Robinson v. Otwell et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JAMES EARL ROBINSON 	PLAINTIFF
v. 	Civil No. 	4:23-cv-04042-SOH-CDC
JAIL ADMINISTRATOR STEVE OTWELL,
Nevada County Detention Center (NCDC);
DARRELL ELKIN, APRN, Contract Medical
Care Provider for the NCDC; and
LIEUTENANT KAREN GHORMLEY,
NCDC
DEFENDANTS
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff, James E. Robinson (“Robinson”), filed this civil rights action pursuant to 42
U.S.C. § 1983. 	He proceeds pro se and in forma pauperis. 	While he was incarcerated in the
Nevada County Detention Center (“NCDC”), Robinson contends Defendants violated his
constitutionally protected rights by not providing him with adequate medical and dental care.
The case is before the Court on the Motion for Summary Judgment filed by Separate
Defendant Elkin (ECF Nos. 30-32) and the Motion for Summary Judgment filed by the Nevada
County Defendants (ECF Nos. 34-36). Robinson has responded to both Motions. (ECF Nos. 42
& 43). 	A reply was filed by the Nevada County Defendants. 	(ECF No. 44). 	Pursuant to the
provisions of 28 U.S.C. §§ 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States
District Judge, referred this case to the undersigned for the purpose of making this Report and
Recommendation.
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I. 	BACKGROUND
Robinson was booked into the NCDC on November 10, 2023, on a parole violation and a
hold for transport to the Arkansas Division of Correction (“ADC”). (ECF No. 34-1 at 3); (ECF
No. 34-2 at 5).0F
1 He remained at NCDC until transferred to the ADC on May 15, 2023. (ECF No.
43 at 1).
A medical information sheet was completed at book-in. (ECF No. 34-1 at 4). Under officer
observations, it was noted Robinson had “obvious pain or injury.” Id. 	At the bottom of the form,
boxes were checked for arthritis, diabetes, heart conditions, high blood pressure, and psychiatric
disorder. Id. A comment indicates Robinson reported having kidney stones, four strokes, and did
not know the names or strengths of his prescribed medications. Id.
Defendant Elkin is an advanced healthcare practitioner who contracts with Nevada County
to provide medical services to inmates. 	(ECF No. 31-7 at 1). 	He indicates he is a licensed
healthcare practitioner and has been practicing in the correctional healthcare arena for the past
twenty-five years. Id. According to Defendant Elkin, inmates have access to a digital kiosk for
submitting requests, grievances, and medical requests. 	(ECF No. 31-7 at 1). 	Defendant Elkin
indicates the jail administrator, Defendant Otwell, reviews all submissions and “places any
medical requests concerning medical care into my box at the jail.” Id. As a rule, Defendant Elkin
states he never sees grievances. Id.
Defendant Elkin visits the NCDC once or twice a week, retrieves the medical requests from
his box, and begins “seeing inmates.” (ECF No. 31-7 at 2). Defendant Elkin states he interviews
and examines each inmate. He then forms his diagnosis and orders his “treatment according to the
1 All references to the summary judgment record are to the Case Management/Electronic Case
Filing (“CM/ECF”) document and page number.
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‘standard of care’ for their medical issues.” Id. Defendant Elkin does not indicate what, if any,
steps he takes to do an initial assessment of incoming inmates to ensure continuity of care.
Defendant Elkin states he charts by exception which means “only exceptions to my
baseline findings would be charted. If nothing is charted, that patient’s status is assumed to match
the baseline.” (ECF No. 31-7 at 2).
It appears the first medical request submitted by Robinson is dated November 12, 2022.
(ECF No. 31-1 at 1). 	Robinson states: “I have had [s]troke head hurts Real bad dizzy no balance
need medi[cation].” Id.
Defendant Elkin indicates his first visit with Robinson was on November 16, 2022. (ECF
No. 31-7 at 2).1F
2 	According to Defendant Elkin, Robinson complained of left flank pain and
reported a history of kidney stones. 	Id. 	Defendant Elkin prescribed an antibiotic, Cipro, and
Flomax, “an alpha blocker that acts as a smooth muscle relaxer to help the facilitation of ‘passing
the calculi.’” Id. Defendant Elkin states Robinson voiced no other concerns. Id.
Robinson next submitted a medical request on November 26, 2022. (ECF No. 31-2 at 1).
