Opinion
4:98CV3038
September 18, 2002
MEMORANDUM AND ORDER
This matter is before the court on (1) filing no. 70, the "Defendants' Motion for Summary Judgment Based Upon Qualified Immunity" filed by defendants — Dawson County Sheriff Gary W. Reiber, Renee Botts and Marlin Kuxhausen; and (2) filing no. 74, the "State Defendants' Motion for Summary Judgment" filed by defendants — Harold Clarke, Rob Predmore and John Dahm. The plaintiff, Gene J. Ostendorf, Jr., alleges that the defendants violated his civil rights during 1997 while the plaintiff was in the custody of the Dawson County Jail and the Nebraska Department of Correctional Services ("DCS"). The plaintiff has been represented by court-appointed counsel in this case since December of 1999 (filing no. 50).
BACKGROUND
In his Second Amended Complaint (filing no. 16), the plaintiff seeks damages, a declaratory judgment and injunctive relief for injuries allegedly sustained during a term of imprisonment which preceded the term he is presently serving. Pursuant to 42 U.S.C. § 1983, the plaintiff has sued the individual defendants in their official and individual capacities and also seeks relief from the named governmental entities. In addition, the plaintiff alleges claims pursuant to Title II of the Americans with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act").
Title I of the ADA prohibits employment discrimination against the disabled, 42 U.S.C. § 12112. Title II forbids discrimination against the disabled in services and programs offered by public entities, 42 U.S.C. § 12132. Title III bans such discrimination in public accommodations engaged in interstate commerce, 42 U.S.C. § 12182 et seq.
§ 504 of the Rehabilitation Act prohibits discrimination against the disabled by recipients of federal funding. Barnes v. Gorman, 122 S.Ct. 2097, 2100 (2002).
In my Memorandum and Order of June 9, 1999 (filing no. 19), I determined that the Second Amended Complaint alleges claims of false imprisonment, violation of the ADA, and deprivation of civil rights under the Eighth and Fourteenth Amendments to the United States Constitution. As to those claims, the Second Amended Complaint supersedes the plaintiff's previous complaints. However, I construed the Second Amended Complaint as a supplement to the plaintiff's Amended Complaint (filing no. 6) in regard to the plaintiff's claim under the Rehabilitation Act, and I concluded that the plaintiff continues to allege the violation(s) of the Rehabilitation Act asserted in his Amended Complaint.
In his Amended Complaint, the plaintiff's Third Cause of Action (filing no. 6 at 3), alleges that the "Dawson County Jail System" violates the Rehabilitation Act. I construe that allegation to relate to Count VI of the Second Amended Complaint, addressed below.
PLAINTIFF'S CLAIMS
As alleged in the Second Amended Complaint (filing no. 16 at ¶¶ 18-19, 30), the plaintiff had surgery in January 1988 for spinal injuries suffered in a traffic accident. Thereafter, the plaintiff has experienced reduced sensation and mobility in his limbs and a condition described as "drop foot" which causes his left foot to drag. The plaintiff can walk with a cane, although not for long periods without enduring pain which he alleviates through medication.
On June 13, 1997, the Dawson County Court convicted the plaintiff of violating parole and sentenced him to 120 days in jail, less 15 days of credit for time served. Under Nebraska law, credit for good time further reduced the plaintiff's term of confinement.
COUNT I (County Defendant Renee Botts)
In Count I of his Second Amended Complaint, the plaintiff seeks $10,000 from Renee Botts for the following reasons. Upon the plaintiff's arrival at the Dawson County Jail, Ms. Botts, administrator of the facility, confiscated the plaintiff's personal cane which had been fitted for his height, and provided a jail-issue cane and jail-issue plastic sandals. Ms. Botts disregarded the plaintiff's protests that the substitute cane would cause him pain because of its shorter length and that the sandals could endanger the plaintiff because of his drop-foot condition. After the plaintiff's placement in a general population cell, he fell while showering "requiring him to complain and request medical attention for his back" (filing no. 16 at ¶ 33).
