Pietrafeso v. Lawrence County, S.D.

• Decision Date: 11 July 2006
• Docket Number: No. 05-1096.,No. 05-1038.,05-1038.,05-1096.
• Citation: 452 F.3d 978
• Parties: Kimberly PIETRAFESO, as Personal Representative of the Estate of Rocco Pietrafeso, deceased, Plaintiff-Appellant/Cross Appellee, v. LAWRENCE COUNTY, SOUTH DAKOTA, et al., Defendants-Appellees/Cross Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

452 F.3d 978

Kimberly PIETRAFESO, as Personal Representative of the Estate of Rocco Pietrafeso, deceased, Plaintiff-Appellant/Cross Appellee, v. LAWRENCE COUNTY, SOUTH DAKOTA, et al., Defendants-Appellees/Cross Appellants.

No. 05-1038.

No. 05-1096.

United States Court of Appeals, Eighth Circuit.

Submitted: February 16, 2006.

Filed: July 11, 2006.

Michael W. Strain, argued, Sturgis, SD (Gregory M. Garrison, San Diego, CA, on the brief), for appellant.

Thomas E. Brady, argued, Spearfish, SD, for appellee.

Before LOKEN, Chief Judge, LAY and SMITH, Circuit Judges.

LOKEN, Chief Judge.

Rocco Pietrafeso (Rocco) died following an acute asthma attack while detained at the Lawrence County Jail in Deadwood, South Dakota. His widow, Kimberly, filed this § 1983 action alleging that Lawrence County and four County officials — Chief Deputy Sheriff Joe Harmon, jail administrator Dale Larson, head jailer Bob Williams, and jailer Roger Asheim — were deliberately indifferent to Rocco's serious medical needs when they delayed medical treatment and denied prescribed medications. At the close of the plaintiff's case at trial, the district court¹ granted defendants' motion for judgment as a matter of law. Kimberly Pietrafeso appeals. Reviewing de novo the district court's grant of judgment as a matter of law, we conclude that the evidence did not permit reasonable jurors to find that any defendant was deliberately indifferent to Rocco's serious medical needs. See Spruce v. Sargent, 149 F.3d 783, 785 (8th Cir.1998) (standard of review). Accordingly, we affirm.

I.

We briefly summarize the trial evidence, resolving factual conflicts in favor of Pietrafeso. On Friday, July 28, 2000, Rocco was transferred from a correctional facility in Sterling, Colorado, to the Lawrence County Jail, a holding facility for pretrial detainees. The jail contracts with a local hospital for needed medical services. Rocco arrived at the jail at 7:10 p.m. Jailer Asheim conducted the intake screening interview, after receiving from the van driver an envelope marked with Rocco's name, inmate number, and the following notation in bold red letters:

URGENT Colo Inter-Correctional Medical Summary Transfer Report DELIVER TO MEDICAL DEPARTMENT AT ONCE

In the interview, Rocco told Asheim that he suffered from a severe asthma condition. Rocco said he was taking a "bunch" of medications, though he brought with him to the jail only an Albuterol² inhaler. Rocco did not tell Asheim that on July 20, just eight days earlier, he was sent to the Colorado prison's emergency clinic suffering from a severe asthma attack. Vance Siedenburg, the physician's assistant who treated Rocco at the prison clinic, testified that he exhibited "difficult breathing, sweating profusely, anxiety level very high, secondary to inability to breathe." Siedenburg administered steroid and adrenaline medications to alleviate Rocco's constricted bronchia. Siedenburg testified that he last saw Rocco on July 25, when his asthmatic condition had stabilized. Siedenburg prescribed two steroids, Prednisone and Beconase; two anti-anxiety medications, Ativan and Vistaril; an antihistamine, Zantac; Singulair; an Albuterol inhaler; and nebulizer treatments as needed.³ Siedenburg testified that the Colorado correctional officials did not consult him in preparing the Medical Summary Transfer Report that accompanied Rocco to the Lawrence County Jail in the red-lettered envelope.

Asheim testified that Rocco was tired when he arrived at the jail but exhibited no wheezing, difficulty breathing, or coughing during the intake interview. After placing Rocco in a cell with his inhaler, Asheim called Chief Deputy Harmon to ask permission to take Rocco and the red-lettered envelope to the hospital's emergency room so that the "bunch" of prescriptions could be filled. When Asheim advised that Rocco was not having any problems and had his inhaler, Harmon told Asheim to call the hospital, explain the situation, and see if the emergency room would fill prescriptions without seeing Rocco. Asheim called the hospital and was told that no prescriptions would be filled without seeing Rocco. Asheim then called head jailer Bob Williams, explained the situation, and suggested that Rocco be taken to the emergency room Saturday morning so that his prescriptions could be filled before the local pharmacy closed at noon. Before leaving the jail, Asheim taped the unopened red-lettered envelope to a conspicuous shelf in the control room.

