Presley v. City of Blackshear et al

Filing 114

ORDER granting 52 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 12/31/08. (slt)

In the United States District Court for the Southern District of Georgia Waycross Division
BRENDA and the as PRESLEY, the Individually, of : : CIVIL ACTION

Administratrix of Antonio

Estate

Presley,

decedent,

Plaintiff,

v.

CITY

OF

BLACKSHEAR, DEPARTMENT, POLICE

BLACKSHEAR FORMER MOCK,

POLICE CHIEF

OF

JAMES in

Individually Official former City of

and

his the of the

Capacity of

as

Chief

Police

Blackshear, Individually

LT. and

GEORGE in the

SMILEY, his

Official

Capacity

for

Blackshear OFFICER

Police K.

Department, EVANS, his the

GREGORY

Individually Official

and

in

Capacity Police

for

Blackshear OFFICER

Department, W. CARTER,

CHRISTOPHER and in

Individually Official

his the

Capacity Police

for

Blackshear PIERCE

Department, COUNTY SHERIFF and

COUNTY,

PIERCE

SHERIFF'S RICHARD in his

DEPARTMENT,

KING,

Individually Capacity County DET. as

Official of

Sheriff

Pierce

Sheriff's JOHN

Department, BENNETT, and in

RAMSEY

Individually Official Pierce

his the

Capacity

for

County

Sheriff's LEE his HUNT,

Department,

RAYMOND and in

Individually

Official Pierce County DAPHNE and for in the

Capacity

for

the

County

Jail,

Pierce

Sheriff's G. her VAN,

Department,

Individually Capacity Jail,

Official

Pierce County

County

Pierce

Sheriff's COUNTY

Department, EMERGENCY DIRECTOR THE

PIERCE

MEDICAL KENNETH COUNTY

SERVICES, L. JUSTICE OF

PIERCE

EMERGENCY

MEDICAL

DEPARTMENT, and in his the Pierce

Individually Official Director County

Capacity of the

as

of

the

Emergency

Medical DAVID and for in the

Services, FARRIOR, his

PARAMEDIC

Individually Capacity

Official County

Pierce Medical ALFRED

Emergency PARAMEDIC

Services, DAVIS, and

KENT

Individually Official Pierce Medical

in

his the

Capacity

for

County

Emergency EMTANDREAE, her the

Services, LORNE and

INTERMEDIATE Individually Official Pierce Medical 10,

in

Capacity

for

County

Emergency JOHN and DOES in 1

Services,

Individually

the

Official of

Capacities

for

City

Blackshear,

Blackshear Pierce

Police County,

Department, Pierce

County Pierce

Sheriff's County

Department,

Emergency

Medical

Services,

Defendants.

NO.

CV507-094

2

ORDER

Plaintiff

Brenda

Presley,

individually

and

as

the

Administratrix

of

the

Estate

of

Antonio

Presley,

Decedent,

filed

the

above-captioned

case

against

Defendants,

asserting

claims

for

denial

of

essential

medical

care,

under

42

U.5.C.

§

1983,

and

state-law

claims

for

medical

malpractice

and

negligence.

Presently

before

the

Court

is

Defendants'

motion

for

summary

judgment.

For

the

reasons

set

forth

below,

Defendants'

motion

will

be

GRANTED.

BACKGROUND

I.

The

Parties

Plaintiff

is

a

resident

of

Blackshear

in

Pierce

County

Georgia.

5he

is

the

Decedent's

mother

and

the

administratrix

of

Decedent's

estate.

Defendant

City

of

Blackshear

is

a

political

subdivision

of

the

5tate

of

Georgia

located

in

Pierce

County,

Georgia.

Defendant

Blackshear

Police

Department

is

an

entity

of

the

City

of

Blackshear.

Defendant

James

Mock

was

at

all

times

relevant

to

this

case

the

Chief

of

Police

for

the

City

of

3

Blackshear.

Defendant

George

Smiley

was

at

all

times

relevant

to

this

case

a

Lieutenant

with

the

Blackshear

Police

Department

and

was

the

head

of

the

Department's

Patrol

and

Training

Division.

Defendants

Gregory

Evans

and

Christopher

Carter

were

at

all

times

relevant

to

this

case

police

officers

with

the

Blackshear

Police

Department.

Defendant

Pierce

County

is

a

political

subdivision

of

the

State

of

Georgia.

Defendant

Pierce

County

Sheriff's

Department

is

an

entity

of

Pierce

County.

Defendant

Richard

King

was

at

all

times

relevant

to

this

case

the

Sheriff

of

Pierce

County.

Defendant

John

Ramsey

Bennett

was

at

all

times

relevant

to

this

case

an

employee

of

Sheriff

King.

1

Defendants

Raymond

Lee

Hunt

and

Daphne

G.

Van

were

at

all

times

relevant

to

this

case

jailers

at

the

Pierce

County

jail.

Defendant

Pierce

County

Emergency

Medical

Services

("Pierce

County

EMS")

is

a

recognized

legal

entity

located

in

Pierce

County,

Georgia.

Defendant

Kenneth

L.

Justice

was

at

all

times

relevant

to

this

case

the

department

head

in

charge

1 was

In

her

complaint,

Plaintiff to as

asserts case

that

Defendant by the

Bennett Pierce

at

all

times

relevant

this a

employed

County ¶ 20.

Sheriff's In their

Department

detective/investigator. deny this allegation, Answer

Complaint but by admit

answer, "an ¶

Defendants of

that

Bennett

was

employee

Sheriff

King."

