Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al

Filing 235

ORDER granting in part and denying in part 118 Motion for Partial Summary Judgment by Defendant Guy Augustin; granting 119 Motion for Partial Summary Judgment by Defendant Mark Dambach; and granting 120 Motion for Partial Summary Judgment by Defendant Victoria Neisler. Signed by Judge William T. Moore, Jr. on 09/03/2020. (JH)

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 1 of 42

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION

JEMME J. JENKINS, Individually,
and JULIANNE GLISSON,
Administrator of the Estate of

Jimmie L. Alexander, Sr.,

Plaintiffs,
CASE NO. CV418-099

V.

CORIZON HEALTH INC., a Delaware

Corporation; GUY AUGUSTIN,
M.D.; VICTORIA NEILSER, LPN;

KEVIN TODD, Corporal; iyiARK
DAMBACH, LPN; CARL MILTON,

Sergeant; WANDA WILLIAMS,
Lieutenant; DESMOND BRYANT,

Corporal; CHATHAM COUNTY
COMMISSIONERS; JOHN WILCHER,

Sheriff of Chatham County; and
JOHN DOES 1-5;
Defendants.

ORDER

Before the Court is Defendant Guy Augustin, M.D.'s Motion for

Partial

Summary

Judgment

on

Deliberate

Indifference,

Punitive

Damages, and Attorneys' Fees (Doc. 118), Defendant Mark Dambach's
Motion for Partial Summary Judgment on Deliberate Indifference,

Punitive Damages, and Attorneys' Fees (Doc. 119), and Defendant
Victoria

Deliberate

(Doc.

Neisler's

Motion

Indifference,

120).

For

the

for

Punitive

following

Partial

Summary

Damages, and

reasons.

Judgment

Attorneys'

Defendant

on

Fees

Augustin's

Partial Motion for Summary Judgment (Doc. 118) is GRANTED IN PART

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 2 of 42

and DENIED IN PART, Defendant Mark Dambach's Partial Motion for

Summary Judgment (Doc. 119) is GRANTED, and Defendant Victoria
Neisler's

Partial

Motion

for

Summary

Judgment

(Doc.

120)

is

GRANTED.

BACKGROUND

I.

THE INCIDENT ON MAY 22-24, 2016

This case arises out of the incarceration and subsequent death
of Jimmie Alexander, Sr. ('"Alexander") in 2016. (Doc. 1.) Alexander

was

a

pretrial

("CCDC").

detention.

(Doc.

detainee
86,

at

Attach.

Defendant Corizon

Chatham
2.)

At

County
the

Detention

time

of

Center

Alexander's

Health, Inc. ("Corizon") provided

medical services to detainees at CCDC pursuant to a contract with

Chatham County. (Doc. 87, Attach. 1.) At all relevant times.
Defendant Dr. Guy Augustin was the acting onsite medical director

employed by Corizon. (Doc. 156 at 94.) Defendant Corizon also

employed Defendant Mark Dambach ("Dambach"), a licensed practical
nurse ("LPN"), and Defendant Victoria Neisler ("Neisler"), also an
LPN. (Doc. 150 at 17-18; Doc. 154 at 33.) Alexander was booked

into CCDC as a pretrial detainee on April 27, 2016. (Doc. 86,
Attach. 2 at 1.) Alexander was sixty years of age at the time of
his intake. (Id.) Alexander reported during the intake screening

process that his medical history included hypertension, a smoking
history of over twenty years, and a transient ischemic attack
("TIA") that occurred in March 2016. (Doc. 74, Attach. 9 at 5-9.)

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 3 of 42

On May 22, 2016, at approximately 8:30 p.m., Alexander began

to complain about pain in his right hip and leg. (Doc. 97, Attach.
7 at 11; Doc. 49 at 137.) At approximately 8:47 p.m. on May 22,
2016, Defendant Todd, a Sheriff's deputy, instructed a Signal 55
to be called for Alexander.^ (Doc. 85 at 65, 78.) Dambach responded

to the call and evaluated Alexander between 9:02 p.m. and 9:13

p.m.

(Doc.

150

at

105-10.)

During

this

examination,

Dambach

understood Alexander's complaint to be that he began experiencing

right leg pain suddenly and found that Alexander had a weak,
thready pedal pulse in his right foot. (Id. at 105-06.) Alexander
reported to Dambach that the pain felt like ^^his leg was broken,

his hip was out of the socket." (Id. at 109.) Dambach checked
Alexander's vitals and noted that his blood pressure was elevated
at 188 over 122. (Id. at 107.) Before leaving Alexander's cell,

Dambach told Alexander that he was going to relay this information
to the doctor and then be back once he received orders from the

doctor and that he would bring any medications that had been
ordered. (Id. at 110-11.)

Dambach called Dr. Augustin after evaluating Alexander and
informed Augustin of Alexander's elevated blood pressure, the

reported right leg and hip pain, and Alexander's known medical
history. (Id. at 111.) Augustin prescribed Clonodine 0.1 mg, for

1 A ''Signal 55" is a code that means that an inmate needs medical
attention. (Doc. 85 at 29.)

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 4 of 42

reducing blood pressure, Novasc 10 mg, for reducing blood pressure,
and Naproxyn 500 mg, for the pain. (Id. at 111-112; Doc. 156 at

159-160.) Around 9:30 p.m., Alexander used a plastic chair while
walking to the wing officer's desk in Unit 60, the unit he was

housed in, and was dragging his right leg. (Doc. 96 at
Doc.

145

at

n

30-31.)

At

approximately

9:45

p.m.,

30-31;
Dambach

administered the above medications to Alexander. (Doc. 150 at 118.)

Dambach did not examine Alexander when he gave him the medications.

(Id. at 117.) Around 11:15 p.m., Alexander used a plastic chair to
travel to the restroom and at 11:30 p.m., several inmates carried
Alexander back to his pod. (Doc. 96 at 51^ 36-37; Doc. 145 at
36-37.)

Around 11:40 p.m., Alexander crawled out into the middle of
Unit 6D floor and vomited as he crawled out. (Doc. 96 at ISI 38-

39; Doc. 145 at 11 38-39.) At 11:39 p.m., Todd called a 10-78 code
which means that the officer needs assistance, but is not in any

danger. (Doc. 85 at 29, 113.) Deputies, including Defendant Milton,
arrived in Unit 6D in response to the 10-78 and the 10-78 turned

into a Signal 55. (Id. at 117; Doc. 91 at 76-77.) Dambach responded
to the Signal 55 and arrived in Unit 6D around 11:48 p.m. and found

Alexander lying on the floor next to a small amount of vomit. (Doc.
150 at 131.) Dambach proceeded to check Alexander's vitals, but
did not otherwise check Alexander's right leg. (Id.)

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 5 of 42

Dambach

went

to

the

Medical

Unit

approximately midnight of May 22. (Id.

and

at

called

Augustin

133.) Augustin

at

and

Dambach agreed that Alexander should be sent to infirmary, however,

the male beds in the infirmary were reportedly full. (Id. at 133-

34.) Alexander was placed into a wheelchair and taken to Receiving
and Discharge {''R&D'') for observation during the night. (Id.; Doc.
91 at 50-51.) Dambach examined Alexander's right foot pulse before

placing him in the R&D cell, but did not document that he did so.
(Doc. 150 at 151-52.) Alexander was placed in R&D cell #8 at 12:21
a.m. on Monday, May 23, 2016. (Id. at 151.)

Augustin came to CCDC at 7:30 a.m. on Monday, May 23, 2016
and spoke about Alexander with other medical providers at the

morning conference. (Doc. 156 at 133-34.) Augustin, however, did
not examine Alexander that morning and subsequently left CCDC
around 8:30 a.m. to find a dentist for himself. (Id. at 132-33.)

