Holt et al v. Campbell County, Kentucky et al

Filing 254

MEMORANDUM OPINION & ORDER: It is ordered that the motions of the Campbell County defendants for partial summary judgment as to plaintiffs Alma Jarman, Robin Dunaway and Christina Dunaway 166 182 be and are hereby GRANTED; 2) Motion of Southern H ealth Partners for summary judgment as to these three plaintiffs 170 be and is hereby GRANTED AS TO PLAINTIFFS' FEDERAL CLAIMS; and 3) Plaintiffs' state law claims be and are hereby DISMISSED WITHOUT PREJUDICE. Signed by Judge William O. Bertelsman on 09/25/2013.(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
motions of the Campbell County defendants for partial
summary judgment as to plaintiffs Alma Jarman and Robin
Dunaway (Doc. 166), who are the co-administrators of the
Estate of Ernest Dunaway, and plaintiff Christina Dunaway
(Doc. 182), a daughter of Ernest Dunaway; and the motion of
Southern Health Partners for summary judgment as to the
claims of these three plaintiffs.

(Doc. 170).

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,

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

(Doc. 38).

Plaintiffs Alma Jarman and Robin Dunaway –- respectively,
the mother and a daughter of Ernest Dunaway -– joined this
lawsuit via the Second Amended Complaint.
Plaintiffs allege that they or their decedents were
denied medical attention for their serious medical needs in
violation of their 8th and 14th Amendment rights.
¶¶ 331-32).

(Doc. 38

Plaintiffs also allege negligent or

intentional infliction of emotional distress, negligence,
2

loss of consortium, and wrongful death.
On July 9, 2010, this Court denied plaintiffs’ motion
for class certification.

(Doc. 48).

Plaintiff Christina Dunaway, also a daughter of Ernest
Dunaway, filed a separate lawsuit on March 24, 2011, Cov.
Civ. Action No. 11-58, which this Court consolidated with
the Holt action.

However, Christina is not an

administrator of her father’s Estate.

She alleges a claim

under § 1983 and a claim for loss of consortium.
After extended discovery, the pending motions for
summary judgment were filed and briefed.
B.

Decedent Ernest Dunaway

Ernest Dunaway was incarcerated at the Carroll County
Jail in late 2008 on drug trafficking charges.

Before

completing his sentence, however, he was granted a medical
furlough and was admitted to St. Luke Hospital in Ft.
Thomas, Kentucky for treatment for hepatitis C and
cirrhosis of the liver.

(Doc. 166 Exh. 4).

Dunaway was

released from the hospital on January 15, 2009, with
instructions to follow up with his physician, and he
returned to the Carroll County Jail.
On February 5, 2009, Carroll County transferred
Dunaway to the CCDC.

At booking, Dunaway told the deputy

that he had “multiple stomach problems” and took “several
3

medications,” but he did not state that he had hepatitis C
or cirrhosis.

(Doc. 166 Exh. 8).

The next day, however, the Carroll County Jail
transferred Dunaway’s medical records to the CCDC, where
they were reviewed by SHP Nurse Autenrieb, who started
Dunaway on his medications: Tramadol, a multivitamin,
Neomycin, Sprironolactone, Omeprazole, Thiamine,
Furosemide, and lactulose.

(Doc. 166 Exh. 10 at 1).

On February 16, 2009, Dunaway was taken to medical for
a general history and physical examination, but he refused
to be examined.

(Doc. 166 Exh. 10 at 1; Doc. 170 Exh. 3).

The nurse’s notes reflect that Dunaway was screaming and
hallucinating during this encounter.
1).

(Doc. 166 Exh. 10 at

Dunaway was therefore moved to a medical cell for

observation.

