Becker v. Fannin County, Georgia et al

Filing 317

ORDER ADOPTING the Magistrate Judge's 306 Report and Recommendations with three exceptions. Defendants' 248 Motion for Summary Judgment and 250 Motion for Summary Judgment are GRANTED in part and DENIED in part. The Court GRANTS sum mary judgment to, and DISMISSES from this action, the following Defendants: Fannin County; Fannin County Sheriff Dane Kirby; former Fannin County Sheriff George Ensley; Fannin County Jail Shift Supervisors Sergeants Holly Phillips and Janella Verner; Fannin County Jail Officers Mitchell Mason, Chad Ensley, John Arp, and Earl Mashburn; Fannin County Road Deputies Marc White and Larry Davenport; and Fannin County EMTs Zeke Watkins and Randy Epperson. ( The state-law claims against all individual D efendants except Sheriff Kirby and the EMTs are DISMISSED without prejudice; all of the remaing claims against these thirteen Defendants are DISMISSED with prejudice, including state-law claims against Sheriff Kirby and the EMTs). With respect to Fa nnin County Jail Captain Greg Newman, the Court GRANTS partial summary judgment on Plaintiffs federal claims against him in his official capacity and in his individual supervisory capacity; otherwise DENIES summary judgment on Plaintiffs federal cla ims against him in his individual capacity; and DENIES summary judgment on Plaintiffs state-law claims. With respect to Fannin County Jail Shift Supervisors Sergeants Carol Davenport and Jillian Bailey, and Fannin County Jail Officers Roger Pulliam a nd Joe Raper, the Court GRANTS partial summary judgment on Plaintiffs federal claims against them in their official capacities; DENIES summary judgment on Plaintiffs federal claims against them in their individual capacities; and DENIES summary judgment on Plaintiff's state-law claims. Signed by Judge Richard W. Story on 09/29/14. (sk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
MARY BECKER,
Individually and as Administrator of
the Estate of
JASON HEWITT ARMSDEN,
Plaintiff,

:
:
:
:
:
:
v.
:
:
FANNIN COUNTY, GEORGIA, et al., :
Defendants.
:

CIVIL ACTION NO.
2:09-CV-00047-RWS-JCF

PRISONER CIVIL RIGHTS
42 U.S.C. § 1983

ORDER
This case involves the death of Jason Armsden in April 2007 due to acute
alcohol withdrawal while a pretrial detainee at the Fannin County Jail (“Jail”).1
Plaintiff, the administrator of Armsden’s estate, has sued twenty separate Defendants,
eighteen of whom have moved for summary judgment. The Magistrate Judge
recommends that the Court do the following:
(1)

grant summary judgment to Fannin County and to Fannin County Sheriff Dane
Kirby on Plaintiff’s federal and state-law claims, and to the other sixteen
individual Defendants in their official capacities on Plaintiff’s federal claims;

(2)

grant summary judgment to the following ten Defendants in their individual
capacities on Plaintiff’s 42 U.S.C. § 1983 claims:

1

Armsden arrived at the Jail on Friday evening, April 6, 2007, and expired on Tuesday
morning, April 10. (See Doc. 306 at 6 et seq.).

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(a)
(b)
(c)
(d)

former Sheriff George Ensley and Captain Gregory Newman;
Jail Shift Supervisor Sgt. Janella Verner and one other supervisor;
Jail Officer Earl Mashburn and three other officers; and
Fannin County Road Deputies Marc White and Larry Davenport;2

(3)

decline to exercise supplemental jurisdiction and dismiss without prejudice all
of Plaintiff’s state-law claims against the foregoing ten Defendants;

(4)

as to Emergency Medical Technicians (“EMTs”) Randy Epperson and Zeke
Watkins:
(a)
(b)

(5)

grant summary judgment on Plaintiff’s state-law claims; and
deny summary judgment on Plaintiff’s federal claims against them in
their individual capacities;

deny summary judgment on Plaintiff’s federal and state-law claims, including
Plaintiff’s claims for punitive damages, to the following four Defendants in
their individual capacities:
(a)
(b)

Jail Shift Supervisors Sgts. Carol Davenport and Jillian Bailey; and
Jail Officers Roger Pulliam and Joe Raper.

