Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al
Filing
239
ORDER granting in part and denying in part 105 Motion for Summary Judgment. Plaintiffs' § 1983 and punitive damages claims against Defendants Bryant and Williams remain. Signed by Judge William T. Moore, Jr. on 09/10/2020. (JH)
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 1 of 45
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; MARK
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
Defendants Sheriff John
Wilcher, Cpl.
Kevin Todd, Sgt. Carl Milton, Lt. Wanda Williams, Cpl. Desmond
Bryant,
and
John
Summary
Judgment.
Does 1-5's
(Doc.
(^'Sheriff
105.)
For
the
Defendants")
following
Motion for
reasons,
the
Sheriff Defendants' motion (Doc. 105) is GRANTED IN PART and DENIED
IN PART.
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 2 of 45
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
C'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.)
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
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 3 of 45
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
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 6D, the unit he was
^ 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 239 Filed 09/10/20 Page 4 of 45
housed in, and was dragging his right leg. (Doc. 96 at
Doc.
145
at
SISl
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 fl 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 11 38-
39; Doc. 145 at 11 38-39.) At 11:39 p.m.. Defendant 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
Sergeant 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.)
Dambach
went
to
the
Medical
Unit
and
called
Augustin
at
approximately midnight of May 22. (Id. at 133.) Augustin and
Dambach agreed that Alexander should be sent to infirmary, however,
the male beds in the infirmary were reportedly full. (Id. at 133-
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 5 of 45
34.) Alexander was placed into a wheelchair and taken to Receiving
and Discharge C'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 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 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
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 6 of 45
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 Kelly-
James 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.)
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
2 Corporal Addie 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 239 Filed 09/10/20 Page 7 of 45
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
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
7
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 8 of 45
concluded
at
11:52
p.m.
on
May
23,
2016
and
Alexander
was
transferred from the operating room to the post-anesthesia care
unit (^^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.)
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
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 9 of 45
found that the excessive potassium and other toxins released during
reperfusion post-surgery contributed to Alexander's cardiac arrest
and death.
II.
CORIZON'S HEALTHCARE CONTRACT
In
2010,
Chatham
County,
by
and
through
the
Board
of
Commissioners of Chatham County, Georgia, entered into a contract
with Prison Health Services, Inc. for the provision of inmate
healthcare services. (Doc. 168, Attach. 5 at 2.) The contract was
annual, but had four renewals with an expiration date of February
26, 2015. (Id.) Around July 2011, Prison Health Services, Inc.'s
name changed to Corizon. (Doc. 168 at 38-39.) The annual cost under
the contract for 2010 was $5,399,000.00. (Doc. 168, Attach. 5 at
26.) In 2011, Chatham County paid $5,584,224, in 2012 the amount
was $5,774,088, and in 2013, the amount paid was $5,774,088. (Doc.
167 at 16-17; Doc. 167, Attach. 2 at 1.) Subsequently, Corizon and
Chatham County entered into a contract on January 17, 2014 in the
amount of $5,074,224. (Doc. 87, Attach. 1; Doc. 167, Attach. 2 at
1.)
Linda
Cramer,
a
designated
corporate
representative
for
Chatham County, testified that the compensation was $5,070,224 for
both 2014 and 2015. (Doc. 167 at 17.)
Pursuant to the contract, Corizon had assumed all medical
care,
including
psychiatric
but
with
the
exclusion
of
psychologist, for all inmates at CCDC. (Doc. 87, Attach. 1 at 14.)
Corizon was to staff nurses in various parts of CCDC as follows:
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 10 of 45
(1) in the Medical Unit 24 hours a day, 7 days a week, (2) in the
R&D area 24 hours a day, 7 days a week, (3) each of the housing
units for 8 hours, 5 days a week and (4) in the infirmary 24 hours
a day, 7 days a week. (Id. at 14-15.)
In 2015, Chatham County expressed a concern about Corizon's
staffing levels and felt that there should have been additional
registered nurses (^^RNs") in the facility at any given time. (Doc.
166 at 38-39.) By e-mail dated September 18, 2015, Scott Bowers,
with Corizon, emailed Lee Smith and Micheal Kaigler at Chatham
County.
(Doc.
summarized
Chatham
Attach.
meeting
County
mentioned
Licensed
a
93,
Practical
screenings.
We
at
between
regarding
that ''there
9
was
Nurses
recognize
In
that
representatives
care
a
3.)
at
CCDC.
question
(LPNs)
your
at
e-mail,
of
Corizon
Specifically,
regarding
intake
consultants
to
our
and
Bowers
staffing
conduct
have
Bowers
health
recommended
Registered Nurses (RNs) at intake, and we can do that." (Id. at 4
(emphasis in original).) Bowers then states that the cost of adding
an RN for 12 hours per night would be $197,172. (Id.) Bowers
further stated that "when the question of staffing an RN at night
was first raised, my team did not believe it to be incumbent upon
Corizon Health to absorb this cost because they are confident that
we have structured a sound inmate medical program . . . ." and
offered to share the cost of increased nursing staff. (Id.) An
increase in RN staffing was never adopted. (Doc. 93 at 110.)
10
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 11 of 45
At
the
time
of
Alexander's
incarceration
and
subsequent
death, Chatham County was in the process of soliciting a new inmate
healthcare provider through a request for proposal C'RFP"). (Doc.
168 at 28-29.) The contract was awarded to Correct Health in July
2016. (Id. at 29.) Correct Health's contract for 2016 was in the
amount of $6,973,725. (Doc. 167 at 17.)
III.
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
third
amended
following claims: (1) a
complaint.
Plaintiffs
allege
the
professional negligence claim against
Defendants Corizon, Augustin, Dambach, and Neisler (collectively,
the ''Corizon Defendants"), (2) a negligence claim against Corizon
Defendants, (3) a negligence claim against Defendants Wilcher,
11
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 12 of 45
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.,
475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56 advisory
committee notes).
12
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 13 of 45
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
not suffice. See, e.g., Tidwell v. Carter Prods., 135 F.3d 1422,
1425 (11th Cir. 1998). Nevertheless, where a reasonable fact finder
13
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 14 of 45
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.
CLAIMS
AGAINST
SHERIFF
DEFENDANTS
IN
THEIR
OFFICIAL
CAPACITIES
In their complaint. Plaintiffs allege the following claims
against Sheriff Defendants: (1) a negligence claim under state
law, (2) a deliberate indifference claim brought pursuant to the
Georgia
pursuant
Constitution, (3)
to
42
U.S.C.
