STRAYER et al v. DEARBORN COUNTY SHERIFF et al

Filing 143

ENTRY GRANTS in part and DENIES in part Defendants' 92 Motion for Summary Judgment. The court GRANTS the motion as to Kelly Strayer's loss of consortium claim and DENIES the motion as to Plaintiffs' negligence claim. Signed by Judge Richard L. Young on 3/28/2016.(TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

KELLEY KINGSTON STRAYER,
TIMOTHY P. STRAYER,

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Plaintiffs,
vs.
DEARBORN COUNTY SHERIFF,
Defendant.

4:12-cv-00098-RLY-TAB

ENTRY ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFFS’ STATE-LAW CLAIMS
Defendants, Jason Turner and the Dearborn County Sheriff (the “Sheriff”), filed a
motion for summary judgment on Timothy Strayer’s constitutional claim against Turner
and related state-law claim of negligence against the Sheriff. Defendants also sought
summary judgment on the loss of consortium claim of Kelley Strayer. On December 10,
2015, the court granted summary judgment on the federal claim against Jason Turner. As
to the state law claims, the court took Defendants’ motion under advisement pending
briefing from the parties on the court’s retention of supplemental jurisdiction. Having
considered the parties’ positions, the court elects to retain supplemental jurisdiction over
Plaintiffs’ state law claims against the Sheriff. For reasons set forth below, the court
GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment.

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I.

Supplemental Jurisdiction
Before considering the merits of the motion 1, the court must explain its decision to

retain supplemental jurisdiction over state-law claims. See Miller v. Herman, 600 F.3d
726, 738 (7th Cir. 2010) (noting the requirement that a district court make a “considered
determination” of whether to hear pendent state claims).
When the district court has original jurisdiction over some claims, it has
supplemental jurisdiction “over all other claims that are so related to claims in the action
within such original jurisdiction that they form part of the same case or controversy.” 28
U.S.C. § 1367(a). Jurisdiction over related state law claims persists even after the court
dismisses the claims giving rise to original jurisdiction. See id. § 1367(c)(3); Nightingale
Home Healthcare, Inc. v. Anodyne Therapy, LLC, 589 F.3d 881, 883 (7th Cir. 2009) (“A
district court is not required to relinquish jurisdiction over supplemental state-law
claims . . . .”). The statute commits the decision whether to retain jurisdiction to the
discretion of the district judge. Miller, 600 F.3d at 738. Considerations of judicial
economy, convenience, fairness, and comity should guide the court’s discretion. Wright
v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1251 (7th Cir. 1994).
Generally, when “all federal claims are dismissed before trial, the district court
should relinquish jurisdiction over pendent state-law claims rather than resolving them on
the merits.” Sharp Elecs. Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 514 (7th Cir. 2009)

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Although Jason Turner and the Sheriff collectively moved for summary judgment, the
court has dismissed the sole claim against Turner. Therefore, the court will refer to the motion
as that of the Sheriff.

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(internal quotations omitted). However, considerations of economy, convenience,
fairness, and comity will counsel against relinquishment when (1) the statute of
limitations has run on the pendent claims; (2) directing the case to another court will
result in “a substantial duplication of effort”; or (3) “it is absolutely clear how the
pendent claims can be decided.” Wright, 29 F.3d at 1251.
Contrary to its initial observations, (see Filing No. 133 at 10–12), the court finds
that dismissal at this late stage in the litigation, thus sending Plaintiffs to re-litigate
elsewhere, would result in a substantial duplication of effort. Elimination of the
“jurisdictional hook” before trial only preliminarily informs the balance of
considerations. Hansen v. Bd. of Trs. of Hamilton, 551 F.3d 599, 608 (7th Cir. 2008)
(quoting Timm v. Mead Corp., 32 F.3d 273, 277 (7th Cir. 1994)). Had the court
dismissed Plaintiffs’ federal claim at the pleading stage, the balance would strongly favor
relinquishment of jurisdiction because “at that point in the case ‘judicial resources’
typically are yet to be heavily tapped.” Timm, 32 F.3d at 277 n.2; see also Wright, 29
F.3d at 1251 (noting that rarely can judicial economy justify retention of jurisdiction at
the pleading stage).
Here, however, Plaintiffs commenced this action in August 2012, making it well
over three years old. Discovery is complete. The parties have patiently awaited the
court’s ruling on Defendants’ Motion for Summary Judgment, which was filed and
briefed well after the close of discovery. And Plaintiffs’ claims do not raise any novel or
unsettled questions of state law. See, e.g., Freeman v. Porter Cty. Sheriff’s Dept., No.
2:10-cv-89, 2011 WL 5408329, at *8–9 (N.D. Ind. Nov. 7, 2011) (retaining jurisdiction
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over prisoner’s state-law negligence claim against the sheriff when law and fact made the
outcome clear). The Sheriff’s concern about the inconvenience of a potential trial in New
Albany—a two-hour drive from Dearborn County—does not tilt the balance.
Considerations of fairness and judicial economy outweigh any concern over comity or
inconvenience to the Sheriff. Having elected to retain jurisdiction, the court now turns to
Plaintiffs’ claims.
II.