Rocco was not taken to see a doctor Saturday morning, and his prescriptions remained unfilled. When Asheim came to work Saturday afternoon, Williams said he did not remember being asked to do that. Asheim's shift ended at 11:00 p.m. Saturday. He could not sleep that night because he knew from a former girlfriend's experience that a person with severe asthma had a constant need for medications. On Sunday morning, Asheim discussed the situation with Sheriff Rick Mowell, who said that Rocco could wait until Monday or Tuesday to see a doctor since he was not in apparent distress. Still concerned, Asheim then took the unopened red-lettered envelope to physician's assistant Kay Huhnerkoch at the hospital.

Huhnerkoch opened the envelope and reviewed its contents. A Colorado Inter-Correctional Medical Summary Transfer Report dated July 19, 2000, advised that Rocco was last seen by a physician on July 10 and listed his current medications as Albuterol, Ativan, and an antidepressant, Imipramine. The Report did not disclose Rocco's severe asthma attack on July 20, his treatment by physician's assistant Siedenburg, or the medications Siedenburg prescribed on July 25. The envelope also contained a one-month "Hospital Pass" for "Breathing Treatment" every 4-6 hours. Siedenburg described this document as a "kite" permitting a Colorado inmate to access the prison clinic without further approval; it was not a prescription. After reviewing these documents, Huhnerkoch advised Asheim that the inhaler was sufficient for the weekend unless Rocco needed to use it more than three times in a four-to-five-hour period, in which case he should be brought to the hospital's emergency room. Asheim returned to the jail with a note from Huhnerkoch to that effect and personally told Rocco what the note said. Pietrafeso's expert medical witness at trial, a forensic pathologist, testified that Huhnerkoch's note was prudent because excessive use of an inhaler means that the Albuterol is not effectively treating an asthma attack.

Asheim testified that Rocco was not wheezing or coughing or showing signs of discomfort and did not ask for a doctor when Asheim explained Huhnerkoch's note. However, a cell-mate testified that Rocco's physical condition deteriorated over the weekend and that he repeatedly asked the jailers for his medications. Similarly, Rocco's sister testified that he called her repeatedly to report that his inhaler was not working and that he needed more medication. She reported Rocco's complaints to jail administrator Larson on Monday, July 31.

Rocco was taken to see a doctor at 9:30 a.m. on Tuesday, August 1. The doctor reported:

Rocco was seen today. He has a longstanding history of reactive airway disease and COPD. Recently he has been incarcerated and unfortunately he has just been able to get his Albuterol inhaler, which is keeping him relatively stable, but he is quite uncomfortable and needs a broader treatment program. He has noticed just a slight amount of green material when he is coughing but this is minimally so. . . . He has had anxiety background with Ativan and Imipramine. . . . He is at the point where he feels that he may need some systemic steroids, which he has been on in the past. He is not on any topical steroid at this point.

(Emphasis added.) The doctor prescribed three inhalers (Albuterol, Flovent, and Salmeterol), Albuterol nebulizer treatments if needed, Ativan, Imipramine, and Singulair. He noted, "I think this needs to be reviewed within a week to see that he is stabilizing with this. If he is not, we may need to consider systemic steroids."

At 4:00 p.m. that afternoon, Larson picked up the prescribed medications at the local pharmacy and delivered them to Asheim at the jail. Asheim brought them to Rocco who said he needed to use the nebulizer. The nebulizer Asheim brought lacked a mouthpiece and could not function. When Asheim returned with a mouthpiece, Rocco was wheezing and in asthmatic arrest, but neither Rocco nor the jailers knew how to mix the prescribed Albuterol solution. Rocco found a pre-mixed bottle of Albuterol solution in the nebulizer left by its previous user. After breathing the nebulizer mist for a few minutes, he told Asheim it was not working. Asheim called an ambulance which arrived at 4:30 p.m. and rushed Rocco to the hospital. Rocco died of an acute bronchial asthma attack at 5:06 p.m.

The forensic pathologist testified that the level of Albuterol in Rocco's bloodstream showed that he had taken far more than the prescribed dosage of that "rescue" drug without overcoming the acute asthma attack. The pathologist further testified that the Flovent and Salmeterol inhalers would not treat an acute attack because these are maintenance drugs, not rescue drugs. "What would help him for the acute attack would be the...