Wilmer Payne v. Sevier County, Tennessee

Filing

OPINION: the district court's judgment is AFFIRMED, decision not for publication. Eric L. Clay, Circuit Judge; Raymond M. Kethledge, AUTHORING Circuit Judge and Bernice Bouie Donald, Circuit Judge (Concurring).

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0138n.06
No. 16-5272
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
WILMER PAYNE,
Plaintiff-Appellant,
v.
SEVIER COUNTY, TENNESSEE,
Defendant-Appellee.

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FILED
Mar 03, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE

Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.
KETHLEDGE, Circuit Judge. Wilmer Payne was incarcerated at the Sevier County Jail,
where he received medical treatment from First Med, Inc., a County-hired healthcare contractor.
In June of 2013, Payne began complaining of tooth pain, headaches, and nosebleeds. First Med
suspected he had an infected tooth and treated him with antibiotics. Over the next four months,
however, Payne failed to get any better, despite the medication. First Med then sent him for a
CT scan, which revealed he had oral cancer rather than an infection. Payne thereafter sued the
County under 42 U.S.C. § 1983, arguing that First Med’s medical personnel and the County’s
correctional officers had been deliberately indifferent to his serious medical needs, and that the
County was responsible for that indifference. The district court granted summary judgment to
the County. We affirm.

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No. 16-5272, Payne v. Sevier Cty., Tenn.
I.
On March 29, 2013, Payne arrived at the Sevier County Jail to serve a 39-week sentence
for misdemeanor domestic assault. Three months later, on June 7, Payne filed an Inmate Sick
Call Request, complaining of a toothache. Virginia Mason, one of First Med’s licensed practical
nurses, responded, informing him that he had been added to the roster of inmates slated to see
First Med’s dentist. For the next month and a half, Payne waited without hearing anything about
a dental appointment. On July 23, Payne filed a grievance with the prison, demanding that he be
seen immediately because his pain had “intensified unbearably.” The correctional officer who
received the grievance, Lieutenant Loveday, sent it to First Med.
The next day, another LPN, Amy Williams, conducted the first of what would be nine
examinations of Payne by First Med. She observed that his lower right jaw was “slightly red
with [a] yellow raised area.” Williams suspected that Payne had an infected tooth and prescribed
penicillin. Payne soon filed another Inmate Sick Call Request, reporting that his gums were red
and swollen, and that his nose would not stop bleeding.

Another LPN, Susan Peterson,

examined Payne; finding no evidence of redness, swelling, or nosebleeds, she denied his request
for pain medication. Payne continued to receive antibiotics.
Two days after seeing Peterson, Payne filed a second grievance against First Med,
complaining of cranial pressure, blurred vision, and difficulty swallowing. Again, Loveday
forwarded the grievance on to First Med. LPN supervisor Jessie Timbrook responded to Payne
in writing, reiterating that Peterson had found nothing unusual during her examination, and
promising that Payne would see First Med’s dentist the next time he visited the jail. Payne asked
Loveday why Loveday had not responded to Payne’s grievance himself. Loveday replied that he

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No. 16-5272, Payne v. Sevier Cty., Tenn.
was “overwhelmed” by other responsibilities and therefore “too busy” to address Payne’s
grievance.
Two weeks later, Williams and First Med’s dentist, Dr. Daniel Roberts, each examined
Payne. During Williams’s exam, she observed a “raised pocket” on the roof of Payne’s mouth.
Roberts did not document what he observed, but he prescribed another cycle of penicillin and
three days’ worth of ibuprofen. Two days later, Payne asked to see Roberts again because he
was still suffering from tooth pain, headaches, and nosebleeds. The next day, Payne made a
request for more pain relievers, which First Med denied.
On September 12, another LPN, Sheri Cable, conducted First Med’s fifth examination of
Payne. She observed that his palate was still swollen, and prescribed him a new antibiotic. Six
days later, First Med’s physician’s assistant, Tim Thomason, examined Payne. He found a lesion
on Payne’s palate, switched Payne’s antibiotic a second time, and prescribed him an antiseptic
mouth wash. On September 25, Payne visited Roberts a second time. Again, nothing in the
record reveals what, if anything, the dentist found.

