Kindoll v. Southern Health Partners, Inc. et al
Filing
103
MEMORANDUM OPINION & ORDER: 1) The County Defendants' Motion for Summary Judgment 62 is granted in part and denied in part. Specifically, (a) The County Defendants' Motion for Summary Judgment as to allclaims against Defend ants Dedi Adams, Jessica Helton, and Whitney Jett is denied as moot in light of the Court's August 7, 2018 Order dismissing all claims' against these Defendants without prejudice 75 ; (b) The County Defendants' Motion for Summa ry Judgment as to Plaintiff's claim under 42 U.S.C. § 1983 against Defendants Audra Napier, Tammy Bullock, Christopher Hankins, and John and Jane Doe, in their official capacities, ishereby granted as unopposed; (c) The County Defend ants' Motion for Summary Judgment as to all remaining claims against John and Jane Doe is hereby granted; (d) The County Defendants' Motion for Summary Judgment as to Plaintiff's claim under 42 U.S.C. § 1983 against Grant C ounty is hereby denied; (e) The County Defendants' Motion for Summary Judgment as toPlaintiff's claim under 42 U.S.C. § 1983 against Defendants Audra Napier, TammyBullock, and Christopher Hankins, in their individual capacities, is hereby denied; and (f) The County Defendants' Motion for Summary Judgment as toPlaintiff's negligence claim against Defendants Audra Napier and Tammy Bullock is hereby denied. (2) The SHP Defendants' Motion to Strike 79 is denied. (3) The SHP Defendants' Motion for Summary Judgment 83 is granted in part and denied in part. Specifically, (a) The SHP Defendants' Motion for Summary Judgment as to Plaintiff's claim under 42 U.S .C. § 1983 against Defendant David Watkins is hereby denied; (b) The SHP Defendants' Motion for Summary Judgment as to Plaintiff's claim under 42 U.S.C. § 1983 against Defendants Debbie Preston and David Ross is hereby granted< /b>. (c) The SHP Defendants' Motion for Summary Judgment as to Plaintiff's medical-malpractice claim against Defendant Debbie Preston is hereby denied; (d) The SHP Defendants' Motion for Summary Judgment as to Plaintiff's m edical-malpractice claim against Defendant David Watkins is hereby granted; (e) The SHP Defendants' Motion for Summary Judgment as to Plaintiff's claim under 42 U.S.C. § 1983 against Defendant Southern Health Partners, Inc. is h ereby denied; (f) The SHP Defendants' Motion for Summary Judgment as to Plaintiff's negligence claim against Defendant Southern Health Partners, Inc. is hereby denied; (g) The SHP defendants' Motion for Summary Judgment a s to Plaintiff's punitive-damages claim against Defendants Debbie Preston and David Ross is hereby granted; and (h) The SHP Defendants' Motion for Summary Judgment as to Plaintiff's punitive-damages claim against Defendants Davi d Watkins and Southern Health Partners, Inc. is hereby denied. (4) Within twenty (20) days from the date of entry of this Memorandum Opinion and Order, the remaining parties-Defendants Grant County, Audra Napier, Tammy Bullock, Christop her Hankins, Southern Health Partners, Inc., David Watkins, Debbie Preston, and David Ross-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. Signed by Judge David L. Bunning on 3/28/2019.(ECO)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 17-84-DLB-CJS
MICHELLE KINDOLL
v.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
SOUTHERN HEALTH PARTNERS, et al.
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DEFENDANTS
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On May 5, 2016, Plaintiff Michelle Kindoll was arrested for possession of heroin
and transported to the Grant County Detention Center (“GCDC”). During her time at the
GCDC, Plaintiff suffered a stroke, which she alleges resulted in permanent speech and
mobility impairments.
On May 12, 2017, Plaintiff filed suit against two groups of Defendants: (1) the
“County Defendants,” comprised of Grant County, and (in both their individual and official
capacities) Corporal Audra Napier, Deputy Tammy Bullock, Jailer Christopher Hankins,
and John and Jane Doe; and (2) the “SHP Defendants,” comprised of former GCDC
medical services contractor Southern Health Partners, Inc. (SHP), and its employees,
nurses David Watkins, RN, Debbie Preston, LPN, and David Ross, LPN.1 (Doc. # 1).
Plaintiff’s Complaint sets forth four counts—one constitutional claim and three state-law
claims. Count One asserts a claim against all Defendants pursuant to 42 U.S.C. § 1983.
Count Two asserts a medical malpractice action against Defendants Preston, Ross, and
1
Plaintiff also filed suit against GCDC employees Dedi Adams, Jessica Helton, and Whitney Jett;
however, these Defendants were dismissed by agreement of the parties on August 7, 2018. (Doc. # 75).
Watkins under Kentucky law. Count Three asserts a negligence claim against SHP under
Kentucky law. Finally, Count Four asserts a negligence claim against Defendants Napier,
Bullock, and John and Jane Doe under Kentucky law.
There are currently two Motions for Summary Judgment before the Court (Docs. #
62 and 83), wherein both groups of Defendants seek summary judgment on all claims.
The SHP Defendants have also filed a Motion to Strike (Doc. # 79), which the Court will
take up along with these dispositive motions. All three motions are fully briefed and ripe
for review. (Docs. # 73, 77, 78, 79, 80, 86, 92, 98 and 99). For the reasons set forth
below, the County Defendants’ Motion for Summary Judgment (Doc. # 62) is denied in
part and granted in part; the SHP Defendants’ Motion to Strike (Doc. # 79) is denied;
and the SHP Defendants’ Motion for Summary Judgment (Doc. # 83) is denied in part
and granted in part.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2016, Plaintiff Michelle Kindoll was arrested for possession of heroin.
(Doc. # 73-6 at 20-21). Plaintiff’s adult daughter, Felicia, was arrested as well, and the
two women were ultimately transported to the GCDC for pretrial detention. (Docs. # 739 at 8, 24, 36-37, 121 and 73-6 at 10-14). During the GCDC intake process, Kindoll
advised the staff that she would be experiencing withdrawal from heroin. (Docs. # 73-9
at 162 and 73-7 at 24-25).
Plaintiff was then placed alone in an isolation cell to undergo withdrawal. (Docs.
# 73-9 at 37-38 and 73-7 at 25). At the GCDC, isolation cells were used primarily for
punishment purposes. (Docs. # 73-5 at 36 and 73-7 at 63). However, as the female “xblock” at the GCDC did not have medical-watch cells, jailers used these isolation cells at
2
times for “medical watch” purposes such as keeping a closer eye on inmates undergoing
drug withdrawal. Id. Inmates placed in isolation cells for medical watch were monitored
more frequently; the jailer on shift was required to look in every ten to fifteen minutes.
(Docs. # 73-5 at 49-50; 73-11 at 33 and 73-12 at 50-51). Likewise, medical staff checked
vitals and conducted a basic overview once per twelve-hour shift for inmates on medical
watch. (Docs. # 73-2 at 30-32 and 73-3 at 102).
On May 9, 2016, Plaintiff’s daughter was released on bond. (Doc. # 73-6 at 2022). That same day, Plaintiff inquired when she would be moved out of the isolation cell
into a general-population cell, as she was no longer experiencing withdrawal symptoms.
(Doc. # 73-9 at 41, 146). Approximately two days later, on May 11, 2016, Plaintiff was
cleared by medical staff to move to a general-population cell. (Docs. # 73-5 at 61 and
73-9 at 41-43).
It appears that Plaintiff did not display any stroke symptoms while she was interned
in the isolation cell for heroin withdrawal. (Doc. # 73-3 at 29). However, on approximately
May 18, 2016, about two weeks after being detained at the GCDC, Plaintiff began
experiencing stroke symptoms. (Docs. # 73-9 at 46 and 73-22 at 2). While housed in the
general-population cell, Plaintiff felt weak and experienced obstructed vision; further,
Plaintiff passed out in the shower, requiring other inmates to help Plaintiff back to her
“boat”—a mat on the floor. (Docs. # 73-9 at 47 and 73-16). Plaintiff, however, did not
seek medical treatment after passing out in the shower. She testified that she did not
want to be “put . . . back in isolation.” (Doc. # 73-9 at 48-49). Further, Plaintiff testified
that she experienced difficulty thinking clearly and did not understand that she was
3
experiencing stroke symptoms; rather, she believed she had a “pinched nerve” or was
“just . . . withdrawing.” Id. at 48-49, 55-56, 61, 153.
As time progressed, however, GCDC staff and the medical team were alerted to
Kindoll’s symptoms. That same day on May 18, 2016, at approximately 6:15 p.m., after
Plaintiff was moved to the general-population cell, she informed the day-shift deputy jailer,
Dedi Adams, that she could not feel her leg. (Doc. # 73-5 at 26, 63). Deputy Adams
notified Debbie Preston, LPN, in the medical unit that Plaintiff reported that she could not
feel her leg. (Doc. # 73-18). Adams’s Incident Report notes that LPN Preston said, “OK.”
Id. However, LPN Preston did not assess Plaintiff at that time. (Docs. # 73-4 at 29-33;
73-5 at 63-64, 68, 72-73, 77 and 73-18).
At the end of her shift, Deputy Adams communicated to the night-shift deputy jailer,
Tammy Bullock, that Plaintiff said she could not feel her leg and to keep an eye on her.
(Docs. # 73-5 at 64 and 73-11 at 20-21). Deputy Bullock’s overnight shift lasted from 6:45
p.m. on May 18, 2016, to 7:15 a.m. on May 19, 2016. (Doc. # 73-11 at 15-18, 21, 25).
During her shift, Bullock was alerted by other inmates that Plaintiff complained of “not full
body movement.” Id. Bullock observed that Plaintiff was dragging her right leg and that
Plaintiff complained of not being able to use or move her leg and having trouble seeing.
(Docs. # 73-9 at 163; 73-11 at 19-21, 27-32, 36-38 and 73-16). Deputy Bullock also noted
that the symptoms were irregular; at times during the night of May 18, 2016, the symptoms
moved to Plaintiff’s left leg; at other times, both legs were normal. Id. Additionally, Bullock
observed that other inmates in the general-population cell were helping Plaintiff stand up,
sit down, and walk to the bathroom. (Docs. # 73-11 at 21 and 73-16). Deputy Bullock
notified medical staff and informed the on-duty nurse, David Ross, LPN, that Plaintiff had
4
been limping and complained that she could not feel her foot. (Docs. # 73-2 at 76-77,
126-128, 152-153 and 73-11 at 15-17, 25).
LPN Ross conducted an evaluation of Plaintiff and found her vital signs to be
normal.
Ross performed and improperly interpreted a “Babinski test” to look for
neurological issues. Ross misinterpreted a positive indication as a negative, and failed
to recognize a sign of any other health conditions. (Docs. # 73-2 at 68-77; 73-9 at 63; 7316 and 73-10 at 52-54, 80-81, 83). Noting that Plaintiff had indicated on her intake form
that she had back problems, Ross concluded that the numbness in Plaintiff’s leg was
merely sciatica and he chose not to reach out to his supervisor, Medical Team
Administrator David Watkins, RN, or to the on-call physician. (Doc. # 73-2 at 72, 79, 8687).
LPN Ross testified that inmates who had more acute needs at the GCDC were not
treated significantly different than patients who were on long-term medications or received
chronic care. If he perceived that an inmate had a serious medical condition, Ross
testified that he would not reach out to a physician immediately but would “[s]tart out by
calling [Medical Team Administrator, Nurse David Watkins], asking him what he thinks.
And then he would typically say, go ahead and call a doctor, or, I’ll observe.” Id. at 4850. On the day he assessed Plaintiff, Ross did not reach out to the Medical Team
Administrator, David Watkins, nor did he contact the physician on call; rather, he put a
note in the binder for the physician to review when he made his periodic visit the following
week.2 (Docs. # 73-2 at 72, 78-79 and 73-3 at 14).