§
a
claim for deliberate indifference
1983,
(4)
a
claim
for
intentional
infliction of emotional distress, and (5) a claim for punitive
damages.
against
(Doc.
the
15
at
Sheriff
13-17.)
Plaintiffs
Defendants
in
both
brought
their
their
claims
official
and
individual capacities. (Id. at 3-4.)
A. Sheriff Defendants^ Immunity From Suit
Sheriff Defendants move for summary judgment on the claims
against
them
due
to
their
sovereign
immunity.
""In
Georgia,
^sovereign immunity extends to the state and all of its departments
and agencies.' " Carter v. Butts Cty., Ga., 821 F.3d 1310, 1323
(11th Cir. 2016) (quoting Ga. Const, art. I § 2, SI IX; Gilbert v.
Richardson, 264 Ga. 744, 452 S.E.2d 476, 479 (1994)). Sovereign
immunity extends to sheriffs and counties as well unless waived by
14
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 15 of 45
the General Assembly. Id.
Thus, a defendant who is sued in his
official capacity is entitled to the benefit of the sovereign
immunity defense, and the plaintiff bears the burden to demonstrate
that sovereign immunity has been waived. Id.
In their response. Plaintiffs argue that the state does not
enjoy sovereign immunity from federal constitutional violations,
that a "sheriff, individually, does not have immunity to violate
the
Georgia
Constitution,"
and
that
sovereign
immunity
only
applies to claims brought against individuals in their official
capacity and does not apply to 42 U.S.C. § 1983 claims. (Doc. 184
at
8-9.)
The
Court
finds
these
statements
insufficient
to
demonstrate a waiver of the State's sovereign immunity in this
case.
applies
First,
to
Plaintiffs
claims
acknowledge
against
state
that
sovereign
officials
in
their
immunity
official
capacity. Second, Plaintiffs have failed to identify a specific
waiver of the state's sovereign immunity and focuses more generally
on their ability to bring their federal § 1983 claim. Counties and
sheriffs enjoy sovereign immunity for tort claims under the Georgia
Constitution, including claims related to the provision of medical
care in jails. Temple v. Mclntosh Cty., Ga., No. 2:18-CV-91, 2019
WL
287482,
at
*7
(S.D.
Ga.
Jan.
22,
2019);
Tattnall
Cty.
v.
Armstrong, 333 Ga. App. 46, 52, 775 S.E.2d 573, 578 (Ga. Ct. App.
2015), overruled by Rivera v. Washington, 298 Ga. 770, 784 S.E.2d
775 (2016). The Court, therefore, finds that the Sheriff Defendants
15
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 16 of 45
are entitled to sovereign immunity against Plaintiffs' state law
claims in their official capacities. See Temple, 2019 WL 287482,
at
*7.3
As
a
result.
Sheriff
Defendants'
motion
regarding
Plaintiffs' claims against Sheriff Defendants in their official
capacities is GRANTED.
B. Sheriff Defendants' Eleventh Amendment Immunity
Sheriff Defendants also argue that they are protected from
suit by the Eleventh Amendment. (Doc. 105 at 4.) As noted above.
Plaintiffs generally argue that sovereign immunity only applies to
claims brought against individuals in their official capacity and
does not apply to 42 U.S.C. § 1983 claims. (Doc. 184 at 8-9.) The
Court finds that the claims against the Sheriff Defendants in their
official capacities are due to be dismissed.
"'A state official may not be sued in his official capacity
unless the state has waived its Eleventh Amendment immunity or
Congress has abrogated the state's immunity." Melton v. Abston,
841 F.Sd 1207, 1233 (11th Cir. 2016). See also Temple v. Mclntosh
3
The
fact
that
this
Court finds
the
Sheriff
Defendants
to
be
acting as arms of the state under the Eleventh Amendment analysis
below does not require a different result here. See Nichols v.
Prather, 286 Ga. App. 889, 892, 650 S.E.2d 380, 384 (Ga. Ct. App.
2007) (noting that a sheriff's department and sheriff's deputies
may be state actors for the purposes of § 1983 liability and still
be county actors for other purposes). See also Temple, 2019 WL
287482, at *7; Muckle v. Robinson, No. 2:12-CV-0061-RWS, 2013 WL
251113, at *5 (N.D. Ga. Jan. 23, 2013); McDaniel v. Yearwood, No.
2:11-CV-00165-RWS, 2012 WL 526078, at *12 (N.D. Ga. Feb. 16, 2012).
16
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 17 of 45
Cty., Ga., No. 2:18-CV-91, 2019 WL 287482, at *3 (S.D. Ga. Jan.
22, 2019). ''The
State of Georgia has
not waived its Eleventh
Amendment immunity and therefore has not consented to be sued in
this Court." Green v. Waystack, No. 5:18-CV-00042-TES, 2018 WL
3097019, at *5 (M.D. Ga. June 22, 2018) (citing O.C.G.A. § 50-21-
23(b)). Congress has not abrogated Eleventh Amendment immunity in
§ 1983 cases. Brown v.
Fla. Dep't of Revenue Office of Child
Support Enf't, 697 F. App'x 692, 692-93 (11th Cir. 2017); Stephens
V. Ga. Dep't of Transp., 134 F. App'x 320, 324 (11th Cir. 2005)
("Congress has not abrogated immunity for claims brought pursuant
to § 1983 . . . .").
Thus, the question here is whether the Sheriff Defendants are
considered a state official acting as an arm of the state so as to
be protected by Eleventh Amendment immunity. Courts in the Eleventh
Circuit, when determining whether an official is acting as an arm
of the state, consider the following four factors: "(1) how state
law
defines the entity; (2)
what degree of control the
State
maintains over the entity; (3) where the entity derives its funds;
and (4) who is responsible for judgments against the entity." Lake
V. Skelton, 840 F.3d 1334, 1337 (11th Cir. 2016) (quoting Manders
V. Lee, 338 F.3d 1304, 1309 (11th Cir. 2003) (en banc)). In Lake,
the Eleventh Circuit found that a Georgia sheriff was entitled to
Eleventh Amendment immunity for claims related to the provision of
food to inmates in county jails. 840 F.3d at 1342-43. Numerous
17
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 18 of 45
courts, upon considering Lake, have found that sheriffs in Georgia
act as an arm of the state when providing medical care to an inmate
in a county jail. Johnson v. Columbus Consol. Gov't, No. 4:19-CV119 (ODD, 2020 WL 3472919, at *2 (M.D. Ga. June 25, 2020); Mizelle
V. Wellpath LLC, No. CV 119-198, 2020 WL 3972339, at *2 (S.D. Ga.
July 14, 2020); Brooks v. Wilkinson Cty., Ga., 393 F. Supp. 3d
1147, 1160 (M.D. Ga. 2019); Johnson v. Piper, No. 2:14-CV-00173RWS, 2017 WL 11493975, at *3 (N.D. Ga. Nov. 16, 2017). This Court
is persuaded by the analysis conducted in these cases and finds,
pursuant to Lake, 840 F.3d at 1342, that the State of Georgia
controls medical care in county jails. Accordingly, the claims
against Sheriff Defendants in their official capacity are barred
by the Eleventh Amendment. As a result. Sheriff Defendants' motion
on this basis is GRANTED.
