Hughes et al v. Does et al
MEMORANDUM OPINION & ORDER: 1) Defendants' Motion for Summary Judgment 50 is GRANTED in full; 2) Hughes' federal and state law claims are DISMISSED WITH PREJUDICE; 3) This case is STRICKEN from the docket; 4) A Judgment shall be entered. Signed by Judge David L. Bunning on 6/11/2015.(TJZ)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 13-49-DLB-CJS
MEMORANDUM OPINION AND ORDER
CAMPBELL COUNTY, KENTUCKY, et al.
Plaintiff John Hughes brings this civil rights action pursuant to 42 U.S.C. § 1983
against Defendants Heather Vasser, Aimee Paire and Southern Health Partners, Inc.
(“SHP”), alleging that he was denied adequate medical care while imprisoned at the
Campbell County Detention Center (“CCDC”) in January 2013. Hughes also brings state
law claims for negligence and failure to comply with 501 KAR 3:090, which governs the
provision of medical services to inmates in Kentucky jails.
Discovery is complete and Defendants now move for summary judgment on all
claims against them. Defendants contend that the § 1983 claims fail because Hughes is
unable to show that Nurse Vasser or Nurse Paire acted with deliberate indifference towards
his serious medical needs. Defendants also argue that the negligence claims are timebarred, while the regulatory claim is unsupported by the evidence. For the reasons
discussed below, Defendants’ motion will be granted in full. The Court has jurisdiction over
this matter pursuant to 28 U.S.C. §§ 1331 and 1367(a).
Factual and Procedural Background
Defendant SHP is a Delaware corporation that provides medical services to small
and medium sized detention centers across the country. (Doc. # 50-1 at 2). In accordance
with 501 KAR 3:090,1 the CCDC contracted with SHP to provide healthcare services to its
inmate population. (Id.) At all times relevant to this matter, Defendants Heather Vasser
and Aimee Paire worked as nurses for SHP. (Id. at 3). Their duties included managing
sick call, dispensing medications and otherwise attending to the prisoners’ healthcare
needs. (Id.) They reported to the SHP regional administrator, Brenda Brown. (Id.) For
additional dental services, SHP subcontracted with Mid America Health, Inc. (“Mid
America”), which arranged for a dentist to visit the CCDC twice a month. (Id.)
Plaintiff John Hughes was booked at the CCDC on March 12, 2012. (Id.) Within a
couple of days, he was transferred from the main jail to the Restricted Custody Center,
which is also referred to as “Class D.” (Hughes Deposition, Doc. # 49 at 88-90). The
transfer was necessary so that Hughes could participate in a work program.
Throughout his incarceration, Hughes worked five days a week as a member of the road
crew. (Id.) Aside from the incident giving rise to this lawsuit, Hughes requested medical
services on only one other occasion, and recalls that the treatment he received was
On January 2, 2013, Hughes began experiencing pain in his tooth and assumed that
501 KAR 3:090(1) states that a “jail’s medical services shall be provided by contracting
with a health care provider licensed in Kentucky.”
it might be chipped. (Id. at 95). After two days with no improvement, he completed a “sick
call slip” and provided it to a deputy in Class D, expecting that the deputy would pass it
along for SHP medical staff to review. (Id. at 100-01). In the space provided for describing
his ailment, Hughes wrote “[I] have a chiped [sic] tooth that is showing the nerve it hurts
nonstop and I can’t get any sleep. Please Help ASAP.” (Doc. # 50-8 at 2). Although
Hughes insists he was never seen by Nurse Heather Vasser in connection with this tooth,
she signed the sick call slip as evidence of review on January 6, 2013.2
Over the next few days, Hughes’ tooth continued to bother him and he started to
notice minor swelling on his face. (Doc. # 49 at 120-21). The pain affected his ability to
work, although it is unclear exactly how many days he missed. Hughes testified that he
stopped working completely on January 2, 2013, the first day he noticed something wrong
with his tooth. (Id. at 93). But according to the documents provided by Defendants,
Hughes did not miss a scheduled day of work until January 4, 2013, the same day he
submitted his first sick call slip. (See Doc. # 50-7 at 2-7). He resumed working the very
next day, and did not miss again until January 9th. (Id.)
