Bramble et al v. Campbell County, Kentucky et al

Filing 138

MEMORANDUM OPINION & ORDER: the motion of the Campbell Co defs for summary judgment as to plaintiff, Kenneth Stinson 83 is GRANTED AS TO PLAINTIFF'S FEDERAL CLAIM; ; 2) the motion of Southern Health Partners for partial summary judgme nt as to plaintiff, Kenneth Stinson 84 is GRANTED AS TO PLAINTIFF'S FEDERAL CLAIMS; 3) Plaintiff Kenneth Stinson's state law claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge William O. Bertelsman on 9/26/2013.(TJZ)cc: COR

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

CIVIL ACTION NO. 2010-183 (WOB-JGW)

WILLIAM J. BRAMBLE, JR.,
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 jail, and
against Southern Health Partners (SHP), alleging cruel and
unusual punishment in violation of the 5th, 8th and 14th
Amendments and plaintiffs= civil rights under 42 U.S.C. '
1983.

Plaintiffs also allege state law claims.
This matter is before the Court on the motion of the

Campbell County defendants for summary judgment as to
plaintiff, Kenneth Stinson (Doc. 83), and the motion for
partial summary judgment of Southern Health Partners, as to
plaintiff, Kenneth Stinson (Doc. 84).
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.

FACTS
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.
(Holt, Doc. 132 Ex. 1).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 August 27, 2010, as a
proposed class action.

(Doc. 1).

On September 24, 2010,

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

(Doc. 5).

Plaintiffs allege that they were denied medical attention
for their serious medical needs in violation of their 5th,
8th and 14th Amendment rights.

(Doc. 5 ¶ 16, ¶¶ 366-69).

Plaintiffs also allege Kentucky statutory claims (Id. at ¶¶
1

This case has been consolidated with Holt v. Campbell
County, Covington Civil Action No. 09-82 and references to
the Holt record are cited as “Holt,____.”
2

370-71), negligent or intentional infliction of emotional
distress (Id. at ¶¶ 372-73), negligence (Id. at ¶¶ 374-75),
loss of consortium (Id. at ¶¶ 376-77), and wrongful death
(Id. at ¶¶ 378-79).
On March 25, 2011, the parties stipulated to dismissal
of plaintiffs’ class action allegations.

(Doc. 28).

Discovery ensued and, after numerous extensions, the
pending motions for summary judgment were filed and
briefed.
B.

Plaintiff Kenneth Stinson

Kenneth Stinson (“Stinson”) was incarcerated at the
CCDC from May 13, 2010 to June 25, 2010.

(Doc. 83 Ex. 2,

3).
1. Medical Issues: Anxiety Medication, Acyclovir,
Eye Infection.
When Stinson was admitted to the CCDC, he indicated he
was under medical treatment for anxiety, and that he
previously or currently had drug dependency problems and
psychiatric care.

(Doc. 84 Ex. 6).

Stinson also indicated

that he had no serious medical condition, no serious mental
health condition, and no current prescriptions for
emotional problems.

(Doc. 84 Ex. 7).

In addition, Stinson

was advised that he could seek medical care.

(Id.)

Stinson testified that these answers were incorrect.
3

(Doc.

127-2 p. 51-54).
On May 20, Stinson requested his prescription
medications, Valium and Tramadol, and requested to see a
“psyche [sic] doc.”

(Doc. 84 Ex. 9).

On May 27, Stinson

was given a mental health survey indicating he was
diagnosed with bi-polar disorder and he needed help with
his mental illness.

(Doc. 84 Ex. 10).

Medical also

requested his medical records to verify his prescription
medications the same day.

(Doc. 84 Ex. 11).

Stinson

followed up with sick call slips relating to his anxiety
medications on May 29, June 9, and June 12.
12, 13).

(Doc. 84 Ex.

On June 17, the SHP staff sent another request to

Walgreens for Stinson’s prescriptions, which was responded
to the same day.

(Doc. 84 Ex. 14).

After verification of

his medications, Stinson was prescribed Buspar on June 17
and received it until his release on June 25.

(Doc. 84 Ex.

8; Doc. 83 Ex. 11).
On June 21, Stinson filed a grievance with
Fickenscher, after receiving Buspar, complaining that he
had yet to receive any anxiety medication.
20).

(Doc 83 Ex.

Stinson was not notified that he was placed on

Buspar, a replacement anxiety medication.
89-90).

