Barnes v. Boyd

Filing 137

OPINION AND ORDER granting 110 Motion for Summary Judgment; granting 115 Motion for Summary Judgment as to all remaining claims against Dr. Cooke, Advanced Correctional Healthcare, and LaPorte Hospital; denying 124 Rule 56 Motion to Strike p ortions of Dr. Richardson's affidavit; denying 134 Motion to Continue final pretrial conference and trial. The federal and state claims against the County Defendants remain pending and are set for trial on January 3, 2019. Signed by Judge Robert L Miller, Jr on 11/27/18. (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

JAMES BARNES, as Personal
Representative of the ESTATE OF
RACHEL A. BARNES, Deceased,
Plaintiff
v.
JOHN T. BOYD, Sheriff of LaPorte
County, Indiana, et al.,
Defendants

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CAUSE NO. 3:16-CV-190 RLM-MGG

OPINION AND ORDER
Defendants Dr. Weldon Cooke, Advanced Correctional Healthcare, Inc., and
IUHLP Liquidation, Inc., doing business as I.U. Health-LaPorte Hospital filed
motions for summary judgment with respect to each of the remaining claims
asserted against them in Mr. Barnes’ third amended complaint. For the following
reasons, the court grants those motions.
Summary judgment is appropriate when the pleadings, discovery materials,
disclosures, and affidavits demonstrate no genuine issue of material fact, such
that the movant is entitled to judgment as a matter of law. Protective Life Ins. Co.
v. Hansen, 632 F.3d 388, 391-392 (7th Cir. 2011). The court must construe the
evidence and all inferences that reasonably can be drawn from the evidence in the
light most favorable to Mr. Barnes, as the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). As the moving parties, the defendants bear
the burden of informing the court of the basis for their motions, and presenting
evidence demonstrating the absence of any genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If they meet that burden, Mr. Barnes
can’t rest upon the allegations in the pleadings, but must “point to evidence that
can be put in admissible form at trial, and that, if believed by the fact-finder,
could support judgment in his favor.” Marr v. Bank of Am., N,A., 662 F.3d 963,
966 (7th Cir. 2011).
LaPorte County Sheriff Deputy Skyler Curtis arrested Rachel Barnes when
he found her intoxicated next to the car she had driven into a pond. He took her
to the I.U. LaPorte Hospital for a blood draw and alcohol test. After drawing her
blood, a hospital employee told Deputy Curtis that it would take an hour to get the
results. Deputy Curtis took Ms. Barnes to the county jail and went off his shift
without collecting the test results. Those results showed that Ms. Barnes had a
blood alcohol content of .447 percent.
Officer Nancy Bunch, the jail intake officer that Friday night, believed Ms.
Barnes was under the influence of drugs or alcohol based on her observation of
slurred speech, dilated pupils, unsteady gait or balance, bloodshot eyes and
confusion. Ms. Barnes told Officer Bunch she had last taken her methadone five
days earlier, and had consumed a pint of vodka in the previous hour.

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Early the next morning, Ms. Barnes complained that she couldn’t breathe,
She told Corporal Ryan Hawkins that she suffered from chronic obstructive
pulmonary disease and was being treated for opiate addiction. The county hadn’t
arranged for Advanced Correctional Healthcare, its private health care provider,
to staff the jail on weekends, so there were no medically trained personnel at the
jail. Cpl. Hawkins filled out an Opiate Withdrawal Protocol sheet and took Ms.
Barnes’s vital signs. Under the county’s agreement with Advanced Correctional
Healthcare, Dr. Weldon Cooke became Ms. Barnes’s private physician when she
was booked into the jail, so Cpl. Hawkins called Dr. Cooke at home to discuss Ms.
Barnes’s anticipated opiate withdrawal. Cpl. Hawkins told Dr. Cooke nothing
about alcohol withdrawal. Dr. Cooke prescribed medicines for Ms. Barnes.
Ms. Barnes raised the issue of alcohol during her medical intake screening
later Saturday morning. Officer Bruce Vermilyer thought Ms. Barnes was under
the influence of alcohol, but because Cpl. Hawkins already had spoken with Dr.,
Cooke, neither Officer Vermilyer or anyone else relayed any concerns about
alcohol withdrawal to Dr. Cooke. Officer Nerissa Miller took over for Cpl. Hawkins
when the shifts changed a little after noon; Cpl. Hawkins told her about Ms.
Barnes’s opiate withdrawal, but nothing about her alcohol withdrawal.
A little later, Dep. Curtis picked up the blood alcohol test results from the
hospital. He told no one about the high blood alcohol content and simply corrected