Robinson reports he had suffered four strokes one of which was recent. 	Id. 	He notes he had
already advised the jail of this, but it was not addressed, and neither were his complaints of
dizziness, falling, a head injury, and back pain. 	Id. 	Robinson stated he had appointments with
urology, neurology, and a cardiologist. Id. He indicated he was a very sick man and the jail was
taking the situation “lightly.” Id.
According to Elkin, on December 2, 2022:
I issued orders to obtain Mr. Robinson’s records from his primary care provider and the
ER records from Jefferson Regional Medical Center and Baptist Health in Little Rock. It
2 Defendant Elkin does not maintain a medical chart in written or digital form. Instead, he makes
a few handwritten, and difficult to decipher, notations on a print out of the inmate’s medical
request. See e.g., (ECF No. 31-1 at 1).
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was also noted that he was taking all medications now that he was taking before he was
arrested in November of 2022. It was also noted that he was requesting “fast track” (in an
effort to get OR’d out of jail) and his demeanor was rude, yelling, and threatening; therefore
the visit was ended.2F
3
(ECF No. 31-7 at 2-3).3F
4
On March 9, 2023, Robinson submitted a medical request regarding his teeth. (ECF No.
31-3 at 1).4F
5 	A note dated March 17, 2023, states “please see dentist” which Defendant Elkin
states was made by the jail nurse. Id. Another notation appears to be the name of the medication
Amexil. Id. Note was made that Robinson had no known allergies. Id. 	While Defendant Elkin
indicates Robinson was prescribed Amexil, an antibiotic, Defendant Elkin maintains he never saw
the March 9, 2023, medical request. (ECF No. 31-7 at 3). Further, he states he was never made
aware “by medical request, text message, or phone call of Mr. Robinson’s dental pain, change in
physical condition or change in neurological status.” (ECF No. 31-7 at 3). Defendant Elkin does
not indicate who at the NCDC, other than himself, had the ability to prescribe medication. Id.
The inmate medication log for Robinson indicates he was prescribed Amiodipine/Norvasc
once daily (1/30/2023 to 5/15/2023), Amoxicillin twice daily (2/18/2023 to 2/28/2023 and
3/19/2023 to 3/29/2023), Aspirin once daily (1/30/2023 to 5/15/2023), Ciprofloxacin/Cipro once
daily (11/19/2022 to 11/30/2022), Clindamycin twice daily (3/31/2023 to 4/10/2023), Lisinopril
3 Defendant Elkin does not state whether he personally saw Robinson on this occasion or merely
issued the order for the records to be obtained. 	There is no indication of who Defendant Elkin
directed to obtain these records.
4 No medical records from any of these providers are included in the summary judgment record.
Defendant Elkin’s affidavit is silent on the issue of whether the records were received and whether
he reviewed the records. 	Finally, the record of medications prescribed to Robinson does not
indicate he was continued on any medications he was receiving at the time he was incarcerated.
(ECF No. 31-6 at 1). The first prescriptions contained in the record were for Tamsulosin issued
on November 18, 2022, and then for Ciprofloxacin issued on November 19, 2022. Id. at 1-2.
5 Defendant Otwell by affidavit indicates the first two medical requests were contained in the
records of the NCDC. 	(ECF No. 34-1). He does not mention the March 2023 request. Id. He
does not indicate whether other requests or grievances exist. Id.
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once 	daily 	(5 	mg 	1/30/2023 	to 	5/15/2023, 	10 	mg 	2/18/2023 	to 	5/15/2023),
Methocarbamol/Robaxin 	twice 	daily 	(2/18/2023 	to 	5/15/2023), 	Tamsulosin 	once 	daily
(11/18/2022 to 5/15/2023), and Vistaril/hydroxyzine twice daily (1/30/2023 to 5/15/2023). 	(ECF
No. 31-6 at 1-2). 	According to a “inmate medical refusal” log covering November 10, 2022, to
May 15, 2023, Robinson refused various medications, or certain doses of the medications, on a
somewhat sporadic basis. (ECF No. 31-5 at 1-3). 	Specifically, Robinson refused Cipro on two
occasions, Aspirin on one occasion, Tamsulosin on seventeen occasions, Vistaril on four
occasions, and Methocarocarbamol on six occasions. (ECF No. 31-5 at 1-2).
