                United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1933
                        ___________________________

                                 Geronimo DeLuna

                        lllllllllllllllllllllPlaintiff - Appellant

            The State of Minnesota, Department of Human Services

                               lllllllllllllllllllllPlaintiff

                                            v.

  Mower County; Terese Amazi, Mower County Sheriff; Chris Fletcher, Mower
    County Correctional Officer; Officers John Doe 1 through John Doe 10

                     lllllllllllllllllllllDefendants - Appellees
                                     ____________

                   Appeal from United States District Court
                        for the District of Minnesota
                               ____________

                            Submitted: March 12, 2019
                              Filed: August 21, 2019
                                  ____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
                         ____________

GRASZ, Circuit Judge.

    Geronimo DeLuna and the Minnesota Department of Human Services
(“MDHS”) brought this negligence action after an official at the Mower County,
Minnesota Jail (where DeLuna was serving time) provided and made DeLuna wear
shoes that were too small for his feet. DeLuna says the shoes caused a blister on one
of his left toes, which ultimately resulted in a severe infection requiring multiple
corrective surgeries. The district court granted summary judgment in favor of Mower
County (“County”), and DeLuna appeals. Because we conclude there is a genuine
issue of material fact as to whether the County negligently caused DeLuna’s injury
and that it is not entitled to vicarious official immunity, we reverse.

                                   I. Background

       In December 2014, DeLuna began serving a 180-day sentence at the jail for a
driving-related offense. All inmates at that location were required to wear “Croc”-
style1 slip-on shoes provided by the jail.

       On February 10, 2015, a jail officer took away DeLuna’s old slip-on shoes and
made him wear a replacement pair.2 DeLuna quickly noticed the shoes were too tight
and rubbed against his feet. DeLuna wore a men’s size ten but says the new shoes
were a women’s size ten. Later that day, DeLuna complained to a jail officer about
his shoes being too small, but he was told no other shoes were available at that time
and his old slip-on shoes had been thrown out. DeLuna says he then suffered a blister
on his left foot’s middle toe, and he complained to a jail sergeant about having a sore
toe. The jail’s medical records say DeLuna refused to see a nurse because he wanted
to continue participating in the jail’s “Sentence to Serve” program (“STS”), which
allows inmates to perform volunteer community work (often outdoor manual labor)


      1
        The record is unclear whether the shoes were CROCS-brand shoes or a similar
style of slip-on shoes.
      2
       Except as otherwise noted, we recite these facts in the light most favorable to
DeLuna as the nonmoving party before the district court. Oglesby v. Lesan, 929 F.3d
526, 531–32 (8th Cir. 2019).

                                         -2-
to reduce the length of their sentences. DeLuna, however, denies refusing treatment
that day.

       The next day, on February 11, DeLuna participated in the STS program from
7:45 a.m. until 4 p.m. and wore his own personal shoes, as was allowed during STS
work hours. Upon returning to the jail, DeLuna says a jail officer noticed the third
toe on DeLuna’s left foot had a blister. DeLuna told the officer the slip-on shoes he
had been wearing were too small, and the officer immediately provided DeLuna with
a larger, better-fitting pair. The jail’s medical records show DeLuna complained that
day to a jail officer again about a sore toe (DeLuna later testified his toe “was just
blowing up” by then) and that he still refused to see a nurse. DeLuna also denies he
refused treatment on February 11.

       On February 12, DeLuna says his left foot was in such pain he could not get out
of bed. He filled out a “Sick Call Request Form” seeking treatment. He was
examined by the jail’s nurse, who completed a medical report stating DeLuna’s
injured toe was “warm [and] swollen” and that DeLuna said it began as a blister. The
nurse prescribed an antibiotic to be taken twice a day and instructed DeLuna to keep
the toe clean, apply a topical ointment, and wrap it in gauze. DeLuna said his toe had
an open sore by that point.

       On the evening of February 13, the jail’s overseeing officer observed DeLuna’s
toe was “purple and leaking.” The officer drew a line toward the top of DeLuna’s
foot and told him to let the jail know if the redness and swelling progressed beyond
the line. It soon did, and the jail’s doctor recommended DeLuna be taken to a
hospital. Jail staff took DeLuna to a Mayo Clinic emergency room.