Alexander was placed on Augustin's "sick call list" to be seen by

Augustin. (Id. at 134.) Also on the morning of Monday, May 23,
2016, around 7:00 a.m., Victoria Neisler came on duty in CCDC s

R&D area for the day shift, relieving Dambach. (Doc. 154 at 127.)
Dambach told Niesler about Alexander's leg pain. (Doc. .150 at 176,
178; Doc. 154 at 130.) Neisler visited Alexander to check on him

and saw that he was standing in the cell. (Doc. 154 at 138-140.)

During that time, Neisler took Alexander's blood pressure but did

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 6 of 42

not otherwise take any other vital signs or examine Alexander's
right leg or foot. (Id.)

Augustin returned to CCDC later on May 23, 2016 and examined
Alexander at approximately 3:00 p.m. on Monday, May 23, 2016. (Doc.
156 at 162, 196, 224.) During his examination, Augustin noted the

absence of a pulse on the top of the foot and that Alexander's
right lower limb was cool to the touch. (Id. at 163.) During this
examination, Augustin told Alexander that he

was going to the

hospital because Augustin believed he had some type of vascular
issue due to the coolness in his limb. (Id. at 165-66.) Alexander

was placed into a wheelchair and moved to a holding room in the
Medical Unit around 3:11 p.m. (Id. at 231-32.) Augustin ordered
Alexander to be taken to the emergency room. (Id. at 228-29.)
Alexander was to be transported by car to the hospital. (Doc. 92
at 77-78; Doc. 89 at 68.)

The

CCDC

watch

commander.

Defendant

Lieutenant

Williams,

received the instruction to transport Alexander to the hospital at

3:16 p.m.2

(Doc. 92 at 77, 80.) Defendant Williams testified that

at roughly 3:21 p.m., she contacted Corporal Kelly-James but KellyJames did not take Alexander because she complained of not having
her lunch break and her shift ending at 4:00 p.m. (Id. at 79, 89.)

2 Corporal Addle Bailey (nee Cochran) testified that the Watch
Commander, Defendant Williams, was notified at 3:18 p.m. (Doc. 89
at 68.)

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 7 of 42

Defendant

Williams

testified

that

she

then

contacted

Defendant

Bryant at roughly 3:30 p.m. to transport Alexander and expected
Defendant Bryant to be ready to leave with Alexander by 4:00 p.m.
(Id. at 90.) Internal records show an entry dated May 23, 2016 at

3:47 p.m. with an event time of 3:16 p.m. that reads: "The doctor
recommends that detainee Jimmy Alexander 6D be transported to MMC

via car for an evaluation. Cpl. Kelly-James assigned to complete
the detail." (Doc. 92, Attach. 2 at 19.) At the time that Defendant

Williams completed the entry, 3:47 p.m., the log only reflects

that Kelly-James had been contacted. Corporal Bryant testified
that he did not receive a call to transport Alexander until 4:40
p.m. (Doc. 88 at 17.) Defendant Bryant further testified that he
and Alexander left CCDC at approximately 5:08 p.m. and arrived at
Memorial Health University Medical Center ("Memorial") emergency

room around 5:42 p.m. (Id. at 40.) Memorial's records show that
Alexander arrived at 5:38 p.m. on May 23, 2016 and was admitted at
5:42 p.m. (Doc. 94, Attach. 1 at 2.)

When Alexander presented at Memorial, his right leg was cold,

pulseless, insensate and without motor function. (Id. at 3, 6-7.)
Memorial emergency room doctors consulted with vascular medicine
doctors. (Id. at 7.) At 5:59 p.m. on May 23, Alexander had blood

drawn for various lab panels. (Doc. 77, Attach. 1 at 87.) At 7:07
p.m. on May 23, 2016, Alexander's potassium levels were recorded
at

5.1

mmol/L.

(Id.)

Dr.

Bhandari,

a

vascular

interventional

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 8 of 42

radiologist, reviewed the CT angiogram of Alexander's right leg
and found an extensive blood clot. (Doc. 77 at 24-27.) Dr. Bhandari

determined that surgery would be needed. (Id. at 27-28.) Dr. Avino,
a vascular surgeon, began a thrombectomy on Alexander at 10:05

p.m. on May 23, 2016. (Doc. 94, Attach. 1 at 28.) Anesthesia was
concluded

at

11:52

p.m.

on

May

23,

2016

and

Alexander

was

transferred from the operating room to the post-anesthesia care
unit C'PACU") to recover on May 24, 2016 at 12:00 a.m. (Id.)

Alexander had blood specimens drawn at 2:05 a.m. on May 24,
2016. (Doc. 77, Attach. 1 at 88-89.) Alexander's PACU treatment

concluded at 2:30 a.m. (Id. at 28.) The various lab tests performed
on Alexander resulted at different times. The CBC with differential

lab resulted at 2:37 a.m., the Protime-INR lab resulted at 2:51
a.m., and the PTT lab resulted at 2:51 a.m. on May 24, 2016. (Id.

at 89-90.) The basic metabolic panel, which includes a value for

the patient's potassium level, resulted at 4:36 a.m. on May 24,
2016. (Id. at 91.) Alexander's potassium level was recorded at 7.3
mmol/L and reported by lab staff at 4:37 a.m. (Id.) Dr. Moon, the
chief resident working that night, was informed of Alexander's
potassium level, and he and his team went to the PACU and found
Alexander in cardiac arrest. (Id. at 12-13, 18.) Alexander could

not be revived and was declared dead by Dr. Moon on May 24, 2016
at approximately 5:13 a.m. (Id. at 18; Doc. 90, Attach. 3 at 1.)

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 9 of 42

Alexander's autopsy was performed by the Georgia Bureau of
Investigations

(^'GBI")

medical

examiner.

Dr.

J.

Upshaw

Downs.

(Doc. 90, Attach. 3.) Dr. Downs opined that Alexander's cause of
death

was

the

result

of

"generalized

arteriosclerosis

which

manifests as right lower extremity ischemia, status postoperative
with subsequent acute onset hyperkalemia." (Id. at 8.) Dr. Downs
found that the excessive potassium and other toxins released during

reperfusion post-surgery contributed to Alexander's cardiac arrest
and death.

II.

PROCEDURAL HISTORY

After his death, Alexander's son, Jemme Jenkins, brought suit

in both his individual and representative capacity for the benefit
of, and on behalf of, the Estate of Jimmie Lee Alexander, Sr. in
the State Court of Chatham County, Georgia. (Doc. 1, Attach. 1 at
2-17.) After amending his complaint to add a claim under 42 U.S.C.
§ 1983 for the

alleged

deliberate

indifference to Alexander's

medical needs, the action was removed to this Court. (Doc. 1 at

1-2.) On May 24, 2018, Plaintiff Jenkins filed a second amended

complaint

adding

Administrator

plaintiff.

for

(Doc.

Julianne
the

Estate

15.)

Glisson,

in

of

Lee

Jimmie

Plaintiffs

her

capacity

Alexander,

subsequently

filed

Sr.,

a

as
as

third

amended complaint. (Doc. 26, Attach. 1.)

