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Turner v. Board of County Commissioners of County of Lincoln

United States District Court, D. New Mexico

April 6, 2018

BILL TURNER, Plaintiff,
EMERALD CORRECTIONAL MANAGEMENT, LLC, aka LINCOLN COUNTY DETENTION CENTER; ARTHUR ANDERSON, Warden of the Lincoln County Detention Center, in both his individual and official capacities, LT. MOLLY GODINEZ, aka “Lori Beth Becker Godines”, an employee of the Lincoln County Detention Center, in both her individual and official capacities, Defendants.



         THIS MATTER is before the Court on Defendant Arthur Anderson's, in his Individual Capacity, Opposed Motion for Summary Judgment. [Doc. 6');">65');">5] The Court, having considered the submissions, the relevant law, and being otherwise fully advised in the premises, hereby GRANTS IN PART and DENIES IN PART the Motion.


         From January 1');">10, 201');">14 to July 9, 201');">14, Plaintiff Bill Turner was a pre-trial detainee housed at the Lincoln County Detention Center (LCDC). [Doc. 6');">65');">5-6');">6, p. 3; Doc. 6');">65');">5, Defendant's Material Fact 26');">6] Through an affidavit by another inmate, John Ogden, who was incarcerated at LCDC during the same period as Plaintiff, Plaintiff submitted evidence regarding the unsanitary habits of another inmate, referred to as AH. [Doc. 6');">66');">6, p. 1');">13, ¶ 1');">1] Mr. Ogden states that he was in the same housing unit (Bravo) as AH and that “AH would spread his feces and urine all over the showers, the toilet, and the day room, and he would spread his food around also.” [Doc. 6');">66');">6, p. 1');">13, ¶¶ 3-4] He states that he, Plaintiff, and other inmates each “cleaned up after AH some.” [Doc. 6');">66');">6, p. 1');">135');">5] He further stated:

6');">6. The guards would not give us gloves to clean up the feces, etc. of AH. They gave us a bucket of water, a dirty mop, and a broom, once a day in the morning. We asked for gloves and bleach and a scrub brush and they always said “we don't have any.” I never saw any additional small spray bottles accompanying the bucket.
7. I put up with this situation of AH and his unclean habits and LCDC not helping us clean up the mess for awhile, probably a month or so, and then I started complaining to the guards about it. I told them it was not our (the inmates) job to clean up after AH, that there is no policy and nothing in the Handbook that says that is our job that we have to clean up after AH. I told them that it was LCDC's responsibility and duty to provide us with a safe and clean environment.
8. When Warden Anderson would come by and visit the day room, I complained to him about AH and having to clean up after him. He said, “if you bring his (AH) name up again, I'll put you in seg.” “Seg” is short for “segregation.” He did in fact put me in segregation. When he would come around to segregation, I would talk to Warden Anderson about it. I would say “why am I in seg for something that I didn't even do? You are putting AH in there and putting us in harm's way health-wise and safety-wise” and Warden Anderson would say that he “didn't want AH to be in segregation because then his guards would have to wash him and clean up after AH all the time.” Because I kept complaining about having to clean up after AH, the Warden himself kept me in segregation.
9. I went back and forth between Bravo Unit and segregation. They would occasionally take AH out of Bravo Unit and put him someplace else. Whenever they took AH out of Bravo, they would take me out of segregation and put me back into Bravo. When they were ready to put AH back into Bravo, they would take me out of Bravo and put me into segregation again.
1');">10. . . . We [inmates] complained about it for so long that they finally after about seven (7) months the guards would come by about once per week and spray bleach on the sinks and toilet and shower and then we would have to scrub and clean it. They did this for about two (2) months, and I believe those two months were August and September of 201');">14, and then after these two months were over they went back to not giving us any bleach at all.

[Doc. 6');">66');">6, pp. 1');">13-1');">14] At his own deposition, Plaintiff stated that he asked a lieutenant for cleaning supplies, and that she refused to provide them, but he did not know whether that decision came from Warden Anderson.[1');">1" name="FN1');">1" id="FN1');">1">1');">1] [Doc. 6');">65');">5-6');">6, p5');">5');">p. 5');">5, 7]

         Shortly before being released, Plaintiff developed bumps like pimples or “an infected hair bump” on the back of his neck. [Doc. 6');">65');">5-6');">6, 5');">5');">p. 5');">5] After he was released, he saw a doctor who diagnosed him with methicillin-resistant Staphylococcus aureus, commonly called MRSA. [Doc. 6');">65');">5-4, ¶ 1');">13]