     DeLuna was diagnosed with having Methicillin-Resistant Staphylococcus
Aureus (“MRSA”), a super-strain of staph infection resistant to usual penicillin-based
medication. DeLuna remained in the hospital for ten days and underwent three

                                         -3-
surgeries on his left foot to remove the infection. As a result, DeLuna says he has a
large scar running down the middle of his foot and residual sharp pains in the same
area. MDHS paid his sizeable medical bill.

       DeLuna and MDHS brought a lawsuit in state court against the County, the
County Sheriff, and a number of jail officers, raising four counts: (1) negligence in
providing shoes that were too small, resulting in his MRSA infection; (2) negligence
in providing an environment infested with bacteria and viruses, including MRSA; (3)
willful failure to provide adequate medical treatment in violation of the Eighth and
Fourteenth Amendments under 42 U.S.C. § 1983; and (4) failure to adequately train
jail officers in providing suitable shoes, adequate medical care, and a safe
environment in violation of the same rights. The defendants removed the suit to
federal district court and, following discovery, moved for summary judgment on all
claims. DeLuna then voluntarily dismissed all claims and defendants except his
negligence action against the County for providing undersized shoes.

       Exercising supplemental jurisdiction under 28 U.S.C. § 1367(a), the district
court granted summary judgment to the County on DeLuna’s negligence claim. The
district court concluded DeLuna failed to show the County breached a duty of care
because contracting MRSA was not a foreseeable danger of wearing shoes that were
too small for less than 24 hours. The district court also concluded DeLuna failed to
show any breach proximately caused his injuries because, based on testimony from
the County’s expert witness, “many other causative factors exist that could have
developed the MRSA infection,” including DeLuna’s history of drug abuse and the
fact he had multiple tattoos.

       In addition, the district court ruled that, regardless, the County was entitled to
vicarious official immunity under Minnesota law. The district court concluded (a)
providing inmates with “suitable” shoes (as required by a state statute) was a
discretionary duty because it involves the exercise of some discretion, and (b) the

                                          -4-
jail’s officers did not act willfully and maliciously in providing DeLuna with too-
small shoes — thus satisfying the state-law predicates for vicarious official immunity.
The district court distinguished Wendt v. City of Mille Lacs, No. A13-0114, 2013 WL
4711210 (Minn. Ct. App. Sept. 3, 2013) (unpublished), which held that a Minnesota
county violated a ministerial duty and was not entitled to immunity when it provided
extremely large shoes to an inmate for her court hearing, after which she tripped on
her shackles and fell down the courthouse steps. Wendt, 2013 WL 4711210, at *2,
*6. The district court noted that Wendt was an unpublished decision and that
“correctional officers are entitled to some discretion regarding what size of shoe they
provide to inmates.” DeLuna now appeals.

                                     II. Discussion

       DeLuna argues the district court’s negligence ruling was erroneous for two
reasons: (1) under Minnesota law, only his blister and open sore, rather than his
MRSA infection, needed to be foreseeable to conclude the County breached its duty
of care; and (2) his MRSA infection was a natural and proximate result of having a
blister and open sore. He also disputes the district court’s immunity ruling, arguing
that providing suitable jail shoes was a ministerial duty for which vicarious official
immunity was not available to the County.

         This court reviews a district court’s grant of summary judgment de novo,
“viewing the evidence in the light most favorable to the nonmoving party.” Brunsting
v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir. 2010). “We will affirm the
grant of summary judgment if ‘there is no genuine dispute as to any material fact and
. . . the movant is entitled to judgment as a matter of law.’” Id. (alteration in original)
(quoting Fed. R. Civ. P. 56).