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the arrest report to reflect a BAC of .447. Under jail policy, an arrestee with a BAC
over .24 wasn’t supposed to be admitted to the jail.
Several times during Saturday afternoon, Ms. Barnes complained to jail
personnel of weakness. Early on Sunday morning, officers found Ms. Barnes dead
in her cell. An autopsy disclosed that the cause of death was seizure due to
alcohol withdrawal.
John Barnes, the Successor Administrator of the Estate of Rachel Barnes,
sues Dr. Cooke and Advanced Correctional Healthcare, IUHLP Liquidation, Inc.
(the hospital) and the county sheriff’s department and several of its deputies and
officers. Mr. Barnes alleges that the defendants violated the Fourth Amendment
(Counts 1-4) and state law (including Indiana’s Wrongful Death Statute, IND. CODE
§ 34-23-1-2), when they deprived Ms. Barnes of medical care for a serious medical
condition (alcohol withdrawal and related seizures) while she was incarcerated as
a pretrial detainee at the LaPorte County Jail and caused her death. The sheriff’s
department and personnel haven’t moved for summary judgment; Dr. Cooke,
Advanced Correctional Healthcare and the hospital have moved for summary
judgment.
After Mr. Barnes voluntarily dismissed the medical malpractice complaint
against Dr. Cooke that was pending before the medical review panel, the court
granted Dr. Cooke's motion to dismiss the state law claims against him (Counts
5 and 6), which were essentially medical malpractice claims [Doc. No. 113]. The

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court also granted LaPorte Hospital's Rule 12(c) motion for judgment on the
pleadings to the extent Ms. Barnes’ § 1983 claims sought to hold it vicariously
liable for the acts or omissions of its lab employees, but found that he had stated
a plausible claim for direct liability and that there wasn’t a sufficient factual basis
to determine whether the hospital was a state actor for purposes of the § 1983
claims [Doc. No. 113].
In his Statement of Genuine Disputes, Mr. Barnes contends that two
disputed facts preclude the entry of summary judgment for Dr. Cooke and
Advance Correctional Healthcare:
(1) Dr. Cooke’s assertion that the blood pressure variance between
Ms. Barnes’ left and right arm on the night she was arrested was “normal”.
Plaintiff’s expert, Dr. Joliff, didn’t think it was and would have asked that
those vitals be retaken; and
(2) Dr. Joliff’s belief that Ms. Barnes’ oximeter reading either indicated
a potential problem or was inaccurate, and should have been rechecked.
Dr. Cooke and Advanced Correctional Healthcare contend that the disputed facts
aren’t outcome determinative – they don’t show the treatment Dr. Cooke
prescribed for methadone withdrawal (the only condition he’d been notified of) or
the policies and procedures Advanced Correctional Healthcare had in place were
objectively unreasonable – and so aren’t material and don’t preclude summary

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judgment. See Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997). The court
agrees.
To prevail on his Fourth Amendment claims against Dr. Cooke , Mr. Barnes
must show that Dr. Cooke’s response to Ms. Barnes’ medical needs was objectively
unreasonable and caused her death. Currie v. Chhabra, 728 F.3d 626, 631 (7th
Cir. 2013). Four factors are considered: (1) whether the [medical provider] had
notice of the detainee’s medical needs; (2) the seriousness of the medical needs;
(3) the scope of the requested treatment; and (4) police interests, including
administrative, penological, or investigatory concerns.” Estate of Perry v. Wenzel,
872 F.3d 439, 453 (7th Cir. 2017); Ortiz v. City of Chicago, 656 F.3d 523, 527 (7th
Cir. 2011).
Mr. Barnes contends that Ms. Barnes’ blood alcohol level of .447 was “lifethreatening” and that the jail “ha[d] an express interest in seeing that inmates
who present a risk of alcohol withdrawal receive objectively reasonable medical
treatment”, as evidenced by its policy that prohibited arrestees with a blood
alcohol level above .24 from being admitted to the jail without medical clearance.
No one disputes those facts, but Mr. Barnes must also show that Dr. Cooke had
notice of Ms. Barnes’ medical needs. He hasn’t done that.
Mr. Barnes contends Dr. Cooke knew that Ms. Barnes had a medical
condition – methadone/opiate withdrawal – and should have inquired about other
conditions or directed that she be taken to the hospital if he didn’t want to treat

