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Foell v. County of Lincoln

United States District Court, D. Nebraska

July 9, 2019

FRANK G. FOELL, Plaintiff,
COUNTY OF LINCOLN, a Nebraska Political Subdivision; PAMELA HICKS, in her individual and official capacities; JEROME KRAMER, in his individual and official capacities; and JOHN DOES 1-10, Defendants.



         Plaintiff Frank Foell has filed a civil rights action under 42 U.S.C. § 1983 against the County of Lincoln, Nebraska (“Lincoln County”) and against Lincoln County Detention Center (“LCDC”) nurse, Pamela Hicks; Lincoln County Sheriff, Jerome Kramer; and John Does 1-10, each in their individual and official capacities. Foell alleges Defendants were deliberately indifferent to his serious medical needs while he was incarcerated at LCDC. He also alleges pendant state law claims for negligence under the Political Subdivision Tort Claims Act. Neb. Rev. Stat. § § 13-901 et seq.

         Defendants now move for summary judgment as to all claims and Defendants based upon qualified immunity, the discretionary function exemption of the Political Subdivision Tort Claims Act, lack of proximate causation, and lack of any genuine issue as to any material fact. For the reasons stated below, Defendants' motion will be granted in full as to John Does 1-10, granted in part and denied in part as to Defendants Kramer and the County of Lincoln, and denied in full as to Defendant Hicks.


         A. Standard of Review Before the court evaluates the facts and legal issues raised on Defendants' motion for summary judgment, it must address the parties' respective objections to the proffered evidence. On summary judgment, “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed.R.Civ.P. 56(c)(2). “The objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.” Advisory Committee Notes to 2010 Amendment, Subdivision(c)(2). “[T]he standard is not whether the evidence at the summary judgment stage would be admissible at trial-it is whether it could be presented at trial in an admissible form.” Gannon Int'l, Ltd. v. Blocker, 684 F.3d 785, 793 (8th Cir. 2012).

         B. Plaintiff's Motion to Strike Defendants' Expert Affidavits

         Plaintiff claims Defendants failed to disclose their expert reports in accordance with the court-ordered case progression schedule. He therefore moves this court to strike exhibits 4, 11, and 12 from Defendants' Index of Evidence, and he moves that these exhibits not be considered on Summary Judgment. (Filing No. 71). Specifically, Plaintiff argues that Defendants: (1) did not timely identify Barbara Eshleman, R.N. (“Eshleman”) as an expert; and (2) failed to timely provide expert witness reports from all three experts-Eduardo Freitas, M.D. (“Freitas”), Daniel Evans (“Evans”), and Eshleman-as required by Fed.R.Civ.P. 26(a)(2)(B). Plaintiff asserts that to now permit Defendants to rely upon these previously undisclosed expert opinions will unduly prejudice the plaintiff. (Filing No. 71, at CM/ECF pp. 3-4).

         Defendants dispute Plaintiff's interpretation of the expert progression deadline, arguing that both their identification of experts and their disclosure of the three reports were timely. (Filing No. 82, at CM/ECF p. 2). Defendants argue that the court did not set new expert deadlines after the stay imposed for the settlement conference was lifted. (Id.) Therefore, Defendants argue that in the absence of a stipulation by the parties or a court order, expert disclosures must be made “at least 90 days before the date set for trial or for the case to be ready for trial.” Fed.R.Civ.P 26(a)(2)(D)(i)).

         Trial in this case is currently scheduled for August 26, 2019. Under Fed.R.Civ.P. 26(a)(2)(D), expert reports were therefore due by May 28, 2019. Defendants state that they did not have expert reports from Freitas, Eshleman, or Evans until March 28, 2019, and that these reports were provided to Plaintiff via email the next day, on March 29, 2019. (Filing No. 82, at CM/ECF p. 2). Therefore, Defendants argue that the identification of experts and disclosure of reports were done in a timely manner, two months ahead of the deadline. (Filing No. 82, at CM/ECF p. 2). Defendants further attest that Plaintiff was provided signed affidavits from each of the three experts two business days after Defendants received them. (Id.)