       To prevail in a negligence claim under Minnesota law, “a plaintiff must prove
(1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) that

                                           -5-
the breach of the duty of care was a proximate cause of the injury.” Domagala v.
Rolland, 805 N.W.2d 14, 22 (Minn. 2011). Under Minnesota law, counties are
vicariously liable for the negligence of employees acting within the scope of their
employment unless the doctrine of vicarious official immunity applies. See City of
Minneapolis v. Ames & Fischer Co. II, 724 N.W.2d 749, 755 (Minn. Ct. App. 2006)
(“Municipalities are generally liable for the torts of their employees if the tort is
committed within the scope of employment.”); Vassallo ex rel. Brown v. Majeski, 842
N.W.2d 456, 462–63 (Minn. 2014) (discussing vicarious official immunity).

                                A. Duty and Breach

       We first consider whether the County breached a duty of care by providing
DeLuna with shoes that were too small for his feet. Although DeLuna argues the
County’s duty was defined by Minn. Stat. § 641.15, subd. 1 — which expressly
requires counties to “provide suitable jail clothing” to inmates — he does not press
an argument that the County was negligent per se. See Kronzer v. First Nat’l Bank
of Minneapolis, 235 N.W.2d 187, 192 (Minn. 1975) (“[T]he measure of duty for
negligence per se is fixed by the statute, so that its violation constitutes conclusive
evidence of negligence.”). Nor does DeLuna base his claim on the “special
relationship” between a jail and its inmates, see Cooney v. Hooks, 535 N.W.2d 609,
611 (Minn. 1995), as that doctrine generally applies in Minnesota only where, unlike
here, a third party creates a foreseeable risk of harm to the plaintiff. See, e.g.,
Domagala, 805 N.W.2d at 23. Rather, DeLuna argues that requiring someone to wear
too-small shoes creates a foreseeable risk of causing a blister and open sore.

       DeLuna’s argument invokes classic rules of Minnesota negligence law.
“[G]eneral negligence law imposes a general duty of reasonable care when the
defendant’s own conduct creates a foreseeable risk of injury to a foreseeable
plaintiff.” Id. The Minnesota Supreme Court has emphasized the key is whether a
defendant had “reasonable ground to anticipate that a particular act would or might

                                         -6-
result in any injury” to the plaintiff, even if the defendant “could not have anticipated
the particular injury which did happen.” Christianson v. Chicago, St. P., M. & O. Ry.
Co., 69 N.W. 640, 641 (Minn. 1896) (emphasis added) (assuming defendant breached
a duty of care even though plaintiff’s ultimate injury was not foreseeable). As a more
recent Minnesota case recognized: “What a man may reasonably anticipate is
important . . . in determining whether an act is negligent.” Lundgren v. Fultz, 354
N.W.2d 25, 28 (Minn. 1984) (quoting Christianson, 69 N.W. at 641).

       We hold there is a genuine issue of fact as to whether the County breached its
duty of care. The district court erred when it concluded to the contrary on the basis
that DeLuna’s MRSA infection was not a foreseeable consequence of wearing too-
small shoes. Rather, the proper question was whether some harm was foreseeable
even if the ultimate injury was not. Christianson, 69 N.W. at 641. And requiring
DeLuna to wear too-small shoes that rubbed against his feet (and failing to replace
them when he complained later that day) could foreseeably result in at least a blister.3
That is enough for a factfinder to reasonably conclude the County breached its duty
of care.

                          B. Proximate Cause and Harm

      But our analysis does not end there. DeLuna must still show the County’s
negligent conduct proximately caused his MRSA infection. Domagala, 805 N.W.2d
at 22. DeLuna argues it did just that because contracting a MRSA infection
“naturally flow[s]” from having an open sore caused by the too-small shoes.



      3
        Whether too-small shoes could also foreseeably cause an open sore is, at best,
a close case, and “[i]n close cases, the issue of foreseeability should be submitted to
the jury.” Domagala, 805 N.W.2d at 27. But we find this question irrelevant given
our conclusion that at least some injury was arguably foreseeable without regard to
the foreseeability of the open sore.

