8th Circuit: Inmate’s Crocs may be cause of his infection

By Kevin Featherly
kfeatherly@minnlawyer.com

The 8th Circuit Court of Appeals has sided with a Mower County jail inmate who claims he contracted a drug-resistant infection because he was required to wear Croc-styled shoes that were too small for his feet.

Geronimo DeLuna was infected with Methicillin-resistant staphylococcus aureus—the so-called “MRSA super bug” —in 2015 while serving a 180-day sentence for traffic violations.

The condition required 10 days of hospitalization and three corrective surgeries. His attorneys say DeLuna still experiences sharp but intermittent pain.

A three-judge 8th Circuit panel on Aug. 21 overturned U.S. District Judge Paul A. Magnuson’s April 18, 2018, order, which granted summary judgment to the county and dismissed DeLuna’s negligence claim.

Magnuson had ruled that, because a MRSA infection was not the predictable result of wearing ill-fitting shoes for fewer than 24 hours, the county was not liable.

The 8th Circuit reversed, declaring Magnuson’s ruling premature. The court remanded DeLuna’s case back to U.S. District Court for a jury trial, ruling there is “a genuine issue as to whether the county negligently caused DeLuna’s injury.”

The judges also reversed Magnuson’s finding that Mower County had “vicarious official immunity” from the suit. Magnuson had ruled the county’s duty to provide suitable footwear was discretionary. But the appeals panel found the county’s duty to properly clothe inmates is “ministerial” and therefore not a matter for jailers’ discretion.

“Even if there is some degree of judgment involved in light of a prison’s limited resources, this duty is sufficiently ‘simple and definite’ so as to be ministerial,” says 8th Circuit Judge L. Steven Grasz’s written ruling. “Therefore, the county is not entitled to vicarious official immunity.”

Circuit judges Duane Benton and Raymond W. Gruender joined the unanimous opinion.

Jason Hiveley, a partner at Bloomington-based Iverson Reuvers Condon and Mower County’s appellate attorney, said he does not expect to request an en banc 8th Circuit hearing or otherwise appeal the decision.

It is not yet certain if or where the case will go to trial, he said. Because federal constitutional violations originally alleged in the plaintiff’s complaint were later dropped, Hiveley said, only DeLuna’s negligence claim under state law remains.

That means Magnuson could either re-accept the case, or decline jurisdiction and send it back to Mower County District Court, Hiveley said. It is not yet known which avenue Magnuson will chose, he said.

Rockin’ the Crocs

According to the Grasz ruling, the case involves a jailer who removed an old pair of Croc-style shoes from DeLuna and replaced them with new ones. DeLuna wears a men’s size 10, the ruling states, but he was given a women’s size 10. DeLuna complained they were too tight, but was told no other shoes were available, the ruling says. His old shoes were thrown out.

Soon, a blister formed on his left middle toe, prompting DeLuna to complain to a sergeant. Jail medical records show that he refused treatment so that he could participate in sentencing-to-service work outside the jail—participation in that program that can shorten an inmate’s sentence. DeLuna denies he ever refused treatment.

On Feb. 11, 2015, DeLuna worked outside the jail from 7:45 a.m. to 4 p.m. in a hog-confinement pen, Hiveley said. While working, he wore his own street shoes.

In fact, Hiveley said, DeLuna’s claim that he was infected by the too-small Crocs is undercut by the fact that he worked for weeks, exposed to pig manure in his own shoes, well before he received the ill-fitting slip-ons.

“He was in some dirty stuff,” Hiveley said in an interview Monday.

Within two days of wearing the Crocs, DeLuna’s toe was “purple and leaking,” court records indicate. A jail doctor recommended treatment at the Mayo Clinic emergency room.

During March 12 oral arguments, Hiveley emphasized that DeLuna cannot prove that, but for the tight shoes he was given, he wouldn’t have contracted MRSA.

