Fugett v. Douglas Cnty.

• Decision Date: 29 September 2021
• Docket Number: 8:21-CV-125
• Parties: CODY FUGETT, Plaintiff, v. DOUGLAS COUNTY, NEBRASKA, and WELLPATH, LLC, Defendants.
• Court: U.S. District Court — District of Nebraska

CODY FUGETT, Plaintiff,
v.
DOUGLAS COUNTY, NEBRASKA, and WELLPATH, LLC, Defendants.

No. 8:21-CV-125

United States District Court, D. Nebraska

September 29, 2021

MEMORANDUM AND ORDER

Brian C. Buescher United States District Judge

I. INTRODUCTION

Cody Fugett sued Douglas County, Nebraska (“Douglas County”), and Wellpath, LLC (“Wellpath”) for negligence, medical malpractice and medical negligence, and violating the Eighth Amendment's prohibition on cruel and unusual punishment pursuant to 42 U.S.C. § 1983. Before the Court is Douglas County's Motion for Partial Summary Judgment on Count I of Fugett's Complaint, Filing 31, and Fugett's Motion for Leave to File Sur Reply Brief and Additional Exhibit in Opposition to Defendant's Motion for Summary Judgment. Filing 40. For the reasons stated herein, the Court grants Douglas County's motion, denies Fugett leave to file a surreply, and grants Fugett leave to file an additional exhibit in opposition to summary judgment.

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II. BACKGROUND

Fugett filed this action against Douglas County and Wellpath for their alleged wrongful denial of necessary medical treatment while he was incarcerated at Douglas County Correctional Center (“DCCC”) in 2019. Filing 1-1 at 4-18.

On September 11, 2018, the Douglas County Board of Commissioners voted to accept a bid to provide medical care to inmates housed at DCCC from Correct Care Solutions, LLC, now doing business as Wellpath. Filing 32-11 at 1-2; Filing 32-2 at 113. Douglas County and Wellpath entered into a contract on February 12, 2019, with services commencing on March 1, 2019. Filing 32-2 at 1. The contract requires Wellpath to provide several healthcare services by qualified healthcare personnel, to hold regular medical staff meetings, and to meet monthly with Douglas County Department of Corrections administration members to keep them apprised of any healthcare-related issues within the inmate population. Filing 32-2 at 15, 34, 44-46. Additionally, the contract states that Wellpath is an independent contractor and that its employees are not employees of Douglas County. Filing 32-2 at 25-26. The contract also requires Wellpath to employ a full-time, on-site administrator to ensure “successful delivery of health care pursuant to the contract.” Filing 32-2 at 34. A Douglas County “Contract Administrator” oversees the contract and evaluates Wellpath's performance. Filing 32-2 at 13. At all times relevant to this suit, Captain Mary E. Earley filled this position. Filing 32-1 at 1-2.

Fugett's incarceration began on April 4, 2019 and ended on December 4, 2019. Filing 38-17 at 1. According to Fugett's Complaint, he unknowingly contracted syphilis, a sexually transmitted disease, shortly before his incarceration began. Filing 1-1 at 7. During his April 4, 2019, intake screening, Fugett indicated that he had not “been exposed to or been diagnosed with . . . [a] venereal or sexually transmitted disease.” Filing 32-8 at 1. However, within about three

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weeks after intake, Fugett claims he began experiencing open sores on his genitals, painful urination, inflammation, and other unpleasant symptoms. Filing 1-1 at 7. According to Fugett, he notified DCCC staff about his symptoms. Filing 1-1 at 7. DCCC staff told Fugett to file an inmate request form, commonly referred to as a “Kite, ” and Fugett did so. Filing 1-1 at 7; Filing 38-17 at 1.

After Fugett filed his Kite, a medical professional examined him at DCCC's infirmary. Filing 38-17 at 1-2. According to Fugett, the medical professional refused to test for STDs and explained that a rule prohibited STD tests without exception until an inmate had been incarcerated for at least six months. Filing 38-17 at 2. Instead, Fugett claims, the medical professional provided three days of antibiotics that did not improve his condition. Filing 38-17 at 2. After his appointment, Fugett did not file a grievance form regarding his medical care because, he claims, it would not have resulted in timely medical care and he was afraid it would anger medical care staff. Filing 32-1 at 9-10; Filing 38-7 at 2. Later, Fugett received testing and learned he had contracted Syphilis and HIV. Filing 1-1 at 8.

On March 2, 2021, Fugett sued Douglas County and Wellpath in Nebraska state court. Filing 1-1 at 4. The Complaint alleges that Douglas County and Wellpath behaved negligently in providing medical care to Fugett, committed medical malpractice and medical negligence, and violated the Eighth Amendment's prohibition on cruel and unusual punishment. Filing 1-1 at 10-18. Douglas County and Wellpath removed the action to this Court on March 23, 2021. Filing 1. On June 14, 2021, Douglas County moved for partial summary judgment, claiming that sovereign immunity barred Fugett's negligence claim in Count I of his Complaint. Filing 31. Douglas County does not seek summary-judgment on the remaining causes of action in Fugett's Complaint. Fugett filed his Motion for Leave to File Sur Reply Brief on July 26, 2021, requesting that the Court

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permit him to respond to arguments made in Douglas County's Reply Brief, Filing 39, and seeking to file an attorney affidavit relating to the exhibits he previously filed with his Brief in Opposition to Partial Summary Judgment. Filing 40 at 3-4.

III. ANALYSIS

A. Standard of Review

“Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is not disfavored and is designed for every action.” Briscoe v. Cnty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “an absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. Prods., 779 F.3d 514, 517 (8th Cir. 2015) (citing Celotex, 477 U.S. at 323). Instead, “the burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to

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support the nonmoving party's case.” St. Jude Med., Inc. v. Lifecare Int'l, Inc., 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex, 477 U.S. at 325).

In response to the moving party's showing, the nonmoving party's burden is to produce “specific facts sufficient to raise a genuine issue for trial.” Haggenmiller v. ABM Parking Servs., Inc., 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial.” Wagner v. Gallup, Inc., 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson, 643 F.3d at 1042). “[T]here must be more than ‘the mere existence of some alleged factual dispute'” between the parties in order to overcome summary judgment. Dick v. Dickinson State Univ., 826 F.3d 1054, 1061 (8th Cir. 2016) (quoting Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989)).

B. Leave to File Surreply

Before proceeding to the merits of Douglas County's Motion for Partial Summary Judgment, the Court first addresses Fugett's Motion for Leave to File...