Bramble et al v. Campbell County, Kentucky et al
MEMORANDUM OPINION & ORDER: 1) Motion of Campbell Co. Defs for summary judgment as to plaintiff Kimberly Eversole 74 is GRANTED AS TO PLAINTIFF'S FEDERAL CLAIM; 2) Motion of Southern Health Partners for partial summary judgment as to plaintiff, Kimberly Eversole 75 is GRANTED AS TO PLAINTIFF'S FEDERAL CLAIM; 3) Plaintiff Kimberly Eversole's state law claims are DISMISSED WITHOUT PREJUDICE. Signed by Judge William O. Bertelsman on 10/10/2013.(TJZ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 2010-183 (WOB-JGW)
WILLIAM J. BRAMBLE, JR.,
MEMORANDUM OPINION AND ORDER
CAMPBELL COUNTY, KENTUCKY,
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
Amendment and plaintiffs= civil rights under 42 U.S.C. '
Plaintiffs also allege various state law claims.
This matter is before the court on the motion of the
Campbell County defendants for summary judgment as to
plaintiff, Kimberly Eversole, both individually and as the
Administratrix of Michael Webb’s estate (Doc. 74), and the
motion for partial summary judgment of Southern Health
Partners, as to plaintiff, Kimberly Eversole, both
individually and as the Administratrix of Michael Webb’s
estate (Doc. 75).1
Having reviewed the parties briefs and having
conducted oral argument on September 27, 2013, the Court
issues the following Memorandum Opinion and Order.
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).2
SHP, in turn, contracts with a
physician and employs nurses to staff the CCDC.
arrangements were in place at all times relevant to this
Plaintiffs filed this case on August 27, 2010, as a
proposed class action.
On September 24, 2010,
plaintiffs filed a Second Amended Class Action Complaint,
which is the operative complaint herein.
Plaintiffs allege that they were denied medical attention
The Court recognizes these as two different plaintiffs,
however, for ease of reading, will refer to simply “the
This case is related to Holt v. Campbell County, Covington
Civil Action No. 09-82 and references to the Holt record
are cited as “Holt,____.”
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 ¶¶
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.
Discovery ensued and, after numerous extensions, the
pending motions for summary judgment were filed and
Plaintiff Kimberly Eversole, Adminstratix of
Michael Webb’s Estate, and individually.
Michael Webb (“Mr. Webb”) was incarcerated at the CCDC
from April 17, 2009 to September 22, 2009.
(Doc. 74 Ex. 3,
He was forty-seven years old at the time he began
(Doc. 74 Ex. 3).
Mr. Webb told the booking officer when admitted to the
CCDC that he had a hernia which required medical treatment,
but otherwise had no medical conditions for which he
required treatment or medication.
(Doc. 74 Ex. 4).
There is a debate between the parties about when the
first “Inmate Sick Call slip” was filed.
defendants assert that a Sick Call Slip was submitted June
18, 2009, (Doc. 74 p. 3,) while the Plaintiffs assert it
was submitted May 18, 2009 (Doc. 99 p. 2) (hereinafter
referred to as “the First Sick Call Slip”).
On its face,
the sick call slip appears to have been filled out May 18,
2009 but the “Received” stamp says June 19, 2009.
It is unclear from the facts presented by any
party what occurred in the interim.
The First Sick Call
I have yellow skin tone and might have been
exposed to hepatitis (c) through intravenous drug
use and unprotected sex. I’m requesting to be
tested, blood work up.
How long have you had this problem? 6 months, on
& off, more continuous discolored last 30 days.
(Doc. 74 Ex. 6)
The Second Sick Call Slip was submitted June 23,
Been told I’m ‘Jaundice’ of color numerous times,
possibly exposed to herpatit [sic] through
intravenous drug use/unprotected [sic] request
How long have you had this problem? Approx. 3
(Doc. 73 Ex. 7) (hereinafter “the Second Sick Call Slip”).
On June 23, 2009, the day of the Second Sick Call
Slip, Mr. Webb was seen by Nurse Betty Dawes.
(Doc. 74 Ex.
On this Patient form, Nurse Dawes stated “Color: Race
Appropriate: Checked” and she placed Mr. Webb on the
Physician’s List to be seen.
On July 10, 2009, Mr. Webb submitted his first
(Doc. 74 Ex. 9).
In this grievance, Mr. Webb
states he was seen by the nurse on July 3, 2009, and placed
on the physician’s list and he also reasserts his desire to
be seen by the doctor.
