Gordon ex rel. Gordon v. Frank

• Decision Date: 21 July 2006
• Docket Number: No. 05-3981.,05-3981.
• Citation: 454 F.3d 858
• Parties: Cynthia F. GORDON, as Trustee for the Heirs and Next of Kin of Walter Valentino GORDON, Deceased, Plaintiff-Appellee, v. Sheriff James FRANK; Deputy William Harrell, Defendants, Sgt. David Frantsi, Defendant-Appellant, Sgt. Garrett Kleinendorst, Defendant, Corrections Officer Lois Arends; Corrections Officer Vincent Deschene, Defendants-Appellants, Corrections Officer John Kuenkel; Allen Clevenger, R.N.; John Doe; Jane Row, (whose true names are unknown), Defendants, County of Washington, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 858

454 F.3d 858

Cynthia F. GORDON, as Trustee for the Heirs and Next of Kin of Walter Valentino GORDON, Deceased, Plaintiff-Appellee, v. Sheriff James FRANK; Deputy William Harrell, Defendants Sgt. David Frantsi, Defendant-Appellant Sgt. Garrett Kleinendorst, Defendant Corrections Officer Lois Arends; Corrections Officer Vincent Deschene, Defendants-Appellants Corrections Officer John Kuenkel; Allen Clevenger, R.N.; John Doe; Jane Row, (whose true names are unknown), Defendants, County of Washington, Defendant-Appellant.

No. 05-3981.

United States Court of Appeals, Eighth Circuit.

Submitted: May 19, 2006.

Filed: July 21, 2006.

COPYRIGHT MATERIAL OMITTED

Jon K. Iverson, argued, Bloomington, MN (Jason J. Kuboushek, on the brief), for appellants.

Jordan S. Kushner, argued, Minneapolis, MN, for appellee.

Before MURPHY, BEAM, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Cynthia F. Gordon sued Washington County, its sheriff and prison staff under both Minnesota tort law and 42 U.S.C. § 1983 for violating her husband's Eighth Amendment right to be free from cruel and unusual punishment. Sgt. David E. Frantsi, Officers Lois Arends and Vincent Deschene, and Washington County moved for summary judgment based on qualified and official immunity. The district court¹ denied the motion. Defendants appeal.² Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

Walter V. Gordon, Jr., was arrested and sentenced to 10 days in jail for driving without a license. He was released to a hospital to treat heart problems. After treatment, he did not return to jail. Washington County issued a warrant for Gordon to serve his five remaining days.

A year later, he returned to a hospital complaining of pain. After waiting in the emergency room, Gordon left without receiving treatment but called police for a ride home. Finding a warrant for his arrest, the police turned him over to a county deputy. Gordon told the deputy he had congestive heart failure and pneumonia.

At 5:23 p.m., Gordon arrived at the Washington County jail. He immediately complained of pain and informed prison staff that he had pneumonia, congestive heart failure, high blood pressure and diabetes. He presented his hospital discharge form, including a list of prescribed drugs. The jail nurse examined him. He concluded that Gordon was stable but might have to be rechecked. He placed Gordon on "high observation" for 24 hours and arranged for medications to be administered the next day.

After 11:00 p.m., Gordon was taken to his cell. He requested help climbing the stairs from the officers on duty, Arends and Deschene. He did not receive help, climbing the stairs on his own. Between 11:55 p.m. and 12:00 a.m., Gordon rang the officers' intercom three times. Both officers answered the calls. First, Gordon requested a blood pressure test and complained of other medical issues. Deschene stated he would relay the information. Gordon rang again and requested medication. Arends replied that he had already been seen. Finally, Gordon again requested medication, saying he could not breathe and was in extreme pain. Arends repeated he had been seen, stated they had no orders to provide him with medicine, and explained he could see medical staff in the morning. She threatened to place him in lockdown if he continued to buzz for non-emergency issues.

Gordon did not buzz again. Arends filed an incident report and notified her supervisor, Sgt. Frantsi, before 12:30 a.m. No immediate action was taken. The officers conducted wellness checks on inmates every 30 minutes throughout the night. During two checks early in the morning, Deschene spoke with Gordon, who said something about medication and trouble breathing. The officers observed Gordon resting on his bunk throughout the night. He changed positions restlessly. At 5:15 a.m., Deschene noticed that Gordon lay partially propped against the wall, blood flowing from his mouth, eyes open, and no sign of breathing. Deschene immediately notified Arends; she called Frantsi, who examined Gordon, finding no pulse. Gordon died of hypertensive and artherosclerotic heart disease.

