Rykard v. City of Dothan

Filing 36

OPINION. Signed by Honorable Judge Myron H. Thompson on 12/28/2011. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

KRISTEN RYKARD,
Plaintiff,
v.
CITY OF DOTHAN,
Defendant.

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CIVIL ACTION NO.
1:10cv868-MHT
(WO)

OPINION
In this lawsuit based on the Fourteenth Amendment, as
enforced through 42 U.S.C. § 1983, plaintiff Kristen
Rykard charges that, pursuant to a policy and practice of
deliberate indifference to the serious medical needs of
pretrial detainees, defendant City of Dothan, Alabama
denied her adequate medical care while she was a detainee
in the city’s jail.1

The court’s jurisdiction has been

1. Rykard styles her claim under both the Eighth and
Fourteenth Amendments, but, as a pretrial detainee, her
“rights exist[ed] under the due process clause of the
Fourteenth Amendment rather than the Eighth Amendment.”
Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir.
2009).
This is a distinction without a difference
(continued...)

invoked pursuant to 28 U.S.C. § 1331.

This lawsuit is

currently before the court on the city’s motion for
summary judgment in its favor.

For the reasons that

follow, that motion will be granted.

I.

SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

If the evidence offered, taken in the light

most favorable to the nonmoving party, “could not lead a
rational fact-finder to find for the nonmoving party,”
then summary judgment should be granted.

McDowell v.

Brown, 392 F.3d 1283, 1288-89 (11th Cir. 2004).

(...continued)
however, since the
instances. Id.

same

standard
2

applies

in

both

II.

BACKGROUND

Because, at summary judgment, all factual disputes
are resolved favor of the nonmoving party, United of
Omaha Life Ins. Co. v. Sun Life Ins. Co., 894 F.2d 1555,
1558 (11th Cir. 1990), the background provided is drawn
directly from Rykard’s affidavit; however, the court
makes no findings as to the accuracy of that account.
On October 17, 2008, Rykard was arrested for public
intoxication and taken to the Dothan city jail.

Other

than a reported history of asthma and seizures, she was
in good health at the time she was processed into the
facility.

When she awoke in pain two days later, prison

staff told her that she needed to fill out a sick-callrequest

form

before

she

could

receive

treatment.

Although she filled out a form later that afternoon, she
was not seen by medical personnel.
On October 20, Rykard again awoke with severe pain in
her left hand.
personnel

and

This time, when she contacted jail
requested

treatment,

3

she

was

taken

by

ambulance to a local hospital.

Rykard informed her

treating physician that she was unaware of the cause of
her injury, but speculated that it might have resulted
from her attempts to get into and out of bed.

Her doctor

x-rayed the hand and took a culture of what appeared at
the time to be a bruise.

When the x-ray came back

negative, Rykard was diagnosed with a contusion, given
two

prescriptions

fitted

for

a

(antibiotic

splint

and

and

sling,

anti-inflammatory),
and

discharged

with

instructions to return if things worsened.
Immediately after returning to the jail, Rykard told
jail guard Receda Floyd that “the pain was still getting
worse and the swelling and discoloration had continued.”
Rykard Aff. 3, attachment to Pl.’s Resp. (Doc. No. 28).
Rather than comply with the doctor’s order and return
Rykard to the hospital, Floyd told her that she “did not
care”; noted that Rykard had already “been to the ER”;
and reasoned that, since Rykard’s “own family don’t [sic]
care about [her],” the guards shouldn’t either.

4

Id.

By 9:00 a.m., the swelling had worsened to the point
where

the

splint’s

velcro

fasteners

would

attach and blisters covered Rykard’s knuckles.

no

longer

She again

informed the guards of her increased discomfort, but was
told that she would simply have to deal with the pain.
By the time Floyd delivered Rykard’s lunchtime meal, some
of the blisters on her skin had burst and new ones had
formed.

Rykard showed her hand to Floyd and again

pleaded for medical attention, but Floyd simply told her
that she “was not going to listen to this all day” and
left.

Id.

Rykard’s condition continued to deteriorate and she
began calling the guard station every 30 minutes to
request medical attention.

At 5:00 p.m., Floyd returned

to Rykard’s cell with a cream for her hand.

The cream

was not one of Rykard’s prescribed medications, and it
caused

an

immediate,

severe

5

burning

sensation

when

applied.

According

to

Rykard,

this

was

the

only

treatment that she received while in custody.2
Approximately an hour later, Floyd brought Rykard her
dinner.

