Holt et al v. Campbell County, Kentucky et al

Filing 246

MEMORANDUM OPINION & ORDER: It is ordered that motion of the Campbell County defendants for partial summary judgment as to plaintiff, Elmer Ray Turner 134 be and is hereby GRANTED; 2) Motion of Southern Health Partners for summary judgment as to plaintiff, Elmer Ray Turner 212 be and is hereby GRANTED AS TO PLAINTIFF'S FEDERAL CLAIM and 3) Plaintiff Elmer Ray Turner's state law claims be and are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge William O. Bertelsman on 07/05/2013.(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, Elmer Ray Turner (Doc.
134), and the motion of Southern Health Partners for
summary judgment as to plaintiff, Elmer Ray Turner. (Doc.
212).
Having reviewed the parties’ briefs, 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 Elmer Ray Turner

Plaintiff Elmer Ray Turner (“Turner”) was incarcerated
at the CCDC from October 6, 2009 to November 13, 2009, just
over one month.
1.

(Turner Depo. at 13-14) (Doc. 153).
“Greens” Allergy

At the time he was booked into the CCDC, Turner told
the CCDC staff that he was not undergoing any current
medical treatment and did not have any of twenty-one listed
medical conditions.

However, he stated that that he was

allergic to “greens.”

(Doc. 134 Exh. D).

Turner testified that his assertion that he was
allergic to “greens” was based on the fact the he was told
by his pediatrician some forty years ago1 not to eat greens
after Turner complained they made him sick.
at 89-90).

(Turner Depo.

Turner alleges that the CCDC did not provide

him with an alternate vegetable choice and a daily
multivitamin that he needs as a result of this allergy.
On October 18, 2009, Turner made a written complaint
to Colonel Nagle, complaining that the prior jail doctor
had ordered him supplements, but that the current medical
staff told him that he needed documentation from a doctor
to support his request.

(Doc. 134 Exh. E).

1

Turner was forty-seven years old when he was booked into
the CCDC.
3

Two days later, on October 20, 2009, Turner submitted
a sick call slip, stating:

“Reminder!

Foot fungus, teeth

hurt, Neosporin and allergic [sic] to greens.”
F).

(Id. Exh.

When the medical staff requested that Turner sign a

release so that they could obtain records regarding his
allergy from his doctor, Turner refused.

(Id. Exh. G).

However, Turner denies that he refused to sign this
release.

(Turner Depo. at 161-62).

On October 29, 2009, Lt. Col. Fickenscher responded to
Turner’s complaint to Nagle:
Inmate Turner, I am in receipt of your grievance.
This information was passed to medical for information
for a response in regard to the medical issues in your
note. Medical has advised that they asked you to sign
a Release of Information so that they could get your
allergy records, but you refused. Medical cannot
request a different tray for you without proof of your
allergy. Please cooperate with them and sign the
release.
(Id. Exh. H).
Turner made no further complaints about his greens
allergy while incarcerated at the CCDC.

He also testified

that he has had no ongoing problems as a result of not
getting supplements while at the CCDC.
2.

(Turner Depo. 195).

Borderline Diabetes

Although not alleged in his complaint, Turner
testified in his deposition that he is “borderline
diabetic,” although he has never been diagnosed as such and
4

has never been treated by a doctor for this alleged
condition.

(Turner Depo. at 89, 93-95).

When booked into

the CCDC, Turner did not ask for medical treatment, and he
did not check the box marked “diabetes” on the medical
history form.

(Turner Depo. at 114, Doc. 134 Exh. D).2

However, he testified that the medical staff at the CCDC
tested his sugar at least once, and that “it tested high”
but nothing was done.

(Turner Depo. at 108, 149).

Turner

further testified that while he sometimes felt “shaky,” he
never requested medical attention for it.
194).

(Turner Depo.

He has not experienced any ongoing problems as a

result.

(Turner Depo. 196).
3.

Mold and Sewage Leaks

Third, Turner alleges that he was housed in Cell 105
which was infected with black mold, and that urine leaked
from walls and ceilings when the toilets in the cells above
were flushed, causing him headaches, sinus issues, and
respiratory problems.

(Sec. Am. Compl. ¶¶ 182-89) (Doc.

38); (Turner Depo. 97).

In his deposition, Turner

2

Plaintiffs’ expert, Dr. Joseph Paris apparently reviewed
records from a period when Turner was incarcerated at the
CCDC some six months before the incarceration at issue in
this case. (Doc. 212-16 at 1). Dr. Paris states that
those records reflect that the medical staff tested Turner
for diabetes, but that the results “are consistent with an
individual . . . who probably is not overtly diabetic.”
(Id.).
5

testified that his symptoms were “[n]ot really that severe”
or anything that he would cause him to see a doctor.
(Turner Depo. at 129-32).