II.
CLAIMS AGAINST DEFENDANTS IN THEIR INDIVIDUAL CAPACITIES
A. Defendants Todd, Milton, Williams, Bryant, and John Does
1-5's Official Immunity
Sheriff
Defendants
also
contend that Plaintiffs'
claims
of
negligence against Sheriff Defendants are similarly barred by the
state doctrine of official immunity. (Doc. 106 at 6.) In this case.
Plaintiffs claim that the Sheriff Defendants "failed to fulfill
their
ministerial
duties
with
reasonable
care"
and
specifically negligent due to their
(1)
Failure to have Alexander observed, evaluated and
treated promptly by a medical care facility that
18
were
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 19 of 45
was adequately trained and equipped to diagnose and
treat a vascular emergency;
(2)
(3)
(4)
Failure to adequately and properly train persons
attending to Alexander on the condition necessary
for emergency transport of a prisoner;
Failure to have adequate infirmary services to or
maintain the infirmary adequately so that it could
properly
provide
emergency medical care
for
prisoners;
Failure
to
have
adequate
medical
staff
for
evaluation and treatment of Alexander or in lieu of
(5)
such
services,
transport
to
a
hospital
or
comparable medical facility;
Failure to have adequate procedures in place to
educate, treat and timely transport sick severely
ill prisoners for emergency care.
(Doc. 26, Attach. 1 at 18.) Plaintiffs allege in their complaint
that these negligent acts were both ministerial duties and acts
committed with malice. (Id.)
Under
Georgia
law,
a
public
officer
or
employee
may
be
personally liable only for ministerial acts negligently performed
or discretionary acts performed with malice or an intent to injure.
Cameron v. Lang, 274 Ga. 122, 123, 549 S.E.2d 341, 344 (2001);
Williams v. Pauley, 331 Ga. App. 129, 130, 768 S.E.2d 546, 547
(Ga. Ct. App. 2015). Actual malice requires ""a deliberate intention
to do an unlawful act." Adams v. Hazelwood, 271 Ga. 414, 414, 520
S.E.2d 896, 898 (1999). Actual malice cannot be implied from the
circumstances, but must be alleged by the plaintiff and supported
by evidence in the record. See Watkins v. Latif, 323 Ga. App. 306,
311, 744 S.E.2d 860, 863 (Ga. Ct. App. 2013).
19
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 20 of 45
Sheriff Defendants argue that the complained of negligent
acts
were
committed
in
the
execution
of
Sheriff
Defendants'
discretionary duty. Plaintiffs, however, seem to generally contend
that these acts were ministerial. Plaintiffs argue that ''[i]f
ministerial duties did not exist for essential aspects of providing
adequate
medical
care,
. . .
then
the
absence
of
policies,
supervision and training on what to do in these expected recurring
circumstances
that
constitutional
were
likely
duties,
significant
supports
a
claim
for
for
fulfilling
deliberate
indifference." (Doc. 184 at 9.) The Court finds that the negligent
acts alleged are discretionary acts and Sheriff Defendants enjoy
official immunity against Plaintiff's claims.
'"Under Georgia law, a 'ministerial act' is 'commonly one that
is
simple,
absolute,
and
definite,
arising
under
conditions
admitted or proved to exist, and requiring merely the execution of
a specific duty.' " Davis v. Brown, No. 1:16-CV-00735, 2019 WL
1206431, at *10 (N.D. Ga. Mar. 14, 2019) (quoting Grammens v.
Dollar,
287
Ga.
618,
619,
697
S.E.2d
775,
111
(2010))
.
Discretionary acts, meanwhile, "calls for the exercise of personal
deliberation and judgment, which in turn entails examining the
facts, reaching reasoned conclusions, and acting on them in a way
not specifically directed." Grammens, 287 Ga. at 619, 697 S.E.2d
at 111 (internal quotation marks and citation omitted). "Where
there
is
an
established
policy
20
requiring
an
official to
take
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 21 of 45
specified action in a specified situation, the policy creates a
ministerial duty on the part of the official to perform the
specified task." Id., 287 Ga. at 620, 697 S.E.2d at 777. ''^Under
Georgia law, Mt]he provision of adequate medical attention . . .
is a ministerial act by the sheriff . . . and is not subject to .
. official immunity. In contrast, the determination of what
medical treatment to provide is an act of discretion subject to
official immunity.' " Anderson v. Columbia Cty., Ga., No. CV 112031, 2014 WL 8103792, at *16 (S.D. Ga. Mar. 31, 2014) (quoting
Graham v. Cobb Cty., 316 Ga. App. 738, 742-43, 730 S.E.2d 439, 443
(Ga. Ct. App. 2012)).
In this case, Alexander did receive medical care - jail staff
called Defendant Dambach to evaluate Alexander twice, the medical
staff provided Alexander with medications, and the medical staff
placed
Alexander
into
R&D
for
observation.
Thus,
Plaintiffs'
contentions are based on what medical care Alexander should have
been given. The negligent acts alleged by Plaintiffs in their
complaint focus on the inadequate care received by Alexander.
Because Plaintiffs are contesting the medical care provided, the
Court finds that, absent a showing of willfulness, malice, or
corruption, the conduct at issue are a discretionary acts for which
Sheriff Defendants are entitled to official immunity. See Davis,
2019 WL 1206431, at *10; Anderson, 2014 WL 8103792, at *16.
21
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 22 of 45
Moreover, in their broad argument that Sheriff Defendants'
actions are ministerial. Plaintiffs do not identify the policy
that set out the specific acts that they contend Sheriff Defendants
performed negligently or failed to perform. In absence of evidence
showing this Court what specific policy required the actions that
were not taken in this case, the Court finds that the complained
of actions, including the failure to act, are discretionary acts.