(Doc. 306 at 104-05).
The Court has received objections from the following parties:
(1)

the EMTs (Doc. 308);

2

The Magistrate Judge recommends granting summary judgment on Plaintiff’s federal
claims to Sergeant Hollie Phillips and Jail Officers Mitchell Mason, John Arp, and Chad Ensley.
(Doc. 306 at 104-05). Plaintiff does not object, and the Court finds no plain error in these
recommendations.

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(2)

Plaintiff, who objects to the Magistrate Judge’s recommendations regarding
the following Defendants (Doc. 309):
(a)
(b)
(c)
(d)
(e)
(f)

Fannin County and former Sheriff Ensley in his official capacity;
Captain Newman in his individual capacity;
Jail Officer Mashburn in his individual capacity;
Shift Supervisor Sgt. Verner in her individual capacity;
Road Deputy White in his individual capacity; and
Road Deputy Davenport in his individual capacity;

(3)

Shift Supervisor Sgt. Davenport (Doc. 310);

(4)

Shift Supervisor Sgt. Bailey and Jail Officer Raper (Doc. 311); and

(5)

Jail Officer Pulliam (Doc. 312).
The Court has also received replies to Plaintiff’s objections from (1) Sheriff

Kirby and Fannin County (Doc. 313); (2) Captain Newman (Doc. 314); (3) Officer
Mashburn and Sgt. Verner (Doc. 315); and (4) Road Deputies Davenport and White
(Doc. 316).
In accordance with 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of
Civil Procedure, the Court has conducted a de novo review of those portions of the
Report to which the foregoing parties object, and has reviewed the remainder of the
Report for plain error.3 See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.

3

The Magistrate Judge has summarized the facts of this case at length in his very thorough
Report and Recommendation. (See Doc. 306 at 4-27 (factual background); id. at 31-39 (Plaintiff’s

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1983).
I.

The EMTs’ Objections (Doc. 308)
The EMT Defendants object to the Magistrate Judge’s conclusion that because

Sgt. Verner testified that they suspected Armsden was suffering from drug or alcohol
withdrawal, they were subjectively aware that Armsden had a serious medical need
requiring immediate attention. (Doc. 308 at 1-2). They argue that their own
testimony “confirms that they did not associate the phrase ‘drug or alcohol
withdrawal’ with the serious medical condition of DTs.” (Id. at 3 (footnote omitted)).
Watkins testified that he had not been trained to handle an inmate experiencing
alcohol withdrawal or DTs. Epperson testified that “he did not know that DTs can
be [] life threatening.” (Id.). The EMTs contend that Sgt. Verner’s testimony that
they told her that Armsden “probably needed to go somewhere and dry out” reveals
that they had no subjective awareness that Armsden’s life was in danger. (Id. at 3-4
(internal quotations omitted)).

§ 1983 official-capacity claims); id. at 48-57 (Plaintiff’s § 1983 individual-capacity claims against
Newman); id. at 58-63 (against Sgts. Davenport and Bailey and Officers Pulliam and Raper); id.
at 66-70 (against Sgt. Verner and Officer Mashburn); id. at 72-79 (against the EMTs); id. at 80-85
(against the Road Deputies); id. at 86-95 (qualified immunity from, and punitive damages for,
Plaintiff’s federal claims); id. at 95-104 (Plaintiff’s state-law claims)).