By then, blisters had spread throughout Rykard’s

fingers and she again pleaded with Floyd to do as the
doctor had ordered and return her to the emergency room.
Floyd refused, stating that the jail’s policy did not
permit her to return so soon after being released.

That

evening, Rykard began to experience intestinal discomfort
accompanied by vomiting and severe diarrhea.

When the

night-shift guards came on duty, her repeated requests
for medical treatment were refused.
By the next morning of October 21, Rykard’s hand was
covered in puss-filled blisters and the pain had reduced
her to tears.

She again begged for access to medical

care, but was denied.

At lunchtime, Floyd saw Rykard’s

2. While, at summary judgment, the court must
resolve all factual disputes in favor of the nonmoving
party, it is worth noting that jail records indicate that
Rykard was provided medication by jail staff at least
three times on October 20.
6

hand and commented that she wanted Rykard to keep her
distance.

Another guard approached and took Rykard to an

isolation cell.
Soon the other inmates began requesting that the
guards provide Rykard with medical care.

When those

requests were refused, the inmates called their families
and

friends

to

report

the

situation.

Still,

no

there

was

additional treatment was provided.
Finally,

at

approximately

6:00

p.m.,

another shift change and a guard by the name of Charles
Parker heard Rykard’s pleas.

Parker had her transported

back to the emergency room where she was diagnosed with
beta

hemolytic

streptococci

and

underwent

surgery.

According to Rykard’s affidavit, she “did not regain
consciousness for more than seven days” following the
surgery and had to have multiple follow-up procedures.
Id. at 5.

Despite months of physical therapy, Rykard

claims to be “permanently without independent use of
[her] left hand.”

Id.

7

III.

ANALYSIS
A.

Rykard’s cause of action comes from 42 U.S.C. § 1983,
which provides, in part, that “Every person who, under
color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of
Columbia,

subjects,

or

causes

to

be

subjected,

any

citizen of the United States ... to the deprivation of
any rights, privileges, or immunities secured by the
Constitution ... shall be liable to the party injured.”
Rykard

asserts

that

she

was

deprived

of

her

constitutional right to have her serious medical needs
attended to while in state custody.
v.

Mass.

Gen.

Hosp.,

463

U.S.

See City of Revere
239,

244-45

(1983)

(establishing constitutional right to medical care for
pretrial detainees).

To prevail on this claim, Rykard

must demonstrate “both an objectively serious medical
need and that [the City of Dothan] acted with deliberate

8

Burnette v. Taylor, 533 F.3d

indifference to that need.”
1325, 1330 (11th Cir. 2008).

The City of Dothan is the only defendant in this
case.

While local government entities are considered

“persons” within the scope of § 1983, local-government
liability

cannot

be

based

on

respondeat

superior.

McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)
(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692
(1978)).

“Instead, to impose § 1983 liability on a

municipality,
constitutional

a

plaintiff
rights

must

were

show:

(1)

that

his

violated;

(2)

that

the

municipality had a custom or policy that constituted
deliberate indifference to that constitutional right; and
(3) that the policy or custom caused the violation.”

Id.

(citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388
(1989)).
This court’s analysis begins with a determination of
whether
violated.

one

of

Rykard’s

constitutional

rights

was

To prevail on a denial of medical-care claim,

9

Rykard must demonstrate both that there was a “serious
medical

need”

that,

if

left

unattended,

posed

“a

substantial risk of serious harm” and that “the response
made by public officials to that need was poor enough to
constitute an unnecessary and wanton infliction of pain,
and

not

diagnosis

merely
or

accidental

treatment,

or

actionable under state law.”

inadequacy,
even

negligence

medical

in

malpractice

Taylor v. Adams, 221 F.3d

1254, 1258 (11th Cir. 2000) (internal quotation marks and
alterations omitted).

In other words, there must be

deliberate indifference to a serious and substantial
medical need.

B.
A “serious medical need is considered one that has
been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention.”
Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)

10

(internal quotation marks and citation omitted).
Rykard’s

treating

physician

looked

at

her

Here,

hand

and

instructed her to return if her condition worsened.

Put

another way, the physician found that Rykard’s condition,
were it to worsen, would be a serious medical need
requiring

immediate

treatment.

Because

Rykard’s

condition worsened, she had a “serious medical need.”
Id.

But, even without that diagnosis, the court would

find that Rykard has put forth substantial evidence that
she had a serious medical need, for a layperson would
certainly recognize that a severely swollen and blistered
hand, when accompanied by intense vomiting and diarrhea,
warrants medical attention.

