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Hunt v. Johns

United States District Court, D. Nebraska

May 21, 2018

LARRY HUNT, Plaintiff,
v.
RON JOHNS, as an Individual and in his capacity as Director of the Scotts Bluff County Adult Detention Center, SCOTTS BLUFF COUNTY, MONUMENT VISION, PC, OREGON TRAIL EYE CENTER, PC, and JOHN DOES 1-99, Defendants.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Larry Hunt brings this action asserting claims under 42 U.S.C. § 1983 against defendants Ron Johns, Scotts Bluff County, and John Does 1-99 for acting with deliberate indifference to his serious medical needs-in this case, an eye condition Plaintiff suffered while incarcerated at the Scotts Bluff County Detention Center in 2015 that allegedly severely impaired Plaintiff's vision-and for failing to train jail employees to recognize inmates' serious medical needs. (Filing No. 1 at CM/ECF pp. 14-17; Filing No. 19 at CM/ECF pp. 4-5.) Plaintiff also asserts state-law negligence claims against these defendants, as well as against an optometry practice, Monument Vision, PC (“Monument”), and an ophthalmology practice, Oregon Trail Eye Center, PC. (Filing No. 1 at CM/ECF pp. 11-14.) Pending before the court is a Motion for Summary Judgment (Filing No. 39) filed by defendant Scotts Bluff County (“County”).

         Status of Defendants

         As a preliminary matter, it is necessary to clarify the status of each of the Defendants. Plaintiff's claims against defendant Johns in his official capacity as Director of the Scotts Bluff County Detention Center are actually asserted against the County. Elder-Keep v. Aksamit, 460 F.3d 979, 986 (8th Cir. 2006) (“A suit against a public official in his official capacity is actually a suit against the entity for which the official is an agent.”); Rogers v. City of Little Rock, Ark., 152 F.3d 790, 800 (8th Cir. 1998) (“Liability for city officials in their official capacities is another form of action against the city . . . .”). Therefore, Plaintiff's claims against Johns in his official capacity shall be dismissed as redundant of his claims against the County itself. Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1257 (8th Cir. 2010) (proper to dismiss claim against city officer in his official capacity as redundant of claim against city itself); Artis v. Francis Howell North Band Booster Ass'n, Inc., 161 F.3d 1178, 1182 (8th Cir. 1998) (district court correctly dismissed claim against public official in official capacity as redundant of claim against school district).

         Defendant Johns, in his individual capacity, has not been served with process, has not waived service, did not participate in the Rule 26(f) Planning Conference or issuance of the Rule 26(f) Report (Filing No. 19), nor has counsel entered an appearance on his behalf. Under Fed. R. Civ. P. 4(m), “If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time.” The court will dismiss Johns in his individual capacity without prejudice because: (1) Plaintiff has received adequate notice of the lack of service on Johns individually through the County's Brief in Support of its Motion for Summary Judgment, which clearly discussed the lack of service on Johns individually (Filing No. 40 at CM/ECF p. 2); (2) Plaintiff expressly “agrees” with the portion of the County's brief discussing the lack of service on Johns individually (Filing No. 42 at CM/ECF p. 1); and (3) after the County raised the issue in its Brief, Plaintiff did not contend in his Brief in Opposition that there was good cause for his failure to serve Johns individually, nor did Plaintiff request an extension of time to do so.

         For the same reasons, defendant Does 1-99 shall be dismissed from this action without prejudice. The dismissal of Does 1-99 is also supported by Plaintiff's failure to comply with the court's progression order, which contained an explicit July 31, 2017, deadline for Plaintiff to amend to identify any “John Does, ” which has long since passed. (Filing No. 19 at CM/ECF pp. 9-10 (Rule 26(f) Report; motions to amend pleadings to identify “John Does” in case caption shall be filed within 60 days of May 31, 2017); Filing No. 20 at CM/ECF p. 3 (Initial Progression Order; motions to amend pleadings to be filed by July 31, 2017)). See Sherman v. Winco Fireworks, 532 F.3d 709, 715-16 (8th Cir. 2008) (good cause required under Fed.R.Civ.P. 16(b) to amend pleading outside court's scheduling order).

         Defendant Monument Vision, PC, was dismissed from this case with prejudice after its Motion for Summary Judgment was granted in its favor. (Filing No. 34.) Therefore, the only remaining defendants are Scotts Bluff County and Oregon Trail Eye Center.

         Section 1983 Claims

         Plaintiff asserts section 1983 claims against the County for acting with deliberate indifference to Plaintiff's serious medical need and for having a “custom of practice of failing to train its employees to be observant of an[d] act upon signs and indications of serious medical needs in inmates.”[1] (Filing No. 1 at CM/ECF pp. 14, 17; Filing No. 19 at CM/ECF pp. 4-5.)

         The County may only be liable under section 1983 if the County itself caused a constitutional violation at issue. City of Canton v. Harris, 489 U.S. 378 (1989). In order for the County to be liable under §1983, its “policy” or “custom” must have caused a violation of Plaintiff's constitutional rights, or it must have been caused by a deliberately indifferent failure to train, such that the County would have known that its training program would cause constitutional violations of the type alleged. Doe By and Through Doe v. Washington County, 150 F.3d 920, 922 (8th Cir. 1998) (citing Monell v. Department of Soc. Servs., 436 U.S. 658, 694 (1978)).

         Thus, the first inquiry in any case alleging county liability under §1983 is whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. City of Canton, 489 U.S. at 385. An “official policy” involves a deliberate choice to follow a course of action made from among various alternatives by an official who has the final authority to establish government policy. Jane Doe A By and Through Jane Doe B v. Special School Dist. of St. Louis County, 901 F.2d 642, 645 (8th Cir. 1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986)). To establish the existence of a governmental “custom, ” Plaintiff must prove:

1) The existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees;
2) Deliberate indifference to or tacit authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and
3) That Plaintiff was injured by acts pursuant to the governmental entity's custom, i.e., that the custom was the moving force ...

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