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her himself. Mr. Barnes says Dr. Cooke’s lack of specific knowledge about her
intoxication and blood alcohol level “was his fault because he chose not to perform
his medical obligations in an objectively reasonable manner”, e.g., to seek a
complete medical history, to talk with Ms. Barnes and take her medical history
directly from her, or to ask what she was being charged with and what other
conditions she might have. But his arguments aren’t supported by any relevant
legal authority and he hasn’t presented any evidence to show that Dr. Cooke’s
response to Ms. Barnes’s known medical needs (her opiate withdrawal) was
objectively unreasonable and caused her death. None of the experts testified that
Dr. Cooke breached any standard of care. Two of the experts, Dr. Thomas Short
and Dr. Heath Joliff (the plaintiff’s expert), opined that the medical care Dr. Cooke
provided for opiate withdrawal was reasonable and within the community
standard of care (Joliff Deposition at p. 30 ) (Short Affidavit at ¶ 6).1 Two other
experts, Dr. Joseph Richardson and Dr. Sonali Shukla, expressed the opinion that
Mr. Barnes’s death resulted from jail personnel’s failure to immediately
communicate information regarding her alcohol levels and alcohol withdrawal to
the doctor, pursuant to protocols at the jail. (Affidavit of Dr. Richardson at ¶ 6-11)
(Deposition of Dr. Shukla at pp. 56-57).

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Dr. Joliff also stated during his deposition that the things that troubled him
about this case were not enough to say that Dr. Cooke breached the standard of care.
(Dr. Heath Joliff’s Deposition at pp. 42-43 and 93 [Doc. No. 111-12].

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The party bearing the burden of proof on an issue must produce evidence
sufficient to establish the existence of every element of the party’s cause. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Mr. Barnes hasn’t met that burden
with respect to the remaining claims against Dr. Cooke.
Mr. Barnes’ s federal claims against Advanced Correctional Healthcare are
premised on its alleged failure to implement policies and train deputies on how to
“gather a medical history”, “diagnose a patient”, and determine which protocol
form to use, among other things. He concludes that the absence of such policies
and training caused Ms. Barnes’s death. But he hasn’t pointed to any evidence
to support those claims.
Dr. Richardson attests in his affidavit the jail used a “protocol driven,
medical decision making system”; that “[t]he protocols established and approved
by the jail [were] reflective of a national standard of care”, and that had jail
personnel followed those protocols and immediately communicated the ethanol
test results to the jail medical staff (Dr. Cooke), “proper medical treatment would
have been rendered and Ms. Barnes would have had a substantially higher
probability of survival.” (Richardson Affidavit at ¶¶ 7-11 [Doc. No. 111-6]). He
concluded that Ms. Barnes’s death was the direct result of a failure follow protocol
and communicate the test results to Dr. Cooke. Id.
Mr. Barnes moved to strike Dr. Richardson’s assertion that the jail’s
protocols were “reflective of a national standard or care” and were “established

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and widely accepted” contending that his opinion lacks a proper foundation
because he didn’t identify what the protocols were. But Dr. Richardson attested
in his affidavit that he reviewed the jail intake medical records, which included the
intake questionnaires and withdrawal protocol sheets used by jail staff when Ms.
Barnes was booked at the jail. [Doc. No. 111-2]. Mr. Barnes’s objection to the
admissibility of Dr. Richardson’s opinion is therefore overruled and his motion to
strike [Doc. No. 124] is denied.
Mr. Barnes hasn’t presented any evidence to rebut Dr. Richardson’s
conclusions or to show that Advanced Correctional Healthcare’s policies and
procedures were deficient and caused or contributed to Ms. Barnes’s death.
It’s not clear in the third amended complaint, which “Defendant” allegedly
violated Indiana’s Wrongful Death Act, IND. CODE § 34-23-1-2 (Count 5). To the
extent Mr. Barnes contends that Advanced Correctional Healthcare is vicariously
liable for Dr. Cooke’s alleged violation of the Act, Advanced Correctional
Healthcare contends that it is entitled to summary judgment as a matter of law
because the claim against Dr. Cooke was dismissed. Mr. Barnes didn’t respond
to that argument or present any evidence that would support a viable wrongful
death claim against Advanced Correctional Healthcare. Summary judgment is
therefore appropriate with respect to all claims asserted against Advanced
Correctional Healthcare.