Pierce

County

Defendants

20.

4

of

Pierce

County

EMS. 2

Defendants

David

Farrior

and

Alfred

Kent

Davis

were

at

all

times

relevant

to

this

case

paramedics

with

Pierce

County

EMS.

Defendant

Lorne

Andreae

was

at

all

times

relevant

to

this

case

either

a

paramedic

or

an

emergency

medical

technician

with

Pierce

County

EMS.

3

Defendants

John

Does

1-10

were

at

all

times

relevant

to

this

case

employed

by

the

City

of

Blackshear,

the

Blackshear

Police

Department,

Pierce

County,

the

Pierce

County

Sheriff's

Department,

or

Pierce

County

EMS.

II.

Decedent's

Detention

and

Death

The

evidence

shows

that,

on

November

30,

2005,

Decedent

was

stopped

by

Defendant

Evans,

an

officer

with

the

Blackshear

Police

Department,

as

he

walked

down

Youmans

Street

in

Blackshear,

Georgia.

Defendants'

Statement

of

Undisputed

2 Plaintiff Pierce admit County

asserts EMS.

that

Defendant ¶ 28.

Justice

is

the

Director this,

of

Complaint Justice but that is

Defendants

deny in

but of

that

Defendant EMS,

the

"department County

head

charge"

Pierce

County to ¶

"the

Commission by

retains

the

authority Defendants

review

his

decisions." also admit

Answer that

Pierce

County is and

26. for

Defendants "hiring,

Defendant

Justice

responsible

training,

supervision,

termination,

conduct of persons employed by" Pierce County EMS, "though his role remains Pierce subject to review ¶ by 29. the County Commission." Answer by

County

Defendants

3 Plaintiff Pierce however, County and

asserts EMS.

that

Defendant ¶ is

Andreae

is

a

paramedic deny

with

Complaint Andreae

35.

Defendants an

this, medical

assert Answer

that by

instead

emergency ¶ 35.

technician.

Pierce

County

Defendants

5

Material

Facts

¶¶

3,

5.

According

to

Officer

Evans,

he

initially

stopped

Decedent

to

investigate

a

warrant

which

he

believed

to

be

still

active,

related

to

a

prior

Georgia

Bureau

of

Investigation

drug

roundup.

Id.

¶

6.

However,

Defendants

admit

that,

at

the

time

of

the

stop­-and,

according

to

Defendants,

unbeknownst

to

Officer

Evans--there

was

no

arrest

warrant

pending

for

Decedent.

Answer

by

City

of

Blackshear

Defendants

¶

16.

According

to

Officer

Evans,

upon

exiting

his

patrol

car

to

speak

with

Decedent,

Decedent

began

to

run.

Defendants'

Statement

of

Facts

¶

8.

When

Decedent

started

to

run,

Officer

Evans

grabbed

him

by

the

shirt

to

prevent

his

flight.

A

struggle

then

ensued

between

Decedent

and

Officer

Evans.

Id.

In

his

incident

report,

Officer

Evans

states

that,

during

this

struggle,

he

observed

Decedent

"trying

to

hide

and

discard

something"

and

that

Decedent

"kept

his

hands

in

front

of

him

at

his

waist"

and

"appeared

to

be

taking

something

out

of

the

waist

area

of

his

pants."

Gregory

K.

Evans

Incident

Report

at

1,

Exhibit

"A"

to

Defendants'

Motion

for

Summary

Judgment.

Officer

Evans'

report

also

indicates

that,

after

an

empty

orange

pill

bottle

dropped

from

Decedent's

front

waist,

Decedent

"placed

his

left

hand

up

to

his

mouth

approximately

6

three

times."

Id.

Officer

Evans

admits

that,

based

on

his

observations,

it

appeared

to

him

as

though

Decedent

had

swallowed

something,

and

that

it

was

probably

some

sort

of

drugs.

Answer

by

City

of

Blackshear

Defendants

¶

18.

However,

Evans

testified

in

his

deposition

that

he

did

not

observe

Decedent

actually

putting

anything

into

his

mouth.

Gregory

Evans

Dep.

26.

According

to

Evans,

he

asked

Decedent

several

times

if

he

had

swallowed

anything,

and

Decedent

repeatedly

denied

that

he

had.

Evans

Dep.

18,

20,

25.

Defendant

Carter,

another

officer

with

the

Blackshear

Police

Department,

and

Defendant

Bennett,

of

the

Pierce

County

Sheriff's

Office,

both

arrived

at

the

location

of

the

stop

in

order

to

assist

Officer

Evans.

Complaint

¶

42;

Chris

Carter

Incident

Report

at

3,

Exhibit

"A"

to

Defendants'

Motion

for

Summary

Judgment;

Ramsey

Bennett

Incident

Report

at

3,

Exhibit

"B"

to

Defendants'

Motion

for

Summary

Judgment.

Officer

Evans

informed

Carter

and

Bennett

of

what

had

happened,

and

asked

them

to

assist

him

in

looking

for

a

substance

that

Decedent

had

discarded

during

the

struggle.

Evans

Incident

Report

at

1.

Upon

searching

the

area,

Officer

Carter

found

what

appeared

to

be

a

small

block

of

crack

cocaine.

Carter

Incident

Report

at

3.

Bennett

then

tested

7

the

substance

and

it

tested

positive

for

cocaine.

Bennett

Incident

Report

at

3.

Ultimately,

Officer

Evans

arrested

Decedent

and

charged

him

with

obstruction

of

a

law

enforcement

officer

and

possession

of

crack

cocaine.