During his deposition, Robinson testified that he put in several medical requests about his
stroke situation, but “[n]othing was ever done.” (ECF No. 34-2 at 6). Instead, Defendant Elkin
“cursed me out, told me I need to get out of there and—to bond out and get my medical problems
taken care of it.” 	Id. Robinson stated he got his medical requests and grievances before he left
the NCDC.5F
6 Id.
Approximately a week prior to his incarceration, Robinson indicated he had been seen at
Baptist Hospital emergency room in Little Rock and was told he suffered a stroke. (ECF No. 34-
2 at 7). After he was at the NCDC, Robinson stated that one-night he was dizzy, sick, and throwing
up, and he believed he was having another stroke. Id. at 7-8. Because he was never examined,
Robinson could not say whether he in fact suffered another stroke that night. Id. at 8. When asked
about his continuing symptoms, Robinson testified he had trouble walking without assistance. Id.
Robinson indicated he wanted officials to send him to a doctor and that the few times
Defendant Elkin came “[h]e cussed me out, and he never examined . . . me.” (ECF No. 34-2 at
6 Robinson submitted no medical requests or grievances with his responses to the summary
judgment motions.
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9). In fact, Robinson indicates Defendant Elkin never even “had hand on, no—no blood pressure
check. 	He done nothing.” Id. at 11. Instead, Defendant Elkin would stand in the hallway, ask
what Robinson’s problem was, and prescribe “some pills” which Robinson did not even “know
what they were for.” 	(Id. at 9 & 11). 	Robinson described Defendant Elkin as being “real
obnoxious.” Id. at 11. Robinson stated he was “getting sicker and sicker.” Id. at 12. Robinson
indicated Sergeant Kathy Hipp obtained his medical records but Defendant Elkin “never even
looked at them.” Id. at 15.
According to Robinson, he told Defendant Elkin that his teeth were abscessed, very painful,
and infected. (ECF No. 34-2 at 14). In response, Defendant Elkin stated that Robinson needed to
bond out and get his “medical situation taken care of.” Id. at 13. Defendant did nothing about it.
Id. at 14. Defendant Elkin did not say that Robinson needed to go to a dentist. Id. at 13. Robinson
never saw a dentist while he was in the NCDC. Id. at 12.
After he was transferred to the ADC, Robinson testified his issues were addressed. (ECF
No. 34-2 at 12). He indicates he had a CT scan and underwent several procedures for “the kidney
stones big around as golf balls in both my kidneys.” Id. He is using a walker and had four teeth
pulled. Id. at 7.
Robinson testified that he did refuse medications at times because he “didn’t know what
they were. I mean, he just prescribes somebody medication and don’t tell them what its for.” (ECF
No. 34-2 at 17).
When asked about his claims against Defendant Otwell, Robinson responded that
Defendant Otwell was the administrator. 	(ECF No. 34-2 AT 9). 	Robinson believed Defendant
Otwell should “know what’s going on it that place.” 	Id. at 10. 	Robinson was not angry with
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Defendant Otwell but Robinson believes he is entitled to justice. Id. 	Robinson wanted Defendant
Otwell to send him to a doctor. Id.
When asked about his claims against Defendant Ghormley, Robinson testified he told her
everything. 	(ECF No. 34-2 at 14).6F
7 	Defendant Ghormley merely said Robinson could see
Defendant Elkin. Id. Robinson wanted to be sent to a doctor. Id. at 15.
II. 	LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, the record “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Once
a party moving for summary judgment has made a sufficient showing, the burden rests with the
non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.
1999). A fact is “material” if it may “affect the outcome of the suit.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient
evidence to support a jury verdict in their favor.” Nat’l Bank, 165 F.3d at 607 (citing Anderson 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
7 Defendant Ghormley did not submit an affidavit.
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adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III. 	DISCUSSION
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States and, must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
The Court will address each summary judgment motion in turn.
A. Defendant Elkin’s Motion
Defendant Elkin moves for summary judgment on the following grounds: (1) the
undisputed facts do not equate to a constitutional violation; (2) he is entitled to qualified immunity;
and (3) no official capacity liability exists because he is not a public official and there is no
underlying individual liability.
1. 	No Constitutional Violation
The Constitution requires prison officials to provide pretrial detainees and convicted
prisoners with constitutionally adequate medical care. Hancock v. Arnott, 39 F.4th 482, 486 (8th
Cir. 2022). 	“What the Constitution considers ‘adequate’ in a prison or a jail is significantly
different than what a member of the general public would consider ‘adequate’ for his or her own
purposes.” Curtis v. Taylor, Case No. 4:22-cv-00328, 2023 WL 2499956, *4 (E.D. Ark. March
14, 2023). 	The Constitution “guarantees a minimal standard of care—pretrial detainees’ and
prisoners’ serious medical needs will not be ignored. Id. at 6. Officials may not turn a “blind eye
to unmet serious medical needs.” Id.
