Rusness v. Becker Cnty.
| Decision Date | 12 April 2022 |
| Docket Number | 21-1235 |
| Parties | Kyle Allen RUSNESS, Plaintiff - Appellant v. BECKER COUNTY, MINNESOTA, and its Personnel; Vivian Anderson; Josie Johnson, Defendants - Appellees Jane Doe, Defendant Matthew H. Johnson; John Freeman, acting in their individual capacities; Michele Clayson, acting in her individual capacities; Todd Glander, acting in his individual and official capacities; Paula Peterson, acting in her individual and official capacities, Defendants - Appellees Teresa Ullmer, Defendant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who presented argument and appeared on the brief on behalf of the appellant was Oliver E. Nelson, III, of Minneapolis, MN.
Counsel who presented argument and appeared on the brief on behalf of the appellee was William J. Everett, of Buffalo, MN. The following attorney also appeared on the appellee brief; Anna L Yunker, of Buffalo, MN.
Before SMITH, Chief Judge, GRUENDER and KOBES, Circuit Judges.
Kyle Rusness arrived at Becker County Jail in Minnesota with a number of physical ailments. Two weeks later, he was taken to the hospital and subsequently diagnosed with acute myeloid leukemia. Rusness underwent successful cancer treatment. His cancer has gone into remission, but he continues to suffer from multiple lasting side effects. He filed an action against Becker County and its personnel, claiming deliberate indifference to his medical needs, failure to provide adequate training and supervision to corrections officers, and negligence. The district court1 granted summary judgment in favor of the defendants. The court held that they were entitled to qualified immunity on the deliberate indifference claim and that Rusness had failed to present sufficient evidence of negligence and of failure to train or supervise. We affirm.
In December 2014, Rusness was arrested for driving violations and incarcerated in Rigby, North Dakota. On January 6, 2015, while still incarcerated, a doctor diagnosed him with an infection on his leg. Rusness had already been taking penicillin for a dental infection. The doctor discontinued the penicillin prescription and instead prescribed another antibiotic, Bactrim, for both infections.
Ten days later, on January 17, Rusness was transferred to Becker County Jail (BCJ) in Minnesota to be held as a pretrial detainee. On January 23, he was convicted of a probation violation and began serving his sentence. His intake form listed his medical concerns as: (1) MRSA (staph infection), (2) an infection in the mouth, (3) a body rash, and (4) cardiac issues. The form also noted that he was taking Bactrim. Shortly after his arrival at BCJ, Rusness submitted a Sick Call Request detailing his symptoms, including fatigue, dizziness, cardiac pain, night sweats, blurred vision, and bleeding gums.
During the relevant period, Sunnyside Care Center (Sunnyside) provided nursing services at BCJ. Two Sunnyside nurses, Teresa Ullmer and Tami Sweep, served BCJ inmates. One or the other would be available on-site at BCJ two to three days per week. Sunnyside nurses were also available by phone 24 hours a day.
On Monday, January 19, two days after Rusness's arrival, Nurse Ullmer attempted to see Rusness pursuant to his Sick Call Request. However, Rusness declined to see her. The following day, January 20, Officer Paula Peterson wrote an Incident Report noting Rusness's Sick Call Request, his refusal to see the nurse, and his Bactrim prescription.
Rusness submitted another Sick Call Request the next day, January 21, complaining of a headache, fever, vomiting, and "gums [that] look[ed] really bad," noting that his rash had cleared and requesting to see a doctor. R. Doc. 73-1, at 28. He agreed to see Nurse Sweep. Nurse Sweep visited Rusness and noted his complaints. She also described his appetite, temperature, blood pressure, and pulse as normal. She scheduled a dental appointment for him for February 4.
That Friday, January 23, he submitted a third Sick Call Request seeking a higher dose of ibuprofen for "very severe" mouth pain. Id. at 30. The next day, Saturday, January 24, Rusness spoke with Officer Peterson as she distributed medications. He asked her to look at a sore on his upper thigh. Officer Peterson told Rusness that a male corrections officer would need to examine the sore because of its location. She contacted Officers Vivian Anderson and John Freeman and asked them to check on Rusness. The officers met with Rusness, and Officer Freeman examined the sore. They decided to take him to the nearby Essentia Health walk-in medical clinic. Officer Freeman accompanied Rusness to the clinic. There, Rusness told the physician's assistant (PA), Vonda Eidenschink, who examined him about his various symptoms, including his bleeding gums. PA Eidenschink diagnosed him with gingivitis and a skin infection and prescribed him another antibiotic, Clindamycin, for his skin infection and an oral rinse to treat his gingivitis until his upcoming dental appointment. She also noted that Rusness had a number of additional concerns and recommended he receive a full physical exam by a family practice physician.