Defendants'

Statement

of

Facts

¶

11.

Evans

proceeded

to

transport

Decedent

to

the

Pierce

County

Jail.

Id.

¶

12.

When

Decedent

arrived

at

the

jail,

he

smelled

of

alcohol

and,

according

to

Defendant

Hunt­-a

jailer

at

the

Pierce

County

Jail--Decedent

had

"glassy

eyes."

Complaint

¶

43;

Defendants'

Statement

of

Facts

¶

47;

Raymond

Hunt

Dep.

19.

Decedent

was

placed

in

the

jail's

holding

cell

by

Jailer

Hunt.

Defendants'

Statement

of

Facts

¶

48.

Early

the

next

morning,

December

1,

at

approximately

2:00

A.M.

while

doing

rounds

in

the

jail,

Defendant

Hunt

heard

another

inmate,

John

Myles,

yelling

from

the

holding

cell

where

Decedent

was

located.

Id.

¶

49.

When

he

went

to

investigate,

Hunt

saw

Decedent

lying

on

the

floor,

asleep,

with

what

appeared

to

Hunt

to

be

drool

coming

out

of

the

sides

of

Decedent's

mouth.

Hunt

Dep.

16.

Mr.

Myles

told

Hunt

that

Decedent

"had

been

shaking

real

badly"

and

had

"hit

his

head

on

the

floor."

Id.

17.

Because

Decedent

was

unresponsive,

8

Hunt

told

a

fellow

jail

employee

to

call

EMS

and

Office

Evans.

Id.

In

response

to

this

request,

Defendant

Farrior,

a

paramedic

with

Pierce

County

EMS,

arrived

at

the

jail

at

2:12

A.M.

Complaint

¶

46;

David

Farrior

Transport

Report

at

1,

Exhibit

"C"

to

Defendants'

Motion

for

Summary

Judgment.

Farrior

first

made

contact

with

Decedent

in

his

cell

one

minute

later,

at

2:13

A.M.

Transport

Report

at

1.

Although

there

were

two

other

paramedics

on

duty

at

Pierce

County

EMS

that

morning,

Farrior

admits

that

he

responded

to

the

call

alone.

Farrior

Dep.

20.

According

to

Farrior's

testimony,

Officer

Evans,

who

was

in

Decedent's

cell

with

Farrior

during

Farrior's

examination,

did

not

tell

Farrior

of

his

suspicions

that

Decedent

had

ingested

cocaine

earlier

in

the

evening.

Id.

at

14.

Further,

when

Farrior

asked

Decedent

whether

he

had

ingested

any

drugs,

Decedent

responded

that

he

had

not.

Id.

at

18.

Mr.

Myles,

Decedent's

cell-mate,

told

Farrior

that

he

had

witnessed

Decedent

"jerk"

for

approximately

two

seconds

and

that

Decedent

appeared

to

have

"foam"

coming

from

his

mouth.

Id.

at

15-16.

According

to

Farrior,

when

he

asked

Decedent

whether

he

remembered

this,

Decedent

responded

that

he

did

9

not.

Id.

at

15.

In

his

deposition,

Farrior

testified

that

he

questioned

Decedent

about

his

medical

history,

and

that

Decedent

denied

having

any

history

of

seizures.

Id.

at

16.

According

to

Farrior,

he

then

checked

Decedent

for

any

signs

of

a

possible

seizure.

Id.

at

18.

This

included

a

check

of

Decedent's

vital

signs,

blood

pressure,

pulse,

and

oxygen

saturation.

Id.

at

19.

He

also

checked

Decedent's

mouth,

"listened

to

his

breath

sounds,

looked

at

his

pupils,

[and]

checked

his

stomach."

Id.

Based

on

the

results

of

his

examination,

Farrior

concluded

that

Decedent

had

no

"neurological

deficits"

normally

associated

with

a

seizure.

Id.

Farrior

testified

that

based

on

the

examination,

as

well

as

what

Decedent

told

him,

he

had

no

reason

to

think

there

was

anything

to

worry

about.

Id.

at

20-21.

Farrior

concluded

that

Decedent

required

no

further

treatment

and

left

the

jail

at

2:25

A.M.,

twelve

minutes

after

first

making

contact

with

Decedent.

Farrior

Transport

Report

at

1.

Approximately

thirty

minutes

later,

at

2:52

A.M.,

Defendant

Van,

another

jailer

at

the

Pierce

County

Jail,

was

advised

to

check

on

Decedent

in

his

cell.

Defendants'

Statement

of

Facts

¶

56;

Complaint

¶

47.

Upon

her

arrival,

Van

observed

Mr.

Myles

holding

Decedent's

head

up

with

a

10

blanket.

Id.

According

to

Van,

Decedent's

eyes

appeared

glassy,

he

was

foaming

at

the

mouth,

and

his

heart

was

beating

fast.

Daphne

Van

Incident

Supplemental

Report

at

4,

Exhibit

"B"

to

Defendants'

Motion

for

Summary

Judgment.

Van

also

observed

Decedent

"jerking

and

hitting

his

head

on

the

floor."

Id.

Mr.

Myles

advised

Van

that

Decedent

had

told

him

that

he

had

eaten

a

"handful

of

crack"

just

before

Officer

Evans

arrested

him.

Id.

Van

immediately

made

a

request

for

Pierce

County

EMS.

Id.

In

response

to

this

second

call,

Defendant

Farrior

arrived

at

the

jail

at

2:57

A.M. 4Transport

Report

at

1.