Background
The court refers the reader to the court’s prior Entry on Defendants’ Motion for

Summary Judgment (Filing No. 133 at 3-5) for a more detailed account of the facts of
this case. The court will briefly summarize the pertinent facts here.
Timothy Strayer was a pre-trial detainee at the Dearborn County Jail from July 12,
2011, to August 3, 2011, when he underwent surgery at the Dearborn County Hospital for
a perforated stomach ulcer. Strayer arrived at the jail with severe ear infections and
psoriasis. Approximately one week after his arrival, the jail doctor informed Strayer that
he also suffered from a hernia and should expect severe pain, presumably in his abdomen.
(Filing No. 116-1 (“First Strayer Dep.”) at 9). His condition worsened, however, to the
point where he could not stomach food or his prescribed medicines without vomiting.
(First Strayer Dep. at 10–12).
A fellow detainee, Daniel Brewington, testifies that Strayer spent several days
prior to his hospitalization on the floor of his cell, incapable of eating and visibly ill to
jail staff. (Filing No. 116-5 (“Brewington Aff.”) at 3–4; see also First Strayer Dep. at
10–11, 13). Strayer testifies that on several occasions he sought medical care from Kelly
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Hogg, a registered medical assistant at the jail. (First Strayer Dep. at 11). He testifies
that he suffered severe abdominal pain and explained to her that he could not eat due to,
as he believed at the time, his hernia. (Filing No. 116-7 (“Strayer Aff.”) at 2). Ms. Hogg
squarely contradicts Strayer’s account of his interactions with her, pointing to the absence
of medical request forms, or “pink slips,” documenting any requests for care. (See Filing
No. 116-12 (“Hogg Dep.”) at 14).
On August 1, Strayer filed a grievance as part of the jail’s administrative remedy
procedures. In his grievance, Strayer complained of inadequate medical care, pleaded for
transportation to the hospital, and claimed he needed his hernia removed. (Filing No. 932). On August 2, Strayer saw the jail physician for the third time during his detention.
The physician’s exam notes indicate that Strayer again requested, inter alia, removal of
his hernia. (Filing No. 93-3). By this time, Strayer had not eaten for more than a week.
(First Strayer Dep. at 10–11).
By the morning of August 3, Strayer’s condition had deteriorated so much that he
required the assistance of jail guards to walk into the visitation area to see his brother,
Michael Strayer. Michael immediately sought the assistance from jail staff to have
Strayer transported to the hospital; but his efforts failed. Michael then attempted to
contact Kelly Hogg and the prosecutor’s office for help, explaining that his brother was
going to die. (Filing No. 116-9 (“Michael Strayer Dep.”) at 10). Approximately two
hours later, the jail had Strayer transported to the hospital. (Michael Strayer Dep. at 4;
Filing No. 116-13 at 6-8).

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III.

Standard
When assessing a motion for summary judgment, the court looks to whether the

parties’ materials show the need for a trial to resolve issues of fact. See Modrowski v.
Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). The movant bears the initial burden of
showing that no genuine dispute of material fact exists and that it is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(a). Although the non-movant has the ultimate
burden of persuasion on a particular issue, the movant must nonetheless satisfy its initial
burden by pointing out, for example, “an absence of evidence to support the nonmoving
party’s case.” Modrowski, 712 F.3d at 1168 (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). At the summary judgment stage, the
court does not care which party puts forth more compelling evidence, as it does not weigh
evidence or make credibility determinations. See Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). Rather, the court views the evidence in the light most favorable to the
non-movant and determines whether a dispute of fact exists for the factfinder to resolve.
Id.
IV.

Discussion
Only two claims remain in this case: Timothy Strayer’s claim of negligence and