Despite confirming that it was in fact her signature at the bottom of the sick call slip, Nurse
Vasser does not recall providing treatment to Hughes on January 6, 2013, or on any other day for
that matter. (Doc. # 50-8 at 2; Vasser Deposition, Doc. # 48 at 11, 20, 41). Moreover, she testified
that it is customary to fill out a “clinical pathway form” whenever medical treatment is provided to
an inmate. (See Doc. # 48 at 11-12). Although discovery is complete, a clinical pathway form
showing that Hughes was treated on January 6th was never produced. Nonetheless, in their
Motion for Summary Judgment, the Defendants insist not only that Nurse Vasser examined Hughes
on January 6th, but that she scheduled him for a visit with the dentist. (Doc. # 50-1 at 4). Hughes
denies being seen by Nurse Vasser, or any other nurse from SHP, until January 10, 2013. (Doc.
# 49 at 102). Yet the amended complaint states that he “was seen two days after filing the slip by
Nurse Vasser and/or Paire.” (Doc. # 23 at 8). These factual inconsistencies will be handled
pursuant to the applicable standard on summary judgment. See infra note 6.
On January 7, 2013, Hughes approached a nurse that was making her daily rounds
and asked if the medical staff had reviewed his sick call slip. (Doc. # 49 at 105-06). The
unidentified nurse responded that they had not, but said that someone would get to it as
soon as possible. (Id.) When Hughes asked for some Ibuprofen, the nurse explained that
she could not provide him with any medicine until the medical staff had processed his first
sick call slip. (Id.)
By January 8, 2013, the swelling had spread to Hughes’ neck. (Id. at 122).
Frustrated and still very uncomfortable, he asked a deputy for another sick call slip, which
he completed and personally delivered to a nurse on the morning of January 9, 2013. (Id.
at 107-09). In the space provided for describing his condition, Hughes simply wrote the
words “bad tooth,” and nothing else. (Doc. # 50-10 at 2). Shortly after submitting the
second sick call slip, he was transported to the main jail to see a dentist from Mid America.
(Doc. # 49 at 113). The dentist recorded a large abscess in tooth # 32 and noted that
Hughes’ jaw was “swollen and warm to the touch.” (Doc. # 50-11 at 4). An x-ray was not
possible because Hughes was unable to open his mouth wide enough. (Id.) The dentist
administered Ibuprofen and Benadryl for the pain and swelling, and prescribed a course
of antibiotics to treat the infection. (Id.) Hughes was scheduled to be seen again the next
time a dentist visited the CCDC. (Id.) The plan was to pull his abscessed tooth once the
infection was gone. (Doc. # 49 at 110).
Following his visit with the dentist, Hughes stayed in a holding cell at the main jail
for a few hours before being transported back to Class D. (Id. at 114-15). He spent the
remainder of the afternoon waiting for his antibiotics, but was eventually told that it would
take a couple of days before they arrived.3 (Id.)
On January 10th, Hughes was unable to get out of the bed. (Id. at 117). The
swelling had spread to his chest and he was experiencing difficulty breathing. (Id. at 123).
In the early afternoon, a deputy in Class D noticed his condition and decided to take
Hughes back to the main jail so that medical staff could examine him. (Id. at 117). He was
seen first by Nurse Fitzgerald, who took his vitals and administered 600 milligrams of liquid
Ibuprofen. (Doc. # 50-12 at 2). When Nurse Paire arrived, she noted pronounced swelling
on his Hughes’ jaw and neck and observed that he could not open his mouth wider than
one-half inch. (Doc. # 50-13 at 3, ¶ 24). She discussed the situation with Brenda Brown
and then decided to call Dr. So, who recommended that Hughes be sent to the hospital
immediately. (Id. at 3, ¶ 25). Nurse Paire complied. (Id.)