COUNT II (County Defendants Renee Botts and Marlin Kuxhausen)
In Count II, the plaintiff seeks damages of $20,000 from Ms. Botts and Marlin Kuxhausen, alleging that on June 14, 1997, after his fall in the shower, a deputy escorted the plaintiff to a hospital emergency room while Ms. Botts followed in an official vehicle. During the medical examination, the emergency room doctor prescribed ibuprophen and suggested, although issued no written directive, that "a chair be provided for plaintiff's mobility and back support" (filing no. 16 at ¶¶ 36, 37). However, despite requests to Botts and Kuxhausen, the plaintiff did not receive a wheelchair and was not permitted to bring his own wheelchair to the jail. According to the plaintiff, the absence of a wheelchair caused him to become bedridden and to seek medical treatment for back pain on July 5, 1997. At that time, as the result of a written medical directive, Ms. Botts obtained a wheelchair for the plaintiff.
In filing no. 45 at 7-8, the plaintiff explains that in Count II he seeks to hold the named County defendants responsible for "cruel and unusual punishment . . . through callous disregard of [the plaintiff's] known medical need" (i.e., for a wheelchair).
COUNT III (State Defendant Robbie Predmore)
In Count III, the plaintiff alleges that because of his propensity to complain about the medical treatment afforded at the county jail, Ms. Botts transferred him to the DCS Diagnostic and Evaluation Center ("D E"). Upon the plaintiff's arrival at the D E, defendant — Robbie Predmore initially assigned him to a medical pod, where the plaintiff remained for 5 days "in virtual isolation." The plaintiff alleges that he received this assignment without due process and because of his disability. After 5 days, Predmore moved the plaintiff to "P pod," and, as a result of the layout of the D E, the plaintiff had to transport his wheelchair by a stairway at meal times and upon visits to other locations such as the library. During his time in the P Pod, the plaintiff received a misconduct report after an argument with an officer who ordered the plaintiff to carry the wheelchair, rather than bounce it, on the stairs. The misconduct report resulted in 7 days of "room restriction" except for one hour per weekday of recreation and a daily half-hour shower. The plaintiff seeks $10,000 in damages from Predmore.
In filing no. 42 at 11-12, the plaintiff characterizes his claim against Predmore as follows: "In Count III, the plaintiff alleged that officer Predmore subjected him to cruel and unusual punishment . . . by placing him in `the only housing pod at D E' where plaintiff absolutely could not avoid having to wrestle his chair up and down steps [just to go to meals] a minimum of three times each day." The plaintiff states, id. at 12, that Count III against Predmore is similar to Count I against the County in that in both counts the plaintiff seeks redress for being placed "at risk of sustaining additional injury to his already injured back. . . ." In filing no. 45 at 8, the plaintiff reiterates that in Count III, he seeks redress for Predmore's initial placement of the plaintiff, upon arrival at the D E, in "an environment which was hostile to [the plaintiff's] disabled condition," in violation of the Eighth Amendment and the ADA.
COUNT IV (County Defendant Renee Botts) COUNT V (County Defendants Dawson County Board and Sheriff Gary W. Reiber)
In Count IV the plaintiff alleges that Botts deprived him of his liberty for 4 extra days after his scheduled release date. In answer to an inquiry from the plaintiff's mother, Ms. Botts stated that the Dawson County Jail temporarily lacked transportation to return the plaintiff to the county jail from the D E and lacked an available cell in which to house the plaintiff while processing him for release. For her alleged failure to plan appropriately for his timely release, the plaintiff seeks additional damages of $40,000 from Ms. Botts.
In Count V, which is related to the allegations of Count IV regarding delayed release, the plaintiff alleges that the Dawson County Board and Sheriff Gary W. Reiber failed to allocate the plaintiff's good time credit appropriately and thus failed to ensure that the plaintiff would be timely released. The plaintiff seeks $40,000 in damages from those defendants, jointly and severally, for his 4 extra days in jail. In filing no. 45 at 8, the plaintiff reiterates that Counts IV and V relate solely to the County defendants' delay in releasing him, which the plaintiff characterizes as a violation of his right to due process.
COUNT VI (County Defendants Dawson County Board and Sheriff Gary W. Reiber) COUNT VII (State Defendants DCS, Predmore, Clarke, and Dahm)
In Counts VI and VII, the plaintiff requests certification of a class action and alleges claims under Title II of the Americans With Disabilities Act ("ADA") on behalf of himself and the putative class. In Count VI, the plaintiff names the county defendants, i.e., the Dawson County Board and Sheriff Reiber. Count VII names the state defendants, i.e., DCS, Robbie Predmore, Director of DCS Harold Clarke, and D E Superintendent John Dahm. In the class action counts, the plaintiff seeks declaratory and injunctive relief.