         Plaintiff counters that the law still militates against a finding for Defendants, explaining:

[T]here is a reasoned order in how a case progresses from the pleading to trial stage. Both parties are to be provided with the necessary discovery about the evidence and witnesses the other side is going to rely on for trial well in advance so the parties can do their due diligence in a timely fashion to determine if there is a need for rebuttal witnesses, lay or expert.
. . .
The reason that the summary judgment and Daubert motion in limine deadlines come after the end of the discovery deadline is to allow both parties to do the necessary discovery so there are no unfair surprises when a summary judgment is filed or a Daubert challenge to an expert witness is made.

(Filing No. 86, at CM/ECF p. 2). In sum, Plaintiff argues that permitting Defendants to evade the progression schedule's mandate would undermine the operational objective of the rules themselves.

         Plaintiff raises a valid point. Nevertheless, under the instant facts, Defendants' expert reports must be deemed timely under the plain language of Fed.R.Civ.P 26(a)(2)(D). Accordingly, because expert report deadlines were not included in the case progression order entered after the stay of progression, the 90-day rule applied. Plaintiff's motion to strike exhibits 4, 11, and 12 will be denied.

         That said, it appears the parties' expert deadline dispute arose because of the court's mistake. Specifically, I overlooked setting new expert deadlines when I entered a post-stay progression order, and the defendants took advantage of that oversight. As such, and in the interest of justice, the court will grant Plaintiff additional time to depose Defendants' experts in preparation for trial, and to disclose experts if he chooses to do so.

         C. Plaintiff's Motion to Strike letter from Laura Kubitz

         Plaintiff moves this court to Strike Exhibit 3 from Defendants' Index of Evidence in Support of Defendants' Reply Brief for Summary Judgment. (Filing No. 84). Exhibit 3 is a letter from Laura Kubitz, Administrative Assistant for the Nebraska Department of Health and Human Services, addressed to Defendant, Pamela Hicks (hereafter “Kubitz letter”). (Filing No. 81, at CM/ECF p. 8). The Kubitz letter informs Defendant Hicks that the Professional Board and the Attorney General have decided not to pursue an investigation into a complaint filed against Hicks. (Id.)

         Plaintiff argues the letter is inadmissible hearsay without foundation, lacks relevance, and it should be stricken from evidence accordingly. (Filing No. 85, at CM/ECF p. 2). Defendant counters that the letter falls under the Public Records exception to hearsay and is relevant, arguing:

The letter serves the purpose of demonstrating the lack of any evidence the Plaintiff has to support his claim that Nurse Hicks' actions fell below the standard of care under the Nebraska Standards. It also serves as a rebuttal for Nebraska Nursing Standards that the Plaintiff brought before this Court in the Plaintiff's Brief in Opposition to the Motion for Summary Judgment.

(Filing No. 89, at CM/ECF pp. 2-3).

         Defendants have not shown the letter is admissible, or that it could be admissible at trial. The allegations of the complaint against Nurse Hicks are unknown. (See Filing No. 81, at CM/ECF p. 8). The same is true of the investigation details and the rationale underlying the decision not to pursue prosecution. (Id.). The information and criteria considered by the Professional Board and the Attorney General is statutorily confidential under Nebraska law and therefore shielded from subpoena or discovery. Neb. Rev. Stat. § 38-1, 106. Further, Defendants' purported purpose of using the letter “as a rebuttal for Nebraska nursing standards” serves as an improper, undisclosed expert opinion without reference to a scintilla of supporting foundation. (See, Filing No. 89, at CM/ECF pp. 2-3). Therefore, the Kubitz letter is not probative of any issue and cannot be used at trial. Moreover, to the extent Plaintiff's claims are based on Hicks' alleged violations of state nursing regulations, a letter purporting to conclude that an investigation of such claims is unnecessary addresses the ultimate issue to be decided, invades the province of a jury, and is more prejudicial than probative.

         Plaintiff's motion to strike exhibit 3 will be granted.


