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Dieteman v. County of Lancaster

United States District Court, D. Nebraska

December 8, 2015

CORY L. DIETEMAN, Plaintiff,


Cheryl R. Zwart, United States Magistrate Judge

This matter is before the court on the motions for summary judgment filed by the County of Lancaster, Nebraska and Michael Thurber (the “Lancaster Defendants”), Mark Foxall, and Dr. Douglas Morin, (See Filing No. 83; Filing No. 86; Filing No. 89), and the motion for summary judgment filed by Defendant Douglas County. (See Filing No. 91). For the reasons discussed below, Defendants’ motions will be granted and Plaintiff’s claims will be dismissed.


“The court shall grant summary judgment if the movant 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(c)(2). In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. Dancy v. Hyster Co., 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court’s function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. Bell v. Conopco, Inc., 186 F.3d 1099, 1101 (8th Cir. 1999).

The moving party bears the burden of showing there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). However, “a party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 251-52.


Plaintiff Cory Dieteman was a pretrial detainee at the Lancaster County Adult Detention Center (“LADC”) in Lincoln, Nebraska beginning March 8, 2011. He was transferred on April 27, 2012 to the Douglas County Correctional Center (“DCCC”) in Omaha, Nebraska where he remained until August 27, 2012.

In October of 2011, Defendant Dr. Douglas Morin was hired by Correct Care Solutions (“CCS”) to be the medical director at LADC and DCCC. CCS is a medical care company that contracts to provide care to inmates in correctional facilities. Morin’s responsibilities included examining patients, performing physical evaluations, evaluating acute care patients and injuries, and organizing appropriate consultations with other physicians. CCS mandated guidelines for completion of Morin’s duties.

On January 24, 2012, Dieteman injured his right knee and heard a loud popping noise. Dieteman had previously injured the anterior cruciate ligament (“ACL”)[1] in his right knee was concerned he had reinjured it. Three days later, Dieteman had his first appointment with Morin at LADC. Dieteman complained his right knee was unstable. He stated it was numb at the time of the visit, but the knee continually popped out and hurt. Morin noted Dieteman’s previous ACL injuries, examined the knee, and watched Dieteman walk. Morin noted the knee moved beyond its ordinary range of motion, but Dieteman’s gait was normal. Based on his evaluation, Morin diagnosed Dieteman as having a torn medial collateral ligament (“MCL”).

There are multiple methods for treating a torn MCL. The conservative treatment is to try to stabilize the knee, manage pain and inflammation with medication, and caution the patient to avoid further injury. Surgical repair is a definitive and more aggressive treatment for a torn ligament, (Filing No. 97 ¶ 26 at CM/ECF p. 10; Filing No. 90-8 ¶ 7 at CM/ECF pp. 2-3), but it is not the first option used for treating a torn MCL absent evidence of a more serious condition. (Id. at p. 11). MCL injuries are capable of healing on their own. An MRI is necessary to gauge the extent of an MCL or ACL injury. (Filing No. 90 ¶ 27 at CM/ECF p. 8; Filing No. 97 at CM/ECF p. 11).

Morin noted Dieteman could easily injure his knee further. However, based on his examination and medical judgment, Morin concluded conservative treatment was proper: He did not believe surgery was appropriate at that time. (See Filing No. 90-8 at CM/ECF pp. 3, 4, & 9). He prescribed medication for pain and inflammation, provided an ace bandage and neoprene sleeve for stabilization, and instructed Dieteman to take precautions to avoid further injury. Morin noted an MRI was needed for further assessment, but surgery would not likely occur due to CCS’s policy.

Under CCS’s policy, if an inmate had an injury that did not cause significant pain, did not subject them to any meaningful risk of further injury, and did not impair their activities, surgical intervention was not pursued. A majority of inmates at LADC and DCCC were detained for short periods of time - the average incarceration was less than 25 days at each facility. CCS believed that in most cases, scheduling a surgical consult was not feasible or in the patient’s best interest due to the lack of time for a consult, surgery, and rehabilitation. For this reason, Morin was required to request approval before referring an inmate to outside medical care.

Morin saw Dieteman at LADC multiple times in the Spring of 2012. On March 15, 2012, Dieteman complained of pain in his groin and blood in his urine - attributing it to the pain medication. Dieteman also asked what was going to be done about his knee. On April 17, 2012, Dieteman wanted to have his eyes examined. He again complained of knee instability during the appointment and requested an MRI. Throughout these appointments, Morin did not change his previous determinations regarding Dieteman’s knee and treatment. (See Filing No. 90-8 at CM/ECF pp. 7-15).

On April 27, 2012, Dieteman was transferred to DCCC. Dr. Mark Foxall is the Director of Douglas County Department of Corrections (“DCDC”). Foxall is responsible for formulating and enforcing policies and procedures governing DCDC, including those policies facilitating inmate access to medical care. Captain Mary Earley is supervised by Foxall at the DCDC. Earley is tasked with monitoring CCS’s compliance with its duties. and she reviews inmate request forms (“kites”) regarding medical issues.

Inmate grievances, or “kites, ” which are addressed to the medical department go directly to CCS personnel for review. Earley personally investigates and responds to medical care complaints when directed towards Foxall or herself. (Filing No. 87 ¶ 11 at CM/ECF p. 7). Earley regularly communicates with Foxall regarding inmate medical issues and grievances. However, the discussions often concern either long-term care or emergency issues. Non-emergent issues receive less attention and are brief conversations “at best, if at all.” (Id. at ¶ 12). Foxall has never received information suggesting that the delegation of medical investigations and responses to Earley has negatively impacted detainee or inmate medical care. (Id. at ¶ 11).

After Dieteman arrived at DCCC, he submitted numerous kites regarding his knee injury: From May 2, 2012 to June 22, 2012, Dieteman submitted five kites to medical personnel (CCS). In one kite, he stated his right side had become numb but “the rest still hurts on a daily basis.” In a kite dated May 17, 2012, sent to the ‘medical director’ (Morin), he stated the pain had increased and was waking him up at night. On May 21, 2012, Morin saw Dieteman at DCCC. Dieteman informed Morin of the persistent pain and instability in his knee. Morin determined Dieteman had been under his care longer than expected. Morin scheduled an appointment for an off-site orthopedic surgeon consult with the goal of evaluating ...

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