), the Court again recognized that the knowing failure to administer prescribed medication
could constitute deliberate indifference. 	It further stated that existing case law gave “‘fair
warning’ that misadministering prescriptions or failing to provide [an inmate] with his prescribed
medication violated [his] constitutional rights.” 	Id. at 370. 	This was true even if the failure was
based on detention center policy. 	Id. 	See also White v. Labelle, No. 1:22-cv-01007-CBK, 2024
WL 1538118 (D.S.D. Apr. 9, 2024). 	As the court in White stated, “[t]here is not doubt that the
right to have access to prescribed medications is clearly established.” 	White, 2024 WL 1538118
at 2.
The Presson case is instructive on the issue of medication distribution. 	Like this case, the
Eighth Circuit pointed to deficiencies in the records. 	The Eighth Circuit noted there was a jail
administration record that showed medications were administered; however, it did “not specify
what medications were administered to Presson on these dates and times.” 	Presson, 65 F.4th at
362. 	Note was also made that the administration record sometimes showed Presson was given
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medication once a day, but on other days two or three times at varying times. 	Id. 	The facts in
Presson showed that Presson never received one medication, was given another medication more
times than prescribed, and suffered serious health consequences as a result. 	Id. at 363-63.
Although the facts in Presson at first glance might appear to be more egregious than those
in this case, the heart medications at issue in this case were life-sustaining medications, and there
are no medication administration records at all. 	No record shows the names of the medications
McCutcheon brought with him, the number of doses of each medication he brought, or of the list
Defendant Martinez asserts he sent to Elkin for approval. 	As previously noted, the medication
refill orders are difficult to read; the refills are not ordered in any consistent pattern with refill
orders sometimes being made only once a month, sometimes two times a month, and sometimes
four times in a month; there are no refill orders covering December 2023 through March of 2024;
and one undated refill record indicates the SCDC completely ran out of two medications. 	To
determine whether the SCDC even had enough of McCutcheon’s medications to distribute to him
daily would require the Court to create a excel spreadsheet. 	Such is not the duty of the Court.
Defendants are not entitled to qualified immunity on the medication claim.
2. 	Medical Care and Treatment
With respect to medical care, it is clearly established that an inmate has the right to
treatment for serious and painful conditions. 	See e.g., Williams v. York, 891 F.3d 701, 707 (8th
Cir. 2018) (dental condition). 	In Johnson-El v. Schoemehl, 878 F.2d 10043, 1055 (8th Cir. 1989),
the Court recognized that “[d]elay in the provision of treatment or in providing examinations can
violate inmates’ rights when the inmates’ ailments are medically serious or painful in nature.”
See also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (“[D]elays in treatment of painful
medical conditions, even if not life-threatening, may support an Eighth Amendment claim”).
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Defendants had fair warning that failure to provide treatment for serious medical conditions
violated the constitution. 	See e.g., Dadd, 827 F.3d at 757.
The Court agrees, however, that Defendants Martinez and Henry are entitled to qualified
immunity on McCutcheon’s claims he was not taken to his cardiologist when required, was denied
access to the latitude communicator, and was denied treatment for his hernia. 	The Court turns to
the question of whether Defendant Parker is entitled to qualified immunity on these claims.
Here, Defendant Parker was aware from McCutcheon’s requests/grievances that he missed
an appointment with his cardiologist, and although she explained the reasoning, according to her
affidavit, McCutcheon was not seen by his cardiologist until October 24, 2023, more than four
months after the scheduled June 12, 2023, appointment. 	McCutcheon was seen at the Arkansas
Heart Hospital Clinic on August 15, 2023. 	This is the only record regarding McCutcheon’s
medical treatment that was submitted to the Court. 	This record further emphasizes the necessity
of the continuity of care and the seriousness of McCutcheon’s heart condition. 	(ECF No. 31-4 at
11). 	The medical notes indicate McCutcheon’s records regarding his heart valve repair and tests
including an LHC (left heart catheterization) and ECHO (echocardiogram) should be obtained.
(ECF No. 31-4 at 11). 	The record further indicates McCutcheon was to be seen by Dr. Scott Bean
for a device check and discussion of “antiarrhythmies” on December 7, 2023. 	Id. 	There is no
indication McCutcheon was transported to this appointment. 	(ECF No. 31-1 at 3).
The only appointment in December is listed as being with McCutcheon’s “hernia doctor
regarding surgery.” 	(ECF No. 31-1 at 3). 	The records regarding this appointment were not
submitted. 	Thus, the Court has no idea if the doctor wanted to schedule surgery immediately or
if he believed surgery could be done later. 	If the doctor concluded the surgery should be done
immediately, failure to follow the doctor’s advice would constitute a denial of medical care and
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not just the delay in medical care.
There are no other appointments until March 19, 2024. 	(ECF No. 31-1 at 3). 	Defendant
Parker states that all medical records the SCDC has for McCutcheon are attached as exhibits.
(ECF No. 31-1 at 4). 	On McCutcheon’s May 9, 2023, medical request, however, someone wrote
“please get medical records.” 	(ECF No. 31-4 at 6). 	The same notation was made on
McCutcheon’s September 27, 2023, medical request. 	Id. at 16. 	Despite these notations, there is
no indication any effort was made to obtain these records.