Upon

arriving

at

Decedent's

cell,

Van

told

Farrior

that,

according

to

Myles,

Decedent

had

ingested

crack

earlier

in

the

evening.

Daphne

Van

Dep.

12.

According

to

the

testimony

of

Defendant

Davis,

as

he

and

Defendant

Andreae

arrived

at

the

jail

just

minutes

after

Farrior

arrived,

Farrior

met

him

in

the

hallway

to

Decedent's

cell

and

advised

him

of

the

4 According before jail

to

Farrior's Davis and

testimony, Andreae

he

arrived he

at

the

jail the

Defendants foot, Dep.

because

responded in due an to

to

on

while 23-24.

Davis

and

Andreae

arrived that,

ambulance. the close

Farrior

Farrior

testified

proximity between the EMS' building and the jail­-approximately 100 feet--a get that person in can actually get Id. to at the 37. on jail faster than a crew can

there

an

ambulance. to

Plaintiff so at that 16.

claims, he

however, smoke a

Farrior on

traveled the way.

the

jail

foot

could

cigarette

Plaintiff's

Brief

11

situation.

Alfred

Davis

Dep.

14.

Davis

then

provided

Farrior

with

a

"jump

bag"

and

went

back

to

the

ambulance

with

Andreae

to

get

a

cardiac

monitor,

airway

bag,

and

a

stretcher.

Davis

Dep.

19-20.

According

to

Davis,

Farrior

immediately

went

back

to

Decedent's

cell

and

began

treatment

on

Decedent.

Id.

Farrior

testified

that

he

began

CPR

and

basic

cardiac

life

support

("BCLS")

on

Decedent

while

still

in

the

holding

cell.

Farrior

Dep.

27.

Once

Davis

and

Andreae

arrived

in

the

cell

with

the

stretcher,

Decedent

was

moved

to

the

ambulance.

Id.

The

ambulance

departed

the

jail

at

3:10

A.M.

Transport

Report

at

1.

5

Defendants

Farrior,

Andreae

and

Davis

continued

to

perform

life

support

efforts

upon

Decedent

while

in

the

ambulance

on

the

way

to

the

Satilla

Regional

Medical

Center

in

Waycross,

Georgia.

Farrior

Dep.

25-32.

The

ambulance

arrived

at

the

hospital's

Emergency

Room

at

3:20

A.M.,

ten

minutes

after

departing

from

the

jail.

Transport

Report

at

1.

5 There the

are

several

inconsistencies visit to the

in

the

testimony

regarding while in the to

paramedics' testified and

second that,

jail.

For

instance, met him

Davis

upon

his

arrival, back

Farrior to

hallway

then

immediately after

went

Decedent's bag,"

cell

administer

treatment

grabbing

his

"jump

Defendant

Hunt

wrote in his incident report that Farrior "ran down the hallway and out the front and 2 door" other and that he "came right back at in 5. with a

stretcher

EMT'S."

Hunt

Incident

Report

12

Decedent

remained

on

life

support

at

Satilla

Regional

Medical

Center

and

was

then

placed

at

the

Jesup

Healthcare

Center.

Complaint

¶

49.

According

to

Plaintiff,

Decedent

never

regained

consciousness

and

never

recovered

from

the

seizures

and

cardiac

arrest.

Id.

He

died

on

January

22,

2006.

Id.

SUMMARY

JUDGMENT

STANDARD

Federal

Rule

of

Civil

Procedure

56(c)

provides

for

summary

judgment

"if

the

pleadings,

depositions,

answers

to

interrogatories,

and

admissions

on

file,

together

with

the

affidavits,

if

any,

show

there

is

no

genuine

issue

as

to

any

material

fact

and

the

moving

party

is

entitled

to

judgment

as

a

matter

of

law."

Celotex

Corp.

v.

Catrett,

477

U.S.

317,

322

(1986)

.

Facts

are

"material"

if

they

could

affect

the

outcome

of

the

suit

under

the

governing

substantive

law.

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

248

(1986).

The

Court

must

view

the

facts

in

the

light

most

favorable

to

the

non-moving

party,

Matsushita

Elec.

Indus.

Co.

v.

Zenith

Radio

Corp.,

475

U.S.

574,

587

(1986),

and

must

draw

"all

justifiable

inferences

in

his

favor."

United

States

v.

Four

13

Parcels

of

Real

Prop.,

941

F.2d

1428,

1437

(11th

Cir.

1991)

(en

banc)

(internal

quotation

marks

omitted).

DISCUSSION

In

her

complaint,

Plaintiff

asserted

seven

separate

causes

of

action

against

seventeen

separate

Defendants.

To

complicate

matters

further,

many

of

these

Defendants

were

sued

in

both

their

official

and

individual

capacities.

The

complaint

alleged

claims

for

wrongful

and

excessive

detention,

and

denial

of

essential

medical

care

under

§

1983,

as

well

as

state-law

claims

for

medical

malpractice,

negligence,

false

imprisonment,

intentional

infliction

of

emotional

distress,

and

medical

expenses.

In

Davis

v.

Coca-Cola

Bottling

Co.

Consolidated,

516

F.3d

955,

979-84

(11th

Cir.

2008),

the

Eleventh

Circuit

imposed

upon

District

Courts

the

responsibility

to

address

thoroughly

and

methodically

all

facts,

claims

and

defenses

presented

in

connection

with

summary

judgment

motions

in

multiple

claim,

multiple

party

cases

such

as

this.

