Smith v. Campbell County, Kentucky et al
Filing
102
MEMORANDUM OPINION & ORDER: 1) Defendants Campbell County and Jailer James Daleys Motion for Summary Judgment 91 is granted; 2) SHP Defendants' Motion for Summary Judgment 89 is granted in part and denied in part. Spec ifically, (a) SHP Defendants' Motion is granted on Count I (§ 1983 deliberate indifference) as it pertains to Defendants Anna Nash, Marissa Sparks, Amanda Clarkson, Leslie Doremus, and SHP, and denied as i t pertains to Defendants MinaKalfas and Krista Slayback; (b) SHP Defendants' Motion is granted on Count II (negligence and gross negligence) as it pertains to Defendants Anna Nash and Marissa Sparks, an ddenied as it pertains to Mina Kalfas, Amanda Clarkson, Leslie Doremus, Krista Slayback, and SHP; (c) SHP Defendants' Motion is granted on Count III (outrage) and Count IV (intentional infliction of emotional distress); (d) SHP Defendants' Motion is granted on Count V (501 KAR § 3:090) as it pertains to Defendants Anna Nash and Marissa Sparks, and denied as it pertains to Mina Kalfas, Amanda Clarkson, Leslie Doremus, Krista Slayback, and SHP. 3) Plaintiff David Smith's claims against Campbell County, James Daley, Anna Nash, and Marissa Sparks are dismissed with prejudice; 4) Within twenty (20) days from the date of entry of this Memorandum Opinion and Order, the remaining parties-Plaintiff David Smith and Defendants Mina Kalfas, Amanda Clarkson, Leslie Doremus, Krista Slayback, and SHP shall file a Joint Status Report, setting forth available dates for a Final Pretrial Conference and Jury Trial, and whether they would be amenable to a court-facilitated settlement Conference on theremaining claims. Signed by Judge David L. Bunning on 3/25/2019.(ECO)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 16-13-DLB-CJS
DAVID SMITH
v.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
CAMPBELL COUNTY, KENTUCKY, et al.
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DEFENDANTS
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* *
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On February 2, 2015, David Smith was arrested for drug crimes in Campbell
County, Kentucky, and transported to the Campbell County Detention Center (“CCDC”).
During his time at the CCDC, Plaintiff suffered from epidural abscesses and osteomyelitis
of the spine, resulting in sepsis and acute paraplegia of the lower part of his body. Plaintiff
filed suit against Campbell County, Campbell County Jailer James Daley, Southern
Health Partners, Inc. (“SHP”), Dr. Mina Kalfas, nurses Anna Nash, Marissa Sparks,
Amanda Clarkson, Leslie Doremus, and Krista Slayback, and various John and Jane
Does. In his Complaint, Plaintiff alleges that Defendants exhibited deliberate indifference
to his serious medical needs in violation of the Eighth and Fourteenth Amendments to the
federal Constitution. (Doc. # 1 at 8-9). He also brings numerous pendant state-law
claims, including negligence, outrage, intentional infliction of emotional distress, and
violation of Kentucky Administrative Regulation (“KAR”) 501 3:090. Id. at 9-10.
There are currently two Motions for Summary Judgment before the Court, both of
which are fully briefed and ripe for review. (Docs. # 89, 91, 98, 99, 100, and 101).
1
Defendants Campbell County and James Daley (collectively “County Defendants”) seek
summary judgment on the deliberate-indifference and state-law claims against them.
(Doc. # 91). They also argue that the claims against the John Doe defendants should be
dismissed.
Id.
SHP, Kalfas, Nash, Sparks, Clarkson, Doremus, and Slayback
(collectively “SHP Defendants”) also filed a Motion for Summary Judgment, requesting
dismissal of all claims against them. (Doc. # 89). For the reasons set forth below, the
County Defendants’ Motion for Summary Judgment is granted. The SHP Defendants’
Motion for Summary Judgment is granted in part and denied in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff David Smith was arrested February 2, 2015 on a warrant in Campbell
County, Kentucky, for several drug-related crimes. (Doc. # 89-1). Smith was taken to the
Campbell County Detention Center (“CCDC”) where he remained incarcerated until
March 5, 2015.
At the time of his incarceration, Campbell County contracted with
Southern Health Partners, Inc. (“SHP”) to provide medical care to inmates at CCDC.
(Doc. # 89-2). In turn, SHP contracted with Dr. Mina Kalfas to oversee the administration
of medical care at CCDC. (Doc. # 89-3).
Upon admission to the CCDC on February 2nd, Smith advised prison staff of a
number of health problems, including withdrawal from heroin, depression, anxiety, leg
pain, and a history of pain and bone fractures in his back. (Doc. # 98-3). Later on the
same day, Smith reported to SHP nurse Marissa Sparks—a named defendant in this
case—that he suffered from high blood pressure, depression, bipolar disorder, and
hepatitis B and C and that he was taking blood pressure medications. (Docs. # 98-4 and
89-5). Smith also told the SHP nursing staff that he had overdosed on heroin in January
2
2014 and had attempted suicide “over a year ago.” (Doc. # 89-5). That same day, the
SHP physician on staff at the CCDC, Dr. Mina Kalfas (also a named defendant), gave
orders for detox and blood pressure monitoring. (Doc. # 89-6). Smith’s medication
reconciliation from CVS Pharmacy showed that his current medications were Lisinopril,
HCTZ, Zantac, Cymbalta, Elavil, and Lithium, which all had been filled on January 2,
2015. (Doc. # 89-7). On February 3, 2015, Smith refused to allow SHP head nurse1
Krista Slayback (a named defendant) to evaluate him for his antidepressant medications,
Elavil and Cymbalta. Id. Smith also declined further detox monitoring on February 4th.
Id.
On February 5, 2015, Smith requested medical assistance by submitting a “Sick
Call Slip,” complaining of “Chronic Pain Due to Back” and indicated that it had been going
on for the past two weeks. (Doc. # 98-5). SHP nurse Amanda Clarkson (who is also a
named defendant) responded to the Sick Call Slip on February 7th and recorded the
results on a “Clinical Pathways/Patient Clinical Data Form.” (Doc. # 89-11). Smith
described his pain as “aches” and stated that his pain level was 8 out of 10 on the pain
scale. Id. He also reported that his pain was greater with activity. Id. When asked if he
had had this pain before, his answer was “no.” Id. Despite Smith being “very verbal”
about his pain and his statement that his pain level was 8 out of 10 on the pain scale,
Nurse Clarkson perceived Smith to be in only “slight pain” because he did not manifest
physical symptoms of extreme pain, including sweating or difficulty breathing. (Doc. #
98-6 at 59). Nevertheless, Nurse Clarkson observed that Smith’s vital signs were “slightly
elevated,” so she recommended a three-day regimen of ibuprofen 400 mg, which Dr.
1
Nurse Slayback’s formal title at the CCDC was “Medical Team Administrator.” (Doc. # 49-7 at 170).
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Kalfas prescribed. (Docs. # 89-6 and 98-6).
Smith filled out his second Sick Call Slip on February 8, 2015, writing “Back Pain
Severe.” (Doc. # 98-7). Nurse Julia Schlake (not a named defendant) responded to
Smith’s Sick Call Slip on February 9, 2015. (Doc. # 98-8). Again, Smith complained of
constant pain that was 8 out of 10 on the pain scale and that had started two weeks ago.
Id. Smith also stated that the increased pain began when he “sneezed and felt like he
[had] pulled a muscle.” (Doc. # 89-13). Nurse Schlake determined that Smith’s vital signs
were “elevated,” but did not prescribe any additional treatment, as Smith was still taking
ibuprofen. (Doc. # 98-9 at 47). Later on February 9th, Smith was seen by SHP Nurse
David Watkins (not a named defendant), although no written record of this visit exists.
(Doc. # 98-10 at 46).
On February 10th, Nurse Leslie Doremus (also a named Defendant) attempted to
conduct a “History and Physical Assessment” for Smith, but he declined, stating “Don’t
need one.” (Doc. # 89-14). On February 11th, Smith submitted a third Sick Call Slip, on
which he wrote “Upper back Disc . . . as well as breathing due to Spinal Compression!!
Please Help!!” (Doc. # 98-11). He also wrote that had experienced the problem for “years
but last two weeks.” Id. Nurse Schlake responded on February 12th and noted that Smith
was experiencing pain in the middle of his back that was a 10 on the pain scale. (Doc. #
98-12). Smith once again told the nurse that the onset of back pain corresponded with a
sneeze two weeks prior to entering CCDC. Id. Nurse Schlake recommended Tylenol,
which Dr. Kalfas prescribed that same day. (Docs. # 89-6 and 98-12).
Smith filed his fourth Sick Call Slip on February 13, 2015, which stated “Need to
See Doctor ASAP Back.” (Doc. # 98-13). Smith was seen by Nurse Clarkson on February
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14th. (Doc. # 98-14). In her evaluation, Nurse Clarkson noted that Smith described his
back pain as “sharp, aches,” and that his pain was at a 10 on the pain scale. Id. She
also noted “prior back injury” and that his vital signs were normal. Id. Nurse Clarkson did
not recommend new treatment. Id.
On February 15, 2015, Smith sent in his fifth Sick Call Slip, complaining of “Back
Pain Numbness and Tingling Extra Strength Tylenol and See The Doctor!!” (Doc. # 9815). Smith was seen by Nurse Doremus on February 16th. (Doc. # 89-20). During this
visit, Smith stated that his back pain started in 2007 when he was “hit by a tractor” in an
accident. Id. Smith further reported that his pain was constant and a 5 out of 10 on the
pain scale. Id. Despite mentioning numbness and tingling in his Sick Call Slip, the Clinical
Pathways form that Nurse Doremus filled out did not mention numbness or tingling. Smith
was prescribed Naproxen 500 mg for his pain. (Docs. # 89-6 and 89-20).
Dr. Kalfas examined Smith for the first time on February 17, 2015. During the
examination, Smith complained of “back pain, neck mid back pain.” (Doc. # 98-17). Dr.
Kalfas recorded that Smith had seen a chiropractor at age fifteen and was hit by a forklift
in 2007, resulting in a “crushed” L5-S1 in his back. Id. Dr. Kalfas noted that Smith
received treatment for his back from Dr. Hanson, who performed “epidurals and dye.” Id.
In addition, Smith reported problems with his left ankle, knee, and with heartburn. Id. Dr.
Kalfas also observed that Smith had been on heroin, that he had not had any recent
Lithium labs, and that he had no upper extremity or lower extremity symptoms at the time.
(Docs. # 98-17 and 49-7 at 107). Based on his examination and review of Smith’s health
history, Dr. Kalfas diagnosed Smith with degenerative disc disease that caused chronic
back and neck pain. (Doc. # 49-7 at 107). As treatment, he prescribed Voltaren (an anti-
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inflammatory gel) and Baclofen (a muscle relaxant). (Doc. # 98-17). Dr. Kalfas also
prescribed Prilosec for Smith’s heartburn and ordered labs for Lithium. (Docs. # 89-6,
98-17, and 49-7 at 107).
On February 22, 2015, Smith complained of pain in his lower back, along with
tingling and numbness in his lower extremities. (Doc. # 98-22). He also indicated that
the pain interfered with walking.
(Doc. # 98-22).
Nurse Doremus completed an
examination, during which she noted Smith had facial grimacing. (Doc. # 98-22). Nurse
Doremus did not record Smith’s pain level, nor did she complete a Clinical Pathways form.
(Doc. # 98-16 at 44, 47). She reported Smith’s symptoms to Dr. Kalfas, who prescribed
a higher dose of Baclofen. (Docs. # 89-6 and 98-19).
In the early morning of February 25, 2015, Smith approached Deputy Rickey
Pemberton, who noticed that Smith was “breathing heavy and was in pain.” (Doc. # 9820 at 2). Smith told Deputy Pemberton that if he wasn’t sent to the hospital to treat his
pain, he would swallow a razor blade. Id. Noticing what appeared to be metal in his
mouth, Deputy Pemberton contacted SHP Nurse Marissa Sparks, who was unable to
contact her supervisor. (Doc. # 98-21 at 4-5). After some time, Smith revealed that the
“razor blade” was in fact a metal washer and that he was just trying to get some help
because he was in so much pain. Id. at 3. Later on February 25th, Smith was evaluated
by a social worker at NorthKey mental health clinic, who noted that Smith reported back
pain and had threatened to swallow a razor blade if not treated. (Doc. # 98-23). The
social worker also noted that Smith apologized and stated that he wanted treatment for
his pain. Id. Smith reported to the social worker that he had attempted suicide in 2002
and 2011. Id. As a result of this incident, Smith was assessed as a high risk for suicide,
6
placed in an anti-suicide smock, and relocated to an observation cell. (Doc. # 98-22).
Smith was taken off suicide watch that same afternoon. Id.
On February 26, 2015, Smith submitted his sixth Sick Call Slip, complaining of
“Back Pain, Possible Bulging Discs Need to See Doctor Need X Rays Immediately.” (Doc.
# 98-24). He wrote on the Sick Call Slip that he had had the problem for 25 days. Id.
Smith was tended to by Nurse Doremus, who took Smith’s vitals and referred him to Dr.