In filing no. 17 at 6-7, Magistrate Judge Kathleen A. Jaudzemis denied the plaintiff's motion for certification of a class action, without prejudice. Although the plaintiff objected to various other parts of filing no. 17, he did not object to the denial of class certification, and he has not subsequently established any basis under Fed.R.Civ.P 23 for maintaining Counts VI and VII as a class action.
In filing no. 45 at 8-9, the plaintiff indicates that the basis for Count VI is the ADA. As stated above, I have ruled that Count VI also incorporates a claim from the Amended Complaint under the Rehabilitation Act. The plaintiff protests that the Dawson County Jail is not equipped for disabled inmates.
In filing no. 42 at 8-9, the plaintiff explains that "[w]ith the exception of the State defendant, Robbie Predmore, the only `relief' sought from the State defendants is injunctive and/or declaratory relief requiring the State to modify the prison facilities where necessary to accommodate for the unique needs of those disabled persons who happen to be incarcerated therein, and to delineate specific policies and guidelines for the prison officials to follow when assigning such disabled persons to a housing unit or job assignment."
ELEVENTH AMENDMENT IMMUNITY DCS
In my Memorandum and Order of July 17, 2001 (filing no. 57), I dismissed the plaintiff's claims under 42 U.S.C. § 1983 against DCS. The Eleventh Amendment to the United States Constitution prohibits the plaintiff from maintaining a claim for damages pursuant to 42 U.S.C. § 1983 against the State or a state agency or instrumentality. See, e.g., Burk v. Beene, 948 F.2d 489, 492-93 (8th Cir. 1991): "Eleventh Amendment jurisprudence is well-settled: `a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.' . . ."
In addition, DCS, as a state agency, is not subject to suit under 42 U.S.C. § 1983. A "State is not a `person' as that term is used in [42 U.S.C.] § 1983, and is not suable under the statute, regardless of the forum where the suit is maintained." Hilton v. South Carolina Public Railways Com'n, 502 U.S. 197, 199-201 (1991), citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989). Thus, 42 U.S.C. § 1983 does not create a cause of action against the State of Nebraska or its agencies and instrumentalities, including DCS, and the State of Nebraska and its agencies and instrumentalities cannot be made to answer to the plaintiff in this court for the alleged deprivation of his civil rights.
§ 1983 CLAIMS (Predmore, Clarke and Dahm in "Official Capacity")
In filing no. 57, I also adopted the part of Magistrate Judge Kathleen A. Jaudzemis' recommendation (filing no. 51) that the plaintiff's § 1983 claims for damages against the individual state defendants, Predmore, Clarke and Dahm, in their official capacity, must be dismissed. A suit for damages against a governmental officer in the officer's official capacity is the equivalent of naming the governmental entity itself as the defendant. See, e.g., Trevelen v. University of Minnesota, 73 F.3d 816, 818 (8th Cir. 1996): "The Supreme Court has interpreted the Eleventh Amendment to bar actions in federal court against a state by its citizens. . . . Additionally, the Eleventh Amendment prohibits federal-court lawsuits seeking monetary damages from individual state officers in their official capacities because such lawsuits are essentially `for the recovery of money from the state.'" (Citation omitted.) Accord Morstad v. Department of Corrections and Rehabilitation, 147 F.3d 741, 744 (8th Cir. 1998); Burk v. Beene, 948 F.2d 489, 492-493 (8th Cir. 1991).
ADA CLAIMS (Predmore in "Official Capacity")
Furthermore, no damages may be recovered under the ADA from Predmore, in his official capacity. Insofar as the plaintiff seeks damages from Predmore in Count III under the ADA, the Eleventh Amendment precludes such relief. A claim for damages against Predmore, in his official capacity, is a claim for monetary relief from the State. The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court. Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). While Congress may abrogate the States' Eleventh Amendment immunity, Congress exceeded its authority under § 5 of the Fourteenth Amendment in attempting to abrogate Eleventh Amendment immunity under Title II of the ADA. Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999), cert. dismissed, 529 U.S. 1001 (2000).