(Doc. 127-2 p.

Fickenscher responded to Stinson’s June 21

grievance on June 24, stating his complaint was passed to
4

medical and medical responded that Stinson had been started
on anxiety medication.

(Doc. 83 Ex. 21).

On May 28, a family member brought in Stinson’s
Acyclovir medication, and the jail physician approved it
the same day.

(Doc. 83 Ex. 5, 11).

Stinson continued to

receive this medication until his release on June 25.
(Doc. 83 Ex. 11).

On June 4, Stinson filed a grievance

with Fickenscher complaining that he was not getting the
proper dosage of Acyclovir.

(Doc. 83 Ex. 22).

Fickenscher

responded the same day, stating that he forwarded his
complaint to medical and medical informed him that Stinson
was brought to medical on sick call and the issue was
resolved.

(Doc. 83 Ex. 23).

Stinson testified that he

never told anyone in sick call the issue was resolved.
(Doc. 127-2 p. 60-61).

Stinson also never filed an appeal.

Stinson submitted a sick call slip on May 29 and on
June 5 complaining about his dosage of Acyclovir.
Ex. 12, 13).

However, his sick call slip on June 9 does

not mention any problems with his Acyclovir.
13).

(Doc. 84

(Doc. 84 Ex.

A Patient Clinic Data Form on June 7 indicates

Stinson was seen by medical and he stated his “mouth is
better” and “he didn’t need Acycolvir [sic].”

(Doc. 83 Ex.

25).
Stinson also complains of an eye infection that was
5

improperly treated.

(Doc. 127-2 p. 92).

On June 5,

Stinson filed a sick call slip complaining about an eye
infection.

(Doc. 83 Ex. 24).

On June 7, the medical staff

saw Stinson and gave him eye drops.

(Doc. 83 Ex. 26).

On

June 13, 16, and 17 Stinson filed additional sick call
slips stating the drops were ineffective.
27, 28).

(Doc. 83 Ex. 16,

On June 20, the medical staff saw Stinson again,

and gave him new eye drops.

(Doc. 83 Ex. 29).

Stinson

testified the infection cleared up without any additional
treatment after he was released.

(Doc. 127-2 p. 92-93).

2. Assaults
Stinson testified that he was assaulted on two
separate occasions, both within the first month of his
incarceration.

(Doc. 127-2 p. 7-8).

The first incident

occurred when Springer, another inmate, took Stinson’s
phone card, and a shoving match ensued.

(Doc. 127-2 p. 8).

Stinson alleges he reported the theft of his phone card but
not the physical altercation to jail staff and the jail
staff did nothing in response.

(Doc. 127-2 p. 9-10).

The second incident occurred within a week of the
first.

(Doc. 127-2 p. 10).

Springer, unprovoked, attacked

Stinson, hitting Stinson in the face, knocking him to the
ground, smashing his head into the ground, and Springer
rubbed his crotch in Stinson’s face.
6

(Doc. 127-2 p. 11).

Stinson admitted he never told any of the jail staff he was
concerned about Springer attacking him before the assault.
(Doc. 127-2 p. 12).

Stinson testified that he made a

report about the incident.

(Doc. 127-2 p. 14).

On May 23, medical treated Stinson, noting he had
swelling and bruising above both eyes, knots on his head,
and that his left shoulder was swollen.

(Doc. 83 Ex. 5).

Stinson was held in medical observation overnight, and was
released after he refused an x-ray, requested to go back to
general population and a doctor medically cleared him.
(Doc. 83 Ex. 5, 6).

Stinson does not remember refusing an

x-ray or signing the treatment refusal form, although he
admits it is his signature on the form.

(Doc. 127-2 p. 15-

17).
After both assaults, Stinson alleges Springer tampered
with his food to continue to harass him.
25-27).

(Doc. 127-2 p.

However, Stinson never complained about this

behavior to any CCDC staff because he feared retaliation
from Springer and other inmates.

(Doc. 127-2 p. 27-29).

3. Expert Reports
Stinson offers Dr. Joseph Paris as an expert witness.
Dr. Paris opines that:
Stinson did not have access to a Psychiatrist.
The issuing of psychotropics like Buspar and
Desyrel without charted Physician visits, target
7

symptoms and goals of therapy is below the
standard of care. These lapses reach the level
of deliberate indifference resulting in
approximately 43 days of untreated or only
partially treated mental health conditions, with
concomitant pain and suffering.

