Fugett v. Douglas Cnty.

• Decision Date: 15 February 2023
• 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

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

No. 8:21-CV-125

United States District Court, D. Nebraska

February 15, 2023

MEMORANDUM AND ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

Brian C. Buescher, United States District Judge.

Plaintiff Cody Fugett alleged three distinct Counts in his Complaint against two different Defendants: Douglas County, Nebraska (Douglas County) and Wellpath, LLC (Wellpath). Filing 1-1. Count I is captioned “Negligence,” Count II is captioned “Medical Malpractice, Medical Negligence,” and Count III alleges a violation of the Eighth and/or Fourteenth Amendments pursuant to 42 U.S.C § 1983. Filing 1-1 at 10-15. This Court concluded in a prior Order that Fugett could not go forward on Count I of his Complaint against Douglas County for lack of subject-matter jurisdiction. Filing 42 at 1. However, the Court's prior Order only pertained to Douglas County and did not dismiss Count I against Wellpath. See generally Filing 42.

This matter comes before the Court on two related Motions for Summary Judgment. Douglas County has now moved for summary judgment on Counts II and III. Filing 82. Wellpath has also moved for summary judgment on all Counts. Filing 86. Fugett separately responded to both Motions. See Filing 90 Filing 92. For the following reasons, the Court dismisses Fugett's claim against Douglas County in Count II for lack of subject-matter jurisdiction and grants summary judgment in Douglas County's favor on Count III. The Court also grants summary judgment in Wellpath's favor on all Counts.

I. BACKGROUND

A. Factual Background

1. The Contract Between Douglas County and Wellpath

Fugett's case arises out of the eight months he spent as an inmate at the Douglas County Corrections facility (DCC) in Omaha, Nebraska, from April 5, 2019, to December 4, 2019. Filing 1-1 at 4 (¶¶1-2); Filing 87-3 at 2 (¶6). Prior to this term of incarceration at DCC, Douglas County entered a contract with Wellpath “to provide comprehensive inmate health and mental health services to the persons in the custody of the Douglas County Department of Corrections (‘DCDC').” Filing 84 at 2 (¶1); Filing 90 at 4 (¶1); Filing 87 at 5 (¶2); Filing 92 at 2. This contract was in effect at the time Fugett was at DCC. See Filing 32-2 at 15. It provided, in pertinent part,

The Contractor [Wellpath] shall establish a comprehensive infection control program that includes monitoring and case management of inmates with infectious diseases such as HIV, TB, HCV, HBV, MRSA, and sexually transmitted infections such as gonorrhea, chlamydia, syphilis, and herpes. HIV counseling shall be consistent with the guidelines of the Centers for Disease Control (CDC) and state health department. An individual staff member shall be designated by the Contractor as responsible for the monitoring of infectious diseases and the reporting to the state health department as required. This individual shall be responsible to ensure that intake screening is carried out appropriately with questions relevant to infectious disease, which inmates are identified and treatment plans established, that inmates are followed through chronic/communicable disease clinics with consistent diagnostic testing and treatment consistent with community standards.

Filing 32-2 at 54-55.

Routine diagnostic testing for sexually transmitted diseases is not generally available within the jail setting unless the individual exhibits signs and symptoms of a communicable disease. This information may be uncovered during the receiving or transfer screening, during medical examination or through the sick call process. Any individual identified with a sexually transmitted disease such as syphilis, gonorrhea, or chlamydia, shall be treated immediately to ensure treatment prior to release. Screening for HIV, Hepatitis B or Hepatitis C shall be based on symptom description rather than routine lab testing for these illnesses. Individuals who seek testing shall be tested. All HIV testing is on a volunteer basis unless court ordered. Contractor will comply with State of Nebraska reporting requirements.

Filing 32-2 at 71.

2. Fugett's Health and Medical Treatment at DCC

Fugett contracted syphilis and HIV sometime shortly before his term of incarceration at DCC began. Filing 1-1 at 4 (¶13); Filing 83-14 at 27. However, he “reported no prior exposure to or diagnosis of any sexually transmitted disease or infection . . . during his initial screening on April 4, 2019.” Filing 87 at 6 (¶6); Filing 92 at 2. Within nine days of his arrival at DCC, Fugett submitted a written inmate request form (commonly referred to as a “kite”) addressed to “Medical.” Filing 87-3 at 2 (¶7); Filing 87 at 6 (¶6); Filing 92 at 2.^[1] In this kite, Fugett stated (among other things) that he would “like to be tested for STDs.” Filing 87 at 6 (¶11); Filing 87-3 at 2 (¶7); Filing 92 at 2; Filing 83-14 at 219. Medical staff submitted a written reply two days later on April 15, 2019, stating, “We do not do STD testing unless medically necessary. Do you have symptoms?” Filing 87 at 6 (¶11); Filing 87-13 at 2 (¶7); Filing 92 at 2; Filing 83-14 at 218. Fugett “did not submit a kite responding to the questions posed by medical staff.” Filing 87 at 6 (¶11); Filing 87-3 at 2 (¶7); Filing 92 at 2.

