Holt et al v. Campbell County, Kentucky et al

Filing 243

MEMORANDUM OPINION & ORDER: It is ordered that the motion of the Campbell County defendants for partial summary judgment as to the plaintiff, David Weber 132 be and is hereby GRANTED; the motion of Southern Health Partners for summary judgment as to plaintiff, David Weber 210 be and is hereby GRANTED AS TO PLAINTIFF'S FEDERAL CLAIM and Plaintiff David Weber's state law claims be and are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge William O. Bertelsman on 06/07/2013.(TED)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON

CIVIL ACTION NO. 2009-082 (WOB-JGW)
ANTHONY HOLT, ET AL.
VS.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

CAMPBELL COUNTY, KENTUCKY,
ET AL.

DEFENDANTS

This is an action by former detainees at the Campbell
County Detention Center (CCDC) against the County and
Southern Health Partners (SHP) alleging cruel and unusual
punishment in violation of the 8th and 14th Amendments and
plaintiffs= civil rights under 42 U.S.C. ' 1983.

Plaintiffs

also allege state law claims.
This matter is currently before the Court on the
motion of the Campbell County defendants for partial
summary judgment as to plaintiff, David Weber (Doc. #132),
and the motion of Southern Health Partners for summary
judgment as to plaintiff, David Weber (Doc. #210).
Having reviewed the parties’ supplemental letter
briefs (Doc. 242), the Court concludes that oral argument
is unnecessary to the resolution of these motions.

The

Court therefore issues the following Memorandum Opinion and
Order.

Factual and Procedural Background
A.

Facts Common to All Claims

Since February 1, 2007, the CCDC has had a contract
with SHP pursuant to which SHP provides “all professional
medical, mental health, dental and related health care and
administrative services” for CCDC inmates, including sick
call, nursing care, regular and emergency physician care.
(Doc. 132-1).

SHP, in turn, contracts with a physician

and employs nurses to staff the CCDC.

These arrangements

were in place at all times relevant to this action.
Plaintiffs filed this case on June 17, 2009, as a
proposed class action.

(Doc. 1).

On June 1, 2010,

plaintiff filed a Second Amended Class Action Complaint,
which is the operative complaint herein.

(Doc. 38).

Plaintiffs allege that they were denied medical attention
for their serious medical needs in violation of their 8th
and 14th Amendment rights.

(Doc. 38 ¶¶ 331-32).

Plaintiffs

also allege negligent or intentional infliction of
emotional distress, negligence, loss of consortium, and
wrongful death.
On July 9, 2010, this Court denied plaintiffs’ motion
for class certification.

(Doc. 48).

Discovery ensued and,

after numerous extensions, the pending motions for summary
judgment were filed and briefed.
2

B.

Plaintiff David Weber

Plaintiff David Weber (“Weber”) was incarcerated at
the CCDC from September 12, 2007 to August 6, 2008.
Approximately a year before his incarceration, Weber had
suffered a work-related ankle sprain for which he had been
prescribed Lyrica (a nerve block), Elavil (antidepressant),
and Percocet.

At the time of booking, Weber reported that

he was being treated for nerve damage in his left leg below
the knee and drug withdrawal, and he also reported that he
had a history of seizures and drug dependency problems.
(Doc. 210-3).
The day after he was admitted, Weber submitted a sick
call slip complaining of “nerves & panic attack voices
every once in a while mind is racing no sleep but very
little clostephobic [sic].”

(Doc. 210-4).

The SHP medical

staff obtained his medical records, which stated that Weber
had a history of “polysubstance” abuse, including opiates;
that he “feigned” illness; that he had presented at the St.
Elizabeth Medical Center on May 29, 2007, threatening
suicide if something was not done about his pain and he
became “very hostile and uncooperative” when told that his
Percocet would not be continued; that he had been going to
various area emergency rooms to get narcotics; and that he
was “rather manipulative in regards to his pain condition.”
3

(Doc. 210-8, Doc. 132 Exh. 4).
Based on this information and on their examinations of
Weber, SHP medical staff provided Weber with over-thecounter pain medications, medication for his seizures which
also is used to decrease nerve pain, and, in June 2008,
Elavil.

Weber submitted numerous sick call requests on

various issues, including pain in his left and right leg.
He was examined by medical staff, who found no objective
indications of abnormalities.
On June 8, 2008, Weber wrote a grievance addressed to
Chief Deputy Jim Daley complaining about Nurse Amanda
Pangallo’s “smart mouth” and the delay in providing him
with Tylenol.

(Doc. 132-20).

