Jemme J. Jenkins, Individually, and Administrator of the Estate of Jimmie Lee Alexander, Sr. v. Corizon Health Inc. et al
Filing
240
ORDER granting 117 Motion for Partial Summary Judgment on Deliberate Indifference, Punitive Damages, and Attorneys' Fees. Signed by Judge William T. Moore, Jr. on 09/10/2020. (JH)
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 1 of 22
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
C'Corizon")
the
Court
Partial
is
Defendant
Motion for
Corizon
Summary
Health
Judgment on
Inc.'s
Deliberate
Indifference, Punitive Damages, and Attorneys' Fees. (Doc. 117.)
For the following reasons. Defendant Corizon's motion 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
detainee
at
Chatham
County
Detention
Center
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 2 of 22
{''CCDC").
(Doc.
detention,
86,
Attach.
Defendant Corizon
2.)
At
the
time
of
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.) Corizon
Defendant Mark
Dambach
also employed
("Dambach"), a licensed practical nurse
C'LPN"), and Defendant Victoria Neisler ('"Neisler"), also an LPN.
(Doc.
150
at
17-18;
Doc.
154
at
33.)
Jimmie
Alexander,
Sr.
(""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
hypertension,
a
process
smoking
that
history
his
of
medical
over
history
twenty
included
years,
transient ischemic attack (""TIA") that occurred in
March
and
a
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
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
^ 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 240 Filed 09/10/20 Page 3 of 22
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 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. (Doc. 150 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 housed in, and was dragging his right leg. (Doc. 96 at SISI 3031; Doc. 145 at fSI 30-31.) At approximately 9:45 p.m., Dambach
administered the above medications to Alexander. (Doc. 150 at 118.)
Dambach did not examine Alexander when he gave him the medications.
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 4 of 22
(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 111 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
39; Doc. 145 at
38-
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-
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.
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 5 of 22
(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. (Doc. 156 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
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
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 6 of 22
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.)
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
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 240 Filed 09/10/20 Page 7 of 22
that Kelly-James had been contacted. Defendant 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
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.)
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 8 of 22
Alexander had blood specimens drawn at 2:05 a.m. on May 24,
2016. (Doc. 11, 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. (Doc. 77, Attach. 1 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. (Doc. 77, Attach. 1 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
found that the excessive potassium and other toxins released during
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 9 of 22
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
paid 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
care,
including
psychiatric
but
had assumed
with
the
all medical
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:
(1) in the Medical Unit 24 hours a day, 7 days a week, (2) in the
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 10 of 22
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
between
regarding
that ''there
9
was
Nurses
recognize
at
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 240 Filed 09/10/20 Page 11 of 22
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 240 Filed 09/10/20 Page 12 of 22
Todd, Milton, Williams, and Bryant, (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), 'Ma] 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, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (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
12
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 13 of 22
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, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 {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, 106 S. Ct. at 2553. 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, 106 S. Ct. at 1356.
However, the nonmoving party '"must do more than simply show that
there is some metaphysical doubt as to the material facts." Id.,
475 U.S. at 586, 106 S. Ct. at 1356. 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).
13
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 14 of 22
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.
DELIBERATE INDIFFERENCE
In its motion, Corizon argues that it is entitled to summary
judgment on Plaintiffs' claim of deliberate indifference against
it because (1) there is no evidence that any Corizon employee
violated Alexander's constitutional rights or that Corizon itself
violated Alexander's constitutional rights, and (2) Plaintiffs
have not presented evidence supporting a custom or policy that
constituted deliberate indifference. (Doc. 117, Attach. 1 at 11-
12.) In response. Plaintiffs argue that a question of fact exists
as
to
Corizon's
deliberate
indifference
and
contends
that
(1)
Corizon had no policy or training on the provision of infirmary
level observation care outside of the infirmary, (2) Corizon failed
to train Neisler on how to develop a plan of care, and (3) Corizon
understaffed the R&D area of CCDC and this staffing decision was
based on a policy on avoiding costs. (Doc. 194 at 15-23.)
To impose § 1983 liability on a municipality, a plaintiff
must show: "(1) that his constitutional rights were violated; (2)
that the municipality had a custom or policy that constituted
14
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 15 of 22
deliberate indifference to that constitutional right; and (3) that
the policy or custom caused the violation." McDowell v. Brown, 392
F.3d 1283, 1289 (11th Cir. 2004). A municipality may be liable
under § 1983 only where "'the deprivation at issue was undertaken
pursuant to city ^custom' or ^policy,' and not simply on the basis
of respondeat superior." Brown v. City of Fort Lauderdale, 923
F.2d 1474, 1479 (11th Cir. 1991). To prove § 1983 liability against
a municipality based on custom, ''a
plaintiff must establish a
widespread practice that, although not authorized by written law
or express municipal policy, is so permanent and well settled as
to constitute a custom or usage with the force of law." Id. at
1481
(internal
quotation
marks
and
citation
omitted). Because
Chatham County contracted its provision of inmate medical care out
to Corizon, Corizon can be held liable like a municipality under
§ 1983. Denham v. Corizon Health, Inc., 675 F. App'x 935, 940 (11th
Cir. 2017); Fields v. Corizon Health, Inc., 490 F. App'x 174, 181
(11th Cir. 2012). Corizon cannot be liable merely because of the
conduct of its employees. Denham, 675 F. App'x at 940 (citing
McDowell V. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004)).