Kalfas. (Doc. # 98-22). There is no indication in the record that Doremus completed a
Clinical Pathways form for this visit.
Later that day, Smith was examined by Dr. Kalfas for the second time. Id. Smith
complained to Dr. Kalfas of increased pain in his back and right buttock. Id. Dr. Kalfas
acknowledged that he would have reviewed the progress note from February 22nd, which
indicated that Smith had complained of numbness and tingling in his legs as well as
difficulty walking. (Doc. # 49-7 at 92). Smith also claims to have told Dr. Kalfas during
this visit that he was experiencing “sporadic paralysis.” (Doc. # 98-45 at 5). In his
evaluation, Dr. Kalfas noted that Smith had sustained injuries in multiple motor vehicle
accidents, including a forklift injury in 2007. (Doc. # 98-22). Dr. Kalfas performed a
straight-leg-raise test, which revealed radiating pain. Id. Smith also reported pain when
bending axially and cried out when Dr. Kalfas put pressure on several para-spinal areas.
Id. Despite this, Dr. Kalfas diagnosed Smith with malingering, observing that Smith
exaggerated his pain and his gait. (Docs. # 49-7 at 96 and 98-22). In addition to his
exaggerated gait, Dr. Kalfas recorded that Smith “cried out excessively,” (Doc. # 98-22),
in one instance shouting “oh, oh” as Dr. Kalfas pressed lightly on his head. (Doc. # 49-7
at 98). Dr. Kalfas also stated in his deposition that he suspected Smith to be malingering
7
“[b]ecause he wanted to go to the hospital.” Id. at 93. In response to Smith’s complaint
of sporadic paralysis in his legs, Dr. Kalfas advised that he could still walk because he
was capable of moving his toes. (Doc. # 98-45 at 5). Also during this evaluation, Smith
requested an X-ray, which Dr. Kalfas declined, citing “no recent trauma.” (Docs. # 49-7
at 99 and 98-22). Dr. Kalfas also noted that Smith had no swelling or inflammation and
no motor or sensory deficits. (Doc. # 98-22). Notably, Dr. Kalfas did not order any
treatment as a result of this second examination. (Doc. # 49-7 at 100).
On February 27, 2015, Officer Alexander Fead wrote in an incident report that he
had heard Smith moaning while “slowly attempting to sit in a chair.” (Doc. # 98-26). Smith
told Officer Fead that he was experiencing back pain. Id. Officer Fead notified Nurse
Schlake, who said that she “would contact the doctor to see if anything could be done.
Id. Also on February 27th, Smith submitted a Campbell County Inmate Grievance Form,
on which he wrote
Issues I have is medical refuses to find solution by looking into cause by x
-Ray. They think trying to mask the pain external with medication. But
without knowing cause. How can you treat the problem and letting problem
get works and cause more damage. Back problems can lead to paralysys
or death!!I cause issues within the dorm by excess painful out crys through
out the night!! If you heard any details ask any night officers who have seen
me in degress of health!!Please I just want to find out problem before any
more damage encures. P.S. medical staff as well as Dr. Calvis. I believe
E.R. would be only option! Thank you.
(Doc. # 98-27).
On March 1, 2015, Smith sent in his seventh Sick Call Slip, stating “No
Improvement In Back!! Getting Worse and Causing Breathing Problems and Sore Ribs!!
Also Need Treatments for Heels Cracked Bad!!” (Doc. # 98-28). While on an observation
round at 7:30 a.m. on March 2nd, Officer Tyler Holzschuh heard Smith making “audible
8
‘grunting’ sounds as if he was in pain.” (Doc. # 98-31). Officer Holzschuh wrote in his
report that “Smith was observed laying in his bunk, out of breath and stated ‘my legs are
numb, I can’t feel my legs all the way up to my waist.’” Id. After reporting the incident to
his supervisor, Officer Holzschuh called Nurse Slayback, who advised Officer Holzschuh
that Smith was “faking” and that he was already on the sick call list for later that morning.
Id. According to Officer Holzschuh, Nurse Slayback told him that Smith “had ready seen
the doctor twice in the past month for the same issue.” Id. Nurse Slayback also stated
that “for the numerous times he has been evaluated for the same issue by the medical
department, Inmate D. Smith needed to be placed into medical isolation for observation.”
Id. Officer Holzschuh testified that at the time of his report, Smith was being housed in
“DS-3 203 A,” an isolation cell used for inmates who have medical issues or disciplinary
problems. (Doc. # 98-32 at 6). Holzschuh indicated that Smith had been moved into
isolation because he was disturbing other inmates by crying out in pain during the night.
Id. at 7.
Smith was seen by Nurse Slayback twice on March 2nd. At 11:20 a.m., Nurse
Slayback noted that Smith complained of back pain and numbness in both legs. (Doc. #
98-29). She observed that Smith was not answering her questions and continually
moaned. Id. Nurse Slayback ordered that Smith be held in isolation for “abuse of medical
services.” Id. Later at 1:56 p.m., Nurse Slayback observed that Smith was able to bear
weight and move all of his extremities. Id. He continued to moan, yell, and scream. Id.
Nurse Slayback recommended that Smith get an X-ray, which Dr. Kalfas approved. (Doc.
# 49-5 at 48-49). Smith received an X-ray on March 2, 2015, which showed degenerative
disc disease in the thoracic and lumbar spine. (Doc. # 89-26).
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On March 3, 2015, Officer Patricia Dietz was notified that Smith had urinated on
himself. Smith told her that he was unable to walk and could not move to get water or to
use the restroom. (Doc. # 98-33). Officer Dietz spoke with Nurse Schlake, who said that
Smith had received X-rays, which showed no broken bones. (Doc. # 98-33). Smith was
given a jug of water and his pants were taken to be washed. (Doc. # 98-33). Also on
March 3rd, Smith was seen by Dr. Kalfas for the third time, who reviewed the X-ray results
and noted that Smith complained of increased pain.
(Doc. # 98-29).
Dr. Kalfas
acknowledged that he would have seen the progress notes from the day before stating
that Smith complained of bilateral leg numbness and was seen moaning, yelling, and
screaming. (Doc. # 49-7 at 58). He also states in his notes that Smith had back issues
and testified that Smith “appeared to be in some pain.” Id. at 69. Nevertheless, Dr. Kalfas
concluded once again that Smith was malingering. (Doc. # 98-29). According to Dr.
Kalfas’s notes, a sensory examination of Smith’s lower extremities was “inconsistent.” Id.
He wrote that Smith would withdraw his feet in response to stimuli but act as if he didn’t
feel anything. Id. Dr. Kalfas also observed that Smith’s deep tendon reflexes were 2+
and symmetrical, the pulses were intact, and he had good strength and coordination of
his lower extremities. Id. Finally, when Smith told Dr. Kalfas that he was unable to walk,
Dr. Kalfas told Smith that he “need[ed] to get up and walk!” and explained in his deposition
that this command “ha[d] a little bit of forcefulness behind it.” (Doc. # 49-7 at 63). Dr.
Kalfas testified that after he ordered Smith to walk, Smith “got up slowly and he limped a
little bit and seemed to, after a couple steps, move a little better.” (Doc. # 49-7 at 69).
Dr. Kalfas ordered no new treatment or diagnostic tests as a result of this third exam.
10
At 6:37 p.m. on March 3rd, Officer Dietz received a phone call from Smith’s sister,
Casey Simon, who requested that her brother be taken to the hospital because he could
not feel his legs. (Doc. # 98-35). Smith’s sister called again on March 4th at 1:57 p.m.,
this time speaking with Nurse Slayback. (Doc. # 98-37). Smith’s sister told Nurse
Slayback that Smith was not mentally stable and that she was concerned for his safety.
Id. She also told Nurse Slayback that Smith was unable to move his legs and that he
needed to be transferred to the emergency room. Id. Nurse Slayback told Smith’s sister
that Smith had been evaluated by the prison doctor and that “if any issues arise [Smith]
will be treated.” Id. Later on March 4th, Smith was again placed on suicide watch after
Nurse Slayback observed multiple scratch marks on Smith’s left forearm. (Doc. # 98-37).
According to Nurse Slayback’s Progress Notes, Smith denied any suicidal ideations and
claimed the scratches resulted from the wall. Id. While on suicide watch, Smith was
observed yelling. (Docs. # 98-10 at 3 and 98-38).
On March 5, 2015 at 5:00 a.m., Smith was observed laying on the floor of his cell
yelling for help. (Doc. # 98-40). Sergeant Pemberton and three deputies responded to
Smith’s cell. Id. Smith told the officers that that he had fallen from his bunk and couldn’t
get up, but that he did not want assistance in returning to his bunk for fear of “hurting his
back worse.” Id. Smith further stated that he did not want anyone but a “St. Elizabeth
[Hospital] medical professional” to help him. Id. Sergeant Pemberton told Smith that “you
have been checked by our medical staff, had xrays, and they the medical staff say that
you can walk.” Id. Later at 8:30 a.m., Nurse Slayback observed Smith sleeping on his
stomach on the floor. (Doc. # 98-37). Nurse Slayback examined Smith when we woke
up less than two hours later. Id. Nurse Slayback noted that she witnessed Smith move
11
his legs and wiggle his toes despite his claims to the contrary. (Doc. # 49-5 at 32).
Nevertheless, Nurse Slayback decided to transport Smith to St. Elizabeth Hospital for
evaluation of Smith’s mental status and because of “psychosomatic complaints of lower
extremity paralysis.” (Docs. # 49-7 at 45 and 98-37). She testified that Smith was able
to bend his knees in the process of moving him into the wheelchair and did not appear to
be in pain. (Doc. # 49-5 at 33). She also observed that he was able to stand and walk
with the assistance of one person on each side. Id. at 34. Numerous officers who
transported Smith to the hospital corroborated Nurse Slayback’s account. For instance,
Officer Joan Warfield noted that “[a]s deputies and medical personnel were helping
[Smith] to the wheel chair he was moving his legs and at the same time stating he could
not move them.” (Doc. # 98-41).
Upon admission to St. Elizabeth Hospital in Edgewood, Kentucky, Dr. Laroy
Kendall noted that Smith complained of back pain, difficulty walking, and abdominal pain.
(Doc. # 98-43). Dr. Kendall also observed that Smith “reports that he cannot move his
lower extremities but has been witnessed to move them on several occasions and did
move them for me.” Id. Doctors at St. Elizabeth later determined that Smith had a spinal
abscess and osteomyelitis of the spine.
(Doc. # 98-39).
Doctors performed an
emergency L7-10 laminectomy on the afternoon of March 5, 2015. Id. Also on March
5th, Nurse Schlake wrote that Deputy O’Brien had received reports from inmates that
Smith was giving away his commissary and food trays in exchange for getting assaulted
so that he could go to the hospital. Id. Smith was discharged on April 30, 2015, at which
point he was determined to be paraplegic with “trace” movements of his legs. (Doc. # 891 at 8). Smith was then transported to Gateway Rehabilitation Hospital. Id. Upon
12
discharge from Gateway on May 27, 2015, Smith was diagnosed with the “effects of spinal
epidural abscess with MRSA with paraplegia.” Id. At the time of discharge from Gateway,
Smith was unable to move or ambulate. Id.
On January 29, 2016, Smith sued Campbell County, Jailer James Daley, SHP, Dr.
Kalfas, and nurses Anna Nash, Marissa Sparks, Amanda Clarkson, Leslie Doremus, and
Krista Slayback, and ten John and Jane Does.
(Doc. # 1).
Plaintiff alleged that
defendants exhibited deliberate indifference to his serious medical needs in violation of
the Eighth and Fourteenth Amendments to the U.S. Constitution. (Doc. # 1 at 8-9).
Plaintiff also brought pendant state claims, including negligence, outrage, intentional
infliction of emotional distress, and violation of Kentucky Administrative Regulation
(“KAR”) 501 3:090. (Doc. # 1 at 9-10).
On April 30, 2018, both the SHP and County
Defendants filed Motions for Summary Judgment on all claims. (Docs. # 89 and 91).
Plaintiff filed Responses (Docs. # 98 and 99), to which both sets of Defendants replied.
(Docs. # 100 and 101).
II.
ANALYSIS
A.
Standard of Review
Summary judgment is appropriate when the record reveals “that 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). A genuine issue of material fact exists where “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The “moving party bears the burden of
showing the absence of any genuine issues of material fact.” Sigler v. Am. Honda Motor
Co., 532 F.3d 469, 483 (6th Cir. 2008). Once a party files a properly-supported motion
13
for summary judgment, by either affirmatively negating an essential element of the nonmoving party’s claim or establishing an affirmative defense, “the adverse party must set
forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at
250. However, “the mere existence of a scintilla of evidence in support of the [non-moving
party’s] position will be insufficient.” Id. at 252.
The Court must “accept Plaintiff’s evidence as true and draw all reasonable
inferences in his favor.” Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014)
(citing Anderson, 477 U.S. at 255). The Court may not “make credibility determinations”
or “weigh the evidence when determining whether an issue of fact remains for trial.” Id.
(citing Logan v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001)). “The ultimate question
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.’” Back v.
Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (quoting Anderson, 477 U.S. at 25152). If there is a dispute over facts that might affect the outcome of the case under
governing law, the entry of summary judgment is precluded. Anderson, 477 U.S. at 248.
As the moving parties, the Defendants must shoulder the burden of showing the
absence of a genuine dispute of material fact as to at least one essential element of each
of Plaintiff’s claims. Fed. R. Civ. P. 56(c); see also Laster, 746 F.3d at 726 (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Assuming Defendants satisfy their burden,
the Plaintiff “must—by deposition, answers to interrogatories, affidavits, and admissions
on file—show specific facts that reveal a genuine issue for trial.” Laster, 746 F.3d at 726
(citing Celotex Corp., 477 U.S. at 324). Furthermore, “the trial court no longer has a duty
to search the entire record to establish that it is bereft of a genuine issue of material fact.”
14
Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989).
B.
Pseudonymous Defendants
As an preliminary matter, the Defendants identified in Plaintiff’s Complaint as “John
and Jane Does 1-10” must be dismissed under Federal Rule of Civil Procedure 4(m),
which states that “[i]f service . . . is not made upon a defendant within 120 days after the
filing of the complaint, the court . . . shall dismiss the action without prejudice as to that
defendant . . . .” As Plaintiff provides no evidence that these pseudonymous defendants
have been served, all claims against those defendants must be dismissed without
prejudice.2 Fed. R. Civ. P 4(m); see Petty v. Cty. of Franklin, 478 F.3d 341, 345 (6th Cir.
2007).
C.
Defendants Anna Nash and Marissa Sparks
In his Response to the SHP Defendants’ Motion for Summary Judgment, Plaintiff
concedes that the facts do not support any of his claims against Defendant nurses Anna
Nash and Marissa Sparks. (Doc. # 98 at 22). After reviewing the record, the Court
agrees. Accordingly, all of Plaintiff’s claims against Anna Nash and Marissa Sparks are
dismissed with prejudice.
D.
Section 1983 Deliberate Indifference Claim
Both the County and SHP Defendants seek summary judgment on Plaintiff’s §
1983 claim. To prevail on a claim under 42 U.S.C. § 1983, a plaintiff “must establish that
he was [1] denied a constitutional right, and [2] that the deprivation was caused by a
2
As the court in Petty v. County of Franklin pointed out, dismissal without prejudice in this
circumstance is “of little practical relevance,” given the fact that if Smith were to refile today, his claim would
be barred by the 1-year statute of limitations for personal injury claims in Kentucky. See Petty, 478 F.3d at
346 n.3; Collard v. Ky. Bd. of Nursing, 896 F.2d 179, 182 (6th Cir. 1990) (noting that statute of limitations
for § 1983 claims in Kentucky is one year).
15
defendant acting under color of state law.” Carl v. Muskegon Cty., 763 F.3d 592, 595 (6th
Cir. 2014). The Court will address the second element first.
1.
Under color of state law
With the exception of Dr. Kalfas, none of the Defendants dispute that the second
element is met in this case. Counties are suable “persons” under § 1983. Alkire v. Irving,
330 F.3d 802, 814 (6th Cir. 2003) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658
(1978)); see also Jones v. Muskegon Cty., 625 F.3d 935, 946 (6th Cir. 2010).
Furthermore, county correctional institutions and their employees are routinely regarded
as acting under color of state law. See, e.g., Blosser v. Gilbert, 422 F. App’x 453, 456
(6th Cir. 2011); Jones, 625 F.3d at 944-46. Therefore, Campbell County and Campbell
County Jailer James Daley may both be sued under § 1983.
Likewise, SHP and its employees, including the nurse defendants in this case, are
subject to suit under § 1983 because they acted under color of state law. “It is well settled
that private parties that perform fundamentally public functions, or who jointly participate
with a state to engage in concerted activity, are regarded as acting ‘under color of state
law’ for the purposes of § 1983.” Bartell v. Lohiser, 215 F.3d 550, 556 (6th Cir. 2000).
“Contracting out prison medical care does not relieve” the Commonwealth or its counties
of the “constitutional duty to provide adequate medical treatment to those in its custody,
and does not deprive . . . prisoners of the means to vindicate their” constitutional rights.
West v. Atkins, 487 U.S. 42, 56 (1988); see also Hicks v. Frey, 992 F.2d 1450, 1458 (6th
Cir. 1993). Thus, SHP and its employees are suable persons under § 1983.
Meanwhile, Dr. Kalfas contends—without citation to case law—that he did not act
under color of state law because he is an independent contractor of SHP and not a direct
16
employee. (Doc. # 89-1 at 14-15). In essence, Dr. Kalfas argues that while a private
contractor of a county jail is suable under § 1983, a private subcontractor is not. Plaintiff
argues to the contrary, citing Carl v. Muskegon County, 763 F.3d 592 (6th Cir. 2014) for
the proposition that “the employment arrangement of an individual does not affect the
authority under which they act.” (Doc. # 98-19). The Court agrees with Plaintiff on this
point.
In Carl, a county jail contracted out psychiatric services to another county agency,
which then hired a private physician as an independent contractor. 763 F.3d at 594. The
court found that the physician could be sued under § 1983 because she was acting under
color of state law. Id. at 595. Carl held that in determining whether a private prison doctor
is a state actor for purposes of § 1983, the key question is if the doctor “exercise[s] powers
which are traditionally exclusively reserved to the state.” Id. (quoting Wolotsky v. Huhn,
960 F.2d 1331, 1335 (6th Cir. 1992)). The court had no trouble in concluding that
providing medical care to individuals in state custody constitutes a traditional state
function. Id. at 596. Hence, the Carl physician’s psychiatric evaluation of the incarcerated
plaintiff was sufficient to qualify her as a state actor. Id. Likewise in this case, Dr. Kalfas
was performing a traditional state function by treating individuals, including Plaintiff, who
were detained in the CCDC. Therefore, Dr. Kalfas will be considered a state actor.
Dr. Kalfas counters that Carl is distinguishable because the psychiatrist in that
case contracted directly with a county agency. (Doc. # 100 at 3). Yet, Carl makes clear
that “an employment relationship does not control whether a private individual acts under
color of state law.” 763 F.3d at 597 (citing West, 487 U.S. at 56). Rather, “[i]t is the
physician's function . . . that determines whether he is acting under color of state law.”
17
Id. (alteration in original) (quoting West, 487 U.S. at 56).
Accordingly, just last year, the Sixth Circuit found that a private subcontractor who
provided healthcare in a county prison could be subject to liability under § 1983. In
Winkler v. Madison County, 893 F.3d 877, 885 (6th Cir. 2018), the court adjudicated a §
1983 deliberative-indifference claim involving a county that had contracted with a private
medical provider, Advanced Correctional Healthcare, Inc., which “in turn entered into a
contract with Dr. Nadir H. Al-Shami to be the staff physician at several county jail
facilities.” Although the court ultimately affirmed a grant of summary judgment for all
defendants, including Dr. Al-Shami, it easily concluded that Dr. Al-Shami acted under
color of state law, observing that “[t]he principle is well settled that private medical
professionals who provide healthcare services to inmates at a county jail qualify as
government officials acting under the color of state law for the purposes of § 1983.” Id.
at 890.3 Thus, the Court has little difficulty in finding Dr. Kalfas to have acted under color
of state law.
2.
Deprivation of a constitutional right
Having concluded that all the Defendants in this case acted under color of state
law, the Court next turns to the first element of a § 1983 claim —"whether there was an
actionable deprivation of a right secured under the Constitution or the laws of the United
States.” Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005).
3
Federal district courts in Kentucky have consistently found private subcontractors to be state actors
for purposes of § 1983. See, e.g., Hamilton v. Pike Cty., 2013 WL 529936, at *2 (E.D. Ky. Feb. 11, 2013)
(including within § 1983’s reach an “independent contractor Southern Health [Partners] hired to provide
medical services at the Pike County Jail”); Finn v. Warren Cty., 2012 WL 3066586, at *14 (W.D. Ky. July
27, 2012), reversed in part on other grounds, 768 F.3d 441 (6th Cir. 2014) (rejecting the argument made
by the Medical director at a County facility “that he is not a state actor for purposes of § 1983 because he
is an independent contractor hired by an independent contractor, and is thus twice removed from the
State”).
18
Prisoners in state custody have a right to adequate medical care under the Eighth
Amendment. Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). Pretrial detainees like
Smith have the same right by way of the Due Process Clause of the Fourteenth
Amendment. Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018). The Sixth Circuit “has
historically analyzed Fourteenth Amendment pretrial detainee claims and Eighth
Amendment prisoner claims ‘under the same rubric.’” Id. (quoting Villegas v. Metro. Gov’t
of Nashville, 709 F.3d 563, 568 (6th Cir. 2013)).
To establish a cause of action under § 1983 for failure to provide adequate medical
treatment, a pretrial detainee must show that “the defendants acted with ‘deliberate
indifference to [his] serious medical needs.’” Watkins v. City of Battle Creek, 273 F.3d
682, 686 (6th Cir. 2001) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)).
A
deliberate-indifference claim involves an objective and subjective component. Richmond,
885 F.3d at 937-38. “The objective component requires the plaintiff to show that the
medical need at issue is ‘sufficiently serious.’” Id. at 938 (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). “A 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, 539 F.3d at 518
(quoting Blackmore v. Kalamazoo Cty., 390 F.3d 890, 897 (6th Cir. 2004)).
None of the Defendants in this case dispute that the objective component has been
satisfied. Nor could they, as Plaintiff was diagnosed with an epidural abscess and
osteomyelitis of the spine resulting in sepsis and paraplegia. (Docs. # 89-1 at 8 and 9839); see Taylor v. Franklin Cty., 104 F. App’x 531, 538 (6th Cir. 2004) (finding that a
plaintiff whose undiagnosed spinal tumor resulted in paralysis had met the objective prong
19
of the deliberate-indifference test); Ham v. Marshall Cty., No. 5:11-cv-11, 2012 WL
6675133, at *6 (W.D. Ky. Dec. 21, 2012) (holding that a jury could find the objective
component satisfied for a plaintiff who suffered from a spinal abscess which “ultimately
required emergency surgery and left him paraplegic”).
The contested issue in this case is the subjective component of the deliberateindifference standard. For the subjective component, “the detainee must demonstrate
that the defendant possessed ‘a sufficiently culpable state of mind in denying medical
care.’” Estate of Carter v. City of Detroit, 408 F.3d 305, 311 (6th Cir. 2005) (quoting
Blackmore, 390 F.3d at 895). While mere negligence is insufficient to establish deliberate
indifference, a plaintiff does not have to demonstrate that the defendant acted with
purpose or knowledge. Jones, 625 F.3d at 941. “Instead, the prison official must have
acted with a state of mind similar to recklessness.” Id. (citing Farmer, 511 U.S. at 836).
Thus, to prove the required level of culpability, “the plaintiff must allege facts which,
if true, would show that the official being sued [1] subjectively perceived facts from which
to infer substantial risk to the prisoner, [2] that he did in fact draw the inference, and [3]
that he then disregarded that risk.” Darrah v. Krisher, 865 F.3d 361, 368 (6th Cir. 2017)
(quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)). As many courts have
observed, prison officials “do not readily admit this subjective component.” Phillips v.
Roane Cty., 534 F.3d 531, 540 (6th Cir. 2008); see also Dominguez v. Corr. Med. Servs.,
555 F.3d 543, 550 (6th Cir. 2009). Consequently, it is “permissible for reviewing courts
to infer from circumstantial evidence that a prison official had the requisite knowledge.”
Phillips, 534 F.3d at 540 (internal quotation marks omitted). A “court must also consider
other factors—such as the obviousness of the risk, the information available to the official,
20
the observable symptoms, and the expected level of knowledge of the particular official.”
Sours v. Big Sandy Reg’l Jail Auth., 593 F. App’x 478, 484 (6th Cir. 2014).
Consequently, liability can be established “simply by showing that the correctional
officer ‘refused to verify underlying facts that he strongly suspected to be true, or declined
to confirm inferences of risk that he strongly suspected to exist.’” Richko v. Wayne Cty.,
819 F.3d 907, 918 (6th Cir. 2016) (quoting Farmer, 511 U.S. at 843 n.8). For summaryjudgment purposes, it is sufficient that “defendants could have perceived a substantial
risk of serious harm to [plaintiff]. Whether in fact they perceived, inferred or disregarded
that risk is an issue for trial.”
Clark-Murphy v. Foreback, 439 F.3d 280, 290 (6th Cir.
2006) (emphasis added).
“[I]n the medical context, an inadvertent failure to provide adequate medical care
cannot be said to constitute ‘an unnecessary and wanton infliction of pain.’” Estelle, 429
U.S. at 105. Accordingly, “a complaint that a physician has been negligent in diagnosing
or treating a medical condition does not state a valid [constitutional] claim of medical
mistreatment.” Id. at 106. Similarly, “[w]hen a prison doctor provides treatment, albeit
carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference
to the prisoner’s needs, but merely a degree of incompetence which does not rise to the
level of a constitutional violation.” Comstock, 273 F.3d at 703.