Lt. Col. Fickenscher
received the grievance on July 15, 2009, and responded on
July 17, 2009.
(Doc. 74 Ex. 10).
In Lt. Col.
Fickenscher’s response, he states he forwarded the
grievance to medical for information, and medical informed
him that Mr. Webb was on the list to the see the Doctor,
and the Doctor would make the decision to see him.
The Medical Staff Response form indicates that the
Doctor reviewed Mr. Webb’s chart and chose not to conduct
an in-person exam.
(Doc. 74 Ex. 11).
It also indicates
that Mr. Webb was added to the Doctor’s list to be seen
Another grievance was filed on an unknown date,
addressed to defendant Buckler.
(Doc. 99 Ex. 8).
stamped July 16, 2009, apparently as a received date.
No one ever responded to this grievance.
(Doc 99 p.
The Plaintiff alleges this grievance was sent before
the first grievance had a response.
(Doc 99 p. 2).
A third grievance was submitted on July 19, 2009.
(Doc. 99 Ex. 9).
Again Mr. Webb states his request to see
the Doctor and have blood work taken.
grievance was responded to on July 20, 2009 by Capt.
(Doc. 99 Ex. 10).
It was also responded to on
July 22, 2009, by Lt. Col. Fickenscher, who stated he
forwarded the grievance to medical and medical responded
that the issue was resolved.
(Doc. 74 Ex. 13).
Dr. Waldridge made notes on Mr. Webb on July 22, 2009.
(Doc. 74 Ex. 14).
Blood tests were done and the results
were completed on July 25, 2009, showing elevated
bilirubin, AST, and ALT levels.
(Doc. 74 Ex. 15).
Waldridge had follow up tests and a hepatic profile
completed on July 31, 2009, which showed a positive result
for Hepatitis C and elevated bilirubin, AST, and ALT
(Doc. 73 Ex. 16).
Due to these blood test
results, Dr. Waldridge ordered an abdominal ultrasound for
(Doc. 74 Ex. 14 p. CC 1513).
On August 5, 2009, Mr. Webb was taken to an outside
consultant for an abdominal ultrasound which revealed
additional medical issues.
(Doc. 74 Ex. 17).
Waldridge indicated there was little treatment applicable
to elevated liver functions but stated it was a situation
that must be monitored.
(Doc. 75 Ex. 2 p. 83).
On August 17, 2009, Mr. Webb submitted another sick
call slip complaining of an upset stomach possibly caused
by the milk on cereal days.
(Doc. 74 Ex. 18).
18, 2009, Mr. Webb was still complaining of abdominal pain
and was monitored throughout the night on August 18.
74 Ex. 14 p. CC 1511).
On August 19, 2009, the nursing
staff contacted Dr. Waldridge who ordered Mr. Webb to be
sent to Dr. Davenport, an outside physician, for a surgical
Mr. Webb was evaluated by Dr.
Davenport and then sent to St. Elizabeth Hospital for
further assessment and treatment.
confirmed a diagnosis of hepatitis C and cirrhosis of the
liver and discharged Mr. Webb.
(Doc. 74 Ex. 19 p. SHP
On August 31, 2009, Mr. Webb filled out a sick call
slip complaining of stomach pain.
(Doc. 73 Ex. 20).
was seen on September 7, 2009 by the medical staff, and
again on September 10, 2009.
1459; Doc. 74 Ex. 21).
(Id.; Doc. 74 Ex. 14 p. CC
On September 17, 2009, additional
lab work was completed, Dr. Waldridge was advised of the
results, but no new action was taken.
(Doc. 74 Ex. 14 p.
On September 22, 2009, Mr. Webb was paroled and
released from the CCDC, and he was admitted to St.
Elizabeth Hospital with complaints of abdominal and back
(Doc 74 Ex. 23, 24, 25).
On September 24, 2009, Mr.
Webb’s condition deteriorated and he began having syncopal
(Doc. 74 Ex. 26 p. SHP Bramble 2756).
September 25, 2009, Mr. Webb died.
Dr. Paris, the Plaintiff’s expert, opines that the
delay in “clinical contact” was too long.
“There are no notes of a single physician visit for Webb.
Nursing notes denoting some clinical contacts began on 8-809, despite the fact that Webb had arrived almost 4 months
earlier on 4-7-09.”
(Doc. 98 Ex. 11).
contradicted by the record.
