Holt et al v. Campbell County, Kentucky et al
MEMORANDUM OPINION & ORDER: It is ordered that the motion of the Campbell County defendants for partial summary judgment as to plaintiff, Arvil Pennington 140 be and is hereby GRANTED; 2) the motion of Southern Health Partners for summary judgmen t as to plaintiff, Arvil Pennington 207 be and is hereby GRANTED AS TO PLAINTIFF'S FEDERAL CLAIM and 3) Plaintiff Arvil Pennington's state law claims be and are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge William O. Bertelsman on 09/17/2013.(TED)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 2009-082 (WOB-JGW)
ANTHONY HOLT, ET AL.
MEMORANDUM OPINION AND ORDER
CAMPBELL COUNTY, KENTUCKY,
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.
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, Arvil Pennington (Doc.
140), and the motion of Southern Health Partners for
summary judgment as to plaintiff, Arvil Pennington. (Doc.
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
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.
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.
On June 1, 2010,
plaintiff filed a Second Amended Class Action Complaint,
which is the operative complaint herein.
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).
also allege negligent or intentional infliction of
emotional distress, negligence, loss of consortium, and
On July 9, 2010, this Court denied plaintiffs’ motion
for class certification.
Discovery ensued and,
after numerous extensions, the pending motions for summary
judgment were filed and briefed.
Plaintiff Arvil Pennington
Plaintiff Arvil Pennington has been incarcerated at
the CCDC on numerous occasions; however, the only period of
time at issue in this matter is August 27, 2009 to December
Pennington first alleges that he received inadequate
treatment for withdrawal symptoms.
An intravenous heroin
user, Pennington began experiencing withdrawal symptoms the
day after he was booked into the CCDC.
(Doc. 140, Exh. 4).
He told jail staff of his symptoms, and he saw the medical
staff later that day.
(Doc. 140, Exh. 5)
prescribed him a daily dose of Phenergan to relieve his
Pennington alleges that this treatment was ineffective
and that he suffered from nausea, diarrhea, aches, loss of
appetite, and hot and cold flashes for about a week.
(Pennington Depo. at 62).
However, he did not fill out any
further sick call slips for withdrawal symptoms, and he did
not file a grievance regarding the alleged lack of
treatment for withdrawal.
(Id. at 65-66).
1 Pennington also originally included a claim based on his
treatment for a MRSA infection in 2007, but he has conceded
that that claim is time-barred. (Doc. 172 at 1).
Testing/Treatment for Hepatitis C
On September 3, 2009, Pennington submitted a sick call
slip requesting testing for HIV, hepatitis C, and sexuallytransmitted diseases.
(Doc. 140 Exh. 6).
testified that he thought he should have these tests
because he had used needles to take drugs, and he had
stomach pains and was tired all the time.
Depo. at 68-70).
He alleges that the nurses told him he
could not receive such blood tests at the CCDC.
Pennington also alleges that the nurses told him he
needed a court order to get such blood tests, so he sent a
letter/motion to the Campbell County Circuit Court at the
end of October or early November.
(Doc. 140 Exh. 7).
letter states that Pennington wanted such tests because of
his status as an IV drug user, but it does not state that
he was suffering any symptoms of such diseases.
A copy of Pennington’s letter was stamped as received
by CCDC Lt. Col. Dave Fickenscher on November 9, 2009.
Fickenscher treated the letter as a grievance and
responded to Pennington on November 17, 2009:
2 Pennington testified that he sent an additional letter to
the CCDC and medical staff similar in substance to this
motion, but defendants state no such letter was found in
Inmate Pennington, I am in receipt of your grievance.
This information was passed to medical for information
for a response in regards to the medical issues in
your note. Medical has advised that they do not test
for STD/HIV/Hepatitis unless complications arise. If
you have concerns you may fill out a sick call request
form and discuss your medical issues with the
(Doc. 140 Exh. 8).
Pennington did not appeal this
(Pennington Depo. 80).
On December 11, 2009, Pennington filed another sick
call slip requesting that he be tested for “Aids, Hep-C and
(Doc. 140 Exh. 9).
Medical responded that because
he was asymptomatic, no such testing would be ordered.
Pennington filed a second motion with the Campbell
Circuit Court requesting testing, which is stamped as
received by the CCDC on December 16, 2009.
(Doc. 140 Exh.
Fickenscher again treated the motion as a grievance,
requested information from the medical staff, and responded
to Pennington that “[n]ecessary medical treatment does not
include testing for infectious diseases for which you have
(Doc. 140 Exh. 12).
appeal this response.