II.

Denying summary judgment, the district court rejected claims of qualified immunity and official immunity. A denial of qualified immunity is immediately appealable "to the extent that it turns on an issue of law." Powell v. Johnson, 405 F.3d 652, 654 (8th Cir.2005), quoting Mitchell, 472 U.S. at 530, 105 S.Ct. 2806. Here, qualified immunity turns on the legal question whether appellants clearly violated the Eighth Amendment.

This court may reach issues of official immunity under the collateral order doctrine. See Alternate Fuels, Inc. v. Cabanas, 435 F.3d 855, 858 (8th Cir.2006), citing Mitchell, 472 U.S. at 525, 105 S.Ct. 2806 ("[A] denial of absolute immunity is appealable before final judgment because `the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action.'").

This court reviews de novo a denial of summary judgment based on qualified immunity. Powell, 405 F.3d at 654. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). This court considers the facts most favorably to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

Qualified immunity shields government officials from suit under 42 U.S.C. § 1983 if they acted reasonably and in a manner that did not violate clearly established law. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). First, the alleged conduct must violate a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Next, the right violated must be clear "so that a reasonable official would understand that what he is doing violates that right." Id. at 202, 121 S.Ct. 2151, citing Creighton, 483 U.S. at 640, 107 S.Ct. 3034. "[Q]ualified immunity would be defeated if an official `knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury....'" Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).

Deliberate indifference to a prisoner's serious medical needs is cruel and unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To show deliberate indifference, plaintiffs must prove an objectively serious medical need and that prison officers knew of the need but deliberately disregarded it. Crow v. Montgomery, 403 F.3d 598, 602 (8th Cir.2005), citing Farmer v. Brennan, 511 U.S. 825, 838, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); see also Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.1997). The subjective inquiry must show a mental state akin to criminal recklessness: disregarding a known risk to the inmate's health. Olson v. Bloomberg, 339 F.3d 730, 736 (8th Cir.2003), citing Gregoire v. Class, 236 F.3d 413, 419 (8th Cir.2000). Knowledge of risk may be inferred from the record. Gregoire, 236 F.3d at 417, citing Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Intentional delay in providing medical treatment shows deliberate disregard if a reasonable person would know that the inmate requires medical attention or the actions of the officers are so dangerous that a knowledge of the risk may be presumed. Plemmons v. Roberts, 439 F.3d 818, 823 (8th Cir.2006).

The officers do not challenge Gordon's objective medical need. At issue is whether Sgt. Frantsi, Officer Deschene and Officer Arends knew that Gordon was at a high risk of heart failure and disregarded it. "Particularly when considering such fact specific issues," the facts must be interpreted most favorably to Gordon, the nonmoving party. See Johnson v. Blaukat, 453 F.3d 1108, ___ (8th Cir.2006).

Officer Arends knew Gordon's risk was substantial when he spoke with her over the intercom. At roll call before her shift, Arends learned that Gordon had medical issues that placed him on high observation. She also knew he was released a year before for heart problems. During her shift, Gordon refused to climb the stairs to the cell because of his medical condition. She said, "We have nothing that says that you cannot go up the stairs.... You will go there." She observed him struggling up the stairs. On his third intercom call, he stated to her that he could not breathe, was in pain, and wanted a blood pressure check. Arends knew that the symptoms Gordon described over the intercom indicated high risk, yet she delayed medical treatment. She threatened to discipline Gordon. She eventually reported Gordon's statements Sgt. Frantsi, but after Gordon's complaints did nothing other than observe him.

Officer Deschene also knew that Gordon was on high observation. Gordon asked him for help up the steps, and Deschene watched him ascend. Deschene spoke to Gordon over the intercom about medication and overheard his conversation with Arends. Gordon at least once requested medicine from Deschene. He mentioned trouble breathing during Deschene's wellness checks after midnight. Deschene knew that Gordon was complaining of symptoms of heart trouble, but did not initiate medical treatment. In response to Gordon's complaints over the intercom and from his cell, Deschene promised to pass on the information and told him to relax.

Sgt. Frantsi knew that Gordon had medical issues that required extra observation. Officer Arends told him that Gordon had complained over the intercom of...