As Robinson was in convicted status, the Eighth Amendment’s deliberate indifference
standard applies to his claims. 	The deliberate indifference standard includes “both an objective
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and a subjective component: ‘[Robinson] must demonstrate (1) that [he] suffered [from]
objectively serious medical needs and (2) that the prison officials actually knew of but deliberately
disregarded those needs.’” Smith, 73 F.4th at 600.
To demonstrate that he suffered from an objectively serious medical need, Robinson must
show he “had been diagnosed by a physician as requiring treatment” or had an injury “that is so
obvious 	that 	even 	a 	layperson 	would 	easily 	recognize 	the 	necessity 	for 	a 	doctor’s
attention.” Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (citation omitted). 	Here,
Robinson reported several serious medical conditions when he was booked. Defendant Elkin does
not dispute that Robinson meets the objective prong of the deliberate indifference standard.
For the subjective prong, the deliberate indifference standard establishes a high threshold
that goes well beyond negligence or gross negligence. Landford v. Norris, 614 F.3d 445, 460 (8th
Cir. 2010). There must be evidence Defendant Elkin “recognized that a substantial risk of harm
existed and knew that [his] conduct was inappropriate in light of that risk.” Shipp v. Murphy, 9
F.4th 694, 703 (8th Cir. 2021) (internal quotations marks and citation omitted) (emphasis in
original). 	A mere disagreement with the course of medical care does not rise to the level of a
constitutional violation. “Grossly incompetent or inadequate care can constitute deliberate
indifference, as can a doctor’s decision to take an easier and less efficacious course of treatment.
Medical care so inappropriate as to evidence intentional maltreatment or a refusal to provide
essential care violates the eighth amendment.” Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).
In this case, Defendant Elkin argues he ensured Robinson was seen by either himself or an
unnamed nurse each time a medical request was submitted. (ECF No. 31 at 5). Defendant Elkin
qualifies this statement by indicating he did this each time he was aware of the medical request.
Id. 	As previously noted, in his affidavit, Defendant Elkin denies being aware of the medical
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request dealing with dental issues. This is true, he says, even though antibiotics were prescribed.
As Defendant Elkin was the medical contract provider, the question remains how a prescription
was issued without his knowledge of the condition at issue and authorization for the prescription
to be issued.
The record contains no information about the “nurse,” or whether the medical records once
obtained were reviewed by any party. 	Similarly, there exists no explanation for why the issues
raised by Robinson in the medical request were not discussed, no indication that the three requests
contained in the record were the only requests and/or grievances submitted by Robinson regarding
his medical conditions, and nothing to indicate arrangements had been made for Robinson to be
seen by a dentist (or even who was charged with making arrangements for an inmate to see the
dentist). There is nothing to indicate that Robinson received any treatment for his kidney stones
other than the prescriptions given on a single occasion, and no record of Robinson’s vitals being
taken even though changes were made to Robinson’s blood pressure medication.
Robinson maintains he kept getting sicker and sicker; that he was never examined by
Defendant Elkin or even had his vitals taken; that prescriptions were issued without his being
advised what conditions the medications were designed to treat or of possible side effects; that his
medical records were never reviewed by Defendant Elkin; and that he tried to inform Defendant
Elkin that the kidney stones were too large to pass and he was in severe pain. Once Robinson was
transferred to the ADC, his kidney stones required several surgical procedures, his dental condition
required the removal of four teeth, and he was given a walker to address his inability to ambulate
without assistance. 	Robinson admits he may have been rude and yelled at Defendant Elkin but
claims his conduct was a reaction to Defendant Elkin “being rude and yelling” at him. 	(ECF No.
42 at 2).
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Defendant Elkin does not address the initial time period when no treatment at all was given.
Instead, Defendant Elkin merely argues that he is entitled to summary judgment because Robinson
has failed to provide any “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 quotation marks and citations omitted).