2
The treating physician, Dr. Amos, was only scheduled to visit once per month, and Certified Nurse
Practitioner Roy Washington was scheduled to show up at the GCDC only once per week. Absent a call
from the nurses, neither Dr. Elton Amos nor NP Roy Washington would be alerted to a patient’s issues until
5
Shawnee Thoman, the regional representative for SHP—the corporation
contracted by Grant County to ensure treatment guidelines were being adhered to—
testified that it was the role of the physician to decide a patient’s care. (Doc. # 73-10 at
12, 38-39).
However, Thoman testified that she was not aware of the physician
contracted to provide services at GCDC, Dr. Elton Amos, having any role in supervising
the nursing staff other than phone calls to him by the nursing staff should they wish to
discuss a patient’s treatment. Id. at 37-38.
After his evaluation and diagnosis of Plaintiff’s condition, LPN Ross and Deputy
Bullock decided to move Plaintiff back to an isolation cell to prevent inmates from hurting
themselves or Plaintiff, as the other inmates were seen lifting and pulling on Plaintiff while
helping her to and from the bathroom. (Docs. # 73-2 at 76-77; 73-9 at 63; 73-11 at 27-32
and 73-16). LPN Ross instructed Deputy Bullock to keep an eye on Plaintiff and to call
the medical unit if there were any changes. (Doc. # 73-2 at 76-77). Plaintiff was placed
into the isolation cell on May 18, 2016; however, there is no evidence that Deputy Bullock
placed Plaintiff on medical watch. (Doc. # 73-7 at 56). The record indicates that Plaintiff,
though in isolation, was not placed on medical watch until 10:50 p.m. on May 20, 2016.
Id.
On May 19, 2016, at the end of his shift, LPN Ross assessed Plaintiff again. He
observed Plaintiff limp while walking, but concluded that her condition had not changed;
Ross conducted a pass-down to LPN Debbie Preston for the next shift. (Doc. # 73-2 at
77-78, 81, 85).
On her own in the isolation cell, Plaintiff had trouble standing and fell, causing
bruises on her body; she also experienced trouble speaking and thinking clearly. (Doc.
they read the list of patient notes during their scheduled visits to the facility. (Docs. # 73-2 at 27-29, 44 and
73-3 at 19).
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# 73-9 at 64-65, 67). Plaintiff testified that she wanted more medical attention and grew
frustrated that nursing staff would not do more than take her vitals. During this time
Corporal Jessica Helton observed Plaintiff repeatedly knock on the isolation cell door and
ask for corrections officers because of medical concerns she had. (Docs. # 73-9 at 6465 and 73-8 at 42). Plaintiff asked what she had done to be placed back in isolation, and
was told it was for her own safety and the safety of others, not as punishment. (Docs. #
73-8 at 37, 73; 73-9 at 66 and 73-20). Plaintiff informed Corporal Helton that her leg
would not move, that she could not walk, and that her speech was slurring. Plaintiff asked
Corporal Helton what she could do to make it better. (Docs. # 73-8 at 27-28; 73-9 at 164
and 73-20). Corporal Helton saw that Plaintiff was able to lift her leg up in the air and
back down and noted “[t]he speech that [Plaintiff] claimed to be messed up was also back
to normal, she wasn’t stuttering or slurring at this time.” (Doc. # 73-20). Helton concluded
that Kindoll was merely being disruptive and “coming up with something.” However, she
did contact the medical unit and advised that Plaintiff was having problems standing.
(Docs. # 73-8 at 29-32, 34, 41 and 73-20).
During the day shift on May 19, 2016, Deputy Adams called LPN Debbie Preston
to Plaintiff’s cell. Preston documented that Plaintiff “continues to complain of having a
stroke.” (Docs. # 73-4 at 34-46 and 73-10 at 86-87). Preston conducted an assessment
and concluded that Plaintiff’s vitals were fine, though she did not record them. Nor did
Preston review prior entries in Plaintiff’s chart, review the protocol binder, or call either
NP Washington or Dr. Amos. Id. Additionally, during her assessment of Plaintiff, just like
LPN Ross, LPN Preston performed and improperly interpreted the Babinski test for
7
neurological issues, interpreting a positive sign for neurological issues as a negative sign.
(Docs. # 73-4 at 34-40 and 73-10 at 90-91).
On May 20, LPN Preston assessed Plaintiff again and noted that Plaintiff was still
complaining that she could not feel her leg and that she fell and that Plaintiff’s right arm
curled up at times. (Doc. # 73-4 at 59-64). Nonetheless, Preston observed that Plaintiff’s
vital signs were normal and “cleared” Plaintiff’s condition. Id.
During the shift change later in the day on May 20, day shift Corporal Jessica
Helton informed night shift Deputy Whitney Jett that Plaintiff had been dragging her leg
and complaining of numbness. Helton advised Jett that she had contacted medical
several times throughout the day and that Plaintiff had been knocking on the cell window
continuously. (Doc. # 73-12 at 31-32, 56-58). During her shift, Jett conducted medical
checks on Plaintiff approximately every fifteen to twenty minutes. Id. at 80.
At approximately 8:45 p.m. on May 20, Deputy Jett escorted Plaintiff from the
isolation cell to a shower room to bathe. (Docs. # 73-12 at 64 and 73-19). Jett observed
that Plaintiff was having trouble walking and dragged one of her legs behind her. After
taking three or four steps, Plaintiff fell. Deputy Jett asked Plaintiff if she was all right and
if she wanted to go to the medical unit. Plaintiff appeared to try to shake her head, but
she did not speak. Deputy Jett seated Plaintiff on a chair in the shower room, shut the
door, and then contacted the GCDC medical unit by phone. Id. After describing the
situation to the on-duty nurse, Deputy Jett testified that she was instructed to follow up
with the on-duty nurse if there were any changes. (Doc. # 73-12 at 65-66). Jett left the
shower room for approximately fifteen to twenty minutes to allow Plaintiff time to shower.
Id. at 52-56, 66.
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To take a shower, Plaintiff was required to repeatedly push a button as water flow
automatically shut off periodically. However, Plaintiff found that she was unable to lift her
arm from her position on the shower chair to keep the water on, and she only got her hair
wet part of the way. She tried to stand up, then fell onto the floor and was unable to get
up. (Doc. # 73-9 at 167). After about fifteen minutes, Deputy Jett asked Plaintiff if she
was done. Plaintiff answered yes, so Deputy Jett opened the door to the shower and
observed Plaintiff sitting on the floor, half dressed. (Docs. # 73-12 at 52-56, 66-68 and
73-19). Jett instructed Plaintiff that she needed to get dressed and could not exit the
shower room partially clothed. Jett asked Plaintiff if she was all right and if she still wanted
to take a shower, and Plaintiff nodded her head yes. (Doc. # 73-12 at 62).
Concluding that something was wrong, Jett shut the door to the shower room and
contacted her supervisor, Corporal Audra Napier, by radio. (Docs. # 73-12 at 52-56; 731 at 10, 14-15, and 73-19). As the highest-ranking officer on site during this shift, Corporal
Napier was responsible for overseeing the safety and security of the facility and
overseeing the jail, staff, and inmates. (Doc. # 73-1 at 9). Napier advised that she would
be there momentarily. (Doc. # 73-12 at 52-56, 71).
After radioing Corporal Napier, approximately ten minutes passed and Deputy Jett
again opened the shower door to ask Plaintiff if she was ready. Though Plaintiff again
said yes, Deputy Jett found Plaintiff still sitting on the floor in the same position, half
dressed. (Docs. # 73-12 at 52-56, 70 and 73-19). Deputy Jett noted that Plaintiff for the
most part made no response and just looked at Jett; at other times, it appeared Plaintiff
was moving her mouth slightly to try to speak, but nothing was coming out. Plaintiff’s
bizarre behavior struck Jett as unusual and she was concerned that Plaintiff was not just
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experiencing routine drug withdrawal. (Docs. # 73-12 at 59, 61, 69-70, 82, and 73-19).
Deputy Jett once again verbally instructed Plaintiff to get dressed. Jett closed the shower
again and radioed Corporal Napier a second time, advising that Napier needed to come
immediately. (Docs. # 73-12 at 52-56, 71 and 73-19).
When Corporal Napier arrived a few minutes later, she opened the shower door
and observed Plaintiff was sitting on the floor, half dressed, with the water off. (Docs. #
73-1 at 15-16; 73-9 at 169; 73-12 at 52-56 and 73-19). Napier advised that she would be
taking Plaintiff to the medical unit, and she instructed Plaintiff to get dressed before
coming out of the shower room to go to medical. (Docs. # 73-1 at 16-17; 73-12 at 52-56
and 73-19). Plaintiff appeared to try and get dressed, so Jett and Napier shut the shower
door again to give her privacy. (Docs. # 73-1 at 18 and 73-12 at 52-56). Jett and Napier
waited a few more minutes and opened the shower door again. They observed Plaintiff,
partially dressed, and flailing her arms before falling from the shower chair onto the floor.
(Docs. # 73-12 at 52-56; 72-77 and 73-19). Napier and Jett discussed that they needed
to go ahead and get Plaintiff dressed and get Plaintiff to the medical unit immediately;
accordingly, they helped Plaintiff get dressed by holding her clothes for her while she
stepped into them. (Docs. # 73-1 at 15; 73-12 at 56-56, 77-78 and 73-19). Napier and
Jett then assisted Plaintiff into a wheelchair. (Docs. # 73-12 at 78-79 and 73-19).
By approximately 9:48 p.m. on May 20, 2016, about one hour after Plaintiff fell on
her way to the shower, Corporal Napier transported Plaintiff to medical by wheelchair.
Licensed Registered Nurse (RN) David Watkins was on shift and performed the
assessment. (Docs. # 73-1 at 15; 73-3 at 7, 26, 81; 73-7 at 79; 73-12 at 78-79 and 7319). During his assessment of Plaintiff, just like LPNs Ross and Preston, RN Watkins
10
performed and improperly interpreted the Babinski test as negative for neurological
issues; however, Watkins was able to recognize that Plaintiff was displaying stroke
symptoms. (Doc. # 73-3 at 46-48, 96-101). Specifically, RN Watkins observed that
Plaintiff was having trouble speaking, could not raise her arms equally, and could not
write her name accurately. (Docs. # 73-3 at 26 and 73-10 at 92-94). Watkins did not
consult with LPN Ross or LPN Preston about Plaintiff’s condition; nor did he call Dr. Amos
or NP Washington or send Plaintiff to the hospital. (Doc. # 73-3 at 30). Rather, it appears
that at 10:51 p.m. on May 20, 2016, Plaintiff was taken back to an isolation cell and placed
on medical watch. (Docs. # 73-3 at 52-56, 81; 73-12 at 79-80 and 73-19).
Deputy Jett testified that she was surprised Plaintiff was sent back to x-block from
medical because she felt like “something was still wrong.” (Doc. # 73-12 at 82). Jett was
uncertain because she did not observe the assessment and had no medical experience;
however, based on her observations, she grew concerned that the medical unit should
have done something more and that simply continuing to monitor Kindoll by having a
deputy checking in every 15 minutes was not sufficient. Id. at 82-84, 113-114. Jett shared
her concern with Corporal Napier. Napier responded that she would “make some phone
calls” and instructed Jett to keep an eye on Plaintiff. (Doc. # 73-12 at 84). Deputy Jett
continued to look in Plaintiff’s isolation cell every fifteen minutes, and observed that
Plaintiff appeared to be sleeping. Id. at 86.
In the early morning hours of May 21, 2016, RN Watkins decided to send Plaintiff
to the hospital. (Doc. # 73-3 at 28, 50-51, 55-62). Corporal Napier returned to x-block
and informed Deputy Jett that Plaintiff was going to the hospital. Napier assisted Plaintiff
into the wheelchair and transported her out of x-block. (Doc. # 73-12 at 86-87). At about
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1:47 a.m. on May 21, 2016—approximately three hours after Napier transported Plaintiff
to medical by wheelchair—Plaintiff was taken to St. Elizabeth Grant County Hospital.