Consequently, all claims for damages under the ADA against the State, DCS and the individual State defendants in their official capacity are dismissed. However, while damages may not be recovered, the Eleventh Amendment does not preclude prospective injunctive relief against the individual State defendants in their official capacity. Under the doctrine of Ex Parte Young, 209 U.S. 123, 155-56 (1908), a plaintiff may seek declaratory and prospective injunctive relief against state officials in their official capacity for claims based on Title II of the ADA. Klingler v. Director, Dept. of Revenue, 281 F.3d 776, 777 (8th Cir. 2002).
This Memorandum and Order shall serve as the declaratory relief sought by the plaintiff. However, as discussed next, I deny the requests for injunctive relief.
INJUNCTIVE RELIEF COUNT VII (State)
Title II of the ADA prohibits public entities from denying the benefits of services, programs and activities to a "qualified individual with a disability" on account of the individual's disability. State prisons are "public entities" within the meaning of Title II of the ADA, and the term "qualified individual with a disability" extends to inmates. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210-11 (1998). The Supreme Court has recognized that state prisons do indeed provide prisoners with "benefits" of "programs, services and activities." Id. at 210: "Modern prisons provide inmates with many recreational `activities,' medical `services,' and educational and vocational `programs,' all of which at least theoretically `benefit' the prisoners (and any of which disabled prisoners could be `excluded from participation in')."
"Although Title II broadly prohibits discrimination on the basis of disability by public entities . . . it provides very little guidance by way of defining exactly what constitutes `discrimination' within the meaning of the statute." Hahn ex rel. Barta v. Linn County, IA, 130 F. Supp.2d 1036, 1045 (N.D.Iowa 2001). "To state a prima facie claim under the ADA, a plaintiff must show: (1) he is a person with a disability as defined by statute; (2) he is otherwise qualified for the benefit in question; and (3) he was excluded from the benefit due to discrimination based upon disability." Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999). The elements of a claim under § 504 of the Rehabilitation Act are the same, with the additional requirement that the plaintiff show that the program or activity from which he is excluded receives federal financial assistance. Id.
It is clear that one essential element of a claim under both statutes in the prison context is the denial of benefits provided to other inmates. Regarding the State, the plaintiff points to no services, programs and activities in which he continues to be denied participation on account of disability. Therefore, he has not demonstrated any present discrimination or realistic threat of future discrimination on the basis of disability. As a result, summary judgment will be entered in favor of the State defendants and against the plaintiff on Count VII, in which the plaintiff seeks prospective injunctive relief from the State defendants under the ADA.
COUNT VI (County)
Insofar as the plaintiff seeks injunctive relief against the County defendants, that claim has become moot. See generally United States Parole Commission v. Geraghty, 445 U.S. 388, 397 (1980): "The `personal stake' aspect of mootness doctrine also serves primarily the purpose of assuring that federal courts are presented with disputes they are capable of resolving. One commentator has defined mootness as `the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).'" (Citation omitted.)
"A claim for equitable relief is moot `absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again.'"Randolph v. Rodgers, 170 F.3d 850, 856-57 (8th Cir. 1999). When, as in this case, "an inmate has been transferred to another institution, his claim for injunctive relief against the warden of the first prison to improve the former prison's conditions is moot." Id. at 857, citing Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). DCS does not control the Dawson County Jail, and thus the plaintiff's release from that facility, followed by his present imprisonment in the custody of DCS, has rendered his claim for injunctive relief against the County defendants moot. As a result, summary judgment will be entered in favor of the County defendants and against the plaintiff on Count VI of the Second Amended Complaint and on the Rehabilitation Act claim asserted in the Amended Complaint.
INDIVIDUAL CAPACITY DISABILITY CLAIMS
In filing no. 57, I adopted Magistrate Judge Jaudzemis' recommendation that the plaintiff's claims against Predmore, Clarke and Dahm, in their individual capacity, for any form of relief under Title II of the ADA must be dismissed. Predmore, Clarke and Dahm, in their individual capacity, are not "public entities" whose conduct is circumscribed by Title II of the ADA.
