Shell v. Otwell et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
ROBERT D. SHELL 	PLAINTIFF
v. 	Civil No. 4:23-cv-04053-SOH-BAB
JAIL ADMINISTRATOR STEVEN OTWELL;
LIEUTENANT GHORMLEY; NURSE PRACTITIONER
DARRELL WAYNE ELKIN; GUARD KATIE SHEETS;
GUARD JACKSON CORNISH;
AND GUARD WILL HARBERSON 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Defendants Ghormley, Cornish, Otwell, Sheets, and Harberson’s0F
1
Motion for Summary Judgment (ECF No. 58) and Separate Defendant Elkin’s Motion for
Summary Judgment (ECF No. 62). Plaintiff has responded. (ECF Nos. 67). Defendants did not
reply. Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O.
Hickey, Chief United States District Judge, referred the instant motion to the undersigned for the
purpose of making a Report and Recommendation.
For the reasons outlined below, the undersigned recommends both County Defendants’
(ECF No. 58) and Separate Defendant Elkin’s (ECF No. 62) Motions for Summary Judgment be
granted and all of Plaintiff’s claims should be dismissed with prejudice.
1 Hereinafter collectively “County Defendants.” Also, Plaintiff named Defendant Guard Jackson
and Defendant Guard Will, but these Defendants full names were identified in County Defendants’
Answer as Defendant Guard Jackson Cornish and Defendant Guard Will Harberson. 	(ECF No.
10). Accordingly, the Court will refer to them individually as Defendant Cornish and Defendant
Harberson herein.
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I. PROCEDURAL BACKGROUND
Plaintiff is currently incarcerated in the Benton County Detention Center in Bentonville,
Arkansas. In his original Complaint, Plaintiff made claims related to his incarceration in both the
Nevada County Detention Center (hereinafter “NCDC”) and the Hot Springs County Detention
Center (hereinafter “HSCDC”). (ECF No. 1). The Court then severed Plaintiff’s claims directing
that a new case be opened in the Texarkana Division of this Court, and that Plaintiff file an
Amended Complaint herein alleging only his Nevada County claims. (ECF No. 2). Plaintiff did
so on May 23, 2023. 	(ECF No. 4). 	His claims in this lawsuit stem from alleged constitutional
rights violations which occurred during his incarceration at the NCDC in Prescott, Arkansas.
Plaintiff names six Defendants in his Complaint: Nurse Practitioner Darrell Wayne Elkin,
Jail Administrator Steven Otwell, Lieutenant Ghormley, Guard Katie Sheets, Guard Jackson
Cornish and Guard Will Harberson. (ECF No. 4, pp. 2-3).
In 	Claim One, 	Plaintiff states Separate Defendant Elkin, and 	County Defendants
Ghormley, Otwell, and Sheets denied him medical care and violated his constitutional rights
through his conditions of confinement from November 28, 2022 through the “present.” (ECF No.
4, p. 4). 	Plaintiff also alleges all these Defendants denied him the right to be free from self-
incrimination; subjected him to unlawful attempts to obtain confessions; and denied him access to
a law library. Id. Finally, Plaintiff makes an official capacity claim related to his Claim One.
In Claim Two, Plaintiff claims Separate Defendant Elkin, and County Defendants
Ghormley and Otwell denied him private phone calls to his attorney which prevented Plaintiff
from getting medical care. Plaintiff also makes an official capacity claim related to Claim Two.
Id. at 5-6.
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In Claim Three, Plaintiff claims County Defendants Sheets, Harberson, Cornish, and
Ghormley violated his constitutional rights on November 14, 2023 and November 15, 2023 when
they denied him access to a doctor and failed to transport him to the emergency room. Id. at 7-8.
Finally, Plaintiff request both compensatory and punitive damages in his Amended
Complaint. Id. at 9.
County Defendants filed their Motion for Summary Judgment, Brief in Support, and
Statement of Indisputable Facts on June 25, 2024. (ECF Nos. 58-60). County Defendants argue:
(1) they were not deliberately indifferent to Plaintiff’s serious medical needs because they did not
consciously disregard Plaintiff’s serious medical needs; (2) they did not violate Plaintiff’s Fifth
Amendment right to be free from self-incrimination; (3) they did not deny Plaintiff access to the
courts; (4) County Defendants are entitled to qualified immunity; and (5) Plaintiff failed to state
any official capacity claims. (ECF No. 59).
On June 26, 2024, Plaintiff was ordered by the Court to respond to the County Defendants’
Motion for Summary Judgment. (ECF No. 61). Specifically, Plaintiff was instructed:
Defendants have filed a Motion pursuant to Rule 56 of the Federal Rules of Civil Procedure
asking the Court to decide part or all of this case without a trial. The Motion is based on
the written evidence, including affidavits, submitted in support of the Motion or is based
on the argument that you are unable to offer admissible evidence in support of your claims.
You must respond to this Motion. If you do not, the claims in your case may be dismissed
without a trial. If the claims are dismissed, you may never again assert the same claims set
forth in your Complaint against the same Defendants.
To oppose a Motion for Summary Judgment you may not simply rely on the allegations in
your Complaint. You must submit evidence, such as records, affidavits, discovery
responses, or other documents, opposing the facts asserted by the defendants and setting
out specific facts to support your claims. If you have any evidence to support your claims,
now is the time to submit it by attaching it to your response as exhibits.
Any written statements must be in the form of affidavits. An affidavit is a sworn statement
based on personal knowledge setting forth facts relevant to your claims. An affidavit must
be either: (a) sworn and subscribed to by a notary public or (b) signed under penalty of
perjury. You may submit your own affidavit and the affidavit of others.
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You must also file a separate Statement of Facts in Dispute which lists: (a) any
disagreement you have with the numbered factual statements contained in the Statement of
Undisputed Facts filed by the Defendants; and (b) any other disputed facts that must be
resolved at a hearing or trial. If you dispute any facts contained in the Defendants numbered
Statement of Undisputed Facts, you must identify the number of the paragraph you dispute
and you must explain why you dispute the statement.
Your Statement of Disputed Facts is not the same as an affidavit unless your Statement of
Facts is signed before a notary public or signed under penalty of perjury.