That same day, however, First Med

scheduled Payne for a CT scan of his face and neck, to be taken October 7.
On October 1, Payne filed his third grievance against First Med, complaining that he had
not gotten any better despite the treatment he had received. Loveday again passed the complaint
along to First Med. Another LPN, Dan Hartley, saw Payne twice in the next week. During the
two visits, Hartley observed the following: a “right next mass,” an “oral lesion,” and “prominent
swelling with pockets of what appeared as white flesh or pus” inside Payne’s nasal cavity.
Hartley thought Payne might have a tumor, and told Thomason and Timbrook what he had
found.

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Timbrook then responded to Payne’s October 1 grievance, stating that First Med had
examined Payne multiple times, prescribed him antibiotics and pain medication, and scheduled
him for imaging. Payne responded by filing a fourth grievance, listing his symptoms and
accusing First Med of “dragging [its] feet” in treating him.
Payne had his CT scan on October 7. Three days later, First Med received the results,
which confirmed that Payne had an “aggressive soft tissue mass” in his nasal cavity that was
“indicative of malignancy, possibly squamous cell carcinoma,” a form of cancer.

An

unidentified First Med employee faxed the results to Thomason. Over the next five days, no one
at First Med examined Payne or informed him what the scan had revealed. Payne then filed a
fifth grievance on October 15, demanding to see the results for himself. That same day, he began
experiencing uncontrollable nosebleeds, and First Med sent him to the emergency room. There,
an ER doctor told Payne for the first time that, according to the CT scan, he likely had cancer.
Payne was released early from prison, and has been receiving cancer treatment ever since.
Payne thereafter brought this suit under 42 U.S.C. § 1983, claiming that the County, First
Med, and individual employees of both entities had violated his Eighth Amendment right to
medical care in jail. First Med and its employees reached a settlement agreement with Payne,
but the County and its employees did not; instead, they moved for summary judgment. The
district court granted the County’s motion, holding that Payne had not identified any County
custom or policy that had caused his injuries.

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II.
We review the district court’s grant of summary judgment de novo. Smith v. City of
Wyoming, 821 F.3d 697, 706 (6th Cir. 2016).
To bring a successful § 1983 suit against the County, Payne needed to prove not only that
employees of the County or First Med had been deliberately indifferent to his serious medical
needs, but that their indifference was directly caused by a County custom or policy. Baynes v.
Cleland, 799 F.3d 600, 620-21 (6th Cir. 2015).
Here, the question is whether Payne has presented evidence creating a genuine issue as to
whether a County custom or policy caused First Med’s medical staff to treat him with deliberate
indifference. Payne argues that he has identified both a custom and a policy that harmed him.
For § 1983 purposes, a “custom” is a “practice that, although not authorized by written
law or express municipal policy, is so permanent and well-settled” as to have the force of law.
Cash v. Hamilton Cty. Dep’t of Adult Prob., 388 F.3d 539, 543 (6th Cir. 2004). A plaintiff
cannot establish a custom solely by pointing to the facts of his own case. Instead, he must “reach
beyond” the alleged misconduct at issue, and show “several separate instances” of similar
misconduct. Thomas v. City of Chattanooga, 398 F.3d 426, 433-34 (6th Cir. 2005).
The custom that harmed Payne here, he says, is the County’s alleged practice of
forwarding grievances against First Med to First Med itself. But Payne submitted no evidence
that the County followed that putative custom when dealing with inmates other than Payne.
Indeed, Payne’s only proof were his own five grievance forms, all submitted within a threemonth window. Per our decision in Thomas, five instances of alleged misconduct, over three
months, all involving the plaintiff himself is not enough to prove a custom. 398 F.3d at 433-34.
Moreover, as Payne himself points out, Lieutenant Loveday allegedly said that he forwarded