When he was later observed to be non-verbal

with moderate tremors, the SHP doctor ordered that he be
taken by EMT to the emergency room at St. Luke Hospital.
(Doc. 166 Exh. 10 at 2).
St. Luke discharged Dunaway two days later, on
February 18, 2009, with diagnoses of delirium from liver
disease and hepatitis; drug abuse history; subclinical
sinus infection; and lactulose pneumonia, stable.
166 Exh. 14)

(Doc.

The hospital also ordered two new

medications, Norvasc and Keflex, which Dunaway began
4

receiving once back at the CCDC.

(Doc. 166 Exh. 10 at 2).

Per the doctor’s order, Dunaway was also placed on a low
sodium, low protein diet.

(Id.).

On February 19, 2009, Dunaway submitted a sick call
slip stating that he needed to see medical as soon as
possible, but the slip did not state what his medical
problem was.

(Doc. 170 Exh. 5).

On February 25, 2009, Dunaway submitted a grievance to
CCDC Captain James Young stating that he was not getting
the correct medications at the correct times.
Exh. 15).

(Doc. 166

Young consulted with medical staff the same day,

who reported that Dunaway’s medications had been adjusted
because he was on several different diuretics and blood
pressure medication, and also that his Tylenol had been
discontinued because he had been prescribed Tramadol for
pain.

(Doc. 166 Exh. 16 at 2).

Young then responded to

Dunaway’s grievance, explaining that medical had “reevaluated your situation and your medications are correct.”
(Id. at 1).
From late February through late March, Dunaway
submitted sick call slips regarding kidney and liver pain;
urinary tract infections; a request for new glasses and ear
cleaning; nausea caused by the jail food; a chemical burn
from sitting on a toilet when it still had cleaning product
5

on it; and vomiting.

(Doc. 170 Exhs. 6-15).

Medical staff

examined Dunaway multiple times; obtained urine and blood
pressure tests; prescribed a burn cream for the chemical
burn; and prescribed Phenargan for nausea and Ibuprofen for
a low-grade fever.

(Id.).

On March 22, 2009, Dunaway filled out a sick call slip
complaining of high fever, chills, nausea, and
infection/swelling in his right leg.

(Doc. 166 Exh. 18).

That same day, medical staff administered an antibiotic and
monitored Dunaway.

Doc. 166 Exh. 10 at 3).

When the

swelling and redness had not improved by the next day, the
SHP doctor ordered that Dunaway be taken back to the
hospital.

(Id. at 4; Exh. 18).

Dunaway was admitted to St. Luke, where he was
diagnosed with cellulitis of the lower right leg and
administered intravenous antibiotics.

(Doc. 166 Exh. 19).

He remained in the hospital from March 23 until April 1,
2009, when he was discharged back to the CCDC.

His

discharge notes state: “His other medical problems of
cirrhosis, edema, anxiety, depression were otherwise
stable.”

(Id.).

Upon his return to the CCDC, Dunaway was

given his prescribed outpatient antibiotics.

(Doc. 166

Exh. 10 at 4).
On April 3, 2009, SHP nurses examined Dunaway and
6

noted that he had no complaints of pain.

(Id.).

Two days later, on April 5, Dunaway completed a sick
call slip complaining of pain in his legs, problems
sleeping, heat in his feet, and migraines. (Doc. 166 Exh.
20)

A nurse saw him on April 8 and referred him to the

jail doctor.

(Doc. 166 Exh. 21).

Dr. Waldridge saw him

the next day, noted that his cellulitis was resolved, and
ordered a ten-day course of Ibuprofen to address his pain.
(Doc. 166 Exh. 10 at 5).
Several days later, on April 13, 2009, Dunaway filled
out another sick call slip complaining of pain and hot/cold
feelings in his feet.

(Doc. 166 Exh. 22 at 1).

He was

seen two days later by SHP Nurse Tucker, who gave
permission for him to have a blanket to cover up with and
placed him on the doctor’s list to be evaluated.

(Doc. 166

Exh. 23).
On April 21, 2009, Dunaway filed another sick call
slip stating he had pain and burning in his feet and legs.
(Doc. 166 Exh. 22 at 2).