In

order

to

fulfill

this

responsibility,

the

Court

has

encouraged

Plaintiff

to

clearly

and

thoroughly

set

forth

which

causes

of

action

are

being

asserted

against

which

Defendants,

and

the

allegations

related

14

to

each

claim.

At

the

Court's

suggestion,

Plaintiff

has

significantly

limited

the

issues

before

the

Court

by

consenting

to

summary

judgment

as

to

certain

claims

and

as

to

certain

Defendants.

In

particular,

Plaintiff

has

consented

to

summary

judgment

in

favor

of

Defendants

Pierce

County,

City

of

Blackshear,

Mock,

Smiley,

Carter,

Bennett,

Hunt,

Van,

King,

Justice,

Pierce

County

EMS,

Blackshear

Police

Department,

Pierce

County

Sheriff's

Department,

Andreae,

Davis,

and

John

Does

1-10.

See

Plaintiff's

Statement

of

Claims

at

2.

Doc.

No.

110.

Accordingly,

the

Court

grants

summary

judgment

in

favor

of

those

defendants.

The

only

remaining

Defendants,

therefore,

are

Defendants

Evans

and

Farrior.

Further,

Plaintiff

has

abandoned

her

claims

for

wrongful

and

excessive

detention,

false

imprisonment,

intentional

infliction

of

emotional

distress,

and

medical

expenses.

Id.

at

2-4.

It

should

be

noted

that

it

was

entirely

appropriate

for

Plaintiff's

attorney

to

abandon

these

claims.

Even

if

Plaintiff

had

not

consented

to

summary

judgment

on

these

claims,

summary

judgment

would

still

have

been

appropriate.

As

to

Plaintiff's

claim

for

wrongful

and

excessive

detention

under

the

Fourth

Amendment,

the

evidence

shows

that

reasonable

15

articulable

suspicion

existed

to

justify

the

initial

stop

of

Decedent.

Further,

once

that

stop

was

initiated,

probable

cause

arose

to

justify

Decedent's

eventual

arrest.

Not

only

does

the

existence

of

probable

cause

defeat

Plaintiff's

claim

for

wrongful

and

excessive

detention,

but

it

also

defeats

Plaintiff's

state-law

claim

for

false

imprisonment.

See

Mayor

of

Savannah

v.

Wilson,

447

S.E.2d

124,

127

(Ga.

Ct.

App.

1994)

(holding

that,

to

survive

summary

judgment

on

a

false

imprisonment

claim,

"[l]ack

of

probable

cause

.

.

.

must

be

shown.").

As

to

Plaintiff's

claim

for

intentional

infliction

of

emotional

distress,

Plaintiff

has

failed

to

show

that

Defendants'

conduct

was

"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."

Phinazee

v.

Interstate

Nationalease,

Inc.,

514

S.E.2d

843,

845

(Ga.

Ct.

App.

1999)

(quoting

Bowers

v.

Estep,

420

S.E.2d

336,

339

(Ga.

Ct.

App.

1992)).

Because

"[w]hether

a

claim

rises

to

the

requisite

level

of

outrageousness

and

egregiousness

to

sustain

a

claim

for

intentional

infliction

of

emotional

distress

is

a

question

of

law,"

id.,

summary

judgment

would

be

proper

on

Plaintiff's

16

intentional

infliction

of

emotional

distress

claim

even

if

Plaintiff

had

not

so

consented.

Accordingly,

the

Court

grants

the

Defendants'

motion

for

summary

judgment

as

to

these

claims.

The

only

claims

remaining

are

as

follows:

(1)

a

§

1983

claim

for

deliberate

indifference

to

serious

medical

needs

against

both

of

the

remaining

Defendants;

and

(2)

a

state-law

claim

for

negligence/medical

malpractice

against

Defendant

Farrior.

Id.

II.

Denial

of

Essential

Medical

Care

Claims

Plaintiff

claims

that

Defendants

Evans

and

Farrior

were

deliberately

indifferent

to

Decedent's

serious

medical

needs,

and

denied

Decedent

immediate

emergency

medical

attention,

in

violation

of

the

Eighth

and

Fourteenth

Amendments.

Specifically,

Plaintiff

claims

that

Defendant

Evans

"deliberately

refused

to

take

any

action

to

permit

[Decedent]

to

have

the

medical

care

he

required"

and

that

these

actions

"were

objectively

unreasonable."

Plaintiff's

Statement

of

Claims

at

3.

Plaintiff

alleges

that

Defendant

Farrior

"knew

of

and

disregarded

the

substantial

risk

of

serious

harm

to

[Decedent]'s

health

and

safety

when

he

elected

to

leave

[Decedent]

unattended

and

in

an

unmonitored

holding

cell."

17

Id.

at

4.

Plaintiff

alleges

that

these

actions

were

also

"objectively

unreasonable."

Id.

Although,

in

her

complaint,

Plaintiff

claimed

that

these

alleged

actions

amounted

to

a

violation

of

the

Eighth

Amendment,

the

Supreme

Court

has

held

that

"[t]he

State

does

not

acquire

the

power

to

punish

with

which

the

Eighth

Amendment

is

concerned

until

after

it

has

secured

a

formal

adjudication

of

guilt

in

accordance

with

due

process

of

law."

Ingraham

v.

Wright,

430

U.S.

651,

671

n.40

(1977).

"Conditions

of

confinement

imposed

prior

to

conviction

are

limited

instead

by

the

due

process

clause

of

the

fourteenth

amendment."

Hamm

v.

DeKalb

County,

774

F.2d

1567,

1572

(11th

Cir.