At the hospital, Hughes was taken directly into surgery. (Doc. # 49 at 163). Though
still awake, doctors operated primarily on his neck and performed a tracheotomy to stabilize
his breathing. (Id. at 164-65). The surgery was successful and the tube in Hughes’ neck
was removed a few days later. (Id. at 165-66). Hughes stayed at the hospital to recover
until January 17, 2013. (Id.) From there, he returned to the CCDC for one night and was
Initially, Hughes testified that he did not receive any additional medical care on January
9th apart from his encounter with the dentist. (Id. at 115). Upon further questioning, he recalled
being taken to the main jail and receiving a topical medication with swabs and liquid Ibuprofen,
although he maintains that he is not sure if this occurred on January 9th or on another day. (Id. at
123-24). Nurse Paire has filed an affidavit stating that she saw Hughes on January 9th and that
during their encounter she provided him with several medications, including a topical numbing
agent called Lidocaine, which is applied using swabs. (See Doc. # 50-13 at 2-3, ¶¶ 3-19). These
same facts are documented on a clinical pathway form that was completed by Nurse Paire on
January 9, 2013. (Doc. # 50-14 at 2). Finally, the progress notes in Hughes’ medical file state that
he received “Lidocaine and swabs” from Nurse Paire during a visit on the evening of January 9th.
(Doc. # 50-12 at 3). The progress notes were taken by Nurse Paire. (Id.) Again, these factual
discrepancies will be handled in accordance with the appropriate standard on summary judgment.
See infra note 6.
then transferred to the Kentucky State Reformatory on January 18, 2013. (Doc. # 50-1 at
Hughes filed the instant lawsuit on May 5, 2013. (Doc. #1). Originally, he named
the following parties as defendants: Campbell County, Kentucky; Jailer Greg Buckler; John
and Jane Doe Correctional Officers 1-10; SHP; and John and Jane Doe Medical Staff 1-10.
(Id.) Several months later, Hughes filed an amended complaint, replacing John and Jane
Doe Medical Staff 1-10 with Nurse Heather Vasser and Nurse Aimee Paire, both of whom
were named in their individual capacities. (Doc. # 23). On June 24, 2014, the Court
entered a Stipulation of Dismissal in which Hughes dropped all claims against Campbell
County, Kentucky and Jailer Greg Buckler. (Doc. # 39).
The remaining defendants are John and Jane Doe Correctional Officers 1-10, Nurse
Vasser, Nurse Paire and SHP. Each defendant is being sued for 1) alleged violations of
42 U.S.C. § 1983, 2) negligence and 3) failure to comply with 501 KAR 3:090.4 (Doc. # 23
at 9-12, ¶¶ 45-65). On September 30, 2014, Defendants Nurse Vasser, Nurse Paire and
SHP filed a Motion for Summary Judgment on all claims brought against them. (Doc. # 50).
In his Response, Hughes concedes that the state law claims are time-barred and that he
has no federal cause of action against SHP. (Doc. # 53 at 1). Accordingly, the focus of this
Memorandum Opinion and Order will be on the remaining § 1983 claims against Nurse
Vasser and Nurse Paire.
501 KAR 3:090 includes numerous subsections describing the practices and procedures
that a health care provider must follow when treating the inmate population at a Kentucky jail. In
his complaint, Hughes does not indicate which particular subsection Defendants allegedly violated.
(See Doc. # 23).
Standard of Review
Summary judgment is appropriate when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). If there is a dispute over facts that might affect the outcome of the case, then entry
of summary judgment is precluded. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The relevant inquiry is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as
a matter of law.” Id. at 251-52. The moving party has the initial burden of demonstrating
that there is no evidence to support the non-moving party’s case. Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986). Once the movant has met its burden, the non-movant must cite
to evidence in the record upon which “a reasonable jury could return a verdict” in its favor;
a mere “scintilla of evidence” will not do. Anderson, 477 U.S. at 248-52.