Further, Plaintiff has offered no argument that Sheriff Defendants
performed the actions with actual malice. The Court finds Sheriff
Defendants' are entitled to summary judgment on Plaintiffs' claims
of negligence against them on the basis of official immunity.
Accordingly, the Court GRANTS the Sheriff Defendants' motion.
B. Deliberate Indifference Against Defendants Todd, Milton,
Williams, and Bryant
The
Sheriff
Plaintiffs'
§
Defendants
1983
claims
move
against
for
summary
Defendants
judgment
Todd,
on
Milton,
Williams, and Bryant. (Doc. 105 at 1.) The Court will evaluate
each Defendant in turn.
1. Defendant Todd
In response to Sheriff Defendants' motion. Plaintiffs argue
that questions of fact exist on Defendant Todd's liability. (Doc.
184 at 17.) Plaintiffs contend that Defendant Todd was deliberately
indifferent
monitor
the
to
Alexander's
video
cameras
medical
of
need
Alexander
22
because
from
he
8:30
(1)
could
p.m.
until
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 23 of 45
midnight on May 22 and saw Alexander in distress, and (2) told
Alexander to return to bed when Alexander was laying in the floor
and called a signal 10-78 rather than a signal 55. (Id. at 17-20.)
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
Defendant'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 this case. Sheriff
Defendants challenge whether Alexander suffered from a serious
medical
need
while
detained
at CCDC.
Plaintiffs
have
provided
evidence that Alexander likely suffered from acute limb ischemia
on May 22 into May 23, 2016 while at CCDC. Sheriff Defendants argue
23
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 24 of 45
that
a
serious
medical
need
has
not
been
established
because
Sheriff Defendants would be unable to diagnose acute limb ischemia.
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.3d 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 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).
Next, Plaintiffs must demonstrate that Defendant Todd was
deliberately
indifferent
Plaintiffs have
deliberately
to
that
need.
The
Court
finds
that
not done so. To show that a defendant has been
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 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.
24
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 25 of 45
The Court finds that Plaintiffs have not shown that Defendant
Todd had subjective knowledge of a risk of serious harm and that
he disregarded that risk. Both interactions that Plaintiffs focus
on culminated in a Signal 55 being called for medical attention.
Defendant Dambach did in fact respond to both of those calls.
Further, the Court does not find the act of Defendant Todd calling
a
Signal
10-78
instead
of
immediately
calling
a
Signal
55
sufficient to establish deliberate indifference. Plaintiffs focus
on the ^"delay" but the record shows that at approximately 11:39
p.m. Defendant Todd called a 10-78 to ^^keep other inmates under
control while we got Mr. Alexander further medical assistance."
(Doc. 85 at 113-14.) Then, a Signal 55 was called and Defendant
Dambach arrived at approximately 11:48 p.m. (Doc. 150 at 131.)
Thus,
the
evidence
shows
that
Defendant
Todd
did
not
ignore
Alexander's medical need but instead had the CCDC's medical staff
attend to Alexander. '"A medical treatment claim [will] not lie
against non-medical personnel unless they were personally involved
in the denial of treatment or deliberately interfered with prison
doctors' treatment. Prison officials are entitled to rely on the
opinions, judgment and expertise of a prison medical staff to
determine a medically necessary and appropriate cause of treatment
for an inmate." Jackson v. Perry, No. 5:17-CV-11, 2017 WL 3138553,
at *4 (S.D. Ga. July 24, 2017), report and recommendation adopted.
No.
5:17-CV-11,
2017
WL
4853725
25
(S.D.
Ga.
Oct.
26,
2017).
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 26 of 45
Accordingly, the Court finds that Defendant Todd is entitled to
summary judgment on Plaintiffs' § 1983 claim against him. Sheriff
Defendants' motion on this ground is GRANTED.
2. Defendant Milton
In response to Sheriff Defendants' motion, Plaintiffs argue
that questions of fact exist on Defendant Milton's liability. (Doc.
184 at 20.) Plaintiffs contend that Defendant Milton, according to
Defendant Todd, had the ability to override medical personnel and
send an inmate to the emergency room via EMS but that Milton's
training ^^taught him that he could not override Medical and call
EMS." (Id. at 21.)
Plaintiffs also contend that Milton checked on
Alexander twice during the night but did not let Alexander see him
for fear that Alexander would again request to go to the hospital
and that Milton allowed Alexander to be placed into R&D rather
than the infirmary. (Id. at 21-22.)
As
stated
above.
Plaintiffs
must
show
Ml)
subjective
knowledge of a risk of serious harm; (2) disregard of that risk;
(3) by conduct that is more than gross negligence.' " Johnson, 741
F. App'x at 700 (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1327
(11th Cir. 2007)). Defendants argue that Plaintiffs have not shown
that
the
Alexander
Sheriff
needed
Defendants
had
a
hospital treatment
subjective
and
that
knowledge
Defendant
that
Milton
testified that he saw no reason to question the medical staff.
(Doc. 106 at 23.) The Court agrees. Similar to Defendant Todd, the
26
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 27 of 45
evidence shows that Defendant Milton assisted in the 10-78 signal
which then became a signal 55. Additionally, Defendant Milton
suggested to Defendant Dambach that Alexander should be taken to
the infirmary, checked on Alexander twice throughout the night,
and
instructed
the
officer
working
in
that
area
to
monitor
Alexander closely. (Doc. 91 at 80-81.) Defendant Milton did not
ignore Alexander's need for medical attention.
Further, Defendant Milton testified that:
I had to depend on Medical's expertise because that was
their profession. And as I stated earlier, I was told by
lA that I was not medical certified. So I left it up to
them to make the decision. Had I had seen something that
I felt would have required medical — him being
transported out, I would have done so and at the same
time, contacted my off-duty captain of Security, which
we have to contact throughout the night on a regular
basis. But I didn't physically see the injury that he
claimed he had.
(Id. at 83.) Thus, while Plaintiffs' contentions that Defendant
Milton believed he had to rely on the medical personnel's decisions
is accurate, he also stated that he saw no reason to depart from
those decisions because he could not see an injury or other reason
to transport Alexander and had he seen it, he would have had him
transported. Thus, Plaintiffs' have failed to show that Defendant
Milton had a subjective knowledge of a risk of serious harm and
that he disregarded that risk. See Stone v. Hendry, 785 F. App'x
763, 769 (11th
Cir.