In

their

following

third

claims:

amended

(1)

a

complaint.

professional

Plaintiffs

negligence

allege

claim

the

against

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 10 of 42

Defendants Corizon, Augustin, Dambach, and Neisler (collectively,
the ^'Corizon Defendants"), (2) a negligence claim against Corizon

Defendants, (3) a negligence claim against Defendants Wilcher,
Todd, Milton, Williams, and Bryant (collectively, the "'Sheriff
Defendants"),

(4)

a

claim

against

Defendant

Chatham

County

Commissioners alleging that they are liable for failing to correct

inadequate funding to the Chatham County Sheriff's Office, (5) a
claim of deliberate indifference under the Georgia Constitution

against all Defendants, (6) a claim of deliberate indifference
pursuant

to

42

U.S.C. § 1983 against all

Defendants,

(7)

an

intentional infliction of emotional distress claim against all

Defendants,

(8)

a

claim

for

punitive

damages

against

all

Defendants, and (9) a claim for breach of sheriff and deputy bonds.
(Id. at 11-24.)
STANDARD OF REVIEW

According to Federal Rule of Civil Procedure 56(a), "[a]
party may move for summary judgment, identifying each claim or
defense—or the part of each claim of defense—on which summary
judgment is sought." Such a motion must be granted "if the movant
shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law." Id. The
"purpose of summary judgment is to "pierce the pleadings and to
assess the proof in order to see whether there is a genuine need
for trial.' " Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

10

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 11 of 42

475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56 advisory
committee notes).

Summary judgment is appropriate when the nonmovant ''fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear
the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S.
317,

322

(1986).

The

substantive

law

governing

the

action

determines whether an element is essential. DeLong Equip. Co. v.

Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th Cir. 1989).
As the Supreme Court explained:

[A] party seeking summary judgment always bears the
initial responsibility of informing the district court
of

the

basis

for

its

motion,

and

identifying

those

portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, which it believes demonstrate
the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323. The burden then shifts to the nonmovant

to establish, by going beyond the pleadings, that there is a

genuine issue as to facts material to the nonmovant's case. Clark
V. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
The Court must review the evidence and all reasonable factual

inferences arising from it in the light most favorable to the
nonmovant. Matsushita, 475 U.S. at 587-88. However, the nonmoving

party

"must

do

more

than

simply

show

that

there

is

some

metaphysical doubt as to the material facts." Id. at 586. A mere
"scintilla" of evidence, or simply conclusory allegations, will

11

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 12 of 42

not suffice. See, e.g., Tidwell v. Carter Prods., 135 F.3d 1422,
1425 (11th Cir. 1998). Nevertheless, where a reasonable fact finder

may "draw

more

than

one

inference

from

the

facts,

and

that

inference creates a genuine issue of material fact, then the Court

should refuse to grant summary judgment." Barfield v. Brierton,
883 F.2d 923, 933-34 (11th Cir. 1989).
ANALYSIS

I.

DEFENDANT AUGUSTIN^S MOTION FOR PARTIAL SUMMARY JUDGMENT ON

DELIBERATE INDIFFERENCE, PUNITIVE DAMAGES, AND ATTORNEYS^
FEES

A. Deliberate Indifference

Augustin argues that he was not deliberately indifferent to
Alexander's serious medical needs. (Doc. 118, Attach. 1 at 12.)

Augustin argues that (1) he did not know that Alexander had acute
limb ischemia based on the calls with Dambach, (2) he reasonably

believed that Alexander's complaints related to hypertension and
osteoarthritis and he treated those conditions, and (3) when he
did evaluate Alexander and realized there was a vascular condition,

he immediately ordered Alexander to be sent to the hospital. (Id.)

In response. Plaintiffs argue that there is evidence from which a
jury could find that Augustin had knowledge of Alexander's serious
medical need, that Augustin was deliberately indifferent to that
need by failing to ensure Alexander was evaluated urgently on the

night of May 22, abandoning Alexander on May 23 when he left to

12

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 13 of 42

find a dentist, and by failing to send Alexander to the hospital
by EMS. {Doc. 190 at 13-23.)

A pre-trial detainee's right to adequate medical care arises
under the due process clause of the Fourteenth Amendment. Jackson
V. West, 787 F.3d 1345, 1352 (11th Cir. 2015). Plaintiffs allege

that

Alexander's

right

to

medical

care

was

violated

due

to

Augustin's deliberate indifference to Alexander's serious medical
need. To show a constitutional violation and prevail on a claim of
deliberate indifference to a medical need, a pre-trial detainee
must

be

able

defendant's

to

show:

deliberate

^'(1)

a

serious

indifference

to

medical
that

need;
need;

(2)
and

the
(3)

causation between that indifference and the plaintiff's injury."
Mann v. Taser Int'l Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009).

First, this Court finds for the purposes of this motion that
Alexander had a serious medical need. A serious medical need is

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 of the doctor's attention." Youmans v.
Gagnon, 626 F.3d 557, 558 (11th Cir. 2010). "In the alternative,
a serious medical need is determined by whether a delay in treating
the need worsens the condition." Mann, 588

F.3d at 1307. Here,

Alexander was complaining of leg and hip pain, was vomiting, had
trouble using a limb, and had a weak, thready pulse on the top of
his foot. The Court is satisfied that Plaintiffs have provided at

13

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 14 of 42

least enough evidence of Alexander's medical condition to survive
summary judgment. See Fields v. Corizon Health, Inc.;. 490 F. App'x
174, 183 (11th Cir. 2012) (noting that fractured hips, broken feet,

and paralysis are serious medical needs). Additionally, Plaintiffs
have provided evidence that Alexander suffered from acute limb
ischemia on May 22 into May 23, 2016 while at CCDC and this is a
condition that worsens due to delay.
Next,

deliberately

Plaintiffs

indifferent

must

to

demonstrate

that

need.

that

The

Augustin

Court

finds

was

that

Plaintiffs have presented enough evidence to create a jury question
on this issue.

To show

that a

defendant has been deliberately

indifferent, a plaintiff must show the prison's official's ^Ml)
subjective knowledge of a risk of serious harm; (2) disregard of
that risk; and (3) by conduct that is more than mere negligence."
Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011). "'Conduct

that is more than mere negligence includes: (1) grossly inadequate
care; (2) a decision to take an easier but less efficacious course
of treatment; and (3) medical care that is so cursory as to amount
to no treatment at all." Id. The Court reviews Plaintiffs' claims

in two groupings: (1) Augustin's conduct prior to when he saw

Alexander on May 23, 2016 at 3:00 p.m., and (2) Augustin's conduct
in ordering Alexander to be sent to the hospital by car rather
than by EMS. The Court begins with the first category.

14

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 15 of 42

First,

Plaintiffs

have

presented

evidence

that

creates

a

genuine issue of material fact on Augustin's knowledge of a risk
of serious harm. Dambach testified that he informed Augustin by a

call of

(1) Alexander's

Alexander's

high

blood

history of TIA and

pressure

hypertension,

reading, (3) Alexander's

(2)

pain

complaints, and (4) Alexander's weak and thready right foot pulse.
(Doc. 160 at 111-15.) During the second call with Augustin, Dambach

testified

that

he

told

Augustin

that

(1)

Alexander

had

been

crawling on the floor, and (2) Alexander had vomited. (Id. at 147.)
Augustin, however, testified in his deposition that Dambach told
him in the first call that Alexander was complaining of pain "like
his hip was out of the socket," that Alexander had high blood

pressure, that Alexander mentioned somebody gave him a pill and it
was some kind of black magic thing. (Doc. 165 at 170.) Augustin
also testified that Dambach informed him that both of Alexander's

legs were warm and that Alexander was walking but having problems
moving his legs. (Id. at 135-36.) He testified that he did not
consider an ischemic leg as part of his differential diagnosis
because "the nursing staff . . . examined the leg, they didn't see
anything. The six Ps that I mentioned about, the six Ps according
to what the nurses saw wasn't there.

(Id. at 172.) Augustin also

3 The "six Ps" that Augustin mentions is a metric used by medical
professionals to gauge whether a limb is suffering from ischemia.
The six Ps are (1) pain, (2) paresthesia, (3) pallor, which is

15

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 16 of 42

testified that,

on

the

second

call

with

Dambach,

he

was

told

Alexander had vomited once and that his blood pressure was coming
down. (Id. at 174.) Augustin denies that he was ever told that

Alexander was crawling. (Id. at 173-74.) Augustin also testified
that he was told by Dambach that "he examined his legs. He didn't
see anything wrong. Both legs were like warm. Both legs—he looked
for what they call Roman signs," which are DVT signs, and that
Dambach told him "both legs were warm, the guy was walking. He

said [Alexander] said he's having problems moving his legs, but
[Dambach] and—well, we saw him, you know walking on the camera
so." {Id. at 135-36.)