Yet, “[i]n cases involving mistreatment by medical personnel, [the Sixth Circuit] has
held that ‘less flagrant conduct [than that of other government officials] may constitute
deliberate indifference.’” Phillips, 534 F.3d at 544 (second alteration in original) (quoting
Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002)). While
medical malpractice does not amount to a constitutional violation, a doctor “has a duty to
21
do more than simply provide some treatment to a prisoner who has serious medical
needs; instead, the doctor must provide medical treatment to the patient without
consciously exposing the patient to an excessive risk of serious harm.” Phillips, 534 F.3d
at 544 (quoting LeMarbe v. Wisneski, 266 F.3d 429, 439 (6th Cir. 2001)). In determining
whether a prison doctor’s conduct rose to the level of deliberate indifference, the question
to ask is “whether a reasonable doctor in his position could have concluded that a
substantial risk of serious harm to [plaintiff] existed.” Id.; see also Terrance, 286 F.3d at
845.
When deciding deliberate-indifference claims against multiple defendants, “the
court should consider whether each individual defendant had a sufficiently culpable state
of mind.” Phillips, 534 F.3d at 542. Therefore, the Court will analyze each defendant
separately, grouping them together only when appropriate based on the facts. Id.
a.
Dr. Kalfas
Dr. Kalfas first became involved in Plaintiff’s medical care on February 7th, when
he prescribed Plaintiff pain medication. However, he did not physically examine Smith
until February 17th, when he ordered a Lithium lab and diagnosed Smith with
degenerative disc disease. Dr. Kalfas visited with Smith again on February 26th and
March 3rd and performed physical examinations, but did not order any additional
treatment or other diagnostic tests as a result. He did, however, approve an X-ray for
Smith upon Nurse Slayback’s request on March 2nd.
Dr. Kalfas moves for summary judgment on Smith’s § 1983 claim on the basis that
he was not deliberately indifferent to Smith’s serious medical needs. As set forth above,
Plaintiff must demonstrate a genuine dispute of material fact regarding whether Dr. Kalfas
22
(1) subjectively perceived facts from which to infer substantial risk to Smith, (2) did in fact
draw the inference, and (3) then disregarded that risk. Darrah, 865 F.3d at 368. Plaintiff
argues that the seriousness of his condition was self-evident, and yet Dr. Kalfas
administered little or no treatment and thus ignored an excessive risk of harm. (Doc. #
98 at 17-18).
In response, Dr. Kalfas argues that there is no evidence showing that he
“consciously disregarded a substantial risk of harm to Mr. Smith.” (Doc. # 89-1 at 13)
(internal quotation marks omitted). At worst, he argues, he was incorrect in diagnosing
Smith’s condition. (Doc. # 100 at 2-3). Dr. Kalfas also maintains that he was not
deliberately indifferent because he assessed Smith on multiple occasions, ordered labs
and an X-ray, and prescribed medication. (Doc. # 89-1 at 13-14). According to Dr. Kalfas,
Plaintiff’s claim amounts to no more than a disagreement with Dr. Kalfas’s medical
judgment, which is generally not actionable under § 1983. (Doc. # 89-1 at 13-14).
Dr. Kalfas is correct in 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.” Graham v. Cty. of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004)
(quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). There is no doubt
that in this case, Smith received some medical attention from Dr. Kalfas.
As the
Defendant acknowledges, however, the Sixth Circuit has also held that “prison officials
may not entirely insulate themselves from liability under § 1983 simply by providing some
measure of treatment.” McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008).
“Indeed, deliberate indifference may be established in cases where it can be shown that
23
a defendant rendered ‘grossly inadequate care’ or made a ‘decision to take an easier but
less efficacious course of treatment.’” Jones, 625 F.3d at 944-45 (quoting McCarthy, 313
F. App’x at 814).
The distinction between deliberate indifference and a mere dispute over the
adequacy of treatment “is a fine one.” Jones v. Corr. Med. Servs., 845 F. Supp. 2d 824,
841 (W.D. Mich. 2012). In general, courts have found medical professionals to be
deliberately indifferent—as opposed to merely negligent—in situations where the medical
professional’s “response to an obvious risk to an inmate’s health is patently
unreasonable.” Cairelli v. Vakilian, 80 F. App’x 979, 984 (6th Cir. 2003). For example, in
LeMarbe, a doctor who observed five liters of bile in the plaintiff’s abdomen during surgery
decided to close the incision without addressing the bile leak. 266 F.3d at 436-37.
Plaintiff’s expert testified that “anyone with a medical education” would have understood
the risk of harm to the plaintiff from the bile leak. Id. at 437. Though the surgeon had
numerous follow up appointments with the plaintiff and eventually referred him to a
specialist, the court found that he had “clearly acted with a conscious disregard” for the
patient's health. Id. at 438-39.
In Comstock, the decedent committed suicide after being removed from suicide
watch. 273 F.3d at 699. The Sixth Circuit denied summary judgment for the prison
psychiatrist, who based his decision to remove the decedent from suicide watch on a
“facial[ly] inadequa[te] 30-minute evaluation. Id. at 707. The psychiatrist’s conduct fell
so far below the standard of care that a jury could conclude the psychiatrist acted
recklessly rather than negligently. Id. at 709. Similarly, in Williams v. Simpson, No. 5:09cv-31-R, 2010 WL 5186722, at *5 (W.D. Ky. Dec. 15, 2010), the plaintiff exhibited
24
symptoms consistent with life-threatening bowel problems.
The plaintiff’s doctor
performed a short examination and found the plaintiff to be malingering. Id. at *1. When
told later of plaintiff’s new and worsening symptoms, the doctor continued to believe that
the plaintiff was faking. Id. at *2. Eventually, the doctor sent plaintiff to the hospital, where
he received emergency surgery but died shortly thereafter. Id. The Williams court denied
summary judgment for the doctor, relying in part on an expert who opined that when
presented with plaintiff’s history and symptoms, “the first consideration of the medical
officers should have been a bowel obstruction or something similar.” Id. at *6.
The case in Hamilton v. Pike County, No. 11-99-ART, 2013 WL 529936 (E.D. Ky.
Feb. 11, 2013) (Thapar, J.) provides an example of facts that will and will not suffice to
establish a claim of deliberate indifference. Hamilton involved a plaintiff who suffered
acute kidney failure and developed a hematoma in his lower back while being held at the
Pike County Jail. Id. at *1. The defendant doctor initially conducted a comprehensive
examination of the plaintiff, who complained of difficulty walking and breathing. Id. at *10.
When all tests came back as normal, the doctor “hypothesized that [plaintiff’s] symptoms
might be either feigned or the result of drug interactions,” and discontinued some of
plaintiff’s medications in response.
Id.
The doctor’s failure to diagnose Plaintiff’s
condition was not deliberate indifference, as there was no evidence that he “knew or
should have known that [plaintiff] had any particular ailments.” Id.
Nevertheless, the Hamilton court found that the doctor’s subsequent behavior
presented a triable issue of fact as to the doctor’s deliberate indifference. Specifically,
after learning that plaintiff’s symptoms had escalated “from having trouble walking to
being unable to walk at all,” the defendant merely prescribed a multivitamin. Id. at *11.
25
“[T]here [was] no evidence that [defendant] ever followed up with [plaintiff] or ordered
further tests.” Id. While defendant ended up sending plaintiff to the hospital two days
later, the court concluded that “it is at least plausible that [defendant] knew of a serious
medical risk—[plaintiff’s] inability to walk—and disregarded that risk by prescribing only a
multivitamin in response.” Id.
In contrast to LeMarbe, Williams, and Hamilton, the court in Kosloski v. Dunlap,
347 F. App’x 177, 179 (6th Cir. 2009) concluded that a nurse was not deliberately
indifferent to an inmate who, after experiencing certain symptoms, identified a disease to
a nurse that he was at risk for. Upon determining that the inmate exhibited no symptoms
consistent with the disease he claimed to have, the nurse sent him back to his cell after
a two-minute exam. Id. As it turned out, the plaintiff was suffering from the disease he
identified, and died as a result of the delayed treatment. Id. at 177, 179. The court held
that while the nurse may have been negligent, she could not be found deliberately
indifferent because she “did not appreciate that a substantial risk of serious harm existed.”
Id. at 180. In a similar case, Sixth Circuit observed that a prison doctor’s prescription of
a laxative in response to complaints of substantial weight loss and severe stomach pain
“seem[ed] inappropriate,” but was not deliberately indifferent given that some of the
patient’s colorectal cancer symptoms were consistent with a diagnosis of constipation.
Jones, 625 F.3d at 945; see also Cairelli, 80 F. App’x at 984.
Finally, in Williams v. Mehra, a prison psychiatrist knew the risk that his suicidal
patient would hoard his medication in order to overdose and attempted to mitigate that
risk by administering the patient’s medication in a “pill line.” 186 F.3d 685, 688 (6th Cir.
1999) (en banc). In spite of this precaution, the prisoner ended up hoarding the pills and
26
overdosing. Id. at 689. Although administering the patient’s medication in liquid form
would likely have been safer, summary judgment was appropriate because “[t]here [was]
nothing to suggest that the doctors were failing to treat [plaintiff] or doing less than their
training indicated was necessary.” Id. at 692.
The panels in LeMarbe and Comstock expressly distinguished their cases from
Mehra.
Whereas the Mehra defendants “chose one medically reasonable form of
treatment over another,” the Comstock defendant’s cursory evaluation could be described
as “grossly inadequate” and thus an unreasonable response to a substantial risk of harm.
Comstock, 273 F.3d at 710. Similarly, there was evidence suggesting that the surgeon
in LeMarbe actually knew of the danger posed by failing to plug the patient’s bile leak,
whereas there was no evidence in Mehra that the defendants inferred an excessive risk
of harm from the use of a pill line. LeMarbe, 266 F.3d at 439-40. In that sense, the
surgeon’s decision to close his patient’s incision without addressing the bile leak “raised
more than just a simple question of whether Dr. Wisneski made the right medical
judgment in treating him.” Id. at 439.
In summary, “[w]here the defendant made a reasoned choice between two
alternative treatments, considering the risk to the patient in doing so, the courts typically
refuse to second-guess the doctor's judgment, even when the decision was in fact wrong.”
Jones v. Corr. Med. Servs., 845 F. Supp. 2d at 842. In addition, a decision to render little
or no treatment at all can still be considered reasonable, but only when it can be shown
that the defendant failed to infer an excessive risk of harm. See Kosloski, 347 F. App’x
at 180; Hamilton, 2013 WL 529936, at *10-11. Conversely, where there is an obvious
risk of serious harm and little or no action is taken, a finding of deliberate indifference is
27
appropriate. See LeMarbe, 266 F.3d at 436-37.
Taking the facts in the light most favorable to the non-moving party, this case
follows LeMarbe, Comstock, Williams, and Hamilton more closely than Kosloski, Jones,
and Mehra. A review of the record reveals a number of facts Dr. Kalfas was aware of
from which he could infer a substantial risk of serious harm to Smith. Dr. Kalfas was
aware that Smith was an intravenous (IV) heroin user immediately prior to his detention
at the CCDC in February 2015. (Doc. # 49-7 at 102). As someone who specializes in
“addiction medicine,” Dr. Kalfas was familiar with the fact that IV heroin use can be a
“harbinger of other medical issues,” including infectious processes. Id. at 7, 102. In fact,
Dr. Kalfas stated in his deposition that he understood infection in IV heroin users to be
“fairly common.”
Id. at 102.
Dr. Kalfas also admitted to having experience with
osteomyelitis (bone infection) and claimed to have treated patients with this condition in
the past. Id. at 104. Therefore, Dr. Kalfas was well-aware of the general risk of bone
infection for a patient fitting Smith’s profile.
In addition, Dr. Kalfas was aware of the following: (1) Smith complained of severe
pain, numbness and tingling in his legs, and difficulty walking as early as February 22nd;
(2) Smith threatened suicide if not sent to the hospital on February 25th; (3) Smith
reported experiencing “sporadic paralysis”; (4) Smith again complained of severe back
pain as well as bilateral leg numbness on March 2nd and was observed moaning, yelling,
and screaming; (5) Smith complained of increased back pain and “appeared to be in some
pain” on March 3rd; (6) Smith complained of not being able to walk on March 3rd but did
walk with some difficulty when commanded to; and (7) some of Smith’s symptoms,
including numbness, tingling, and inability to move his legs, could be indicative of a
28
serious medical condition. See (Docs. # 49-7 at 27, 51-52, 69, 138, 147 and 98-45 at 5).
Considering all these facts in the light most favorable to Plaintiff, a reasonable jury could
conclude that Dr. Kalfas subjectively perceived facts from which he could infer a
substantial risk of serious harm to Smith.
Whether Dr. Kalfas actually drew this inference and disregarded a serious risk of
harm are closer questions. Nevertheless, the Court finds considerable record evidence—
both direct and circumstantial—suggesting that Dr. Kalfas “did not respond reasonably to
the substantial risk of harm [] of which he was subjectively aware.” Comstock, 273 F.3d
at 710.
