Alberson Ex Rel. Estate of Alberson v. Norris
458 F.3d 762
8th Cir.
2006
Check Treatment
Docket

*1 (8th Cir.2005) (explaining required that remand is not where an er- application guidelines

ror

harmless). remand, the district court guidelines

should apply sentencing

range corresponding offense level grant adjustment

and should Morris an

his sentence for time served his Mis-

souri for burglary state conviction re-

ceipt property pursuant stolen 5G1.3(b) “if the court determines that period

such of imprisonment will not be

credited to the federal sentence

Bureau of Prisons.”

III. CONCLUSION

For above, the reasons set forth

vacate the sentence and remand the case district court resentencing con-

sistent with this opinion. ALBERSON, Special

Barbara

Administrator of the Estate of Alberson, Appellant,

Larry NORRIS, Director of the Arkan- Correction;

sas Cor- Services; Kay

rectional Medical How-

ell, Wrightsville Unit; Warden of Byus; MD; Ella

Casady; Betty Leatherwood, Appel-

lees.

No. 06-1534.

United States Appeals, Court of

Eighth Circuit.

Submitted: June 2006.

Filed: Aug. *2 Rock, AR, Hewett, Little

Marceliers appellant. Hall, AR, for Humphries,
Alan White Services, Correctional Medical appellees Betty Inc., Leath- Dr. James erwood. Richardson, AAG, of Little P.

Scott Norris, Kay Rock, AR, appellees Larry Byus. SMITH, HEANEY and Before GRUENDER, Judges. Circuit GRUENDER, Nonetheless, Judge. response. Circuit received a similar Aberson received treatment Alberson, on of her Barbara behalf de physician at the Unit Infirma- special ceased James Alberson and as ry separate six dates between *3 estate, appeals of an administrator ad 29, including two-night and October summary judgment on grant verse of her infirmary stay in the ward. He received § 1983 claim. Ms. Alberson al U.S.C. multiple rounds of antibiotics and other leges appellees with the acted deliber infections, reflux, for ear treatments acid ate with respect indifference the medi Alberson, edema of legs, pain, cal bilateral knee er- treatment of Mr. who died rash, ythema from complications arising Goodpas purpuric hypersen- from Syndrome ture of custody sitivity while vasculitis. Arkansas of Correction Mr. Aberson re- (“ADC”). For reasons discussed be infirmary turned to the with complaints of low, judgment affirm the of we the district joint pain, of shortness breath and sore court.1 throat. Dr. Branch a preliminary made began Mr. Alberson twelve-month sen- infection, diagnosis streptococcus pre- 16, May