2019). Accordingly, the
Court finds
that
Defendant Milton is entitled to summary judgment on Plaintiffs'
27
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 28 of 45
§ 1983 claim against him. Sheriff Defendants' motion on this ground
is GRANTED.
3. Defendants Williams and Bryant
In response to Sheriff Defendants' motion. Plaintiffs argue
that questions of fact exist on Defendant Williams and Defendant
Bryant's liability. (Doc. 184 at 22-23.) As will made be clear
shortly,
the
allegations
against
these
Defendants
should
be
considered together due to the discrepancy in timing. Plaintiffs
argue that questions of fact exist as to Defendant Williams'
liability
because
she
"had
knowledge
of
Alexander's
serious
medical need and delayed treatment for a nonmedical reason." (Doc.
184
at
23.)
Specifically,
Defendant
someone to transport Alexander
which
Williams
delayed
finding
led to further delay in
Alexander receiving treatment. Plaintiffs contend that questions
of fact preclude summary judgment on Defendant Bryant's liability
because a question of fact remains as to whether Defendant Bryant
delayed transporting Alexander after being notified of Alexander's
serious medical need and the order to transport Alexander to the
emergency room. (Id. at 24-25.)
The
Court
first
reviews
the
facts
regarding
Alexander's
transport. Defendant Williams testified that medical made the call
on whether to send the inmate to the emergency room via EMS or by
patrol car. (Doc. 92 at 27.) Defendant Williams also testified
that it takes approximately 30-45 minutes to get the inmate-patient
28
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 29 of 45
to the sally port from when the Watch Commander receives notice of
a medical transport. (Id. at 33.)
Two hours is an abnormally long
time to get the inmate to the sally port. (Id. at 33-34.) At
approximately 3:16 p.m. on May 23, Defendant Williams was notified
that Dr. Augustin recommended Alexander be transported to Memorial
by car for
evaluation.
(Doc.
92 at
77.)
Defendant
Williams
testified that at roughly 3:21 p.m.. Defendant Williams contacted
Corporal
Kelly-James
but
Kelly-James
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.) Defendant Williams testified
that she then contacted Defendant Bryant at roughly 3:30 p.m. to
transport Alexander and expected Alexander to be at the sally port
to leave CCDC around 4:00 p.m. (Id. at 90.) However, internal
records show an entry dated May 23, 2016 and entered at 3:47 p.m.
with an event time of 3:16 p.m. (Doc. 92, Attach. 2 at 19.) The
entry reads as follows: "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." (Id.) Thus, at the
time that Defendant Williams completed the entry, 3:47 p.m., the
log only reflects that Kelly-James had been contacted.
Defendant
Bryant,
however,
testified
that
he
was
not
contacted by Defendant Williams until 4:40 p.m. (Doc. 88 at 17.)
Defendant Williams testified Alexander and Defendant Bryant did
not leave CCDC until approximately 4:25 p.m. (Doc. 92 at 78-79),
29
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 30 of 45
but Defendant Bryant testified that they left at 5:08 p.m. (Doc.
88 at 40.) Defendant Bryant and Alexander arrived at Memorial at
approximately 5:42 p.m. (Id.)
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: "(1)
deliberate
a
serious
indifference
medical
to
that
need;
need;
(2)
and
the
(3)
causation between that indifference and the plaintiff's injury."
Mann, 588 F.3d at 1306-07 (11th Cir. 2009). In regards to the
second prong, to demonstrate that a defendant has been deliberately
indifferent, a plaintiff must show
^ (1) subjective knowledge of
a risk of serious harm; (2) disregard of that risk; (3) by conduct
that is more than gross negligence.' " Johnson, 741 F. App'x at
700 (quoting Goebert, 510 F.3d at 1327).
The Court again finds that Alexander had a serious medical
need. The Court also finds that both Defendant Bryant and Williams
had subjective knowledge of a risk of serious harm. Defendants
were informed and aware that Dr. Augustin had ordered Alexander to
be taken to the emergency room. Defendant Williams noted in her
statement of incident that Corporal Cochran
medical
recommended
that
Alexander
be
notified
transported
by
her that
car
for
evaluation at Memorial and specifically noted that she was told
the issue was "possible paralysis to the right side and elevated
blood pressure." (Doc. 92, Attach. 3 at 1.)
30
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 31 of 45
As to the second prong, the Court finds that Plaintiffs have
presented enough evidence to survive summary judgment. ''"Even where
medical
care
nonetheless
is
act
ultimately
with
provided,
deliberate
a
prison
indifference
by
official
may
delaying
the
treatment of serious medical needs, even for a period of hours,
though the reason for the delay and the nature of the medical need
is relevant in determining what type of delay is constitutionally
intolerable."
1999).
McElligott v. Foley, 182 F.3d 1248, 1255 {11th Cir.
"[C]ase
law
has
established
that
both
long
and
short delays can be inexcusable, depending on the medical need and
the reason for the delay." Alsobrook v. Alvarado, 477 F. App'x
710, 713 (11th Cir. 2012). '"If unexplained, protracted delay in
the treatment of a serious medical risk can constitute deliberate
indifference." Colardo-Keen v. Rockdale Cty., Ga., 775 F. App'x
555, 569 (11th Cir. 2019).
Here, Plaintiffs argue that Defendants Bryant and Williams
were deliberately indifferent to Alexander's serious medical need
by delaying his transportation to the emergency room. Dr. Augustin
ordered Alexander to be sent to the emergency room at approximately
3:10 p.m. on May 23 (Doc. 45 at 229), however, Alexander did not
leave CCDC until approximately 5:08 p.m. (Doc. 88 at 16, 40.)
Defendant Williams and Defendant Bryant offer conflicting stories
of who is responsible for the delay in transporting Alexander. If
Defendant Williams is to be believed, then she promptly notified
31
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 32 of 45
Defendant Bryant to transport Alexander at approximately 3:30 p.m.
yet he did not leave CCDC until 5:08 p.m. However, if Defendant
Bryant is to be believed, he was not notified until 4:40 p.m. and
he left with Alexander at 5:08 p.m., within the 30-45 minute window
for transporting inmates to the emergency room. There is a question
of material fact of who caused the delay in transporting Alexander
that cannot be resolved on summary judgment.'^
Regardless of who caused the delay, this Court finds that
Plaintiffs
have
sufficiently
shown
deliberate
indifference
to
survive summary judgment. Alexander was not transported to the
emergency room until approximately two and a half hours after Dr.