The Eighth Circuit has stated that when a deliberate indifference claim is based on a delay
in medical treatment, the “objective seriousness of the deprivation” [is measured] by reference to
the effect of delay in treatment. To establish this effect, the inmate must place verifying medical
evidence in the record to establish the detrimental effect of delay in medical treatment.” Jackson
v. Riebold, 815 F.3d 1114, 1119-20 (8th Cir. 2016) (internal quotation marks and citations
omitted). 	Although Robinson has not submitted the ADC medical records, he has stated under
penalty of perjury that surgical procedures were required for his kidney stones, four teeth had to
be removed, and he was provided with a walker to ambulate. Mindful that Robinson is proceeding
pro se, the Court believes his verified statements are sufficient to illustrate the existence of a
genuine issue of material fact as to whether the delay in treatment had a detrimental effect on his
medical conditions.
Based on the scant summary judgment record, the Court cannot say no genuine issues of
material fact exist. Defendant Elkin is not entitled to summary judgment on the individual capacity
claim.
2. 	Qualified Immunity
Defendant Elkin next asserts he is entitled to qualified immunity. 	Unfortunately for
Defendant Elkin, the Eighth Circuit has concluded that medical care contractors are not entitled to
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assert the defense of qualified immunity. 	Davis v. Buchanan Cty., Missouri, 11 F.4th 604, 622
(8th Cir. 2021).7F
8 Defendant Elkin is not entitled to qualified immunity.
3. 	Official Capacity Claim
Defendant Elkin maintains he is entitled to judgment on this claim because he is not a
public official and there is no basis of individual liability. 	In his affidavit Defendant Elkin
indicates he was the APRN contracted by Nevada County, Arkansas, to provide medical care to
inmates. As such, he can be held liable in his official capacity if the failure to provide adequate
medical care was the result of a custom, policy, or failure to train or supervise on his part. 	See
e.g., Johnson v. Hamilton, 453 F.3d 967, 973 (8th Cir. 2006) (must be a showing that there was a
policy, custom, or official action of the medical care contractor that inflicted an actionable injury).
A myriad of questions – unanswered by the record – prevent a determination of whether
there is a basis of official capacity liability against Defendant Elkin. 	Nothing before the Court
addresses the terms of the contract; whether the other medical care providers were employed by
Defendant Elkin; whether Defendant Elkin was a medical care policy maker; whether Defendant
Elkin was responsible for ensuring medication was distributed properly at the NCDC; and who, if
anyone, reviewed the intake medical information completed by inmates booked into the facility.
Defendant Elkin is not entitled to judgment as a matter of law in his favor on the official capacity
claim.
8 Defendant Elkin also maintains he is entitled to qualified immunity in his official capacity. (ECF
No. 28 at 4). Even if independent contractors were entitled to assert qualified immunity, which
they are not, qualified immunity applies only to individual capacity claims. 	See e.g., Roach v.
Stouffer, 560 F.3d 860, 870 (8th Cir. 2009) (“immunity, either absolute or qualified, is a personal
defense that is available only when officials are sued in their individual capacities”) (internal
quotation marks and citation omitted).
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B. Motion for Summary Judgment by the County Defendants
Defendants Otwell and Ghormley argue they are entitled to qualified immunity because
they provided Robinson with medical care when he requested it even if it was not the treatment
Robinson wanted. 	(ECF No. 35 at 2-4). 	Although the official capacity claims are mentioned,
Defendants Otwell and Ghormley make no separate argument with respect to these claims. Id. at
1.
Qualified immunity shields government officials from liability for civil damages when
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 gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate the law.”
Stanton v. Sims, 571 U.S. 3, 5 (2013) (internal quotation marks and citations omitted). 	The
Defendants “are entitled to qualified immunity unless (1) the evidence, viewed in the light most
favorable to [Robinson], establishes a violation of a constitutional or statutory right, and (2) the
right was clearly established at the time of the violation, such that a reasonable official would have
known that his actions were unlawful.” 	Blazek v. City of Iowa City, 761 F.3d 920, 922 (8th Cir.
2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)).
1. 	Existence of a Constitutional Violation
The applicable deliberate indifference standard was set forth in some detail above and will
not be repeated here. Liability under § 1983 requires personal involvement in the constitutional
violations. 	Ashcroft v. Iqbal, 566 U.S. 662, 676 (2009) (a plaintiff “must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
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Constitution”); Clemmons v. Armontrout, 477 F.3d 962, 967 (8th Cir. 2007) (“Liability under
section 1983 requires a causal link to, and direct responsibility for, the deprivation of rights”). The
general responsibility for supervising the operations of a detention facility is insufficient to
establish personal involvement. Keeper v. King, 1300 F.3d 1309, 1314 (8th Cir. 1997).