But this is
Mr. Webb was first seen for a
mental health survey on June 13, then examined by Nurse
Dawes on June 23, had lab tests run on July 24, more lab
tests run on July 31, and an ultrasound on August 5.
75 Ex. 5, 6, 8, 9, 12).
Dr. Paris notes some of these
clinical contacts in another section of his report.
Dr. Paris points out the ER discharge instructions
recommended a low-sodium, low-protein diet with a vitamin
supplement and the records do not indicate this was
(Doc. 98 Ex. 11).
Further, Dr. Paris opined
that Mr. Webb’s blood ammonia levels should have been
monitored and Lactulose given to reduce serum ammonia
Dr. Paris also states that blood tests
aimed at determining platelet and Prothrombin levels should
have been conducted and follow-on platelet transfusions,
fresh frozen plasma transfusions and vitamin K should have
In addition, Mr. Webb showed a 100-degree fever on
August 14, 2009 and the doctor directed the nursing staff
to administer 1 gram of Acetaminophen which is
“contraindicated in the cirrhotic patient, as it is
The records reviewed by Dr. Paris appear to end on 910-09, and do not include Mr. Webb’s final ER visit after
being released from CCDC custody.
Dr. Paris opines that these alleged deficiencies
caused Mr. Webb discomfort and a shortened life-span.
Paris finds that denying full diagnostic and therapeutic
measures and refusing to see Mr. Webb for the first four
months shows the physician was deliberately indifferent to
Mr. Webb’s serious medical needs.
SHP’s expert, Dr. Bazzel, begins his analysis once SHP
was aware of Mr. Webb’s possible medical condition on July
(Doc. 58 Ex. A p. 16-17).
He points out that
Mr. Webb must have had cirrhosis related to his Hepatitis C
infection for quite some time, but the records were not
clear if he was symptomatic when admitted to the CCDC
Dr. Bazzel states more lab tests could have been
conducted to further quantify the degree of liver
dysfunction but the results would not have changed the
management of the disease.
Dr. Bazzel points out that elevated serum ammonia
levels cause alterations in a patient’s ability to think
which is obvious to all, but Mr. Webb showed no signs of
Platelets are also commonly
decreased in patients with Hepatitis C, but rarely so low
that intervention is required.
Further, Mr. Webb’s
ammonia and platelet levels were normal when he was
admitted to the hospital.
The hospital did not
start Mr. Webb on fresh frozen plasma and platelets until
September 25, the day he died, even though he was admitted
September 22. (Doc. 75 Ex. 17).
Dr. Bazzel also points out that the “pro-thrombin time
is the most sensitive indicator of hepatic dysfunction
(cirrhosis) and is very useful in monitoring patients who
have Hepatitis C but do not yet have cirrhosis.”
Ex. A p. 16-17).
Because Mr. Webb already had cirrhosis,
this lab value would have “little (if any) clinical use”
and would be “a waste of the tax payers’ money.”
It was Dr. Bazzel’s conclusion that Mr. Webb was
treated appropriately during his incarceration, and
malpractice and deliberate indifference were not present.
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
Plaintiff argues that his Eighth Amendment right to
adequate medical care was 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, 10304 (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
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 Eversole’s Claims
Objectively Serious Medical Need
“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.”
If, as the Plaintiff alleges, Mr. Webb was jaundiced,
it would be an objectively serious medical condition.
is, a lay person would recognize the need for a doctor’s
Since the facts must be construed in favor of
the Plaintiff on the Defendants’ Motion for Summary
Judgment, there are facts indicating that Mr. Webb was
This satisfies the objectively serious medical
Deliberate Indifference: Subjective
However, even though Mr. Webb’s medical condition was
a serious medical need, there is no evidence from which a
CCDC defendants’ make a hearsay objection to some of the
evidence indicating Mr. Webb was jaundiced. There is other
evidence in the record from which a reasonable jury could
find Mr. Webb was jaundiced, without relying on the
possible hearsay evidence. However, it is immaterial
because Eversole fails to show deliberate indifference.
reasonable jury could conclude that any of the defendants
were deliberately indifferent to those needs.
The 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 Mr. Webb’s health.
This argument fails
as a matter of law because there is no such evidence in the
First, there is no evidence that Buckler was aware of
Webb’s symptoms or that he had any involvement with his
treatment for those symptoms.
Further, there is no
evidence that Buckler had contact with Mr. Webb during his
incarceration nor is there any evidence that Buckler was
involved in any of the medical decisions involving Mr.