(Docs. # 73-3 at 28, 50-51, 55-62 and 73-7 at 88).
RN Watkins testified that he does not remember whether he placed Plaintiff back
on “medical watch” in the isolation cell for the three hours Plaintiff waited prior to being
transported to the hospital; however, he admitted that if he failed to act immediately, he
violated the stroke protocol set forth in the SHP Treatment Guidelines. (Docs. # 73-3 at
81 and 73-10 at 102). The treatment protocol for recognition of a stroke or stroke
symptoms required assessment for symptoms such as weakness in the face, arm, or
legs, especially on one side of the patient’s body; sudden confusion; sudden trouble
seeing in one or both eyes; trouble speaking, or difficulty understanding speech; trouble
walking; and dizziness, loss of balance, or lack of coordination. Moreover, the treatment
protocol used the acronym “F.A.S.T” and cautioned that “[i]f you think someone is having
a stroke, act F.A.S.T.” The letter “T” in the acronym stands for “Time.” The protocol notes
that “[i]f you observe ANY of these signs, call 911/EMS—Acting fast can help stroke
patients get the treatments they need.” (Docs. # 73-3 at 51-52 and 73-10 at 78-50).
After being transported to the hospital, Plaintiff was informed that she had suffered
multiple strokes. She testified that she suffers permanent injuries including impaired
speech and mobility as a result. (Doc. # 73-9 at 83-84, 88-91, 153-156). Plaintiff’s expert
neurologist, David F. Lang, M.D., opined that had Plaintiff been transferred to the
emergency room when she first reported her stroke symptoms the evening of May 18,
2016, more likely than not, Plaintiff would have been a candidate to receive interventional
medicine before the treatment window closed and more likely than not would have been
12
spared many of the deficits caused by the stroke. (Docs. # 83-1 at 6-7; 83-9 and 86-2 at
49-58, 67-69).
Plaintiff presented evidence that the GCDC has a history of failing to provide the
constitutionally-minimum medical treatment to inmates with serious or potentially serious
acute medical conditions like strokes. Beginning in 2003, the United States Department
of Justice (DOJ) initiated an investigation of the GCDC.3 (Doc. # 73-26 at 1). On May
18, 2005, the DOJ reported its findings to the GCDC. (Doc. # 73-25). Among its findings,
the DOJ concluded that the provision of acute medical care at GCDC “appears to deviate
from constitutionally minimum standards” and specifically that “GCDC consistently fails
to provide reasonable medical treatment to inmates with serious or potentially serious
acute medical conditions.” (Doc. # 73-25 at 7).
The DOJ found “a host of management deficiencies,” including “the inadequate
medical care at GCDC [which] appears to result primarily from the shortage of medical
staff at the facility.” (Doc. # 73-25 at 10). The DOJ pointed out that “[a] physician on-site
for two to three hours per week . . . is clearly insufficient to provide the medical care
required for an institution the size of GCDC.” (Doc. # 73-25 at 10). Further, the DOJ
found that GCDC “lacks policies on, inter alia, timeliness of access to medical care,” or
“protocols for the nurse or the correctional staff to use to ensure timely access to the
physician when presenting symptoms requiring physician care.” Id. Moreover, “many of
[the] facility’s policies and procedures lack the breadth and specificity to form an
3
The DOJ investigation was conducted pursuant to the Civil Rights of Institutionalized Persons Act
of 1980 (CRIPA), 42 U.S.C. § 1997, which grants the Attorney General authority to investigate and seek
equitable relief to remedy unlawful patterns or practices that violate the constitutional rights of
institutionalized people. See Patsy v. Fla. Bd. of Regents, 457 U.S. 496, 507-08 (1982) (explaining that
CRIPA “was enacted primarily to ensure that the United States Attorney General has legal standing to
enforce existing constitutional and federal statutory rights of institutionalized persons”).
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infrastructure to ensure timely access to the appropriate level” of medical care. (Doc. #
73-25 at 12). Additionally the DOJ found that the GCDC failed to keep organized and
sufficiently-detailed medical records, which contributed to the failure to provide adequate
medical care. (Doc. # 73-25 at 12-13).
In 2009, the Grant County attorney signed the DOJ’s Proposed Resolution, which
recognized improvements but also set forth “a few areas of remaining concern regarding
the County’s provision of medical and mental health care” which required “future
oversight” by the DOJ. (Doc. # 73-26 at 5). The Proposed Resolution listed sixteen
“remedial measures” for Grant County to implement, including an agreement that:
(2) The County will continue to provide sufficient on-site physician,
mental health care provider, and nursing staff to ensure adequate
medical care (including chronic and acute care). The County also
will continue to provide sufficient on-site physician staffing to
adequately supervise nursing staff.
(7) The County will continue to ensure that all inmates with serious
or potentially serious acute medical conditions receive necessary
examination, diagnosis, monitoring, and treatment, including
referrals to appropriate outside medical professionals when clinically
indicated.
(16) The County will continue to maintain on-site complete,
confidential, and appropriately organized medical and mental health
records for each inmate. The County will continue to ensure that
such records include sufficient information (including symptoms, the
results of physical evaluations, and medical staff progress notes) to
ensure that health services staff have all relevant information
available when treating inmates.
(Doc. # 73-26 at 2-4).
On October 14, 2014, the DOJ provided the Grant County attorney with another
assessment regarding conditions at GCDC. (Doc. # 73-13 at 2). The letter noted that
“[i]n our last compliance letter, we acknowledged that a new Jail administration and
14
contractor were in place [and] understood that they might not have had as much time to
fully evaluate their obligations under the Agreement and take remedial action.” (Doc. #
73-13 at 14). The assessment went on to state, however, that “enough time has now
passed that the County’s lack of progress is much more troubling.” Id. The DOJ found
that “the County has made little progress” in addressing the deficiencies identified in its
August 3, 2009 Resolution, including a failure to provide prisoners “with adequate access
to qualified clinical staff and mental health services.” (Doc. # 73-13 at 2).
Aware of management issues at the GCDC, Christopher Hankins ran against the
incumbent Jailer and was elected to the position in 2015. (Doc. # 73-7 at 5, 10-11). As
the Jailer, Hankins has the final power to adopt policy for the jail, as well as the policy and
procedure manual, and he has the final power to hire, fire, and discipline personnel. Id.
at 18. Hankins also has the ultimate responsibility for determining if the deputy jailers are
acting consistent with policy and making sure inmates are safe and secure. Id. at 62.
In order to try to comply with the Department of Justice Resolution, Hankins hired
contractor Southern Health Partners, Inc. (SHP), and SHP began providing medical care
at the GCDC in the latter part of 2015. Id. at 28-29, 33, 35-36. Hankins testified that he
and his staff met with SHP about coming into compliance with the DOJ agreement. Id. at
104-105. However, Jailer Hankins testified that he did not personally do anything to
monitor the type of health care inmates were receiving at GCDC during the time SHP was
the medical provider and that no one at Grant County had any responsibility for
supervising the SHP medical staff. Id. at 32-33.
Moreover, Jailer Hankins testified that he delegated the monitoring of the medical
care provided by SHP to his brother, Major of Operations Jason Hankins. Id. at 15, 66-
15
67. Jailer Hankins testified that while he may have “skimmed through” the DOJ’s August
3, 2009 Resolution (Doc. # 73-26), he has never seen the DOJ’s May 18, 2005 findings
(Doc. # 73-25). See (Doc. # 73-7 at 94, 97, 99). Further, Jailer Hankins testified that he
is not aware how Jason Hankins monitored SHP and is not sure if Jason Hankins had
any regular meetings with the medical staff from SHP, or received or reviewed any reports
from SHP prior to Plaintiff’s stroke. Id. at 29-32. Jailer Hankins testified that he does not
recall any investigation into Plaintiff’s incident at the GCDC, and to his knowledge no
disciplinary action was taken against the SHP nurses or the GCDC employees as a result
of the incident. Id. at 72, 70-72. The DOJ monitoring was ongoing at the time of Plaintiff’s
stroke, as the GCDC has not been found in compliance with the DOJ Resolution, and the
record indicates that DOJ representatives were at GCDC for an inspection as recently as
2017. (Docs. # 73-7 at 93-94, 97, 102 and 73-10 at 44-46).
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 dispute 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, 249 (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 properlysupported motion for summary judgment, by either affirmatively negating an essential
element of the non-moving party’s claim or establishing an affirmative defense, “the
16
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 [her] 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 in each of their respective motions, the County Defendants
and SHP 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
against which they seek dismissal. 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 burdens, Plaintiff must—by citing to “particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . admissions, interrogatory answers, or other materials”—
show specific facts that reveal a genuine issue for trial. Fed. R. Civ. P. 56(c)(1)(A); Laster,
746 F.3d at 726 (citing Celotex, 477 U.S. at 324). Furthermore, “the trial court no longer
17
has a duty to search the entire record to establish that it is bereft of a genuine issue of
material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989).
B.
County Defendants’ Motion for Summary Judgment
The County Defendants assert four central arguments in support of their Motion
for Summary Judgment.4 First, Defendants argue that Plaintiff’s official-capacity § 1983
claims against the individually-named Defendants should be dismissed as redundant
because Plaintiff also named the County as a party. (Doc. # 62-1 at 11-15). Second,
Defendants argue that Plaintiff’s § 1983 claim against Grant County should be dismissed
because Plaintiff failed to demonstrate the requisite “policy or custom” to invoke municipal
liability. Id. at 26-29. Third, Defendants argue that Plaintiff’s individual-capacity § 1983
claims against the individually-named defendants should be dismissed because qualified
immunity bars the suit and because the defendants were not deliberately indifferent to
Plaintiff’s medical needs. Id. at 20-26; 29-37. Finally, Defendants argue that qualified
immunity bars Plaintiff’s state-law claim for negligence against the individually-named
defendants. Id. at 12-20. Each argument will be addressed in turn. For the reasons set
forth below, the County Defendants’ Motion for Summary Judgment is granted in part
and denied in part.
1.
Summary judgment is proper as to Plaintiff’s § 1983 claim
against the individually-named Defendants in their official
capacities.
The County Defendants’ first argument asserts that the individually-named
4
Two of Plaintiff’s four causes of action involve the County Defendants. First, Plaintiff alleges a
claim pursuant to 42 U.S.C. § 1983 against Defendants Corporal Audra Napier, Deputy Tammy Bullock,
Jailer Christopher Hankins, and John and Jane Doe (the “individually-named Defendants”), in both their
individual and official capacities, as well as against Grant County (Count One). (Doc. # 1 at 11). Second,
Plaintiff alleges a state-law negligence claim against Defendants Audra Napier, Tammy Bullock, and John
and Jane Doe (Count Four). Id. at 12. The County Defendants seek summary judgment on both counts.
18
Defendants—Audra Napier, Tammy Bullock, Christopher Hankins, and John and Jane
Doe5—are entitled to summary judgment as to Plaintiff’s official-capacity claim under 42
U.S.C. § 1983 (Count One), because these claims are redundant to Plaintiff’s claim
against Grant County itself. (Doc. # 62-1 at 11). Plaintiff concedes that “her official
capacity claims against the individual County defendants amount to a claim against Grant
County, which was also named as a party.” (Doc. # 73 at 43). The Court agrees that “as
a matter of housekeeping,” because Plaintiff has brought suit against Grant County
directly, “there is no longer a need to bring official-capacity actions against local
government officials.” C.K. v. Bell Cty. Bd. of Educ., 839 F. Supp.2d 881, 884 (E.D. Ky.
2012) (citing Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)). Accordingly, summary
judgment is granted as to Plaintiff’s official-capacity § 1983 claim against these
Defendants.
2.
Summary judgment is proper as to Plaintiff’s remaining claims
against John and Jane Doe.