On summary judgment, courts view all evidence and draw all inferences in favor of
the nonmoving party. Id. at 255. This generally means “adopting the [non-movant’s]
version of the facts.” Coble v. City of White House, Tenn., 634 F.3d 865, 868 (6th Cir.
2011) (citing Scott v. Harris, 550 U.S. 372, 378 (2007)). Courts also refrain from resolving
credibility disputes on summary judgment. Anderson, 477 U.S. at 255. There is an
exception to this rule where “the non-moving party's version of the events is so blatantly
contradicted by objective evidence in the record that it fails to create a genuine issue of
material fact for trial.” Coble, 634 F.3d at 869 (emphasis added). But otherwise, “if
conflicting testimony appears in affidavits and depositions that are filed, summary judgment
may be inappropriate as the issues involved will depend on the credibility of the witnesses.”
Dawson v. Dorman, 528 F. App’x 450, 452 (6th Cir. 2013) (citations omitted) .
Claims Against Unknown Correctional Officers
Federal Rule of Civil Procedure 4(m) states, in pertinent part:
If a defendant is not served within 120 days after the complaint is filed, the
court . . . must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service for an
As noted above, Hughes filed his complaint on May 5, 2013. (Doc. # 1). Therein,
he asserts state and federal claims against ten unnamed Correctional Officers who
allegedly worked at the CCDC during his period of incarceration. (Id. at 2, ¶ 3). Pursuant
to the Amended Scheduling Order, Hughes had until May 15, 2014 to complete fact
discovery. (Doc. # 17). Although discovery is now complete, he has yet to identify or serve
with civil summonses any of the unknown Correctional Officers. Hughes has not shown
good cause, let alone attempted to explain why these defendants have not been served.
Accordingly, all claims asserted against the unnamed Correctional Officers must be
DISMISSED. See Petty v. Cnty. of Franklin, 478 F.3d 341, 345-46 (6th Cir.2007) (affirming
district court's dismissal of John Doe defendants because Plaintiff failed to specifically
name the John Doe defendants after the close of discovery).
Section 1983 Claims Against Nurse Vasser and Nurse Paire
Section 1983 requires a plaintiff to establish the following two elements: (1) the
defendant acted under the color of state law; and (2) the defendant’s conduct deprived the
plaintiff of a federally guaranteed right. Handy-Clay v. City of Memphis, Tenn., 695 F.3d
531, 539 (6th Cir. 2012). As medical professionals who rendered services to inmates at
a county prison, Nurse Vasser and Nurse Paire qualify as state actors for purposes of §
1983. See Harrison v. Ash, 539 F.3d 510, 521 (6th Cir. 2008) (citing West v. Atkins, 487
U.S. 42, 56 (1988)). The remaining question, then, is whether Hughes was deprived of a
right secured by federal law. The right he asserts is that of a prisoner to receive adequate
medical treatment during a term of incarceration, which derives from the constitutional
prohibition against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 102-03
However, the law does not afford relief to every inmate asserting deficient medical
care under the Eighth Amendment. Id. at 105. “In order to state a cognizable claim, a
prisoner must allege acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Id. at 106. This standard involves both an objective
and subjective component, and each must be satisfied for a plaintiff to succeed on his
claim. Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000) (citing Farmer v. Brennan, 511
U.S. 825, 834 (1994)). The Court will start by addressing the objective component.
