Submitted: March 12, 2019
from United States District Court for the District of
GRUENDER, BENTON, and GRASZ, Circuit Judges.
DeLuna and the Minnesota Department of Human Services
("MDHS") brought this negligence action after an
official at the Mower County, Minnesota Jail (where DeLuna
was serving time) provided and made DeLuna wear shoes that
were too small for his feet. DeLuna says the shoes caused a
blister on one of his left toes, which ultimately resulted in
a severe infection requiring multiple corrective surgeries.
The district court granted summary judgment in favor of Mower
County ("County"), and DeLuna appeals. Because we
conclude there is a genuine issue of material fact as to
whether the County negligently caused DeLuna's injury and
that it is not entitled to vicarious official immunity, we
December 2014, DeLuna began serving a 180-day sentence at the
jail for a driving-related offense. All inmates at that
location were required to wear
"Croc"-style slip-on shoes provided by the jail.
February 10, 2015, a jail officer took away DeLuna's old
slip-on shoes and made him wear a replacement
pair. DeLuna quickly noticed the shoes were too
tight and rubbed against his feet. DeLuna wore a men's
size ten but says the new shoes were a women's size ten.
Later that day, DeLuna complained to a jail officer about his
shoes being too small, but he was told no other shoes were
available at that time and his old slip-on shoes had been
thrown out. DeLuna says he then suffered a blister on his
left foot's middle toe, and he complained to a jail
sergeant about having a sore toe. The jail's medical
records say DeLuna refused to see a nurse because he wanted
to continue participating in the jail's "Sentence to
Serve" program ("STS"), which allows inmates
to perform volunteer community work (often outdoor manual
labor) to reduce the length of their sentences. DeLuna,
however, denies refusing treatment that day.
next day, on February 11, DeLuna participated in the STS
program from 7:45 a.m. until 4 p.m. and wore his own personal
shoes, as was allowed during STS work hours. Upon returning
to the jail, DeLuna says a jail officer noticed the third toe
on DeLuna's left foot had a blister. DeLuna told the
officer the slip-on shoes he had been wearing were too small,
and the officer immediately provided DeLuna with a larger,
better-fitting pair. The jail's medical records show
DeLuna complained that day to a jail officer again about a
sore toe (DeLuna later testified his toe "was just
blowing up" by then) and that he still refused to see a
nurse. DeLuna also denies he refused treatment on February
February 12, DeLuna says his left foot was in such pain he
could not get out of bed. He filled out a "Sick Call
Request Form" seeking treatment. He was examined by the
jail's nurse, who completed a medical report stating
DeLuna's injured toe was "warm [and] swollen"
and that DeLuna said it began as a blister. The nurse
prescribed an antibiotic to be taken twice a day and
instructed DeLuna to keep the toe clean, apply a topical
ointment, and wrap it in gauze. DeLuna said his toe had an
open sore by that point.
evening of February 13, the jail's overseeing officer
observed DeLuna's toe was "purple and leaking."
The officer drew a line toward the top of DeLuna's foot
and told him to let the jail know if the redness and swelling
progressed beyond the line. It soon did, and the jail's
doctor recommended DeLuna be taken to a hospital. Jail staff
took DeLuna to a Mayo Clinic emergency room.
was diagnosed with having Methicillin-Resistant
Staphylococcus Aureus ("MRSA"), a super-strain of
staph infection resistant to usual penicillin-based
medication. DeLuna remained in the hospital for ten days and
underwent three surgeries on his left foot to remove the
infection. As a result, DeLuna says he has a large scar
running down the middle of his foot and residual sharp pains
in the same area. MDHS paid his sizeable medical bill.
and MDHS brought a lawsuit in state court against the County,
the County Sheriff, and a number of jail officers, raising
four counts: (1) negligence in providing shoes that were too
small, resulting in his MRSA infection; (2) negligence in
providing an environment infested with bacteria and viruses,
including MRSA; (3) willful failure to provide adequate
medical treatment in violation of the Eighth and Fourteenth
Amendments under 42 U.S.C. § 1983; and (4) failure to
adequately train jail officers in providing suitable shoes,
adequate medical care, and a safe environment in violation of
the same rights. The defendants removed the suit to federal
district court and, following discovery, moved for summary
judgment on all claims. DeLuna then voluntarily dismissed all
claims and defendants except his negligence action against
the County for providing undersized shoes.
supplemental jurisdiction under 28 U.S.C. § 1367(a), the
district court granted summary judgment to the County on
DeLuna's negligence claim. The district court concluded
DeLuna failed to show the County breached a duty of care
because contracting MRSA was not a foreseeable danger of
wearing shoes that were too small for less than 24 hours. The
district court also concluded DeLuna failed to show any
breach proximately caused his injuries because, based on
testimony from the County's expert witness, "many
other causative ...