If you intend to rely on any documents that were previously filed with the Court, you must
specifically refer to the documents by the ECF No. and page number, for example ECF
No. 8 at p. 2. The Court will not look through the entire case file to locate a document
supporting your factual statements.
You may also make any legal arguments in support of your claims. You are not required
to, but may, refer the Court to case law.
If you do not respond, this is the same as failing to present any evidence in your favor at
trial. Your case may be dismissed and judgment may be entered in favor of the Defendants
without a trial. If you need more time to respond, you must file a motion requesting an
extension of time before the due date set by the Court.
(ECF No. 61) (emphasis in original). Plaintiff’s response to County Defendants’ Motion was due
on July 17, 2024. Id.
Separate Defendant Elkin filed his Motion for Summary Judgment, Brief in Support, and
Statement of Undisputed Facts on June 28, 2024. (ECF Nos. 62-64). Separate Defendant Elkin
argues: (1) he provided Plaintiff with adequate medical care; (2) he was not deliberate indifferent
to Plaintiff’s medical needs; and (3) he did not consciously disregard Plaintiff’s serious medical
need. (ECF No. 63).
The Court entered an Order to respond to Separate Defendant Elkin’s Motion on July 1,
2024. 	(ECF No. 65). 	This Order provided the same instructions as the Court’s June 26, 2024
Order to respond to County Defendants’ Motion. 	Plaintiff’s Response to Separate Defendant
Elkin’s Motion was due on July 22, 2024. Id.
Plaintiff failed to respond to either Order to respond to the motions for summary judgment,
and the Court entered an Order to Show Cause on July 23, 2024. Plaintiff was again advised that
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his failure to respond to the Defendants’ Motions for Summary Judgment could result in the
dismissal of his case. (ECF No. 66).
On July 24, 2024, Plaintiff filed a document titled “Response to Motion for Summary
Judgment” which proports to respond to “Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies, filed by defendants, Steve Otwell, Lt. Ghormley, Katie Sheets, Jackson
Cornish, and Will Harberson.” 	(ECF No. 67). 	In his Response, Plaintiff argues he should be
excused from the Prison Litigation Reform Act’s exhaustion requirement, because the NCDC
grievance procedure was unavailable to him. Id. Plaintiff did not submit a separate statement of
facts, nor did he execute his Response under penalty of perjury or have it properly sworn and
subscribed to by a notary public.1F
2 (ECF No. 67).
The only communication Plaintiff submitted to the Court since his Response in July 2024
is a change of address in September 2024. (ECF No. 71).
II. FACTUAL BACKGROUND
The only facts available to the Court on the current record are those factual allegations
made by Plaintiff in his verified Amended Complaint, and those produced by Defendants in
support of their respective Motions.
A. Plaintiff’s Factual Allegations in his Verified Complaint
The Court must consider the facts set forth in Plaintiff's verified Complaint in ruling on the
Summary Judgment Motion. A verified complaint is the equivalent of an affidavit for summary
judgment purposes. 	See, e.g., Roberson v. Hayti Police Dep't., 241 F.3d 992, 994-95 (8th Cir.
2 There is not a Motion for Summary Judgment on the Issue of Exhaustion pending before the
Court, nor did any Defendant file any such motion in this matter.
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2001). As the Court in Roberson pointed out, “[a]lthough a party may not generally rest on his
pleadings to create a fact issue sufficient to survive summary judgment, the facts alleged in a
verified complaint need not be repeated in a responsive affidavit to survive the summary judgment
motion. Id. The Court will “piece[ ] together [Plaintiff's] version of the facts from the verified
complaint....” McClanahan v. Young, No. 4:13-cv-04140, 2016 WL 520983, *1 (D.S.D. Feb. 5,
2016). 	Those portions of the Defendants' statement of material facts that do not conflict with
[Plaintiff's verified complaint] are deemed admitted.” (Id.).
Plaintiff specifically alleges the following in his Claim One, from “November 28, 2022 to
present:”
Since being transported and held in this facility, Darrell Wayne Elkin, Lieutenant
Ghormley, and Steve Otwell are refusing to have me thoroughly and properly treated for
the grade 5 brain arterioveinous malformation, aneurysm, and epilepsy. They are refusing
me 	transport 	to 	a 	neurologist 	or 	my 	neurosurgeon 	for 	X-Rays 	and 	CT-Scans,
embolizations, and resectioning surgery that I am supposed to have. 	I could have
already[y] had a cratiotomy with my resectioning surgery and recovered from it by now.
Darrell Wayne Elkin, Lieutenant Ghormley, and Steve Otwell are keeping me from getting
transported to a neurologist or my neurosurgeon and in doing so denying me medical care.
This is causing further damage to my vision and to my brain.
(ECF No. 4, p. 4-5) (errors in original). For his official capacity claim Plaintiff alleges:
Denial of medical care, humane treatment and a healthy, safe, and secure environment.
Denial of my right to be secure from self incrimination and to not be subjected to unlawful
attempts to obtain statements and or confess while incarcerated.
Id. at 5 (errors in original).
In Claim Two, Plaintiff alleges the following occurred from November 28, 2022 to the
present:
Someone made calls from the front of the jail that was not to their attorney and now they
are refusing to let me go to the private lawyer court room to call my paid attorney.
Lieutenant Karen Ghormley and Steven Otwell have changed jail policy so that I cannot
get in touch with my attorney when I need to.
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This keeps me from getting my lawyer to get me medical help and further medical care for
the grade 5 brian arterioveinous malformation, aneurysm, and epilepsy.
This is causing further damage to my sight and causing further damage to my brain. It is
also keeping me from getting the embolization treatment procedures and resectioning I
need.
(ECF No. 4, p. 6) (errors in original). For his official capacity claim Plaintiff states:
Denial of medical care, humane treatment and a healthy, safe and secure environment,
Denial of my right to be secure from self-incrimination and to not be subjected to unlawful
attempts to obtain statements and or confess while incarcerated.
Id. at 7 (errors in original).