Robinson concedes he had no personal interaction with Defendant Otwell. (ECF No. 34-
2 at 10). Instead, he has named Defendant Otwell because as jail administrator “he should know
what is going on in that place.” Id. at 9-10. With respect to Defendant Ghormley, Robinson states
he told her “everything” about his need for dental treatment.8F
9 Id. at 14. Additionally, Robinson
indicates Defendant Ghormley was standing there the time Defendant Elkin told him to bond out
to deal with his medical problems. Id. Robinson believes Defendants Otwell and Ghormley should
have sent him to a doctor not Defendant Elkin. Id. at 15.
Contracting out medical care or delegating to others the duties of providing medical care
does not relieve Nevada County of its affirmative obligation to provide adequate medical care.
West v. Atkins, 487 U.S. 42, 56 (1988). 	The medical page of Robinson’s booking information has
the answer “yes” after the question does arrestee have obvious pain or injury? (ECF No. 34-1 at
4). 	Boxes are checked indicating Robinson has arthritis, diabetes, high blood pressure, and a
psychiatric disorder. Id. In the comments, it is noted that Robinson reported having kidney stones
and four strokes. Id. While Robinson was on medication, he apparently did not know the “names
or strengths” of the medication. Id. Defendant Otwell’s affidavit contains no information about
the medical care contract Nevada County has with Defendant Elkin or how medical care is
administered at the facility. 	The only reference of any kind to the contract is contained in the
following statement: “jail staff ensured Mr. Robinson was evaluated by the Nevada County
9 No affidavit has been submitted by Defendant Ghormley.
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Detention Center’s contracted physician, Darrell Elkin, M.D., on November 16, 2022,” and on
December 2, 2022.9F
10 (ECF No. 34-1 at 1).
The summary judgment record is devoid of information on what steps, if any, are taken by
jail personnel when an inmate states at booking that he has a serious medical condition or chronic
disease. For instance, is the medical intake questionnaire given to medical personnel to follow-up
and arrange for any needed medication? If not, who at the facility is responsible for following up?
After filing medical requests, Robinson was seen by Defendant Elkin on two occasions,
November 16th, and December 2nd . 	There is nothing, however, regarding the March 9, 2023,
request for dental care or nothing in Defendant Otwell’s affidavit identifying who prescribed
Amexil or wrote “please see dentist” on the request. (ECF No. 31-3) (ECF No. 34-1). Defendant
Elkin’s affidavit indicates an unidentified “jail nurse” wrote “please see dentist” on the medical
request. (ECF No. 31-7 at 3). However, Defendant Elkin does not state who wrote the prescription
for Amexil. Id. Robinson testified he spoke with both Defendant Elkin and Defendant Ghormley
about his need for dental care. (ECF No. 34-2 at 14). Defendant Otwell not only failed to mention
the request for dental care in his affidavit but also fails to indicate if these three requests were the
only ones submitted by Robinson or if he submitted grievances about his medical care.
Defendants Otwell and Ghormley suggest the Complaint in this case only involves the two
different occasions on which Robinson sought medical care. See e.g., (ECF No. 34 at 1); (ECF
No. 35 at 1); (ECF No. 36 at 1). As he was twice seen by Defendant Elkin, they essentially argue
their constitutional duty to provide adequate medical care was discharged or fulfilled when they
provided Robinson with access to a medical professional.
10 Defendant Elkin is not a medical doctor. 	He is an “advanced healthcare practitioner”—a
“registered nurse practitioner.” (ECF No. 31-7 at 1); (ECF No. 17) (Defendant Elkin’s Answer).
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First, Defendants Otwell and Ghormley seek to limit Robinson’s claims to the two dates
on which Defendant Otwell indicates medical requests were made. (ECF No. 35 at 1). Following
submission of the two requests, they maintain Robinson was seen by Defendant Elkin. As such,
they argue they “can do no more than provide Robinson access to medical professionals.”