Pennington did not
(Pennington Depo. 83).
On December 28, 2009, Pennington was transferred to a
state prison, where he later tested positive for hepatitis
(Pennington Depo. 32).
He has since had his blood
tested every 90 days, but his enzyme levels have not been
elevated and he has not required medication.
(Id. at 44).
He was also tested for HIV and STDs, and those tests were
Since being discharged from the CCDC, Pennington has
not been treated for any injuries that he claims he
suffered as a result of his medical treatment at the jail.
(Id. at 46-47).
Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides
that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted.”
42 U.S.C. §
Under this provision, “a prisoner must exhaust
all of his available remedies before filing a § 1983 action
in federal court.”
Brock v. Kenton County, Ky., 93 Fed.
App’x 793, 796 (6th Cir. 2004) (citation omitted).
is, under the PLRA, exhaustion of available administrative
remedies is a mandatory pre-condition to filing suit in
Id. at 798 (citation omitted).
“The Sixth Circuit requires some affirmative efforts
to comply with the administrative procedures before
analyzing whether the facility rendered these remedies
Napier v. Laurel Jackson, Ky., 636 F.3d 218,
224 (6th Cir. 2011) (citation omitted).
See also Brock, 93
F. App’x at 798 (noting that the prisoner “must make some
affirmative efforts to comply with the administrative
procedure” and that the procedures are “unavailable” only
where, despite the prisoner’s efforts, the facility thwarts
the inmate’s attempts at exhaustion).
It is not disputed that Pennington was incarcerated at
the time this lawsuit was filed, and he is thus a
“prisoner” for purposes of PLRA exhaustion.3
claims clearly pertain to “conditions of confinement” as he
alleges that he received inadequate medical care while
incarcerated at the CCDC.
Further, defendants have attached to their motion for
summary judgment evidence of the CCDC’s grievance process
and the means through which inmates are informed of it.
(Doc. 140-2, Affidavit of Greg Buckler).4
It does not matter that the plaintiff was incarcerated at
a facility other than the one where the alleged
mistreatment occurred. Id. at 222.
Indeed, this Court has already held in this matter that
the CCDC has an administrative grievance process which is
communicated to inmates. See Doc. 131.
put forward this evidence, Pennington is “required to
present ‘significant probative evidence’ to defeat the
motion for summary judgment on this ground.”
F.3d at 225 (citation omitted).
Pennington concedes that he did not attempt to file a
grievance concerning the allegedly inadequate treatment for
withdrawal symptoms (Doc. 172 at 4), although he was aware
that if he was dissatisfied with his medical care at the
CCDC he could file a grievance.
(Pennington Depo. 62).5
Under the above authority, therefore, Pennington’s claim
based on the treatment for withdrawal is barred for failure
to exhaust under the PLRA.
However, even if the Court assumes that Pennington’s
claim is not barred for lack of exhaustion, it still fails
as a matter of law.
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,
Plaintiff’s brief states: “Early on in his incarceration,
when the withdrawal symptoms were occurring he was not
aware that an inmate could file a grievance.” (Doc. 172 at
4). This misrepresents Pennington’s testimony. He
testified that he did not know he could get medical
treatment during the booking process, but that he knew
generally that he could request medical treatment while
incarcerated at the CCDC. The cited testimony says nothing
about the grievance process.
privileges, or immunities secured by the constitution and
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
Perez v. Oakland County, 466 F.3d 416, 423
(6th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97,
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
Id. (citing Estelle, 429 U.S. at
“Deliberate indifference” has both an objective and a
Id. (citing Comstock v. McCrary, 273
F.3d 693, 702 (6th Cir. 2001)).
With respect to medical
needs, the need “must be objectively, ‘sufficiently
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)
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
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)).
Application to Pennington’s Claims
Objectively Serious Medical Condition
“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
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.”
Courts “have found withdrawal symptoms to qualify as a
serious medical need.”
French v. Daviess County, Ky., 376
F. App’x 519, 522 (6th Cir. 2010) (citations omitted).
Court will thus assume that Pennington’s withdrawal
symptoms constituted a serious medical need.
As to hepatitis C, however, Pennington’s alleged
symptoms -– fatigue and abdominal pains -- were not
“obvious” to a layperson, and Pennington must thus meet the
above evidentiary standard by adducing medical evidence
that the alleged delay in treatment had a detrimental
Pennington has not done so.
Indeed, he testified in his deposition that he is not
alleging that he had any liver or kidney damage as a result
of not being tested for hepatitis C at the CCDC, and no
doctor has ever told him that he has any such damage.