In this case, taking the evidence in the light most favorable

to Plaintiffs, Plaintiffs have presented evidence that Augustin
was informed that (1) Alexander was complaining of extreme pain

which was described as feeling like his hip was out of socket, (2)
that Alexander had a weak and thready pulse in his right foot, and
(3) Alexander was having trouble moving his limb and was crawling.
Thus, there is evidence that Augustin was subjectively aware of a
serious risk of harm to Alexander. Because Augustin contests that
Dambach ever informed of Alexander crawling and the weak pulse,
two of six Ps, this is a factual issue that must be resolved by
the jury.

color of the limb, (4) poikilocytosis, which is coldness of the
limb, (5) pulselessness, and (6) paralysis. (Doc. 165 at 102.)

16

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 17 of 42

Second, as to the disregard of that risk, Augustin testified

that ^'[o]nce you fall into the Ps, then you have a high index of
suspicion and then take the next step of sending this person out,

yes, sir." (Doc. 165 at 102.) Thus, Augustin testified that he was
aware that patient who was presenting with multiple ^^Ps" would

warrant more urgent care. Again, if the jury found that Augustin
was aware of the information that Dambach testified he gave him,

a jury could infer that failing to send Alexander to the hospital
and instead arranging for a sick call visit the following day was
disregarding the risk.

Finally, Plaintiffs must establish that the conduct was more

than

mere

negligence.

indifference'
serious

includes

conditions

In

the

^the

where

Eleventh

delay

it

is

of

Circuit,
treatment

apparent

that

Meliberate
for

obviously

delay

detrimentally exacerbate the medical problem, where

would

^the delay

does seriously exacerbate the medical problem,' and where

^the

delay is medically unjustified.' " Fields, 490 F. App'x at 182

(quoting Harper v. Lawrence Cnty., 592 F.3d 1227, 1235 (11th Cir.
2010)).

""A

prisoner

must

provide

verif[ied]

medical

evidence

. to establish the detrimental effect of delay in medical
treatment." James v. Bartow Cty., Ga., 798 F. App'x 581, 585 (11th

Cir. 2020) (internal quotation marks and citation omitted). The
Court finds that Plaintiffs have presented sufficient evidence to
survive summary judgment on whether Augustin's conduct was more

17

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 18 of 42

than mere negligence. As discussed above, Augustin testified that
he knew that a patient presenting with multiple ""P" symptoms should
receive emergency care.

Numerous experts in this case

have opined that delay in

treating an ischemic leg causes more tissue to die which, in turn,
can increase the risk of loss of limb or death. Dr. Blais, in his

expert report, opined that

During the ischemic process, irreversible damage occurs
to the muscle and nerves while they are denied a blood
supply by a blood clot. Dying or dead tissue produces an
increase of acid and potassium that can contribute to
cardiac arrest. The longer the ischemia is allowed to
exist, the more tissue damage occurs, placing the
patient in greater jeopardy.

(Doc. 79, Attach. 2 at 4.) Similarly, Dr. Lewinstein opined in his
Rule 26 report that ''[w]hen a clot occurs there is decreased blood
flow to the muscles, nerves, skin and subcutaneous tissue beyond

the clot. If the blockage is complete, damage to the muscles and/or
nerves begins after six hours of ischemia (lack of blood flow).''
(Doc. 81, Attach. 4 at 5.)

Additionally,
hyperkalemia

in

induced

regards
cardiac

to

how

arrest.

Alexander
Plaintiffs

actually died,
have

cited

to

expert testimony that adequately demonstrates the process by which
hyperkalemia develops and the causes of it: the wash-out of toxins
and potassium that developed due to the dead tissue in the limb
following

revascularization.

(See

Doc.

81

at

104-105

(Dr.

Lewinstein); Doc. 90 at 55-57 (Dr. Downs); Doc. 90, Attach. 4 at

18

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 19 of 42

7-8 (Dr. Downs).) Plaintiffs have also presented expert testimony

that opines that the delay Alexander experienced at CCDC caused or
contributed to Alexander's death. Dr. Blais stated in his Rule 26

report that "[t]he delay of 20.5 hours was a significant cause of
the severe condition of Alexander's right leg . . . during such an

extended period of time, an ischemic lower extremity will suffer
severe

tissue

injury." (Doc.

79, Attach.

2 at

4.)

Dr.

Blais

attributed Alexander's cause of death, e.g. cardiac arrest due to

hyperkalemia,

to

the

amount

of

potassium

that

Alexander's leg due to the delay in treatment.

built

up

in

(Id. at 5.) Dr.

Downs opined in his Rule 26 report that Alexander ^'died as the
result of right lower extremity ischemia following . . . vascular
occlusion, status post emergent revascularization" which resulted
in ''rhabdomyolysis which in turn directly resulted in a lethal

elevation in potassium." (Doc. 90, Attach. 4 at 5.) Dr. Downs found
that the delay in treatment necessitated the surgery performed by
Dr. Avino, with its attendant risks, and that the delay was a

significant contributing cause to Alexander's death. (Id. at 89.)

A

jury

could

find

from

the

facts

that

the

delay

was

unjustified. Again, taking the facts in the light most favorable
to Plaintiffs, Augustin knew that Alexander had a weak pedal pulse,
trouble moving his leg and was crawling, extreme pain that had a
rapid onset, had vomited, and had extremely high blood pressure

19

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 20 of 42

that was brought down with medication. Augustin then chose to place
Alexander on sick call for the next day instead of having Alexander

evaluated by the RN in the infirmary or transported for evaluation
at the emergency room. When asked in his deposition why Augustin
choose not to have Dambach take Alexander to be evaluated by the

RN in the infirmary on the night of May 22, Augustin generally
testified that Dambach was reliable but gave no reason why he

choose to have Alexander only evaluated by a LPN. (Doc. 165 at
205.) Thus, although Augustin decided that Alexander needed to be
placed in the infirmary under the care of a RN, he could not answer
why he decided that Alexander did not need to be seen by a RN
before being taken to R&D for overnight observation.
The facts also show that, the next day when Augustin arrived

at CCDC,

he spoke

with

other medical providers at a morning

conference but then left to attend to his dental emergency. He did

not have Alexander evaluated by the other medical providers and

did not see him himself until approximately 3:00 p.m. on May 23,
2016.

Augustin

testified

that,

if

he

did

not

have

a

dental

emergency, Alexander would have been seen earlier. (Id. at 209.)
There has been no explanation as to why other medical providers at
CCDC could not have seen Alexander in Augustin's absence. Augustin
also testified that the nurse practitioner and the physician's
assistant could determine whether the Ps were present in Alexander.

(Id. at 210.) In sum. Plaintiffs have presented evidence that (1)

20

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 21 of 42

Augustin, if he was indeed aware of Alexander's condition in full,
would have considered the six Ps and knew that urgent care was

needed, (2) Augustin knew that delay could exacerbate a vascular
issue, (3) the delay did, in fact, seriously exacerbate the medical
condition, and (4) there has been no explanation for the delay.