The next day, he was seen for a

follow-up appointment with Dr. Cohen1, who noted that
Dunaway’s cellulitis was resolved and released him from his
practice.

(Doc. 170 Exh. 22).

1

Dr. Cohen was the infectious disease physician that had
treated Dunaway at St. Luke during his admission for
cellulitis. (Doc. 166 Exh. 19).
7

On April 24, 2009, medical staff were notified that
Dunaway was sleep walking and incontinent.
10 at 6).

(Doc. 166 Exh.

SHP Nurse Autenrieb examined Dunaway and noted

that his blood pressure and heart rate were slightly
elevated.

She gave him his morning medications and drew

blood to test his liver function and electrolyte levels.
(Id.).

Nurse Autenrieb continued to monitor Dunaway, and

when he did not improve and his labwork came back abnormal,
he was sent back to St. Luke.

(Doc. 170 Exh. 23).

St. Luke noted of Dunaway’s medical history: “He has a
history of longstanding hepatic encephalopathy secondary to
alcohol, hepatitis C and a history of dementia secondary to
polysubstance abuse, longstanding.”

(Id. at 1).

The

hospital treated Dunaway and discharged him the following
day, April 25, 2009.
That same day, SHP Nurse Tucker examined Dunaway and
noted that he was nonverbal and in a “catatonic” state, so
she made a call to Dr. Waldridge to advise him of the
situation.

(Doc. 166 Exh. 10 at 7).

In the meantime, Dunaway encountered Deputy Cummins
and told him that he (Dunaway) was supposed to have fruit
with every meal and get medicine every two hours, that he
was “not going to make it to the end of the day,” and that
he would be returned to the hospital that night.
8

(Doc. 166

Exh. 27).

Deputy Cummins reported this encounter to Nurse

Pangallo, who stated that, while Dunaway was ill, there
were no orders from St. Luke matching his statements.
(Id.).
Around 5:00 p.m., Nurse Pangallo again examined
Dunaway and found him to be alert and verbal and able to
walk without any problem.

(Doc. 166 Exh. 10 at 8).

Upon

examination, she found him to be oriented to person, place,
time, and situation.

(Id.).

Nonetheless, Dunaway was

moved from the dorm to Cell 137 where he could be monitored
by medical staff.

(Id.).

Medical staff checked Dunaway’s blood sugar levels
regularly over the next week, and they attempted to check
his blood pressure but he refused.

(Doc. 166 Exh. 24).

On April 27, 2009, Dunaway submitted a sick call slip
complaining of bad headaches.

(Doc. 166 Exh. 29).

Two

days later, Dunaway filed a grievance complaining that he
had not been seen by medical for his headaches.
Exh. 31).

(Doc. 166

Dunaway was then seen by medical staff on May 3

and given Ibuprofen for his headaches.

(Doc. 166 Exh. 29).

The next day, May 4, Dunaway submitted another sick
call slip complaining of severe headaches and “side pain.”
(Doc. 166 Exh. 29 at 2).
On May 5, Captain Young responded to Dunaway’s
9

grievance, stating that medical had been consulted and
stated that Dunaway should fill out sick call slips to
request medicine for his headaches.

(Doc. 166 Exh. 32).

On May 6, at approximately 10:30 a.m., Dunaway refused
to get out his bunk, stating that he could not walk,
although the deputies reported that he had been up and
walking around earlier in the day.
9).

(Doc. 166 Exh. 10 at

Medical staff checked on Dunaway just over an hour

later and observed that he was walking around his cell
without problem.

(Id.).

On May 7, Dunaway was seen by a SHP nurse and
prescribed Ibuprofen, 800 mg, for his headaches.

(Doc. 166

Exh. 29 at 4).
On May 8, around 10:40 a.m., SHP Nurse Tucker
attempted to give Dunaway his medications, but Dunaway
refused to get up.