(Doc. 85 Ex. 3).
The SHP defendant’s offer Dr. Grady Bazzel as an
expert witness.

Dr. Bazzel stated “I see no elements of

malpractice or deliberate indifference.”
14).

(Doc. 58 Ex. A p.

Dr. Bazzel notes that after Stinson’s altercation he

was placed in a safe environment, under medical
observation, and was returned to general population when
requested.

(Id.)

Stinson was allowed to take his

Acyclovir from his home supply, that his eye infection was
properly treated with antibiotic drops with nursing followups, and that there was no follow up complaints of physical
or sexual abuse.

(Doc. 58 Ex. A p. 15).

However, Dr.

Bazzel fails to comment on Stinson’s anxiety disorder and
its treatment by the medical staff.
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
8

laws.”

Plaintiff argues that his Fourteenth Amendment

right to adequate medical care was violated, which is
analogous to prisoners’ Eighth Amendment rights to be free
from cruel and unusual punishment.

“The Eighth Amendment

does not apply to pretrial detainees. Under the Fourteenth
Amendment Due Process Clause, however, pretrial detainees
have a right to adequate medical treatment that is
analogous to the Eighth Amendment rights of prisoners.”
Watkins v. City of Battle Creek, 273 F.3d 682, 685-86 (6th
Cir. 2001).
“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
deliberate indifference.”

Id. (citing Estelle, 429 U.S. at
9

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)
(citation omitted).
10

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 Stinson’s Claims
1.

Objectively Serious Medical Need

Stinson originally alleged two constitutional
violations: (1) CCDC’s failure to protect Stinson from
unnecessary risks to his health and safety from other
inmates and (2) failure to provide constitutionally
11

adequate medical care.

However, Plaintiff concedes in his

response in opposition to summary judgment that any claim
relating to the physical assaults should be dismissed.
(Doc. 109 p. 1).
The parties also dispute whether Stinson meets the
objective and subjective component of his denial of medical
care claim.

However, because Stinson fails to establish

the subjective component, the Court will assume he meets
the objective component.
2.

Deliberate Indifference: Subjective

Component
Even though Stinson’s medical condition is assumed to
be a serious medical need, 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

Plaintiff argues that defendants Buckler and
Fickenscher were aware of facts from which they could, and
did, draw an inference that a substantial risk of serious
harm existed as to Stinson’s health.

This argument fails

as a matter of law because there is no such evidence in the
record.
There is no evidence that Buckler had any contact with
Stinson during his incarceration, was aware of his medical
12

condition, or was aware of any of his symptoms.

Stinson

never filed a grievance with Buckler and there is no other
evidence showing that Buckler knew of Stinson’s medical
need.

Further, Stinson never identifies any point when

Buckler had knowledge of specific facts of his medical
situation.
Further, to overcome summary judgment, the opposing
party must present some affirmative evidence showing there
is a genuine issue of material fact and cannot simply rest
on its allegations.

Hunley v. DuPont Auto., 341 F.3d 491,

496 (6th Cir. 2003).

The trial court has no obligation to

“wade through” the record in search of specific facts to
support the party’s claim, nor is it required to speculate
as to which portion of the record the party relies.

United

States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993).
The Sixth Circuit has held that, even where evidence exists
somewhere in the record, it is the duty of the nonmoving
party to bring that evidence to the Court’s attention.
Parsons v. FedEx Corp., 360 F. App’x 642, 646 (6th Cir.
2010).

Because the Plaintiff offers no evidence on which

he relies for his conclusory statement that Buckler and
Fickenscher were deliberately indifferent, his argument
fails as a matter of law, and Buckler and Fickenscher are
entitled to summary judgment.
13

While Stinson fails to point to his grievances as
alerting Fickenscher to facts from which he could draw an
inference of substantial risk to Stinson’s safety, the
grievances could have given Fickenscher the information
from which to draw such an inference.

However, the

grievances and their responses show Fickenscher did not act
with deliberate indifference but instead acted reasonably.
(Doc. 83 Ex. 20-23).
Stinson’s first grievance, on June 4, complained about
getting an improper dosage of Acyclovir and an eye
infection.

(Doc. 83 Ex. 22). Fickenscher responded the

same day stating that he contacted medical, and medical
advised him the issue was resolved.

(Doc. 83 Ex. 23).

Stinson submitted another grievance on June 21
complaining about his lack of anxiety medication, not
receiving his Acyclovir three times per day, and
complaining about his eye infection.