Daley requested information

from the medical staff and, on June 16, 2008, responded to
Weber:
Mr. Weber, I am in receipt of your grievance dated
June 8, 2008. Information from your grievance was
sent to medical for a response and a response was
received on June 10, 2008. The information provided
was that you were seen originally on May 29, 2008 and
placed on medicine for pain in your leg.
Additionally, it is my understanding that you were
seen on June 10, 2008 and assessed for further
treatment and that you would be put on different
medication for pain as necessary.
Concerning the issues you have with medical staff,
these concerns were forwarded to the medical
department for investigation. I will follow up with
the medical supervisor to determine what issues exist
and what action is to be taken concerning their
personnel.
4

(Doc. 132-21).
On June 30, 2008, Weber submitted another grievance,
thanking Daley for “getting my medicine the first time” but
complaining that the medical staff had “run out” of his
pain medication.

(Doc. 132-22).

Daley investigated the

matter and responded to Weber on July 14, 2008:
I reviewed your grievance and medical records relative
to same. Records indicate that you are getting the
medicines that you are supposed to get. The one
exception appears to be one day records indicate you
did not get up for med pass.
Beyond the above I can not see that you are not
getting any medicine that you are supposed to be
getting. If there are additional medicines that you
are supposed to be getting please provide the details
and I can follow up with the medical department.
(Doc. 132-23).
While incarcerated at CCDC, Weber never spoke to
Buckler, the Jailer.

(Weber Depo. 33).

Upon discharge from the CCDC, Weber returned to his
treating physician and was again prescribed various
narcotic pain medications.

5

Analysis1
A.

Legal Standards

Section 1983 prohibits any “person who, under color of
any statute, ordinance, regulation, custom, or usage, of
any State” from depriving any U.S. citizen “of any rights,
privileges, or immunities secured by the constitution and
laws.”

Plaintiff argues that his Eighth Amendment rights

to be free from cruel and unusual punishment were violated.
“As applied to prisoners, this constitutional
guarantee encompasses a right to medical care for serious
medical needs.”

Perez v. Oakland County, 466 F.3d 416, 423

(6th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97,
103-04 (1976)).

However, because the Eighth Amendment

prohibits mistreatment only if it is tantamount to
“punishment,” courts have imposed liability upon prison
officials only where they are “so deliberately indifferent
to the serious medical needs of prisoners as to
unnecessarily and wantonly inflict pain.”

Perez, 466 F.3d

at 423 (internal quotations and citation omitted).
“Negligence or medical malpractice alone cannot
sustain an Eighth Amendment claim, absent a showing of

1

Weber concedes that CCDC defendants Fickenscher and
“Fisher” and SHP defendants Ernest and Dawes should be
dismissed. There is no defendant named “Fisher” – it
appears that plaintiff meant defendant “Fletcher.”
6

deliberate indifference.”

Id. (citing Estelle, 429 U.S. at

105-06).
“Deliberate indifference” has both an objective and a
subjective component.

Id. (citing Comstock v. McCrary, 273

F.3d 693, 702 (6th Cir. 2001)).

With respect to medical

needs, the need “must be objectively, ‘sufficiently
serious.’”

Id. at 423-24 (quoting Farmer v. Brennan, 511

U.S. 825, 834 (1994)).
“In considering the subjective component, this circuit
has emphasized that a plaintiff must produce evidence
showing that the official being sued subjectively perceived
facts from which to infer substantial risk to the prisoner,
that he did in fact draw the inference, and that he then
disregarded that risk.”
and citation omitted).

Id. at 424 (internal quotations
“[A]n official’s failure to

alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot under
our cases be condemned as the infliction of punishment.”
Farmer v. Brennan, 511 U.S. 825, 838 (1994).

See also id.

at 842 (official must act or fail to act “despite his
knowledge of a substantial risk of serious harm”).
The subjective component “prevents medical-malpractice
claims from being transformed into constitutional claims.”
Quigley v. Thai, 707 F.3d 675, 681 (6th Cir. 2013)
7

(citation omitted).
B.

Qualified Immunity

Assuming a plaintiff raises a triable issue as to
whether a constitutional violation occurred, a public
official sued in his or her individual capacity may still
be shielded from suit under the doctrine of qualified
immunity.

All defendants here assert this defense.

“The doctrine of qualified immunity protects
government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.’” Pearson v. Callahan,
129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)).

“The protection of qualified

immunity applies regardless of whether the government
official’s error is ‘a mistake of law, a mistake of fact,
or a mistake based on mixed questions of law and fact.’”
Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)
(Kennedy, J., dissenting)).
C.

Application to Weber’s Claims

The parties disagree as to whether plaintiff’s ankle
pain constitutes a “serious medical condition” for Eighth

8

Amendment purposes.2

The Court will assume for purpose of

the present motions that plaintiff’s ankle pain satisfies
this requirement.
The Court next must examine the facts as they pertain
to each defendant.