Plaintiff named Defendants John and Jane Doe in Count One and Count Four of
her Complaint. (Doc. # 1 at 2). As to Count One, in addition to conceding that dismissal
is appropriate as to her official-capacity claim against each of the individually-named
Defendants, Plaintiff has “put forth no arguments as to why the individual-capacity claim
against [John and Jane] Doe should survive summary judgment analysis.”6 Delong v.
5
The County Defendants’ Motion for Summary Judgment also moved on behalf of Defendants Dedi
Adams, Jessica Helton, and Whitney Jett; however, after the County Defendants filed their dispositive
motion, these Defendants were dismissed from this civil action by agreement of the parties. (Doc. # 75).
Thus, the remaining Grant County Defendants are Grant County, and (in their official and individual
capacities) Audra Napier, Tammy Bullock, Christopher Hankins, and John and Jane Doe. See (Doc. # 73
at 44). Accordingly, the County Defendants’ Motion for Summary Judgment as to Defendants Dedi Adams,
Jessica Helton, and Whitney Jett will be denied as moot.
6
The Court also notes that as to Defendants John and Jane Doe, after a significant period of
discovery Plaintiff has never identified these individuals, moved to name these individuals, or moved to
19
Arms, No. 06-77-GFVT, 2007 WL 4510323, at *9 (E.D. Ky. Dec. 21, 2007). Indeed,
Plaintiff does “not once mention or allude to the individual-capacity claims against [John
and Jane] Doe in [her] Response.” Id. Accordingly, because Plaintiff has failed to direct
the Court to specific portions of the record that she asserts create a genuine issue of
material fact, Plaintiff’s § 1983 individual-capacity claim against John and Jane Doe fails
and summary judgment is granted. See id. See also Haverstick Enters., Inc. v. Fin. Fed.
Credit, Inc., 32 F.3d 989, 996 (6th Cir. 1994) (finding that where a § 1983 action could
not be asserted successfully against a Doe defendant, summary judgment is
appropriately awarded).
As to Count Four, Plaintiff has likewise failed to show why the negligence claim
against John and Jane Doe should survive summary judgment analysis. Plaintiff failed
to point to any materials in the record that show specific facts revealing a genuine issue
for trial; without even a scintilla of evidence in support of her position, the Court will grant
summary judgment to these Defendants on the negligence claim contained in Count Four
of the Complaint. Copen v. Noble Cty., No. 2:13-cv-00610, 2016 WL 687593, at *5 (S.D.
Ohio Feb. 19, 2016). See also Fed. R. Civ. P. 56(c)(1)(A); Laster, 746 F.3d at 726 (citing
Celotex, 477 U.S. at 324).
3.
Defendant Grant County is not entitled to summary judgment as
to Plaintiff’s § 1983 claim.
The County Defendants next argue that Defendant Grant County is entitled to
summary judgment as to Plaintiff’s claim under 42 U.S.C. § 1983 because Plaintiff has
not demonstrated any “policy or custom” that caused her injury. (Doc. # 62-1 at 26).
amend or join a party; nor has she served them with timely process pursuant to Rule 4(m) of the Federal
Rules of Civil Procedure. See Petty v. Ohio, 478 F.3d 341, 345-46 (6th Cir. 2007), abrogation on other
grounds recognized by Bailey v. City of Ann Arbor, (6th Cir. 2017).
20
Defendants’ argument fails.
Accepting Plaintiff’s evidence as true and drawing all
reasonable inferences in her favor, see Anderson, 477 U.S. at 255, the Court finds that
Plaintiff has set forth sufficient evidence of the requisite policy or custom to show that
there is a genuine issue for trial. Celotex, 477 U.S. at 324.
To impose municipal liability pursuant to 42 U.S.C. § 1983, a plaintiff must prove
that a constitutional violation occurred and that the municipality is responsible for the
violation. Ford v. Cty. of Grand Traverse, 535 F.3d 483, 498 (6th Cir. 2008) (internal
citation omitted); Crouch v. S. Health Partners, Inc., No. 1:08-cv-P89-R, 2009 WL 860414
(W.D. Ky. Mar. 27, 2009) (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120
(1992)). Further, there must be a “direct causal link” between a municipal policy or custom
and the alleged deprivation, and such policy or custom must be the “moving force” of the
constitutional violation. Crouch, 2009 WL 860414, at *3 (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 691 (1978)); see also Waters v. City of Morristown, 242 F.3d 353,
362 (6th Cir. 2001). Stated another way, a plaintiff must (1) identify the municipal policy
or custom, (2) connect the policy to the municipality, and (3) show that the plaintiff incurred
a particular injury due to execution of that policy. Alkire v. Irving, 330 F.3d 802, 815 (6th
Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)).
“These stringent standards are necessary to avoid de facto respondeat superior liability
explicitly prohibited by Monell.” Graham v. Cty. of Washtenaw, 358 F.3d 377, 383 (6th
Cir. 2004) (citing Doe v. Claiborne Cty., 103 F.3d 495, 508 (6th Cir. 1996)).
The County Defendants argue that summary judgment as to Plaintiff’s § 1983 claim
against Grant County is proper because Plaintiff “has not pointed to any policy or custom
that caused Plaintiff’s injury.” (Doc. # 62-1 at 28). In order to demonstrate the requisite
21
“municipal policy or custom” leading to the alleged violation, “a plaintiff can identify: (1)
the municipality’s legislative enactments or official policies; (2) actions taken by officials
with final decision-making authority; (3) a policy of inadequate training or supervision; or
(4) a custom of tolerance or acquiescence of federal violations.” Winkler v. Madison Cty.,
893 F.3d 877, 901 (6th Cir. 2018) (citing Baynes v. Cleland, 799 F.3d 600, 621 (6th Cir.
2015)). Pointing to carefully-tailored selections of Plaintiff’s deposition testimony, the
County Defendants seek to frame Plaintiff’s treatment at GCDC narrowly as an “isolated
occurrence that affected only Plaintiff” rather than the result of the requisite “policy or
custom.” (Doc. # 62-1 at 29). The County Defendants point to Plaintiff’s testimony, for
example, that she was not personally aware of GCDC’s treatment protocols, she was not
aware of any other inmates at GCDC who specifically suffered from a stroke, and that
she was regularly seen by medical staff despite not expressly requesting medical care.
(Doc. # 62-1 at 28-29).
The County Defendants’ selective citation of Plaintiff’s deposition testimony alone,
however, ignores a wealth of contrary evidence in the record that the failure to promptly
treat Plaintiff’s acute medical need was far from an isolated incident at GCDC. Rather,
“[a] review of the record reveals a prison system in crisis.” Taylor v. Mich. Dep’t of Corrs.,
69 F.3d 76, 83 (6th Cir. 1995). First, Plaintiff’s own lack of knowledge of the GCDC
treatment protocol is irrelevant; it is the mental state of Defendants that is at issue in a
§ 1983 claim. See Winkler, 893 F.3d at 901-02. Defendants’ assertion that Plaintiff did
not expressly ask for medical assistance is equally unavailing in light of multiple
witnesses’ testimony that Plaintiff, though confused and limited at times in her ability to
move, think, and speak, made the GCDC staff aware of her symptoms and actively sought
22
help on numerous occasions prior to her hospitalization. See, e.g., (Docs. # 73-8 at 2728, 42; 73-9 at 48-49, 55-56, 61, 64-65, 153, 164; 73-12 at 56-58 and 73-20).
Further, while there is no evidence of other inmates who suffered from a stroke
specifically, there is evidence that the delay in treating Plaintiff’s acute condition was not
a mere isolated incident. The record demonstrates DOJ findings that GCDC “lacks
policies on, inter alia, timeliness of access to medical care,” or “protocols for the nurse or
the correctional staff to use to ensure timely access to the physician when presenting
symptoms requiring physician care.” (Doc. # 73-25 at 12). As a result, the DOJ concluded
that the provision of acute medical care at GCDC “deviates from constitutionally minimum
standards” and that “GCDC consistently fails to provide reasonable medical treatment to
inmates with serious or potentially serious acute medical conditions” such as a stroke.
(Doc. # 73-25 at 7, 12). No evidence indicates that circumstances have changed since
the DOJ report was authored.
Next, Defendants’ argument that Plaintiff was regularly “seen” by medical staff
artificially narrows the relevant scope of inquiry. Being “seen” does not always equate to
being “treated” within constitutionally minimum standards. There is evidence that, while
Plaintiff was “seen” by medical, the medical staff continued to merely “monitor” Plaintiff
instead of providing emergency treatment—in the case of RN Watkins, even after he
determined that Plaintiff required hospitalization. See, e.g., (Docs. # 73-3 at 28, 50-51,
55-62, 81; 73-4 at 34-44, 59-64, 73-7 at 88 and 73-12 at 82-84, 113-114).
The County Defendants’ argument on this point ignores the fact that, while “a court
will not second-guess the judgment of the medical professionals providing such
treatment,” a plaintiff may overcome this presumption by showing that such “treatment”
23
was “so woefully inadequate as to amount to no treatment at all.” Alspaugh v. McConnell,
643 F.3d 162, 169 (6th Cir. 2011). The County Defendants’ argument sidesteps the
evidence that the County was aware of a continuing pattern of delay in securing acute
care. In sum, the County Defendants’ arguments fall short of satisfying their burden of
showing the absence of any genuine issues of material fact that a municipal policy or
custom was the driving force a deprivation of Plaintiff’s constitutional right to medical care.
See Alkire, 330 F.3d at 815.
In contrast, Plaintiff has presented facts from which a jury could find that the
conditions leading to her injuries were not “isolated,” but rather Grant County had a
longstanding policy or custom that caused a violation of Plaintiff’s constitutional right to
adequate medical care. While Jailer Hankins contracted with SHP to provide medical
services at GCDC, it is well-established that “contracting out prison medical care does
not relieve the State of its constitutional duty to provide adequate medical treatment to
those in its custody.” West v. Atkins, 487 U.S. 42, 56 (1988); Leach v. Shelby Cty. Sheriff,
891 F.2d 1241, 1250 (6th Cir. 1989). Jailer Hankins knew that GCDC had not been found
in compliance with the DOJ agreement, but he did not do anything to monitor the type of
health care inmates were receiving at GCDC during the time SHP was the medical
provider, such as implement a quality assurance program. (Doc. # 73-7 at 28-36, 102).
See McCullum v. Tepe, No. 1:08-CV-387, 2011 WL 13186318, at *8 (S.D. Ohio Mar. 28,
2011) (stating that the lack of a quality assurance program provides evidence of
deliberate indifference).
Further, Jailer Hankins testified that he had no personal involvement in monitoring
the health care being provided to inmates at GCDC; that no one at Grant County had any
24
responsibility for supervising the SHP medical staff; that he fully delegated oversight of
medical services to his brother, who had no corrections experience; that he did not have
any awareness of how his brother provided oversight, if any; that he had no idea if his
brother met with SHP; that he received no reports or statistics about the medical care
provided by SHP; that he was only generally aware of the DOJ’s attempts to bring GCDC
into compliance pursuant to the agreed-upon Resolution; and that he did not review the
the DOJ findings. (Doc. # 73-7 at 15, 29-33, 66-67, 94-99). Jailer Hankins and Grant
County officials were aware that GCDC provided constitutionally inadequate medical care
to inmates, and that the DOJ had still not found GCDC to be in compliance during the
relevant time period. The testimony of Jailer Hankins, and DOJ documents relied upon
by Plaintiff, create a genuine issue of material fact as to whether the County “at least
implicitly authorized, approved, or knowingly acquiesced” in unconstitutional conduct.
Hays v. Jefferson Cty., 668 F.2d 869, 874 (6th Cir. 1982); Winkler, 893 F.3d at 902-03.