tence at the ADC on scribed new antibiotics and ordered addi- driving-while-intoxicated conviction. At all diagnostic tional tests. On November action, Larry times relevant to this Norris Dr. Branch called Mr. Aberson to the ADC; Kay was the Director of the infirmary examination, a follow-up not- Wrightsville was warden of the Unit of the cough ed a chronic persistent sore ADC; Byus was the Medical Admin- throat x-ray and ordered chest and a ADC; istrator Correctional Medical of laboratory series tests. November (“CMS”) Services was under contract to 12, when Mr. Aberson’s condition failed to ADC; provide medical services Dr. improve, prescribed he was a different an- physician James Branch was employed tibiotic. On November Mr. Aberson CMS; by Betty Leatherwood was a produced cough blood ad- (col- registered employed nurse CMS infirmary mitted to the The ward. chest lectively, “Appellees”). x-ray ordered three earlier had not Mr. began suffering ear- from performed. been When Mr. Aber- aches before arriving son’s not improved condition had the fol- Unit 2003 and filed numer- morning, Dr. lowing suspected Branch requests ous medical service after his ar- pneumonia and transferred Mr. Aberson rival. Between and October Rock, Hospital Southwest in Little A- Mr. complained Aberson of his earaches kansas. Mr. lapsed vege- Aberson into a and other afflictions in A- letters Ms. tative state on November 18 and died the berson. Ms. Aberson turn called How- day. next approximately thirty ell times to demand An autopsy determined Mr. Aberson’s receive medical treatment. pulmonary cause death to be hemor- Ms. alleges Aberson that Howell told her rhage resulting and renal repeatedly failure from nothing wrong that “there’s Syndrome. your Goodpasture Goodpasture son” and that her son “a Syndrome faker actor.” Ms. is a Aberson also rare autoimmune disease September called in late 2003 and diagnose is difficult to because its Wilson, Jr., 1. The Honorable William R. Unit- trict of Arkansas. ed States District Court for Dis- the Eastern 97, 104-05, “confusing pic- 50 L.Ed.2d 251 clinical S.Ct. present a symptoms (1976). Snyder’s Li- Medical claimant must show that ture.” 7 Ausman & Edition) (1999). § (Lawyers’ “prison actually 14:32 officials knew of but brary delib pulmo- erately disregarded” prisoner’s objec the initial who survive “Patients usually progress Dulany to end- nary hemorrhage tively serious medical needs. Carnahan, § de- Id. 16:16. No stage renal failure.” Cir. 1997). exists. Id. therapy finitive Given the extensive record medi cal Mr. Alberson Appellees under Ms. Alberson sued the case, agree this with the district court alleging Appel- 42 U.S.C. sup that Ms. Alberson’s evidence deliberately indifferent lees were *4 any port prison a claim that official delib The medical needs. Alberson’s serious erately disregarded Mr. Alberson’s suffer mo- granted Appellees’ court the district Therefore, ing. analyze Ms. we Alberson’s (1) summary judgment because tions for claim as one that the medical treatment treat- undisputed evidence of medical provided to Mr. Alberson was so inade provided to Alberson foreclosed ment Mr. to of quate to rise the level deliberate intentionally finding Appellees a indifference.2 (2) suffering, Mr. Alberson’s ignored expert evi- did not submit Ms. Alberson inadequate To a claim state be- prove to a causal connection dence purposes, medical treatment for 1983 “a provided treatment tween the medical prisoner allege must acts or omissions suf Mr. Alberson’s death. Appellees ficiently to in harmful evidence deliberate to medical Es difference serious needs.” We review the district court’s telle, U.S. at S.Ct. 285. summary judgment novo and grant of de plaintiff negligence, “must show more than light the facts in the most favor examine gross negligence, more even than summary judg party opposing able Vincenz, disagreement mere with treatment deci v. 382 F.3d ment. Revels Cir.2004). (8th not rise the level of a consti sions does to prison A de official’s v. Rosenberg tutional violation.” Estate to prisoner’s liberate indifference a serious Cir.1995). (8th Crandell, 35, 37 cruel and unusu medical needs constitutes treatment of Eighth complaint of the Where the involves punishment al violation Gamble, a medical condi- prisoner’s sophisticated Estelle v. 429 U.S. Amendment. 17, 2003, diagnosis August "gaps” and the 2. The dissent contends that certain ined on treatment, stated, problems!;] allergy can't hear “[H]as in combination Mr. Alberson's red[,] swelling!,] by pris- no some inappropriate remarks made out ear —ears Alberson, drainage!;] give Tylenol.” ctm and Mr. to Ms. constitute suffi- will on officials jury prescribed further medi- question as to also cient evidence create at prison disre- cation his heartburn that time. Simi- whether officials However, may suffering. larly, be read to garded to the extent the dissent Mr. Alberson’s imply imply a medical may be that Mr. Alberson submitted the extent the dissent read to no request on October 2003 but received an ear infection Mr. Alberson to the infirma- July treatment until his admittance 2003 but received no 29, 2003, ry Mr. on October we note that Mr. Alberson for it until note that Diagnos- prescribed was examined on October Alberson was examined at ADC given pre- sling "no work” restric- tic and was ice Unit on short, clear that tion. the record makes scribed a course of oral medication and ear challenges drops ear Ms. Alberson’s evidence best for the infection. Notes from of treatment Alberson was al- wisdom of the course visit also reflect that Mr. Alberson, suggest a delib- day and does not ready taking Zantac twice a at that time disregard suffering. of his Mr. Alberson was reexam- erate for his heartburn. tion, testimony required HEANEY, expert is Judge, dissenting. show Circuit Weber, proof of causation. Gibson I respectfully in part. dissent There is Cir.2006). than more sufficient evidence of the cor- agree We with the district court that rections deliberate indifference of proof Ms. Alberson’s claim fails lack James Alberson’s instance, require Thus, causation. For Robinson v. health issues to a trial. (8th Cir.2002), Hager, pris- summary judgment 292 F.3d 560 was inappropriate and oner suffered stroke after officials the matter should be Although remanded. failed to him provide pressure with blood present record directly link medication. We held that “although per- employ- James’s death the corrections suffering indifference, from a may stroke exhibit clearly ees’ it shows that he symptoms, visible great pain stroke itself is a suffered prior to his be- death injury sophisticated which could be caused cause denied by numerous factors other than lack appropriate of him access to medical treat- Therefore, expert medication. medical ment. testimony is prove needed to causation.” *5 obligated, Corrections officials are under