See Phillips v. Roane County, Tenn.,

534 F.3d 531, 542 (6th Cir. 2008) (noting that where court
is faced with multiple defendants asserting qualified
immunity defenses, it must “consider whether each
individual defendant had a sufficiently culpable state of
mind”).
1.

Campbell County Defendants

Plaintiff concedes that Greg Buckler, the former
Jailer, had no contact with plaintiff during his
incarceration, nor was Buckler involved in any of the
medical decisions involving plaintiff.

Because respondeat

superior is not available as a basis for liability under §
1983, Buckler is thus entitled to summary judgment.3

2

Plaintiff testified in his deposition that he is only
pursuing claims based on defendants’ treatment of his
ankle/leg pain. (Weber Depo. 45). The Court thus does not
address here counsel’s arguments regarding mental health
issues.
3

Plaintiff argues that Buckler was aware of general
problems with the medical contractor at the CCDC. That,
however, provides no basis for the claim against him in his
individual capacity where it is undisputed that Buckler
played no role in plaintiff’s care.
9

Jim Daley’s only involvement with plaintiff was to
deny the two grievances that plaintiff filed, after
checking with the medical staff regarding the treatment
that plaintiff received.

“The mere denial of a prisoner’s

grievance states no claim of constitutional dimension.”
Alder v. Corr. Med. Serv., 73 F. App’x 839, 841 (6th Cir.
2003) (citing cases holding that denial of grievance is not
the same as the denial of a request to receive medical
care); Sharpe v. Patton, Civil Action No. 08-CV-58-HRW,
2010 WL 227702, at *8 (E.D. Ky. Jan. 19, 2010) (denial of
grievance concerning medical treatment “does not constitute
sufficient involvement to establish liability under” §
1983).4
As to Campbell County itself, plaintiff’s claim fails
because he has shown no violation of his constitutional
rights.

See Blackmore v. Kalamazoo County, 390 F.3d 890,

900 (6th Cir. 2004) (“A municipality or county cannot be
liable under § 1983 absent an underlying constitutional
violation by its officers.”) (citation omitted).
Moreover, plaintiff actually admits – perhaps
inadvertently – that Campbell County has adequate policies

4

There are four CCDC deputies also named in the Complaint
(Craig, Young, Cummins, and Music), but plaintiff has cited
no evidence that they were involved with plaintiff or his
medical care.
10

in place concerning inmate medical care.

(Doc. 158 at 22).

Although plaintiff alleges those policies were not followed
here, such an allegation does not advance his municipal
liability claim.

See Graham v. County of Washtenaw, 358

F.3d 377, 385 (6th Cir. 2004) (“There can be no municipal
liability where an otherwise sound program has occasionally
been negligently administered.”) (citation and internal
quotations omitted).
Plaintiff also has adduced no admissible evidence of a
clear and persistent pattern of deliberate indifference to
inmate medical needs.

This Court has already held in

another case that the same affidavits submitted by
plaintiff here regarding allegedly poor care at the CCDC
are: (1) inadmissible for a variety of reasons, and (2)
even if admissible, inadequate as a matter of law to
support a municipal liability claim against Campbell
County.

Fryman v. Campbell County, Covington Civil Action

No. 09-114-WOB-JGW, Docs. 25, 30.5
The Campbell County defendants are thus all entitled
to summary judgment.6

5

The Court thus need not reach plaintiff’s argument that
the CCDC maintains a “no narcotics” policy.
6

The Court thus need not reach the issue of qualified
immunity, although the individual defendants would
obviously be entitled to that defense given the absence of
11

2.

Southern Health Partner Defendants7

Plaintiff’s Eighth Amendment claim against the medical
staff rests almost exclusively on the fact that he did not
receive prescription-strength narcotic and non-narcotic
pain relievers but was instead given Ibuprofen, Tylenol,
Percogesic, anti-inflammatories, and Ace bandages to
address his ankle pain.
It is not disputed that SHP nurses responded to
plaintiff’s sick call slips by evaluating him and
prescribing him pain and other medications throughout his
incarceration.

After reviewing plaintiff’s medical records

which showed that plaintiffs had a history of opioid abuse,
SHP determined not to prescribe plaintiff the narcotic
medications he had been taking prior to booking in at the
CCDC.

Plaintiff has shown no evidence that the SHP medical

personnel, in choosing which medications to give plaintiff,
subjectively perceived any risk of serious harm to
any constitutional violation.
7

Apart from mentioning defendants Pangallo and Mullins
specifically as having signed two of plaintiff’s sick call
slips (Doc. 216 at 13), plaintiff fails to explain which of
the SHP defendants dealt with plaintiff on which occasions,
or how they individually demonstrated “deliberate
indifference” to his medical needs. Instead, plaintiff
simply refers to SHP’s actions collectively. However,
because the evidence does not demonstrate any deliberate
indifference even as to the actions of SHP viewed as a
whole, the Court need not parse out these details, on which
plaintiff bears the burden.
12

plaintiff and then disregarded that risk.
This case is similar to Holloway v. Delaware County
Sheriff, 700 F.3d 1063 (7th Cir. 2012), in which the
Seventh Circuit recently rejected an Eighth Amendment claim
by a detainee who suffered from a chronic pain condition.
Prior to his incarceration, the plaintiff had been
prescribed Oxycontin to treat his pain.