C.
As to the second issue, Rykard can prove deliberate
indifference either by producing evidence demonstrating
that necessary medical treatment was delayed for nonmedical

reasons

or

by

showing

11

that

public

officials

“knowingly interfere[d] with a physician’s prescribed
course of treatment.”

Bingham v. Thomas, 654 F.3d 1171,

1176 (11th Cir. 2001).

Young v. City of Augusta, Ga., 59

F.3d 1160 (11th Cir. 1995), provides an example.

There,

Pamela Young suffered from manic-depressive disorder.
Id.

at

1163.

When

she

was

incarcerated

for

two

misdemeanor offenses, her father informed the court of
her illness and requested that she be permitted to serve
Id. at 1163-64.

her sentence in a hospital setting.

Despite that request, Young was confined to the city
jail, where her psychological illness got the best of her
and she needed repeated hospitalization.

Id. at 1164.

Young was severely mistreated by the guards, who withheld
proper

medication,

treated

her

with

medication

that

should have been withheld, and ultimately locked her in
isolation under inhumane conditions.

Id. at 164-65.

Young alleged that her constitutional rights were
violated because “treatment for her mental condition was
unduly delayed, ... she did not receive medication as

12

prescribed[,] and ... the events she endured in the
isolation cell fell below standards of human decency.”
Id. at 1170.

The Eleventh Circuit Court of Appeals

agreed, explaining:
“Although the record shows that Young
received some treatment for mental
illness at various times during her
imprisonment and that medication was
furnished on certain occasions, it does
not demonstrate the absence of a factual
dispute with respect to undue delay or
that medication was dispensed by jail
employees as prescribed. ... The jail
medication charts pertain to only one
day
of
Young’s
incarceration
in
September and an unidentified day or
days in October. Moreover, it cannot be
discerned from the charts whether the
medicine dispensed on those days was
given as directed, or, if there were
other medications Young should have
received. ... Furthermore, the City
proffered no evidence to rebut Young’s
claims of inhumane treatment while in
isolation. Accordingly, if this action
had been filed against the individual
jailers responsible for Young’s care,
summary judgment plainly would not have
been warranted.”

13

Id. at 1171.

Young therefore stands for the proposition

that both lack of treatment and improper treatment may
give rise to a § 1983 claim.3
Here, as in Young, there is a material issue of
disputed

fact

as

to

whether

Rykard

treatment prescribed by her doctor.

was

denied

the

Rykard’s affidavit

reveals that jail personnel were instructed that she
should be immediately returned to the emergency room if
her condition worsened, but that, when her hand swelled
and blisters appeared, spread, and burst, jail personnel
denied her emphatic requests to return to the hospital.
Despite
immediate

clear

doctor’s

treatment

if

orders
her

that

symptoms

Rykard

receive

worsened,

jail

3. While the severe physical abuse inflicted on
Young by her jailers serves to distinguish this case
(Rykard did not suffer any physical abuse while in
isolation), the withholding of medical care served as an
independent and sufficient reason to deny summary
judgment for Young’s jailers. See Bauer v. Kramer, 424
F. App’x 917, 919 (11th Cir. 2011) (per curiam) (citing
Young for the proposition that a jailhouse nurse could
have been held liable on a deliberate indifference claim
had she “ignored the doctor’s orders and ... not
administered the medication” as instructed).
14

personnel responded to Rykard’s complaints by placing her
in an isolation cell where, for approximately 30 hours,
she went without meaningful treatment.

There is no

evidence that the jail delayed her treatment for medical
purposes.
Moreover, as in Young, the care provided was contrary
to that prescribed by Rykard’s treating physician.

While

the doctor prescribed two medications and instructed her
to return if her conditions worsened, jail staff treated
her with an unknown and unprescribed salve that only
exacerbated

her

pain

and,

when

her

condition

deteriorated, jail staff placed her in an isolation cell
and repeatedly denied her requests to return to the
hospital.

There is therefore substantial evidence that

the jailors’ actions constituted knowing interference
with

a

prescribed

course

of

deliberate indifference.

15

treatment

amounting

to

D.
However,

the

above

evidence

is

not

enough

for

Rykard’s claim to survive summary judgment in favor of
the City of Dothan.

To hold the city liable for the

actions of its employees, Rykard must also demonstrate
that the city had a custom or practice that caused her
injury.

This she has failed to do.

Rykard

insists

that

it

was

Dothan’s

custom

or

practice to deny inmates repeat hospital visits unless
they first waited an unspecified amount of time.