Id. at 564. Eighth prohibition Amendment’s cruel and unusual punishment, provide

The instant case is similar. inmates with proper medical care. Dula Goodpasture Syndrome certainly qualifies Carnahan, (8th ny v. 132 F.3d a sophisticated medical condition. Al Cir.1997). To show a constitutional viola though Mr. Alberson suffered from visible tion, “(1) Alberson must show that [James] symptoms, a determination of whether objectively suffered serious medical needs personnel provided CMS should have dif (2) prison and officials knew of but ferent treatment for Mr. or diag deliberately disregarded those needs.” Id. earlier, nosed his fatal illness or indeed at 1239. a prison “Whether official had any whether all treatment at could have requisite knowledge of substantial risk his suffering alleviated or arrested the is question subject fact to demonstra disease, progress of the not “is within the tion in the ways, including usual lay inference realm of understanding.” Id. (quoting evidence..., from Co., circumstantial Turner v. Iowa and a Equip. Fire may Cir.2000)). factfinder Therefore, prison conclude that offi Ms. cial knew of substantial risk produce Alberson’s failure from the expert testi mony very fact that prove the risk was proper that lack obvious.” medi Brennan, 825, 842, 114 cal Farmer v. caused Mr. Alberson’s death U.S. 1970, 128 (1994). is “fatal S.Ct. L.Ed.2d 811 [her] deliberate indifference claim as a matter of law.” Id. Ms. Alber employees’ The corrections actions and son’s evidence that administrators Howell “callous comments” illustrate culture of Byus expressed and skepticism about her deliberate indifference at Wrightville illnesses, son’s troubling, while Dulany, Unit. See at 1244 (noting expert proof obviate the need for of causa lack of callous comments or actions to tion. support its prison conclusion that the offi- indifferent).

We conclude that the district court did not cials were not err in granting Appellees’ motions The minimal and summary judgment response based on the ab- dismissive con- decedent’s expert sence of proof of causation. clearly suspect. Ac- dition was The record cordingly, affirm. reveals that James had to submit a num- diarrhea, cough, receiving aching pain before constant and requests of medical ber mobility. that that body and his mother affected his He medical attention officials, who days made several calls to was not seen until four later on No- consistently complaints. discounted vember 7 when he submitted additional request. medical service 31, 2003, county while custo- July him, mother and James’s visited he was dy, James an ear infection visibly walking limp. and distressed At hearing loss. eventually resulted night, Later her plead- James called death, suffering time of James was still ing get him help for her some medical infection, the corrections offi- from attention. She called the him with a cials had not Unit that someone check on requesting hearing August August From 8 to aid. Tillman, spoke him. She with Lieutenant ten James filed at least medical ser- diagnostic hospital, who worked loss, requests complaining hearing vice requested that heartburn, James be examined pain right in his and extreme hospitalized. only Tillman shoulder, arm, told her that He received no wrist. Byus could order James taken to the hos- medical attention until 2003, pital to November at home. From refused disturb Kay mother called least He James’s then also told that James was complaining about her son’s thirty later, times it.” “faking Two James requesting condition and that he receive diagnosed seen Dr. who him as response, Howell, medical treatment. cough having persistent a chronic sore verifying apparently without James’s med- throat. On November condition, ical told Alberson *6 wheezing and spitting up blood in both “faking it.” was lungs. Although x-ray had been or- before, it days dered had not been 24, through September From finally was performed. James admitted 2003, four James submitted least medi- 14, infirmary on November but treated heavy requests complaining cal service 15, only Tylenol # 3. On with November ears, teeth, head, throat and pain his 2003, coughing spitting still James was spider and an infected bite on knee. diagnosed pneumo- He with up 24. blood. was September He was not seen until 2003, Hospital nia transferred to Southwest September late James’s mother who, again placed on a mechanical ven- apparently called John where he was verification, told James’s mother point without tilator. At this James had 16, it.” “faking that James was On November acute renal failure. was transferred Jefferson James 12, 2003, James submitted a On October Center, on Regional placed venti- Medical request complaining medical severe dialysis. No- support, given lator not admitted to the headaches. He was passed away. James vember later, on infirmary until fifteen Octo- 27. He was on October 29. ber released attention, was To receive medical month, mother called That same James’s medical re- required to submit numerous Larry complain about the Norris’s office quests. pleaded his mother When was of medical treatment. She told denial on James’s employees check corrections was available and trans- that Norris not condition, met with the were concerns person who told her that ferred to another verification, that response, without callous nothing wrong with James. there was it.” There is sufficient “faking was that the corrections evidence James submitted suffering from were that James was of a aware request complaining medical service issues, yet they health HEALTH, doing BAPTIST business as deliberately plight. indifferent to were Baptist Memorial Medical Center- Dulany, 132 F.3d at 1239. Alberson testi Rock, Appellant, North Little visibly fied that James was distressed on both November James and his v. mother notified officials about Tommy THOMPSON, G. his official declining James’s health condition. Ac capacity Secretary, United States record, cording to the condition James’s of Health and Human “so a layperson obvious even Services, Appellee. easily recognize necessity would for a No. 05-4372. Phillips Jasper doctor’s attention.” Jail, County Cir. Court of Appeals, United States 2006). The corrections con Eighth Circuit. tinuing “faking statement James was Submitted: June 2006. [by it” evidences “deliberate inaction employees] amounting cal Aug. Filed: Endell, Bryan v. lousness.” See (8th Cir.1998) curiam). (per

The fact given that James was not a full complete physical, though suffi not own,

cient its should be considered

determining whether he proper

denied medical treatment.

rapid decline James’s health condition

during his confinement could convince a

jury to determine commonsense

would have necessitated a thorough medi

cal exam. There is sufficient evidence in jury record to hold that were

indifferent to James’s Thus,

medical conditions. a remand for

trial is essential.