         A. Standard of Review

         Under Fed.R.Civ.P. 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party seeking summary judgment bears the initial burden of articulating the basis for its motion and directing the court's attention to those portions of the record which prove the absence of a genuine issue of material fact. Id. at 323. Where Plaintiff bears the ultimate burden of proof on a dispositive issue at trial, this can be met by Defendants “pointing out to the district court-that there is an absence of evidence to support the non-moving party's case.” Id. at 325. After Defendant has met this burden, it is up to Plaintiff to set forth specific facts, beyond the pleadings, showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e).

         An issue is “genuine” if the evidence could lead a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248 (1986). A fact is “material” if the dispute might affect the outcome of the case under governing law. Id. 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). See also, Anderson, 477 U.S. at 251-52 (“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.”) (internal citations omitted). Where the party who bears the ultimate burden of proof presents sufficient probative evidence that would permit a favorable finding based on more than mere speculation, conjecture, or fantasy, summary judgment must be denied.

         B. Statement of Facts

         Limited to the admissible evidence, and for the purposes of the pending motion, the following facts are either undisputed or considered undisputed when viewed in the light most favorable to Plaintiff.

         Defendant Jerome Kramer is the Lincoln County Sheriff (“Sheriff Kramer”), having served in this capacity since August 2006. As commanding officer of Pamela Hicks, LPN (“Nurse Hicks”), and John Does 1-10, Sheriff Kramer was at all relevant times responsible for the training, supervision, and conduct of Defendants. In this capacity, Kramer also established and instituted policies and procedures to ensure that the LCDC staff obeyed state and federal laws, and enforced the regulations of Lincoln County.

         Nurse Hicks is a licensed practical nurse in the State of Nebraska, and at all relevant times served as the head detention center nurse for LCDC.

         In June 2011, Sheriff Kramer approached the Lincoln County Board of Commissioners to discuss the county's current contract for LCDC medical services with Sandhills Health District (“Sandhills”). The county's contract with Sandhills for the current fiscal year was scheduled to lapse on June 25, 2011, at which point the proposed contract for the next fiscal year was to be raised to $145, 973-an increase of $83, 973 from the current contractual rate of $62, 000. To avoid this cost increase, Sheriff Kramer proposed that the county instead hire a fulltime LPN to work for the county, noting that Drs. Walt and Deb Weaver had volunteered[1] to be doctors for the detention center. (Filing No. 74-2, at CM/ECF p. 111-12). Sheriff Kramer stated that he believed the county could make this program work for $62, 228 for the next fiscal year. The plan was unanimously approved and the Sandhills contract was not renewed. (Filing No. 74-2, at CM/ECF p. 6).

         As LCDC medical directors, the Weavers' primary role was to modify departmental protocols as needed, including implementing updates to LCDC's policy manual. (Filing No. 74-2, at CM/ECF p. 133-34). One main purpose of these revised protocols was to allow for the detention center's on-duty LPN to order and administer prescription medicine for identified conditions without contacting a doctor for further authorization. The Weavers' role of performing actual medical examinations for detainees or inmates at LCDC was “reserved . . . for extreme circumstances.” (Filing No. 74-2, at CM/ECF pp. 135-36).

         On November 15, 2015, Foell was arrested for DUI and resisting arrest by the North Platte police. Foell, who was heavily intoxicated and combative toward law enforcement, was taken to LCDC at approximately 10:20 p.m. (Filing No. 74-1 at CM/ECF p. 1). When he arrived at the LCDC, he was bleeding from the head, ankles, and foot, and he had wrist injuries, cellulitis on his left elbow, and a tooth infection, all of which were reported upon admission to the LCDC.

         On November 16, 2015, upon his intake to the detention center, Plaintiff was running a fever of 101 degrees, and his blood pressure as measured by Nurse Hicks was reportedly high. Hicks restricted Plaintiff's salt intake.

         Plaintiff remained segregated in confinement until November 19, 2015.[2]Plaintiff was provided acetaminophen on November 17, 18, 19, 20, and 21, 2015, two times per day and at night. (Filing No. 74-1, at CM/ECF p. 2).