Augustin issued the order for him to be transported ^^immediately."
As stated above, delay in rendering medical care can constitute
deliberate indifference. Compare Colardo-Keen, 775 F. App'x at 568
(finding that a jury could reasonably infer that a defendant nurse
subjectively disregarded the risk of serious harm to an inmate
when
she
knew
the
necessary
treatment
ordered
but
delayed
implementing it for five hours without explanation); Brown v.
Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990) (finding that an
unexplained delay of hours for treatment to an inmate with a broken
foot precluded summary judgment on the question of deliberate
^ The Court notes that there appears to be no records of the times
Defendant
Williams
contacted
Kelly-James and
(See Doc. 92 at 90; Doc. 88 at 22.)
32
Defendant Bryant.
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 33 of 45
indifference) with Nam Dang by & through Vina Dang v. Sheriff,
Seminole Cty. Fla., 871 F.3d 1272, 1283 (11th Cir. 2017) (finding
no constitutional violation where a doctor, after examining the
inmate, immediately directed the inmate to be transported to the
emergency room and there was only about a 15-minute delay in the
inmate's transport); James v, Aqee, No. 1:16-CV-01381-ELR, 2018 WL
8263068, at *4 (N.D. Ga. Sept. 28, 2018), aff'd sub nom. James v.
Bartow Cty., Ga., 798 F. App'x 581 (11th Cir. 2020) (finding a 12minute time frame of medical assistance is not a constitutional
violation
where the nurse
was notified of the inmate's medical
need at 11:36 p.m. and an ambulance arrived at the jail at 11:48
p.m.).
Sheriff
Defendants
have
not
argued
or
shown
any
justification for the delay.
Finally, as numerous experts in this case have opined, delay
in treating an ischemic leg can cause tissue damage and appropriate
medical intervention is necessary to save the life and, hopefully,
the limb of the patient. (See Doc. 81, Attach. 4 at 5; Doc. 79,
Attach. 2 at 4.) Thus, the Court finds that Defendants Bryant and
Williams are not entitled to summary judgment on the § 1983 claims
against them in the individual capacities. Sheriff Defendants'
motion on this ground is DENIED.
C. Deliberate Indifference Against Defendant Wilcher
Sheriff
Defendants
argue
that
Defendant
Wilcher
was
not
deliberately indifferent to the medical needs of Alexander and
33
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 34 of 45
that summary judgment should be granted to Defendant Wilcher. (Doc.
106 at 8.) It appears that
Plaintiffs do
not base
Defendant
Wilcher's liability on any actions he took, or failed to take, on
May 22 and May 23, 2016 directly related to Alexander but on his
responsibility to adequately supervise and train his subordinates
to provide adequate medical care. {Doc. 184 at 10.) In order to
establish that a defendant committed a constitutional violation in
his supervisory capacity, a plaintiff must show that the defendant
instituted a '"custom or policy [that] result[s] in deliberate
indifference to constitutional rights or . . . directed [his]
subordinates to act unlawfully or knew that the subordinates would
act unlawfully and failed to stop them from doing so." Goebert,
510 F.Sd at 1331 (internal quotation marks and citation omitted).
The
core
of Plaintiffs' claims
against
Defendant Wilcher
concerns his alleged failure to implement policies and procedures
regarding the provision of medical care at CCDC when he became the
sheriff.
Plaintiffs
identity
three
areas
in
which
Defendant
Wilcher's failure to create policies and/or train his officers
supports a finding of deliberate indifference: (1) the duty to
timely
transport
prisoners
to
the
hospital
when
in
need
of
emergency care; (2) the duty to provide infirmary level care
outside
of
unavailable;
the
and
infirmary
(3)
setting
understaffing
34
when
the
the
infirmary
medical
was
personnel.
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 35 of 45
specifically the lack of a nightshift RN in the R&D area. (Doc.
184 at 16.) Plaintiffs' claims, however, fail.
'"Liability
can
be
predicated
on
a
failure
to
train
or
supervise theory 'where a municipality's failure to train its
employees
in
a
relevant
respect
evidences
a
deliberate
indifference to the rights of its inhabitants such that the failure
to train can properly be thought of as a city policy or custom
. . . .' " Kraus v. Martin Cty. Sheriff's Off., No. 2:16-CV-14476,
2017 WL 6384009, at *7 (S.D. Fla. Sept. 26, 2017), aff'd, 753 F.
App'x
668
(llth
Cir.
2018)
(quoting
Sewell
v.
Town
of Lake
Hamilton, 117 F.3d 488, 489-90 (llth Cir. 1997)). In turn, to
establish
"deliberate
indifference"
to
the
rights
of
its
inhabitants, the "plaintiff must present some evidence that the
municipality
knew
of
a
need
to train
and/or
supervise
in
a
particular area and the municipality made a deliberate choice not
to take any action." Gold v. City of Miami, 151 F.3d 1346, 1350
(llth Cir. 1998).
A municipality might be on notice of a need to train or
supervise in a particular area if 'the need for more or
different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional
rights, that the policymakers of the city can reasonably
be said to have been deliberately indifferent to the
need' or if the employees of the municipality 'in
exercising
their
discretion,
so
often
violate
constitutional rights that the need for further training
must
have
been
plainly
obvious
to
the
city
policymakers.'
35
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 36 of 45
Denham v. Corizon Health, Inc., 675 F. App'x 935, 942 (llth Cir.
2017) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 390,
109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989)). See also Mingo
V. City of Mobile, Ala., 592 F. App'x 793, 799-800 (llth Cir. 2014)
(^^Deliberate
indifference
can
be
established
in
two
ways:
by
showing a widespread pattern of similar constitutional violations
by untrained employees or by showing that the need for training
was so obvious that a municipality's failure to train its employees
would result in a constitutional violation.").
Plaintiffs have presented no evidence that Sheriff Wilcher
was aware of a history of abuse or other incidents like the ones
at issue here that demonstrated a need to provide training to his
staff. See Williams v. Limestone Cty., Ala., 198 F. App'x 893, 897
(llth Cir. 2006) (finding that the facts were insufficient to
establish the sheriff's liability for a failure to train the jail
staff where the plaintiff failed to provide evidence of a history
or pattern of jail personnel's deliberate indifference to inmates'
serious
medical
needs
and
because
the
need
for
additional
or
difference medical training was not obvious); McDowell v. Brown,
392 F.3d 1283, 1290 (llth Cir. 2004) (finding that the plaintiff
failed to establish that the facility ''consistently failed to
transport non-emergency cases to the hospital and, therefore, the
isolated incident "does not demonstrate evidence of the county's
persistent or widespread policy.").