1985)

.

Because

the

conditions

about

which

Plaintiff

complains

in

this

case

were

imposed

on

Decedent

before

a

conviction

was

had,

the

Court

must

evaluate

these

claims

under

the

Fourteenth

Amendment

only.

Id.

However,

because

the

legal

standard

under

the

Fourteenth

Amendment's

Due

Process

Clause

is

the

same

as

that

which

applies

to

convicted

persons

under

the

Eighth

Amendment,

the

analysis

is

the

same

regardless.

Id.

at

1574.

In

Farmer

v.

Brennan,

the

United

States

Supreme

Court

held

that,

in

order

for

a

plaintiff

to

recover

for

deliberate

18

indifference

to

serious

medical

needs,

the

plaintiff

must

show

that

an

official

"acted

or

failed

to

act

despite

his

knowledge

of

a

substantial

risk

of

serious

harm."

511

U.S.

825,

842

(1994) .

In

Carroll

v.

Correctional

Medical

Services,

the

Eleventh

Circuit

held

that

a

constitutional

violation

is

present

only

where

the

medical

treatment

received

was

"`so

grossly

incompetent,

inadequate,

or

excessive

as

to

shock

the

conscience

or

to

be

intolerable

to

fundamental

fairness.

Mere

incidents

of

negligence

or

malpractice

do

not

rise

to

the

level

of

constitutional

violations.'"

160

Fed.

App'x

848,

850

(11th

Cir.

2005)

(quoting

Harris

v.

Thigpen,

941

F.2d

1495,

1505

(11th

Cir.

1991)).

The

Court

in

Carroll

went

on

to

hold

that

"[a]n

inmate

who

complains

that

[a]

delay

in

medical

treatment

rose

to

a

constitutional

violation

must

place

verifying

medical

evidence

in

the

record

to

establish

the

detrimental

effect

of

[the]

delay

in

medical

treatment

to

succeed."

Id.

(quoting

Hill

v.

DeKalb

Reg'l

Youth

Det.

Ctr.,

40

F.3d

1176,

1188

(11th

Cir.

1994),

abrogated

on

other

grounds

by

Hope

v.

Pelzer,

536

U.S.

730

(2002)

)

.

The

Eleventh

Circuit

went

on

to

state:

"To

show

that

a

prison to

official serious an

acted

with a a

deliberate plaintiff subjective

indifference must

medical

needs, and

satisfy A

both

objective must

inquiry."

plaintiff

first

show

19

"an

objectively that of

serious

medical

need."

He

must

then an

"prove

the

prison

official

acted to that

with

attitude medical

deliberate

indifference

serious

need."

Id.

(internal

citations

omitted)

(quoting

Farrow

v.

West,

320

F.3d

1235,

1243

(11th

Cir.

2003)).

Plaintiff

has

failed

to

raise

a

genuine

issue

of

fact

as

to

her

deliberate

indifference

claims.

In

Burnette

v.

Taylor,

the

Eleventh

Circuit

held

that,

in

order

to

survive

summary

judgment

on

a

claim

of

deliberate

indifference

to

serious

medical

needs,

the

plaintiff

"must

establish

for

each

Defendant

that

[the

inmate]'s

medical

need

was

so

obvious

that

a

lay

person­-in

that

Defendant's

place­-would

recognize

the

need

for

treatment."

533

F.3d

1325,

1330

(11th

Cir.

2008).

The

court

in

Burnette

went

on

to

hold

that

"[n]o

liability

arises

under

the

Constitution

for

an

official's

failure

to

alleviate

a

significant

risk

that

he

should

have

perceived

but

did

not

.

.

.

.

As

such,

imputed

or

collective

knowledge

cannot

serve

as

the

basis

for

a

claim

of

deliberate

indifference.

Each

individual

Defendant

must

be

judged

separately

and

on

the

basis

of

what

that

person

knows."

Id.

at

1331

(internal

citations

omitted).

Like

Plaintiff

in

this

case,

the

plaintiff

in

Burnette

claimed

that

jail

officials

were

deliberately

indifferent

to

20

the

serious

medical

needs

of

an

inmate

who

died

of

a

drug

overdose

while

in

police

custody.

Id.

at

1327.

Further,

there

was

evidence

in

Burnette

that

the

officers

knew

that

the

decedent

had

ingested

drugs.

First,

the

decedent's

stepfather

had

specifically

informed

the

defendants

in

Burnette,

prior

to

the

decedent

being

arrested,

that

the

decedent

was

"strung

out"

on

pills

and

other

drugs.

Id.

at

1328.

The

decedent's

stepfather

also

told

the

defendants

that

his

trailer

had

been

broken

into

and

that

he

suspected

the

decedent

had

stolen

drugs

from

him.

Id.

The

stepfather

told

the

defendants

that

the

decedent

had

gone

through

drug

treatment

in

the

past,

and

that

the

treatment

was

unsuccessful.

Id.

When

the

defendants

in

Burnette

went

to

arrest

the

decedent,

they

observed

that

the

decedent

"had

glassy

eyes

and

dilated

pupils."

Id.

Further,

the

arresting

officers

noted

that

the

decedent's

responses

to

questions

were

slow

and

that

the

decedent

was

in

possession

of

a

bottle

of

prescription

pills

when

he

was

arrested.

Id.

In

fact,

the

court

in

Burnette

noted

that

"[i]t

was

apparent

to

[the

arresting

officer]

that

[the

decedent]

was

under

the

influence

of

something."