The following day, April 16, 2019, “Fugett received a mental health assessment and reported no symptoms and no history of syphilis, gonorrhea, or HIV.” Filing 87-3 at 2 (¶8); Filing 87 at 6 (¶12); Filing 92 at 2. Fugett also completed a syphilis questionnaire at this time and reported that he did not have HIV, he did not “have sex with men who have sex with men,” he had not had a positive syphilis test in the past, and he had not recently experienced genital sores, blisters, ulcers lasting three to six weeks, or an unexplained rash on a large part of his body, hands, or feet. Filing 87 at 6-7 (¶12); Filing 87-3 at 2-3 (¶8); Filing 92 at 2; Filing 83-14 at 220.^[2]

The next time Fugett made mention of any STD via a kite was over a month later on May 27, 2019. Filing 87 at 7 (¶13); Filing 87-3 at 3 (¶9); Filing 92 at 2; Filing 83-14 at 198. He wrote, “Have some possible STD or something sores on my penis please help.” Filing 87 at 7 (¶13); Filing 87-3 at (¶9); Filing 92 at 2; Filing 83-14 at 198. This was the first time that Fugett had reported a potential symptom. Filing 87 at 7 (¶13); Filing 92 at 2. Fugett was seen and evaluated by a Licensed Practical Nurse (LPN) on June 3, 2019-exactly one week after he submitted the kite. Filing 87-3 at 3 (¶9); Filing 87 at 7 (¶13); Filing 92 at 2. During his June 3, 2019, appointment with the LPN, Fugett reported experiencing intermittent pain to his left testicle accompanied with a lump. Filing 87 at 7 (¶13); Filing 87-3 at 3 (¶9); Filing 92 at 2; Filing 87-7 at 2. The LPN obtained Fugett's vital signs, completed a physical examination, and noted that he had penile blisters. Filing 87 at 7 (¶13); Filing 87-3 at 3 (¶9); Filing 92 at 2; Filing 87-7 at 3. The LPN scheduled a follow-up appointment for Fugett to be seen by a medical doctor. Filing 87 at 7 (¶13); Filing 87-3 at (¶9); Filing 92 at 2.

Fugett was seen by Dr. Anthony Montegut the very next day, June 4, 2019. Filing 87 at 7 (¶14); Filing 87-3 at 3 (¶10); Filing 92 at 2. Dr. Montegut also took Fugett's vitals and completed a physical examination. Filing 87 at 7 (¶14); Filing 87-3 at 3 (¶9); Filing 92 at 2; Filing 87-8 at 3. During the examination, Dr. Montegut observed an “[e]rythematous based, vesicular rash across [the] tip and distal shaft of [Fugett's] penis.” Filing 87-8 at 4; Filing 87 at 7 (¶14); Filing 87-3 at 3 (¶10); Filing 92 at 2. Dr. Montegut assessed Fugett as presumptively having genital herpes simplex virus (HSV), ordered a herpes antibody test, and prescribed Fugett an antiviral medication that is commonly used to treat recurrent HSV symptoms. Filing 87 at 7 (¶14); Filing 87-3 at 3 (¶10); Filing 92 at 2; Filing 87-8 at 4. Fugett's HSV-antibody test came back positive for both oral and genital herpes two days later on June 6, 2019. Filing 87 at 7 (¶15); Filing 87-3 at 3 (¶11); Filing 92 at 2; Filing 87-9 at 4.

On June 20, 2019, exactly two weeks after his HSV tests came back positive, Fugett was transferred to the University of Nebraska Medical Center (UNMC) after he reportedly tripped down a flight of stairs at DCC. Filing 87 at 7 (¶16); Filing 87-3 at 4 (¶12); Filing 92 at 2. “While at UNMC, he was seen and assessed by numerous providers and his bloodwork was evaluated.” Filing 87-3 at 4 (¶12); Filing 87 at 7 (¶16); Filing 92 at 2. “Fugett made no requests for STD testing, and he reported no symptoms related to any potential STD when he was seen by providers at UNMC. Filing 87-3 at 4 (¶12); Filing 87 at 7-8 (¶16); Filing 92 at 2.

Three months went by with no complaints by Fugett related to any STD. Filing 87 at 8 (¶17); Filing 92 at 2. On or about September 25, 2019-nearly six months into his eight-month term of incarceration at DCC-Fugett submitted another kite addressed to “Medical” in which he noted that he had taken an HIV test prior to arriving at DCC and was “now” experiencing symptoms. Filing 87 at 8 (¶17); Filing 87-3 at 4 (¶13); Filing 92 at 2; Filing 87-10. On or about September 26, 2019, a provider responded to Fugett and asked “where to obtain Fugett's prior HIV records, what his symptoms were, where the testing occurred, and what medications he previously took.” Filing 87-3 at 4 (¶13); Filing 87 at 8 (¶17); Filing 92 at 2; Filing 87-10.^[3] Fugett “did not submit a kite in response to the questions posed by medical staff.” Filing 87 at 8 (¶17); Filing 87-3 at 4 (¶13); Filing 92 at 2.

On October 5, 2019, approximately 10 days after submitting that kite, Fugett had a visitor at...