In Claim Three, Plaintiff alleges, on November 14th and 15th, 2023 that Defendants Sheets,
Harberson, Cornish, and Ghormley denied his constitutional rights by:
I was denied access to a doctor and emergency services while having a focal seizure,
migraine, dizziness, loss of sight, tingling in my neck and face, flashing and blindness in
my sight when I could see, light sensitivity etc. I was put in a rubber room for “observation”
which is more like medical punishment by Katie Sheets, guard Will, and guard [Cornish]
overnight until after noon the following day. My meds were not on the Kart and they would
not call EMS to come help me when I asked.
(ECF No. 4, p. 8) (errors in original). For his official capacity claim, Plaintiff states:
Denial of medical care, denial of a healthy, safe, and secure environment, unconstitutional
conditions of confinement.
Id. (errors in original).
B. County Defendants’ Summary Judgement Facts
Plaintiff was booked into the NCDC on November 29, 2023. (ECF No. 60-2). County
Defendant Ghormley, the jail administrator of the NCDC, testified in her affidavit, as supported
by the true and accurate copies of Plaintiff’s jail file, that Plaintiff was provided with ongoing
medical care and treatment from the medical staff at the NCDC throughout his incarceration. (ECF
No. 60-1, p. 1). Defendant Ghormley also testified that the County Defendants did not have any
personal involvement in Plaintiff’s medical care, but the NCDC staff did respond to Plaintiff’s
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requests and assist him in requesting medical care. 	Id. at p. 2. 	Finally, Defendant Ghormley
testified Plaintiff was routinely given access to his attorney by phone during his incarceration Id.
Plaintiff’s jail file attached to Defendant Ghormley’s Affidavit includes inmate requests,
grievance requests, and medical requests. 	The Court will list those relevant requests and
grievances here in chronological order. The Court notes some medical requests, but not all, are
attached again in the Plaintiff’s medical file under a different exhibit. Some of the handwritten
responses are noted on one copy but not the other. The Court will indicate this by citing to multiple
exhibits in those instances.
On November 30, 2022, Plaintiff submitted a medical request stating:
I have a large brain avm, an aneurysm, and epilepsy. I have had multiple seizures while in
hot spring county jail custody and was denied adequate or thorough treatment, such as ct
scans and s-rays and further treatment fot [sic] which i have a 1983 case in the united states
western district court with a judge assigned. I need help getting treatment further than just
medication for epilepsy and the mood or personality disorders. Can you please get me to a
radiology and neurology clinic so that i can get help with this mass in my head that causes
me blindness and flashing in my left eye, migraines, seizures, and other symptoms that
could lead to my death in here. Hot spring county wouldn’t help me. Will you help me here
please?
(ECF No. 60-4, p. 1) (errors in original). 	There is a handwritten note on this request dated
December 2, 2023 stating: “All are current med’s, No new SS due transfer here, Started yelling . .
. biting . . . .” 	Id. 	The author of this note is identified by County Defendants as a “third party
medical provider.” (ECF No. 59, p. 8).
On December 5, 2022, Plaintiff submitted a grievance stating:
I put in a medical request this morning like we were instructed to do and was not seen,
likely because the doctor is avoiding treating me for the aneurysm and brain avm in my
head that he has done nothing but push pills at me about it when i could have a rupture or
a hemorhagic stroke. I’m not taking adc time for medical treatment. And my sentencingis
none of this . . . doctor’s business so he can stop fucking asking me about it and do his job
ethically and have me treated by a specialist in neurology or neurosurgery. I could have
already had two more eboiztions and be recovering from a cratiotomy by now. I want to
see a different doctor other than this elkins person, please. Seriously. I need and have been
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trying to get help for seven plus months now. Will someone please get me some help from
a real doctor?
(ECF No. 60-3, p. 9) (errors in original). No response is noted.
Also on December 5, 2022, Plaintiff submitted a medical request stating:
I still need xrays and a ctscan on my head and further treatment on the aneurysm and
parietal occipital lobe with branches extending into the frontal lobe of my brain. I also have
scoliosis and severe back pain from sleeping on the floor with a single mat. I need medical
treatment from a neurological department at a hospital and i have been denied these
treatments and procedures since late april. I could have been done with my cratiotomy by
now which is why i am suing hot spring county jail and dr. Elkins.
(ECF No. 60-3, p. 10) (errors in original). No response noted.
On December 7, 2022, Plaintiff submitted a grievance stating:
I need to see another doctor, such as a neuroogist [sic] or my neurosurgeon at Arkansas
neuroscience institute. Dr. Elkins has been trying to coerce me into taking a plea or go to
adc to get medical treatment for over 6 months now [] just to try and keep me from being
transported to get treatments for an aneurysm and large brain avm that the county doesn’t
want to afford. Please get me another doctor who will actually be a doctor and do doctor
stuff instead of elkins.
(ECF No. 60-3, p. 9) (errors original). No response is noted.
Also on December 7, 2022, Plaintiff submitted a medical request stating:
I still need a neurologist or my neurosurgeon at arkansas neuroscience institute. Stop
breaking your hipocratical [sic] oath and stop denying me transport to get medical
treatment from my neurosurgeon or a neurologist and have my head ct scanned and x-rays
taken of the aneurysm and avm in my brain. Do doctorly stuff if you’re gonna be a doctor
or go home and finda [sic] new profession that you can actually be ethical and do
professionally. And work on growing some integrity while you’re at it. Try being more
than just a pill pusher.
(ECF No.60-3, p.10) (errors in original). No response is noted.
On February 17, 2023, Plaintiff submitted a general request stating:
Lt. Karen, I have been trying to get transport to a nerology [sic] clinic or an appointment
with my neurosurgeon, dr. Rammos at arkansas neuroscience institute for almost a year in
the first week of april and for some reason the “doctor”, nurse practitioner elkins, will not
get me throughand has even lied to me twice about getting me appointments. The best and
only thing he’s done for me was get me the diazapam which works most of the time most
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days, but i still need help with some issues I am still having and help getting the xrays and
ct scans on my head for the arterioveinous malformation and aneurism in my brain and
some epilepsy symptoms i still have trouble with. I have united healthcare and the
neurosurgeon. I was looking for a new primary care physician back from last november,
after my last procedure, until march and only missed my appointment because of whatever
got me all these charges last april. If you will make time to have a conversation with me at
your earliest convenience, i would really appreciate it. I do not want to go back to hot
spring county because the conditions, food, and even the staff are all far better here. And I
do not want to go back to chi st vincent north for anything because they nearly killed me
in the icu recovery. I hope to see you soon, i know you’re a very busy lady. Thank you
sincerely, robert shell.