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They argue further that although their failure to secure a medical history on
Armsden might have been negligent, it did not constitute deliberate indifference.
They “were presented with [a] patient [with] stable vital signs and for whom they had
been given no medical history, [and they] treated [the] condition that presented at that
time, namely the cut on [his] face.” (Id. at 5; see id. at 6). They argue that the
Magistrate Judge has misunderstood their role—which is to “treat what they see,” to
handle “acute emergent situations”—and they fulfilled that role precisely in this case.
(Id. at 5). The EMTs argue further that they are entitled to qualified immunity
because there is no precedent in this Circuit holding EMTs, who are not jail officials,
liable for deliberate indifference to acute alcohol withdrawal, and there also is no
precedent even addressing, must less establishing, a pre-trial detainee’s right to
emergency medical care. (Id. at 7-8).
“To satisfy the subjective element of [a] deliberate indifference [claim, a] . . .
Plaintiff must prove three things: (1) subjective knowledge of a risk of serious harm;
(2) disregard of that risk; (3) by conduct that is more than [gross] negligence.”
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005) (internal quotations omitted)
(noting that subjective knowledge requires that the defendant “ ‘must both be aware
of facts from which the inference could be drawn that a substantial risk of serious
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harm exists, and [] must also draw the inference’ ” (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994) (emphasis added in quoted material)). But “a factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the
risk was obvious.” Goebert v. Lee Cnty., 510 F.3d 1312, 1327 (11th Cir. 2007)
(internal quotations omitted).
The EMTs’ argument on the lack of precedent to deny them qualified
immunity, on the ground that an EMT is not a jail official, is not well-taken. The
Eleventh Circuit’s holdings in Lancaster v. Monroe County, Ala., 116 F.3d 1419
(11th Cir. 1997), and Morrison v. Washington County, 700 F.2d 678 (11th Cir. 1983),
“should have put any government actor on notice that delayed or inadequate
treatment of alcohol withdrawal would be unlawful.” Harper v. Lawrence County,
592 F.3d 1227, 1237 (11th Cir. 2010) (emphasis added). It was also clearly
established in April 2007 that “deliberate indifference may be [proven] by a showing
of grossly inadequate care as well as by a decision to take an easier but less
efficacious course of treatment,” or “when the need for treatment is obvious, [by]
medical care which is so cursory as to amount to no treatment at all.” McElligott v.
Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (internal quotations omitted) (citing
Steele v. Shah, 87 F.3d 1266, 1269-70 (11th Cir. 1996); Mandel v. Doe, 888 F.2d
6

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783, 788-89 (11th Cir. 1989); Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir.
1989); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)).
And the law of deliberate indifference applicable to convicted prisoners under the
Eighth Amendment also applies to pretrial detainees under the Fourteenth
Amendment. (See Doc. 306 at 39-40).
The federal courts are nevertheless not in the business of second guessing the
judgments of medical professionals. See Adams v. Poag, 61 F.3d 1537, 1543 (11th
Cir. 1995) (“Mere negligence in diagnosing or treating a medical condition is an
insufficient basis for grounding liability on a claim of medical mistreatment under the
Eighth Amendment.”); see id. at 1547 (concluding that the medical provider’s
“failure to administer stronger medication” to a prisoner who subsequently died was
“a medical judgment and, therefore, an inappropriate basis for imposing liability
under section 1983”); see also Williams v. Barrow, 559 Fed. Appx. 979, 984-85 &
n.5 (11th Cir. 2014) (affirming dismissal of deliberate indifference claim against
doctor—who denied appellant’s prescribed post-surgery occupational therapy and the
full term of his prescribed physical therapy, and who also eventually terminated
appellant’s pain medication despite his complaints of increasing pain—because the
doctor’s decisions “ ‘are classic example[s] of a matter for medical judgment and
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therefore not an appropriate basis for grounding liability under the Eighth
Amendment’ ” (quoting Poag, 61 F.3d at 1545); and noting that “ ‘[a] medical
decision not to order an X-ray, or like measures, does not represent cruel and unusual
punishment’ ” (quoting Estelle v. Gamble, 429 U.S. 97, 107 (1976) (wherein the
Supreme Court also stated that “the question whether an X-ray – or additional
diagnostic techniques or forms of treatment – is indicated is a classic example of a
matter for medical judgment”))).
Although the issue is close and the Court is troubled by what might be deemed
the EMTs’ “willful blindness” to Armsden’s condition, the Court is also mindful of
the high bar for success on Plaintiff’s deliberate indifference claim—requiring proof
that the EMTs not only were aware of facts from which to infer a substantial risk of
serious harm to Armsden, but also that they actually drew that inference. The Court
concludes that there is insufficient record evidence to create a genuine issue for trial
as to whether the EMTs actually drew that inference, which they deny. And it is not
this Court’s role to second guess their medical judgments in this matter. Thus there
is no genuine issue for trial as to whether the EMTs may be held liable for their
decision not to provide any treatment to Armsden other than for the cut on his face