Rather, the symptoms were akin

to feeling like he had a cold.

(Id. at 132).

On October 10, 2009, Turner submitted a sick call slip
complaining about the mold in the cell and stating that he
had developed a headache and cough.

(Doc. 134 Exh. I).

Turner was seen by medical staff four days later, but he
refused treatment.

(Id. Exh. J).

After approximately ten days, the jail fixed the
plumbing problems causing the leaks.
27).

(Turner Depo. at 126-

Turner was then transferred to a different cell for a

period of time, and when he was transferred back to Cell
105, the jail began painting and correcting the mold
problem.

(Id.).

Turner also wrote a letter to the Department of
Corrections (“DOC”) complaining about the mold and leaks.
(Id. Exh. K).

The DOC forwarded this letter to defendant

Buckler on October 26, 2009, who forwarded it to staff with
the direction to investigate Turner’s allegations regarding
the mold.

(Id. Exh. L).

Lt. Lisa Fletcher inspected the

cells and responded to the Captain in charge, explaining
that the “entire back pod” had been recently washed with a
mold and mildew machine; the showers had been sprayed; and
6

her inspection revealed no mold in Cell 105 nor any leaks,
but she had nonetheless asked the supervisor to treat the
cell again with mold and mildew spray.

(Id. Exh. M).

Fletcher also stated that the cells were scheduled to be
painted shortly.
Finally, Turner testified that he has no physical
injuries from the conditions in the CCDC about which he
complains, although he sometimes has headaches.
Depo. at 96-98).

(Turner

However, he does not know if the

headaches are related to the mold at the CCDC.

(Turner

Depo. at 196).
Analysis
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
7

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
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
8

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)
(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,
9

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 Turner’s Claims
1.

Objectively Serious Medical Condition

Having reviewed the record, the Court concludes that
Turner’s deliberate indifference claim fails as a matter of
law.

First, no reasonable jury could find that, at the

time he was incarcerated at the CCDC in late 2009, Turner
was suffering from an objectively serious medical condition
requiring treatment.
“A plaintiff may establish the serious medical needs
requirement in one of two ways.

First a medical need is

sufficiently serious if it is ‘so obvious that even a lay
person would easily recognize the necessity for a doctor’s
attention.’”

Blosser v. Gilbert, 422 F. App’x 453, 460

(6th Cir. 2011) (quoting Blackmore v. Kalamazoo County, 390
F.3d 890, 897 (6th Cir. 2004)).
Second, “if the medical need is less obvious, its
seriousness is evaluated by the effect of delay in
treatment,” and plaintiff must “place verifying medical
evidence in the record to establish the detrimental effect
of the delay in medical treatment.”

Id.

There is no evidence that Turner was ever diagnosed as
10

having an actual allergy to greens or that he was
“borderline” diabetic.

At the time that he booked into the

CCDC, he indicated that he was under no medical care and
was not taking any medications.

(Doc. 134 Exh. D).

Plaintiffs’ expert, Dr. Paris, noted that available
records indicated that Turner “probably is not overtly
diabetic.”

(Doc. 212-16 at 1).

Turner had produced no

verifying medical evidence that, at the time of this
incarceration, he was diabetic and that the lack of medical
treatment for such a condition at the CCDC caused him harm.
Indeed, Turner wholly fails to address his diabetes in his
responsive memorandum.
Dr. Paris further noted that Turner’s claim of an
allergy to all greens “is not supported by the medical
literature;” that Turner had no medical documentation of
such an allergy; that Turner “may have been expressing a
food preference;” and that Turner had no incidental medical
complications from this claimed condition.

(Id.).

Dr.

Paris thus declined to opine on the question of Turner’s
allergy.

(Id. at 2).

Finally, there is no evidence that Turner’s sinus and
respiratory problems allegedly resulting from his exposure
to mold in Cell 105 rose to the level of a serious medical
condition.

Turner testified that his symptoms were not
11

really serious and were akin to having a cold.
Depo. at 129-32).

(Turner

Further, Turner was in Cell 105 for a

relatively short duration of time before the problems were
fixed.
Turner thus cannot show as a matter of law that, while
incarcerated at the CCDC, he suffered from a serious
medical condition cognizable under the Eighth Amendment.
All defendants are thus entitled to summary judgment on
Turner’s § 1983 claim on this basis.
2.

Deliberate Indifference

Even if Turner could establish that he suffered from a
serious health condition, there is no evidence from which a
reasonable jury could conclude that any of the defendants
were deliberately indifferent to his medical needs.
a.