         On November 19, 2015, Defendant was moved to the “General Population” at LCDC. That same day, Plaintiff submitted a medical request via the kiosk-the sole way for inmates to communicate their medical needs to staff. Foell stated that his injured elbow had become infected and that he suspected he was running a fever. Nurse Hicks later came by Plaintiff's cell, speaking to Foell through a tray-opening on his cell door. (Filing No. 74-1, at CM/ECF p. 2). Based on this communication, Nurse Hicks put Defendant on antibiotic Cephalexin, a generic form of Keflex. (Filing No. 74-2, at CM/ECF pp. 48-58). Nurse Hicks also started Foell on diphenhydramine (Benadryl), which he was ultimately given every night through December 24, 2015 “to help [him] sleep.” (Filing No. 74-1, at CM/ECF p. 3). Nurse Hicks did not take any of Foell's vitals, perform an examination of his elbow, or confer with a physician prior to starting Plaintiff on the Cephalexin prescription.

         Later, when Foell renewed his complaint of a suspected abscessed tooth, Nurse Hicks informed him that per dental protocol, two antibiotics needed to be given before an inmate would be allowed to see a dentist. (Filing No. 72, at CM/ECF p. 7). Accordingly, on November 30, 2015, Foell sent the following written medical communication to Nurse Hicks through the Kiosk system:

i still have an absest [sic] front tooth and need another round of antibiotics thank u frank foell

         (Filing No. 74-1, at CM/ECF p. 13). Nurse Hicks responded the next day, “I will get this ordered tomorrow and you will start tomorrow night or the next am.” Foell was never seen by a dentist while incarcerated at LCDC.

         On December 1, 2015, Plaintiff sent another communication through the kiosk, notifying Nurse Hicks that he was now experiencing excruciating back pain:

im [sic] having issues with my back, i [sic] have had problems with it in the past also do [sic] to car wrecks my back hurts so bad now i can hardly breath cant [sic] sleep and hurts bad to sit at table for chow could u [sic] please give something for the pain or even some muscle relaxers to get it unlock i [sic] seriously can't take the pain much longier [sic] thanks for any help in this matter frank foell.

(Filing No. 74-1, at CM/ECF p. 14). Foell further complained that he was constipated, having not had a bowel movement in days. Nurse Hicks responded by giving Foell Ibuprofen. Hicks did not further investigate or address Plaintiff's medical complaints but documented this response as “evaluated and treatment plan in place.” (Filing No. 74-1, at CM/ECF p.14).

         Early the next morning, on December 2, 2015, Foell again communicated to the nurse that he was “in serious pain”, and it was all he could “do to get out of bed” and was “having difficulty” getting up for count. (Filing No. 74-1, at CM/ECF p. 15). He again requested that he be allowed to see a physician for the “cruel and unusual” pain he was being made to suffer. (Id.)

         Nurse Hicks responded to Plaintiff's complaints by speaking with him through the tray opening in his cell door. Based on this visit, Nurse Hicks continued providing ibuprofen and Benadryl, and further provided Cleocin, docusate sodium, [3]and milk of magnesia. She did not perform any physical examination of plaintiff, take his pulse, temperature, or blood pressure, or refer him for evaluation by a physician. But she again documented that Foell's medical complaint was “evaluated and treatment plan made”. (Filing No. 74-1, at CM/ECF 14).

         On December 3, 2015, at 8:25 a.m., Plaintiff submitted another written communication, begging Nurse Hicks to address his “severe pain”, stating that he was about to lose his mind, that he hadn't slept in 5 nights and that he was keeping his cellmate up with his moans of pain. (Filing No. 74-1, at CM/ECF p. 17). Plaintiff further stated that he still hadn't had a bowel movement and felt that he was about to have a hernia from the pressure. (Id.) At this point, Nurse Hicks responded to Plaintiff, “I am changing the pain medications for a week to Tramadol”, a Class IV Controlled Substance. Once again, she performed no physical examination of Plaintiff, nor did she assess any of his vitals, refer him for evaluation by a physician, or indicate that she conferred with Dr. Deb Weaver. (Filing No. 74-1, at CM/ECF p. 5).

         Later that day, Defendant was sentenced to 90 days in jail after he pleaded guilty to driving under the influence. His custodial status was therefore changed from “detainee” to “inmate.”