Accordingly, the Court finds that there exists a genuine issue of
material

fact

on

Plaintiffs'

§

1983

claim

of

deliberate

indifference against Augustin.
The

Court

now

considers

Augustin's

conduct

after

he

saw

Alexander. The Court does not find that there is a genuine issue

of material fact on whether Augustin was deliberately indifferent
to Alexander's needs after Augustin's diagnosis. Plaintiffs argue

that Augustin's failure to have Alexander emergently transported
after confirming limb ischemia was grossly negligent because (1)
Alexander should have been transported by EMS, and (2) Augustin

saw Alexander get wheeled into a holding room and told deputies to
transport Alexander by car thereby causing the deputy to believe
that this was not an urgent matter.

{Doc. 190 at 22.) First,

Plaintiffs have not offered evidence that Augustin actually knew

that Alexander was not transported until approximately 5:00 p.m.
Plaintiffs argue that Augustin knew because he saw Alexander get

wheeled into a holding room, but does not show that Augustin knew
that Alexander was left in the room for hours. Augustin testified
that he did not know there was delay in transporting Alexander

21

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 22 of 42

until the following day. (Doc. 165 at 234.) The Court does not

find

that

Augustin

was

subjectively

aware

of

any

delay

in

transporting Alexander.

As to Plaintiffs' argument that Augustin was deliberately
indifferent for failing to have Alexander transported by EMS, this
claim

fails.

To

indifferent, a

show

that

a

defendant

has

been

deliberately

plaintiff must show the prison official's ""(1)

subjective knowledge of a risk of serious harm; (2) disregard of
that risk; and (3) by conduct that is more than mere negligence."
Bingham, 654 F.3d at 1176. Plaintiffs cannot show that Augustin's

decision to send Alexander by car to the hospital instead of by
EMS involved a subjective knowledge of a risk of serious harm and
that Augustin disregarded that risk. First, Plaintiffs have not
shown

how

sending

Alexander

by

car,

excluding

any

delay

experienced, involved a serious risk of harm. Augustin testified
that an inmate is sent by car where the person is

stable, you know, who is breathing okay, who is not
bleeding, their vital signs are okay, 02 saturation, the
oxygen saturation is fine. Anybody, you know, that falls
in that category goes by car. Anybody else who needs
oxygen, who needs an IV, who's bleeding, you know, who
we suspect some, like a puncture wound into the lungs or
into the abdomen does go by like emergency.
(Doc.

165

at

114.)

Other

than

the

purported

delay

Alexander

experienced in being transported. Plaintiffs have not shown how
transportation by a car posed a serious risk of harm to Alexander—
e.g. that EMS could have rendered care that Alexander needed that

22

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 23 of 42

he

would

not

have

received

in

a

car

transport.

Additionally,

Augustin testified that, once jail staff pick up the inmatepatient, ""it takes 20, 30 minutes, the maximum, once they leave
the office" to get to the hospital and that if the inmate-patient
has not left the facility within 15 minutes, jail staff is supposed
to tell medical so that they can call an ambulance. (Id. at 115.)

Second, the evidence does not support a finding that Augustin
disregarded any risk of sending Alexander by car instead of by
EMS. Again, Augustin testified that if an inmate-patient has not
left the facility within 15 minutes, he would then call EMS to

transport the patient. He further testified that, when he did find
out the following day about the delay in transporting Alexander,
he asked the lieutenant ^'what happened" because "
[u]sually there's

a 15 minute—if you don't take him to the hospital we will call the
EMS."

(Id.

at

234.)

In

sum.

Plaintiffs

have

not

shown

that

Augustin's decision to transport Alexander by car instead of EMS
involved a serious risk of harm to Alexander, that Augustin was

subjectively aware of that risk, and that he disregarded that risk.
Thus,

as

to

Plaintiffs'

claim

of

deliberate

indifference

based on Augustin's conduct of sending Alexander to the hospital,
Augustin's motion is GRANTED. As to Plaintiffs' claim of deliberate
indifference

based

on

Augustin's

other

herein, Augustin's motion is DENIED.

23

conduct,

as

described

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 24 of 42

B. Punitive Damages

Augustin argues that punitive damages are not recoverable in
a wrongful death case as a matter of law and can only be recovered
where the actions at issue show '"willful misconduct, malice, fraud,

wantonness, oppression, or [an] entire want of care." (Doc. 118,
Attach.

1

at

16-17.)

In

response.

Plaintiffs

argue

that

(1)

punitive damages are not recoverable in wrongful death claims, (2)

punitive damages are recoverable in a survival action, which is
what Plaintiff Glisson is maintaining, and (3) punitive damages
are recoverable in a § 1983 action against private corporations
and individuals. (Doc. 190 at 23.)

Because

the

parties

agree

that

punitive

damages

are

not

available in the wrongful death claim, the Court will review the
two

other

basis

for

punitive

damages.

Augustin's

motion

is

primarily based on the argument that there is no evidence of

conduct

by

Augustin

that

rises

to

the

level

of

culpability

necessary to sustain a punitive damages claim. As to the § 1983
claim,

punitive

damages

may

be

awarded

where

the

defendant's

" 'conduct is shown to be motivated by evil motive or intent or
when it involves reckless or callous indifference to the federally

protected rights of others.' " Hooks v. Brewer, No. 18-10628, 2020
WL 3397738, at *6 (11th Cir. June 19, 2020) (quoting Smith v. Wade,
461 U.S. 30, 55, 103 S. Ct. 1625, 75 L.Ed.2d 632 (1983)). However,

as discussed above, there is a question of fact that precludes

24

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 25 of 42

summary judgment on whether Augustin was deliberately indifferent
to Alexander's serious medical needs. The Court similarly finds

that

Plaintiffs

have

presented

evidence

that

could

support

a

finding of callous or reckless indifference to Alexander's federal
protected rights. See Walsh v. Jeff Davis Cty., No. CV 210-075,
2012 WL 12952564, at *19 (S.D. Ga. Mar. 29, 2012), aff'd, 489 F.
App'x 389 (11th Cir. 2012).

Under

O.C.G.A. §

51-12-5.1(b), punitive

damages ''may

be

awarded only in such tort actions in which it is proven by clear
and

convincing

evidence

that

the

defendant's

actions

showed

willful misconduct, malice, fraud, wantonness, oppression, or that

entire want of care which would raise the presumption of conscious
indifference to consequences." Again, because this Court finds
that there is a genuine issue of material fact as to whether

Augustin

was

deliberately

indifferent

to

Alexander's

medical

needs. Plaintiffs' punitive damages claim likewise survives.
C. Attorneys' Fees

Augustin argues that he is entitled to summary judgment on
Plaintiffs'

claims

for

attorneys'

fees

pursuant

to

O.C.G.A.

§ 13-6-11. (Doc. 118, Attach. 1 at 18.) In response. Plaintiffs

argue that they are not seeking attorneys' fees under O.C.G.A.
§ 13-6-11 but instead pursuant to 42 U.S.C. § 1983 through 42
U.S.C. § 1988. (Doc. 190 at 24-25.) Plaintiffs further contend

that

Augustin's

motion

is

premature

25

on

this

ground

because

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 26 of 42

Plaintiffs'

§

1983

claims

against

Augustin

survive

summary

judgment and are still pending to be resolved by a jury. The Court

agrees. 42 U.S.C. § 1988 allows a court to award attorneys' fees
to a prevailing party in § 1983 actions. Because Plaintiffs'
§

1983

claim

discussed

against

herein,

Augustin

Augustin's

survives

motion

for

summary

judgment

as

summary

judgment

on

attorneys' fees is DENIED.
II.

DEFENDANT DAMBACH'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON

DELIBERATE INDIFFERENCE, PUNITIVE DAMAGES, AND ATTORNEYS'
FEES

A. Deliberate Indifference

Dambach argues that he was not deliberately indifferent to
Alexander's serious medical needs. {Doc. 119, Attach. 1 at 11.)

Dambach argues that (1) there is no evidence that he knew Alexander
had acute limb ischemia or a blood clot in his leg and, therefore,
did not know that Alexander had a serious medical need, and (2)

that he was not deliberately indifferent to Alexander's medical
needs because

practice.