First, Plaintiffs argue that Corizon had a policy of placing
patients needing infirmary level care in R&D until a bed became
available in the infirmary. (Doc. 194 at 17-18.) Plaintiffs argue
that this policy ^'creat[ed] recurrent situations when patients
would likely be denied timely and adequate medical care." (Id. at
15
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 16 of 22
17.) Even presupposing that the failure to provide infirmary level
care outside of the infirmary is a constitutional violation and
there
is
evidence
to
support
such
a
violation
in
this
case,
Plaintiffs have still failed to show that Corizon had a policy or
custom. Other than this instant case with Alexander, Plaintiffs
have not cited to any evidence in which an inmate-patient was
placed
in
R&D
instead
constitutionally
of
adequate
infirmary
care.
and
While
did
not
Plaintiffs
receive
cite
to
deposition testimony that the infirmary was often full, there is
no evidence that those inmates were denied timely and adequate
medical
care.
See
Denham,
675
F.
App'x
at
94 4
(finding
that
plaintiff failed to establish Corizon had a policy of deliberate
indifference because her claim rested only on her experiences and
noting that a single incident of unconstitutional activity is
insufficient to impose liability under § 1983); Craig v. Floyd
Cty., Ga., 643 F.3d 1306, 1311 (11th Cir. 2011). Moreover, because
Plaintiffs
have
failed
to
identify
a
pattern
of
similar
constitutional violations, they have not established that Corizon
knew
of a
need for more or different training related to the
provision of infirmary level medical care. See Denham, 675 F. App'x
at 942.
Second, Plaintiffs' contend that Corizon's failure to train
Neisler on how to develop a plan of care constitutes deliberate
indifference. (Doc. 194 at 18-19.) Plaintiffs' claim on this ground
16
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 17 of 22
fails for the same reason previously discussed: Plaintiffs have
presented no evidence that Corizon had a policy or custom of
failing to teach its medical staff and employees how to create a
plan of care for a patient. Again, even if this Court found that
not developing a plan of care rose to the level of deliberate
indifference. Plaintiffs have not shown how this was a widespread
practice or a policy of Corizon's.^ Plaintiffs have only pointed
to
this
one
act
of
Neisler
which
is
insufficient
to
impose
liability. See Craig, 643 F.3d at 1312. Moreover, as to the failure
to train claim,
[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.'
Denham, 675 F. App'x at 942 (quoting City of Canton v. Harris, 489
U.S. at 378, 390, 390 n.lO, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d
412). Again, "[b]ecause [Plaintiffs] failed to identify a pattern
of
similar
established
constitutional
that
violations,
[Corizon
[they]
employees]
so
also
ha[ve]
often
not
violate
3 This Court has granted summary judgment to Defendant Neisler and
does not find any of her conduct to have violated Alexander's
constitutional rights. (See Doc. 235.)
17
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 18 of 22
constitutional rights that the need for further [plan of care]
training
must
have
policymakers." Id.
Corizon's
inadequacy
been
plainly
Plaintiffs
in
have
training
obvious
also
LPNs
to
failed
and
[Corizon]
to
nursing
show
staff
how
on
developing plans of care was ^'so likely to result in the violation
of constitutional rights" as to warrant different or more training.
Denham/ 675 F. App'x at 942.
Finally, Plaintiffs' argue that Corizon understaffed CCDC and
the understaffing was based on a policy decision to avoid costs.
(Doc. 194 at 20.) First, Plaintiffs have not shown that the failure
to staff a nightshift RN in R&D was constitutionally deficient.
Plaintiffs essentially argue that the medical staff in R&D, LPNs,
are not good enough and that the failure to have a higher level of
nurse is deliberate indifference. Plaintiffs, however, cite to no
authority
deliberate
that
having
indifference
an
LPN
or
instead
otherwise
of
an
RN
violates
constitutes
an
inmate's
constitutional rights. See Grochowski v. Clayton Cty., Ga. through
Turner, 961 F.3d 1311, 1321-22 (11th Cir. 2020) (finding that the
plaintiffs failed to show how the jail's staffing fell below a
constitutional minima); Free v. Granger, 887 F.2d 1552, 1556 (11th
Cir. 1989) (^^It is not sufficient, however, to point to the absence
of a medical doctor, or of a round-the-clock nurse, and decry the
staffing policy as unconstitutional.").