The Complaint, however, is not so limited. (ECF No. 1). In Claim One, Robinson alleges
he has been continually denied adequate medical care from November 26, 2022, through April 3,
2023. Id. at 4-5. Robinson mentions having had four strokes; he states he cannot walk on his own
because he suffers from dizziness; he is losing his eye sight; he has fallen resulting in back pain;
he has kidney stones; he cannot raise his arms above his head; and his hands shake so much he
cannot hold anything. 	Id. 	Robinson alleges he submitted “plenty” of requests and grievances
which were ignored by Defendant Ghormley. 	Id. at 5. 	He asserts Defendant Elkin has not
“diagnosed the problem” and just says “he can see what he can do & not trying to find out what’s
going on with me.” Id.
In Claim Two, Robinson alleges that he was continually denied medical and dental care
from November 26, 2022, through April 3, 2023. (ECF No. 1 at 6). Robinson says his tooth is
broken and has a hole in it. Id. He states his “mouth is in pain.” Id. He contends his teeth are
hurting to the point he is suffering from headaches and cannot eat his meals. 	Id. 	He alleges
Defendants Otwell, Elkin, and Ghormley are denying him medical and dental care. Id.
Robinson signed the Complaint on April 5, 2023. Id. at 11. The Complaint was filed on
April 18, 2023. 	Id. 	During his deposition, Robinson testified that his medical issues were not
addressed until after he was transferred to the ADC on May 15, 2023. 	(ECF No. 34-2 at 12).
Next, Defendants Otwell and Ghormley seeks to categorize Robinson’s claims as being
nothing more a mere disagreement with the care he was given. (ECF No. 35 at 3-4). “Where a
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prisoner needs medical treatment prison officials are under a constitutional duty to see that it is
furnished.” Crooks v. Nix, 872 F.2d 800, 804 (8th Cir. 1989) (citing Estelle v. Gamble, 429 U.S.
97, 103 (1976)). 	“It follows that ‘where the duty to furnish treatment is unfulfilled, the mere
contracting of services with an independent contractor does not immunize the [governmental
entity] from liability for damages in failing to provide a prisoner with the opportunity for such
treatment.’” Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (citing Crooks, 872 F.2d at
804).
If Defendants Otwell and Ghormley knew all relevant facts about Robinson’s medical and
dental needs, “the unlawfulness of failing to ensure that [he] received adequate treatment would
be apparent.” Langford, 614 F.3d at 461. 	In this case, the summary judgment record is woefully
deficient, and it cannot be determined what Defendants Otwell and Ghormley knew or when they
became aware of Robinson’s complaints of inadequate medical and dental care. There are many
issues simply not addressed by the record before the Court. 	The summary judgment record
contains no evidence: describing how the medical questionnaire is utilized or who reviews it;
indicating what the procedure is for inmates requesting medical care; indicating how inmates with
chronic disease and/or serious medical conditions are handled; whether the burden is on the inmate
with a chronic diseases or serious medical condition to do more than notify the facility of the
conditions; suggesting any medical personnel reviewed Robinson’s medical records ; or describing
the grievance procedure or how complaints of inadequate medical care are dealt with. Certainly,
Defendants could have easily provided at least some of this information to the Court but chose not
to provide a more robust record. In such cases, the “so called adverse inference rule” permits the
Court to conclude such evidence, if it exists, would be unfavorable to Defendants Otwell and
Ghormley. Langford, 614 F.3d at 461-62 (citations omitted).
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The Court believes there are genuine issues of material fact as to Defendants Otwell’s and
Defendant Ghormley’s subjective knowledge of Robinson’s serious medical needs and whether
they were deliberately indifferent to Robinson’s need for treatment, or to Robinson’s complaints
that he was not receiving necessary medical treatment. In other words, genuine issues of material
fact exist as to whether Robinson’s constitutional rights were violated.
2. 	Clearly Established Law
The second prong of the qualified immunity analysis requires the Court to determine
whether the law was clearly established as of the relevant time. The Eighth Circuit has taken a
“’broad view’ of what constitutes clearly established law for purposes of qualified immunity.”
Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir. 1998).
In order to determine whether a right is clearly established, it is not necessary that
the Supreme Court has directly addressed the issue, nor does the precise action or
omission in question need to have been held unlawful. In the absence of binding
precedent, a court should look to all available decisional law, including decisions
of state courts, other circuits and district courts.
Id. (quoting Norfleet v. Arkansas Dep’t. of Human Serv’s., 989 F.2d 289, 291 (8th Cir. 1993))
(internal quotation marks and citations omitted). However, a plaintiff must “identify[] controlling
precedent with a close correspondence to the particulars of the present case.” Rusness v. Becker
Cty., 31 F.3d 606, 615 (8th Cir. 2022) (citations omitted).