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and not to recommend to Jail officials that he receive emergency treatment for his
psychological and/or substance withdrawal problems.
II.

Plaintiff’s Objections (Doc. 309)
Plaintiff objects generally to the Report and Recommendation by arguing that

the Magistrate Judge “has erred on several key points by construing the facts in a
manner more favorably to individual defendants, whose testimony is self-serving[,]”
rather than to Plaintiff, the non-moving party, as is required on summary judgment
review. (Doc. 309 at 18; see Doc. 306 at 27).
A.

Official Capacity Claims Against Fannin County

Plaintiff first objects to the Magistrate Judge’s conclusions that Captain
Newman was not a final policymaker for Fannin County and that his personal
participation in the handling of Armsden’s treatment did not represent County policy.
Plaintiff argues that Sheriff Ensley’s delegation of authority to Capt. Newman over
virtually all aspects of Jail operations was sufficient to render Newman a final
policymaker for the County. (Doc. 309 at 3-7). Plaintiff states that she “has, indeed,
presented sufficient evidence concerning Newman’s personal participation to invoke
. . . municipal . . . liability upon the Captain.” (Id. at 7). Plaintiff argues that “the

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Sheriff was a mere figurehead” with respect to “day-to-day operations” at the Jail,
“having little or nothing to do with” them. (Id. at 4).
The Court disagrees. Sheriff Ensley’s deposition testimony reveals that he
retained the authority to review all of Capt. Newman’s decisions regarding Jail
operations. (See Sheriff Ensley Dep. (Doc. 271) at 10-12 (testifying that “jail
operations were [his] ultimate responsibility”; that “Newman [was not] able to enact
standard operating procedures for jail operations without [the Sheriff’s] approval and
authorization”; and that Newman could modify booking procedures, but only if he
told the Sheriff “because ultimately [the changes] required [the Sheriff’s]
authorization”)); see also Doe v. Sch. Bd., 604 F.3d 1248, 1264 (11th Cir. 2010)
(noting that the Eleventh Circuit has “strictly interpreted [the Supreme Court’s]
policy or custom requirement to preclude § 1983 liability for a subordinate official’s
decisions when the final policymaker delegates decisionmaking discretion to the
subordinate, but retains the power to review the exercise of that discretion” (internal
quotations omitted)).
B.

Individual Capacity Claims Against Captain Newman

Plaintiff next objects to the Magistrate Judge’s crediting of Newman’s selfserving testimony that he first learned about Armsden’s condition on Tuesday
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morning, less than two hours before his death, when there is evidence to the contrary
in the record, including a Georgia Bureau of Investigation (“GBI”) report that
Newman stated on Tuesday April 10 that he first learned about Armsden on the
previous morning. (Doc. 309 at 7-8; see Doc. 267-19 at 2). Plaintiff argues that there
is record evidence to support a factfinder’s conclusions that Newman first learned
about Armsden on Saturday morning, and on Monday morning he “learned that
Jailers believed Armsden was suffering from DTs [delirium tremens] and was
disoriented and hallucinating and in need of a medical examination — we know this
because this is what Newman told the GBI homicide investigator.” (Doc. 309 at 8).
Plaintiff argues that because Newman was trained “to recognize the symptoms and
severity . . . of untreated alcohol withdrawal,” his “conscious failure on Monday to
. . . ensure [that] medical care was provided [to Armsden] constitutes . . . direct
participation by a supervisor, which invokes liability on a personal level” sufficient
to support a jury finding. (Id. at 8-9).
The Court agrees in part with Plaintiff’s objection. There is conflicting record
evidence as to when Newman learned of the following—Armsden’s condition,
Armsden’s escape attempt, and Sgt. Davenport’s notation in her incident report that
Armsden may be suffering from DTs—and this conflicting evidence must be
11