Kelley Strayer’s claim for loss of consortium. As for loss of consortium, however,
Plaintiffs fail to support or even mention this claim in their brief and thus have
abandoned it. Palmer v. Marion Cty., 327 F.3d 588, 597–98 (7th Cir. 2003) (finding nonmovant’s failure to argue his negligence claim in opposition to summary judgment
resulted in abandonment). As such, summary judgment is GRANTED as to that claim.
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That leaves the negligence claim. Plaintiffs seek relief against the Dearborn
County Sheriff based on its derivative liability under respondeat superior. See Bowens v.
City of Indianapolis, 1:13-cv-00072, 2014 WL 4680662, at *5 (S.D. Ind. Sept. 19, 2014)
(noting that Indiana law generally bars recovery from governmental employees and limits
liability to that of the employer under respondeat superior). Plaintiffs argue the Sheriff’s
employees breached their duty of care owed to Strayer, and that such breaches caused
Strayer to suffer from a perforated ulcer. The Sheriff seeks summary judgment on
grounds that Plaintiffs present insufficient evidence to support a claim of negligence. 2
To show negligence under Indiana law, a plaintiff must demonstrate “(1) a duty
owed to the plaintiff by the defendant, (2) a breach of the duty, and (3) an injury
proximately caused by the breach of duty.” Yost v. Wabash Coll., 3 N.E.3d 509, 515
(Ind. 2014). A breach cannot occur absent a legal duty; and whether a duty exists is a
question of law for the court to resolve. Id. Furthermore, Indiana law generally views
summary judgment as inappropriate in negligence actions. Perkins v. Lawson, 312 F.3d
872, 876 (7th Cir. 2002) (citing Barsz v. Max Shapiro, Inc., 600 N.E.2d 151 (Ind. Ct.
App. 1992)).

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Additionally, the Sheriff appears to conflate Plaintiffs’ federal and state claims. For
instance, the Sheriff cites Rascon v. Hardiman, 803 F.2d 269, 274 (7th Cir. 1986) for the
proposition that Plaintiffs’ state-law claims against the Sheriff fail because Plaintiffs present no
evidence of an existing, unconstitutional policy. Nowhere in the materials submitted do
Plaintiffs assert a federal claim against the Sheriff in his official capacity. Similarly, the Sheriff
argues that pursuant to the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a),
Strayer’s failure to exhaust his administrative remedies precludes recovery under state law. The
PLRA applies to actions brought by incarcerated persons “with respect to prison conditions
under [42 U.S.C. § 1983], or any other Federal law . . . .” § 1997e(a). Even if Strayer were
incarcerated when he filed suit—which is not the case—the PLRA has no bearing on his claim
under Indiana law. Thus, the court easily disposes of these arguments.

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Indiana statute sets forth the duty of the Sheriff “to take care of the county jail and
the prisoners there.” Trout v. Buie, 653 N.E.2d 1002, 1008 (Ind. Ct. App. 1995); Ind.
Code § 36-2-13-5(a)(7). Indiana courts have held that § 36-2-13-5(a)(7) charges the
sheriff with a “duty to exercise reasonable care to preserve his prisoner’s health.” Health
& Hosp. Corp. v. Marion Cty., 470 N.E.2d 1348, 1358–59 (Ind. Ct. App. 1984); see also
Sauders v. Cty. of Steuben, 693 N.E.2d 16, 18 (Ind. 1998) (stating that custodians have
the duty “to take reasonable steps under the circumstances for the life, health, and safety
of the detainee”). “This duty includes the provision of reasonable medical care.” Trout,
653 N.E.2d at 1008. The mere employment of medical professionals does not discharge
a sheriff’s duty to attend to a prisoner in clear need of medical attention. See Health &
Hosp. Corp., 470 N.E.2d at 1359; cf. Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005)
(explaining that in the context of a deliberate indifference action, prison staff generally
are not liable if the prisoner is under the care of medical professionals). Thus, to the
extent the Sheriff contends that Plaintiffs failed to establish a duty owed to Strayer, the
Sheriff is wrong.
Although the Sheriff concedes that Strayer suffered a perforated ulcer while in
custody, he states that Plaintiffs failed to present evidence showing that the Sheriff or his
employees did not exercise reasonable care under the circumstances. Plaintiffs have
alleged and argued that the failure of the Sheriff’s staff to adequately respond to Strayer’s
medical condition exacerbated his condition, ultimately resulting in the perforated ulcer.
Strayer testifies that during the week prior to his hospitalization, he repeatedly implored
Kelly Hogg to have him hospitalized because he could not eat or stomach his medicine
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due to the vomiting. Kelly Hogg denies Strayer ever requesting medical care, testifying
that Strayer never submitted pink sheets. (Hogg Dep. at 14).
Furthermore, undisputed evidence establishes that Strayer spent much of his days
prior to hospitalization on the floor of the cell, obviously ill and unable to eat. The
uncontradicted testimonies of Strayer and Brewington indicate that jail guards had
numerous opportunities to witness Strayer’s condition, from the distribution of food trays
to conducting prisoner counts and searches. Moreover, the parties designate conflicting
expert testimony as to whether jail staff should have attended to Strayer in the days prior
to August 3 and whether the alleged failure caused or exacerbated Strayer’s condition.
Thus, Plaintiffs have presented sufficient evidence to establish genuine disputes of fact as
to breach of duty and proximate cause.
V.

Conclusion
For the foregoing reasons, the court GRANTS in part and DENIES in part

Defendants’ Motion for Summary Judgment (Filing No. 92). The court GRANTS the
motion as to Kelly Strayer’s loss of consortium claim and DENIES the motion as to
Plaintiffs’ negligence claim.

SO ORDERED this 28th day of March 2016.
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.
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