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LaPorte Hospital contends that summary judgment is also appropriate with
respect to the Fourth Amendment claims asserted against it because LaPorte
Hospital isn’t a state actor. Alternatively, it argues that, even if it was a state
actor, it can’t be held vicariously liable for the acts of its employees, and Mr.
Barnes hasn’t shown that its lab policies or procedures were objectively
unreasonable. The court granted LaPorte Hospital’s Rule 12(c) motion to dismiss
any federal claims based on vicarious liability in April [Doc. No. 113].
To prevail on his § 1983 claims against LaPorte Hospital, Mr. Barnes must
show that the hospital: (1) was acting under color of state law, and (2) deprived
Ms. Barnes of a right secured by the Constitution or federal law. Rodriguez v.
Plymouth Ambulance Service, 577 F.3d 816, 822 (7th Cir. 2009). LaPorte Hospital
contends that it’s a private entity, and had only an “incidental or transitory
relationship” with the LaPorte County Sheriff’s Department, the jail, and the
decedent, Rachel Barnes, and so isn’t a state actor subject to suit under § 1983.
Id. at 627; Vaught v. Quality Correctional Care, LLC, Cause No. 1:15-CV-346-TLS,
2018 WO 656361 (N.D. Ind. Feb. 1, 2018).
Courts weigh four factors in determining whether a private medical care
provider who treats an in-custody patient acts under the color of state law: “(1) the
setting in which the medical care was rendered; (2) the degree of state control over
the health care provider’s decisions; (3) the voluntariness of the health care
provider’s relationship with the state; and (4) the relationship of the private

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medical provider to the prisoner.” Rodriguez v. Plymouth Ambulance Service, 577
F.3d at 826-828. The “ultimate issue” is whether the medical care provider’s
“alleged infringement of federal rights [is] ‘fairly attributable to the State?” Id. at
823 (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)); Vaught v. Quality
Correctional Care, LLC, Cause No. 1:15-CV-346-TLS, 2018 WL 656361, at * (N.D.
Ind. Feb. 1, 2018).
The first two factors weigh against a finding that LaPorte Hospital is a state
actor, so LaPorte Hospital focuses it argument on its relationship with the jail and
Ms. Barnes (the third and fourth factors). It contends that it only assists the jail
in its duty to provide medical care to inmates, and doesn’t replace the medical
providers the jail already has in place; that it doesn’t have a written contract to
provide out-patient services for the jail; and that it only had incidental contact
with the jail and Ms. Barnes in this case.
While LaPorte Hospital didn’t have a formal contract with the county to
provide out-patient services for the jail, Dr. Shukla, the lab’s Medical Director,
stated during his deposition that it had an informal arrangement with the jail
under which deputies could bring detainees who appeared to be intoxicated to the
hospital lab for blood tests without a physician’s order, and the county would
compensate the Hospital for those services. But that agreement does not, in and
of itself, make LaPorte Hospital a state actor, and Ms. Barnes offers nothing more.

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The court can’t find on the basis of the record before it that the Hospital’s
alleged infringement of federal rights is “‘fairly attributable to the State”. See, i.e.,
Rodriguez v. Plymouth Ambulance Service, 577 F.3d at 823; Vaught v. Quality
Correctional Care, LLC, Cause No. 1:15-CV-346-TLS, 2018 WL 656361, at * (N.D.
Ind. Feb. 1, 2018). The services in question were rendered at a private facility,
there’s no evidence to suggest that the state exercised any control over the medical
provider’s decisions, and LaPorte Hospital’s contact with the jail and Ms. Barnes
was extremely limited and incidental. LaPorte Hospital isn’t a state actor in this
case, see Vaught v. Quality Correctional Care, LLC, Cause No. 1:15-CV-346-TLS,
2018 WO 656361, at *6 (N.D. Ind. Feb. 1, 2018), and is entitled to summary
judgment on Mr. Barnes’ constitutional claims.2
For the foregoing reasons:
(1) the motions for summary judgment [Doc. Nos. 110 and 115] are
GRANTED as to all remaining claims against Dr. Cooke, Advanced
Correctional Healthcare, and LaPorte Hospital;
(2) the motion to strike portions of Dr. Richardson’s affidavit [Doc. No.
124] is DENIED;

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As previously noted, the wrongful death claim in Count 5 of the third
amended complaint appear to be limited to Dr. Cooke, and the plaintiff has
consistently treated it as such. As the court noted in dismissing the state claims
against Dr. Cooke, the wrongful death action is premised on medical malpractice and
as such is subject to Indiana’s Medical Malpractice Act. See [Doc. No. 113]. The same
would be true with respect to any wrongful death claim against LaPorte Hospital.

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(3) the defendants’ opposed motion to continue the final pretrial
conference and trial [Doc. No. 134] is DENIED; and
(4) the federal and state claims against the County Defendants remain
pending and are set for trial on January 3, 2019.
SO ORDERED.
ENTERED:

November 27, 2018

/s/ Robert L. Miller, Jr.
Judge, United States District Court

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