The County Defendants seek to vitiate Plaintiff’s reliance on the Department of
Justice documents related to its CRIPA investigation of GCDC as evidence of the
requisite policy or custom by contesting the admissibility of the documents. (Doc. # 62-1
at 28). The County Defendants argue for the first time in their Reply brief—obstructing
Plaintiff’s ability to respond—that the DOJ documents should be inadmissible public
records under Rule 803(8) of the Federal Rules of Evidence as they indicate a lack of
trustworthiness. (Doc # 77 at 4-8) (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153,
170 (1988); Bank of Lexington & Trust Co. v. Vining-Sparks Sec., Inc., 959 F.2d 606, 616
(6th Cir. 1992)). The County Defendants assert that the majority of the DOJ documents
relied upon by Plaintiff are too attenuated in time—stemming from a 2003 investigation—
25
to be sufficiently trustworthy under Rule 803(8). See (Doc. # 77 at 6-7).
This argument sidesteps evidence in the record that the DOJ’s 2003 investigation
was ongoing. The record shows that the same pertinent issues identified in the DOJ’s
2005 findings—including inadequate protocol for acute care—continued to be raised by
the DOJ. See, e.g., (Doc. # 73-13 at 2). Additionally, it appears that the GCDC was still
being monitored at the time of Plaintiff’s stroke, and DOJ representatives were present at
the GCDC for an inspection as recently as 2017. Jailer Hankins was aware of the DOJ
investigation, and SHP representatives hired by Hankins were present for one of the
inspections. (Docs. # 73-7 at 93-97, 102 and 73-10 at 44-46).
Thus, the County Defendants’ objections are unconvincing, and the Court finds
that the DOJ documents are sufficiently trustworthy under Rule 803(8) of the Federal
Rules of Evidence.7 See, e.g., Daniel v. Cook Cty., 833 F.3d 728 (7th Cir. 2016) (findings
from DOJ investigation of health care provided at county jail were admissible under
hearsay exception); Shepherd v. Dallas Cty., 591 F.3d 445, 457-58 (5th Cir. 2009)
(admitting 2006 DOJ report on investigation of health care at Dallas County Jail);
McDaniels v. City of Philadelphia, 234 F. Supp. 3d 637, 649 (E.D. Pa. 2017) (admitting
DOJ report under hearsay exception at summary-judgment stage of § 1983 action);
Moses v. Westchester Cty. Dep’t of Corr., No. 10-CIV-9468, 2017 WL 4386362, at *11
(S.D.N.Y. Sept. 29, 2017) (finding DOJ Report “satisf[ies] the criteria of Rule 803(8)”).
The DOJ documents relied upon by Plaintiffs provide probative and admissible evidence
7
Moreover, even if the DOJ documents were inadmissible under Rule 803(8), courts have found
similar documents admissible for non-hearsay purposes such as notice. See, e.g., Talley v. Dart, No. 08C-5485, 2012 WL 1899393, at *5 (N.D. Ill. May 24, 2012) (considering DOJ letter on summary judgment
not for the truth of the matters asserted, but “for the fact that the . . . defendants had been placed on notice
by DOJ in July 2008 of possible problems with the provision of medical care and the processing of medical
grievances”).
26
in support of Plaintiff’s § 1983 custom or policy claim against Grant County.
The County Defendants have failed to demonstrate that there is no genuine issue
of material fact as to whether there is a direct causal link between a municipal policy or
custom that was the moving force behind the deprivation of Plaintiff’s constitutional right
to adequate medical care. Alkire v. Irving, 330 F.3d at 815. Accordingly, the County
Defendants’ Motion for Summary Judgment as to Plaintiff’s claim under 42 U.S.C. § 1983
against Grant County is denied.
4.
Defendants Napier, Bullock, and Hankins, in their individual
capacities, are not entitled to summary judgment as to
Plaintiff’s § 1983 claim.
The County Defendants next argue that they are entitled to summary judgment as
to Plaintiff’s claim under 42 U.S.C. § 1983 against Defendants Hankins, Napier, Bullock,
in their individual capacities, because they are shielded from suit by qualified immunity.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or
laws of the United States (2) caused by a person acting under the color of state law.”8
Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West v. Atkins,
487 U.S. 42, 48 (1988)). However, under the doctrine of qualified immunity, “government
officials performing discretionary functions . . . are shielded 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.” Jerauld ex rel. Robinson v. Carl,
405 F. App’x 970, 975 (6th Cir. 2010) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
8
The Defendants do not contest that they acted under color of state law.
27
In order to resolve whether these defendants are entitled to qualified immunity, the
Court must examine (1) “whether [Plaintiff] has alleged facts which, when taken in the
light most favorable to her, show that the defendant-official[s’] conduct violated a
constitutionally protected right” and (2) “whether that right was clearly established such
that a reasonable official, at the time the act was committed, would have understood that
his [or her] behavior violated that right.” Jerauld, 405 F. App’x at 975 (citing Comstock v.
McCrary, 273 F.3d 693, 702 (6th Cir. 20001); Dominguez v. Corr. Med. Servs., 555 F.3d
543 (2009) (citing Pearson v. Callahan, 555 U.S. 223 (2009) (discussing flexible
application of the two-part qualified-immunity test)). To demonstrate a violation of her
Eighth Amendment right to medical care, Plaintiff must demonstrate that each of the
individually-named County Defendants acted with “deliberate indifference” to her serious
medical needs.9 Estelle v. Gamble, 429 U.S. 97, 104 (1976); Comstock, 273 F.3d at 702.
“A constitutional claim for deliberate indifference contains both an objective and a
subjective component.” Dominguez, 555 F.3d at 550; Jerauld, 405 F. App’x at 975. The
objective component requires a plaintiff to show the existence of a “sufficiently serious”
medical need. Dominguez, 555 F.3d at 550 (citing Farmer v. Brennan, 511 U.S. 825, 834
(1994)); Jerauld, 405 F. App’x at 975.
The County Defendants do not dispute Plaintiff
was hospitalized and treated for stroke symptoms; accepting Plaintiff’s evidence as true
and drawing all reasonable inferences in her favor, see Laster, 746 F.3d at 726, Plaintiff
has demonstrated a sufficiently serious medical need. Dominguez, 555 F.3d at 550.
9
“While the Eighth Amendment does not apply to pre-trial detainees, the Due Process Clause of the
Fourteenth Amendment does provide them with a right to adequate medical treatment that is analogous to
prisoners’ rights under the Eighth Amendment.” Jerauld, 405 F. App’x at 975 (citing Gray v. City of Detroit,
399 F.3d 612, 615-16 (6th Cir. 2005). The Sixth Circuit has made clear that a pretrial detainee’s analogous
claim in these circumstances “is governed by the ‘deliberate indifference’ standard.” Miller v. Calhoun Cty.,
408 F.3d 803, 812 (6th Cir. 2005).
28
Therefore, the objective prong is satisfied and the Court’s inquiry into whether the County
Defendants have engaged in a constitutional violation within the scope of the qualifiedimmunity exception will focus on the second, subjective prong of the deliberateindifference test. See Darrah v. Krisher, 865 F.3d 361, 374 (6th Cir. 2017) (stating that
inquiry into whether defendants’ conduct violated a constitutional right “collapses into the
analysis of whether [the defendant was] . . . deliberately indifferent to [the plaintiff’s]
medical needs under the subjective component of the deliberate-indifference standard.”);
Parsons v. Caruso, 491 F. App’x 597, 602 (6th Cir. 2012); Clark-Murphy v. Foreback, 439
F.3d 280, 286-87 (6th Cir. 2006).
The subjective component requires a plaintiff to show that the official “subjectively
perceived facts from which to infer substantial risk to the prisoner, that he [or she] did in
fact draw the inference, and that he [or she] then disregarded that risk.” Comstock, 273
F.3d at 703 (citing Farmer, 511 U.S. at 837). Requiring “a degree of culpability greater
than mere negligence” but less than a “specific intent to harm,” the subjective standard is
equivalent to a reckless disregard of the risk of harm. Comstock, 273 F.3d at 703
(citations omitted); Perez, 466 F.3d at 424. Raising the standard from negligence to
recklessness “is meant to prevent the constitutionalization of medical malpractice claims.”
Comstock, 273 F.3d at 703. A plaintiff may demonstrate the subjective component by
“inference from circumstantial evidence . . . and a factfinder may conclude that a prison
official knew of a substantial risk from the very fact that the risk was obvious.” Dominguez,
555 F.3d at 550 (citing Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 843
(6th Cir. 2002)).
29
Upon a showing that a defendant was deliberately indifferent in violation of a
plaintiff’s constitutionally-protected right, a § 1983 claim will still be barred by sovereign
immunity unless the plaintiff shows that “the constitutional right was clearly established”
at the time of the violation. Jerauld, 405 F. App’x at 976 (citing Comstock, 273 F.3d at
703). “For a right to be clearly established, the contours of the right must be sufficiently
clear that a reasonable official would understand that what [he or she] is doing violates
that right.” Dominguez, 555 F.3d at 552 (citing Feathers v. Aey, 319 F.3d 843, 848 (6th
Cir. 2003)).
The County Defendants do not contest that Plaintiff was entitled to medical care
and attention under the Fourteenth Amendment; rather, the arguments go to the timing
of the incident and the County Defendants’ notice of Plaintiff’s risk of harm. The Sixth
Circuit “ha[s] long held that prison officials who have been alerted to a prisoner’s serious
medical needs are under an obligation to offer medical care to such a prisoner.” Jerauld,
405 F. App’x at 976 (citing Comstock, 273 F.3d at 702). Therefore, the central inquiry
focuses upon the subjective component—whether the individual County Defendants
identified Plaintiff’s risk of harm and responded with deliberate indifference. Jerauld, 405
F. App’x at 976; Dominguez, 555 F.3d at 552. Accordingly, the Court will examine
Plaintiff’s evidence against each of the individual-capacity County Defendants in turn.
See Doe, 103 F.3d at 511 (stating that Court “must begin with the preliminary
determination of whether [the plaintiff] has stated a claim under section 1983 against each
individual defendant.”); Smith v. Cty. of Lenawee, 505 F. App’x 526, 532 (6th Cir. 2012)
(recognizing that individual officials’ “entitlement to qualified immunity rests on the role
each of them played”).
30
a.
Audra Napier
Corporal Audra Napier was working the night shift on May 20, 2016. (Doc. # 73-1
at 9). As the highest-ranking officer on site, she was responsible for overseeing the
inmates. Id. Corporal Napier’s first interaction with Plaintiff occurred that evening, when
Deputy Jett radioed that she needed assistance with a female in the shower. Id. at 10,
14-15. While Napier testified that she was not aware of any problems Plaintiff was having
prior to being radioed by Jett, Deputy Jett testified that she explained the situation over
the radio and let Napier know it was urgent. Id. at 15; see also (Docs. # 73-12 at 71 and
73-19).
Napier herself then observed Plaintiff exhibit bizarre behavior, as well as an
inability to respond to questions, dress herself, or stand. (Doc. # 73-12 at 71-78). Napier
transported Plaintiff to the medical unit for an evaluation and then brought her back to xblock less than an hour later; when she returned, Deputy Jett voiced concern that medical
had again merely returned Plaintiff to her isolation cell. Id. at 81-84. Deputy Jett testified
that she told Corporal Napier “something needs to be done, we have to do something.”
Id. at 84. Napier—deterring Jett from possibly pursuing further assistance—responded
that she was going to “make some calls” and “would let [Jett] know.” Id. There is no
evidence in the record that Napier took any action, however, to secure medical care, and
instead merely finished out her shift.
Based upon these facts, there is evidence that Napier had “a reason to believe (or
actual knowledge) that prison doctors or their assistants [were] mistreating (or not
treating) a prisoner.” See Smith v. Cty. of Lenawee, 505 F. App’x 526, 533 (6th Cir. 2012)
(citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)). See also Clark-Murphy v.
31
Foreback, 439 F.3d 280, 290 (6th Cir. 2006) (denying qualified immunity when referral to
medical attention had not secured the necessary assistance for an inmate). “When prison
officials are aware of a prisoner’s obvious and serious need for medical treatment and
delay medical treatment of that condition for non-medical reasons, their conduct in
causing the delay creates [a] constitutional infirmity.” Darrah, 865 F.3d at 372 (citing
Blackmore v. Kalamazoo Cty., 390 F.3d 890, 899 (6th Cir. 2004)).