First, there is direct evidence that Dr. Kalfas inferred the risk of bone infection as
it specifically related to Smith. When asked “[d]id you consider Mr. Smith may have had
an infection causing his pain,” Dr. Kalfas answered, “I did consider that.” (Doc. # 49-7 at
142). When asked “[w]ere you ever concerned that Mr. Smith may have issues with
paralysis,” Dr. Kalfas responded, “I was concerned, that’s why I evaluated [Smith] on
[February] 26th and on [March] 3rd.” Id. at 181. Dr. Kalfas testified that he used Smith’s
lithium lab test results from February 17th to rule out the presence of an infection when
he last examined Smith on March 3rd. Id. at 74. He then states, however, that bone
infections can be present “for a while but . . . may not be detectable until very late.” Id. at
87. Thus, Dr. Kalfas’s testimony suggests that he would have known that a thirteen-dayold lab test would be ineffective at diagnosing a bone infection.
Meanwhile, in the intervening two weeks between Smith’s lab test on February
17th and Dr. Kalfas’s evaluation on March 3rd, Smith told Dr. Kalfas that he was
experiencing sporadic paralysis, numbness and tingling in his legs, and had difficulty
29
walking, which Dr. Kalfas acknowledged could be symptoms of a serious medical
condition, including osteomyelitis. (Docs. # 49-7 at 149 and 98-45 at 5). Dr. Kalfas also
admitted that an MRI would have detected Plaintiff’s spinal abscess and osteomyelitis.
(Doc. # 49-7 at 83). Rather than ordering an MRI, however, Dr. Kalfas diagnosed Plaintiff
as malingering and ordered no new treatment or diagnostic tests in response to Smith’s
neurological symptoms.4 (Doc. # 49-7 at 69-70, 100).
Therefore, based on Dr. Kalfas’s testimony, a reasonable jury could conclude that
Dr. Kalfas “refused to verify underlying facts that he strongly suspected to be true, or
declined to confirm inferences of risk that he strongly suspected to exist.” Comstock, 273
F.3d at 703 (quoting Farmer, 511 U.S. at 843 n.8). Specifically, a jury could find Dr. Kalfas
inferred a risk of infection in Smith’s spine on February 26th and March 3rd, and chose to
disregard that risk by not ordering an MRI, which would have required transporting Smith
to the hospital. (Doc. # 49-7 at 83-84). A jury would also be entitled to discount Dr.
Kalfas’s post hoc explanation for not conducting an MRI, given his admission that
infections “may not be detectable until very late” and the fact that he first learned of
Smith’s neurological symptoms well after Smith’s February 17th lab test. See Estate of
Carter, 408 F.3d at 313 (noting that a jury could conclude that a prison official’s testimony
was untruthful when it was contradicted by other evidence in the record).
Second, there exists substantial circumstantial evidence that the risk to Plaintiff
was so obvious that “a reasonable doctor in [Kalfas’s] position could have concluded that
4
Although Dr. Kalfas approved an X-ray for Smith on March 2nd, Nurse Slayback testified that she
is the one who requested it after she saw Smith for a sick call on March 2nd. See (Doc. # 49-5 at 48-49,
66, 115). In fact, Dr. Kalfas declined to order an X-ray when Plaintiff requested one during his February
26th examination. In any event, Dr. Kalfas admits that an X-ray would not have been effective at detecting
Smith’s spinal abscess, unless it had grown to a very large size. (Doc. # 49-7 at 142).
30
a substantial risk of serious harm to [Smith] existed.” Phillips, 534 F.3d at 544. Expert
testimony that speaks to the obviousness of a risk can be used to demonstrate a dispute
of material fact regarding whether a prison doctor exhibited conscious disregard for the
plaintiff’s health. Lemarbe, 266 F.3d at 438. Several of Smith’s experts have testified
that Smith’s symptoms presented clear warning signs of spinal infection. Dr. Anthony
Albano opines that Smith’s history of IV heroin use, severe back pain, and new
neurological symptoms “falls into the category of emergent MRI.” (Doc. # 89-36 at 10).
Another of Plaintiff’s experts, Dr. Artur Hughes, states that “[t]he combination . . . of mid
back pain and numbness and tingling of the legs represents a situation of medical urgency
requiring appropriate imaging studies of the thoracic spine.”
(Doc. # 89-36 at 24).
According to Dr. Hughes, “[a]ppropriate and timely imaging would have averted the spinal
cord compression sustained by Mr. Smith and which left him paraplegic.” (Doc. # 89-36
at 24). Therefore, a reasonable factfinder in this case “may conclude that [Dr. Kalfas]
knew of a substantial risk from the very fact that the risk was obvious” and then
“disregarded such risk.” Lemarbe, 266 F.3d at 437-38 (quoting Farmer, 511 U.S. at 842).
Contrary to Defendant’s assertions, Dr. Kalfas’s care for Smith amounts to more
than simply a misdiagnosis. Dr. Kalfas did diagnose Smith with degenerative disc disease
on February 17th and prescribed medication. Yet, unlike in Jones, there is direct and
circumstantial evidence that Dr. Kalfas inferred a risk of injury from a more serious
condition which he did not adequately investigate or treat. Much like in Hamilton, there
is no evidence that Smith’s progressively worsening symptoms, including sporadic
paralysis and immobility, could be explained by Dr. Kalfas’s February 17th diagnosis of
degenerative disc disease. As such, a reasonable jury could conclude that Dr. Kalfas’s
31
failure to order an MRI in response to Smith’s symptoms of paraplegia was not merely a
product of poor medical judgment.
Finally, Dr. Kalfas cannot prevail on summary judgment by arguing that he
subjectively believed Smith to be malingering and therefore did not consciously disregard
a serious risk of harm. As Hamilton and Williams demonstrate, when a doctor is faced
with reports of a patient’s worsening condition, his decision not to provide treatment based
on a continued belief that the patient is malingering presents a triable issue of fact
regarding deliberate indifference. Hamilton, 2013 WL 529936, at *11; Williams, 2010 WL
5186722, at *6. While a subjective belief that a prisoner is faking his symptoms can
negate a finding of deliberate indifference on the part of a prison official, see Weaver v.
Shadoan, 340 F.3d 398, 412 (6th Cir. 2003), the contested question of whether a prison
official actually held this subjective belief is an issue for the jury. See Brookes v. Shank,
660 F. App’x 465, 469 (6th Cir. 2016) (holding that “there is at the very least a question
of fact” as to whether a doctor who withheld treatment from an inmate “was actually
motivated by a sincere concern that [the inmate] was a drug seeker”);Taylor v. Franklin
Cty., 104 F. App’x 531, 540 (6th Cir. 2004); see also Greeno v. Daley, 414 F.3d 645, 655
(7th Cir. 2005) (“The possibility that [defendants] did not do more for [plaintiff] because
they thought he was malingering and did not really have a severe medical need is an
issue for the jury.”); Hollenbaugh v. Maurer, 397 F. Supp. 2d 894, 904 (N.D. Ohio 2005).
This principle is discussed at length in Taylor. In that case, the plaintiff was
incarcerated at a county jail on a 21-day sentence and immediately began complaining
of severe back pain and difficulty walking. Taylor, 104 F. App’x at 534. After falling in a
stairwell, plaintiff continually told jail staff that he could no longer walk. Id. at 534-35.
32
Inmates housed with the plaintiff soon began complaining of plaintiff’s hygiene and that
he suffered from bladder incontinence. Id. at 534. In addition, plaintiff’s wife called the
jail to say that her husband had informed her that he could not walk and had bouts of
incontinence. Id. at 535. Soon after, jail officials found plaintiff lying in his bed, unable to
walk, and smelling of urine. The defendants—including a nurse—claimed, however, that
three days after plaintiff’s fall in the stairwell, they saw plaintiff walk on his own power and
move his legs, and that he did so again two days later. Id. On the day of his release, jail
officers told plaintiff’s brother that even though plaintiff claimed he could not walk, the jail
staff “knew he could.” Id. Upon admission to the hospital, plaintiff was diagnosed with a
large malignant tumor wrapped around his thoracic spine, resulting in paralysis from the
waist down.
The Taylor court rejected the prison-guard defendant’s argument that he could not
be deliberately indifferent because he did not believe Plaintiff’s complaints of immobility
after he witnessed Plaintiff moving his legs on two occasions. Id. at 539. The court held
that “a genuine issue arises as to how skeptical Defendant Mazzacone was regarding his
subjective knowledge of Plaintiff’s alleged ailment.”
Id. at 540.
And furthermore,
“Mazzacone may not escape liability because of his refusal to believe the seriousness of
Plaintiff’s ailments.” Id. Likewise, the court found summary judgment inappropriate for
the defendant nurse, who argued that her refusal to examine the plaintiff after he told her
he couldn’t walk was based on a subjective belief that he was faking his injuries. Id. at
541.
Just as in Taylor, the record in this case is decidedly mixed on the issue of whether
Plaintiff appeared to be faking his injuries. On the one hand, there is evidence that Dr.
33
Kalfas and others at the CCDC understood Smith’s condition to be inconsistent with his
complaints. See, e.g., (Docs. # 49-5 at 32-33, 98-29, and 98-41). On the other hand,
others who worked at the CCDC, including Nurses Schlake and Doremus as well as
Deputy Holzschuh, testified that they did not believe Smith to be feigning his pain or
symptoms. See (Docs. # 49-2 at 59, 49-4 at 77, and 98-32 at 7). In addition, jail staff
documented objective evidence of Plaintiff’s injuries, including that Smith was keeping
other inmates up at night with his cries of pain. (Doc. # 98-32 at 7).
Moreover, Smith’s expert, Dr. Angelo Scotti, opines that “[t]here is no objective
method of proving or disproving pain or symptoms such as numbness” and that in his
view, “there were no findings supporting a diagnosis of malingering.” (Doc. # 89-36 at 56). Dr. Albano, another of Smith’s experts, and who has experience treating inmates,
asserts that in his opinion, Plaintiff’s large number of sick calls were “excessive even for
a drug seeker or malingerer.” (Doc. # 89-36 at 10). Furthermore, he states that Dr.
Kalfas’s examination “was not consistent with a patient who is becoming paraplegic.” Id.
Therefore, “material facts exist as to whether [Dr. Kalfas’s] professed ignorance towards
Plaintiff's vocalized medical needs is proven and whether [his] conduct caused grossly
inadequate medical care in violation of the [Fourteenth Amendment].” Taylor, 104 F.
App’x at 541. Accordingly, Plaintiff’s § 1983 claim against Dr. Kalfas survives summary
judgment and Dr. Kalfas’s Motion for Summary Judgment on this claim is denied.
b.
Nurse Clarkson
Nurse Clarkson formally examined Smith twice during his detention at the CCDC.
The first examination took place on February 7th, in response to Smith’s Sick Call Slip,
which read, “Chronic Pain Due to Back.” (Doc. # 98-5). Smith described his pain as
34
“aches” and reported a pain level of 8 out of 10 on the pain scale. (Doc. # 89-11). Nurse
Clarkson recorded that Smith’s vital signs were “slightly elevated” and recommended a
three-day course of ibuprofen, which Dr. Kalfas prescribed. (Docs. # 89-6 and 98-6).
Nurse Clarkson’s second examination of Smith occurred on February 14 and was in
response to Smith’s fourth Sick Call Slip, which read “Need to See Doctor ASAP Back.”
(Doc. # 98-13). Nurse Clarkson noted that Smith described his back pain as “sharp,
aches,” which was a 10 out of 10 on the pain scale. She also noted “prior back injury”
and that his vital signs were normal. (Doc. # 89-18). She wrote that Smith was already
taking Tylenol and did not recommend any additional treatment.
Based on the evidence in the record, no reasonable jury could find that Nurse
Clarkson was deliberately indifferent to Smith’s serious medical needs. First, unlike Dr.
Kalfas, there is no evidence that Nurse Clarkson was educated on the heightened risk of
infection for IV heroin users or had any experience treating spinal infections. See (Doc.
# 49-3). Second, it is undisputed that “Plaintiff's most severe symptoms occurred after
his contacts with [Nurse Clarkson].” Reilly v. Vadlamudi, 680 F.3d 617, 626 (6th Cir.
2012) (emphasis in original). At the time Nurse Clarkson examined Smith, he had not yet
complained of numbness or tingling in his legs or difficulty walking. Based on Smith’s
reported health history and symptoms, it was reasonable for Nurse Clarkson to believe
he was suffering from chronic back pain from a prior accident or that he had pulled a
muscle when he sneezed two weeks earlier.
Third, in response to Smith’s report of intense pain on February 7th, Nurse
Clarkson recommended a course of anti-inflammatory treatment. Although she did not
recommend treatment for Smith’s pain on February 14th, she noted that he was already
35
taking Tylenol for pain relief.
Her determination that Smith’s existing dose of pain
medication was sufficient appears wrong in hindsight. But when, as here, a prisoner
“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.” Graham, 358 F.3d at 385 (internal
quotation marks omitted). Although Nurse Clarkson had the authority to send Smith to
the hospital when she examined him on February 14th, see (Doc. # 49-3 at 65), Plaintiff’s
own expert opines that hospitalization was not warranted until the first indication of leg
symptoms, which occurred on February 15th. (Doc. # 89-36 at 24). Consequently, Nurse
Clarkson’s actions cannot be characterized as “patently unreasonable,” Cairelli, 80 F.