(Doc. 166 Exh. 10 at 9).

Tucker

encouraged him to get up to take his medicines, but he
would not.

The other two inmates in the cell later

reported to a deputy that Tucker then said “Fuck it!” and
slammed the door and left.

(Doc. 184-6).

Tucker noted

that Dunaway would thereafter be closely monitored.
166 Exh. 10 at 9).

Tucker checked on him two hours later

and observed him walking around his cell without
difficulty.

(Doc.

(Id.).
10

Around 4:00 p.m., a deputy called Tucker to Dunaway’s
cell, where she found him lying on the floor on his side.
(Doc. 166 Exh. 10 at 10).

Tucker called Deputy Curtis

Music to come assist her.

(Doc. 184-7).

that he had urinated on himself.

Dunaway stated

Deputy Music later

reported that Dunaway “appeared to be in distress” because
of “heavily labored respirations and forced vocalizations.”
(Id.).

Music also reported that Dunaway has stated that

“he thought that he had suffered from a stroke earlier in
the day.”

(Id.).

Tucker, however, observed that Dunaway

was otherwise alert, and she and Deputy Curtis Music
assisted Dunaway back to his bunk.

(Id.; Doc. 184-7).

Tucker elevated Dunaway’s feet with a rolled up blanket and
noted that she would continue to monitor him.
At 4:48 p.m., Deputy Larkin conducted a regular
headcount and observed Dunaway to be using the toilet.
(Doc. 170 Exh. 26).

Around 5:10 p.m., Deputy Larkin served

dinners in the cell and observed Dunaway to be lying on his
bunk.

Another inmate stated that he would hand the tray to

Dunaway.

(Id.).

Just before 6:00 p.m., Deputy Larkin and Deputy Music
began collecting the dinner trays.

When they entered the

medical cell, they observed Dunaway to be lying in an
“awkward” way and that his hand was purple, and when Deputy
11

Larkin checked for a pulse, he found none.

(Id.).

Dunaway’s face was cold and his lips had turned blue.

Two

other inmates in the cell told Deputy Larkin that they had
been talking with Dunaway about fifteen minutes before the
deputies entered.

(Id.).

staff, who called 911.

The deputies summoned medical

Dunaway was pronounced dead when

the EMTs arrived.
An autopsy stated the cause of Dunaway’s death was a
cerebral hemorrhage.

(Doc. 166 Exh. 34).
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

prohibits mistreatment only if it is tantamount to
“punishment,” courts have imposed liability upon prison

12

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
but did not, while no cause for commendation, cannot under
our cases be condemned as the infliction of punishment.”
13

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,
or a mistake based on mixed questions of law and fact.’”
Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004)
14

(Kennedy, J., dissenting)).
C.

Application to Dunaway’s Claims
1.

Objectively Serious Medical Condition

The Court assumes for purposes of summary judgment
that Dunaway suffered from one or more objectively serious
health conditions, primarily advanced cirrhosis of the
liver.
2.

Deliberate Indifference
a.

CCDC Defendants

In their response to the CCDC’s motion for summary
judgment, plaintiffs state:
Plaintiffs concede that discovery has revealed no
documentation to connect Mr. Dunaway to any of the
individual named Defendants and none of the individual
Defendants remember Mr. Dunaway. However, Defendant
Campbell County is not entitled to summary judgment
because there are genuine issues of material fact . .
.
(Doc. 184 at 1).
Further, plaintiffs state, “[T]here is no evidence of
subjective knowledge of Mr. Dunaway’s serious medical
problems,” (Doc. 184 at 6), and, “Due to the fact that Mr.
Dunaway has passed and there is no documented evidence of
any contact with Buckler, Fickensher, Daley, or Fletcher,
the Plaintiffs concede that they cannot uphold their claims
against these Defendants as individuals.”
14).
15

(Doc. 184 at

It is abundantly clear, therefore, that absent
evidence that these individual defendants knew of Dunaway’s
medical needs, they cannot be held to be deliberately
indifferent as a matter of law.

