United States Court of Appeals

For the Eighth Circuit

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No. 18-1933

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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

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Appeal from United States District Court

for the District of Minnesota

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Submitted: March 12, 2019

Filed: August 21, 2019

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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.

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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”-

style

1

 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)

1The record is unclear whether the shoes were CROCS-brand shoes or a similar

style of slip-on shoes.

2Except as otherwise noted, we recite these facts in the light most favorable to

DeLuna asthe nonmoving party before the district court. Oglesby v. Lesan, 929 F.3d

526, 531–32 (8th Cir. 2019). 

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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 recordsshow 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 hisleft foot wasin 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

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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

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jail’s officers did not act willfully and maliciously in providing DeLuna with toosmall shoes—thus satisfying the state-law predicatesfor 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 whatsize 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 lightmost 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

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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), asthat doctrine generally appliesin 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 arguesthatrequiring 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

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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 toosmall 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.

3Whether too-smallshoes 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.

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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 thusinsulating for a defendant unlessit hassatisfied 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 oflaw“where reasonableminds

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, intravenous drug abuse, and the fact he has multiple tattoos, all of which placed him at

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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-smallshoes 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

arguesthere 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.

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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.

4We 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.”

5We 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.

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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 unlessthe 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 isleft 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 ‘clearlyministerial,’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

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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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