                                          -7-
       We first note that foreseeability is not part of the proximate-cause analysis in
Minnesota. Dellwo v. Pearson, 107 N.W.2d 859, 861 (Minn. 1961). Instead, if a
person’s “act itself is negligent, then the person guilty of it is equally liable for all its
natural and proximate consequences, whether he could have foreseen them or not.”
Id. (quoting Christianson, 69 N.W. at 641). Minnesota courts look to whether the
injury “follow[s] in an unbroken sequence, without an intervening efficient cause,
from the original negligent act.” Id. (quoting same). But an intervening cause is not
superseding and thus insulating for a defendant unless it has satisfied several criteria,
including that it “actively worked to bring about a result which would not otherwise
have followed from the original negligence” and was not “reasonably foreseeable by
the original wrongdoer.” Canada ex rel. Landy v. McCarthy, 567 N.W.2d 496, 507
(Minn. 1997).

       We also note a defendant’s conduct must be a “substantial factor in bringing
about the injury.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995) (quoting
Flom v. Flom, 291 N.W.2d 914, 917 (Minn. 1980)). Additional causes may be
“concurring” and thus “direct causes which act . . . so nearly together [with the
defendant’s conduct] that the chain of causation is not broken.” Roemer v. Martin,
440 N.W.2d 122, 123 n.1 (Minn. 1989).

       Finally, although proximate cause is a question of law “where reasonable minds
can arrive at only one conclusion,” it is otherwise generally a question of fact for the
factfinder. Lubbers, 539 N.W.2d at 402.

      DeLuna argues the district court relied too heavily on the defendant’s expert
testimony that the MRSA infection could have resulted from numerous other causes.
Specifically, the district court pointed to the testimony of Dr. Randal Wojciehoski,
who evaluated DeLuna’s medical record and testified “it is impossible to pinpoint
where Mr. DeLuna contracted MRSA” given his history of high-risk behavior, intra-
venous drug abuse, and the fact he has multiple tattoos, all of which placed him at

                                            -8-
risk for developing MRSA. DeLuna argues this testimony does not contradict
evidence tending to show he contracted the infection on his toe as a result of wearing
the too-small shoes. At this stage of the litigation, we agree.

       The evidence before us presents at least a factual question as to whether the
too-small shoes were a substantial (even if not exclusive) factor in causing DeLuna’s
MRSA infection. The County itself introduced a journal article explaining MRSA
has become an acute problem in correctional facilities and can infect a person by
entering “even through the tiniest cut on the skin.” And there is evidence tending to
show DeLuna’s infection began not in the area of a tattoo, but on his left foot’s third
toe where DeLuna says he suffered a blister from the too-small shoes. To the extent
DeLuna’s past drug abuse rendered him more vulnerable to contracting MRSA as a
result of a toe injury, the “eggshell plaintiff doctrine” would prevent the County from
disclaiming responsibility for his ultimate harm. See Rowe v. Munye, 702 N.W.2d
729, 741 (Minn. 2005) (“The eggshell plaintiff doctrine states that ‘[w]here a tort is
committed, and injury may reasonably be anticipated, the wrongdoer is liable for the
proximate results of that injury, although the consequences are more serious than they
would have been, had the injured person been in perfect health.’” (alteration in
original) (quoting Ross v. Great Northern Ry. Co., 111 N.W. 951, 953 (1907))).

       The County argues in rebuttal that DeLuna’s theory is founded on speculation
and conjecture. See E.H. Renner & Sons, Inc. v. Primus, 203 N.W.2d 832, 835
(Minn. 1973) (“Proof of a causal connection must be something more than merely
consistent with the complainant’s theory of the case.”). The County specifically
argues there is no record evidence “[o]ther than DeLuna’s assertions” that he suffered
a blister and open sore as a result of the too-small shoes. It also indicates DeLuna
needed expert testimony to establish a proximate connection between wearing the
too-small shoes and his MRSA infection.




