Camberos v. Branstad

HEANEY, Circuit Judge,

dissenting.

I respectfully dissent from the majority’s opinion that the district court’s finding that Camberos should be permitted to recover from defendant nurses Weiss, Carver and Meier was clearly erroneous.

The district court heard the conflicting testimony regarding Camberos’s ability to describe the pain that he was experiencing and it had the opportunity to observe Cam-beros and his communication skills first hand. It also had evidence before it that Camberos experienced pain in his arm for more than eleven months before he was seen and properly attended to by a doctor. The district court’s finding that Camberos needed an interpreter and that he should have been referred to a doctor should not be disturbed. In light of its factual findings, the district court was correct in concluding that the nurses violated Camberos’s Eighth Amendment rights. See Johnson-El v. Schoemehl, 878 F.2d 1043, 1055 (8th Cir.1989) (delay in the provision of treatment or examinations of an inmate’s medically serious or painful ailments may constitute an Eighth Amendment violation). I would therefore affirm the district court’s decision to award Camberos $2,000 for the pain he suffered over a ten-month period.

From the time he was admitted to North Central in October of 1991, Camberos persistently complained to the nurses with respect to his arm and shoulder pain. For whatever reason, the nurses paid little or no attention to his complaints; either they failed to understand what he said or they did not care what he said. Eight months after Camberos was admitted to North Central, a physician’s assistant referred him to a doctor in Iowa City for his pain. This referral came only after an Iowa City doctor, who saw Cambe-ros on an unrelated matter, advised him that his arm needed medical care. Eleven months after his original complaints, Cambe-ros was seen by a specialist at the University of Iowa and received proper care for his pain. Because of their significant delay in referring Camberos to a doctor, the nurses were deliberately indifferent to his serious medical needs.

When seeking medical treatment for his arm and shoulder pain, Camberos requested at least twice to have an interpreter provided for him. According to Dr. Loeffelholz, the Medical Director for the Department of Corrections, several Spanish-speaking people were available at the facility, but Camberos’s requests were denied.

The district court had an opportunity to observe Camberos and its finding that Cam-beros could not adequately communicate in English with medical personnel at North Central and that he should have been provided with an interpreter must be sustained. Camberos was born and raised in Mexico and he completed the eighth grade while still in his native country. He apparently took two years of English classes after he came to the United States, but attended no further schooling in this country. Although the majority questions the credibility of Kaskey’s evaluation of Camberos’s English abilities, they ignore another letter in the record, dated and signed by three G.E.D. instructors. The letter states that as of August 12, 1992, after working with an English as a Second Language (ESL) tutor for eight months, Camberos’s English comprehension was at a fourth or fifth grade level. As can be expected there is some evidence in the record that Camberos could communicate in English and could understand some English. The record as a whole, however, supports the district court’s finding that Camberos either could not convey his medical needs to the nurses at North Central or that the nurses paid no attention to what he said.

Perhaps the strongest indication that Cam-beros should have been provided an interpreter all along is from the treatment he finally received at the University of Iowa when examined by a physician in the presence of an interpreter. The physician was able to take a thorough medical history of Camberos. He then gave Camberos an orthopedic examination and noted his impressions of Camberos’s medical condition, two of which had not been recognized by the North Central personnel. As Dr. Loeffelholz ad*179mits, these impressions were not made before because of the level of practitioners who had assessed Camberos’s condition at North Central. The University physicians recommended that Camberos wear wrist-splints during periods of heavy activity and at night, referred him to the Shoulder Clinic at the University Hospital, and stated that if his pain persists, Camberos’s condition should be reevaluated.

No reason is shown in this record why Camberos was not seen by a physician prior to September of 1992. As nurse Weiss testified, the nurses had the authority to refer Camberos to either a physician’s assistant or a doctor, whoever was present in the clinic on the given day. Camberos saw a physician’s assistant several times while at the facility, but never a doctor. Weiss also testified that the nurses could contact Dr. Loeffelholz if he or she felt that a physician’s assistant should have referred Camberos to a doctor. Despite Camberos’s continued pain, none of the nurses made such a recommendation to Dr. Loeffelholz; rather they requested that Dr. Loeffelholz review Camberos’s medical records, which only led to the reduction of Cam-beros’s ability to seek medical attention at the facility.

While there was more than sufficient evidence in the record to support the district court’s decision with respect to the defendant nurses’ liability, I agree with the majority that Camberos failed to establish personal involvement by defendants Ault or Burt in the deliberate indifference to his medical needs. As warden and treatment director of North Central respectively, Burt and Ault lacked the necessary expertise for and were too far removed from the decisions made in this case to be held responsible for them. Accordingly, I concur in the majority’s decision to reverse the district court’s decision in this regard.