Mr. Webb did file a grievance addressed to Buckler
with an apparent received date stamp.
(Doc. 99 Ex. 8).
But the Plaintiff concedes Buckler never responded to this
grievance and there is thus no other evidence showing
Buckler had any knowledge of Mr. Webb’s medical status.
(Doc. 99 p.2).
The standard is clear: the “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 the risk.”
Perez v. Oakland County,
466 F.3d 416, 424 (6th Cir. 2006) (internal quotations and
There is no evidence that Buckler
perceived facts from which to draw such an inference.
even if there were such facts, there is no evidence showing
he did actually draw such an inference.
subjective requirement of deliberate indifference fails as
to Defendant Buckler.
Defendant Fickenscher’s only involvement in Mr. Webb’s
medical care was his responses to Mr. Webb’s grievances
which complained about a lack of medical care.
Ex. 9, 12).
Both grievances discussed Mr. Webb’s concern
about his jaundice, request for blood work, and his
inability to see a doctor.
But to the extent that the
grievance expressed dissatisfaction with his medical care,
Fickenscher’s response does not demonstrate deliberate
“The mere denial of a prisoner’s grievance
states no claim of constitutional dimension.”
Corr. Med. Serv., 73 F. App’x 839, 841 (6th Cir.
2003)(citing cases holding that denial of a grievance is
not the same as the denial of a request to receive medical
In fact, Fickenscher forwarded the grievance to the
medical staff, who reviewed Mr. Webb’s medical file and
reported the various actions that medical had taken to
address Mr. Webb’s medical needs.
responded directly to Mr. Webb, noting that the medical
staff had placed Mr. Webb’s name on the list to see the
doctor and that the medical staff had already resolved the
(Doc. 74 Ex. 10, 13).
affirmative action by Fickenscher to ensure Mr. Webb
received appropriate medical care.
Thus, no reasonable jury could conclude that
Fickenscher was aware of any serious risk to Mr. Webb’s
health and that he disregarded that risk.4
With no underlying constitutional violation, Eversole
can state no “municipal liability” claim as to Campbell
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
Eversole argues that Buckler and Fickenscher were aware of
general problems with the medical contractor at the CCDC.
That, however, provides no basis for the claim against them
in their individual capacity where it is undisputed that
they played no role in Mr. Webb’s care.
entitled to summary judgment.5
With respect to the SHP defendants, Eversole has
abandoned her individual ' 1983 claim.
(Doc. 99 p. 3-4).
With respect to the claim asserted on behalf of Mr.
Webb’s estate, the Plaintiff’s argument showing deliberate
indifference of Nurse Dawes states in pertinent part:
“Defendant Dawes [sic] assertion that Mr. Webb was not
jaundiced is an indication that she deliberately chose to
close her eyes to the fact that everyone else around Mr.
Webb could tell; that he was jaundiced.”
(Doc. 98 p. 6).
The Plaintiff’s argument regarding deliberate indifference
of Dr. Waldridge states in pertinent part: “Specifically,
the refusal of Dr. Waldridge to see Mr. Webb prior to July
24, 2009, shortened Mr. Webb’s lifespan and caused
unnecessary pain and discomfort for a terminally ill
(Doc. 98 p. 6).
Further, during oral argument,
Plaintiff stated that the focus of the complaint is on the
first two-month period, from May 18, 2010 through July 24,
However, both of these arguments fail as a matter of
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.
First, Nurse Dawes’s failure to diagnose Mr. Webb as
jaundiced does not give rise to deliberate indifference.
While it could be negligence, deliberate indifference
requires a higher standard: that there were facts to infer
a substantial risk, that the inference was made, and that
the risk was disregarded.
The diagnosis that Mr. Webb was
not jaundiced is prime facie evidence that Nurse Dawes did
not draw the inference that Mr. Webb was jaundiced.6
For the Court to find that a failure to diagnose Mr.
Webb with jaundice is tantamount to deliberate
indifference, with no other supporting facts, places the
Court in a position to determine which medical decisions
rise to constitutional violations.
There is no other
evidence in the record to show that Nurse Dawes drew an
inference of Mr. Webb’s serious medical need and
The bilirubin levels the Plaintiff argues
show Mr. Webb was jaundiced were taken a month after Nurse
Dawes saw Mr. Webb.