“If we’re talking about foreseeability, then we’re looking at whether it was a danger that was objectively reasonable to expect,” Hiveley told the 8th Circuit panel. “I don’t see any case law that supports that.”

However, plaintiff’s appellate attorney Mahesha Subbaraman, who argued the case before the 8th Circuit, said supportive case law does exist—in the form of the 1896 Minnesota Supreme Court case Christianson v. Chicago, St. Paul, Minneapolis & Omaha Railway Co.

In that ancient case, a railroad employee operating a hand rail car fell onto the tracks and got run over by a second hand rail car—the operators of which were drunk and following too closely. The injured worker, who Subbaraman says suffered a dizzy spell and fell off his cart, suffered broken bones and sued. The lower court ruled for the hurt worker and the 1896 Supreme Court affirmed.

The railroad was liable, that Supreme Court ruled, even though no one could have predicted the man would fall off his cart. Because their actions triggered an unbroken sequence of events, the 19th century court ruled, the other operators’ negligence was the proximate cause of the worker’s injuries.

A more modern articulation of the same idea comes from Domagala v. Rolland (2011), Subbaraman said. There the state Supreme Court ruled that foreseeing the precise nature of a plaintiff’s injury is not the proper test in a workplace injury case. Instead, the test is whether an accident could be foreseen by a person of ordinary prudence.

The same principles fit DeLuna’s case, Subbaraman said.

“As anyone who has worn shoes that are too small knows,” he told the 8th Circuit, “it is eminently foreseeable that that will cause an abrasion on the skin, cause a blister and then lead to the consequences that occurred in this particular instance.”

The 8th Circuit judges agreed, reversed and remanded the case.

‘Common sense’

Reached for comment Monday, Subbaraman was asked to describe the case’s significance. “If you’re looking for kind of the pithiest way to sum it up,” he said, “I would say it was a victory for common 

sense.”

If the case has any lingering impact, he said, it might be in serving as a beacon to re-illuminate the century-old principles outlined in Christianson v. Chicago. The 8th Circuit’s opinion itself obliquely suggests that is its impact, the lawyer said.

“In its opinion, the court said DeLuna hearkens to the classic principles of Minnesota negligence liability,” Subbaraman said. “Everything old is new again.”

Back at U.S. District Court, DeLuna will be represented by Vincent J. Moccio, of counsel at Eagan’s Bennerotte & Associates. He had argued the case before Magnuson.

Reached Monday, Moccio said Magnuson’s U.S. District Court was “completely unsupportable” under Minnesota law. “I was dumbfounded at the District Court’s decision and my brief kind of just wrote itself,” Moccio said. “It’s basically hornbook Minnesota tort law.”

Had the 8th Circuit sided with Magnuson, Moccio said, the consequences could have been serious. It might have meant, for instance, that a car accident victim would have no liability case unless he or she could prove that an infection contracted in hospital was a directly foreseeable result of the crash. “Which is an insane result,” he said.

Despite the 8th Circuit’s finding, however, Hiveley expressed confidence that the facts still favor the county. “We were not able to challenge [DeLuna’s] credibility at the summary judgment stage,” he said. “But we intend to do so at trial.”

Another party

The Minnesota Department of Health and Humans Services is also party to the case, though it neither briefed the case nor argued at trial. The reason is that the department footed the bill for DeLuna’s care, and Hiveley said the agency hopes to recover its costs.

“If there happened to be recovery by Mr. DeLuna, then I suspect they would lay claim to part of that,” he said. “But if the case gets dismissed, then there’s no reason for them to be involved.”

Moccio said Mower County, upon transporting DeLuna to the Mayo Clinic in 2015, released him from custody. The county thereby spared itself the expense of treating him, Moccio said.

Hiveley countered that the inmate actually was released in order to relieve a sheriff’s deputy from the obligation of standing vigil over him and to free DeLuna to pursue whatever care he needed.

The department’s charged medical expenses exceeded $77,000, Moccio said. But it ended up resolving the case after paying the clinic just over $18,000, he said.