(Id.

he cared for Alexander

at

11-24.)

In

within

response.

the

scope of

Plaintiffs

argue

his

that

Alexander had an obviously serious medical need and that Dambach
was deliberately indifferent to that need when he (1) intentionally
failed to follow a complete the Nursing Encounter Tool (^"NET"),
(2) misrepresented Alexander's condition to Augustin, (3) ignored
Alexander's right leg while Alexander was in the R&D cell, and (4)

26

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 27 of 42

knowingly failed to accurately report Alexander's condition to
Neisler when she came on shift. (Doc. 191 at 12-21.)

A pre-trial detainee's right to adequate medical care arises
under the due process clause of the Fourteenth Amendment. Jackson,
787 F.3d at 1352. Plaintiffs allege that Alexander's right to
medical care was violated due to Dambach's deliberate indifference

to

Alexander's

serious

medical

need.

To

show

a

constitutional

violation and prevail on a claim of deliberate indifference to a
medical need, a pre-trial detainee must be able to show: ^'(1) a
serious medical need; {2} the defendant's deliberate indifference

to that need; and (3) causation between that indifference and the

plaintiff's injury." Mann, 588 F.3d at 1306-07.

First, this Court finds for the purposes of this motion that
Alexander had a serious medical need. A serious medical need is

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 of the doctor's attention." Youmans, 626
F.3d

at

558.

""In

the

alternative,

a

serious

medical

need

is

determined by whether a delay in treating the need worsens the
condition."

Mann,

588

F.3d

at

1307.

In

this

case,

Dambach

challenges whether Alexander suffered from a serious medical need
while detained at CCDC. Dambach argues that a serious medical need
has

not

been

established

because

(1)

Alexander

had

not

been

diagnosed with a specific medical condition that constituted a

27

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 28 of 42

serious medical need, and (2) he could not make that diagnosis so

he was unable to diagnose Alexander with acute limb ischemia. (Doc.
119, Attach. 1 at 12-13.)

However,

the

inquiry

is

not

whether

the

defendant

could

identify what medical need is at play, but whether the need is one
that a layperson could recognize as needing medical attention.
Youmans, 626 F.Sd at 558. Here, Alexander was complaining of leg

and hip pain, was vomiting, and had trouble using a limb. The Court
is satisfied that Plaintiffs have provided at least enough evidence
of Alexander's medical condition to survive summary judgment. See

Fields, 490 F. App'x at 183 (noting that fractured hips, broken

feet, and

paralysis are

serious medical needs). Additionally,

Plaintiffs have provided evidence that Alexander suffered from
acute limb ischemia on May 22 into May 23, 2016 while at CCDC and
this is a condition that worsens due to delay.

Next,

Plaintiffs

must

demonstrate

that

Dambach

was

deliberately indifferent to that need. To show that a defendant
has been deliberately indifferent, a plaintiff must show the prison
official's "(1) subjective knowledge of a risk of serious harm;

(2) disregard of that risk; and (3) by conduct that is more than

mere negligence." Bingham, 654 F.3d at 1176. '^^Conduct that is more
than mere negligence includes: (1) grossly inadequate care; (2) a
decision

to

take

an

easier

but

less

efficacious

course

of

treatment; and (3) medical care that is so cursory as to amount to

28

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 29 of 42

no treatment at all." Id.

Dambach argues that that he was not

subjectively aware of Alexander's diagnosis of acute limb ischemia
and, therefore, cannot be liable for deliberate indifference as a
matter of law. (Doc. 119, Attach. 1 at 15.) Dambach also argues

that he did not disregard any risks because he administered care
to Alexander. (Id. at 15-19.)

As to the first factor, subjective knowledge of a risk of
serious harm, the Court finds that Plaintiffs have not provided

enough evidence to survive summary judgment. To show the subjective
component.

Plaintiffs

must

present

evidence

that

Dambach

was

^aware of facts from which the inference could be drawn that a

substantial risk of serious harm exist[ed], and must also have

drawn the inference.' " Mitchell v. McKeithen, 672 F. App'x 900,

903 (11th Cir. 2016) (quoting Burnette v. Taylor, 533 F.3d 1325,
1330 (11th Cir. 2008)). "[A]n official's failure to alleviate a

significant risk that he should have perceived but did not" is
insufficient to establish a constitutional violation." Collins v.

Bates, No. 17-14559-G, 2018 WL 5090845, at *5 (11th Cir. May 10,

2018).

Additionally,

a

''complaint

that

a

physician

has

been

negligent in diagnosing or treating a medical condition does not
state" a claim of deliberate indifference. Bingham, 654 F.3d at
1176.

Even if Dambach should have perceived Alexander's symptoms as

presenting a risk of serious harm, he can only be held liable if

29

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 30 of 42

he did in fact perceive the risk and intentionally disregarded it.
See Howell v. Evans, 922 F.2d 712, 721 (11th Cir. 1991), vacated

pursuant to settlement, 931 F.2d 711 (11th Cir. 1991), and opinion
reinstated sub nom. Howell v. Burden, 12 F.3d 190 (11th Cir. 1994)

(stating that deliberate indifference requires not "merely the
knowledge of a condition, but the knowledge of necessary treatment

coupled

with a refusal to treat properly or a delay in

such

treatment."); McElligott v. Foley, 182 F.3d 1248, 1259 (11th Cir.

1999) (distinguishing Howell on the basis that "[t]he crucial
difference between this case and Howell is that here plaintiff
does

not

allege

that

the

defendant

should

have

known

that

deterioration of plaintiff's condition was possible, but that the
defendant

was

aware

that

plaintiff's

condition

was,

in

fact,

deteriorating, and still did nothing to treat this deteriorating
state."). See also

(11th

follow

Cir. 2019)

jail

Smith v. Franklin Cty., 762 F. App'x 885, 890

(finding that officer-defendant's failure to

protocols,

which

may

have

led

to

the

officer

discovering the inmate's deteriorating medical condition, could

not support a finding of deliberate indifference because "proof
that the defendant should have perceived the risk, but did not, is
insufficient"); Mitchell, 672 F. App'x at 903 (finding that there
was no evidence that the defendant nurse was subjectively aware of
a risk of serious harm because no evidence indicated that the nurse

was aware that the inmate was suffering from a stroke, understood

30

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 31 of 42

his condition, or disregarded that risk). The Court does not see

any evidence that Dambach did in fact perceive a risk to Alexander
and disregarded that risk. Plaintiffs have not presented evidence
that Dambach, taking all facts that he knew about Alexander, drew
the inference that he was suffering from acute limb ischemia, or
any

other

emergency

condition,
room.

that

Dambach,

required
unlike

medical

Augustin,

attention
does

not

at

the

diagnose

illnesses or medical conditions and Plaintiffs did not present
evidence that Dambach was aware of, and drew the conclusion, that

the combination of symptoms that Alexander had posed or presented
a vascular condition. (Doc. 150 at 80.)

Moreover,

Plaintiffs

have

failed

to

show

that

Dambach

disregarded a risk by conduct that is more than mere negligence.
Plaintiffs argue that there are four acts that show Dambach acted
with more than mere negligence: (1) intentional failure to complete

the

NETS,

(2)

misrepresentations

of

Alexander's

condition

to

Augustin, (3) failure to evaluate Alexander while he was in the
R&D

cell,

and

(4)

failure

to

accurately

report

Alexander's

condition to Neisler when she came on shift. (Doc. 191 at 14.)

These acts, however, sound in medical malpractice, not deliberate
indifference. The crux of each of these acts rest on the medical

care that Dambach administered and Plaintiffs are taking issue
with the adequacy of such care.