Id.

21

When

the

decedent

in

Burnette

arrived

at

the

jail,

the

jailer

found

another

bottle

of

prescription

pills

in

the

decedent's

underwear.

Id.

After

the

jailer

observed

the

decedent

staggering,

he

stated

"you're

almost

wasted;

ain't

you?"

Id.

Another

jailer

on

duty

that

night

noticed

that

the

decedent's

speech

was

slurred.

Id.

at

1329.

There

was

also

evidence

that

the

decedent

was

not

able

to

walk

on

his

own,

and

that

the

jailers

on

duty

knew

of

this.

Id.

Based,

in

part,

on

the

evidence

outlined

above

indicating

that

the

defendants

were

aware

that

the

decedent

was

under

the

influence

of

drugs

yet

failed

to

provide

the

decedent

with

medical

assistance,

the

district

court

denied

summary

judgment

in

Burnette.

The

Eleventh

Circuit

reversed,

ruling

that

summary

judgment

must

be

granted

to

all

of

the

defendants.

Id.

at

1333.

In

reversing

the

denial

summary

judgment,

the

Eleventh

Circuit

in

Burnette

held

that

"[t]he

Constitution

does

not

require

an

arresting

police

officer

or

jail

official

to

seek

medical

attention

for

every

arrestee

or

inmate

who

appears

to

be

affected

by

drugs

or

alcohol."

Id.

Like

the

plaintiff

in

Burnette,

Plaintiff

in

this

case

has

failed

to

present

sufficient

evidence

to

defeat

summary

judgment

on

her

deliberate

indifference

claims.

As

to

22

Defendant

Evans,

the

evidence

presented

by

Plaintiff,

at

best,

shows

that

Evans

should

have

known

that

Decedent

may

have

ingested

cocaine.

The

evidence

shows

that

Evans

observed

Decedent

put

his

hand

to

his

mouth

three

times.

Defendants

have

admitted

that

"it

appeared

to

defendant

Evans

that

[Decedent]

had

swallowed

something,

and

that

it

was

possibly

some

sort

of

drugs."

Answer

by

City

of

Blackshear

Defendants

¶

18.

However,

Evans

himself

testified

that

he

did

not

personally

observe

Decedent

ingest

any

drugs.

Evans

Dep.

25-

26.

There

is

no

evidence

in

the

record

suggesting

that

Evans

actually

saw

Decedent

swallow

any

drugs.

In

any

event,

even

if

Plaintiff

could

prove

that

Evans

had

actual

knowledge

of

Decedent's

drug

ingestion,

Officer

Evans

would

still

be

entitled

to

summary

judgment

based

on

the

holding

in

Burnette

that

the

Constitution

does

not

require

an

officer

to

provide

medical

assistance

to

every

arrestee

who

appears

to

be

affected

by

drugs.

533

F.3d

at

1333.

In

fact,

the

officers

in

Burnette

had

even

more

of

a

reason

to

know

that

the

decedent

in

that

case

had

ingested

drugs,

yet

the

court

still

found

summary

judgment

to

be

appropriate.

Based

on

this,

Evans

is

entitled

to

summary

judgment.

23

Defendant

Farrior

is

also

entitled

to

summary

judgment

on

Plaintiff's

deliberate

indifference

claim.

The

evidence

in

the

record

shows

that

Farrior

promptly

responded

to

both

calls

from

the

Pierce

County

Jail

concerning

Decedent

that

evening,

and

that,

each

time,

he

examined

Decedent

to

determine

whether

further

medical

treatment

was

needed.

Farrior

Dep.

15-21;

25-

30.

Plaintiff

has

not

presented

any

evidence

to

suggest

that

Farrior

failed

to

respond

to

any

of

the

calls

regarding

Decedent,

or

that

he

had

any

reason

to

know

of

Decedent's

condition

prior

to

receiving

the

first

call

from

the

jail.

At

best,

a

reasonable

jury

could

conclude,

based

on

the

evidence

in

the

record,

that

Farrior

failed

to

properly

diagnose

Decedent's

condition

during

his

first

visit

to

the

jail

and

that

he

was

negligent

in

the

way

he

treated

Decedent

on

both

visits.

However,

the

Eleventh

Circuit

has

made

it

clear

that

"[m]ere

incidents

of

negligence

or

malpractice

do

not

rise

to

the

level

of

constitutional

violations."

Carroll,

160

Fed.

App'x

at

850

(emphasis

added).

Further,

in

Ryan

v.

Aina,

the

Eleventh

Circuit

held

that

"[a]n

inmate's

mere

disagreement

with

the

course

of

medical

treatment

does

not

amount

to

deliberate

indifference."

222

Fed.

App'x

801,

805-

806

(11th

Cir.

2006)

.

There

is

no

evidence

in

the

record

to

24

suggest

that

Farrior

acted

with

deliberate

indifference

to

a

serious

medical

need

Therefore,

Farrior

is

entitled

to

summary

judgment.

Although

the

Court

need

not

address

Defendants'

qualified

immunity

defense,

the

Court

does

note

for

the

sake

of

thoroughness

that,

in

Burnette,

the

Eleventh

Circuit

held

that,

even

if

it

were

mistaken

on

the

appropriateness

of

summary

judgment

based

on

the

merits

of

the

plaintiff's

claims,

qualified

immunity

would

apply.

533

F.3d

at

1333

n.7.

Similarly,

even

if

Defendants

Evans

and

Farrior

had

not

been

entitled

to

summary

judgment

on

the

merits

of

Plaintiff's

deliberate

indifference

claims,

they

would

be

entitled

to

qualified

immunity.