She

offers two types of evidence to support that assertion.
First, she points to her own experience of being denied
necessary medical treatment.

Second, she swears that

jail personnel, in denying her requests to return to the
hospital, justified their refusals by referring to a
policy against repeated hospital visits.
the

validity

of

Rykard’s

assertions,

Even assuming
the

court

is

convinced that they fail as a matter of law to justify
imposing liability on Dothan.

16

First,
establish

the
a

treatment

practice

Rykard

of

denying

received

fails

appropriate

to

medical

treatment.

The rule in the Eleventh Circuit is that,

with

exceptions,

few

constitutional

violation

a

“single

is

incident

insufficient

to

of

a

prove

a

policy or custom even when the incident involves several
employees

of

the

municipality”

unconstitutional conduct.

participating

in

the

Craig v. Floyd County, Ga.,

643 F.3d 1306, 1311 (11th Cir. 2011).

That rule is

designed to ensure “‘that a municipality is held liable
only for those deprivations resulting from the decisions
of its duly constituted legislative body or of those
officials whose acts may fairly be said to be those of
the municipality’” and not for the improper actions of
misguided employees who independently choose to violate
a plaintiff’s constitutional rights.

McDowell, 392 F.3d

at 1290 (quoting Bd. of County Comm’rs v. Brown, 520 U.S.
397, 403-04 (1997)).

17

For example, in Craig, Henry Craig raised a claim
strikingly similar to the one Rykard has asserted in this
case.

643 F.3d at 1306.

At the time Craig was processed

into the county jail, he needed neurological surgery to
address an injury he had received at the hands of his
arresting officers.

Id. at 1308.

Nevertheless, he was

held in jail for nine days before finally being taken to
a local hospital for treatment.

Id. at 1309.

Craig

brought suit against Floyd County alleging that it had a
custom or practice of, among other things, “not referring
detainees
allegation

to

physicians,”

with

incarceration,

he

evidence
was

and

he

that,

treated

supported
during

by

nine

that

his

own

different

employees, none of whom referred him to a doctor.

Id. at

1311-12.
The Eleventh Circuit rejected Craig’s claim.

It

concluded that he had “offered no proof of a policy or
custom that was persistent or widespread” because, rather
than showing “a series of constitutional violations,” he

18

relied on “his own experience, which [wa]s, at most,
proof of a single incident of unconstitutional activity.”
Id. at 1312 (internal quotation marks and alterations
omitted). In other words, Craig’s experience constituted
only one example of unconstitutional conduct and was
therefore

insufficient

to

demonstrate

a

practice

or

custom of deliberate indifference, and this was true even
though Craig had been denied appropriate care by multiple
jail employees over the course of many days.

Craig’s

teaching may be summarized as follows: “Although the
complaint of [a] former detainee [may have] involved
several

employees

of

a

municipality

and

an

extended

period of time, ... he ha[s still] failed to prove a
policy or custom” but rather has proved “only ... his
‘isolated incident.’”

Id. at 1311 (citation omitted).

Craig requires the same result in this case.

As in

Craig, Rykard offers only her own experience and does not
point to experiences of other inmate where the jail’s
refusal of return visits to the hospital contributed to

19

or exacerbated that inmate’s medical condition.4
McDowell, 392 F.3d at 1290.

See

Without any evidence that

others have experienced similar treatment, Rykard alleges
no

more

than

an

“isolated

incident”

insufficient

to

justify municipal liability.

Id.; see also Craig, 643

F.3d

experience

at

1312

(one

inmate’s

is

not

alone

sufficient to show a policy or practice).5

4. It is unclear why Rykard has failed to produce
such evidence.
Perhaps none exists.
However, it is
certainly
possible
that,
had
plaintiff’s
counsel
participated in discovery or deposed jail employees,
evidence of similar instances of mistreatment might have
surfaced.
5. In his concurrence in Craig, Judge Cox took issue
with the majority’s characterization of Craig’s treatment
as a “single incident.” 643 F.3d at 1312. Nevertheless,
Judge Cox agreed with the majority that no pattern or
practice had been established.
Here, while various
Dothan jail employees may have mistreated Rykard to the
extent that there were several separate constitutional
violations rather than a single incident, there is no
evidence that the individual mistreatments added up to a
pattern or practice on the part of the city.
After all,
Rykard was taken to the hospital twice during her fiveday detention.
20

As

to

Rykard’s

other

assertion

that

some

jail

personnel justified their refusal to return her to the
hospital on an unwritten policy, the specific facts of
this

case

render

that

allegation

insufficient

to

demonstrate the existence of such a policy.
First, it is a basic tenant of municipal liability
that

“only

those

municipal

officers

who

have

final

policymaking authority may by their actions subject the
government to § 1983 liability.”