(ECF No. 60-3, pp. 3-4) (errors in original). No response is noted.
On May 6, 2023, Plaintiff submitted a medical request stating: “I still need to be seen by a
neurologist or my neurosurgeon to have the mass, the aneurysm, and be more thoroughly treated
for focal seizures.” (ECF No. 60-3, p. 10; 60-4, p. 3). This request has handwritten notes by an
unidentified author dated May 7, 2023, stating: “No reports of seizures from staff. After good po
intake. Neuro grossly intact. No limitations. Calm [unintelligible] subject matter [unintelligible]
SS. PER EOM/WNL.” (ECF No. 60-4, p. 3)
On May 6, 2023 Plaintiff also submitted a grievance request stating:
I have been asking to see a neurologist or my neurosurgeon since april of 2022 and still
have not seen one. I need the mass and aneurysm to be checked out and to be treated for
epilepsy more thoroughly. I need to be seen by an actual doctor. Not justva [sic] nurse
practitioner.
(ECF No. 60-3, p. 11) (errors in original). No response is noted.
Finally, on May 6, 2023, Plaintiff submitted a medical request stating:
I missed another dose of my diazapam tonight. They had to llook through other envelopes
to pull my doses all month. I’m not sure if someone is stealing it or if it is just not being
filled properly or both. I could have a hemorhagic stroke if i have a seizure and the
aneurysm or the avm ruptures in my brain. I have been telling every staff member that they
would have to dig through other days for my dose and that i was running out this week and
needed it refilled. I need to see a neurologist or my neurosurgeon and have been trying to
since last april while i was in hot spring county jail. I have a grade 5 of 5 arterioveinous
malformation in my parietal occipital lobe, an aneurysm, epileppsy [sic], and mood and
personality disorders for which i have gotten no treatment other than diazapam, which I
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have built a tolerance for but still balances me out fora [sic] few hours a day during the
morning and evenings. Please help me get to a neurologist or my neurosurgeon and have
my diazapam filled.
(ECF No. 60-3, p. 11, 12) (errors in original). No response noted.
On May 16, 2023, Plaintiff submitted a medical request stating:
I still need to be referred to and seen by my neurosurgeon or a neurologist or both. I have
had multiple focal seizures and migraines-seizures while being in custody between hot
spring county and here at nevada county and i need an actual specialist, not just a nurse
practitioner to actually look at the mass in my brain and treat me.
(ECF No. 60-3, p. 12; 60-4, p. 5) (errors in original).
Additionally, on May 16, 2023, Plaintiff was placed on medical watch from midnight to
5:00 a.m. (ECF No. 60-4, p. 6). Defendant Harberson made notes of his observations of Plaintiff
every fifteen minutes during this time. Id. Plaintiff then submitted a grievance stating: “ I don’t
understand why i was not seen by a doctor today after being ‘observed’ all night In a rubber room
for having a focal seizure with an aneurysm in a brain arterioveinous malformation” (ECF No.
60-3, p. 13) (errors in original). No response is noted.
Defendant Harberson’s notes from Plaintiff’s medical watch indicate:
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On May 21, 2023, Plaintiff submitted a grievance request stating: “I need to see a
DOCTOR. Not a nurse practitioner for ct scans and xrays, embolizations and resectioning surgery
on my brain. Hot Springs needs to get motivated to have me seen by my neurosurgeon. This is a
denial of medical care.” (ECF No. 60-3, p. 13) (errors in original). Also on May 21, 2023, Plaintiff
submitted a medical request stating: “ I need to see my neurosurgeon or neurologist. I need to see
an actual, real DOCTOR, not just an incompetent nurse practioner (sic) who probably got his
degree online. Stop denying me real medical care.” (ECF No. 60-3, p. 12; ECF No. 60-4, p. 5).
On May 21, 2023, a NCDC medical personal wrote a handwritten note stating: “Neuro grossly
intact. 	No limitations noted. 	On all Rx med’s ordered. 	NO reports of seizure activity .or
[unintelligible] behavior/subject matter. Good po intake [unintelligible].” (ECF No. 60-4, p. 5).
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The Medication List attached to County Defendants’ Motion is for an unrelated inmate
instead of Plaintiff. (ECF No. 60-4, p. 8).
The County Defendants also produced the policy and procedures of the NCDC, but as
explained in the Court’s analysis below there is no need to list them herein. (ECF No. 60-6).
The County Defendants also produced the Affidavits of both officers that observed Plaintiff
on the night of May 15, 2023—County Defendants Sheets and Harberson. First, the Court notes
Plaintiff alleges his seizure activity in Claim Three occurred on November 14th and 15th of 2023
in his Amended Complaint. 	(ECF No. 4, p. 7). 	However, all of the County Defendants’
documentation related to the described event is dated May 14th and 15th of 2023. 	The events
described in the NCDC’s documentation correspond with the facts alleged by Plaintiff in his
Amended Complaint, and Plaintiff did not dispute this date in May. Accordingly, the Court will
rely on the documentation produced by Defendants as to the date of this event.
Defendant Sheets stated, in her Affidavit, that Plaintiff’s nighttime dose of meds was not
on her medical cart. Once she noticed this, she immediately contacted both Allcare Pharmacy and
the on-call jail nurse to see if they could get a same day delivery of the refill. (ECF No. 60-8, p.
1). The same night, Plaintiff began complaining of: blind spots in his vision; alternating pressure
in his head; light headedness; and hand spasms. County Defendant Sheets and County Defendant
Harberson checked on Plaintiff once they were alerted of his complaints. County Defendant Sheets
then contacted HSCDC to see if they wanted Plaintiff transported to the emergency room.2F
3
HSCDC instructed Defendant Sheets to place Plaintiff on medical watch and contact the medical
3 Defendant Sheets explained that Plaintiff was “on hold from Hot Spring[s] County, which meant
that Hot Spring County was responsible for his medical care.” (ECF No. 60-8, p. 1).