         On December 5, 2015, Plaintiff submitted another communication via the kiosk to Nurse Hicks, requesting that he be put on the dental list to have his tooth pulled. On December 7, 2015, Nurse Hicks again replied that Plaintiff needed to be on two rounds of antibiotics before he could be scheduled to see the dentist. (Filing No. 74-1, at CM/ECF p. 18).[4]

         At 4:08 p.m. on December 7, 2015, Plaintiff submitted another communication via the kiosk to Nurse Hicks, stating that he was “in so much pain” it was “almost more than [he could] take.” (Filing No. 74-2, at CM/ECF p. 104). Plaintiff further relayed that he hadn't slept in days, and he requested an increase in his Unisom dosage. By this point, Plaintiff had been taking 50 mg of Tramadol twice a day since December 4, 2015, and Milk of Magnesia and Docusate Sodium since December 2, 2015. Later that day, Plaintiff submitted another communication via the kiosk:

Please we have to do something about my back, I can't eat [sic] I can't sleep [sic] I can't sit Im [sic]ready to pass out on my feet [sic] I can't even go to the bathroom right [sic] I have never had anything hurt this bad for this long [sic] pain scale of 1 to 10 would be a 10 please help

         (Filing No. 74-2, at CM/ECF p. 105).

         At this juncture, Nurse Hicks removed Plaintiff from his cell and took him to a private room to examine his back. Once there she identified and palpated a lump around the area of Foell's midback and attempted to “massage it away.” Foell reacted to this with a great deal of pain. (Filing No. 74-1, at CM/ECF p. 7). Nurse Hicks returned Plaintiff to his cell and did nothing further to address the palpated but undiagnosed lump or the worsening back pain.

         On December 10, 2015, Defendant started work release at the Super 8 Motel where he worked prior to his arrest. Plaintiff recounts that the work was physically difficult for him due to pain. However, his supervisor permitted him to limit his tasks to only those he was able to perform. (Filing No. 74-1, at CM/ECF pp. 6-7).

         On December 13, 2015, Plaintiff received his last dose of his antibiotics. (Filing No. 74-2, at CM/ECF p. 74). The next day, Nurse Hicks advised Plaintiff that she had scheduled a dental appointment for him-after his January 7, 2016 LCDC discharge date. (Filing No. 74-1, at CM/ECF p. 7).

         By December 18, 2015, Foell was “begging the Detention Center Staff to take [him] to the doctor or the Emergency Room because of [his] pain.” (Filing No. 74-1, at CM/ECF p. 8). Plaintiff was so desperate he even asked an LCDC staff member what would happen if he went to the Emergency Room while on work release. The staff member advised him that he would be charged with escape. (Filing No. 74-1, at CM/ECF p. 7). On this same day, Nurse Hicks put Plaintiff on four Ibuprofen, 200 mg twice daily, and withdrew the Tramadol prescription.

         On December 20, 2015, Plaintiff was scheduled for 6-7 hours of work release. However, after working just an hour, he had to return to LCDC due to severe back pain. For the remainder of the day, Foell struggled to get up from his bunk for count or to eat. At 7:00 p.m. that evening, Foell sent another communication to Nurse Hicks via the kiosk to state that the medication was not working, pleading that, “nobody should have [sic] hurt this bad for this long?” (Filing No. 74-1, at CM/ECF p. 21). Nurse Hicks provided no response to Foell that day.

         The next day, Nurse Hicks documented her kiosk reply: “We spoke about this today at am med pass…we will get the pain under control.” (Id.) Once again, she did not physically examine Plaintiff, take any of his vitals, mention any need to see a physician, or indicate that she conferred with Dr. Deb Weaver about how to properly get Plaintiff's pain under control. Following another conversation through the cell door's tray opening, Nurse Hicks put Plaintiff back on 50 mg Tramadol twice daily and docusate sodium. (Filing No. 74-2, at CM/ECF pp. 80-81).

         By December 20, 2015, Plaintiff was no longer physically able to get out of bed and walk to the kiosk to convey additional medical complaints. Meanwhile, his back pain continued to progress in severity despite the increased dosages of Tramadol and Ibuprofen administered by Nurse Hicks. (Filing No. 74-1, at CM/ECF p. 8). On December 23, 2015, Plaintiff advised the medication aide that he ...

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