App’x at 984, and thus her Motion for Summary judgment on Smith’s § 1983 claim is
granted.
c.
Nurse Doremus
Nurse Doremus had approximately four interactions with Smith over the course of
sixteen days. On February 10, Nurse Doremus attempted to conduct a “History and
Physical Assessment” for Smith, but he declined, stating “Don’t need one.” (Doc. # 8914). Nurse Doremus next saw Smith on February 16th in response to Smith’s Sick Call
Slip, on which he wrote “Back Pain Numbness and Tingling Extra Strength Tylenol and
See The Doctor!!” (Doc. # 98-15). Nurse Doremus recommended prescribing Naproxen
500 mg for his pain, which Dr. Kalfas approved shortly thereafter. Smith was also visited
by Dr. Kalfas the following day.
Nurse Doremus saw Smith for the third time on February 22nd in response to
Smith’s complaints of pain in his lower back, along with tingling and numbness in his lower
36
extremities. He also indicated that the pain interfered with walking. Nurse Doremus
completed an examination, during which she noted Smith had facial grimacing. She
reported Mr. Smith’s symptoms to Dr. Kalfas, who prescribed a higher dose of Baclofen.
Nurse Doremus last examined Smith on February 26th in response to Smith’s Sick Call
Slip, which stated “Back Pain, Possible Bulging Discs Need to See Doctor Need X Rays
Immediately.” (Doc. # 98-24). Nurse Doremus took Smith’s vitals and referred him to Dr.
Kalfas, who examined him later that day.
When viewed in the light most favorable to Smith, facts in the record show that
Nurse Doremus was aware of and inferred a substantial risk of serious harm to Smith.
Nurse Doremus became aware of Smith’s neurological symptoms as soon as February
16th, when she presumably saw on his Sick Call Slip complaining of numbness. She also
recorded Smith’s complaints of lower extremity numbness during her two subsequent
examinations on February 22nd and 26th. Additionally, Nurse Doremus testified that
tingling and numbness is “concerning” and could be a sign of a serious medical issue
depending on the circumstances. (Doc. # 49-4 at 44). Lastly, Nurse Doremus testified
to knowing that Smith was in pain during his February 22nd exam because he exhibited
facial grimacing. (Doc. # 49-4 at 47).
Even assuming, however, that Smith’s reported symptoms and Nurse Doremus’s
understanding of the seriousness of those symptoms constituted sufficient evidence to
conclude that she knew of Plaintiff’s serious medical needs, there is insufficient evidence
that Nurse Doremus “disregarded the substantial risk of serious harm” to Smith. Estate
of Carter, 408 F.3d at 313. “[P]rison officials who actually knew of a substantial risk to
inmate health or safety may be found free from liability if they responded reasonably to
37
the risk, even if the harm ultimately was not averted.” Grabow v. Cty. of Macomb, 580 F.
App’x 300, 308 (6th Cir. 2014) (quoting Farmer, 511 U.S. at 844).
In considering whether Nurse Doremus acted reasonably in response to an
excessive risk of harm, the Court is cognizant of the fact that nurses, unlike doctors, are
“not licensed to independently diagnose conditions, devise treatment plans, or prescribe
medicine.” Hamilton, 2013 WL 529936, at *12. In situations where a medical emergency
is obvious even to a layperson, a nurse acts reasonably when she immediately notifies a
doctor of a patient’s serious medical need or sends the patient to a hospital for emergency
care. See Warren v. Prison Health Servs., 576 F. App’x 545, 557, 558 (6th Cir. 2014); cf.
Terrance, 286 F.3d at 846 (holding that prison nurse could be held liable for failing to
“immediately seek alternate medical assistance”).
Relatedly, in cases where a prisoner’s medical condition appears serious, but less
urgent, a nurse’s timely examination and subsequent referral to a doctor is generally
sufficient to avoid § 1983 liability. For instance, in Winkler v. Madison County, a nurse
examined a prisoner complaining of severe stomach pain, chills, achiness, and elevated
blood pressure. 893 F.3d 877, 886 (6th Cir. 2018). The nurse suspected that the prisoner
was suffering from opiate withdrawal, when in fact he had a perforated duodenal ulcer
and died three days later. Id. at 886, 889. In affirming the district court’s grant of summary
judgment for the nurse, the Sixth Circuit noted that the nurse was arguably negligent in
failing to further investigate the prisoner’s condition. Id. at 894. Yet, the nurse did not
disregard a serious risk of harm because the evidence showed that she “gathered
information about [plaintiff’s] condition, provided it to a medical professional qualified to
evaluate him, and followed the directions of that medical professional.” Id.
38
The court in Hamilton reached a similar conclusion, finding that a jail nurse who
was subjectively aware of the plaintiff’s inability to walk did not disregard an excessive
risk of harm when she quickly notified the doctor on staff.
2013 WL 529936, at *12.
Conversely, the Sixth Circuit in Bays v. Montmorency County held that summary
judgment was inappropriate for a jail nurse who scheduled an appointment with a
specialist “weeks in the future” despite observing symptoms that required “immediate or
near-immediate care.” 874 F.3d 264, 270 (6th Cir. 2017).
In addition, because nurses are unable to diagnose and treat conditions on their
own, nurses may be “shielded” from liability by a doctor’s reasonable diagnosis.
Hamilton, 2013 WL 529936, at *12. However, a nurse’s deference to a physician’s
instructions “may not be blind or unthinking, particularly if it is apparent that the physician’s
order will likely harm the patient.” Id. at *12 (quoting in a parenthetical Holloway v.
Delaware Cty. Sheriff, 700 F.3d 1063, 1075 (7th Cir. 2012)); see also Williams, 2010 WL
5186722, at *7.
Here, Smith’s need for additional care was not so obvious that Nurse Doremus’s
deference to Dr. Kalfas’s course of treatment was deliberate indifference. See Hamilton,
2013 WL 529936, at *12. When Nurse Doremus examined Smith on February 22nd and
26th, he complained of numbness and tingling in his extremities, as well as pain that
interfered with walking. Yet, Smith’s condition had not yet progressed to the point of
complete paralysis or inability to walk. Unlike Dr. Kalfas, Nurse Doremus was not familiar
with the heightened risk of infection from IV heroin use. Nor is there evidence that she
had experience treating osteomyelitis. Therefore, while Dr. Kalfas may have disregarded
an obvious risk of spinal infection, Nurse Doremus acted reasonably in deferring to Dr.
39
Kalfas’s diagnosis of degenerative disc disease on February 17th.
Furthermore, it is undisputed that Nurse Doremus responded in a timely manner
to each of Smith’s Sick Call Slips and promptly reported Smith’s symptoms to Doctor
Kalfas. As a result, within hours after each of his visits with Nurse Doremus, Smith was
either prescribed treatment or seen by Dr. Kalfas. Although hindsight shows the more
prudent approach would have been for Nurse Doremus to send Smith to the hospital after
either of her exams on February 22nd and 26th, her decision to instead quickly refer
Plaintiff to Dr. Kalfas represents a reasonable exercise of medical judgment. It cannot be
said that Nurse Doremus’s treatment of Smith was “so cursory as to amount to no
treatment at all.”
Winkler, 893 F.3d at 892 (quoting Terrance, 286 F.3d at 843).
Accordingly, Nurse Doremus’s Motion for Summary Judgment on Smith’s § 1983 claim is
granted.
d.
Nurse Slayback
Nurse Slayback was the last of the nurses to have contact with Smith. The record
indicates that she became familiar with Smith’s condition at around 8:23 a.m. on March
2nd, when Officer Tyler Holzschuh reported to her that he heard Smith making “audible
‘grunting’ sounds as if he was in pain.” (Doc. # 98-31). Officer Holzschuh also told Nurse
Slayback that he observed Smith laying in his bunk, out of breath, and complaining that
he could not feel his legs all the way up to his waist. Id. Nurse Slayback responded that
Smith was “faking” and ordered that he be placed into medical isolation for observation.
Id. Nurse Slayback examined Smith later that morning at 11:20 a.m. and noted that Smith
complained of back pain and numbness in both legs. She ordered that he be held in
isolation for “abuse of medical services.” Nurse Slayback examined Smith again shortly
40
thereafter at 1:56 p.m., observing that Smith was able to bear weight and move all of his
extremities, but continued to moan, yell, and scream. As a result of this examination,
Nurse Slayback recommended to Dr. Kalfas that Smith receive an X-ray. Also on March
2nd, Nurse Slayback denied Smith’s grievance requesting emergency medical care.
On March 4th at 1:57 p.m., Nurse Slayback spoke with Smith’s sister, who
requested that Smith be transported to the emergency room because he told her he could
no longer move his legs. Nurse Slayback recommended not sending Smith to the hospital
on March 4th but did order that he be put on suicide watch after observing scratches on
his wrist. On March 5th, Nurse Slayback ordered Smith be sent to the hospital after
observing him sleeping face-down on the floor of his cell.
There is substantial record evidence showing that Nurse Slayback actually knew
that Smith was suffering from a serious medical problem. Slayback was told repeatedly
of Smith’s inability to walk, including by Officer Holzschuh, who notified her that Smith
was immobilized and could not feel his legs. Nurse Slayback admitted that she had heard
from Smith, Smith sister, and various jail guards that Smith desperately wanted to go to
the hospital. (Docs. # 49-5 at 75-76, 98-31, and 98-37). Nurse Slayback also personally
witnessed Smith’s complaints of numbness and inability to walk during her examination
on March 2nd. Such obvious signs of immobility and lower extremity numbness were
“clear symptoms of a serious problem, even if [Slayback] did not choose to believe
Plaintiff.” Taylor, 104 F. App’x at 538.
Moreover, notwithstanding her professed disbelief in the authenticity of Smith’s
reported symptoms, Nurse Slayback’s “actions, notes, and words suggest that she
recognized [Smith’s] distress.” Bays, 874 F.3d at 268. Nurse Slayback testified that she
41
knew of Smith’s heightened risk for infection as a result of his heroin use. (Doc. # 49-5
at 74). After examining Smith, Nurse Slayback asked Dr. Kalfas to order an X-ray and
placed Smith in medical isolation for observation. She also wrote in Smith’s Progress
Report on March 5th that she was sending him to the hospital for “psychosomatic
complaints of lower extremity paralysis.” (Doc. # 98-37). “These facts taken together
would permit a jury to conclude that [Slayback] subjectively thought there was a ‘risk of
serious harm.’” Bays, 874 F.3d at 268 (quoting Farmer, 511 U.S. at 837).
A reasonable jury could also decide that Nurse Slayback disregarded this serious
risk of harm. As discussed above, when a nurse becomes aware of a prisoner’s emergent
condition, she must immediately seek medical assistance. Warren, 576 F. App’x at 558;
Terrance, 286 F.3d at 846. The evidence shows that by the time Nurse Slayback became
involved in Smith’s care, his condition had progressed from urgent to emergent, as he
was at times entirely immobile and reporting complete numbness in his legs. Yet, when
Officer Holzschuh notified Nurse Slayback of Smith’s condition on March 2nd, she did not
immediately call Dr. Kalfas or send Plaintiff to the hospital. Instead, she told Officer
Holzschuh that Smith was “faking” and that she would see him at his scheduled visit later
in the day. Later when Nurse Slayback heard from Smith’s sister that Smith was unable
to walk and needed to be transferred to the hospital, Nurse Slayback refused.
Revealingly, when asked in her deposition what had changed on March 5th that led her
to send Plaintiff to the hospital, Nurse Slayback responded, “there was no change.” (Doc.
# 49-5 at 80). Rather, she described her decision to send Smith to the hospital on March
5th as “dotting our i’s and crossing our t’s.” (Doc. # 49-5 at 80). Consequently, a jury
could reasonably conclude that Nurse Slayback inferred a risk of harm on March 2nd but
42
failed to act on that inference until March 5th. Thus, a genuine issue exists as to whether
Nurse Slayback “consciously acted unreasonably in response to [a] known risk.” Sours,
593 F. App’x at 485.
Finally, unlike Norse Doremus, Nurse Slayback is not shielded by Dr. Kalfas’s
diagnoses of malingering on February 26th and March 2nd. As discussed, a nurse’s
deference to a doctor’s care must be reasonable under the circumstances. “A nurse may
therefore act with deliberate indifference if he or she ‘ignore[s] obvious risks to an inmate's
health’ in following a physician's orders.” Holloway, 700 F.3d at 1075 (quoting Rice v.
Corr. Med. Servs., 675 F.3d 650, 683 (7th Cir. 2012)). There are facts in the record
showing that Nurse Slayback continued to rely on Dr. Kalfas’s malingering diagnosis even
after she became aware of Smith’s emergent condition. Accordingly, “the ‘extent to which
[Nurse Slayback] relied on [Dr. Kalfas’s] medical judgment and the reasonableness of
any such reliance require further exploration at trial.’” Williams, 2010 WL 5186722, at *8
(quoting Berry v. Peterman 604 F.3d 435, 444 (7th Cir. 2010)). Thus, Nurse Slayback’s
Motion for Summary Judgment on Smith’s § 1983 claim is denied.
e.
