Nur v. Olmsted Cnty.

563 F.Supp.3d 946

Kaiser Faisal NUR, Plaintiff,

v.OLMSTED COUNTY et al., Defendants.

Case No. 19-cv-2384 (WMW/DTS)

United States District Court, D. Minnesota.

Signed September 28, 2021

William L. French, William L. French, Attorney at Law, Rochester, MN, for Plaintiff.

Gregory J. Griffiths, Dunlap & Seeger, Rochester, MN, for Defendant Olmsted County.

Anthony J. Novak, Larson King, LLP, St. Paul, MN, Bradley R. Prowant, Stoel Rives, LLP, Minneapolis, MN, for Defendants Stella Essien, Elizabeth Schneider-Loberg, MEnD Correctional Care, PLLP.

ORDER ADOPTING REPORT AND RECOMMENDATION

Wilhelmina M. Wright, United States District Judge

This matter is before the Court on the August 26, 2021 Report and Recommendation (R&R) of the United States Magistrate Judge David T. Schultz. (Dkt. 73.) The R&R recommends granting in part and denying in part Defendants Stella Essien, Elizabeth Schneider-Loberg and MEnD Correctional Care, PLLC's motion for summary judgment and granting Defendant Olmsted County's motion for summary judgment. Objections to the R&R have not been filed. In the absence of timely objections, this Court reviews an R&R for clear error. See Fed. R. Civ. P. 72(b) ; Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). Having reviewed the R&R, the Court finds no clear error.

Based on the R&R, the foregoing analysis and all the files, records and proceedings herein, IT IS HEREBY ORDERED:

1. The August 26, 2021 R&R, (Dkt. 73), is ADOPTED.

2. Defendants Stella Essien, Elizabeth Schneider-Loberg and MEnD Correctional Care, PLLC's motion for summary judgment, (Dkt. 58) is GRANTED IN PART AND DENIED IN PART as follows:

a. The motion is DENIED with respect to Plaintiff's Fourteenth Amendment deliberate-indifference claims against Essien and Schneider-Loberg; and

b. The motion is GRANTED in all other respects.

3. Defendant Olmsted County's motion for summary judgment, (Dkt. 65), is GRANTED.

REPORT AND RECOMMENDATION

DAVID T. SCHULTZ, United States Magistrate Judge

INTRODUCTION

Plaintiff Kaisar Faisal Nur alleges Defendants were deliberately indifferent to his serious medical needs by withholding his anti-seizure medication. He further alleges Olmsted County and MEnD Correctional Care had a policy or practice that facilitated such deliberate indifference. Defendants have moved for summary judgment arguing that Nur cannot establish he had a serious medical need nor their deliberate indifference to it. Olmsted County and MEnD seek summary judgment on Nur's putative Monell claim, arguing he has failed to plead such a claim or provide any evidence to support it. For the reasons set forth below the Court recommends denying summary judgment on the deliberate indifference claim but granting it on the Monell claim.

FINDINGS OF FACT

I. Nur's Claims and the Parties

Nur has sued Stella Essien, a nurse practitioner (NP), Elizabeth Schneider-Loberg, a registered nurse, and their employer, MEnD Correctional Care, PLLC under 42 U.S. C. § 1983 claiming they violated his Eighth and Fourteenth Amendment rights by failing to provide adequate medical care in deliberate indifference to his serious medical needs. Specifically, he alleges they failed to give him anti-seizure medication while he was detained at the Olmsted County Adult Detention Center (ADC).

As to Olmsted County, Nur alleges the County is "responsible for the policies, procedures and practices implemented by its independent contractors" and "had final judgment on all medical matters related to healthcare of detainees." Am. Compl. ¶ 6, Dkt. No. 50. Nur also alleges that "Olmsted has a practice and custom of failing to provide adequate medical care and treatment as exemplified in Phillip Schaub v. Steven VonWald , 638 F.3d 905 (2011)," which "continues to the present day...." Id. ¶ 28. No explicit Monell claim is alleged in Nur's Amended Complaint.

II. State of the Record

This case comes to the Court on a motion for summary judgment in a somewhat unusual posture. The case concerns the failure to provide Nur's anti-seizure medication. It is undisputed that Nur requested his medication on several occasions while detained at the Olmsted County ADC; he did not have such medication in his possession when he arrived at the ADC; he was not given any anti-seizure medication while at the ADC in response to his requests; that on October 15, 2017, after being tased in the ADC, Nur suffered a seizure; and he went to the Mayo Clinic where they removed the taser barbs and "load[ed him] with Dilantin"⁴ and "prescribe[d] a short 1 week course of Dilantin for him so that his prison physicians can continue this." Dkt. No. 62 at 28. The Mayo Emergency Department also arranged for Nur to receive follow-up care in Mayo's epilepsy clinic. Beyond these undisputed facts the record is opaque.