(Doc. 83 Ex. 20).

Fickenscher responded the same day stating that he had
notified medical and that they had already started Stinson
on medication for anxiety treatment.

(Doc. 83 Ex. 21).

Even if these grievances put Fickenscher on notice of a
serious risk to Stinson’s health, his response was
reasonable.

Farmer v. Brennan, 511 U.S. 825, 844-45

(stating that prison officials who acted reasonably, even
14

when they had knowledge of a substantial risk to an inmate,
are not deliberately indifferent should the harm still
result.)
Because there is no evidence that Buckler knew
anything about Stinson’s health, he could not have been
deliberately indifferent, and because Fickenscher acted
reasonably, the subjective element fails as a matter of
law.

Because respondeat superior is not available as a

basis for liability under § 1983, Buckler and Fickenscher
are entitled to summary judgment.
With no underlying constitutional violation, Stinson
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).
For these reasons, all the CCDC defendants are
entitled to summary judgment.2
b.

SHP Defendants

Stinson’s argument showing deliberate indifference of
Nurse Dawes and Dr. Waldridge states no facts from which to

2

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.
15

find they were deliberately indifferent.

Instead, Stinson

simply asserts they meet the subjective standard, then lays
out the subjective legal standard, but he fails to point to
any evidence that shows Nurse Dawes or Dr. Waldridge had
information that would allow them to make an inference that
there was a serious risk of harm and that they made such an
inference.

(Doc. 110 p. 6).

Further, Dr. Waldridge’s contract with SHP ended in
December 2009, while Stinson’s incarceration did not begin
until May 2010.

(Doc. 72 Ex. 4 p. 12).

Thus, Dr.

Waldridge could not have been deliberately indifferent
because he no longer worked at or for SHP.
Additionally, under the above authority, the opposing
party must present some affirmative evidence showing there
is a genuine issue of material fact and cannot simply rest
on its allegations.

Hunley 341 F.3d at 496.

Because

Plaintiff offers no evidence on which he relies for his
conclusory statement that Nurse Dawes and Dr. Waldridge
were deliberately indifferent, his argument fails as a
matter of law, and both defendants are entitled to summary
judgment.
Stinson 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
16

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
or SHP.

Fryman v. Campbell County, Covington Civil Action

No. 09-114-WOB-JGW, Docs. 25, 30.
With no underlying constitutional violation, Stinson
can state no “municipal liability” claim as to SHP.

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).
Finally, the report of Stinson’s expert witness, Dr.
Joseph Paris, raises no triable issue.

(Doc. 85 Ex. 3).

According to Dr. Paris, issuing psychotropic medication
without charted physician visits, target symptoms, and
goals of therapy is below the standard of care and reaches
deliberate indifference.

(Id.)

This, however, is an

improper conclusion of law that goes to the ultimate issue
and is not admissible at trial.

Cutlip v. City of Toledo,

488 F. App'x 107, 119-21 (6th Cir. 2012).

As such, it

raises no genuine issue of material fact.
Additionally, Dr. Paris’s report is silent as to the
17

subjective perception of these defendants, and the record
thus remains devoid of evidence that would satisfy this
element.
All defendants are thus entitled to summary judgment
on Stinson’s § 1983 claim.

Given this disposition, the

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

See 28

U.S.C. § 1367(c).3
Therefore, having reviewed this matter, and the Court
being otherwise sufficiently advised,
IT IS ORDERED (1) that the motion of the Campbell
County defendants for summary judgment as to plaintiff,
Kenneth Stinson (Doc. 83) be, and is hereby, GRANTED AS TO
PLAINTIFF’S FEDERAL CLAIM; (2) the motion of Southern
Health Partners for partial summary judgment as to
plaintiff, Kenneth Stinson (Doc. 84) be, and is hereby,
GRANTED AS TO PLAINTIFF’S FEDERAL CLAIM; and (3) Plaintiff
Kenneth Stinson’s state law claims be, and are hereby,
DISMISSED WITHOUT PREJUDICE.

3

The Court notes that Stinson concedes his state law claims
against Campbell County should be dismissed, as well as the
outrage claim against Buckler and Fickenscher. (Doc. 109
p. 1). Plaintiff also concedes that the state regulatory
claim, loss of consortium claim and the outrage claim
against SHP should all be dismissed. (Doc. 110 p. 1).
18

This 26th day of September, 2013.

19