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Payne’s grievances to First Med because he was “too busy” to address them himself. That
suggests that the handling of Payne’s grievances was due more to Loveday’s personal
circumstances than to a widespread custom. Payne has therefore failed to raise a genuine dispute
that a custom caused his injuries.
Payne also argues that he was harmed by one of the County’s written policies. For
§ 1983 purposes, not every directive issued by a county official constitutes a “policy.” Bd. of
Cty. Comm’rs v. Brown, 520 U.S. 397, 404 (1997). Instead, a policy must either be facially
unconstitutional or reveal that policymakers were deliberately indifferent to the rights of those
affected by the directive. Id. at 406-07. To establish deliberate indifference, a plaintiff generally
needs to show that the policy has resulted in “prior unconstitutional actions,” but that
policymakers have maintained the policy nonetheless. Miller v. Calhoun Cty., 408 F.3d 803, 815
(6th Cir. 2005). In rare circumstances, however, a plaintiff can prove indifference simply by
showing that a policy’s “unconstitutional consequences” should have been “patently obvious” to
the county. Connick v. Thompson, 563 U.S. 51, 64 (2011).
According to Payne, the policy that harmed him is the County’s alleged practice of letting
LPNs diagnose and treat inmates without any supervision from a doctor. That is a problem,
Payne contends, because LPNs are not trained to diagnose and treat ailments on their own. As a
threshold matter, the purported policy is not facially unconstitutional. Just like a statute, a
county policy is facially unconstitutional only if “the [policy] is unconstitutional in all of its
applications.” Cf. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449
(2008).

And unsupervised LPNs can—and presumably often do—provide constitutionally

adequate medical care. Thus, to establish that the County’s use of LPNs constitutes a policy,
Payne needed to prove that the practice amounts to deliberate indifference.

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Payne has not made that showing. He presented no evidence that the LPNs provided
subpar treatment to anyone but him. He therefore failed to demonstrate a pattern of “prior
unconstitutional actions” caused by the purported policy. Miller, 408 F.3d at 815. Nor did he
show that the County’s use of LPNs would obviously result in Eighth Amendment violations.
Again, to violate the Eighth Amendment, a medical professional must act with deliberate
indifference, meaning that she must recognize and consciously disregard a substantial risk to an
inmate’s health. Wallin v. Norman, 317 F.3d 558, 562 (6th Cir. 2003). Payne has failed to
present evidence that the County’s putative policy would cause LPNs to act with that kind of
indifference. He has therefore failed to prove the existence of a County policy that harmed him.
*

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The district court’s judgment is affirmed.

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*

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No. 16-5272, Payne v. Sevier Cty., Tenn.
BERNICE BOUIE DONALD, Circuit Judge, concurring.

While I agree with the

majority that Mr. Payne has not made the requisite showing to support a finding of Monell
liability, I find it necessary to emphasize that this rule does not allow, nor does this Court
condone, a municipality attempting to escape its constitutional duties by hiring a contractor to
provide a fundamental service without supervision.
Mr. Payne argues that because Sevier County’s duty to provide adequate medical care to
its inmates is non-delegable, it maintains responsibility for constitutional deprivations caused by
its medical contractor’s policies or customs. In making this argument, Mr. Payne relies on
Ancata v. Prison Health Services, Inc, an Eleventh Circuit decision, in which the Court states in
dicta that the county “remains liable for any constitutional deprivations caused by the policies or
customs” of the medical contractor.

769 F.2d 700, 705 (11th Cir. 1985).

To refute this

argument, Defendant Sevier County argued in briefing and at oral argument that a municipality
may only be liable for the decisions of a contractor where the municipality “officially abdicated
its right to review and influence the subordinate’s decisions.” Appellee Br. 21 (citing Pembaur
v. City of Cincinnati, 475 U.S. 469, 483). Sevier County asserts that under this rule, even where
the municipality “granted an actor wide discretion to perform a duty and was lax or even
negligent in it supervision,” it will not be liable unless it has delegated its policy-making
authority. Id.
Sevier County is correct that “[s]imply going along with discretionary decisions made by
one’s subordinates . . . is not a delegation to them of the authority to make policy.” St. Louis v.
Praprotnik, 485 U.S. 112, 130 (1988) (plurality op). However, this precedent does not absolve
municipalities of liability for actions of contracted medical providers. Nor does it relieve
municipalities of their constitutional responsibilities as completely as Sevier County has argued

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here. A municipality may be liable for the decisions of a contractor not only where a supervising
policymaker “expressly approved” a decision by a subordinate that was “cast in the form of a
policy statement,” but also where “a series of decisions by a subordinate official manifested a
‘custom or usage’ of which the supervisor must have been aware.” Praprotnik, 485 U.S. at 130
(citations omitted). As the majority opinion makes clear, Mr. Payne has not made a requisite
showing that either a custom or policy attributable to Sevier County caused his injury. However,
this opinion should not be read to shield a municipality that attempts to discharge its
constitutional duties by hiring contractors to provide fundamental services to those in the
municipality’s care and then placing its head in the sand to remain oblivious to violations.

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