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provider, Separate Defendant Elkin. Id. at 1-2. Defendant Sheets contacted Separate Defendant
Elkin and fully informed him of the symptoms Plaintiff was reporting. Separate Defendant Elkin
instructed Defendant Sheets that transport to the emergency room was not currently necessary.
Instead, Separate Defendant Elkin advised Plaintiff should be put on medical watch in an isolation
cell and monitored regularly. Id. at 2. County Defendants Sheets and Harberson placed Plaintiff
in the medical watch isolation cell, monitored him, and logged his status every fifteen minutes
until their shift ended the next morning. Id.
Defendant Harberson testified in his Affidavit much the same as Defendant Sheets.
However, Defendant Harberson did add that during all relevant times of the night on May 15, 2023
Plaintiff was walking and talking of his own accord. (ECF No. 60-7, p. 2).
During his time in the NCDC, from November 29, 2023 through June 2023, Plaintiff made
approximately thirty (30) requests to call his lawyer. (ECF No. 60-3). However, he never filed a
grievance stating he was denied any of these requests or access to his attorney. Id. He did file one
grievance on June 25, 2023 stating that the law library was not working between November 28,
2022 and March 2023. (ECF No. 60-3, p. 13).
C. Separate Defendant Elkin’s Facts
Separate Defendant Elkin, the medical provider for the NCDC, testified in his Affidavit he
treated Plaintiff both at the NCDC and the HSCDC during the time frames indicated by Plaintiff’s
Amended Complaint. (ECF No. 64-1, p. 1). Separate Defendant Elkin does not dispute Plaintiff
suffered from a serious medical condition. (ECF No. 64, p. 2). Plaintiff, while an inmate at NCDC,
filed inmate requests, grievances, and medical requests on the jail’s KIOSK system. All requests
and grievances go through the NCDC jail administrator and then medical requests are placed in
Separate Defendant Elkin’s box at the jail. 	(ECF No. 64-1, p. 2). 	Separate Defendant Elkin
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explained he does not see grievances filed by inmates. Id. Separate Defendant Elkins visits the
NCDC one or two times per week. 	He retrieves the medical requests while at the NCDC,
interviews and examines the requesting inmates, and diagnosis and prescribes treatment for each
according to the “standard of care” for their medical issues. Id. Finally, Separate Defendant Elkin
explains he charts “by exception.” This means he only notes exceptions to baseline findings, and
if nothing is charted, it can be assumed all findings were baseline. Id.
Separate Defendant Elkin then goes on to testify regarding approximately nineteen (19)
meetings or “visits” with Plaintiff prior to his incarceration in the NCDC. These occurred while
Plaintiff was incarcerated in the HSCDC. Plaintiff has a separate case dealing with his medical
care while housed at the HSCDC, Civil No. 6:22-cv-06058-SOH-CDC, in which Separate
Defendant Elkin will have the opportunity to argue his care of Plaintiff during Plaintiff’s
incarceration at the HSCDC. Here, the Court is concerned only with the care provided to Plaintiff
from November 29, 2022 through May 2023 when he was incarcerated in the NCDC, and prior to
filing his Complaint.
However, Separate Defendant Elkin’s testimony regarding his prior treatment of Plaintiff
at the HSCDC is helpful to inform the Court that Separate Defendant Elkin spent extensive time
evaluating Plaintiff, reviewing Plaintiff’s medical records, and treating Plaintiff with medications
prior to Plaintiff’s transfer to the NCDC. Separate Defendant Elkin notes continuously at these
visits that Plaintiff had not missed any meals or yard calls, and that no neurological changes or
seizure activity was reported. Id.
Separate Defendant Elkin only produced one exhibit evidencing an evaluation of Plaintiff
while he was incarcerated at the NCDC. This evaluation was on June 23, 2023 after Plaintiff filed
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his Amended Complaint.3F
4 	(ECF No. 64-1, p. 31). 	The medical provider notes on this request
indicates “never saw pcp never had pcp prior to jail no limitations neuro grossly intact.”
Separate Defendant Elkin then testified Plaintiff was transferred from the HSCDC to the
Nevada County Jail in June of 2023. 	The record does not support this testimony. 	All records
produced by County Defendants indicate Plaintiff was an inmate in the NCDC from November
2022 through June 2023. (ECF Nos. 60-2; 60-3; 60-4). In compliance with County Defendants
timeline, Separate Defendant Elkin later testifies regarding interactions with Plaintiff that occurred
after June 2023 at the HSCDC. (ECF No. 64-1).
Finally, Separate Defendant Elkin states:
Each of Mr. Shell’s medical requests were answered and he was treated without deliberate
indifference to his medical needs. 	He was treated in a timely manner without regard to
bias or indifference. He was seen and evaluated more than 26 times. He was prescribed
appropriate medication.
(ECF No. 64-1, p. 8).
Attached to Separate Defendant Elkin’s Affidavit are Grievances from HSCDC, Medical
Requests from HSCDC, Inmate Request Forms from HSCDC, and the HSCDC Patient Profile for
Plaintiff. (ECF No. 64-1). The vast majority of these documents are dated outside of the dates
relevant to this Court’s consideration—either before Plaintiff was transferred to the NCDC or after
he was transferred out of the NCDC. 	However, if the Court is understanding the list of
prescriptions from HSCDC correctly (without any guidance from Separate Defendant Elkin in his
4 The Court is cognizant of the County Defendants representation that the Plaintiff was evaluated
by Dr. Elkin on at least three occasions related to his neurological complaints while at the NCDC,
and it is his findings that are noted on these medical requests submitted by County Defendants in
support of their Motion. 	(ECF No. 59, p. 10). 	Separate Defendant Elkin does not dispute this
representation by County Defendants, he simply fails to address it or include any further exhibits
showing he examined Plaintiff while he was housed at the NCDC. (ECF No. 64-1).
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Affidavit), Plaintiff did have a prescription for Diazepam and Valium for at least part of his stay
in the NCDC. (ECF No. 64-1, pp. 32-38).