Napier’s exposure to Plaintiff’s condition and assurance to Jett that she would
“make some calls” in response to Jett’s concerns provides evidence that Napier
“subjectively perceived facts from which to infer substantial risk to the prisoner, [and] that
[she] did in fact draw the inference.” Comstock, 273 F.3d at 703. The record shows that
for several hours, despite her assurance to Jett, Napier did nothing to secure Plaintiff
medical care. Napier’s failure to “make some calls” or follow up in any way, and her
“inadequate monitoring of a detainee whom she knew to need medical treatment,” is
enough evidence for a jury to find that Napier “then disregarded that risk” she had
perceived and inferred. Smith, 505 F. App’x at 537; Comstock, 273 F.3d at 703.
The County Defendants argue that at the time of her stroke, Plaintiff “thought the
symptoms she was experiencing were symptoms associated with her detoxification from
heroin.” (Doc. # 77 at 11). Further, the County Defendants note that “Plaintiff’s daughter,
who had seen someone suffer a stroke before, thought Plaintiff was experiencing detox
symptoms, not those of a stroke.” Id. Defendants’ arguments fail to vitiate the genuine
issue of material fact demonstrated by Plaintiff. Plaintiff’s daughter was only incarcerated
for five days, from May 5, 2016, to May 9, 2016, and only saw her mother on four
occasions during this time; the record shows that Plaintiff’s stroke symptoms did not
32
emerge until May 18, 2016. (Docs. # 73-4 at 29-32; 73-5 at 63, 68; 73-6 at 53 and 73-9
at 47).
Therefore, her observations are not relevant.
Moreover, Plaintiff—though
confused and limited at times in her ability to move, think, and speak—made the GCDC
staff aware of her symptoms and actively sought help on numerous occasions prior to her
hospitalization. See, e.g., (Docs. # 73-8 at 27-28, 42; 73-9 at 48-59, 55-56, 61, 64, 153,
164; 73-12 at 56-58 and 73-20). Most important, Napier herself then observed Plaintiff
exhibit bizarre behavior, as well as an inability to respond to questions, dress herself, or
stand—spurring Napier to assure Deputy Jett that she would “make some calls” in
response to Jett’s concern that something needed to be done. (Doc. # 73-12 at 71-78).
Plaintiff has alleged facts which, taken in the light most favorable to her, show that
Napier was deliberately indifferent to Plaintiff’s serious medical needs in violation of
Plaintiff’s clearly-established, constitutionally-protected rights. Darrah, 865 F.3d at 369;
Jerauld, 405 F. App’x at 980; Clark-Murphy, 439 F.3d at 290. Accordingly, Napier is not
entitled to qualified immunity and summary judgment as to Plaintiff’s individual-capacity
§ 1983 claim against Defendant Audra Napier is denied.
b.
Tammy Bullock
Deputy Tammy Bullock was assigned to the female x-block at GCDC and
supervised Plaintiff while she was an inmate. (Doc. # 73-11 at 6-7, 15). As Plaintiff’s
symptoms progressed, Plaintiff told Deputy Bullock that she was not able to see, and
inmates alerted Bullock to Plaintiff’s complaints of “not full body movement.” (Docs. # 7311 at 15-17, 19-20 and 73-9 at 163). Bullock further observed Plaintiff have difficulty
walking and dragging one of her legs behind her. (Doc. # 73-11 at 19-20).
33
On May 19, 2016, Bullock alerted medical, and LPN Ross told Bullock to “keep a
closer eye” on Plaintiff and to call him if there were any changes. (Doc. # 73-2 at 77).
However, there is evidence that Bullock did not keep a close eye on Plaintiff as Ross
instructed. Bullock placed Plaintiff in an isolation cell, which she testified was meant to
prevent other inmates from injuring themselves while lifting Plaintiff from the floor and
assisting her to and from the bathroom. (Docs. # 73-2 at 76-77; 73-11 at 31 and 73-16).
There is evidence that Bullock had to physically carry Plaintiff to the isolation cell—where
Plaintiff would be alone with no one to assist her to and from the cell bathroom. (Docs. #
73-9 at 164 and 73-11 at 29-30, 50). While Bullock testified that she then placed Plaintiff
on medical watch—which would have increased the number of times someone looked in
on Plaintiff—Bullock admits that the record shows no evidence Plaintiff was actually
placed on medical watch until May 20, 2016, after Bullock’s shift ended. (Docs. # 73-7 at
56, 60 and 73-11 at 27-28, 30, 33).
Under these facts, there is sufficient evidence from which a reasonable jury could
conclude that, by confining Plaintiff to an isolation cell without putting a medical watch in
place to keep a closer eye on Plaintiff, as she had been directed by medical to do, Deputy
Bullock disregarded a known substantial risk to Plaintiff. Jerauld, 405 F. App’x at 978.
Plaintiff has therefore alleged facts which, taken in the light most favorable to her, show
that Bullock was deliberately indifferent to Plaintiff’s serious medical needs in violation of
Plaintiff’s clearly-established, constitutionally-protected rights. Darrah, 865 F.3d at 369;
Jerauld, 405 F. App’x at 980; Clark-Murphy, 439 F.3d at 290; Jerauld, 405 F. App’x at
980; Blackmore, 390 F.3d at 896. Accordingly, Bullock is not entitled to qualified immunity
34
and summary judgment as to Plaintiff’s individual-capacity § 1983 claim against
Defendant Tammy Bullock is denied.
c.
Christopher Hankins
The County Defendants argue that Jailer Hankins is entitled to summary judgment
in his individual capacity because he had no personal involvement in Plaintiff’s treatment
or supervision. (Doc. # 77 at 9). Acknowledging that § 1983 does not impose respondeat
superior liability, Plaintiff argues that by providing no oversight to GCDC, Hankins
implemented an unconstitutional policy and therefore liability is direct, not vicarious. (Doc.
# 73 at 38-39) (citing Taylor, 69 F.3d at 81).
In Taylor, the Sixth Circuit found that a facility supervisor was not entitled to
summary judgment because a reasonable jury could find him individually liable—despite
having no personal involvement with the plaintiff—when he knew the risk of sexual assault
was inherently greater at the facility where the plaintiff was to be transferred and chose
to disregard that risk. Taylor, 69 F.3d at 84. The Taylor defendant argued that individual
liability was improper because he delegated responsibility over transfers to his
subordinates. Id. at 81. The Sixth Circuit rejected this argument and found that “a triable
question exists about whether [the supervisor] properly discharged his duty.” Id. The
Taylor court noted that the supervisor was charged with abandoning the specific duties
of his position—implementing a transfer procedure—and had “actual knowledge of a
breakdown in the proper workings of the department.” Id. It was not the conduct of his
subordinates, but his own abandonment of his duties, that imposed liability; stated
differently, “[a] jury could find on the facts that [the supervisor] personally had a job to do,
and that he did not do it.” Id.
35
Likewise, a district court rejected a sheriff’s argument that an individual-capacity
§ 1983 claim against him should be dismissed because he had no personal contact with
the plaintiff. McCullum v. Tepe, No. 1:08-cv-387, 2011 WL 13186318, at *8 (S.D. Ohio
Mar. 28, 2011). In McCullum, a plaintiff who had a history of suicidal ideations committed
suicide while incarcerated. Id. at *1. It was a custom at the facility that inmates with signs
of mental illnesses were assessed and treated by a social worker who determined
whether they would be allowed to see the facility psychiatrist, who was only on site one
day per week and otherwise only available by phone. Id. at *4.
The sheriff hired a
physician to oversee all treatment at the facility; nonetheless, Plaintiff argued that the
sheriff—as the official ultimately responsible for overseeing medical policies—was
deliberately indifferent to the plaintiff’s serious medical needs because he allowed “a
custom and practice of delegating to a social worker the authority to deny mental health
treatment and medication to inmates . . . without supervision, while acting beyond the
scope of their practice.” Id. at *7. The McCullum court agreed, finding that a jury could
conclude the sheriff “was deliberately indifferent because he hired [the physician] to
develop a competent reliable system of mental health care . . . [but] failed to monitor [the
physician’s] work to insure that mental health services were being developed, conducted,
and audited in accordance with state policy.” Id. at 8.
Here, as in Taylor, the record shows that Jailer Hankins had a job to do, and that
he did not do it. Taylor, 69 F.3d at 81. Hankins’s testimony regarding the DOJ monitoring
and facility deficiencies provides evidence of “actual knowledge of a breakdown in the
proper workings of the department” and therefore a triable question remains whether
Hankins, like Taylor, abandoned or properly discharged his duty. Taylor, 69 F.3d at 81.
36
Hankins conceded that he held the final authority to adopt policy for the jail and to hire,
fire, and discipline personnel. (Doc. # 73-7 at 18). Hankins personally hired SHP, with
the specific intention of “trying to satisfy the Department of Justice in getting the medical
records issue that they were concerned about, sick calls, and stuff like that corrected” as
well as to comply with the Department of Justice monitoring and overall trying to get the
inmates “better health care.” Id. at 29:1-23; 33:4-8. This provides evidence that Jailer
Hankins knew medical care was being provided in an unconstitutional manner; however,
there is no evidence that, other than hiring SHP, Hankins took any action to see that
GCDC was brought into compliance with the DOJ requirements—despite the fact that the
County’s contract with SHP provides that “the County is, and shall be, solely responsible
for compliance with the DOJ directives.” (Doc. # 73-24 at 2).
Additionally, just like the sheriff in McCullum, who allowed social workers to act as
gatekeepers to mental-health treatment by a the facility psychiatrist, here there is ample
evidence in the record that Jailer Hankins continued to allow LPNs—who were not
qualified to diagnose patients—to act as gatekeepers to treatment by a physician.
McCullum, 2011 WL 13186318, at *4. Moreover, as in McCullum, while Hankins hired
SHP to provide health care at GCDC, he wholly failed to monitor SHP’s work to ensure
that its health care services were being provided in compliance with the DOJ Resolution.
Id. at *8.
Defendants seek to distinguish the Taylor case relied upon by Plaintiff, arguing
that, unlike the warden in Taylor, here there is no evidence “that Jailer Hankins was aware
of or acquiesced in any offending conduct of his subordinates” as to Plaintiff’s treatment.
(Doc. 77 at 8) (citing Plaintiff’s reliance on Taylor, 69 F.3d at 81, as “misplaced and
37
inapplicable”). Hankins seeks to evade the application of Taylor by artificially narrowing
the scope of inquiry to Plaintiff’s specific circumstances. However, the Sixth Circuit in
Taylor explained that “the correct inquiry is whether [the supervisor] had knowledge about
the substantial risk of serious harm to a particular class of persons.” Id.
Viewing the facts in the light most favorable to Plaintiff, genuine disputes of
material fact exist as to whether Jailer Hankins had knowledge about the substantial risk
of serious harm to GCDC inmates in need of acute medical care. A triable question exists
about whether Christopher Hankins properly discharged his duty or “was deliberately
indifferent because he hired [SHP] to develop a competent reliable system of mental
health care . . . [but] failed to monitor [SHP’s] work to insure that . . . health services were
being developed, conducted, and audited in accordance with state policy.” McCullum,
2011 WL 13186318, at *8. Plaintiff has therefore alleged facts which, taken in the light
most favorable to her, show that Hankins was deliberately indifferent to Plaintiff’s serious
medical needs in violation of Plaintiff’s clearly-established, constitutionally-protected
rights. Accordingly, Hankins is not entitled to qualified immunity and summary judgment
as to Plaintiff’s individual-capacity § 1983 claim against Defendant Christopher Hankins
is denied.
5.
Qualified immunity does not bar Plaintiff’s state-law claims.