The same is true for the County defendants. No monetary relief may be recovered from any of the County defendants, in their individual capacity, under Title II of the ADA or § 504 of the Rehabilitation Act. The individual defendants are not "public entities" under Title II of the ADA. Also, the individual defendants do not receive federal assistance within the meaning of § 504 of the Rehabilitation Act.Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002). Accord Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (Title II of the ADA and § 504 of the Rehabilitation Act do not authorize individual capacity suits against public officials). Therefore, insofar as the plaintiff bases Counts I, II, and III on the ADA or the Rehabilitation Act, those claims must fail.
Counts IV and V do not involve the ADA or the Rehabilitation Act.
SUMMARY JUDGMENT
As to the remaining claims, the individual defendants have moved for summary judgment on the basis of qualified immunity. Summary judgment is "properly regarded . . . as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2555 (1986).
The proponent of a motion for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 2553. In response to the proponent's showing, the opponent's burden is to "come forward with `specific facts showing that there is a genuine issue for trial.'"Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986) (emphasis in original). A "genuine" issue of material fact is more than "some metaphysical doubt as to the material facts." Id.
"[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986). "If the evidence is merely colorable . . . or is not sufficiently probative . . . summary judgment may be granted." Id. In addition, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment as a matter of law. . . . Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club, Inc. v. Coleman, 969 F.2d at 666 (citations omitted).
Because the defendants assert qualified immunity in a motion for summary judgment rather than in a motion to dismiss under Fed.R.Civ.P. 12(b), the court's first task in this context is to determine whether the plaintiff has demonstrated a constitutional or federal statutory violation on which there is sufficient evidence in the record favorable to the plaintiff to support a verdict in his favor. Anderson v. Liberty Lobby, Inc., 2505, 2511 (1986).
QUALIFIED IMMUNITY Count III (Predmore in "Individual Capacity")
The plaintiff has sued Predmore in Count III, relating to the plaintiff's classification and placement while at the D E. A government official, sued for damages in the official's individual capacity pursuant to 42 U.S.C. § 1983, is entitled to qualified immunity unless the plaintiff shows that the official violated a clearly established federal statutory or constitutional right of the plaintiff and that a reasonable person would have known: (a) of the plaintiff's right and (b) that the conduct in issue violated the plaintiff's right. See Anderson v. Creighton, 107 S.Ct. 3034, 3038-39 (1987).
Qualified immunity is the norm. "[The plaintiff's] burden is not easily discharged: `That qualified immunity protects government actors is the usual rule; only in exceptional cases will government actors have no shield against claims made against them in their individual capacities.'"Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996). "Stated another way, qualified immunity shields a defendant from suit if he or she could have reasonably believed his or her conduct to be lawful `in light of clearly established law and the information [that the defendant] possessed. . . . The qualified immunity standard "gives ample room for mistaken judgments" by protecting "all but the plainly incompetent or those who knowingly violate the law."'" Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th Cir. 2000).
First, "[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 122 S.Ct. 2508, 2513 (2002), citing Saucier v. Katz, 533 U.S. 194, 201 (2001). The plaintiff contends that his assignment to an isolated medical pod for five days at the D E and his subsequent placement in "P pod" where he had difficulty maneuvering his wheelchair constituted cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution.
The Eighth Amendment requires prison officials to provide humane conditions of confinement, including adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 114 S.Ct. 1970, 1976 (1994). A viable Eighth Amendment claim consists of an objective component and a subjective component. Jackson v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998). See also Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997): "To prevail on an Eighth Amendment claim, an inmate must show both an objective element, that the deprivation was sufficiently serious, and a subjective element, that the defendant acted with a sufficiently culpable state of mind." Id.
The objective element of an Eighth Amendment claim requires a deprivation which, viewed objectively, is sufficiently "serious," that is, "the prison official's act or omission must result in the denial of `the minimal civilized measure of life's necessities;' or the prison official must incarcerate the inmate under conditions `posing a substantial risk of serious harm.'" Simmons v. Cook, 154 F.3d 805, 807 (8th Cir. 1998) (citation omitted).
The subjective element of an Eighth Amendment claim requires that a prison official act with deliberate indifference to inmate health or safety. Farmer v. Brennan, 114 S.Ct. 1970, 1977-78 (1994). Deliberate indifference means that the prison official both was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 1979. Thus, to satisfy the subjective component requires a finding of actual knowledge on the part of the defendant. See Coleman v. Rahija, 114 F.3d 778, 785 (8th Cir. 1997): "A prison official may be held liable under the Eighth Amendment if he or she knows that an inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Id. In short, "[t]o show deliberate indifference, [the plaintiff] must prove that the [defendant] knew of, yet disregarded, an excessive risk to [the plaintiff's] health." Logan v. Clarke, 119 F.3d 647, 649 (8th Cir. 1997).