The Objective Component
To satisfy the objective component, “[an] inmate must show that he is incarcerated
under conditions posing a substantial risk of serious harm.” Id. In other words, the inmate
must prove that his medical need was “sufficiently serious.” Id. A sufficiently serious
medical need is “one that has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would easily recognize the necessity for a
doctor's attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (citing Blackmore
v. Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004)). While dental problems do not
automatically satisfy the objective component, the Sixth Circuit does consider dental care
to be one of a prisoner’s “most important needs.” McCarthy v. Place, 313 F. App'x 810,
814 (6th Cir. 2008) (citations omitted). The seriousness of a dental ailment is determined
by factors such as the inmate’s level of pain, his ability to engage in normal activities (or
lack thereof), and the deterioration of his teeth. Id.
Defendants do not affirmatively argue that Hughes’ medical need was insufficient
to satisfy the objective component. Even if they had, such a position would be completely
at odds with the facts of this case. On January 10, 2013, Hughes reported significant pain
and difficulty breathing. He had swelling on his face, neck and chest, and was unable to
get out of bed. As a result of his condition, a deputy “easily recognized” that Hughes was
in need of immediate medical attention. The deputy took him to the main jail, where two
nurses and a doctor determined that he should be sent to the hospital. Hughes underwent
emergency surgery the same day and required a full week to recover. Because it is clear
from the objective evidence that Hughes’ medical need was sufficiently serious, the Court
will proceed to the subjective component of his claim. It is this component in which Hughes
The Subjective Component
The subjective component requires that the defendant act with a “sufficiently
culpable state of mind.” Bargery, 207 F.3d at 867 (citing Farmer, 511 U.S. at 834). The
required mentality is one of “deliberate indifference,” which is “something more than mere
negligence . . . [but] less than acts or omissions for the very purpose of causing harm or
with the knowledge that harm will result.” Farmer, 511 U.S. at 835 (citing Estelle, 429 U.S.
at 104). A defendant will not be liable under the Eighth Amendment for failing to address
a risk that he should have perceived, but did not. See Comstock v. McCrary, 273 F.3d 693,
703 (6th Cir. 2001) (citing Farmer, 511 U.S. at 837). Rather, a plaintiff must show that the
defendant “subjectively perceived facts from which to infer substantial risk . . . that he did
in fact draw the inference, and that he then disregarded that risk.” Id. Thus, deliberate
indifference is often equated with reckless disregard. Farmer, 511 U.S. at 836. The
purpose of this standard is to prevent the constitutionalization of medical malpractice
claims. Comstock, 273 F.3d at 703.
Hughes contends that Nurse Vasser and Nurse Paire acted with deliberate
indifference towards his serious medical needs. (Doc. # 53 at 7-8). As best the Court can
tell, his position is based primarily on the number of days that passed before he was seen
by a nurse from SHP. (Id.) Hughes counts six days in total, starting on January 4, 2013,
the day he completed the first sick call slip, and going through January 10, 2013, the day
he was taken by deputies to see Nurse Paire, and ultimately sent to the hospital for
surgery. (Id.) He does not stop counting a day earlier because, “[a]ccording to [his] version
of the facts,” only the dentist from Mid America saw him on January 9th. (Id.) Hughes also
points out that his first sick call slip was “placed as seen” by Nurse Vasser on January 6,
2013, and yet she chose not to examine him on that day or at any point thereafter. (Id. at
With respect to Hughes’ theory in general, a six day delay in treatment for what was
initially described as a “chipped tooth,” and thereafter simply called a “bad tooth,” is not
particularly compelling evidence. Indeed, the Sixth Circuit has declined to find deliberate
indifference in circumstances that involved a much longer delay than that alleged by
Hughes. See, e.g., Wright v. Taylor, 79 F. App'x 829, 831 (6th Cir. 2003) (finding that a
five-week delay in treatment for a ‘decaying tooth’ “[did] not rise to the level of an Eighth
Amendment violation because [the plaintiff’s] complaint [did] not contain allegations that the
defendants consciously chose to disregard the risks to his health.”).5
Moreover, apart from the relatively brief amount of time that passed before Hughes
received treatment, there is simply nothing to suggest that Nurse Vasser or Nurse Paire
deliberately ignored a substantial risk to his health. To best demonstrate this second point,
the Court will address the allegations against each nurse separately. Because Hughes is
the non-moving party, the Court adopts his version of events on summary judgment. See
Coble, 634 F.3d at 868.6
Although Nurse Vasser signed the first sick call slip as evidence of review on
January 6, 2013, she did not examine him on that day or at any point thereafter.