31

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 32 of 42

As to the first act, Plaintiffs contend that had Dambach used
the NET on the times he evaluated Alexander, Dambach would have

had a record to compare findings and the record could have led to
the proper diagnosis of ischemia. (Doc. 191 at 16.) The NETS are

forms that nursing staff complete after interacting with inmatepatients. (Doc. Ill at 32; Doc. 160, Attach. 5 at 23.) Dambach
testified that a NET was normally completed when the staff would

interact

with

administered

a

patient

to.

(Doc.

165

that
at

medication
28.)

was

Neisler

going

testified

to
in

be
her

deposition that NETS were usually completed in connection to a
signal

or

code

called

for

an

inmate.

(Doc.

164

at

65-67.)

Plaintiffs argue that, if Dambach had used the appropriate NET,
Alexander's symptoms would have been identified more clearly and
Alexander could have been diagnosed sooner. However, failing to

diagnose a medical condition does not directly equate to deliberate
indifference. Bingham, 654 F.3d at 1176. Additionally, Plaintiffs

have not presented evidence that Dambach's failure to use the NETs

was anything more than negligence. See Smith, 762 F. App'x at 89091 (noting that the nurse's failure to use the jail protocols
established that, at best, the nurse was negligent and that the

inmate's deteriorating condition
but

these

things

are

^should have been discovered,'

insufficient

indifference).

32

to

establish

deliberate

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 33 of 42

As to the second act. Plaintiffs argue that, according to
Augustin's testimony, Dambach failed to report key findings about
Alexander's condition which, if he had reported them, would have

led

to

a

diagnosis

of

ischemia.

{Doc.

191

at

19.)

Taking

Plaintiffs' facts as true, that Dambach failed to accurately report

Alexander's condition to Augustin, Plaintiffs still have not shown

that this conduct rises above negligence or medical malpractice.
Plaintiffs argue that Dambach's focus on the ^'voodoo and black
magic" that Alexander reported to him creates a question of fact
on

whether

Dambach

intentionally

minimized

Alexander's

pain

complaints. (Id.) The Court disagrees. The record is clear that
Dambach called Augustin twice to discuss Alexander's condition and
described in detail the pain that Alexander was suffering from and
the high blood pressure. Augustin testified that he was told that
Alexander complained of pain like ''his right hip feels it's like
out of socket." (Doc. 165 at 134, 170.) It is true that Dambach

informed

Augustin

that

Alexander

mentioned

that

someone

was

"trying to hurt him and then gave him a pill, some black magic
thing." (Id. at 170.) The record, however, does not show that
Dambach deliberately ignored Alexander's pain, refused to relay

the complaints of pain to Augustin, or failed to give him pain
medication once it was prescribed by Augustin. Thus, Plaintiffs
have not shown that Dambach's failure to accurately report his

33

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 34 of 42

evaluation

findings

rises

above

negligence,

or

medical

malpractice, to the level of deliberate indifference.
The third act Plaintiffs focus on is the care Dambach provided
to Alexander while he was in the R&D cell. Plaintiffs contend that

Damach failed to establish a plan of care for Alexander and failed
to assess Alexander's right leg. (Doc. 191 at 20.) This, however,
is a quintessential claim contesting the adequacy of the type of
medical care provided.

The record does not show that Dambach placed Alexander in the
R&D cell and ignored him for the rest of the time. At approximately
12:20 a.m. on May 23, Dambach checked Alexander's finger pulse and

oxygen level. (Doc. 160 at 150.) He also testified that he checked
Alexander's pedal pulse again. (Id. at 152.) Dambach left the R&D
cell

around

12:24

a.m.

(Id.)

He

came

back

and

looked

in

on

Alexander at approximately 1:24 a.m., 2:00 a.m., 2:40 a.m., 4:09
a.m., 4:23 a.m., 4:38 a.m., 5:51 a.m., and 6:01 a.m. (Id. at 154-

67.)

Dambach

gave

Alexander

his

morning

medications

at

approximately 7:46 a.m. (Id. at 173.) In sum. Plaintiffs fault
Dambach

for

failing

to

evaluate

Alexander

more

thoroughly,

however, this fails to rise beyond an accusation of malpractice.
See Smith, 762 F. App'x at 890 (finding that the defendant nurse's
'"failure to monitor the inmate or recheck his blood pressure for
the next several hours, even if required by jail protocols, was at
most negligent."); Kruse v. Williams, 592 F. App'x 848, 859 (11th

34

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 35 of 42

Cir. 2014) {noting that 'Mw]hile the nurse's diagnoses and quality
of care may have been subpar, . . . they did not rise beyond a
colorable claim of medical practice to deliberate indifference.").

Finally, Plaintiffs claim

Dambach's failure to accurately

report Alexander's complaints and condition to Neisler when she
came on shift was an act of more than mere negligence. (Doc. 191

at

22.) The

Court disagrees.

Similar to

Dambach's

conduct in

relaying information to Augustin, Plaintiffs have not shown how
Dambach's

actions

were

more

than

negligence

or

medical

malpractice. Dambach testified that he told Neisler that Alexander
had two signals called on him, that he was in R&D because the

infirmary was full, that Augustin wanted to see him that morning,
that he was complaining of leg pain, and that he mentioned a voodoo
spell. (Doc. 160 at 176.) Neisler testified that Damach told her
that Alexander had been complaining of leg pain and that Alexander

was concerned someone had poisoned him. (Doc. 164 at 130.) Neisler
also

confirmed

in

her

testimony

that

Dambach

told

her

that

Alexander was to be seen by Augustin that morning. (Id. at 141.)

Ultimately, Dambach responded to each Signal 55 call and evaluated
Alexander's
Alexander

Alexander

medical

the

needs,

prescribed

throughout

the

called

the

medications,

night,

and

Alexander was to be seen by Augustin.

35

doctor,

Augustin,

periodically

informed

gave

checked

Neisler

on

that

These facts do not support

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 36 of 42

a finding that Dambach was deliberately indifferent to Alexander's
medical needs.

B. Punitive Damages and Attorneys' Fees

Dambach also moves for summary judgment on Plaintiffs' claims
for punitive damages and attorneys' fees. (Doc. 119, Attach. 1 at
20-22.) In response. Plaintiffs argue that they can be awarded
punitive damages on the survival action brought under state law by
Plaintiff Glisson and pursuant to their 42 U.S.C. § 1983 action.
First, the Court finds that, because Dambach is entitled to

summary judgment on Plaintiffs' § 1983 action against him, their
predicate claim for punitive damages fails. Additionally, based on
the foregoing, the Court finds that summary judgment on Plaintiffs'
state law
Pursuant

punitive
to

damages claim is

O.C.G.A. § 51-12-5.1(b),

also due to
punitive

be

damages

granted.
may

be

awarded where ^'the defendant's actions showed willful misconduct,

malice, fraud, wantonness, oppression, or that entire want of care
which would raise the presumption of conscious indifference to

consequences."

Plaintiffs

contend

that

the

same

facts

that

establish the issue of punitive damages in the state survival
action also establish a question of fact in the federal claims.
However, for the reasons outlined above, the Court does not find

that there is a genuine issue of material fact as to whether
Dambach was deliberately indifferent.