Loggins v. Franklin

County, Ohio, 218 F. App’x 466, 474 (6th Cir. 2007).2
Despite the above concessions that none of the
individual CCDC defendants violated Dunaway’s
constitutional rights, plaintiffs argue that Campbell
County itself may still be liable based on a “clear pattern
of failure to give medical treatment to inmates” at the
CCDC.

(Doc. 184 at 14).

This argument is simply contrary

to the law.
The Sixth Circuit, applying Supreme Court precedent,
has clearly held that a “municipality or county cannot be
liable under § 1983 absent an underlying constitutional
violation by its officers.”

Blackmore v. Kalamazoo County,

390 F.3d 890, 900 (6th Cir. 2004) (citation omitted).

See

also Bowman v. Corrections Corp. of Am., 350 F.3d 537, 54546 (6th Cir. 2003) (same); Modd v. County of Ottawa, No.
1:10-cv-337, 2012 WL 5398797, at *20 (W.D. Mich. Aug. 24,
2012) (“Relieving plaintiffs of the obligation to show a

2

The Court notes that Deputy Music, who did have contact
with Dunaway the day that he died, was named in Christina
Dunaway’s lawsuit, but it appears he was never served.
Covington Case. No. 11-cv-58.
16

culpable state of mind by any human being would certainly
change the face of section 1983 litigation in this circuit.
Unfortunately for plaintiff, such a result contravenes
settled authority, which requires a showing both of
individual indifference and that the municipality’s
policies were the motivating force behind that violation.”)
(citation omitted); Alcorn v. Scott County Detention Ctr.,
Civil Action No. 09-232-JBC, 2011 WL 2145287, at *10 (E.D.
Ky. May 31, 2011) (absolving county of liability where
individual officers did not violate detainee’s
constitutional rights, even where there was evidence of
unconstitutional policy or custom).3
For these reasons, all the CCDC defendants are
entitled to summary judgment.4

3

Plaintiffs also have 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 plaintiffs 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.
4

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.
17

b.

SHP Defendants

First, plaintiffs have conceded that they have no
claim against SHP defendants Steve Mullins and Josh Ernest.
(Doc. 187 at 1).

They also have made no argument specific

to defendants Waldridge, Dawes, Pangallo, or Evans in
opposition to SHP’s motion, and summary judgment on the §
1983 claims against those individuals is thus appropriate.
Indeed, reviewing the record in plaintiffs’ favor, no
reasonable jury could conclude that these individuals were
deliberately indifferent to Dunaway’s serious medical needs
from the time he was admitted to the CCDC on February 5,
2009 until his death approximately three months later on
May 8, 2009.

Although Dunaway suffered from grave medical

problems -- advanced cirrhosis of the liver with associated
dementia and a bout of cellulitis in his leg -– he was
consistently evaluated, treated with medications as
prescribed by his physicians, and sent several times to St.
Luke Hospital for treatment.

There are thus no triable

issues as to deliberate indifference by these defendants.
This leaves SHP defendant Nurse Danielle Tucker.

It

was Nurse Tucker who, along with a deputy, found Dunaway
lying on the floor of the cell around 4:00 p.m. on May 8,
2009, two hours before his death.

Construing the record in

plaintiffs’ favor, Dunaway told Tucker that he had tried to
18

use the bathroom but he had urinated on himself and that he
thought he had had a stroke earlier that day.

However,

Tucker noted in the progress notes that Dunaway appeared to
be oriented to person, place, and time, and that he was
assisted back to his bunk without difficulty.
Exh. 10 at 10).
monitor him.

(Doc. 166

She also noted that she would continue to

(Id.).

It is important to note that, although other inmates
later stated that Dunaway had been asking for help
throughout the day, there is no evidence that Tucker knew
of that fact.