D. Plaintiff’s Response
While Plaintiff argues in his Response that Defendants Elkin, Ghormley, and Otwell
refused to have him thoroughly and properly treated from the “grade 5 brain arterioveinous
malformation, aneurysm, and epilepsy,” he does not produce any additional verified facts to
dispute those facts presented by County Defendants or Separate Defendant Elkin. (ECF No. 67,
p. 2).
III. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the nonmoving 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).
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. "A case founded
on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.
“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
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for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007).
Under § 1983, a defendant may be sued in either his personal capacity, or in his official
capacity, or claims may be stated against a defendant in both his personal and his official
capacities. 	The type of conduct that is actionable and the type of defense available depend on
whether the claim is asserted against a defendant in his official or individual capacity. See Gorman
v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). 	“Claims against
individuals in their official capacities are equivalent to claims against the entity for which they
work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the
only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims
“are those which allege personal liability for individual actions by officials in the course of their
duties; these claims do not require proof of any policy and qualified immunity may be raised as a
defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff
must allege that the defendant acted under color of state law, and that the actor violated a right,
privilege, or immunity secured by the Constitution. 	West v. Atkins, 487 U.S. 42, 48 (1988);
Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).
IV. DISCUSSION
As Plaintiff’s allegations are somewhat convoluted, reasserted under multiple claims, and
asserted against different variations of the Defendants, the Court finds it helpful to first address
that Plaintiff has failed to state cognizable claims against any Defendant, across Claims One, Two,
or Three, regarding his rights against self-incrimination and access to the courts. Next, the Court
will address Plaintiff’s denial of medical care claim made in Claim Three against County
Defendants Sheets, Harberson, Cornish, and Ghormley. Finally, the Court will address Plaintiff’s
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Claim One for denial of medical care against Separate Defendant Elkin, and County Defendants
Ghormley, Otwell, and Sheets.4F
5
A. Self-Incrimination
In Claim One, Plaintiff claims he was denied his right to be free: (1) from self-
incrimination; and (2) from unlawful attempts to obtain statements or confessions while
incarcerated. 	(ECF No. 4, p. 4). 	Plaintiff makes no further factual allegations regarding self-
incrimination and confessions in Claim One. 	Id. 	In Claim Two, Plaintiff makes the same
allegation but again fails to assert any facts to support his claims.
As argued by the County Defendants, Plaintiff has not alleged he was compelled to be a
witness against himself in any criminal trial. (ECF No. 59, p. 12). “The Fifth Amendment made
applicable to the States by the Fourteenth Amendment, requires that ‘[n]o person ... shall be
compelled in any criminal case to be a witness against himself.’” Chavez v. Martinez, 538 U.S.
760, 766 (2003) (quoting U.S. Const. amend. V) (emphasis in the original) (internal citations
omitted). 	“Statements compelled by police interrogations of course may not be used against a
defendant at trial, but it is not until their use in a criminal case that a violation of the Self-
Incrimination Clause occurs.” 	Id. (internal citations and quotations omitted). 	“The privilege
against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of
criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately
5 Plaintiff also listed the phrase “unconstitutional conditions of confinement” in his Claim One and
Claim Three, however, he did not allege any factual allegations regarding the conditions of his
confinement. All of the facts alleged by Plaintiff in his Amended Complaint under Claim One and
Three relate to his denial of medical care claims. (ECF No. 4, pp. 4-5).
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impair that right, a constitutional violation occurs only at trial.” 	United States v. Verdugo-
Urquidez, 494 U.S. 259, 264 (1990) (internal citations omitted).
Here, there are no facts on the record indicating Plaintiff was compelled to be a witness
against himself in any criminal trial. Accordingly, Plaintiff has failed to state a cognizable claim
regarding his Fifth Amendment claims alleged in Claims One and Two of his Amended Complaint,
and such claims should be dismissed.
B. Access to the Courts
In Claim One, Plaintiff alleges he was denied access to the law library. Plaintiff did not
elaborate any further on this claim or make any further factual allegations regarding this claim.
(ECF No. 4, pp. 4-5). In Claim Two, Plaintiff states he was denied access to his attorney. In this
claim, Plaintiff alleges he was denied private conversations with his lawyer. Plaintiff states this is
the 	policy 	of 	County 	Defendants 	Ghormley 	and 	Otwell 	to 	deny 	these 	private 	attorney
conversations. Finally, Plaintiff alleges this denial of private calls with his attorney exacerbated
the denial of his medical care. (ECF No. 4, p. 6).
Plaintiff’s claims regarding the law library and attorney phone calls are construed as
access-to-court claims. Plaintiff clearly has a constitutional right to access the courts. See Myers
v. Hundley, 101 F.3d 542, 544 (th Cir. 1996) (citing Lewis v. Casey, 	518 U.S. 343 (1996)).
However, in order to state an access-to-court claim, Plaintiff must demonstrate he suffered
prejudice or actual injury because of the prison officials' conduct. See Lewis, 518 U.S. at 351-2;
see also Farver v. Vilches, 155 F.3d 978, 979-80 (8th Cir. 1998) (per curiam); Klinger v. Dep't of
Corr., 107 F.3d 609, 617 (8th Cir. 1997) (to prevail on access-to-courts claim, inmate must show
actual injury or prejudice even if denial of access to library is complete and systematic); McMaster
v. Pung, 984 F.2d 948, 953 (8th Cir. 1993). “To prove a violation of the right of meaningful access
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to the courts, a prisoner must establish the state has not provided an opportunity to litigate a claim
challenging the prisoner's sentence or conditions of confinement in a court of law, which resulted
in actual injury, that is, the hindrance of a nonfrivolous and arguably meritorious underlying legal
claim.’” Hartsfield v. Nichols, 511 F.3d 826, 831 (8th Cir. 2008) (internal quotation and citations
omitted).
The summary judgment record is devoid of any allegations or facts showing Plaintiff
suffered any prejudice or actual injury regarding a claim challenging Plaintiff’s sentence or
conditions of confinement. 	The alleged denial of law library access and private phone
conversations with his attorney did not prevent Plaintiff from filing the instant lawsuit challenging
his denial of medical care—the injury Plaintiff claims the limitation of attorney access
exacerbated.
