                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1134
                        ___________________________

                               David L. Johnson, Jr.

                       lllllllllllllllllllll Plaintiff - Appellant

                                           v.

Douglas County Medical Department; Douglas County Correctional Medical Department

                            lllllllllllllllllllll Defendants

  County of Douglas, Nebraska, a political subdivision of the State of Nebraska

                       lllllllllllllllllllll Defendant - Appellee

  John Doe, Nos. I-IV; John Doe, I; John Doe, II; John Doe, III; John Doe, IV;
Cesar Inda, both individually and officially as a corrections officer of the Douglas
 County Correctional Center; Don Coniglio, both individually and officially as a
    corrections officer of the Douglas County Correctional Center; Susan M.
Wilkinson, both individually and officially as an agent of the County of Douglas,
  Nebraska; Lieutenant Banks, both individually and officially as a corrections
  officer of the Douglas County Correctoinal Center; Correct Care Solutions, a
                         Kansas limited liability company

                            lllllllllllllllllllll Defendants
                                    ____________

                    Appeal from United States District Court
                     for the District of Nebraska - Omaha
                                ____________
                              Submitted: June 12, 2013
                               Filed: August 2, 2013
                                  ____________

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

GRUENDER, Circuit Judge.

      David Johnson seeks to impose municipal liability through 42 U.S.C. § 1983
on the County of Douglas, Nebraska (“the County”) after a jail operated by the
County failed to provide him with necessary medication while he was incarcerated.
The district court1 ruled that Johnson failed to present evidence of a custom of
unconstitutional deprivations at the jail and granted summary judgment to the County.
For the reasons discussed below, we affirm.

I.    Background

       We recite the facts in the light most favorable to Johnson. See, e.g., Doe ex
rel. Thomas v. Tsai, 648 F.3d 584, 585 (8th Cir. 2011). Johnson was arrested in the
morning hours of January 27, 2009 and held in the County jail pending an appearance
in federal district court on January 28. The arresting officers received a vial of
medicine for Johnson, labeled with the name “Dilantin” and dosage instructions, from
Johnson’s mother and delivered it to the jail. As part of the jail intake procedure,
agents of the County verified that Johnson required the medication twice per day, as
stated on the instructions, for a seizure disorder. Johnson had been taking the
medicine on schedule prior to his arrest, and his last dose prior to his arrest was on
the morning of January 27.

      1
       The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska, presiding by consent of the parties pursuant to 28 U.S.C.
§ 636(c).

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       Over the course of several hours on the morning of January 28, Johnson
repeatedly requested the anti-seizure medicine from at least three different groups of
County guards, all of whom refused to provide the medicine. First, Johnson was
awakened before sunrise and placed in a unit with two other inmates who were to be
transported to the federal courthouse that day. Johnson made three requests for the
medication to a night-shift guard in that unit. The guard refused to take action and
threatened to place Johnson in lockdown upon his return from the courthouse if he
continued to ask for the medicine. Second, another County guard escorted Johnson
to a holding cell in the administrative area to await transport to the courthouse.
Johnson requested his medicine from the escorting guard, who responded that “pill
call” was at 9:00 a.m. and that Johnson would receive his medicine when he returned
from the courthouse. Third, Johnson requested his medicine several times from
County guards in the administrative holding cell area. Although several guards were
present because the shift was changing from night to day, none responded to
Johnson’s requests for his medicine.

       At approximately 8:30 a.m., United States Marshals collected Johnson and
delivered him to the federal courthouse. In a holding cell at the courthouse, Johnson
suffered a grand mal seizure. He was transported to Creighton University Medical
Center in Omaha, Nebraska, where the staff determined that the seizure occurred
because the level of Dilantin in Johnson’s blood was too low.

       Johnson filed this suit against three individual corrections officers, the County,
and the medical services provider for the County jail and its director, alleging
violations of his civil rights based on the denial of medication. He later dismissed the
medical services provider and its director. In May 2012, the district court granted
summary judgment to the three individual corrections officers, ruling that
uncontroverted evidence demonstrated that none of the three had any contact with,




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or had any responsibility for, Johnson on the morning of January 28, 2009.2 Finally,
in December 2012, the district court granted summary judgment to the sole remaining
defendant, the County, on the basis that Johnson failed to present evidence of “a
continuing, widespread, persistent patten” of unconstitutional conduct at the County
jail. Johnson appeals the grant of summary judgment to the County, arguing that the
separate denials of his requests for medication by at least three different guards on the
morning of January 28 establish such a pattern.