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construed in the light most favorable to Plaintiff. The Court therefore declines to
adopt the Magistrate Judge’s recommendation that Captain Newman be granted
summary judgment in his individual capacity, but adopts the recommendation that
Plaintiff’s theories of supervisory liability are not properly before the Court and that
Newman may not be held liable in his individual capacity on that basis. (See Doc.
306 at 54-57). And for the same reason that the Court adopts the Magistrate Judge’s
recommendation to exert supplemental jurisdiction over Plaintiff’s state-law claims
against Sergeants Davenport and Bailey and Officers Pulliam and Raper, the Court
declines to adopt the Magistrate Judge’s recommendation regarding Plaintiff’s statelaw claims against Captain Newman and exerts supplemental jurisdiction over those
claims as well.
C.

Jailer Mashburn

Plaintiff next objects that there is evidence that Jail Officer Mashburn received
relevant information about Armsden’s condition on Monday morning because Sgt.
Davenport testified that she told everyone with whom she worked about Armsden’s
condition, which would have included Mashburn. (Doc. 309 at 9). Plaintiff notes
that Mashburn then observed throughout his Monday shift that “Armsden appeared

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sickly,” but he failed to inform Nurse Mercer early Monday evening that Armsden
needed to be examined. (Id. at 10).
Reasonable jurors, upon hearing the testimony of the medical examiner
that Armsden experienced a period of seizures prior to death, and that
none of the jailers, including Mashburn, observed this or even attempted
to revive Armsden (although they had allegedly checked on him no
more than 5 to 10 minutes prior to the time they found him
unresponsive), could well conclude that Mashburn was deliberately
indifferent toward Mr. Armsden.
(Id. at 11).
The Court rejects this objection. There is only speculation, based on a chain
of inferences derived tenuously from evidence in the record, that Officer Mashburn
was sufficiently informed during the Monday day shift about the possible severity of
Armsden’s condition to enable a factfinder to conclude that his inaction during that
shift constituted deliberate indifference to Armsden’s serious medical needs. This
speculation is insufficient to create a genuine issue for trial on Plaintiff’s deliberate
indifference claim against Mashburn. Indeed, it was Mashburn who initiated the call
for the return of the EMTs to examine Armsden on Tuesday morning, and there is
record evidence that Mashburn suggested to the EMTs that Armsden be taken to the
hospital, a suggestion that tragically went unheeded. (See Doc. 306 at 66-68; Doc.
275 (Mashburn Dep.) at 17, 46-47; Doc. 267-26 (Mashburn’s April 10 GBI
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Statement) at 2). In any event, Mashburn was entitled to rely on the medical
judgment of the EMTs, who chose not to transport Armsden to the hospital and did
not find that he was experiencing a medical emergency.
D.

Sergeant Verner

With respect to Sgt. Verner, the Day Shift Supervisor at the Jail on the Monday
before and on the Tuesday when Armsden died, Plaintiff objects to the
recommendation of summary judgment in her favor because “not only did the Jail
policies require that Sgt. Davenport advise Sgt. Verner of Armsden’s DTs, it is
incredibly implausible that Davenport would not have told Sgt. Verner about these
things[,]” and “Sgt. Verner’s denials of receiving such information are unbelievable,
and would not convince the average reasonable Juror.” (Doc. 309 at 12). Plaintiff
notes that Verner does not deny that she received this information, testifying only that
she does not remember, and notes further that after speaking with Davenport on
Monday morning she decided to keep a close watch on Armsden. (Id. at 12-13).
Plaintiff objects that the Magistrate Judge has “completely construed the facts most
favorably to Sgt. Verner . . . . [and] completely overlooks the policies and procedures
of the jail, Verner’s implausible failures to remember important events concerning