I conclude that, as a matter of law, the plaintiff has failed to demonstrate a material issue of fact regarding either the objective or the subjective component of an Eighth Amendment claim against Predmore. The record contains no evidence either that the plaintiff experienced deprivations which, viewed objectively, are sufficiently "serious," or that Predmore knew of, yet disregarded, an excessive risk to the plaintiff.
In the "Affidavit of Rob Predmore" (filing no. 75, Ex. 3), Predmore explains that as Intake Case Manager on July 24, 1997, when the plaintiff arrived at the D E as a "county safekeeper," Predmore first assigned the plaintiff to a room in the medical unit for evaluation because the plaintiff had arrived in a wheelchair. The medical unit classified the plaintiff as "medically restricted to a lower bunk," but included no other restrictions, and indicated that the plaintiff could be transferred to the general prison population.
On July 29, 1997, Predmore prepared reassignment and screening forms. Because of the plaintiff's slight stature and physical weaknesses, Predmore assessed the plaintiff as at medium risk for victimization by other inmates. Based on the medical evaluation and the potential victim risk factor, Predmore assigned the plaintiff to a lower bunk in a housing unit "compatible for inmates with medium to high potential risk factors in order to maintain his safety and security." (Filing no. 75, Ex. 3 at 4.) Predmore was unaware of any requirement that an inmate carry his own wheelchair in the "P pod" housing unit. Moreover, the plaintiff has shown no factual basis for a claim that Predmore disregarded a known risk to the plaintiff, as the plaintiff never sent any "kites," complaints or grievances to anyone requesting reassignment or indicating that he was experiencing problems with his housing assignment.
See, e.g., Lawson v. Dallas County, 286 F.3d 257 (5th Cir. 2002) (disregard of known risk that paraplegic inmate would develop severe decubitus ulcers in absence of proper medical care): "The deliberate indifference standard [requires] the plaintiff [to] establish that the jail officials were actually aware of the risk, yet consciously disregarded it." Id. at 262 (emphasis added).
The Affidavits of Harold Clarke, John Dahm and Rob Predmore (filing no. 75, Exs. 1, 2, and 3) establish that the plaintiff did not pursue any administrative grievance procedures relating to the conditions of his confinement at the D E. On that ground alone, Count III should be dismissed. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted."). In addition, as discussed, the plaintiff's claims in Count III do not rise to the level of cruel and unusual punishment.
Essentially, the only alleged default, if any, by Predmore amounted to assigning the plaintiff to a housing unit with a layout not conducive to transportation of a wheelchair. I find that when Predmore assigned the plaintiff to the medical unit for evaluation and then to the P pod, the state of the law then, as now, gave no fair warning that such conduct would violate the Eighth Amendment. Thus, even accepting the plaintiff's allegations as true, Predmore's acts and omissions amount to no more than negligence, if that, and do not constitute deliberate indifference. However, negligence does not state a cause of action for violation of the Eighth Amendment. Mere negligence in responding to a medical risk or condition is an insufficient basis for grounding liability on a claim of mistreatment under the Eighth Amendment. Estelle v. Gamble, 97 S.Ct. 285, 292 (1976). Accord Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (a prisoner must show more than negligence, and more than even gross negligence, to rise to the level of a constitutional violation). Therefore, summary judgment will be entered in favor of the State defendants and against the plaintiff on Count III of the Second Amended Complaint.
Counts I and II (Botts and Kuxhausen in "Individual Capacity")
The record indicates that Botts, over the plaintiff's protests, confiscated the plaintiff's fitted cane upon his arrival at the county jail and provided a "jail issue" cane and sandals. Furthermore, Botts and Kuxhausen, despite the plaintiff's requests, declined to provide a wheelchair until a doctor issued a written medical directive.