The County Defendants’ fourth and final argument asserts that qualified immunity
bars Plaintiff’s state-law negligence claim against Defendants Audra Napier and Tammy
38
Bullock10 as set forth in Count Four of Plaintiff’s Complaint. Under Kentucky law,11 state
officials sued in their individual capacities “enjoy only qualified immunity, which affords
protection from damages liability for good faith judgment calls made in a legally uncertain
environment.” Yanero v. Davis, 65 S.W.2d 510, 522 (Ky. 2001). Upon an officer’s prima
facie showing that the negligent act in question was performed within the scope of his or
her discretionary authority, the plaintiff must establish, by direct or circumstantial
evidence, that the act “was not performed in good faith.” Id. at 523. Such absence of
good faith “can be predicated on a violation of a causally related constitutional, statutory,
or other clearly established right which a person in a public employee’s position
presumptively would have known was afforded to a person in the plaintiff’s position.”
Rowan Cty. v. Sloas, 201 S.W.3d 469, 476 (Ky. 2006) (citing Yanero, 65 S.W.3d at 523).
The supervision of inmates is generally a discretionary, rather than ministerial,
function.
See id.
Even under the discretionary-act framework, however, qualified
immunity does not bar Plaintiff’s state-law negligence claim because there is evidence,
viewed in the light most favorable to the Plaintiff, that these Defendants did not act in
good faith. The Court has already noted that evidence which a person in the public
employee’s position presumptively would have known was afforded to a person in the
defendant’s position. For the reasons set forth in the Court’s discussion of deliberate
10
The County Defendants’ Motion for Summary Judgment also argues that Grant County is entitled
to governmental immunity as to Plaintiff’s negligence claim. (Doc. # 62-1 at 14). However, Count Four of
Plaintiff’s Complaint did not name Grant County, and applies only to Defendants Audra Napier and Tammy
Bullock. See (Doc. # 1 at 12). Plaintiff concedes in her Response that “Plaintiff has not brought any state
law claims against the County.” (Doc. # 73 at 44). Accordingly, the County Defendants’ argument on this
point is moot.
11
In ruling on the application of immunity on Plaintiff’s negligence claim, Kentucky substantive law
applies. See Shepherd v. Floyd Cty., 128 F. Supp.3d 976, 980 (E.D. Ky. 2015) (citing Erie R. Co. v.
Tompkins, 304 U.S. 64, 80 (1938)).
39
indifference, supra, Plaintiff has pointed to sufficient evidence on the record to create a
genuine issue of material fact as to Defendants’ state of mind and whether they acted in
violation of Plaintiff’s constitutional right to adequate medical care, causing Plaintiff’s
injuries—and whether that right was clearly established. Rowan, 201 S.W.3d at 476.
Accordingly, summary judgment as to Plaintiff’s state-law negligence claim against
Defendants Audra Napier and Tammy Bullock on the grounds of qualified immunity is
denied.
C.
SHP Defendants’ Motion to Strike
The next matter before the Court is the SHP Defendants’ Motion to Strike. (Doc.
# 79). The SHP Defendants seek to strike portions of Plaintiff’s Response (Doc. # 73) to
the County Defendants’ Motion for Summary Judgment (Doc. # 62), to the extent
Plaintiff’s arguments were predicated upon a finding of wrongdoing by the County
Defendants—as opposed to the actions of the County Defendants. (Doc. # 79 at 2). In
support of their Motion to Strike, the SHP Defendants argued that a finding of wrongdoing
on the part of the SHP Defendants in the course of adjudicating the County Defendants’
Motion for Summary Judgment would result in prejudice, as the deadline for the SHP
Defendants to file their own dispositive motion had not elapsed at that time and because
Plaintiff had not moved for summary judgment against the SHP Defendants. Id. The
SHP Defendants subsequently filed their Motion for Summary Judgment on September
17, 2018. (Doc. # 83).
Rule 12(f) of the Federal Rules of Civil Procedure permits a Court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). Such a “drastic remedy” is proper “only when required for
40
the purposes of justice . . . when the pleading to be stricken has no possible relation to
the controversy.” United States v. Appalachian Reg’l Healthcare, Inc., 246 F. Supp.3d
1184, 1193 (E.D. Ky. 2017) (citations omitted); see also Operating Engin’rs Local 324
Health Care Plan v. G & W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015) (“Motions to
strike are viewed with disfavor and are not frequently granted.”).
The SHP Defendants’ central issue is the timing of Plaintiff’s Response, rather than
any inherently objectionable content.
Plaintiff’s Response contains no “redundant,
immaterial, impertinent, or scandalous” argument; rather, Plaintiff’s contentions regarding
the conduct of the SHP Defendants go to the heart of her supervisory-liability claim
against Grant County pursuant to 42 U.S.C. § 1983. In light of the SHP Defendants’ full
and fair opportunity to contest any § 1983 liability in their dispositive motion filings, along
with their failure to set forth any authority demonstrating that Plaintiff’s Response
contained “any redundant, immaterial, impertinent, or scandalous” material, the Motion to
Strike is denied.
D.
SHP Defendants’ Motion for Summary Judgment
The final matter before the Court is the SHP Defendants’ Motion for Summary
Judgment.12 (Doc. # 83). The SHP Defendants assert six central arguments in support
of their Motion for Summary Judgment.13 (Doc. # 83). First, they argue that qualified
12
This matter has been fully briefed and is ripe for review. (Docs. # 86 and 92). Additionally, on
February 12, 2019, the SHP Defendants filed a Notice of Additional Authority, to which Plaintiff filed a
responsive Supplemental Authority and Response on February 14, 2019. (Docs. # 98 and 99). The Court
has considered the parties’ additional authority in the adjudication of the SHP Defendants’ Motion.
13
Three of Plaintiff’s four causes of action involve the SHP Defendants. First, Plaintiff alleges a claim
pursuant to 42 U.S.C. § 1983 against Defendants SHP, Debbie Preston, David Ross, and David Watkins
(Count One). (Doc. # 1 at 11). Second, Plaintiff alleges a state-law medical-malpractice claim against
Defendants Preston, Ross, and Watkins (Count Two). Id. Finally, Plaintiff alleges a state-law negligence
claim against Defendant SHP (Count Three). Id. at 12. The SHP Defendants seek summary judgment on
all three counts.
41
immunity bars each of Plaintiff’s claims against Defendants David Watkins, RN, Debbie
Preston, LPN, and David Ross, LPN (the nurse Defendants). (Doc. # 83-1 at 9-15).
Second, the SHP Defendants argue that the nurse Defendants are entitled to summary
judgment as to Plaintiff’s § 1983 claim (Count One), because Plaintiff has not provided
evidence of “deliberate indifference.” Id. at 15-26. Third, they argue that Defendants
Watkins and Preston are entitled to summary judgment as to Plaintiff’s state-law medical
malpractice claim (Count Two) because Plaintiff cannot provide evidence of causation.
Id. at 26-27. Fourth, the SHP Defendants argue that they are entitled to summary
judgment on all claims on the grounds that Plaintiff’s expert, Dr. Lang, cannot establish
causation because his opinion is improperly speculative. (Doc. # 83-1 at 27-28). Fifth,
the SHP Defendants argue that SHP is entitled to summary judgment as to Plaintiff’s §
1983 claim (Count One) and negligence claim (Count Three) against the corporation,
because there is insufficient evidence that SHP policies caused the inappropriate or
delayed treatment of inmates. (Doc. # 83-1 at 31). Lastly, the SHP Defendants argue
that they are entitled to summary judgment as to Plaintiff’s claim for punitive damages
against them because there is insufficient evidence of the requisite mental state on the
part of these Defendants. Each argument will be addressed in turn. For the reasons set
forth below, the SHP Defendants’ Motion is granted in part and denied in part.
1.
Qualified immunity does not bar Plaintiff’s claims because the
nurse Defendants’ duties were ministerial in nature.
The SHP Defendants first argue that LPN Debbie Preston, LPN David Ross, and
RN David Watkins are entitled to summary judgment as to each of Plaintiff’s claims
42
against them because qualified immunity shields them from suit.14 (Doc. # 83-1 at 9)
(citing Yanero, 65 S.W.2d at 517). The Court disagrees. Because the duties of the SHP
employees at issue were ministerial in nature, qualified immunity does not bar Plaintiff’s
claims.
Qualified official immunity does not apply when the defendants’ actions at issue
“amounted to ‘ministerial’ duties rather than discretionary duties.” Sours v. Big Sandy
Reg’l Jail Auth., 593 F. App’x 478, 487 (6th Cir. 2014) (finding that immunity did not bar
inmate’s gross negligence claim against facility nurse). Kentucky courts have consistently
found that “[t]he administration of medical care is a ministerial function” and “compliance
with the applicable standard of care does not involve a discretionary governmental
function.” Id. (citing Gould v. O’Bannon, 770 S.W.2d 220, 222 (Ky. 1989)). See also
Osborne v. Aull, No. 2010-CA-1073, 2012 WL 3538276, at *3 (Ky. Ct. App. Aug. 17, 2012)
(affirming trial court’s ruling that facility nurses were not entitled to immunity); Smith v.
Franklin Cty., 227 F. Supp.2d 667, 681-681 n.15 (E.D. Ky. 2002) (noting that the
administration of medical care by nurse is a ministerial function).
Defendants seek to rely on Jerauld ex rel. Robinson v. Kroger, to characterize their
acts as discretionary. 353 S.W.3d 636 (Ky. Ct. App. 2011) [hereinafter Kroger]. The
Kroger plaintiff claimed that a medical staff member, deputy jailer, and psychologist were
negligent following the detainee’s suicide attempt and resultant brain injury. Id. at 639.
The Kentucky Court of Appeals, however, has distinguished the Kroger decision in similar
14
As a corporate entity, “qualified official immunity does not apply to SHP” itself; nor does
governmental immunity. Shadrick v. Hopkins Cty., 805 F.3d 724, 744-45, 750 (6th Cir. 2015) (explaining
that qualified immunity protects individual public officials or employees while governmental immunity
applies to government agencies and entities). The SHP Defendants concede this point. (Doc. # 92 at 2)
(citing Shadrick, 805 F.3d at 749).
43
circumstances and characterized nurses’ application of treatment protocol as ministerial.
See Osborne, 2012 WL 3538276, at *6.
In Osborne, an inmate’s leg was amputated following the nursing staff’s failure to
promptly assess his uncontrolled diabetes symptoms and contact a physician in
compliance with facility protocol. Id. In contrast to Kroger, which involved the defendants’
decisions regarding the inmate’s appropriate level of supervision based on their
observations of his possible suicide risk and the professional judgment of a psychologist,
treatment of the Osborne plaintiff merely required “straightforward” application of “the
nausea and vomiting protocol supposedly in force at the Daviess County jail [which]
required the nurses to contact a physician if the inmate’s symptoms persisted for more
than 24 hours.” Compare Kroger, 353 S.W.3d at 640, with Osborne, 2012 WL 3538276,
at *6. Because the Osborne nurses’ acts involved “straightforward” application of a
treatment protocol, the Kentucky Court of Appeals concluded that they were properly
characterized as ministerial. Id.
Seeking to narrow the application of Osborne, the nurse Defendants here argue
that “[a] ministerial action is one that does not involve any use of personal judgment.”
(Doc. # 92 at 3) (citing Yanero, 65 S.W.3d 510). This is not an accurate statement of the
law. The Kentucky courts have made clear that “[a]n act is not necessarily ‘discretionary’
just because the officer performing it has some discretion with respect to the means or
method to be employed.” Sours, 593 F. App’x 487 (citing Yanero, 65 S.W.3d at 522).
While the protocol was “intended to guide the nursing staff in assessing and treating the
inmates’ medical complaints,” the Osborne court explained that complying with protocol
44
is nonetheless straightforward and ministerial in nature. Osborne, 2012 WL 3538276, at
*1.
The acts of the nurses here are more akin to those in Osborne than in Kroger. The
central inquiry is not the nurses’ supervision of Plaintiff within the facility or the
professional judgment of a psychologist, but rather a straightforward inquiry into their
alleged failure to follow the list of actions required by the SHP Treatment Guidelines. The
nurses in this case admit that they are not qualified to diagnose inmates. Just as in
Osborne, here the nurse Defendants were tasked with conducting an assessment,
observing symptoms, and reporting to a more qualified medical provider pursuant to
SHP’s Treatment Guidelines.