The Court must “do more than determine that the law was clearly established in the
abstract.” Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995). The Court cannot end its analysis
by stating that the right to adequate medical care under the Eighth Amendment is clearly
established. 	Barton v. Taber, 820 F.3d 958, 966 (8th Cir. 2016) (Clearly established law is not
defined at a high level of generality). The inquiry is context specific. “We must instead ‘examine
the information possessed by the government official accused of wrongdoing in order to determine
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whether, given the facts known to the official at the time, a reasonable government official would
have known that his actions violated the law.’” Langford v. Norris, 614 F.3d 445, 460 (8th Cir.
2010) (quoting Miller v. Schoenen, 75 F.3d 1305, 1308 (8th Cir. 1996)).
Defendants Otwell and Ghormley contend providing Robinson access to Defendant Elkin
absolves them of all liability. 	As non-medical professionals, Defendants Otwell and Ghormley
maintain all they could do was allow Robinson to see Defendant Elkin. However, “’[d]elay in the
provision of treatment or in providing examinations can violate inmates’ rights when inmates’
ailments are medically serious or painful in nature.’” 	Dadd v. Anoka Cty., 827 F.3d 749, 755 (8th
Cir. 2016) (quoting Johnson-El v. Schoemehl, 878 F.2d 1043, 1055 (8th Cir. 1989)).
It is true that “[t]he law does not clearly require an administrator with less medical training
to second-guess or disregard a treating physician’s treatment decision.” Meloy v. Bachmeier, 302
F.3d 845, 849 (8th Cir. 2002); see also Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011)
(“Prison 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.”); Drake et rel Cotton v. Koss, (8th Cir. 2006) (jailers could not be held liable for
psychiatrist’s determination that detainee was not suicidal). 	However, officials are not entitled to
rely on the recommendation of medical personnel when the medical decision was made without
all relevant facts being known or when the reliance is not reasonable. 	See e.g., McRaven v.
Sanders, 577 F.3d 974, 981 (8th Cir. 2009) (officers not entitled to rely on the recommendation of
a nurse who did not possess all relevant information); McRaven v. Sanders, 577 F.3d 974, 981 (8th
Cir. 2009) (jail officials with relevant personal knowledge about the inmate’s condition,
knowledge which the medical personnel did not have, makes the official’s reliance on medical
personnels’ decisions not objectively reasonable). 	Moreover, a reasonable supervisory official
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“would have understood that ignoring . . . complaints about receiving deficient medical care
contravened clearly established principles of Eighth Amendment jurisprudence.” 	Langford v.
Norris, 614 F.3d 445, 462 (8th Cir. 2010). Finally, Eighth Circuit has provided fair warning about
the “unconstitutionality of a failure to provide pain medication or treatment for serious dental
conditions in particular.” Dadd, 827 F.3d at 757 (citing, inter alia, Hartsfield v. Colburn, 371 F.3d
454, 457 (8th Cir. 2004) (reversing grant of summary judgment where plaintiff suffered severe
dental pain, swelling, and difficulty eating and sleeping).
Defendants Otwell and Ghormley are not entitled to qualified immunity.
3. 	Official Capacity Liability
An official capacity claim is treated as a claim against Nevada County. 	Brewington v.
Keener, 902 F.3d 796, 800 (8th Cir. 2018). 	Neither respondeat superior liability nor vicarious
liability attach under § 1983. 	Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 694-
95 (1978). 	A County can be held liable only where the County itself causes the constitutional
violation at issue. Nevada County may be held liable only if the constitutional violation resulted
from: “an official municipal policy, (2) an unofficial custom, or (3) a deliberately indifferent failure
to train or supervise.” Jackson v. Stair, 944 F.3d 704, 709 (8th Cir. 2019).
As noted previously, the Motion for Summary Judgment filed by the Nevada County
Defendants does not address the issue of official capacity liability. This claim therefore remains
for later resolution.
IV. 	CONCLUSION
For these reasons, it is recommended that:
(1) The Motion for Summary Judgment (ECF Nos. 30-32) filed by Defendant
Elkin be DENIED;
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(2) The Motion for Summary Judgment (ECF Nos. 34-36) filed by Defendants
Otwell and Ghormley be DENIED; and
(3) This leaves Robinson’s claims against all Defendants for further resolution
before the District Judge.
Status of the 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.
RECOMMENDED this 26 th day of August 2024.
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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