(Pennington Depo. 90, 102).
Further, plaintiffs’ expert
witness, Dr. Joseph Paris, opined that Pennington suffered
no medical complications from the alleged deficiencies in
his medical care at the CCDC.
(Doc. 140 Exh. 10 at 3).6
Further, even if the lack of testing for hepatitis
constituted a serious health condition, Pennington cannot
raise a triable issue as to deliberate indifference. Dr.
Paris also opined that Pennington’s liver function tests
were normal, he was “asymptomatic,” he was not a candidate
for hepatitis therapies due to his relatively short stay at
Thus, the only serious medical condition which may
form the basis for Pennington’s § 1983 claims is his
treatment for withdrawal symptoms.
Assuming Pennington’s heroin withdrawal constituted a
serious health condition, there is no evidence from which a
reasonable jury could conclude that any of the defendants
were deliberately indifferent to that medical need.
Specifically as to the CCDC defendants7, it is not
disputed that the deputy jailers do not make decisions as
to which inmates receive medical care or what care they
receive; rather, such decisions are made by the medical
(Pennington Depo. 61).
Inmates submit sick call
slips directly to the nurses, who decide what action to
take in response.
Moreover, Pennington testified that he does not know
who Jim Daley is and has never talked to him.
Indeed, it is not disputed that Daley was not
working at the CCDC during the time period at issue here.
(Daley Depo. 64, 67).
Similarly, Pennington concedes that
the CCDC, and he suffered no adverse effects from the lack
of testing. (Doc. 140, Exh. 10 at 3).
Pennington has conceded that he has no claim against
defendant Lisa Fletcher. (Doc. 172 at 1).
he had no contact with defendant Greg Buckler.
Pennington thus cannot show that either of these
defendants were subjectively aware of his medical condition
and were deliberately indifferent to it.8
Finally, Pennington has adduced no evidence that
defendant Fickenscher was aware of Pennington’s withdrawal
symptoms or played any role in the treatment he received
(Doc. 172 at 14).
As to Campbell County itself, Pennington’s claim fails
because he has shown no violation of his constitutional
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, Pennington actually admits that Campbell
County has adequate policies in place concerning inmate
(Doc. 172 at 15).
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
Pennington argues that these two defendants were aware
generally of problems with the medical care at the CCDC.
That, of course, provides no basis for the claims against
these defendants in their individual capacities where it is
undisputed that they played no role in Pennington’s medical
Cir. 2004) (“There can be no municipal liability where an
otherwise sound program has occasionally been negligently
administered.”) (citation and internal quotations omitted).
Pennington also has adduced no admissible evidence of
a clear and persistent pattern of deliberate indifference
to inmate medical needs.
This Court has already held 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.
For these reasons, all the CCDC defendants are
entitled to summary judgment.9
No reasonable jury could find that the SHP defendants
were deliberately indifferent to a risk of serious harm to
Medical staff evaluated Pennington the same day that
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.
Pennington has conceded that defendants Mullins, Evans,
and Pangallo should be dismissed because they did not work
at the CCDC during the time period in question. (Doc. 213
he first complained of withdrawal symptoms and put him on a
heroin withdrawal protocol, prescribing him a daily dose of
(Doc. 207, Exhs. 2,3)
alleges that he continued to suffer symptoms, he has
adduced no evidence that the medical staff, in choosing
which medication to prescribe him, subjectively perceived
any risk of serious harm to him and then disregarded that
Indeed, Pennington concedes that he filled out no
further sick call slips pertaining to his withdrawal, and
his symptoms subsided within a week.
Further, Pennington testified that he did not suffer
any permanent injuries due to the alleged inadequacy in the
treatment he received for his withdrawal symptoms.
(Pennington Depo. 67).
His expert, Dr. Paris, states in a
conclusory fashion that the treatment for withdrawal “was
lacking” and “may” have constituted deliberate
indifference, but at the same time he opines that
Pennington suffered no medical complications as a result.
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 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).
Pennington 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 Pennington’s § 1983 claim.
Given this disposition, the
Court will decline to exercise its supplemental
jurisdiction over Pennington’s state law claims.
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,
Arvil Pennington (Doc. 140) be, and is hereby, GRANTED; (2)
the motion of Southern Health Partners for summary judgment
as to plaintiff, Arvil Pennington (Doc. 207) be, and is
hereby, GRANTED AS TO PLAINTIFF’S FEDERAL CLAIM; and (3)
Plaintiff Arvil Pennington’s state law claims be, and are
hereby, DISMISSED WITHOUT PREJUDICE.
This 17th day of September, 2013.
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