36
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 37 of 45
Plaintiffs seem to recognize this point and argue "[t]he need
to
establish
effective
policies
provide required medical care
and
to
train
subordinates
to
was well established," and that
liability can attach based on a single incident if the need to
train and supervise is ""so obvious" that the failure to do so
demonstrates
deliberate
indifference.
(Doc.
184
at
11.)
Thus,
Plaintiffs rely on the second possible way to show deliberate
indifference: that the need for training in the area in question
is ""so
obvious" that failure to train in that area
deliberate
indifference.
Plaintiffs
have
failed
constitutes
to
produce
sufficient evidence to prove that it was obvious that Defendant
Wilcher should have provided ^'more or different" training. The
Court will consider each of Plaintiffs' grounds.
Plaintiffs contend that Defendant Wilcher was deliberately
indifferent
by
failing
to
promulgate
policies
regarding
the
transportation of inmates to the hospital and failing to train his
officers. This claim fails. Plaintiffs focus on the lack of written
policies
by
Defendant
Wilcher
on
medical
care
and
the
transportation of inmates to the hospital. (Doc. 184 at 11.) The
lack of written policy is not dispositive. Belcher v. City of
Foley, Ala., 30 F.3d 1390, 1397 (11th Cir. 1994), and evidence
shows that there was a policy in place on transporting inmates to
the hospital. Although Sheriff Wilcher may not have memorialized
his policy in writing in May 2016, Defendant Williams testified
37
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 38 of 45
that the
policy for transporting
an
inmate
who needs further
medical treatment is to (1) find out who the inmate is and how
they need to be transported, either by EMS or by car, (2) pull a
hard card, which is the information on the inmate, to determine
things like the escape risk and whether the inmate is a federal
inmate, (3) locate a deputy who is POST-certified to make the
transport, and (4) inform the captain of security, or the on-call
captain. (Doc. 92 at 26.) Defendant Williams further testified
that the process begins when medical contacts the Watch Commander
informing them of the need for further medical treatment. (Id.)
Defendant Milton similarly testified that there was a policy for
emergency
transport.
(Doc.
91
at
44-45.)
Defendant
Bryant
testified that there was a written policy in transporting prisoners
and that he was trained on this policy. (Doc. 88 at 19-20.)
Second, Plaintiffs have not established that it was obvious
that the officers needed more or different training. See Denham,
675 F. App'x at 942 (finding that providing medical training is
not analogous to the Supreme Court's hypothetical in Canton of
providing
use
of
force
training
where
officers
are
provided
firearms because the officers did not perform medical functions
and, to the extent the officer performed emergency medical care,
training was provided on that).
As in Denham, CCDC and Defendant
Wilcher had a policy in place for transporting inmates to the
hospital.
38
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 39 of 45
The
Court
now
reviews
the
second
area
that
Plaintiffs
identified: Defendant Wilcher's failure to create policies on the
provision of infirmary level care outside of the infirmary setting
when the infirmary was unavailable. Plaintiffs argue that ^Ms]ince
no one was trained on how to provide infirmary level care outside
of the infirmary, the likelihood that an inmate would receive
inadequate medical care was a certainty. Since the infirmary was
constantly full, the need to provide a policy and training on how
to provide the necessary medical care was obvious." (Doc. 184 at
13.) This claim also fails.
First, Plaintiffs have provided no evidence to support their
claim that Defendant Wilcher knew that the infirmary was constantly
full or that patients needing to be in the infirmary were placed
elsewhere because of infirmary capacity. The Court cannot find
that Defendant Wilcher's need to train on this issue was ^^obvious"
where there is no evidence in the record that this was a recurrent
issue or that he was personally aware of it. Gold, 151 F.3d at
1350
(""The
plaintiff
municipality
knew
of
must
a
need
present
to
some
train
evidence
and/or
that
supervise
the
in
a
particular area and the municipality made a deliberate choice not
to
take
Defendant
any
action.").
Wilcher
had
Second,
notice
there
that
is
his
no
indication
policies,
that
training
procedures, or supervision were so inadequate as to ''^likely to
result in the violation of a constitutional right." Denham, 675 F.
39
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 40 of 45
App'x at 942. Per the contract with Defendant Corizon, Defendant
Corizon
was
^^responsible
for
all
medical
care,
including
psychiatric but with the exclusion of psychologist, for all inmates
of the Detention Center" and was to provide ^'full staffing" to
include nursing coverage for the R&D area 24 hours a day, 7 days
a
week.
evidence
(Doc.
in
93, Attach. 15-16.) The
the
record
that
Defendant
Court does
Wilcher
was
not see
aware
any
that
Defendant Corizon was sending inmate patients to R&D area for
observation when the infirmary was full and that this practice
would likely result in the violation of a constitutional right.
See O'Kelley v. Craig, 781 F. App'x 888, 899 (11th Cir. 2019),
cert, denied, 206 L. Ed. 2d 713 (Apr. 6, 2020) (''Plaintiffs needed
to show that the Sheriff 'knew of a need to train and/or supervise
in a particular area and . . . made a deliberate choice not to
take any action.' (quoting Gold, 151 F.3d at 1350-51)); Williams,
198 F. App'x at 897. Finally, the Court again notes that the
Eleventh Circuit has been hesitant to find that the need for more
or different training is "so obvious" without prior constitutional
violations. See
Denham, 675 F. App'x at 942 (noting that the
Supreme Court "has never determined that the need for 'more or
different' training was obvious. It has 'only given a hypothetical
example. . . .' ").
Finally, the Court evaluates Plaintiffs' third area of policy
that constitutes deliberate indifference: the lack of a night shift
40
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 41 of 45
RN in the R&D area. Plaintiffs argue that Defendant Wilcher ''knew
that Corizon was understaffed and that the needed RN for R&D was
not on duty during the night shift." (Doc. 184 at 16.) Plaintiffs
cite to Defendant Wilcher's deposition for support for Wilcher's
apparent knowledge, however, the deposition filed is Defendant
Wilcher's deposition in another case, Ajibade v. Wilcher, No. 4:16CV-82
(S.D.