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a death, and the experience that Jurors will bring with them into the courtroom.” (Id.
at 13 (footnote omitted)).
As much as anyone in this tragic series of events, Sgt. Verner knew on
Monday morning that Jason Armsden was suffering from DTs. She had
a full day to seek medical attention for him, including having the nurse
examine Armsden when she came around 5:00 PM Monday. Instead,
Verner stood by while Armsden withered and died from alcohol
withdrawal.
(Id. at 14).
Although this objection has greater merit than Plaintiff’s objection regarding
the recommendation to dismiss Mashburn, it ultimately fails for the same reasons.
There is insufficient record evidence to create a genuine issue for trial as to whether
the information about Armsden’s condition that Sgt. Verner actually had before her
during the Monday day shift, including her observations of him while escorting him
to and from an investigator’s interview, was enough to enable a factfinder to conclude
that her failure to draw the inference that Armsden had a serious medical need, which
she then ignored, constituted deliberate indifference. And by Tuesday morning, she
was entitled to rely on the medical judgment of the EMTs, who had attended to
Armsden twice during the interval between her Monday and Tuesday shifts.

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E.

Road Deputy White

Plaintiff finds troubling the Magistrate Judge’s conclusion that “it cannot be
said that Armsden’s alcohol withdrawal should have been so obvious to Deputy
White based solely on Armsden’s disorientation and confusing statements” during
the Monday morning escape attempt. (Id. at 15 (internal quotations omitted)).
Plaintiff is troubled because, she argues, “Even in the absence of alcohol withdrawal,
Deputy White should have been alarmed by the fact that an inmate who had been
slammed against a wall, was bleeding from the face, and who was now stating:
‘where am I?’ and ‘why am I here?’ was not experiencing a medical emergency.”
(Id. at 15). Plaintiff argues that “reasonable jurors could find that White was
deliberately indifferent in failing to summon medical attention for either alcohol
withdrawal or a serious head injury.” (Id. at 16).
The Court finds that there is no genuine issue for trial as to whether Deputy
White ever had enough contact with Armsden, or information about him, to draw the
inference that he had a serious medical need. At the time of Armsden’s arrest on
Friday evening, he was extremely intoxicated and could not have been experiencing
the symptoms of alcohol withdrawal. And White’s brief encounter with Armsden on
Monday morning was insufficient to put him on notice that Armsden was suffering
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from anything more than the temporary effects of having his head slammed into a
wall during an apparent escape attempt.
F.

Road Deputy Davenport

Finally, Plaintiff objects to the Magistrate Judge’s conclusion that there is no
evidence that Deputy Davenport had actual knowledge of Armsden’s withdrawal
symptoms, basing that conclusion on this Court’s earlier ruling that his private
conversations with his wife, Sgt. Davenport, were inadmissible. (Id. at 16). Plaintiff
argues that there is sufficient evidence to allow a reasonable juror to conclude that
Deputy Davenport was subjectively aware of Armsden’s serious medical needs, and
yet took no remedial action, based on Deputy Davenport’s other, admissible
conversations with his wife—when Armsden was first brought to the Jail on Friday
night and Deputy Davenport “ordered” her, under the threat of disciplinary action,
not to take Armsden to the hospital to be evaluated or to summon the EMTs; when
Deputy Davenport took no action in response to his wife’s query during their mutual
shift on Saturday night asking whether she should summon the EMTs; and when Sgt.
Davenport informed Deputy Davenport about the escape attempt on Monday
morning. Plaintiff argues that the Magistrate Judge’s conclusion to the contrary is,

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again, based on a construction of the facts more favorable to Davenport rather than
to Plaintiff, the non-moving party. (Id. at 17-18).
Plaintiff’s objection to the Magistrate Judge’s recommendation regarding
Deputy Davenport also fails because there is no evidence that Davenport ever
personally observed Armsden at any time while he was at the Jail or that he had any
responsibilities with respect to the medical care of Armsden or any other Jail inmate.
Thus there is no genuine issue for trial as to whether Deputy Davenport had sufficient
information to draw the inference that Armsden was experiencing a serious medical
need related to alcohol withdrawal. The Court finds troubling, however, the manner
in which Deputy Davenport intervened to prevent Armsden from obtaining a medical
screening on the night of his arrest, a screening that may well have saved his life.
Although Deputy Davenport may not be held liable here under the high threshold for
a finding of deliberate indifference to Armsden’s serious medical needs, he is far
from blameless in the events that unfolded leading to Armsden’s death.
III.