She wrote her instructions on an Inmate Medical Report, which Officer Freeman placed in the nurses' inbox at BCJ. Officer Peterson wrote an Incident Report documenting Rusness's complaints and his visit to the clinic.
The next day, January 25, Officer Christopher Burton filled out a Sick Call Request for Rusness. The request asserted that his symptoms were getting worse. Rusness submitted an additional Sick Call Request later in the day reporting that his throat was closing and that he was unable to gargle the prescribed oral rinse and had difficulty eating and drinking. He also requested a doctor's appointment. Later that day, Rusness's aunt visited. He told her, R. Doc. 60-1, at 19.
On Monday, January 26, Nurse Ullmer reviewed Rusness's Sick Call Requests and Inmate Medical Report. She did not, however, have access to PA Eidenschink's examination note. Consequently, although she knew Rusness had visited the medical clinic and received prescriptions, she did not know of his gingivitis and skin infection diagnoses. When Nurse Ullmer saw Rusness that day, she took down his complaints, including bleeding from the nose and mouth, vomiting, and seeing a "blood spot" in his eye when looking into the light. Id. at 97. Rusness told her that he could barely talk, but he spoke loquaciously, forcing her to interrupt him to complete her questions. She did not examine his nose or mouth during the visit. Rusness also repeatedly told Nurse Ullmer that he needed to go to the emergency room.
Afterwards, she scheduled an appointment for Rusness to see a family practice physician per PA Eidenschink's instructions for February 3, eight days later. She made Tylenol available to Rusness as needed. She wrote in the Nurse Logbook that he was continuing his antibiotic and mouth rinse and that she had scheduled a doctor's appointment for him. She instructed BCJ staff to report if Rusness was bleeding or vomiting.
Nurse Ullmer relayed this information to Officer Peterson, who wrote an Incident Report, which states, "The nurse does have some concerns but until [Rusness] is on the antibiotic for longer and the antibiotic starts working there is no reason for a follow-up with a doctor." R. Doc. 73-1, at 53 (all caps omitted). Nurse Ullmer testified at her deposition that she believed that Rusness had "no current symptoms that would trigger following up with a doctor at [this] time." R. Doc. 73-1, at 21.
The following day, January 27, Officer Josie Johnson spoke with Rusness as she delivered medication. Rusness declined his pain medication. She noted seeing some watered-down blood near Rusness. Having reviewed the Nurse Logbook prior to distributing medications, Officer Johnson did not believe that Rusness's condition was serious. However, she was concerned about the potential biohazard posed by the blood and called Officer Freeman to Rusness's cell.
After arriving, Officer Freeman noticed blood on Rusness's sheets as well as on the wall. He also saw bloody saliva in a cup on the floor. He reported the situation to Officer Anderson, the supervisor on duty, who also looked at Rusness's cell and had Officer Freeman take photographs of it. Then Officers Freeman and Anderson took Rusness in a wheelchair to a medical observation cell, where he could be monitored by camera. Officer Freeman took Rusness's temperature, which measured 99.9 degrees, a low-grade fever. Jail staff, including Officers Freeman and Anderson, monitored Rusness by video feed and performed well-being checks every 30 minutes. Rusness's temperature remained at 99.9 degrees when it was later checked. Officer Anderson also observed blood-tinged drool once while Rusness was sleeping.
During this monitoring period, Officer Anderson reviewed Rusness's file in the Nurse Logbook. From the file, she learned that (1) he recently had been to the clinic and given medical clearance to return to BCJ; (2) Nurse Ullmer had seen him the day before and concluded that his symptoms did not warrant another visit to the clinic; (3) Nurse Ullmer believed his antibiotic would need some additional time to start working; and (4) Nurse Ullmer anticipated that Rusness might experience additional bleeding and vomiting, which should be documented and reported. Officer Anderson also recalled learning from another officer that Rusness had been diagnosed with gingivitis at his clinic visit and had been prescribed an antibiotic and mouth rinse as treatment.
As there was no nurse on duty at BCJ at this time, Officer Anderson contacted the on-call nurse at Sunnyside for further...
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