Accordingly, the Court finds, based on the summary judgment record before it, there are
no genuine issue of material fact regarding Plaintiff’s claims related to the law library and access
to his attorney. 	Plaintiff has failed to state a cognizable access-to-court claim as alleged in his
Claims One and Two of his Amended Complaint, and such claims should be dismissed.
C. Denial of Medical Care
Plaintiff states two distinct denial of medical care claims in his Amended Complaint. First,
in Claim One, Plaintiff alleges County Defendants Ghormley, Otwell, and Sheets, along with
Separate Defendant Elkin, continuously denied him medical care from November 28, 2022 until
the “present” which the Court determines as May 23, 2023 when Plaintiff filed his Amended
Complaint. 	(ECF No. 4, p. 4). 	Second, in Claim Three, Plaintiff alleges County Defendants
Sheets, Harberson, Cornish, and Ghormley denied Plaintiff medical care on “November 14, 2023
& November 15, 2023.” (ECF No. 4, p. 8). The Court will take these two claims in reverse order.
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i. Law of Denial of Medical Care
In prisoner litigation, courts in the Eighth Circuit analyze denial of medical care claims for
pretrial detainees and convicted inmates both under the deliberate indifference standard of the
Eighth Amendment. See e.g., Morris v. Cradduck, 954 F.3d 1055 (8th Cir. 2020) (pretrial detainee
has the same rights to medical care under the Due Process Clause as an inmate has under the Eighth
Amendment). 	The Court therefore examines Plaintiff’s claims under the Eighth Amendment's
deliberate indifference standard. Id.
To succeed on this type of claim, Plaintiff must demonstrate (1) that he had an objectively
serious medical need, and (2) that the County 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). 	“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). 	“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 evan than gross negligence, but
less than 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.”
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Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). However, the “Constitution does not require jailers
to handle every medical complaint as quickly as each inmate might wish.” 	Jenkins v. Cty. of
Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009).
ii. Claim Three
In Claim Three, Plaintiff alleges County Defendants Sheets, Harberson, Cornish, and
Ghormley denied him access to a doctor and emergency services while he was having “focal
seizure, migraine, dizziness, loss of sight, tingling in my neck and face, flashing and blindness in
my sight . . . light sensitivity etc.” (ECF No. 4, p. 8). Plaintiff alleges County Defendants should
have sent him to the emergency room or called EMS when his medicine was not on the cart and
he experienced these symptoms. (ECF No. 4, p. 8). Plaintiff states in his Amended Complaint
this event occurred on “11-14-23 & 11-15-23.” Id. However, County Defendants’ evidence shows
this event occurred on May 15, 2023 and May 16, 2023. 	(ECF Nos. 60-4, p. 6; 60-7; 60-8).
Plaintiff does not dispute the May dates in his Response. (ECF No. 67).
First, County Defendants allege they are entitled to qualified immunity. 	Qualified
immunity “shields [a] government [official] from liability in a § 1983 action unless the official’s
conduct violates a clearly established constitutional or statutory right of which a reasonable person
would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009). Qualified
immunity protects “all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). “At summary judgment, qualified immunity shields
a law enforcement officer from liability in a § 1983 action unless: (1) the facts, viewed in the light
most favorable to the plaintiff, demonstrate the deprivation of a constitutional or statutory right;
and (2) the right was clearly established at the time of the deprivation.” Watson v. Boyd, 2 F.4th
1106, 1109 (8th Cir. 2021) (internal citation and quotations omitted).
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In County Defendants Sheets and Harbersons’ Affidavits, they both testify they responded
to Plaintiff’s complaints of blind spots in his vision, alternating pressure in his head, light
headedness, and hand spasms immediately upon learning of the complaints. (ECF Nos. 60-7; 60-
8). 	Also, Defendant Sheets called both HSCDC and Separate Defendant Elkin, the NCDC’s
medical provider, to inquire as to whether Plaintiff needed transferring to the emergency room for
treatment. 	Id. 	Defendants Sheets, Harberson, and Cornish then placed Plaintiff in a medical
observation cell and monitored him every fifteen minutes throughout their shift in compliance with
the directions provided by Separate Defendant Elkin. 	(ECF Nos. 60-7; 60-8). 	These facts are
undisputed by Plaintiff’s Amended Complaint. (ECF No. 4).
While the Court is unmoved by the HSCDC opinion that Plaintiff did not need emergency
room treatment, County Defendants Sheets, Harberson, and Cornish as nonmedical personnel, may
rely upon Separate Defendant Elkin’s expert medical opinion and instructions. 	It is well
established law in the Eighth Circuit that “[p]rison officials lacking medical expertise are entitled
to rely on the opinions of medical staff regarding inmate diagnosis and the decision of whether to
refer the inmate to outside doctors or dentists.” 	Holden v. Hirner, 663 F.3d 336, 343 (8th Cir.
2011). 	The undisputed facts before the Court indicated County Defendants Sheets, Harberson,
and Cornish responded quickly to Plaintiff’s medical symptoms by calling the jail’s medical
provider, and then followed the instructions provided to them by the medical provider. Therefore,
they are entitled to qualified immunity against Plaintiff’s Claim Three.
The record is also devoid of any facts indicating Defendant Ghormley participated in the
complained of actions in Claim Three. 	Defendant Ghormley is not liable just because she is
Defendants 	Sheets, 	Harberson, 	and 	Cornish’s 	supervisor. 	A 	claim 	of 	deprivation 	of 	a
constitutional right cannot be based solely on a respondeat superior theory of liability. See Monell
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v. Department of Soc. Servs., 436 U.S. 654, 694 (1978). “[A] supervisor is not vicariously liable
under 42 U.S.C. § 1983 for an employee's unconstitutional activity.” White v. Holmes, 21 F.3d
277, 280 (8th Cir. 1994); see also Whitson v. Stone Cnty. Jail, 602 F.3d 920, 928 (8th Cir. 2010)
(“In a § 1983 case, an official is only liable for his own misconduct and is not accountable for the
misdeeds of [his] agents under a theory such as respondeat superior or supervisor liability”)
(internal quotations omitted). 	Accordingly, Plaintiff has failed to allege a cognizable claim in
Claim Three against County Defendant Ghormley.