Presumably, then, Hughes’ theory is that Nurse Vasser was deliberately indifferent because
she chose not to provide treatment despite having learned from the sick call slip that he
was having problems with his tooth. But because the facts do not show that Nurse Vasser
perceived a substantial risk to Hughes’ health, she cannot be found liable under the Eighth
Assuming that the delay in treatment lasted six days is a fairly generous assumption under
the circumstances. True, Hughes submitted the first sick call slip on January 4, 2013 and was not
seen by a nurse from SHP until January 10, 2013; however, Nurse Vasser most likely did not review
the sick call slip until the day she signed it, which was January 6, 2013. Thus, one could just as
reasonably argue that Hughes’ delay in treatment lasted only four days.
The Court did not hesitate to adopt Hughes’ side of the story with respect to Nurse
Vasser’s involvement. After all, there is no clinical pathway form showing that a visit occurred on
January 6th, and Nurse Vasser even testified that she did not recall treating Hughes or scheduling
him to see the dentist. The decision with respect to Nurse Paire was not so easy. Nurse Paire
states in her affidavit that she saw Hughes on January 9th; Hughes insists otherwise in his
deposition. While there is an abundance of documentation to support Nurse Paire’s side of the
story, see supra note 3, the information in those documents was provided by Nurse Paire herself.
Because such information does not constitute objective evidence, it cannot be used to resolve a
credibility dispute on summary judgment. See Coble, 634 F.3d at 869. Therefore, the Court adopts
Hughes’ version of the facts with respect to Nurse Paire as well.
The first sick call slip was Nurse Vasser’s only source of information regarding
Hughes’ condition. All that she learned by reading the slip (assuming she did) was that
Hughes had a chipped tooth; that it was painful and showing the nerve; and that he was
having difficulty getting sleep. The slip does not suggest that Hughes was suffering from
an abscessed tooth or any other serious condition, nor does it describe symptoms that
would require immediate care, such as swelling, drainage or difficulty breathing. Moreover,
a mere three days passed before Hughes was seen by a dentist from Mid America, at
which point Nurse Vasser could safely assume that he was receiving adequate care for a
On these facts, no reasonable juror could find that Nurse Vasser
deliberately disregarded a substantial risk to Hughes’ health.7
Still, one might argue that Nurse Vasser’s conduct fell short of the required standard
of care. Perhaps a more competent nurse would have examined Hughes immediately in
order to rule out the possibility of something more serious than what the sick call slip
suggested. But even if this were true, it would not change the outcome here. The case law
is clear that arguments based on negligence have no bearing on an Eighth Amendment
claim for deliberate indifference. See Farmer, 511 U.S. at 838 (“[A]n official's failure to
alleviate a significant risk that he should have perceived but did not, while no cause for
This finding is entirely compatible with the Court’s earlier conclusion that Hughes’ ailment
was objectively sufficiently serious. In assessing the objective component, the Court is free to
consider all of the evidence, regardless of timing or whether the defendant had access to a
particular item of information. Under the subjective component, however, the Court’s goal to
identify which facts the defendant actually perceived, and whether they support the inference that
a substantial risk was present. Due to the distinct nature of these inquiries, it is not uncommon for
courts to find that a specific defendant was not deliberately indifferent even though the objective
component has been satisfied. See, e.g., Comstock 273 F.3d at 712 (with respect to Defendant
Howell); Modd v. Cnty. of Ottawa, Case No. 1:10-CV-337, 2012 WL 5398797, at *16 (W.D. Mich.
