United States District Court, D. Nebraska
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.
MEMORANDUM AND ORDER
R. ZWART, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
Plaintiff's Motion to Strike Defendants' Expert
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).
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)).
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
counters that the law still militates against a finding for
[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
. . .
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.
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.
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.
Plaintiff's Motion to Strike letter from Laura
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.
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).
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
motion to strike exhibit 3 will be granted.
FOR SUMMARY JUDGMENT
Standard of Review
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.
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.
Statement of Facts
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
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.
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.
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 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).
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).
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.
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.
remained segregated in confinement until November 19,
2015.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).
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.
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
i still have an absest [sic] front tooth and need another
round of antibiotics thank u frank foell
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.
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).
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
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,
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).
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).
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
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.
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
No. 74-2, at CM/ECF p. 105).
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.
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).
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).
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.
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.
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).
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 ...