The record leaves open too many questions of fact regarding what McCutcheon’s
physicians’ orders were and whether they were complied with. 	The record establishes that
McCutcheon continued to suffer chest pain and severe pain from his hernia. 	Based on the
summary judgment record, Defendant Parker is not entitled to qualified immunity.
E. 	Official Capacity Claim
The Court notes that in claim one of his Complaint, McCutcheon indicates he is suing the
Defendants in their individual capacities only. 	(ECF No. 1 at 5). 	McCutcheon, however, asserts
a second overlapping claim where he has failed to indicate the capacity in which he is suing the
Defendants. 	In the absence of a clear statement that McCutcheon is suing Defendants in their
individual capacity, the Court must construe this to be an official capacity claim. 	Johnson v.
Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (absent an express statement that public
servants are being sued in their individual capacities, the suit is construed to be against the
Defendants in their official capacities).
“A suit against a public employee in his or her official capacity is merely a suit against the
public employer.” 	Johnson, 172 F.3d at 535. 	Here, all Defendants are employed by Searcy
County, Arkansas. 	“Section 1983 liability for a constitutional violation may attach to a
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municipality if the violation resulted from (1) an ‘official municipal policy,’ (2) an unofficial
‘custom,’ or (3) a deliberately indifferent failure to train or supervise.” 	Corwin v. City of Indep.,
Mo., 829 F.3d 695, 699 (8th Cir. 2016) (citations omitted).
Here, the Complaint lacks any factual allegations regarding a custom or policy of Searcy
County which resulted in the alleged constitutional violations. 	The last basis for governmental
liability is the failure to train or supervise the offending actor or actors who caused the deprivation.
In Parrish, the Court set forth the requirements to establish governmental or official capacity
liability based on a failure to train. 	Parrish v. Ball, 594 F.3d 993, 997 (8th Cir. 2010). 	It stated
that a government may be subject to liability for inadequate training of its employees where:
(1) the [county’s] ... training practices [were] inadequate; (2) the
[county] was deliberately indifferent to the rights of others in
adopting them, such that the “failure to train reflects a deliberate or
conscious choice by [the county]”; and (3) an alleged deficiency in
the ... training procedures actually caused the plaintiff’s injury.
Id. (citations omitted).
Searcy County’s act in contracting with Elkin to provide medical care at the facility does
not relieve the County of its constitutional obligation to provide medical care. 	See West v. Atkins,
487 U.S. 42, 56 (1988) (“Contracting out prison medical care does not relieve the [county] of its
constitutional duty to provide adequate medical treatment to those in its custody, and it does not
deprive the [county’s] prisoners of the means to vindicate their Eighth Amendment rights”).
While the record contains no evidence about the training Defendants received, and their failure to
follow their own policies does not necessarily equate to a constitutional violation, given the lack
of records regarding the administration of medication to McCutcheon and his medical care or
treatment, a jury could reasonably conclude that the Defendants were inadequately trained in the
provision of medical care and that this lack of training resulted in the violation of McCutcheon’s
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constitutional rights. 	Searcy County’s failure to implement a policy to make sure inmates with
serious medical needs are promptly treated may also establish a failure to provide adequate medical
care. 	See e.g., Long v. Cty. of Los Angeles, 442 F.3d 1178, 1190 (9th Cir. 2006) (denying
summary judgment regarding County’s failure to implement policies for responding to medically
unstable patients, for prompt assessment if treatment is refused, and for transfer of medically
unstable patient). 	Defendants have failed to establish they are entitled to summary judgment on
the official capacity claim.
F. 	Physical Injury Requirement
Defendants also argue that based on the physical injury requirement of the Prison Litigation
Reform Act (“PLRA”) McCutcheon is limited to the recovery of nominal damages because he has
made no showing of any physical injury. 	(ECF No. 32 at 13). 	Section 1997e(e) of the PLRA
provides as follows: “No Federal civil action may be brought by a prisoner confined in jail, prison,
or other correctional facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury.” 42 U.S.C. § 1997e(e). 	The Eighth Circuit has interpreted §
1997e(e) as “limiting recovery for mental or emotional injury in all federal actions brought by
prisoners.” 	McAdoo v. Martin, 899 F.3d 521, 525 (8th Cir. 2018) (citation omitted). 	Section
1997e(e) requires more “than a de minimis physical injury.” 	Id.
McCutcheon’s chest pain required emergency medical treatment on one occasion and, at
least according to Defendants, multiple other visits to medical professionals for treatment.
Without more information, the Court cannot determine whether McCutcheon’s chest pain and
related symptoms amounts to more than a de minimis physical injury. 	With respect to his hernia,
McCutcheon indicates it tripled in size during his incarceration at the SCDC. 	This constitutes a
physical injury. 	Defendants are not entitled to summary judgment on this issue.
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IV. 	CONCLUSION
For the reasons discussed above, it is RECOMMENDED that Defendants’ Motion for
Summary Judgment (ECF No. 31) be GRANTED in part and DENIED in part. 	Specifically,
Defendants Martinez and Henry are entitled to qualified immunity on McCutcheon’s claim that he
was not provided adequate treatment for his chest pain and hernia. 	In all other respects, the
Motion should be denied.
Status of Referral: The referral terminates upon the filing of this Report and
Recommendation.
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 22nd day of January 2025.
/s/	
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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