CCDC Defendants

As to the CCDC, Turner did not provide any medical
documentation of his need for special meals due to his
alleged greens allergy.

That he claims he did not refuse

to sign the medical release is immaterial, as it is
nonetheless undisputed that he knew it was the jail’s
position that such a request for special meals could not be
accommodated without such documentation, which Turner
himself could have taken steps to obtain.
Further, Turner has not shown that the CCDC perceived
12

any substantial risk to his health by not providing
alternative vegetables or a daily multivitamin,
particularly given the relatively short duration of his
stay.

While Turner testified that he thought he lost

weight during his approximately month-long stay, (Turner
Depo. at 160), he also testified that it was not so much
that someone else would have noticed.

(Turner Depo. at

165).3
As to the mold and leaks in Cell 105, Turner testified
that the plumbing issues were corrected in approximately
ten days.

While being in proximity to such conditions

would no doubt be unpleasant, such a brief exposure cannot
be said to rise to the level of punishment, whether
Turner’s claim is couched as a denial of medical treatment
claim or a conditions of confinement claim.

Further, upon

receipt of Turner’s complaint to the DOC, Buckler took
prompt measures with respect to the alleged mold and
mildew, even though Lt. Fletcher reported that she observed
no mold in Cell 105.
3

Q: Do you think you lost so much weight during your
incarceration at the jail that, you know, anyone who walked
up to you would know that you’re starving?
A: No, I wouldn’t say that.
Q: So it wouldn’t have been apparent that you were, you
know starving?
A: I wasn’t there that long.
(Turner Depo. at 166).
13

As to any other issue with Buckler or defendant Jim
Daley, Turner testified that he had no personal interaction
with them.

(Turner Depo. at 75-76).

Indeed, the CCDC has

introduced undisputed evidence that Daley was not employed
at the CCDC during this time period.
Finally, for the above reasons, there is no evidence
that defendants Fletcher and Fickenscher were indifferent
to Turner’s allegedly serious medical needs.4
With no underlying constitutional violation, Turner
can state no “municipal liability” claim as to Campbell
County.

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).5
For these reasons, all the CCDC defendants are

4

Turner makes no arguments in his response regarding
defendant Fletcher.
5

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.
14

entitled to summary judgment.6
b.

SHP Defendants7

The SHP defendants are also entitled to summary
judgment because Turner cannot show that he suffered from a
“serious health condition” during the incarceration at
issue here.
Moreover, even accepting plaintiff’s allegations, no
reasonable jury could find that the SHP defendants were
deliberately indifferent to a risk of serious harm to
Turner’s health.
Turner claims that SHP defendant Josh Ernest told
plaintiff that they did not have to treat Turner’s alleged
greens allergy.

This states no claim of deliberate

indifference because it is undisputed that Turner provided
no medical support for his claim that he needed a special
diet, and Turner had other food available to him such that
he did not need to eat the greens to which he was allegedly
allergic.

Indeed, Turner did not experience any allergic

reaction during his incarceration.
In fact, as noted, plaintiff’s expert states that
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
any constitutional violation.
7

Plaintiff concedes that defendants Pangallo, Mullins, and
Evans should be dismissed. (Doc. 215 at 1).
15

there is no medical support for plaintiff’s alleged
“greens” allergy, and he declined to opine as to this
claim.
With respect to Turner’s alleged reaction to mold,
Turner now concedes in his response to SHP’s motion for
summary judgment that “there is no claim for his treatment
of respiratory problems that are linked to the mold in his
cell.”

(Doc. 215 at 3).

As to his alleged borderline diabetes (which has never
been diagnosed by a doctor), Turner testified that he felt
shaky several times, but that he did not seek medical
treatment for it.

There is no evidence that any of the SHP

defendants knew of this alleged condition and were
deliberately indifferent to it.
Turner thus cannot raise a triable issue as to whether
the medical staff perceived a serious risk to his health
and then ignored that risk.
All defendants are thus entitled to summary judgment
on Turner’s § 1983 claim.

Given this disposition, the

Court will decline to exercise its supplemental
jurisdiction over Turner’s state law claims.
§ 1367(c).

16

See 28 U.S.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,
Elmer Ray Turner (Doc. 134) be, and is hereby, GRANTED; (2)
the motion of Southern Health Partners for summary judgment
as to plaintiff, Elmer Ray Turner (Doc. 212) be, and is
hereby, GRANTED AS TO PLAINTIFF’S FEDERAL CLAIM; and (3)
Plaintiff Elmer Ray Turner’s state law claims be, and are
hereby, DISMISSED WITHOUT PREJUDICE.

This 5th day of July, 2013.

17