Not just the degree, but also the duration of the hardship should be considered when evaluating the seriousness of a deprivation alleged to violate the Eighth Amendment. See, e.g., Whitnack v. Douglas County, 16 F.3d 954, 958 (8th Cir. 1994) (Because of the brevity of the plaintiff's period of incarceration, even the "deplorable" filthy and unsanitary conditions of his cell did not amount to cruel and unusual punishment.). In this case, the plaintiff lacked a wheelchair for the 22 days between June 13, 1997 and July 5, 1997. The plaintiff's incarceration at the Dawson County Jail lasted 41 days from June 13, 1997 until his transfer to the D E on July 24, 1997. I find those periods of relatively short duration.
Nevertheless, the plaintiff fell in the shower, and he experienced an increase in back pain before he received a wheelchair. However, again, deliberate indifference or wantonness is more than mere negligence. SeeFarmer v. Brennan, 511 U.S. 825, 834-35 (1994). Accepting the plaintiff's allegations as true, the County defendants' acts and omissions amount to no more than negligence, and "[a]n `official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.'" Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998), citing Farmer v. Brennan, 114 S.Ct. 1970, 1979 (1994).
In addition, even if the responses by the County defendants to the plaintiff's protests and complaints could be considered inadequate, the state of the law then, as now, did not clearly establish, and gave no fair warning, that such conduct violated the Eighth Amendment. See Hope v. Pelzer, 122 S.Ct. at 2515, explaining "clearly established" law as follows:
As we have explained, qualified immunity operates "to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier v. Katz, 533 U.S. at 206. . . . For a constitutional right to be clearly established, its contours "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, see Mitchell [v. Forsyth, 472 U.S. 511,] 535, n. 12 . . .; but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 . . . (1987).
As the Supreme Court explained in Hope v. Pelzer, a state official charged with the criminal offense of willfully and under color of law depriving a person of constitutional rights, under 18 U.S.C. § 242, is entitled to "fair warning" that his conduct would deprive the victim of a constitutional right. Id. at 2515. The "fair warning" requirement of 18 U.S.C. § 242 is identical to the qualified immunity standard for a civil damages action under 42 U.S.C. § 1983. Id. at 2515-16. Thus, the "salient question" is whether the state of the law when the defendants acted gave the defendants fair warning that their conduct was unconstitutional. Id. at 2511. Because I find that the plaintiff alleges no more than negligent conduct by the individual County defendants, and because the unconstitutionality, if any, of the defendants' conduct in the circumstances of this case was not, and is not, clearly established, I will enter summary judgment in favor of the County defendants and against the plaintiff on Counts I and II of the Second Amended Complaint.
Counts IV and V (Botts, Dawson County Board and Sheriff Reiber)
In Counts IV and V the plaintiff alleges that because the Dawson County Jail temporarily lacked transportation to return him to the county jail from the D E and lacked an available cell in which to house the plaintiff while processing him for release, he remained incarcerated for four extra days beyond his release date. The County defendants do not deny that on the date the plaintiff should have been transferred from the D E to the county jail for release, a cell was not ready at the county jail, a van suitable for transporting the plaintiff from the D E was not available, and the plaintiff remained in prison for an intervening weekend. However, the defendants maintain that the delay in processing the plaintiff's release was the result of inadvertence, i.e., error, rather than an intentional act resulting from a policy, custom or practice.
In counts IV and V, the plaintiff seeks damages totalling $80,000 for the four-day detention beyond his lawful sentence. The plaintiff's claim for damages apparently relates to mental and emotional suffering attributable to the delay in his release, as he alleges no physical injury. However, 42 U.S.C. § 1997e(e) prohibits the relief the plaintiff requests. Section 1997e(e) states:
(e) Limitation on recovery
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.
In addition, the four-day delay in releasing the plaintiff did not violate the plaintiff's right to due process for several reasons. First, although the delayed release did indeed deprive the plaintiff of liberty, the Due Process Clause of the Fourteenth Amendment "is not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986).