                                         -9-
       We disagree. DeLuna testified in his deposition that he personally felt the
too-small shoes rubbing against his feet before observing a blister on the middle toe
of his left foot. The nurse’s medical report also says DeLuna reported that his
swollen toe began as a blister. We cannot ignore these statements without assessing
DeLuna’s credibility — a “function of the jury, not an appellate court.” United States
v. Hernandez, 569 F.3d 893, 897 (8th Cir. 2009) (quoting United States v. Harrison,
671 F.2d 1159, 1162 (8th Cir. 1982)). This case is also not one requiring supporting
testimony from an expert witness to explain “matters not within the common
knowledge of a layman.” DeCourcy v. Trs. of Westminster Presbyterian Church,
Inc., of Minneapolis, 134 N.W.2d 326, 328 (Minn. 1965). A layperson can
understand based on common knowledge whether too-small shoes caused a blister
and whether, as a proximate result, that blister opened and became infected.4 On the
facts before us, we cannot say DeLuna’s case is based on speculation.5

     Therefore, we conclude DeLuna has presented a triable issue of fact as to
whether the County negligently caused his MRSA infection.




      4
        We reject the County’s argument that DeLuna did not contend before the
district court that the shoes caused both a blister and an open sore which ultimately
became infected. Without opining on what point in time DeLuna contracted the
infection, we note DeLuna argued in his complaint the too-small shoes “caused him
to develop an open wound in the jail environment” and thus “exposure to . . .
MRSA.”
      5
       We also cannot say at this stage that DeLuna’s physical labor in the STS
program the day after wearing the too-small shoes and his alleged refusal to receive
medical care were superseding causes. There is at least a fact question as to whether
DeLuna’s infection would have occurred anyway given that he first reported a sore
toe the same day he wore the too-small shoes. And he denies that he refused
treatment. These questions, too, are for a factfinder.

                                        -10-
                          C. Vicarious Official Immunity

       We have one more step. The County argues that even if it was negligent, it is
entitled to vicarious official immunity.

       The Minnesota Supreme Court has held that under the “common law doctrine
of official immunity . . . [,] a public official who is charged by law with duties calling
for the exercise of judgment or discretion is not personally liable to an individual for
damages unless the official is guilty of a willful or malicious act.” Wiederholt v. City
of Minneapolis, 581 N.W.2d 312, 315 (Minn. 1998) (emphasis added). And
government employers are generally entitled to vicarious official immunity from
lawsuits based on the discretionary acts of their employees. See id. at 317. Vicarious
official immunity does not apply, however, to ministerial duties — i.e., those “in
which nothing is left to discretion” and “involv[e] merely execution of a specific duty
arising from fixed and designated facts.” Id. at 315 (quoting Cook v. Trovatten, 274
N.W. 165, 167 (Minn. 1937)). In other words, “[w]hen the job is ‘simple and
definite’ and therefore ‘clearly ministerial,’ the [government employer] is not entitled
to [vicarious] official immunity.” Id. at 316.

       We hold the duty of providing suitable shoes in a county jail setting is
ministerial. As we have already noted, the Minnesota Court of Appeals reached this
same conclusion in Wendt, relying on the obligation of county boards under Minn.
Stat. § 641.15, subd. 1 to “provide suitable jail clothing” to prisoners. Wendt, 2013
WL 4711210, at *6. Although this decision was unpublished, we are not convinced
the Minnesota Supreme Court would disagree. In Anderson v. Anoka Hennepin
Indep. Sch. Dist. 11, the Minnesota Supreme Court observed “the mere existence of
some degree of judgment or discretion will not necessarily confer common law
official immunity; rather, the focus is on the nature of the act at issue.” 678 N.W.2d
651, 656 (Minn. 2004). In Wiederholt, for example, the Minnesota Supreme Court
held that city sidewalk inspectors had a ministerial duty to repair broken sidewalks

                                          -11-
where city code required the “City Engineer to immediately repair [any broken
sidewalk] in a good, substantial, and thorough manner.” 581 N.W.2d at 314, 316
(emphasis omitted) (alteration in original) (quoting Minneapolis, Minn., Code of
Ordinances ch. 8, § 12 (1991)).

       Here, the provision of suitable jail shoes is a simple act and defined by the
designated facts of a prisoner’s shoe size. 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. Therefore, the County is not entitled to vicarious
official immunity.

                                   III. Conclusion

      For the reasons discussed herein, we reverse the judgment of the district court.
                       ______________________________




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