Ga.
2019).
(See
Doc.
131.)
Plaintiffs
have
not
presented any evidence that Defendant Wilcher had a policy or
practice of understaffing CCDC or that he was aware that Corizon
was understaffing CCDC. Moreover, there is no indication that
Defendant
Wilcher
had
notice
that
his
policies,
training
procedures, or supervision regarding medical personnel staffing in
the R&D area were so inadequate as to "likely to result in the
violation of a constitutional right." Thus, the Court finds that
Defendant Wilcher is entitled to summary judgment on the § 1983
claim against him. Sheriff Defendants' motion on this ground is
GRANTED.
D. Intentional
Infliction
of
Emotional
Distress
Against
Defendants Todd and Bryant
Sheriff Defendants move for summary judgment on the claims of
intentional infliction of emotional distress. Sheriff Defendants
argue that Plaintiffs have failed to state a claim against any of
the defendants. (Doc. 106 at 29.) The Court agrees.
41
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 42 of 45
In Georgia, the tort of intentional infliction of emotional
distress is comprised of the following elements:
[t]he conduct
must be intentional or reckless; (2) [t]he conduct must be extreme
and outrageous; (3) [t]here must be a causal connection between
the wrongful conduct and the emotional distress; and (4) [t]he
emotional distress must be severe." Jarrard v. United Parcel Serv.,
Inc., 242 Ga. App. 58, 59, 529 S.E.2d 144, 146 (Ga. Ct. App. 2000)
(internal quotation marks and citation omitted). Under Georgia
law, ''^extreme or outrageous conduct [is] conduct ^so outrageous in
character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.' " Fortson v. Carlson, 618
F. App'x 601, 609 (11th Cir. 2015) (quoting Yarbrouqh v. SAS Sys.,
Inc., 204 Ga. App. 428, 429, 419 S.E.2d 507, 509 (Ga. Ct. App.
1992)). The Court will evaluate each Defendant's conduct in turn.
1. Defendant Todd
Plaintiffs claim that Defendant Todd intentionally inflicted
emotional distress on Alexander by calling a signal 10-78 for
officer assistance instead of a signal 55 for medical help which
delayed the medical care Alexander sought. (Doc. 184 at 20.) The
Court finds that Sheriff Defendants' motion as to the intentional
infliction of emotional distress claim asserted against Defendant
Todd must be granted. Plaintiffs have not shown how the Defendant
Todd's act of calling a signal 10-78 instead of a signal 55 is one
42
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 43 of 45
that is
^so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded
as
atrocious,
and
utterly
intolerable
in
a
civilized
community.' " Carlson, 618 F. App'x at 609 (quoting Yarbrough, 204
Ga. App. at 429, 419 S.E.2d at 509). The Court finds that Defendant
Todd is entitled to summary judgment on Plaintiffs' intentional
infliction
of
emotional
distress
claim
against
him.
Sheriff
Defendants' motion on this ground is GRANTED.
2. Defendant Bryant
Plaintiffs
claim
that
Defendant
Bryant
intentionally
inflicted emotional distress on Alexander when he joked at the
hospital about cutting Alexander's leg off with a chainsaw. (Doc.
184 at 25.) The Court finds that Sheriff Defendants' motion as to
the intentional infliction of emotional distress claim asserted
against Defendant Bryant is also due to be granted. While a comment
by Defendant Bryant about cutting Alexander's leg off with a
chainsaw when Alexander was being advised by his doctor that he
would likely be facing amputation is insensitive and rude, the
Court does not find that this comment rises to level necessary to
sustain a claim for intentional infliction of emotional distress.
As stated, the inquiry requires the conduct to go beyond ^'all
possible bounds of decency." The Court does not find that to be
the case here. See Thornton v. Jackson, 998 F. Supp. 2d 1365, 1382
(N.D. Ga. 2014); Northside Hosp., Inc. v. Ruotanen, 246 Ga. App.
43
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 44 of 45
433, 435, 541 S.E.2d 66, 69 (Ga. Ct. App. 2000) (finding that
comments to the plaintiff concerning the release of her father's
body to her to be rude and insensitive in light of the plaintiff s
recent loss but insufficient to sustain a claim for intentional
infliction of emotional distress). The Court finds that Defendant
Bryant
is
infliction
entitled
of
to
emotional
summary
distress
judgment
claim
on
the
asserted
intentional
against
him.
Sheriff Defendants' motion on this ground is GRANTED.
III. PUNITIVE DAMAGES
Finally, Sheriff Defendants argue that Plaintiffs' punitive
damages claim fails because all underlying tort claims against the
Sheriff Defendants must be dismissed. (Doc. 106 at 30.) Because
this Court has granted summary judgment to Defendants Todd, Milton,
and
Wilcher
on
all
of
Plaintiffs'
claims
against
them,
any
derivative claims for punitive damages must be dismissed. See
Butler V. Ga. Dep't of Corr., No. 6:18-CV-170, 2018 WL 6729647, at
*7 (S.D. Ga. Dec. 21, 2018), appeal dismissed. No. 19-10249-AA,
2019 WL 1858369 (11th Cir. Feb. 28, 2019); Lewis v. Meredith Corp.,
293 Ga. App. 747, 750, 667 S.E.2d 716, 719 (Ga. Ct. App. 2008)
("Under Georgia law, a plaintiff cannot recover punitive damages
when the underlying tort claim fails."). As a result. Sheriff
Defendants'
punitive
motion
damages
seeking
claim
summary
against
judgment
Defendants
on
Todd,
Plaintiffs'
Milton,
and
Wilcher is GRANTED. However, because a genuine dispute of material
44
Case 4:18-cv-00099-WTM-CLR Document 239 Filed 09/10/20 Page 45 of 45
fact remains on Plaintiffs' § 1983 claims against Defendants Bryant
and
Williams in
their
individual capacities, the
Court DENIES
Sheriff Defendants' motion to the extent it seeks summary judgment
on the punitive damages asserted against these Defendants.
CONCLUSION
For the foregoing reasons, Sheriff Defendants' Motion for
Summary Judgment {Doc. 105) is GRANTED IN PART and DENIED IN PART.
Plaintiffs' § 1983 and punitive damages claims against Defendants
Bryant and Williams remain.
SO ORDERED this /^*^day of September 2020.
WILLIAM T. MOORE, JR.'
UNITED STATES DISTRICT COURT
SOUTHERN
45
DISTRICT OF GEORGIA
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