III.

Plaintiff's

State-Law

Claims

Remaining

in

this

case

are

Plaintiff's

state-law

claims

for

negligence

and

medical

malpractice

against

Defendant

Farrior.

Farrior

claims

that

he

is

statutorily

immune

from

liability

under

Georgia

law.

The

relevant

Code

Section

provides:

(a) is

Any

person, to

including

agents

and

employees, and who

who in

licensed

furnish

ambulance

service

25

good a

faith

renders an any any such

emergency or

care

to

a

person shall

who not as

is be a

victim

of

accident civil act or

emergency to such

liable result

for of

damages

victim

omission care to

by

such

person

in

rendering

emergency

such

victim.

(c)

The

immunity to

provided those

in

this

Code who no

section

shall the

apply

only

persons for

perform

aforesaid

emergency

services

remuneration.

O.C.G.A.

§

31-11-8.

Unlike

sovereign

immunity,

"a

claim

of

immunity

under

[this

Code

Section]

cannot

be

waived

by

those

persons

to

whom

the

statute

applies;

and

among

those

`persons'

to

whom

the

statute

applies

are

`municipalities'

and

`counties.'"

Johnson

v.

Gwinnett

County,

449

S.E.2d

856,

857

(Ga.

Ct.

App.

1994).

It

is

undisputed

that,

on

the

date

in

question,

Farrior

was

an

employee

of

Pierce

County

EMS,

which

was

licensed

to

provide

ambulance

services

by

the

Georgia

Department

of

Human

Resources.

Kenneth

L.

Justice

Aff.

¶

6,

Exhibit

"F"

to

Defendants'

Motion

for

Summary

Judgment.

Further,

Plaintiff

does

not

present

any

evidence

suggesting

that

Defendants

did

not

act

in

"good

faith."

Viewing

the

evidence

in

light

most

favorable

to

Plaintiff,

the

evidence

shows,

at

best,

that

Defendants

exercised

bad

judgment

and

acted

negligently

in

caring

for

Decedent.

However,

Georgia

courts

have

made

clear

26

that

this

is

not

enough

to

show

a

lack

of

good

faith

for

purposes

of

statutory

immunity.

See,

e.g.,

Thomas

v.

DeKalb

County,

489

S.E.2d

58,

62

(Ga.

Ct.

App.

1997)

("Even

if

the

paramedics

exercised

bad

judgment

and

acted

negligently,

such

does

not

amount

to

a

lack

of

good

faith.").

See

also

Bixler

v.

Merritt,

534

S.E.2d

837,

839

(Ga.

Ct.

App.

2000).

Therefore,

under

the

statute,

immunity

attaches

as

long

as

the

services

in

question

were

not

for

remuneration.

O.C.G.A.

§

31-11-8(c);

See

also

Thomas,

489

S.E.2d

at

61.

The

Court

rejects

the

Plaintiff's

argument

that

the

immunity

statute

does

not

apply

because

Decedent

was

to

be

charged

for

the

ambulance

services.

In

his

affidavit,

Defendant

Justice

states

that:

Pierce County

County, EMS

Georgia,

bills two a

persons things: mileage The

using (a) fee a

a

Pierce

ambulance fee; the

for

standard upon

transportation the length of

and

(b)

based

transport. and

monies fees do

collected not cover EMS.

from the The the EMS.

transport for

fees the

mileage of

budget fees

operation solely costs to of

Pierce

County

are

used

assist

with

defraying County

administrative

operating

Pierce

Justice

Aff.

¶

7.

Plaintiff

has

failed

to

present

any

evidence

to

the

contrary.

In

Ramsey

v.

Forest

Park,

the

Georgia

Court

of

Appeals

held

that

"a

fee

charged

by

a

governmental

organization

to

27

assist

in

defraying

the

administrative

costs

of

`transporting

a

person

to

a

hospital'

is

not

the

equivalent

of

receiving

remuneration

for

providing

stated

`emergency

care,'

within

the

meaning

of

O.C.G.A.

§

31-11-8(c)

."

418

S.E.2d

432,

434

(Ga.

Ct.

App.

1992)

.

The

court

in

Ramsey

went

on

to

hold

that

"[w]hat

may

constitute

a

remuneration

to

a

private

`person'

may

not

reward

and

constitute

remuneration

to

a

governmental

organization

having

to

control

its

public

expenditures

carefully

while

providing

`emergency

medical

services'

to

those

within

its

boundaries."

Id.

The

court

in

Ramsey

concluded

that

immunity

under

Code

Section

31-11-8

applied

in

that

case

despite

the

fact

that,

like

here,

the

defendant

charged

a

fee

to

defray

the

administrative

costs

of

patient

transportation.

Id.

Accordingly,

the

court

in

Ramsey

affirmed

the

trial

court's

grant

of

summary

judgment

in

favor

of

the

defendant.

Id.

As

was

the

case

in

Ramsey,

Georgia

Code

Section

31-11-8

applies

to

the

facts

of

this

case.

Pursuant

to

that

statute,

Defendant

Farrior

is

entitled

statutory

immunity,

and

therefore

summary

judgment,

on

Plaintiff's

state-law

claims.

28

CONCLUSION

For

the

above

reasons,

Defendant's

motion

for

summary

is

GRANTED.

Doc.

No.

52.

SO

ORDERED

this

31

st

day

of

December,

2008.

___________________________________ Judge, United States of District Georgia Court

Southern

District

29