Indeed, there does not appear to be a

transcript of any deposition of Tucker in the record, and
the parties cite to none.

Tucker’s subjective knowledge of

Dunaway’s situation can thus only be inferred from her
documentation and other evidence concerning their
interactions.
In any event, while it may have been negligent or even
grossly negligent for Tucker to have placed Dunaway back in
his bunk rather than taking him for further evaluation or
treatment, such a decision cannot be said to amount to
deliberate indifference.

This is particularly true where

Tucker ordered that Dunaway be closely monitored, and the
guards indeed observed him up and using the toilet at least
once during the next two hours.
19

The other two inmates in

the cell, in fact, reported that they had been talking with
Dunaway just fifteen minutes before he was found dead.
There is thus no evidence that Tucker’s failure to
take further action at the 4:00 p.m. encounter caused or
contributed to Dunaway’s death, however tragic.
Plaintiff’s expert witness, Dr. Paris, does not mention
Nurse Tucker or the 4:00 p.m. encounter at all in his
report, and he expressly declined to opine as to causation.
(Doc. 166 Exh. 35 at 3).

Indeed, Dr. Paris stated that

Dunaway died with “terminal cirrhosis” and a “difficult to
prove picture of cerebral infarction and mitral valve
vegetations, both pointing to a septic process that could
not be proven at autopsy and was not evident during life.”
(Id.) (emphasis added).

He further stated:

“Altogether

these findings point to a terminal cirrhotic alcoholic who
would not have survived much longer as a free person.
Incarceration, by separating him from alcohol and drugs,
likely prolonged his life.”

(Id.).

There is thus no evidence – particularly given the
absence of any testimony from Tucker herself -- from which
one could reasonably infer that Tucker perceived a serious
risk to Dunaway’s health during the 4:00 p.m. encounter and
that she then deliberately disregarded that risk.
Under the above authority, absent a showing of an
20

underlying constitutional violation, plaintiffs can state
no claim against SHP as an entity.

See Bowman v.

Corrections Corp. of Am., 350 F.3d 537, 546-47 (6th Cir.
2003) (holding no § 1983 liability against medical
contractor to jail where no individual medical employee
violated detainee’s constitutional rights).
D.

Section 1983 Claim of Christina Dunaway

In addition to the flaws in plaintiffs’ § 1983 claims
identified above, plaintiff Christina Dunaway’s § 1983
claim fails for the independent reason that she does not
represent her father’s estate.
In the Sixth Circuit, a section 1983 cause of action
is entirely personal to the direct victim of the alleged
constitutional tort.

Claybrook v. Birchwell, 199 F.3d 350,

357 (6th Cir. 2000) (citations omitted).

“Accordingly,

only the purported victim, or his estate’s
representative(s), may prosecute a section 1983 claim;
conversely, no cause of action may lie under section 1983
for emotional distress, loss of a loved one, or any other
consequent collateral injuries allegedly suffered
personally by the victim’s family members.”

Id.

Therefore, Christina cannot maintain a § 1983 claim on
her own behalf.

21

E.

State Law Claims

As has been the Court’s practice in these cases, it
will decline to exercise its supplemental jurisdiction over
all state law claims asserted in this matter.

Therefore, having reviewed this matter, and the Court
being otherwise sufficiently advised,
IT IS ORDERED that the motions of the Campbell County
defendants for partial summary judgment as to plaintiffs
Alma Jarman, Robin Dunaway, and Christina Dunaway (Docs.
166, 182) be, and are hereby, GRANTED; (2) the motion of
Southern Health Partners for summary judgment as to these
three plaintiffs (Doc. 170) be, and is hereby, GRANTED AS
TO PLAINTIFFS’ FEDERAL CLAIMS; and (3) Plaintiffs’ state
law claims be, and are hereby, DISMISSED WITHOUT PREJUDICE.

This 25th day of September, 2013.

22