         Warden Anderson, the only remaining Defendant, testified that he is a “hands-on” administrator. [Doc. 6');">65');">5-7, p. 2; Doc. 6');">65');">5-2, ¶ 3] He was made aware that one inmate contracted MRSA at the LCDC, however, the Warden was made aware of the infection about six months after Plaintiff was released from custody. [Doc. 6');">65');">5-2, ¶¶ 6');">6-7; Doc. 6');">65');">5- 7, pp. 3, 5');">5] Emerald Healthcare Systems, L.L.C., the medical contractor, did not inform Warden Anderson of a “staph outbreak” in the detention center. [Doc. 6');">65');">5-7, pp. 3-4]

         Prior to his incarceration, Plaintiff was treated by Dr. Banikarim, M.D. [Doc. 6');">65');">5-3, p. 3] She saw Plaintiff on December 6');">6, 201');">11');">1, and her notes from that date do not indicate that Plaintiff had MRSA symptoms, nor do they mention any test for MRSA colonization. [Doc. 6');">65');">5-3, p. 3]

         Defendant relies on an affidavit by Dr. Rabih Darouiche, M.D. [Doc. 6');">65');">5-4] Dr. Darouiche is “board-certified in Infectious Disease, Internal Medicine and Spinal Cord Injury medicine.” [Doc. 6');">65');">5-4, ¶ 2] Dr. Darouiche states that when staphylococcal bacteria reside on or in the human body it is called colonization. [Doc. 6');">65');">5-4, ¶ 6');">6] “Not all people who are colonized with MRSA will develop an infection.” [Doc. 6');">65');">5-4, ¶ 6');">6] Infection occurs when “the bacteria have caused symptoms and signs such as fever, skin lesions, etc.” [Doc. 6');">65');">5-4, ¶ 6');">6] Dr. Darouiche attests that “approximately 31');">1.6');">6 percent of the American population is colonized with MRSA” [Doc. 6');">65');">5-4, ¶ 7], and that a special test is required to detect MRSA colonization. [Doc. 6');">65');">5-4, ¶ 8] “MRSA is primarily spread when a person's open skin comes in contact with the skin of a person who is colonized or infected with MRSA” or “with a surface contaminated with MRSA.” [Doc. 6');">65');">5-4, ¶ 1');">10] “Staphylococcus aureus is not a usual organism present in human stool. Therefore, MRSA is usually not spread by feces and it is highly unlikely, if not impossible, that MRSA can be spread by surfaces contaminated with human feces.” [Doc. 6');">65');">5-4, ¶ 1');">11');">1]

         Dr. Darouiche also attests that no competent physician can determine where Plaintiff acquired “the MRSA strain in this case.” [Doc. 6');">65');">5-4, ¶ 1');">12] Dr. Darouiche explains that MRSA can incubate for days, months, or years, and that “Plaintiff could have been colonized with MRSA for a number of years prior to entering LCDC, ” or he could have “acquired MRSA after his release from the jail.” [Doc. 6');">65');">5-4, ¶¶ 1');">12-1');">13] Dr. Darouiche states that Dr. Banikarim's records do not indicate that she tested Plaintiff for MRSA colonization. [Doc. 6');">65');">5-4, ¶ 9] Thus, Dr. Darouiche states that it is not scientifically reasonable to determine that Plaintiff contracted MRSA at LCDC. [Doc. 6');">65');">5-4, ¶ 1');">13] Finally, Dr. Darouiche opines that, even if Plaintiff contracted MRSA at LCDC, “there are no facts to suggest that anything LCDC did or did not do in any way contributed to the conversion of MRSA presence.” [Doc. 6');">65');">5-4, ¶ 1');">15');">5] He notes that “MRSA can be present in any facility despite the most thorough sanitation and hygiene procedures being observed.” [Doc. 6');">65');">5-4, ¶ 1');">14]

         Plaintiff relies on a letter from Dr. Obiefuna Okoli, who treated Plaintiff from December 201');">14 to May 201');">15');">5 for MRSA, in which he states that “[b]ased on his clinical presentation, it is very likely he had contracted MRSA while at the detention facility.” [Doc. 6');">65');">5-5');">5, p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4] However, at his deposition, Dr. Okoli stated “I think I was rather imprecise in the language” in his letter and that he “would like to change” his statement that it was “highly likely, ” to “say it is possible.” [Doc. 6');">65');">5-5');">5, p. 3] He further stated that, “without more information, more examination of his medical records before he went to detention and before he came to me, it's hard to say exactly where he got MRSA from.” [Doc. 6');">65');">5-5');">5, p. 3]


         Standard Governing Summary Judgment

         “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jones v. Kodak Med. Assistance Plan, 1');">16');">69 F.3d 1');">1287');">1');">16');">69 F.3d 1');">1287, 1');">1291');">1 (1');">10th Cir. 1');">1999) (internal quotation marks and citation omitted); see also Fed. R. Civ. 5');">5');">p. 5');">56');">6(a), (c). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.5');">5');">p. 5');">56');">6(c)(4). “A disputed fact is ‘material' if it might affect the outcome of the suit under the governing law, and the dispute is ‘genuine' if ...

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