The Jail Supervisors’ And Jail Officers’ Objections (Docs. 310-312)
The Jail Supervisors and Jail Officers have submitted substantially similar

objections. (See generally Docs. 310-312). Sergeant Davenport begins by stating
that the Magistrate Judge’s “most unusual error” is the “proposed holding that [she]
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can be liable for not managing to make medical personnel appear, even though
medical personnel appeared twice” before Armsden died, and on neither occasion did
they diagnose him with DTs or find that he needed medical treatment other than the
treatment they had provided. (Doc. 310 at 2). She argues that her
personal involvement with Armsden was limited to observations of
Armsden, and later referral of a medical request for Armsden, which
unfortunately did not produce a response by the nurse. Plaintiff simply
quarrels with the way that Davenport responded to Armsden’s
then-unknown malady, which did not present an apparent emergency.
Sergeant Davenport cannot be liable under § 1983 for her limited
personal role.
(Id. at 10). She argues further that her actions do not constitute cruel and unusual
punishment because when she “dealt with Armsden he was undiagnosed and it was
not clear that [he] had a serious medical need, much less a need for emergency care.
Nevertheless, [she] responded by requesting evaluation by the nurse, even though
Armsden never requested medical attention.” (Id. at 11).
Sgt. Davenport contends that the Magistrate Judge has confused hindsight,
which reveals that Armsden died of cardiac arrest associated with alcohol withdrawal,
“with actual knowledge by a lay jailer that Armsden was experiencing undiagnosed
alcohol withdrawal.” (Id. at 12-13). “It is error to hold that a lay jailer inflicts ‘cruel
and unusual punishment’ where the jailer sees manifestations of non-life-threatening
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characteristics in an otherwise unknown detainee, and fails to identify the specific
condition or danger involved with delirium tremens.” (Id. at 12). She argues that her
response to Armsden’s condition, requesting that the Jail Nurse evaluate and care for
him, was objectively reasonable and not the unnecessary and wanton infliction of
pain required to support a deliberate indifference claim. (Id. at 13-14). She contends
that because “Armsden’s symptoms seemed at most flu-like and did not appear
emergent to EMS medics on two occasions, long after [her] last relevant shift ended
and even hours before Armsden’s death[,] Plaintiff cannot show that [she]
subjectively knew that further or more immediate medical care was required for
Armsden.” (Id. at 15).
Sgt. Davenport contends that because it is not “beyond debate” whether or not
her actions showed deliberate indifference to a serious medical need, she is entitled
to qualified immunity from Plaintiff’s § 1983 claims. (Id. at 6-8). She objects to the
Magistrate Judge’s reliance on a 2010 Eleventh Circuit case to show that it was
clearly established in April 2007 that her conduct was unlawful. She contends that
two earlier Eleventh Circuit cases holding that acute alcohol withdrawal is a serious
medical need can be distinguished because “the individual jail officers had actual
knowledge that (1) the inmate was an alcoholic, and (2) the inmate was suffering or
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was very likely to experience severe alcohol withdrawal symptoms, but (3) no
medical care was provided at a relevant time, namely before serious physical injury
resulted.” (Id. at 17-19 (footnote omitted) (noting that she lacked any notice that
Armsden was an alcoholic; his symptoms mimicked those of the flu; and “between
[his] escape attempt and his interview with Inv. Panter [later that same morning], the
evidence is that he displayed ample stamina and lucidity, signs that would tell any
reasonable lay jailer that he was not suffering from a life threatening (and certainly
not emergent) medical condition, even if he was under the weather”).
Sgt. Davenport also argues that the evidence is insufficient to support a claim
for punitive damages under either federal or state law (id. at 20-21), or a claim for
pain and suffering (id. at 27-28), and that official immunity bars Plaintiff’s state-law
claims because Sgt. Davenport did not violate any discretionary duty to Armsden
with actual malice or an intent to injure him, nor did she negligently perform any
ministerial duty owed to Armsden under state law (id. at 23-27 (also objecting to the
Magistrate Judge’s reliance upon a non-binding Georgia decision regarding the duty
under Georgia law to provide inmates with medical care)).
The remaining objections, from Sgt. Bailey and Officer Raper (Doc. 311) and
Officer Pulliam (Doc. 312), are virtually identical to those from Sgt. Davenport. (See
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Doc. 311 at 2-5, 8 (noting that Bailey’s and Raper’s “personal involvement with
Armsden was substantially limited”); Doc. 312 at 2-6, 8 (noting that “Officer
Pulliam’s personal involvement with Armsden was limited to observations of
Armsden and providing him with food and blankets”)).
And for the most part, Sergeants Davenport and Bailey and Officers Raper and
Pulliam have repeated in their objections the same arguments that they raised in their
motions for summary judgment. (See Docs. 250-7, 250-8, 250-9). The Magistrate
Judge considered these arguments and found them wanting. For the reasons
discussed in the Report and Recommendation, the Court overrules the objections of
these four Defendants and adopts the Magistrate Judge’s recommendation that there
is at least a genuine issue of fact for trial as to the liability of each of them with
respect to Plaintiff’s federal and state-law claims. By doing so, the Court is not
holding that any of them is liable for cruel and unusual punishment based on
deliberate indifference to Armsden’s serious medical needs, as their objections
suggest, but rather the Court is merely holding that there is sufficient uncertainty in
the record evidence, viewed in the light most favorable to Plaintiff, to allow the
claims against them to proceed to a factfinder to make that ultimate determination.