Jailer Daley
Plaintiff also brings a deliberate-indifference claim against Campbell County Jailer
James Daley in both his individual and official capacities. It is well-established that
official-capacity suits “generally represent only another way of pleading an action against
an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165 (1985);
see also Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989). Therefore,
Plaintiff’s claim against Daley in his official capacity will be treated as a claim against
Campbell County, which is discussed in Part II.D.2.g, infra. The Court thus turns its
43
attention to Plaintiff’s individual-capacity claim against Daley.
As a county official, Daley is entitled to qualified immunity for suits against him in
his individual capacity. Phillips, 534 F.3d at 538. The doctrine of qualified immunity
protects government officials performing discretionary functions “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.” Phillips, 534 F.3d
at 538 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, to survive Daley’s
motion for summary judgment, Plaintiff must demonstrate two things: (1) that Daley
violated Plaintiff’s constitutional right and (2) that the constitutional right was “clearly
established at the time of the violation.” Phillips, 534 F.3d at 538-39. “If no constitutional
violation occurred, the inquiry is over and summary judgment must be granted to the
officer.” Davenport v. Causey, 521 F.3d 544, 550 (6th Cir. 2008). Thus, the Court begins
by asking whether there is a genuine issue of material fact that Daley violated Smith’s
constitutional rights.
Daley correctly observes that he had “no personal interaction” with Smith while he
was detained at the CCDC. (Doc. # 101 at 3). This does not mean, as Daley contends,
that he “cannot be found to be deliberately indifferent to [Smith’s] serious medical needs.”
(Doc. # 101 at 3). Rather, Plaintiff’s claim against Daley in his individual capacity is
understood to rely on a theory of supervisory liability. See (Doc. # 1 at 5); Hill v. Marshall,
962 F.2d 1209, 1213 (6th Cir. 1992) (holding that a prison medical director could be liable
as a supervisor for deliberate indifference despite no “direct personal involvement” with
the aggrieved inmate). Smith advances two main arguments to support his claim that
Daley exhibited deliberate indifference.
First, he suggests that Daley inadequately
44
supervised jail staff members and SHP employees. Specifically, he asserts that “there is
sufficient evidence that Daley disregarded his responsibilities as Jailer and left Smith at
the mercy of otherwise unsupervised medical providers.” (Doc. # 99 at 16).
Second, Smith claims that Daley was deliberately indifferent to his serious medical
needs because he created and/or approved of medical treatment policies that Smith says
are unconstitutional. According to Smith, these policies encouraged delayed treatment
for detainees and imposed “punishment”—including isolation and withholding of
privileges—on detainees who requested medical treatment. (Doc. # 99 at 15-16). Smith
also argues that Daley is responsible for a policy of almost complete delegation of medical
treatment to SHP, which he claims led to constitutionally-inadequate health outcomes in
the CCDC.
The Court will address Plaintiff’s “inadequate supervision” and
“unconstitutional policy” arguments in turn. As shown below, both fail as a matter of law.
i.
Failure to Supervise
The Sixth Circuit has long recognized a cause of action under § 1983 against
supervisors who fail to adequately train or supervise their subordinates. See Hays v.
Jefferson Cty., 668 F.2d 869, 872-74 (6th Cir. 1982); Phillips, 534 F.3d at 544. However,
“[i]t is well-settled that ‘government officials may not be held liable for the unconstitutional
conduct of their subordinates under the theory of respondeat superior.” Peatross v. City
of Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
676 (2009)). Nor is it enough to show that the supervisor was “sloppy, reckless or
negligent in the performance of [his] duties.” Doe v. City of Roseville, 296 F.3d 431, 439
(6th Cir. 2002). Rather, to succeed under a supervisory-liability theory, a plaintiff must
demonstrate that “the supervisor ‘either encouraged the specific incident of misconduct
45
or in some other way directly participated in it.’” Phillips, 532 F.3d at 543 (quoting Shehee
v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). “At a minimum a plaintiff must show that
the official at least implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct of the offending officers.” Shehee 199 F.3d at 300. “As part of
this inquiry, [the] court also considers whether there is a causal connection between the
defendant’s wrongful conduct and the violation alleged.” Peatross, 818 F.3d at 242.
Thus, to be liable in a supervisory capacity under § 1983, courts have held that the
supervisor must have some contemporaneous knowledge of his subordinates’
unconstitutional conduct that resulted in a direct injury to the plaintiff. For instance, in
Turner v. City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005), the Sixth Circuit ruled that
prison supervisors could not be held liable for a subordinate’s use of excessive force
against an inmate because there was no evidence that the supervisors “either participated
in the beatings or knew about them at any time.” Similarly, this Court in Smith v. Buckler
declined to impose supervisory liability on Jailer Daley for injuries suffered by a mentally
disabled detainee who alleged that he was sexually assaulted by his cellmate. Daley’s
subordinates had placed the plaintiff in an isolation cell with his alleged assailant, who
was serving time for sexually assaulting a mentally disabled man.
Smith, No. 14-51-
DLB-CJS, 2016 WL 4132198, at *2 (E.D. Ky. Aug. 2, 2016). Yet, the plaintiff in Smith had
not produced any evidence showing that Daley himself was aware of plaintiff’s presence
in the CCDC until after the alleged incident took place or that he knew his subordinates
had planned to house the plaintiff in the same cell as his alleged assailant. Id. at *6.
In contrast, the court in Taylor v. Michigan Department of Corrections, 69 F.3d 76,
81 (6th Cir. 1995) ruled that summary judgment was inappropriate for a warden sued in
46
his supervisory capacity under § 1983. In that case, the plaintiff had alleged that the
warden displayed deliberate indifference in failing to protect him from sexual assault. The
court found that there was a triable issue of fact as to “whether Warden Foltz knew that
conditions [at the prison camp] posed a substantial risk of serious harm to prisoners like
plaintiff” and “whether in the face of this knowledge he acted with deliberate indifference
. . . by failing to adopt reasonable policies to protect inmates like [plaintiff].” Id. at 77.
Stated differently, the warden had “abandon[ed] the specific duties of his position . . . in
the face of actual knowledge of a breakdown in the proper workings of the department.”
Id. at 81 (emphasis added). In an analogous case, the defendant supervisor referred
inmates’ medical complaints that he received personally to a nurse “whom he knew to be
wrongly altering and destroying some of the inmates’ prescriptions.” Hill v. Marshall, 962
F.2d 1209, 1213 (6th Cir. 1992). As such, the supervisor could properly be sued under §
1983 in his supervisory capacity. Id.
In the present case, Smith has failed to identify any evidence suggesting that Daley
was at all aware of Smith’s medical problems during his detention at the CCDC. Nor has
he shown that Daley had knowledge of a “breakdown in the proper workings of the [jail]”
that then led to Plaintiff’s injuries. Hill, 962 F.2d at 1213; see, e.g., (Doc. # 91-45 at 3)
(“Q: Were you ever made aware that Mr. Smith was complaining of back pain and having
problems breathing? Mr. Daley: No, sir.”). Without this evidence, a jury could not find
that Daley took a “specific action” indicating that he “implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the offending officers.” Phillips,
534 F.3d at 543, 544.
47
Furthermore, Plaintiff’s argument that Daley “left Smith at the mercy of otherwise
unsupervised medical providers” is unavailing. (Doc. # 99 at 16). It is not unconstitutional
“for municipalities and their employees to rely on medical judgments made by medical
professionals responsible for prisoner care.” Graham, 358 F.3d at 384 (internal quotation
marks omitted).
Therefore, Daley was entitled to defer to SHP and the medical
professionals it hired to treat detainees at the CCDC. Accordingly, he cannot be found
deliberately indifferent under a failure-to-supervise theory.
ii.
Unconstitutional Policies
In addition to arguing that Daley failed to properly supervise his subordinates,
Plaintiff asserts that Daley created and oversaw unconstitutional policies at the CCDC.
Sixth Circuit law permits a § 1983 claim against supervisors “based on creation of a policy
or custom” that “itself amounts to deliberate indifference on the part of the supervisory
officials.” Ronayne v. Ficano, No. 90-1135, 1999 WL 183479, at *1 (6th Cir. Mar. 15,
1999) (unpublished table decision) (citing City of Canton v. Harris, 489 U.S. 378, 388
(1989)); see also Young v. Martin, 51 F. App’x 509, 515 (6th Cir. 2002). However,
“[s]upervisory personnel are not liable under § 1983 for constitutionally-proscribed
misconduct by their subordinates unless the plaintiff demonstrates ‘an affirmative link
between the occurrence of the misconduct and the adoption of any plan or policy—
express or otherwise—showing the supervisor’s authorization or approval of such
misconduct.’” Miller v. Bock, 55 F. App’x 310, 311 (6th Cir. 2003) (internal ellipsis omitted)
(emphasis added) (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)). Plaintiff cannot
demonstrate such an affirmative link in this case.
48
Smith first argues that Daley implemented a policy of “punishment” for CCDC
detainees who sought medical care. Plaintiff’s only support for this claim comes from the
following passage in Daley’s deposition, in which Daley answered questions about an
incident report involving Smith as well as the CCDC’s disciplinary policy.
Q:
Okay. Further down in this paragraph, actually the last
sentence, the deputy writes, “I also advised Inmate Smith that any further
remarks to Medical will result in him having his mat taken for three days.”
Do you know what he’s talking about there? . . .
A:
And again, I wasn’t there so I’m going to tell you what
generally would be occurring.
Q:
Absolutely.
A:
Apparently [Smith] was pretty much of a jackass with Medical.
Q:
It sounds like he got in a fight with someone with Medical?
A:
Correct. And we don’t appreciate that. We have a hard
enough time keeping medical staff, staff, period. So what they will do, as a
disciplinary measure, is take their mat so they can’t just lay on it all day long,
24 hours a day, seven days a week.
(Doc. # 99-45 at 4-5).
Contrary to Plaintiff’s assertion, this testimony does not establish a genuine issue
of material fact as to a policy of deliberate indifference. For starters, it is certainly not
unconstitutional for supervisors at detention facilities to have disciplinary procedures in
place to maintain safety and security. See McLaurin v. Morton, 48 F.3d 944, 948-49 (6th
Cir. 1995). Furthermore, Daley in his deposition testimony did not articulate a policy that
punishes detainees who request medical services. Rather, Daley understood the CCDC
policy to allow for discipline of a detainee who presents a legitimate safety risk, including
one who “[gets] in a fight with someone in Medical,” or who is being a “jackass” with
medical staff. (Doc. # 99-45 at 5). Given that “prison officials must be free to take
49
appropriate action to ensure the safety of inmates and corrections personnel,” McLaurin,
48 F.3d at 948, the Court cannot say that disciplining a detainee in these scenarios is
constitutionally prohibited. As such, Plaintiff cannot show that this policy “itself amounts
to deliberate indifference on the part of [Daley].” Ronayne, 1999 WL 183479, at *1.
Even assuming the prison deputy referenced in the above deposition testimony
was disciplining Smith for seeking medical assistance, there is no evidence that doing so
was in step with CCDC policy or that it was done with Daley’s “authorization or approval.”
Miller v. Bock, 55 F. App’x at 311. Thus, to hold Daley responsible for the deputy’s
allegedly unconstitutional conduct in this case would amount to the application of
respondeat superior liability, which is impermissible under § 1983. Id.
Second, Smith criticizes Daley’s “policy of relying on [SHP] to address any
[medical] problem” at the CCDC. (Doc. # 99 at 16). In his deposition, Daley states that
when CCDC deputies are alerted to a health issue, they are to notify the SHP medical
staff. (Doc. # 99-45 at 6). Daley admits that CCDC supervisors do not become involved
in a detainee’s medical care unless a detainee’s health condition is “significant.” Id. at 3.
Daley further admitted that CCDC supervisors are not more involved in detainee
healthcare because CCDC has “500 inmates that complain about pain every day, pain of
some sort or another.” Id. Therefore, Smith argues that Daley’s hands-off policy towards
detainee healthcare existed because “the medical needs of the inmates are too numerous
to give them attention.” (Doc. # 99 at 16). Such a policy, Smith contends, led to the
“purposeful disregarding of serious medical needs and demonstrates a subjective
deliberate indifference.” Id.
50
Unfortunately for Plaintiff, his argument is foreclosed by the Sixth Circuit’s decision
in Graham v. County of Washtenaw, 358 F.3d 377 (6th Cir. 2004), which insulates
municipalities and their policymakers from liability under § 1983 when county policy
delegates the provision of prison healthcare to a private contractor. In Graham, a pretrial
detainee at a county jail died from ingesting a large quantity of cocaine, which he had
done shortly before entering the facility. Id. at 379. His estate brought suit under § 1983
against the county, alleging that its contract with the private healthcare provider
SecureCare “impermissibly create[d] a policy of ‘automatic deference’ by jail personnel to
the decisions of SecureCare staff concerning the medical treatment of prisoners.” Id. at
380-81. Specifically, the plaintiff in Graham argued that the jail’s policy of complete
deference to SecureCare in “determining whether emergency services and/or
hospitalization are necessary” constituted deliberate indifference to plaintiff’s serious
medical needs. Id. at 383.
