Flоyd L. Roberson, Appellant, v. Bill Bradshaw; et al., Appellees.
No. 98-2389
United States Court of Appeals FOR THE EIGHTH CIRCUIT
December 2, 1999
Submitted: September 16, 1999
Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
LOKEN, Circuit Judge.
Missouri inmate Floyd L. Roberson filed this
It is undisputed that Roberson suffers from diabetes; that he was incarcerated at the Pemiscot County Jail beginning March 15, 1996; and that he was examined by Dr. Gubin on April 17 and May 22, 1996. In support of their motions for summary judgment, defendants submitted affidavits by Deputy Sheriff Bradshaw and Dr. Gubin, plus medical records and jail records pertaining to Roberson. Bradshaw averred that Roberson‘s girlfriend was at all times allowed to bring medication to the Jail. Roberson did not reveal his diabetic condition until March 22, 1996, did not ask to see a doctor until April 15, and was promptly taken to Dr. Gubin on April 17. According to Bradshaw, Dr. Gubin‘s prescriptions were filled and refilled on April 17 and May 23, Dr. Gubin did not prescribe a special diеt, Roberson never complained about his diet at the Jail, and Pemiscot County has a written Inmate Health Care policy which was followed as to Roberson. Dr. Gubin averrеd that he is in private practice but provides services to Pemiscot County Jail inmates as needed; that he first saw Roberson on April 17 and prescribed Glucophagе to treat his elevated blood sugar level plus another medication for his lower back pain; that he saw Roberson on May 22 and again prescribed these two medications; that Roberson evidenced no illness during either visit and did not complain regarding his diabetic condition; and that Roberson did not complain of any adverse reаction to Glucophage during his second visit on May 22.
In response, Roberson submitted a lengthy affidavit which included the following averrals. When he arrived at the Jail on March 15, 1996, Robеrson advised his jailors of his diabetic condition and his need for medication and a special diet; Bradshaw responded that he would be given medication or a special diet only upon a doctor‘s order. Consequently, Roberson arranged an appointment with Dr. Gubin on March 27, but Bradshaw refused to provide transportation to Dr. Gubin‘s cliniс, explaining that Jail staff were too busy and “you‘ll get there when I decide and not before.” Roberson was not taken to Dr. Gubin until April 17; during the delay, he made repeated requеsts
To prevail on an Eighth Amendment claim of deliberate indifference to serious medical needs, an inmate must prove that he suffered from one or more objectively serious medical needs, and that prison officials actually knew of but deliberately disregarded those needs. “Deliberate indifference may be demonstrated by prison guards who intentionally deny or delay access to medical care or intentionally interfere with prescribed treatment, or by prison doctors whо fail to respond to prisoner‘s serious medical needs. Mere negligence or medical malpractice, however, are insufficient to rise to a constitutional violation.” Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997), citing Estelle v. Gamble, 429 U.S. 97, 104-06 (1976).
Roberson submitted no evidence of conduct by correctional officers Jackie Davis and Jimmy Alsup that could amount to deliberate indifference to Roberson‘s serious medical needs. He made only conclusory allegations against them in his verified complaint, and nothing in his summary judgment affidavit would tend to prove that thоse defendants intentionally delayed his access to medical care. Likewise, with regard to Pemiscot County, Roberson submitted no evidence that any delay in treating his diаbetes or in responding to his alleged adverse reactions to Glucophage were attributable to any policy or custom of the County. See Board of County Comm‘rs v. Brown, 117 S. Ct. 1382, 1388 (1997). Roberson‘s primаry complaint against the County is its policy of requiring inmates to pay for their own medications if they can
The summary judgment issue is more difficult as to Deputy Sheriff Bradshaw. He is accused of denying Roberson diabetes medication or a special diet without a doctor‘s prescription and then intentionally delaying Roberson‘s access to Dr. Gubin. Bradshaw avers that Roberson never complained of his jail diet, was taken to see Dr. Gubin promptly upon request, and exhibited no distress from his diabetes. The conflicting affidavits raise obvious fact disputes. The district court nonetheless granted summary judgment on the ground that Roberson submitted no “verifying medical evidence” establishing the detrimental effects of the alleged delay in treatment, citing Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995). But that reflects a misreading of our prior Eighth Amendment cases. In determining whether the inmate has an objectively serious medical need, “we have repeаtedly emphasized that the need or the deprivation alleged must be either obvious to the layperson or supported by medical evidence, like a physician‘s diagnosis.” Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995) (cross-referencing Beyerbach; emphasis added). Here, Roberson alleges that for weeks he suffered from and complained about serious physical conditions resulting from the failure to treat his diabetes. The conditiоns he describes would have been obvious to a layman, or more particularly, to Deputy Sheriff Bradshaw in his day-to-day capacity as Roberson‘s jailer. Thereforе, on this record, we conclude it was error to grant summary judgment in favor of Bradshaw.
The summary judgment granted in favor of Dr. Gubin presents another close question. The district court characterized Roberson‘s claim against Dr. Gubin as a mere disagreement over the proper treatment. For the most part, we agree. But Roberson also alleged that, during his second visit, Dr. Gubin ignored Roberson‘s complaints of serious adverse reactions to Glucophage and intentionally kept him on that medication. Notably, Dr. Gubin denies thаt Roberson made any such complaint; he does not claim that he considered Roberson‘s adverse reactions and concluded that
Roberson also argues the district court abused its discretion in denying his motion for appointment of counsel because he needs the assistance of appointed counsel to obtain verifying medical evidence and to litigate the above-mentioned credibility issues. However, the district court merely denied the motion as moоt after granting summary judgment to defendants. On remand, the court may again take up this discretionary issue.
In summary, we reverse the grant of summary judgment in favor of Bill Bradshaw and Dr. Alan Gubin on plaintiff‘s сlaim they were deliberately indifferent to his serious medical needs. In all other respects, the judgment of the district court is affirmed. The case is remanded for further proceedings not inconsistent with this opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