Finally, Plaintiff did not allege Claim Three against Separate Defendant Elkin, so whether
his instruction to monitor Plaintiff rather than transport him to the emergency room on May 15,
2023 was deliberately indifferent, is not before the Court for consideration regarding this claim.
Accordingly, there are no genuine issue of material fact related to Plaintiff’s Claim Three
and it should be dismissed as a matter of law.
iii. Claim One
Plaintiff’s Claim One for the continuous denial of medical care is asserted against both
County Defendants Ghormley, Otwell, and Sheets and Separate Defendant Elkin. Plaintiff asserts
all of these Defendants continuously denied him access to proper treatment from his neurologist
and neurosurgeon for his brain injury and also his epilepsy from November 28, 2022 through May
2023 when he filed his Amended Complaint. (ECF No. 4, pp. 4-5). Plaintiff asserts an extremely
narrow claim here. He is complaining that he did not receive the specific medical care of transport
to a neurosurgeon or a neurologist for the specific treatments of X-Rays, CT-Scans, embolizations,
and resectioning surgery. Id. Plaintiff does not complain of the medication he received, or failed
to receive, in the NCDC (this is so despite the inclusion of all the medical requests, inmate requests,
and grievances regarding medication included on the summary judgment record herein). Nor does
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Plaintiff complain the County Defendants interrupted any treatments prescribed by Separate
Defendant Elkin. Finally, Plaintiff does not even allege he was completely denied medical care.
Instead, Plaintiff only claims he was unconstitutionally denied the specific medical care he
believed necessary—transport to a neuro specialist and specific diagnostic testing.
It is well settled that “[i]nmates have no constitutional right to receive a particular or
requested course of treatment, and prison doctors remain free to exercise their independent medical
judgment.” Dulany v. Carnaham, 132 F.3d 1234, 1239 (8th Cir. 1997) (when a record contains
medical records that show treatment was provided and a physicians affidavit stating that the care
provided was adequate, an inmates’ belief that the care she received was inadequate is insufficient
to create a genuine issue of material fact). 	Additionally, mere disagreement with the treatment
provided cannot support a finding of deliberate indifference. 	Jolly v. Knudsen, 205 F.3d 1094,
1096 (8th Cir. 2000). 	Instead, the Plaintiff must show the Defendants actions were “so
inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.”
Dulany, 132 F.3d at 1241.
Separate Defendant Elkin has presented an Affidavit testifying he provided adequate
medical treatment to Plaintiff and was not deliberately indifferent to his serious medical needs.
(ECF No. 64-1). Additionally, the County Defendants produced evidence showing Plaintiff was
evaluated by Separate Defendant Elkin, or other NCDC medical personnel, at least three times
during the time frame at issue here and related to his neurological complaints. (ECF No. 60-4, pp.
1, 3, 5). The notes on these evaluations indicate Plaintiff was on all current meds, or had no reports
of seizure activity, and his “neuro” was “grossly intact.” Id. Finally, the record indicates Plaintiff
was receiving prescription medication for his seizures while housed at the NCDC. (ECF No. 64-
1, p. 35-38; 60-4, p. 2; 60-3, pp. 11-2). These facts are not disputed by Plaintiff in his Response,
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(ECF No. 67), or by the facts alleged in Plaintiff’s verified Amended Complaint, (ECF No. 4).
Plaintiff does not deny or claim he was not treated, his complaint is that he did not receive the
specific treatment of transport to a neurologist or neurosurgeon.
Accordingly, the Court finds Plaintiff’s Claim One, for denial of medical care asserted
against Separate Defendant Elkin, fails as a matter of law because mere disagreement with the
course of treatment does not rise to the level of a constitutional violation. See Jolly, 205 F.3d at
1096.
Additionally, as explained with Plaintiff’s Claim Three, the County Defendants are entitled
to rely on the expert opinions of their medical provider. See Holden v. Hirner, 663 F.3d 336, 343
(8th Cir. 2011). There is no evidence, on this record, to show the County Defendants interfered
with any treatments prescribed by Separate Defendant Elkin, or any other medical provider, or
denied Plaintiff access to medical care from Separate Defendant Elkin. 	Estelle v. Gamble, 429
U.S. 97, 104–05 (1976). 	Again, County Defendants simply did not provide Plaintiff with the
medical care of his choice—transfer to a neurologist and specific diagnostic treatments. This does
not rise to the level of deliberate indifference. See Jolly, 205 F.3d at 1096. Just as in Claim Three,
County Defendants are entitled to qualified immunity on Plaintiff’s Claim One, and such claim
should be dismissed. See Kulkay v. Roy, 847 F.35 637, 642 (8th Cir. 2017) (explaining the court
may start with either prong of the qualified immunity test and may end the analysis if either is not
met).
D. Official Capacity Claims
Since Plaintiff has failed to state any individual claim against any Defendant regarding any
of his claims, he cannot maintain an official capacity claim against any Defendant or the
Defendants’ employers. See Morris v. Cradduck, 954 F.3d 1055, 1060 (8th Cir. 2020) Sanders v.
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City of Minneapolis, Minn., 474 F.3d 523, 527 (8th Cir. 2007) (citing City of Los Angeles v. Heller,
475 U.S. 796, 799 (1986)). Furthermore, “[c]laims against individuals in their official capacities
are equivalent to claims against the entity for which they work; they require proof that a policy or
custom of the entity violated the plaintiff’s rights, and the only type of immunity available is one
belonging to the entity itself.” 	Id. Plaintiff did not cite or claim any policies or procedures of
Nevada County that violated his constitutional rights.
V. CONCLUSION
For the foregoing reasons, I recommend County Defendants’ Motion for Summary
Judgment (ECF No. 58) and Separate Defendant Elkin’s Motion for Summary Judgment (ECF No.
62) be GRANTED and all claims, both individual and official capacity, against Defendant Elkin
and County Defendants be DISMISSED with prejudice.
Referral Status: Referral should be terminated.
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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 8th day of January 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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