The court in Graham affirmed a grant of summary judgment in favor of the
defendant county.
Id. at 385.
In doing so, the court observed that “it is not
unconstitutional for municipalities to hire independent medical professionals to provide
on-site health care to prisoners in their jails. Nor is it unconstitutional for municipalities
and their employees to rely on medical judgments made by medical professionals
responsible for prisoner care.” Id. at 384. In fact, the court concluded, it is especially
advantageous for jails to defer to private medical providers regarding “critical decisions
about whether and at what point a prisoner's medical needs are sufficiently severe that
ambulatory care or hospitalization is warranted.” Id. Therefore, even assuming “that the
medical care [plaintiff] received was so woefully inadequate as to rise to the level of a
51
constitutional violation. . . . that violation ‘resulted from factors other than a faulty [County
policy].’” Id. (third alteration in original) (quoting Harris, 489 U.S. at 390-91).
This case falls squarely within the rule established by Graham. Similar to the
plaintiff in Graham, Smith seeks to blame county policy for SHP’s alleged failure to provide
Smith with timely emergency medical care. Even if a jury could find that Smith’s care at
the CCDC fell below constitutional standards, there would be no “direct causal link”
between CCDC’s policy and the constitutional violation. Graham, 358 F.3d at 383.
In summary, Smith is unable to establish either that Daley was constitutionally
deficient as a supervisor or that he administered an unconstitutional policy. Moreover,
Plaintiff has not demonstrated a “causal connection” between his injuries and Daley’s
alleged inadequate supervision. Peatross, 818 F.3d at 242. As there is no genuine issue
of material fact regarding whether Daley committed a constitutional violation, he is entitled
to qualified immunity. Davenport, 521 F.3d at 550. Hence, Daley’s Motion for Summary
Judgment on Smith’s § 1983 claim is granted.
f.
Campbell County
Plaintiff has also brought a § 1983 claim against Campbell County. Like
supervisors, a county may not be held liable under a theory of respondeat superior.
Monell, 436 U.S. at 691. Instead, a plaintiff suing a municipality under § 1983 must
“identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff's injury.” Bd. of the Cty.
Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Smith states in his Response that his claim
against Campbell County mirrors his claim against Daley—that is, “the policy, practice
and custom of the Detention Center was to shirk all responsibility for inmate medical care
beyond calling SHP.” (Doc. # 99 at 16). As discussed, this theory of liability is precluded
52
by Graham. Therefore, Campbell County’s Motion for Summary Judgment on Smith’s §
1983 claim is granted.
g.
Southern Health Partners
As a private corporation that “perform[s] a traditional state function such as
providing medical services to prison inmates,” SHP may be sued under § 1983. Street v.
Corrs. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). However, “private corporations
cannot be held liable on the basis of respondeat superior or vicarious liability.” Rouster
v. Cty. of Saginaw, 749 F.3d 437, 453 (6th Cir. 2014) (citing Street, 102 F.3d at 818).
Therefore, Plaintiff must prove that there has been a constitutional violation and “that a
policy or custom” of SHP “was the ‘moving force’ behind the deprivation” of constitutional
rights. Id. (quoting Miller v. Sanilac Cty., 606 F.3d 240, 254-55 (6th Cir. 2010)). Plaintiff
concedes that summary judgment should be granted for SHP on his § 1983 claim, as he
cannot show that a policy or custom of SHP was the moving force behind the alleged
deprivation of Smith’s constitutional rights. (Doc. # 98 at 19). Therefore, SHP’s Motion
for Summary Judgment on Smith’s § 1983 claim is granted.
E.
State-Law Claims
1.
Campbell County
Plaintiff correctly concedes that summary judgment is appropriate for his state-law
claims against Campbell County. (Doc. # 99 at 17). “Kentucky counties are cloaked with
sovereign immunity.” Lexington-Fayette Urban Cty. Gov't v. Smolcic, 142 S.W.3d 128,
132 (Ky. 2004). Furthermore, “Kentucky has not waived its immunity against tort suits or
suits for violations of administrative regulations . . . .” Hamilton, 2013 WL 529936, at *5.
Therefore, the Court grants Campbell County’s Motion for Summary Judgment on all of
53
Smith’s state-law claims.
2.
Jailer Daley
Plaintiff also concedes that summary judgment should be granted for Jailer Daley
in his individual capacity on Smith’s state-law claims. (Doc. # 99 at 17). Thus, summary
judgment is granted for Jailer Daley on all of Smith’s state-law claims.
3.
Negligence Claims
Plaintiff brings negligence and gross negligence claims against the SHP
Defendants. See (Doc. # 1 at 9). In their Motion for Summary Judgment, the SHP
Defendants discuss the issue of negligence only as it relates to Nurses Nash and Sparks.5
See (Doc. # 89-1 at 20-21). Their Motion is otherwise silent on Plaintiff’s negligence
claims against SHP, Dr. Kalfas, and Nurses Clarkson, Doremus, and Slayback. “A party
moving for summary judgment has the burden of ‘pointing out to the district court [] that
there is an absence of evidence to support the nonmoving party’s case.’” Hamilton, 2013
WL 529936, at *13 (alteration in original) (quoting Celotex Corp., 477 U.S. at 325). “This
initial burden is a light one.” Id. However, a “defendant should not make a motion for
summary judgment, without pointing out the deficiencies of the plaintiff's case, and then
expect the court to rule in the defendant's favor.” Max Arnold & Sons, LLC v. W.L. Hailey
& Co., Inc., 452 F.3d 494, 507 (6th Cir. 2006). As the SHP Defendants do not even
attempt to demonstrate an absence of evidence supporting the Plaintiff’s negligence
claims against SHP, Kalfas, Clarkson, Doremus, and Slayback, they have not met their
initial burden on summary judgment.
5
Plaintiffs concede that summary judgment is appropriate for Nurses Nash and Sparks, and the
Court granted summary judgment for these defendants earlier in this opinion. See Part II.A, supra.
54
In its Reply Brief, SHP appears to argue that Plaintiff never brought state-law
claims against it directly as a corporation, and furthermore, that Plaintiff’s complaint is
insufficient to state a claim against SHP on a theory of vicarious liability. (Doc. # 100 at
3). Notwithstanding the fact that this argument is undeveloped, the Court need not
consider it, given that it was raised for the first time in reply. See Scottsdale Ins. Co. v.
Flowers, 513 F.3d 546, 553 (6th Cir. 2008). Even assuming this issue were properly
before the Court, it is without merit. Plaintiff’s Complaint properly states a claim for
vicarious liability against SHP. Plaintiff names SHP in the Complaint and alleges an
employment relationship between SHP and the Nurse Defendants, and a contractual
relationship between SHP and Dr. Kalfas.6 (Doc. # 1 at 4). Furthermore, the Complaint
alleges tortious conduct by the Nurse Defendants and Dr. Kalfas within the scope of their
employment/contractual relationships with SHP. See Papa John's Int'l, Inc. v. McCoy,
244 S.W.3d 44, 50-51 (Ky. 2008). The fact that the Complaint does not expressly state
the term “vicarious liability” or “respondeat superior” does not change the Court’s
conclusion. See Ryder Integrated Logistics, Inc. v. Cordell Transp. Co., LLC, No. 3:14cv-347-JGH, 2015 U.S. Dist. LEXIS 27556, at *2 (W.D. Ky. Mar. 6, 2015).
Therefore, summary judgment on Smith’s negligence claims is granted for nurses
Nash and Sparks and denied for SHP, Dr. Kalfas, and Nurses Clarkson, Doremus, and
Slayback.
3.
501 Ky. Admin. Regs. § 3:090
The SHP Defendants move for summary judgment on Plaintiff’s claim under Title
6
In certain circumstances, Kentucky courts have permitted vicarious liability against a principal even
if the agent is not a servant, but rather an independent contractor such as Dr. Kalfas. See Williams v. Ky.
Dep't of Educ., 113 S.W.3d 145, 151 (Ky. 2003).
55
501 of the Kentucky Administrative Regulations (“KAR”), which prescribes rules for the
provision of emergency care in Kentucky jails. In support of their Motion, the SHP
Defendants assert that expert testimony is required to prove a violation of 501 KAR §
3:090. (Doc. # 89-1 at 16). This proposition is both uncited and unexplained.7 The SHP
Defendants wait until their Reply Brief to flesh out their argument, namely, that a claim
under 501 KAR § 3:090 is in actuality a negligence per se claim for medical malpractice,
and in turn, expert testimony is required to establish liability in medical negligence cases
brought under Kentucky law. (Doc. # 100 at 3-4). The SHP Defendants cite no authority
for the principle that a claim under 501 KAR § 3:090 is a de facto negligence per se claim,
though the Court has found cases stating as much. See, e.g., Rice v. Montgomery Cty.,
No. 5:14-181-KKC, 2016 WL 2596035, at *18 (E.D. Ky. May 5, 2016); Webb v. Jessamine
Cty. Fiscal Court, 802 F. Supp. 2d 870, 889 (E.D. Ky. 2011). Yet, in these cases, courts
allowed negligence per se claims based on 501 KAR § 3:090 to advance to trial without
the benefit of expert testimony. Rice, 2016 WL 2596035, at *18; Webb, 802 F. Supp. 2d
at 889. Therefore, the Court rejects the SHP Defendants’ argument that expert testimony
is needed for negligence claims premised on 501 KAR § 3:090. To the extent that the
SHP Defendants argue in their Reply that there is an absence of non-expert evidence in
support of Plaintiff’s 501 KAR § 3:090 claim, that argument is waived. Flowers, 513 F.3d
at 553. As such, except as it pertains to Nurses Nash and Sparks, the SHP Defendants’
Motion for Summary Judgment on Plaintiff’s 501 KAR § 3:090 claim is denied.
7
The Court notes that Chief Judge Caldwell recently rejected this very argument because SHP failed
to cite any supporting authority. See Rice v. Montgomery Cty., No. 5:14-181-KKC, 2016 WL 2596035, at
*18 (E.D. Ky. May 5, 2016).
56
4.
Outrage
Finally, the SHP Defendants argue that they are entitled to summary judgment on
Plaintiff’s outrage claim.8 In Kentucky, the tort of outrage is considered a “gap-filler” tort,
“providing redress for extreme emotional distress in those instances in which the
traditional common law actions did not.” Rigazio v. Archdiocese of Louisville, 853 S.W.2d
295, 299 (Ky. Ct. App. 1993). Thus, when a plaintiff can recover emotional-distress
damages by way of a traditional tort such as negligence, “the tort of outrage will not lie.”
Id. Here, Smith has brought negligence claims against the SHP Defendants, and the
Court has found that those claims survive summary judgment. Thus, “negligence [is] the
appropriate vehicle of recovery for Smith’s alleged emotional damages, not the
independent tort of outrage.” Ham, 2012 WL 6675133, at *6. Therefore, the SHP
Defendants’ Motion for Summary Judgment on Plaintiff’s outrage claim is granted.
III.
CONCLUSION
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)
Defendants Campbell County and Jailer James Daley’s Motion for
Summary Judgment (Doc. # 91) is granted;
(2)
SHP Defendants’ Motion for Summary Judgment (Doc. # 89) is granted in
part and denied in part. Specifically,
(a)
SHP Defendants’ Motion is granted on Count I (§ 1983 deliberate
indifference) as it pertains to Defendants Anna Nash, Marissa Sparks, Amanda
8
Although Plaintiff asserts intentional infliction of emotional distress as a separate claim, “intentional
infliction of emotional distress and outrage are synonymous in Kentucky law.” In re Triple S Rests., Inc.,
519 F.3d 575, 578 n.1 (6th Cir. 2008) (citing Papa John's Int'l, Inc., 244 S.W.3d at 49). Therefore, the Court
considers the two claims together.
57
Clarkson, Leslie Doremus, and SHP, and denied as it pertains to Defendants Mina
Kalfas and Krista Slayback;
(b)
SHP Defendants’ Motion is granted on Count II (negligence and
gross negligence) as it pertains to Defendants Anna Nash and Marissa Sparks, and
denied as it pertains to Mina Kalfas, Amanda Clarkson, Leslie Doremus, Krista
Slayback, and SHP;
(c) SHP Defendants’ Motion is granted on Count III (outrage) and Count
IV (intentional infliction of emotional distress);
(d) SHP Defendants’ Motion is granted on Count V (501 KAR § 3:090) as
it pertains to Defendants Anna Nash and Marissa Sparks, and denied as it pertains to
Mina Kalfas, Amanda Clarkson, Leslie Doremus, Krista Slayback, and SHP.
(3)
Plaintiff David Smith’s claims against Campbell County, James Daley, Anna
Nash, and Marissa Sparks are dismissed with prejudice.
(4)
Within twenty (20) days from the date of entry of this Memorandum Opinion
and Order, the remaining parties—Plaintiff David Smith and Defendants Mina Kalfas,
Amanda Clarkson, Leslie Doremus, Krista Slayback, and SHP—shall file a Joint Status
Report, setting forth available dates for a Final Pretrial Conference and Jury Trial, and
whether they would be amenable to a court-facilitated settlement Conference on the
remaining claims.
This 25th day of March, 2019.
58
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