Church v. City of

Huntsville, 30 F.3d 1332, 1334 (11th Cir. 1994) (internal
quotation marks and alterations omitted).

Here, there is

no evidence that the practice allegedly employed by the
jail was dictated by municipal policymakers; no evidence
of the city’s failure to monitor or failure to train the
individual

guards

who

denied

Rykard

the

appropriate

treatment; and no evidence that anyone other than an
individual jailor responsible for her care knew about-let alone created--the so-called policy in question.
Under these circumstances, there is no ground upon which

21

to justify municipal liability. A single non-supervisory
and non-policy-making employee cannot by mere word or
deed create municipal liability.
Second, Rykard does not clearly explain the nature of
the alleged policy.

According to Rykard, she was told

that the policy would “not allow another emergency room
visit that quickly” after an initial visit, Rykard Aff.
3, attachment to Pl.’s Reply (Doc. No. 28), but how long
one

must

wait

between

visits

or

whether

exceptions to this rule is anyone’s guess.

there

are

Certainly

there would be no constitutional violation if the policy
required

jail

personnel

to

implement

the

course

of

treatment suggested by the emergency room doctor and only
return

the

patient

for

additional

care

if

either

conditions worsened or the suggested course of treatment
proved

ineffective;

be

wholly

consistent with the one Rykard alleges existed.

Since

Rykard

would

does

not

and

clearly

that

policy

allege

a

would

policy

that

justify the imposition of municipal liability, the court

22

has no way of knowing whether she even alleged proper
grounds for relief.
Third, Rykard’s affidavit is self-defeating.

While

she alleges a jail policy prohibiting return visits to
the hospital, her affidavit undermines that assertion.
In it, she explains that Parker “told [her] that [she]
should fill out a grievance upon [her] return to the
jail.”

Rykard Aff. 4-5, attachment to Pl.’s Reply (Doc.

No. 28).

Accepting Rykard’s affidavit as true, Parker

obviously saw his colleagues’ refusal to provide Rykard
with treatment as abnormal and inappropriate, rather than
typical behavior in concert with some unwritten policy.6

6. While it is inappropriate to make credibility
determinations at the summary-judgment stage, it is worth
pointing out that Rykard’s complaint does not even
mention the alleged policy of limiting return trips to
the hospital. It instead relies on the jail’s alleged
policy of refusing to purchase prescription medication
for its detainees.
It is only in Rykard’s affidavit,
submitted in response to Dothan’s motion for summary
judgment, that this new policy is alleged. Of course,
that is the whole point of discovery: the parties are
able to hone their arguments based on new facts uncovered
through depositions and document production. However, in
(continued...)
23

Were it actually the policy of the jail to deny return
visits to the hospital, then there would be no point to
Rykard’s grievance and no reason for the guard to suggest
that she file one.
Finally, there is no evidence that any delay in
obtaining medical care actually contributed to Rykard’s
injury.

Rykard has failed to offer an affidavit from a

medical professional indicating that promptly returning
her to the doctor would have prevented some (or all) of
her injuries.

Indeed, Rykard has not even submitted

medical records indicating that she suffered from the
type of infection identified in her affidavit.

While

there is no reason for the court to doubt the veracity of
Rykard’s sworn statement, the lack of medical evidence of
causation between the alleged policy and her injuries
(...continued)
this case, Rykard took no depositions and there is no
documentary evidence to support the policy’s existence.
A jury would certainly be free to conclude that Rykard
simply made up the policy on which she now relies in
order to survive summary judgment.
While this court
takes no position on the matter, it should go without
saying that such behavior has no place in a court of law.
24

would independently justify granting summary judgment for
Dothan.7
***
In order to maintain a claim for municipal liability
under § 1983, Rykard must demonstrate that the City of
Dothan had a policy or practice that contributed to the
deprivation of her constitutional right. She has failed
to come forward with sufficient evidence of any such
policy.

The

city

is

therefore

entitled

to

summary

judgment in its favor on Rykard’s deliberate-indifference
claim.
An appropriate judgment will be entered.
DONE, this the 28th day of December, 2011.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

7. To be sure, Rykard herself maintains that she has
permanent injuries directly caused by the jail’s failure
to attend her medical needs.
However, she has not
indicated how she has the medical expertise to say how
her physical condition would have differed with and
without the delay in medical attention she alleges.