Id. at 1066.

The

jail physician did not believe that Oxycontin was necessary
and instead prescribed the plaintiff non-narcotic pain
medications.

When the plaintiff was eventually released,

his doctor again prescribed him Oxycontin.
The plaintiff sued under § 1983 claiming that he
experienced intense pain because the medication prescribed
by the jail doctors was insufficient to treat his pain.
Id. at 1073.

The Seventh Circuit affirmed the grant of

summary judgment to the jail doctor and nurses, stating:
Surely Holloway would have preferred to have been
treated by a doctor who would have prescribed
Oxycontin to treat his chronic pain rather than the
nonnarcotic substitutes, but a prisoner is not
entitled to receive “unqualified access to
healthcare.” . . . Instead, prisoners are entitled
only to “adequate medical care.” . . . For a medical
professional to be held liable under the deliberate
indifference standard, he must make a decision that is
“such a substantial departure from accepted
professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did
not base the decision on such a judgment.
Id. (citations omitted).
13

The Court further held that prison medical personnel
need not “defer to the judgment of a doctor who treated an
inmate prior to his detention.”

Id. at 1074.

“Rather, the

prison physician, as the inmate’s acting primary care
doctor, is free to make his own, independent medical
determination as to the necessity of certain treatments or
medications, so long as the determination is based on the
physician’s professional judgment and does not go against
accepted professional standard.”

Id. (citations omitted).

The same outcome is warranted here.

While plaintiff

would have preferred the drugs he took prior to entering
the CCDC, it is well established that a difference of
opinion as to the approach to an inmate’s medical treatment
does not demonstrate the “deliberate indifference”
necessary to state a claim under the Eighth Amendment.

See

White v. Corr. Med. Serv., Inc., 94 F. App’x 262, 264 (6th
Cir. 2004) (“Although White did not receive the care he
wanted, the conduct he alleged did not constitute a
deliberate indifference to his medical needs.”); Graham v.
County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004)
(noting that where “a prisoner has received some medical
attention and the dispute is over the adequacy of the
treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims
14

that sound in state tort law.”) (citation omitted); Alder
v. Corr. Med. Serv., 73 F. App’x 839, 841-42 (6th Cir.
2003) (difference of opinion as to treatment does not rise
to level of Eighth Amendment violation); McKee v. Turner,
No. 96-3446, 1997 WL 525680, at *5 (6th Cir. Aug. 25,
1997); Sharpe v. Patton, Civil Action No. 08-CV-58-HRW,
2010 WL 227702, at *10-11 (E.D. Ky. Jan. 19, 2010).
Finally, the report of plaintiff’s expert witness, Dr.
Joseph Parris, raises no triable issue.
25).

(Doc. 158-1 at 15-

First, the report contains no opinion that implicates

the CCDC defendants.

As to SHP, Parris states that it is

“understandable that Campbell County Jail staff would be
reluctant to place Weber on narcotics in view of his
previous history of drug abuse.”

(Id. at 24).

Although

Dr. Parris then opines that the medical staff should have
provided plaintiff with different medications, and that the
failure to do so “conforms to a pattern of deliberate
indifference,” (id. at 25), such an opinion as to
conclusion of law is inadmissible.

Cutlip v. City of

Toledo, 488 F. App’x 107, 119-20 (6th Cir. 2012) (citation
omitted).
Finally, Dr. Parris’s report is silent as to the
subjective perception of these defendants, and the record
thus remains devoid of evidence that would satisfy this
15

element.
All defendants are thus entitled to summary judgment
on Weber’s § 1983 claim.

Given this disposition, the Court

will decline to exercise its supplemental jurisdiction over
Weber’s state law claims.

See 28 U.S.C. § 1367(c).

Therefore, having reviewed this matter, and the Court
being otherwise sufficiently advised,
IT IS ORDERED that the motion of the Campbell County
defendants for partial summary judgment as to plaintiff,
David Weber (Doc. #132) be, and is hereby, GRANTED; (2) the
motion of Southern Health Partners for summary judgment as
to plaintiff, David Weber (Doc. #210) be, and is hereby,
GRANTED AS TO PLAINTIFF’S FEDERAL CLAIM; and (3) Plaintiff
David Weber’s state law claims be, and are hereby,
DISMISSED WITHOUT PREJUDICE.

This 7th day of June, 2013.

16