The individual defendants, Stella Essien and Elizabeth Schneider-Loberg, have provided no evidence about the decision to withhold anti-seizure medication from Nur. Schneider-Loberg was not deposed and has filed no affidavits. Essien was deposed but has no present recollection of any of the events related to Nur and his request for his medication. Essien Dep. Tr. 3- 4, 6-7, 10-11, 14-15, Dkt. No. 61-1. For his part, Nur was deposed but has provided no affidavit to the Court. Accordingly, many of the critical facts of this case (and the basis for summary judgment) are entirely dependent upon the contemporaneous written record.

III. Sequence of Events

According to the Olmsted County Sheriff's Office Booking Card, Nur was booked into the Olmsted County ADC at 7:19 p.m. on May 7, 2017. Dkt. No. 32-2 at 1. The Booking Card indicates it was reviewed and signed by a registered nurse who dated the form "5/8/17 07:29." Id. The nurse's name is not legible. At the top of the Booking Card is a handwritten notation "seizures." Id. No other information is provided to this Court about the Booking Card except that it is portrayed as a Record of a Regularly Conducted Activity within the meaning of Federal Rule of Evidence 803(6). Aff. of Brian Howard ¶ 5, Dkt. No. 32.

The Court has also been provided a document titled Completed Questionnaire that was "completed by Plaintiff" at the time of booking. Id. It is a typed form that contains signature and date lines for the intake officer and the inmate. Dkt. 32-2 at 2-12. The Completed Questionnaire is not signed or dated by either the officer or Nur. Id. It is readily apparent from the face of the form that the detainee provides verbal answers to the officer who then inputs the information into the form via computer.⁵ According to the Booking Medical Questions portion of the Completed Questionnaire (which was printed at 9:56 p.m. on May 7, 2017) Nur had no regular doctor, no "current illnesses or health issues," and was not "taking any medications." Dkt. No. 32-2 at 3. The form also states that Nur was last seen by a doctor "long time ago." Id. No other information has been provided to the Court regarding the Completed Questionnaire. Nur denies that the form accurately recorded his answers to these questions. Nur Dep. Tr. 22-23, Dkt. No. 44-1. Another part of the form records that he last had a seizure four or five months previously (i.e. , approximately December 2016 or January 2017). Dkt. No. 32-2 at 7.

On May 12, 2017, five days after being booked into the ADC, Nur was transferred to Dakota County. See MEnD Medical Inmate Transfer Form, Dkt. No. 62 at 40. The document does not state the reason for transfer, but Nur's Amended Complaint says he was sent to Dakota County to make a court appearance. Am. Compl. ¶ 19, Dkt. No. 50. Nur apparently was transferred back to the ADC five days later. The record does not show a return transfer form, but Nurse Schneider-Loberg's handwritten note (discussed below) indicates he was at the Dakota County Jail from May 12 through May 16. Dkt. No. 62 at 78.

On May 17, 2017, ten days after arriving at the Olmsted County ADC and one day after returning from the Dakota County Jail, Nur sent a kite to the ADC medical provider that stated, "Can u order my siezure medication please. Thanks. Kaisar nur." In response to this kite an "admin user" replied (16 minutes and 40 seconds later), "You have not had seizure meds since october 2016. Provider will review." The document bears a handwritten notation that says "ESL RN 5/18/17." Id. at 91. The parties agree that ESL is Elizabeth Schneider-Loberg. Handwritten notes appear on a printout of Nur's original kite, which is reproduced below. Id. at 78.

The parties agree that the notes appear to be in the handwriting of Elizabeth Schneider-Loberg and report on two telephone conversations she had on or around May 18, 2017. The first notation states "Spoke [with] Shelly RN at Dakota County jail, 5/12-5/16 Ø meds. Oct 2016 he was on dilantin 100 mg ER, Kepra 500mg BID." This notation is signed ESL RN and dated 5/18/17. Below this notation is a second notation: "Provider Stella called, do not start Kepra, dilantin at this time." This notation is also signed ESL and dated 5/18/17. The notes of these two telephone calls and the subsequent typed response to Nur's original request for medication are the entire record regarding the initial decision not to provide anti-seizure medication to Nur.

About a month later, on June 15, 2017 Nur was seen by MEnD medical staff after he was hit in the head while in the gym. Id. at 76. The MEnD Medical Staff Narrative Note signed by Nurse Cheryl Rasmussen noted that Nur "states that he has had previous seizures in the past" and "states as though it feels as though he could have a seizure." Id. The ADC sent him to the St. Mary's Emergency Department. Id. at 49-50, 76. The MEnD Medical Appointment Transfer form notes Nur's "seizure history." Id. at 49. The form says the "reason for transferring" Nur to St. Mary's after the gym incident was his "head trauma, slow neuros, GSW [gun shot wound] to head [in 2005]." Id. at 50.

On September 23, 2017 Nur sent another message to the ADC medical provider stating, ...