18
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 19 of 22
Additionally, Plaintiffs cannot "rely on a generalized policy
of understaffing," but must show that Corizon's action was " 'taken
with the requisite degree of culpability . . . with deliberate
indifference to its known or obvious consequences.' " Trammell v.
Paxton, 322 F. App'x 907, 911 (11th Cir. 2009) (quoting McDowell,
392 F.3d at 1291). Plaintiffs have failed to demonstrate another
occasion on which the lack of a nightshift RN in R&D contributed
to or exacerbated an inmate's medical condition. See McDowell, 392
F.3d at 1290-91 (finding that the plaintiff failed to present
evidence of another occasion in which the jail's understaffing,
and
resulting
inability
to
transport,
contributed
to
or
exacerbated an inmate's medical condition and, therefore, there
was no evidence of a policy of understaffing at the jail). Thus,
the Court finds that Plaintiffs cannot show that Corizon's decision
not to staff a nightshift RN was done with deliberate indifference
to Alexander's constitutional rights.
Ultimately,
Plaintiffs
rely on
Alexander's experience
at
CCDC. However, "an isolated incident is insufficient" to impose
liability on Corizon. McDowell, 392 F.3d at 1290. Thus, Corizon's
motion for summary judgment is GRANTED.
II.
PUNITIVE DAMAGES AND ATTORNEYS' FEES
Corizon also moves for summary judgment on Plaintiffs' claims
for punitive damages and attorneys' fees. (Doc. 117, Attach. 1 at
20-21.) Corizon argues that there is no evidence to support the
19
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 20 of 22
recovery of punitive damages as a matter of law because no Corizon
committed
a tort
with
the
requisite
degree
of culpability to
support a punitive damages award and because there is no culpable
conduct by Corizon itself. (Id. at 21.) In response. Plaintiffs
argue that evidence supports a jury question on punitive damages
on Plaintiffs' § 1983 claim because Plaintiffs "ha[ve] shown that
Corizon
had
knowledge of its deficiencies and did
correct
them,
allowing
patients
to
be
placed
at
nothing to
risk
for
constitutionally deprivation [sic] of medical care." (Doc. 194 at
23.) Plaintiffs
also
argue
that
there
is
a
jury question
on
punitive damages in their survival action because they do not need
to show a policy decision as the basis for punitive damages and
punitive
damages
can
be
supported
with
claims
of
corporate
negligence. (Id.)
First, because the Court finds that Corizon is entitled to
summary judgment on Plaintiffs' § 1983 claim against it, Corizon's
motion for summary judgment on Plaintiffs' derivate claim for
punitive damages is due to be granted as well. The Court finds
that Corizon is also entitled to summary judgment on Plaintiffs'
claim for punitive damages in the survival action. 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."
20
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 21 of 22
Plaintiffs, in response to Corizon's motion for summary judgment,
do
not
argue
that
Corizon's
conduct
demonstrates
"willful
misconduct, malice, fraud, wantonness, oppression, or that entire
want
of
care
indifference
which
to
would
raise
the
consequences,"
but
presumption
instead
of
argues
conscious
that
its
punitive damages claim can be based upon "corporate negligence,
including failure to train," and cites a Georgia Court of Appeals
decision from 2019. (Doc. 194 at 24.) The Georgia Court of Appeals
reconsidered the opinion Plaintiffs cite to and ultimately found
that, because the plaintiffs' substantive claims were subject to
summary judgment, their derivative claims for punitive damages
likewise failed. Oconee Fed. Sav. & Loan Ass'n v. Brown, 351 Ga.
App. 561, 576, 831 S.E.2d 222, 234 (2019), cert, dismissed (Mar.
13, 2020). In absence of any argument that Corizon's conduct showed
"willful misconduct,
that entire
malice, fraud,
want of care which
wantonness, oppression,
or
would raise the presumption of
conscious indifference to consequences" or authority supporting
Plaintiffs'
claim that
punitive
damages
may lie
for
negligence, Corizon's motion for summary judgment on
corporate
punitive
damage is due to be granted.
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. 194
at 23-24.) 42 U.S.C. § 1988 allows a court to award attorneys'
21
Case 4:18-cv-00099-WTM-CLR Document 240 Filed 09/10/20 Page 22 of 22
fees to a prevailing party in § 1983 actions. However, because the
Court
finds
that
Corizon
is
entitled
to
summary
judgment
on
Plaintiffs' § 1983 claim against it, Corizon's motion for summary
judgment on attorneys' fees is due to be granted as well. Corizon's
motion for summary judgment on Plaintiffs' claims for punitive
damages and attorneys' fees is GRANTED.
CONCLUSION
For the foregoing reasons, Defendant Corizon's Partial Motion
for Summary Judgment on Deliberate Indifference, Punitive Damages,
and Attorneys' Fees (Doc. 117) is GRANTED.
SO ORDERED this
day of September 2020.
WILLIAM T. MOORE, JR.
UNITED STATES DISTRICT COURT
SOUTHERN
22
DISTRICT OF GEORGIA
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