Second, where the deprivation of an individual's liberty occurs as the result of random and unauthorized conduct, such that no effective pre-deprivation remedy can be afforded, a post-deprivation remedy will suffice to satisfy the demands of procedural due process. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in other respects by Daniels v. Williams, 474 U.S. 327, 330-31 (1986). Third, if adequate post-deprivation remedies exist, due process is satisfied. See, e.g.,Toney-El v. Franzen, 777 F.2d 1224, 1226-29 (7th Cir. 1985), cert. denied, 476 U.S. 1178 (1986), holding that an error by officials in calculating the inmate's release date by 306 days did not violate the Due Process Clause because the prisoner had adequate post-deprivation remedies under state law. The Seventh Circuit stated that:
Daniels v. Williams, 474 U.S. 327, 330-31 (1986) overruled Parratt v. Taylor, 451 U.S. 527 (1981) only with regard to the portion ofParratt that considered a "deprivation" under the Due Process Clause to include a negligently caused loss.
In the instant action, Toney-El could have informally informed prison officials about the error in calculating his release date through correspondence. Toney-El also had the right to seek a writ of mandamus from the state court to correct the error. . . . Finally, Toney-El had a cause of action in the Illinois Courts for false imprisonment. . . . Because Illinois law and the informal procedures of the Department of Corrections provided Toney-El with remedies that were both adequate and available, Toney-El has failed to allege a violation of the Due Process Clause of the fourteenth amendment.Id. at 1228 (citations and footnote omitted).
While the remedy of a tort claim for false imprisonment was not available to the plaintiff as a post-deprivation remedy, as discussed below, informal consultation with the Dawson County Jail officials did assist the plaintiff in obtaining his release. The plaintiff's mother "informally informed prison officials about the error. . . ." id., and apparently, her inquiries were successful in accelerating the process of gaining the plaintiff's release.
Finally, the four-day delay also did not amount to cruel and unusual punishment. See, e.g., Haynes v. Lambor, 785 F. Supp. 754, 757 (N.D.Ill. 1992): "[A] violation of the Eighth Amendment requires a showing of a culpable mental state on the part of prison officials. . . . A simple error in the calculation of punishment will not violate the Eighth Amendment. See Sample v. Diecks, 885 F.2d 1099, 1108-09 (3rd Cir. 1989) (error in calculation of release date does not violate the Eighth Amendment)." Cf. Calhoun v. New York State Division of Parole, 999 F.2d 647 (2d Cir. 1993) (parolee held five days beyond the maximum term of his sentence, with no hearing). "In our view, the five-day extension of [the plaintiff's] release date did not inflict `a harm of a magnitude' that violates a person's eighth amendment rights." Id. at 654.
FALSE IMPRISONMENT
The Nebraska Political Subdivisions Tort Claims Act, Neb. Rev. Stat. §§ 13-901 to 13-926, bars the plaintiff's claim of false imprisonment against the Dawson County Board and any employees of the County. Neb. Rev. Stat. § 13-902 provides that no political subdivision of the State of Nebraska shall be liable for the torts of its officers, agents, or employees, and that no suit shall be maintained against such political subdivision or its officers, agents, or employees on any tort claim except to the extent, and only to the extent, provided by the Political Subdivisions Tort Claims Act. Neb. Rev. Stat. § 13-910(7) specifically provides that no liability under the Act shall extend to a claim of false imprisonment, among others. Therefore, as section 13-910(7) affords the County defendants a complete defense, I will enter summary judgment in favor of the County defendants and against the plaintiff on the plaintiff's claim of false imprisonment.
For all of the foregoing reasons, I will enter summary judgment for the defendants dismissing the plaintiff's claims.
THEREFORE, IT IS ORDERED:
(1) That filing no. 70, the "Defendants' Motion for Summary Judgment Based Upon Qualified Immunity" filed by defendants — Dawson County Sheriff Gary W. Reiber, Renee Botts and Marlin Kuxhausen, is granted;
(2) That filing no. 74, the "State Defendants' Motion for Summary Judgment" filed by defendants — Harold Clarke, Rob Predmore and John Dahm, is granted, and
(3) That a separate Judgment will be entered in accordance with this Memorandum and Order.
JUDGMENT
Pursuant to the Memorandum and Order entered on this date,
IT IS ORDERED, ADJUDGED and DECREED:
1. That judgment is hereby entered for all named defendants and against the plaintiff, Gene J. Ostendorf, Jr., on the claims alleged in the plaintiff's Second Amended Complaint and Amended Complaint;
2. That this action and the plaintiff's claims are dismissed with prejudice; and
3. That the plaintiff shall review the "Notice Upon Entry of Judgment" on the following page of this Judgment.