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IV.

Conclusion
The Court finds no error, plain or otherwise, in the remainder of the Magistrate

Judge’s Report and Recommendation, which the Court ADOPTS with the three
exceptions noted above.
1.

The Court GRANTS summary judgment to, and DISMISSES from this action,

the following Defendants: Fannin County; Fannin County Sheriff Dane Kirby; former
Fannin County Sheriff George Ensley; Fannin County Jail Shift Supervisors
Sergeants Holly Phillips and Janella Verner; Fannin County Jail Officers Mitchell
Mason, Chad Ensley, John Arp, and Earl Mashburn; Fannin County Road Deputies
Marc White and Larry Davenport; and Fannin County EMTs Zeke Watkins and
Randy Epperson.4
2.

With respect to Fannin County Jail Captain Greg Newman, the Court

GRANTS partial summary judgment on Plaintiff’s federal claims against him in his
official capacity and in his individual supervisory capacity; otherwise DENIES

4

The state-law claims against all individual Defendants except Sheriff Kirby and the EMTs
are DISMISSED without prejudice; all of the remaining claims against these thirteen Defendants
are DISMISSED with prejudice, including the state-law claims against Sheriff Kirby and the
EMTs.

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summary judgment on Plaintiff’s federal claims against him in his individual
capacity; and DENIES summary judgment on Plaintiff’s state-law claims.
3.

With respect to Fannin County Jail Shift Supervisors Sergeants Carol

Davenport and Jillian Bailey, and Fannin County Jail Officers Roger Pulliam and Joe
Raper, the Court GRANTS partial summary judgment on Plaintiff’s federal claims
against them in their official capacities; DENIES summary judgment on Plaintiff’s
federal claims against them in their individual capacities; and DENIES summary
judgment on Plaintiff’s state-law claims.
IT IS SO ORDERED this 29th day of September, 2014.

_____________________________
RICHARD W. STORY
United States District Judge

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