But even if the test occurred the same
day, a negligent diagnosis would not, by itself, create
Quigley v. Thai, 707 F.3d 675,
681 (6th Cir. 2013)(noting that the subjective component is
to prevent medical-malpractice claims from becoming
Nurse Dawes’s deposition was also never placed in the
Further, once Nurse Dawes was on notice of the
seriousness of Mr. Webb’s medical condition, she requested
Mr. Webb be transferred for closer observation, which was
denied by Dr. Scott A. Haas, Medical Director for the
Kentucky Department of Corrections.
(Doc. 75 Ex. 15).7
There are no facts that Nurse Dawes inferred a substantial
risk and disregarded it.
Thus, the Plaintiff fails to
establish that Nurse Dawes acted with deliberate
indifference and she is entitled summary judgment.
Second, Dr. Waldridge’s failure to see Mr. Webb does
not rise to deliberate indifference.
The Plaintiff is
required to show Dr. Waldridge had sufficient facts to
infer a substantial risk to Mr. Webb, that he actually made
the inference, and that he then disregard the risk.
there is no evidence showing Dr. Waldridge had facts
available to him that would have allowed him to infer a
substantial risk to Mr. Webb before July 24, 2009, and even
if there were such facts, no evidence in the record shows
Dr. Waldridge made such an inference and disregarded it.
It was not until July 25, 2009, when the test results
ordered by Dr. Waldridge came back, that indicated Mr. Webb
had serious liver problems.
(Doc. 75 Ex. 10).
Scott A. Haas is not a Defendant.
lab results were returned, Dr. Waldridge ordered follow-up
blood testing and an ultra sound.
(Doc. 75 Ex. 9, 11, 12).
He further sent Mr. Webb for a surgical consult to see if
his gallbladder needed to be removed.
(Doc. 75 Ex. 9).
There is thus no evidence that Dr. Waldridge was
deliberately indifferent and as such he is entitled to
Further, even after August 19, 2009, when Mr. Webb was
diagnosed with cirrhosis and hepatitis C while at St.
Elizabeth Hospital, he received no specific treatment for
(Doc. 98 Ex. 11).
But even this would not
rise to the level of deliberate indifference.
Mr. Webb was
seen again by the medical staff on September 7, 2009 and
again on September 10, 2009.
(Doc. 75 Ex. 9, 16).
Continuing tests were conducted on September 17, 2009.
(Doc. 75 Ex. 16).
And finally, on September 22, 2009, Mr.
Webb was released from CCDC custody.
(Doc. 74, Ex. 24).
Thus, medical monitoring continued up until the time Mr.
Webb was released and a showing of deliberate indifference
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).
With no underlying constitutional violation, Eversole
can state no “municipal liability” claim as to SHP.
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).
Additionally, Eversole 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 by SHP 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.
Finally, the report of Eversole’s expert witness, Dr.
Joseph Paris, raises no triable issue.
(Doc. 98 Ex. 11).
According to Dr. Paris, the failure of the physician to see
Mr. Webb during his four month jail stay “was deliberately
indifferent to Webb’s serious medical needs.”
this is an improper conclusion of law that goes to the
ultimate issue and is not admissible at trial.
City of Toledo, 488 F. App'x 107, 119-21 (6th Cir. 2012).
As such, it raises no genuine issue of material fact.
Finally, Dr. Paris’s report is silent as to the
subjective perception of these defendants, and the record
thus remains devoid of evidence that would satisfy the
All defendants are thus entitled to summary judgment
on Eversole’s § 1983 claim.
Given this disposition, the
Court will decline to exercise its supplemental
jurisdiction over Eversole’s state law claims.
U.S.C. § 1367(c).8
Therefore, having reviewed this matter and heard oral
argument, and the Court being otherwise sufficiently
IT IS ORDERED (1) that the motion of the Campbell
County defendants for summary judgment as to plaintiff,
Further, Plaintiff concedes all the state law claims
against CCDC should be dismissed and that the outrage and
loss of consortium claims against Buckler and Fickenscher
should be dismissed. (Doc. 99 p. 1). Plaintiff also
concedes that the loss of consortium claim, the state
regulatory claims, and the outrage claims should be
dismissed against all the SHP defendants. (Doc. 98 p. 1).
Kimberly Eversole (Doc. 74) 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, Kimberly Eversole (Doc. 75) be, and is hereby,
GRANTED AS TO PLAINTIFF’S FEDERAL CLAIM; and (3) Plaintiff
Kimberly Eversole’s state law claims be, and are hereby,
DISMISSED WITHOUT PREJUDICE.
This 10th day of October, 2013.
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