Aug. 24, 2012) (with respect to Defendant Garvey); Alcorn v. Scott Cnty. Det. Ctr., Case No. CIV.A.
09-232-JBC, 2011 WL 2145287, at *4 (E.D. Ky. May 31, 2011).
commendation, cannot under our cases be condemned as the infliction of punishment.”);
Estelle, 429 U.S. at 106 (“[A] complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid claim of medical mistreatment under
the Eighth Amendment.”).
In summary, by Hughes’ own account, Nurse Vasser’s involvement was limited to
reviewing the first sick call slip on January 6, 2013. That slip did not present evidence of
a substantial risk to Hughes’ health, and therefore her decision not to examine him after
signing it was, at most, negligent. Because the standard for deliberate indifference requires
“a state of mind more blameworthy than negligence,” Hughes cannot satisfy the subjective
component of his claim against Nurse Vasser. Farmer, 511 U.S. at 835.
The claim against Nurse Paire is even less convincing. According to Hughes, his
only visit with Nurse Paire occurred on January 10, 2013. During that encounter, she noted
pronounced swelling on his jaw and neck, and observed that he was unable to open his
mouth wider than one-half inch. There is no doubt that Nurse Paire perceived a substantial
risk to Hughes’ health. However, after considering his condition, she promptly consulted
with her superior and then called Dr. So, who ordered that Hughes be sent to the hospital
immediately. Nurse Paire complied with that order.
Needless to say, these facts do not support any inference that Nurse Paire
recklessly disregarded Hughes’ serious medical needs. To the contrary, they show that her
conduct was reasonable and competent under the circumstances. Because Hughes
cannot demonstrate deliberate indifference, his claim against Nurse Paire fails as well. See
Farmer, 511 U.S. at 845 (“Whether one puts it in terms of duty or deliberate indifference,
prison officials who act reasonably cannot be found liable under the Cruel and Unusual
The amended complaint includes a similar § 1983 claim against SHP as an entity.
It also includes state law claims against all defendants for negligence and failure to comply
with 501 KAR 3:090. Defendants have put forth convincing arguments in favor of summary
judgment with respect to each of these claims. They contend that the federal claim against
SHP cannot proceed because there is no evidence of a corporate policy that deprived
Hughes of his constitutional rights.8 (Doc. # 50-1 at 13-14). They also explain that the
negligence claims are time-barred and unsupported by expert proof, while noting that the
regulatory claim fails for lack of evidence. (Id. at 15-20). Hughes does not address any of
these arguments in his Response. Instead, he concedes that “there is no federal action
against Southern Health Partners and that the state law claims are time barred.” (Doc. #
53 at 1).
As discussed supra, once a moving party files a properly supported motion for
summary judgment, the non-movant’s burden is to cite to evidence upon which a
reasonable jury could return a verdict in his favor. Anderson, 477 U.S. at 248-52. Since
Hughes has clearly failed to meet this burden, the Court will grant summary judgment for
Defendants on all remaining claims.
The claim against SHP also fails because a plaintiff cannot proceed against a corporate
entity under § 1983 without showing an actual violation of his constitutional rights. Modd v. Cnty.
of Ottawa, Case No. 1:10-cv-337, 2012 WL 5398797, at *18 (W.D. Mich. Aug. 24, 2012) (citing
Bowman v. Corrections Corp. of America, 350 F.3d 537, 546 (6th Cir. 2003)). Based on the Court’s
finding with respect to Nurse Vasser and Nurse Paire, Hughes cannot make this showing.
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
Defendants’ Motion for Summary Judgment (Doc. # 50) be, and is hereby,
GRANTED in full;
Hughes’ federal and state law claims are hereby DISMISSED WITH
This case is hereby STRICKEN from Court’s active docket; and
A Judgment shall be entered contemporaneously herewith.
This 11th day of June, 2015.
G:\DATA\Opinions\Covington\2013\13-49 MOO Granting MSJ.wpd
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