II.   Discussion

       We review a grant of summary judgment de novo, affirming if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Tsai, 648 F.3d at 587 (quoting Fed. R. Civ. P. 56(a)). “The
non-moving party receives the benefit of all reasonable inferences supported by the
evidence, but has ‘the obligation to come forward with specific facts showing that
there is a genuine issue for trial.’” Atkinson v. City of Mountain View, Mo., 709 F.3d
1201, 1207 (8th Cir. 2013) (quoting Dahl v. Rice Cnty., Minn., 621 F.3d 740, 743 (8th
Cir. 2010)).

        “The purpose of § 1983 is to deter state actors from using the badge of their
authority to deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).

      2
        Johnson does not appeal the grant of summary judgment to the individual
corrections officers. Because that decision was based on a failure to identify
accurately the individuals who allegedly denied Johnson’s requests for medication,
rather than a determination that the alleged conduct of those individuals did not
amount to a constitutional deprivation, that decision does not foreclose Johnson’s
claim against the County. Cf. McCoy v. City of Monticello, 411 F.3d 920, 922 (8th
Cir. 2005) (“This circuit has consistently recognized a general rule that, in order for
municipal liability to attach, individual liability first must be found on an underlying
substantive claim.”).

                                          -4-
Johnson seeks to impose municipal liability on the County through § 1983 for the
allegedly unconstitutional actions of its agents in depriving him of his anti-seizure
medication. “[I]t is well established ‘that a municipality cannot be held liable on a
respondeat superior theory, that is, solely because it employs a tortfeasor.’”
Atkinson, 709 F.3d at 1214 (quoting Szabla v. City of Brooklyn Park, Minn., 486 F.3d
385, 389 (8th Cir. 2007)). However,

      [l]ocal governing bodies . . . can be sued directly under § 1983 for
      monetary, declaratory, or injunctive relief where . . . the action that is
      alleged to be unconstitutional implements or executes a policy
      statement, ordinance, regulation, or decision officially adopted and
      promulgated by that body’s officers. Moreover, . . . local governments
      . . . may be sued for constitutional deprivations visited pursuant to
      governmental ‘custom’ even though such a custom has not received
      formal approval through the body’s official decisionmaking channels.

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978).

      The County’s official written policy is to provide comprehensive healthcare
services to the inmates. Johnson concedes the “lack of an official, written policy
promulgated by the County which would have been the cause of the constitutional
deprivation alleged by Mr. Johnson.” He contends instead that there is at least a
genuine issue of fact as to whether the County has a custom of ignoring that written
policy in allowing its jail personnel to deny medication to inmates. To establish a
claim for “custom” liability, Johnson must demonstrate:

      1) The existence of a continuing, widespread, persistent pattern of
      unconstitutional misconduct by the governmental entity’s employees;

      2) Deliberate indifference to or tacit authorization of such conduct by
      the governmental entity’s policymaking officials after notice to the
      officials of that misconduct; and


                                         -5-
      3) That plaintiff was injured by acts pursuant to the governmental
      entity’s custom, i.e., that the custom was a moving force behind the
      constitutional violation.

Thelma D. ex rel. Delores A. v. Bd. of Educ. of City of St. Louis, 934 F.2d 929, 932-33
(8th Cir. 1991) (quoting Jane Doe A v. Special Sch. Dist. of St. Louis, 901 F.2d 642,
646 (8th Cir. 1990)).

       With respect to the first element, “a single deviation from a written, official
policy does not prove a conflicting custom.” Wedemeier v. City of Ballwin, Mo., 931
F.2d 24, 26 (8th Cir. 1991). Johnson presents no evidence that other inmates have
been denied medication at the County jail, but he contends that the multiple denials
of his medication by different guards constitute multiple deviations. He relies on
McGautha v. Jackson County, Missouri, Collections Department, 36 F.3d 53 (8th Cir.
1994), in which actions by different government employees towards a single plaintiff
over the course of about three years entitled the plaintiff to a jury instruction
regarding “custom” liability. See id. at 55.

       Like the district court, we do not find McGautha controlling here. To be sure,
multiple incidents involving a single plaintiff could establish a “custom” if some
evidence indicates that the incidents occurred over a course of time sufficiently long
to permit notice of, and then deliberate indifference to or tacit authorization of, the
conduct by policymaking officials. In the instant case, however, Johnson presents no
evidence to suggest that the County’s policymaking officials would have received
notice of the denial of his medication in the early morning hours of January 28 and
made a deliberate choice to ignore or tacitly authorize the denial, all in the course of
those few hours. Because Johnson fails to present evidence of “a continuing,
widespread, persistent pattern of unconstitutional misconduct by the governmental
entity’s employees,” Thelma D., 934 F.2d at 932-33 (quoting Jane Doe A, 901 F.2d
at 646), the grant of summary judgment to the County must be affirmed.


                                          -6-
III.   Conclusion

     For the foregoing reasons, we affirm the grant of summary judgment to the
County.
                     _____________________________




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