36

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 37 of 42

As to attorneys' fees, Plaintiffs state they are not pursuing
a claim for attorneys' fees under O.C.G.A. § 13-6-11 but instead
only seek attorneys' fees pursuant to 42 U.S.C. § 1988. (Doc. 191
at 23-24.) 42 U.S.C. § 1988 allows a court to award attorneys'

fees to a prevailing party in § 1983 actions. However, because the
Court

finds

that

Dambach

is

entitled

to

summary

judgment

on

Plaintiffs' § 1983 claim against him, Dambach's motion for summary
judgment on attorneys' fees is due to be granted as well.
III. DEFENDANT NEISLER'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON

DELIBERATE INDIFFERENCE, PUNITIVE DAMAGES, AND ATTORNEYS'
FEES

A. Deliberate Indifference

Neisler argues that she was not deliberately indifferent to
Alexander's

serious

medical

needs

and

is

entitled

to

summary

judgment on Plaintiffs' claims against her. (Doc. 120.) Neisler
claims that (1) there is no evidence that she knew Alexander had

acute limb ischemia or a blood clot in his leg and, therefore, did
not know that Alexander had a serious medical need, and (2) she

did not disregard any risk to Alexander because she cared for him
within the scope of her practice. (Doc. 120, Attach. 1 at 7-13.)
In response. Plaintiffs argue that questions of fact remain
on

Neisler's

knowledge

of

Alexander's

serious

medical

needs.

Plaintiffs contend that Neisler "gained knowledge of Alexander's

medical

needs

through

several

sources," including

Alexander's

history of a recent TIA and his age, Dambach's treatment notes

37

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 38 of 42

from the prior night which included Alexander's high blood pressure

and his leg pain, and was told by Dambach directly that Alexander
had high blood pressure due to his leg pain and had vomited. (Doc.
192 at 10-11.) Plaintiffs also argue that there is evidence of
Neisler's deliberate indifference. (Id. at 11-15.)

First, for the reasons stated above, the Court finds that

Alexander had an objective serious medical need. Next, Plaintiffs
must demonstrate that Neisler was deliberately indifferent to that
need. The Court finds that Plaintiffs have not done so. To show

that a defendant has been deliberately indifferent, a plaintiff

must show a prison official's ^'(1) subjective knowledge of a risk
of serious harm; (2) disregard of that risk; and (3) by conduct
that is more than mere negligence." Bingham, 654 F.Sd at 1176.
^'Conduct that is more than mere negligence includes: (1) grossly

inadequate

care;

(2)

a

decision

to

take

an

easier

but

less

efficacious course of treatment; and (3) medical care that is so

cursory as to amount to no treatment at all." Id.

Neisler argues that that she was not subjectively aware of
Alexander's diagnosis of acute limb ischemia and, therefore, could
not have perceived the subjective risks to Alexander. (Doc. 120,
Attach.

1

at

10.)

The

Court

agrees

that

Plaintiffs

have

not

provided enough evidence to survive summary judgment on Neisler's
subjective knowledge. To show the subjective component. Plaintiffs
must present evidence that Neisler was

38

'*aware of facts from which

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 39 of 42

the inference could

harm

exist[ed],

be

and

drawn that a substantial risk of serious

must

also

have

drawn

the

inference.' "

Mitchell, 672 F. App'x at 903 (quoting Burnette, 533 F.3d at 1330).
'MA]n official's failure to alleviate a significant risk that he

should have perceived but did not" is insufficient to establish a
constitutional violation." Collins v. Bates, No. 17-14559-G, 2018

WL

5090845,

at

*5

(11th

Cir.

May

10,

2018).

Additionally,

a

"complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state" a claim of deliberate
indifference. Bingham, 654 F.3d at 1176.

Plaintiffs state in their response brief that Neisler "was

unaware of any diagnosis for Alexander's problems." (Doc. 192 at
3.) Thus, by this admission, Neisler was not subjectively aware of
a risk of serious harm to Alexander. Additionally, the evidence

shows that she was informed that by Dambach that Alexander had two

signals called on him, that he was in R&D because the infirmary
was full, that Augustin wanted to see him that morning, that he
was complaining of leg pain, and that he mentioned a voodoo spell.
(Doc. 160 at 176.) Neisler testified that Damach told her that

Alexander had been complaining of leg pain and that Alexander was
concerned someone had poisoned him. (Doc. 164 at 130.) Neisler
also

confirmed

in

her

testimony

that

Dambach

told

her

that

Alexander was to be seen by Augustin that morning. (Id. at 141.)

Thus, taking the facts in the light most favorable to Plaintiffs,

39

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 40 of 42

Neisler knew that Alexander had complained of leg pain, that be

had

high blood pressure the

night before that came down

with

medication, and that he was in R&D for observation until Augustin

could see him. None of these facts support a finding that Neisler
was subjectively aware of a risk of serious harm existed.
Further,

Plaintiffs'

arguments

center

a

contention

that

Neisler should have evaluated Alexander and should have realized

he

was

suffering

from

acute

ischemic limb.

(Doc.

192 at

3.)

However, this is insufficient to support a deliberate indifference
claim. Smith, 762 F. App'x at 890 (finding that officer-defendant's
failure to follow jail protocols, which may have led to the officer
discovering the inmate's deteriorating medical condition, could
not support a finding of deliberate indifference because ^^proof
that the defendant should have perceived the risk, but did not, is
insufficient"); Mitchell, 672 F. App'x at 903 (finding that there
was no evidence that the defendant nurse was subjectively aware of
a risk of serious harm because no evidence indicated that the nurse

was aware that the inmate was suffering from a stroke, understood

his condition, or disregarded

that risk). Plaintiffs

have

not

presented evidence that Neisler, taking all facts that she knew
about Alexander, drew the inference that he was suffering from

acute limb ischemia, or any other condition, that required medical
attention and then intentionally ignored that risk by failing to

40

Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 41 of 42

render medical care. Accordingly, Neisler is entitled to summary
judgment on Plaintiffs' § 1983 claim against her.
B. Punitive Damages and Attorneys' Fees

Neisler also moves for summary judgment on Plaintiffs' claims
for punitive damages and attorneys' fees. (Doc. 119, Attach. 1 at

20-22.) In response. Plaintiffs argue that they can be awarded
punitive damages on the survival action brought under state law by

Plaintiff Glisson and pursuant to their 42 U.S.C. § 1983 action.
First, the Court finds that, because Neisler is entitled to summary

judgment on Plaintiffs' § 1983 action against her, the predicate
claim for punitive damages fails.

Additionally, based on the foregoing, the Court finds that
summary judgment on Plaintiffs' state law punitive damages claim
is also due to be granted. Pursuant to O.C.G.A. § 51-12-5.1(b),

punitive damages may be awarded where ^'the defendant's actions
showed willful misconduct, malice, fraud, wantonness, oppression,
or that entire want of care which would raise the presumption of

conscious indifference to consequences." Plaintiffs contend that
the same facts that establish the issue of punitive damages in the
state survival action also establish a question of fact in the
federal claims. However, for the reasons outlined above, the Court

does not find that there is a genuine issue of material fact as to
whether Neisler was deliberately indifferent.

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Case 4:18-cv-00099-WTM-CLR Document 235 Filed 09/03/20 Page 42 of 42

As to attorneys' fees. Plaintiffs state they are not pursuing
a claim for attorneys' fees under O.C.G.A. § 13-6-11 but instead
only seek attorneys' fees pursuant to 42 U.S.C. § 1988. {Doc. 191
at 23-24.) 42 U.S.C. § 1988 allows a court to award attorneys'

fees to a prevailing party in § 1983 actions. However, because the
Court

finds

that

Neisler

is

entitled

to

summary

judgment

on

Plaintiffs' § 1983 claim against her, Neisler's motion for summary

judgment on attorneys' fees is due to be granted as well.
CONCLUSION

For

the

foregoing

reasons.

Defendant

Augustin's

Partial

Motion for Summary Judgment (Doc. 118) is GRANTED IN PART and
DENIED IN PART, Defendant Mark Dambach's Partial Motion for Summary

Judgment (Doc. 119) is GRANTED, and Defendant Victoria Neisler's
Partial Motion for Summary Judgment (Doc. 120) is GRANTED.
SO ORDERED this

day of September 2020.

WILLIAM T. MOORE, JR.i
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

42