Shawnee Thoman, the representative for SHP, testified that the SHP Treatment
Guidelines deal specifically with stroke symptoms. If a patient presents with sudden
numbness or weakness in the face, arm, or leg, especially on one side of the body, then
the nurse is required to perform a full assessment. None of the nurses provided a full
assessment as set forth in the guidelines, as none of the three nurses documented or
testified that they asked Plaintiff to smile or to repeat a simple phrase while assessing her
for a stroke. However, even the partial evaluations uncovered some symptoms noted in
the SHP Treatment Guidelines. All three nurses were informed or observed that Plaintiff
was experiencing sudden numbness or weakness in one of her legs. RN Thoman testified
that after a stroke assessment as set forth in the SHP Treatment Guidelines, if “one limb
wasn’t operating the same as they other, then, yes, they should call the doctor.” (Doc. #
73-10 at 50). RN Thoman testified that she would have called the doctor in the nurse
Defendants’ positions. Id. at 85, 88-92. Moreover, there is evidence that the nurse
45
Defendants frequently failed to properly chart their assessments of Plaintiff in violation of
SHP protocol.
Further, while the SHP Treatment Guidelines require that upon
observation of any of the stroke symptom signs, the nurse is to act fast and call 911 or
EMS, the record shows that RN Watkins concluded that Plaintiff had stroke symptoms
but failed to call 911 or EMS and sent Plaintiff back to her cell to wait for hours before
finally being transported to the hospital.
Viewed in the light most favorable to Plaintiff, the record reflects a genuine issue
of material fact as to whether the nurse Defendants failed to follow the straightforward
steps of the SHP Treatment Guidelines. Because the nurse Defendants’ compliance with
the applicable standard of care involves a ministerial, rather than discretionary, function,
qualified immunity does not apply. Osborne, 2012 WL 3538276, at *3. Accordingly,
summary judgment as to each of Plaintiff’s claims against Defendants Preston, Watkins,
and Ross on the basis of qualified immunity is denied.
2.
Defendants Preston and Ross are entitled to summary
judgment as to Plaintiff’s § 1983 claim but a genuine issue of
material fact remains whether Defendant Watkins was
deliberately indifferent to Plaintiff’s serious medical needs.
The SHP Defendants next argue that Defendant nurses—Debbie Preston, LPN,
David Ross, LPN, and David Watkins, RN—are entitled to summary judgment as to
Plaintiff’s § 1983 claim (Count One), because Plaintiff has not provided evidence of the
requisite deliberate indifference. As set forth, supra, to demonstrate a violation of her
Eighth Amendment right to medical care, Plaintiff must show that each of the SHP
Defendants acted with “deliberate indifference” to her serious medical needs—satisfying
both the subjective and objective components of the deliberate-indifference test.
Comstock, 273 F.3d at 702. Because deliberate indifference requires a fact-intensive
46
inquiry, the Court will examine the actions of each individual nurse Defendant in turn.
a.
Debbie Preston
Plaintiff’s § 1983 claim fails as to Debbie Preston, LPN, because Plaintiff cannot
meet the subjective prong of the deliberate-indifference test. Preston saw Plaintiff on
three occasions. First, on May 18, 2016, Deputy Adams notified Preston that Plaintiff was
reporting being unable to feel her leg. Preston did not assess Plaintiff at that time. On
May 19, 2016, Plaintiff presented to Preston who noted that Plaintiff “continues to
complain of having a stroke.” Preston did not review prior entries in Plaintiff’s chart or
review the SHP Treatment Guidelines for a stroke; instead, she conducted an
assessment and concluded that Plaintiff’s vitals were normal. Preston observed that
Plaintiff’s hand grasp was equal and adequate, that Plaintiff could lift her arms equally,
had feeling in her reflexes and feet, and appeared alert and oriented. Preston then
performed the Babinski test to check for neurological issues.
Preston incorrectly
interpreted the results, misinterpreting Plaintiff’s response as normal, when it was in fact
abnormal. Based upon this test and Plaintiff’s vitals, Preston concluded that Plaintiff did
not have neurological problems. Finally, on May 20, 2016, Preston assessed Plaintiff
again and noted that Plaintiff was still complaining that she could not feel her leg and that
she fell. Preston further noted that Plaintiff’s right arm curled up at times. Nonetheless,
Preston cleared Plaintiff’s condition.
Based upon these facts, there is a genuine issue of material fact as to whether
LPN Preston acted negligently in her treatment of Plaintiff.
However, evidence of
malpractice or negligence is insufficient under 42 U.S.C. § 1983. Estelle, 429 U.S. at
105-06. Even viewing the facts in the light most favorable to Plaintiff, there is not a
47
genuine dispute of material fact as to whether LPN Preston had the requisite subjective
knowledge about the substantial risk of serious harm Plaintiff faced under the second
prong of the deliberate-indifference test. The evidence shows that Preston incorrectly
interpreted the results of the Babinski test and concluded—wrongly—that the results were
normal. Without more, the evidence does not raise a genuine issue of material fact as to
whether LPN Preston “subjectively perceived facts from which to infer substantial risk to
the prisoner” and then “did in fact draw the inference.” Comstock, 273 F.3d at 703.
Accordingly, summary judgment is appropriate as to Plaintiff’s § 1983 claim against
Debbie Preston.
Plaintiff seeks to rely on Taylor v. Franklin County in support of her claim that
Preston possessed the requisite subjective knowledge. 104 F. App’x 531 (6th Cir. 2004).
However, the Taylor facts are distinguishable; in Taylor, the nurse merely “professed
ignorance” of the plaintiff’s immobility despite observing officers drag him to medical on a
mattress as he lay motionless. Id. at 541. Here, Preston’s state of mind is evidenced not
just by her own testimony, but by external evidence that she unwittingly misapplied the
Babinski test results. A plaintiff must show “more than negligence or the misdiagnosis of
an ailment.” Winkler v. Madison Cty., 893 F.3d 877, 892 (6th Cir. 2018) (citing Comstock,
273 F.3d at 703).
In Winkler, a nurse concluded—wrongly and without eliciting sufficient
information—that the prisoner was suffering from opiate withdrawal; nonetheless, the trial
court found that summary judgment was proper because “[n]othing in the record . . .
support[ed] a conclusion that [the nurse] consciously exposed [plaintiff] to such a risk” of
serious harm. Id. See also Harris v. Kilpatrick, No. 5:05-cv-113, 2007 WL 80939, at *12
48
(W.D. Mich. Jan. 8, 2007) (finding no showing of deliberate indifference when the plaintiff
complained he was having a stroke but the nurse concluded it was a case of the flu
because “a misdiagnosis is evidence of negligence, not a constitutional claim.”).
Here, just as in Winkler, while Preston may have concluded wrongly that Plaintiff
was not suffering from an acute condition, nothing in the record supports a conclusion
that Preston consciously exposed Plaintiff to a risk of serious harm. Plaintiff has therefore
failed to point to evidence that, when taken in the light most favorable to her,
demonstrates that Preston acted with deliberate indifference to Plaintiff’s serious medical
needs. Accordingly, summary judgment as to Plaintiff’s § 1983 claim against Defendant
Debbie Preston is granted.
b.
David Ross
Plaintiff’s § 1983 claim as to David Ross, LPN, likewise fails because Plaintiff
cannot meet the subjective prong of the deliberate-indifference test. Ross saw Plaintiff
on two occasions. On May 18, 2016, Deputy Bullock informed Ross that Plaintiff had
been limping and complained that she could not feel her foot. Just as LPN Preston did,
Ross conducted an evaluation of Plaintiff, found that her vital signs were normal, and
performed and improperly interpreted a Babinski test for neurological issues. Ross
determined that Plaintiff could bear weight on the numb leg and could move her toes.
Further, he observed that Plaintiff did not have facial droop and had normal grip strength.
There is no indication Plaintiff had trouble speaking or demonstrated bizarre behavior in
front of Ross, nor that such symptoms were communicated to him. Noting from Plaintiff’s
intake form that she had back problems, Ross concluded that the numbness in Plaintiff’s
leg was sciatica. He put a note in the physician binder for the doctor to review. Ross told
49
Deputy Bullock to place Plaintiff on medical watch and to call the medical unit if there
were any changes. On May 19, Ross assessed Plaintiff again. He observed Plaintiff
limping while walking, but that did not change his assessment of sciatica as he found that
Plaintiff’s condition had not changed from the day before.
Just as with LPN Preston, here there is not a genuine issue of material fact as to
LPN Ross’s subjective knowledge of a serious risk. Ross concluded—wrongly—based
upon his review of the intake form and his misinterpretation of the Babinski test that
Plaintiff was experiencing sciatica. Ross’s misdiagnosis is evidence of negligence, but it
does not rise to a constitutional claim. Harris, 2007 WL 80939, at *12. While hindsight
shows Ross should have acted sooner or taken different actions, nothing in the record
supports a conclusion that Ross consciously exposed Plaintiff to a risk of serious harm.
Plaintiff argues that she was placed in an isolation cell but not put on medical
watch; however, the evidence does not show that Ross was aware that Deputy Bullock
ignored his instructions to keep an eye on Plaintiff. Likewise, Plaintiff’s reliance on
Shadrick v. Hopkins County is misplaced, as there is not evidence that Ross “actually
drew the inference of a substantial risk of serious harm and recklessly disregarded it.”
805 F.3d 724, 730 (6th Cir. 2015). Plaintiff has therefore failed to point to evidence that,
when taken in the light most favorable to her, demonstrates that Ross acted with
deliberate indifference to Plaintiff’s serious medical needs.
Accordingly, summary
judgment as to Plaintiff’s § 1983 claim against Defendant David Ross is granted.
c.
David Watkins
Plaintiff can demonstrate facts from which a reasonable juror could infer that
Defendant David Watkins, RN, acted with deliberate indifference to her serious medical
50
needs—satisfying both the subjective and objective components of the deliberateindifference test.
Comstock, 273 F.3d at 702.
Watkins assessed Plaintiff on one
occasion, when Corporal Napier transported Plaintiff from the shower at approximately
9:48 p.m. on May 20, 2016.
Watkins, just like Ross and Preston, performed and
improperly interpreted the Babinski test for neurological issues; however, Watkins was
able to recognize that Plaintiff was displaying stroke symptoms. Specifically, RN Watkins
observed that Plaintiff was having trouble speaking, could not raise her arms equally, and
could not write her name accurately. Despite recognizing stroke symptoms, at 10:51 p.m.
on May 20, 2016, Plaintiff was taken back to her isolation cell and placed on medical
watch—in violation of the “act F.A.S.T.” stroke protocol set forth in the SHP Treatment
Guidelines. It was not until 1:47 a.m. on May 21, 2016—approximately three hours after
Corporal Napier transported Plaintiff to the medical unit by wheelchair—that Plaintiff was
taken to St. Elizabeth Grant County Hospital.
First, these facts satisfy the subjective component of the deliberate-indifference
test, showing that Defendant Watkins “subjectively perceived facts from which to infer
substantial risk to the prisoner, that he did in fact draw the inference, and that he then
disregarded that risk.” Comstock, 273 F.3d at 703 (citing Farmer, 511 U.S. at 837).
Unlike Defendants Ross and Preston, Watkins testified that he became aware that
Plaintiff was exhibiting stroke symptoms despite his misinterpretation of the Babinski test.
Furthermore, despite appreciating Plaintiff’s risk, there is evidence that Watkins chose to
return Plaintiff to her isolation cell for more “monitoring” rather than sending her promptly
to a hospital, in violation of the SHP Treatment Guidelines. See Terrance, 286 F.3d at
844 (“[A] prison employee’s two-hour delay in providing medical care to an inmate known
51
to have a serious condition may constitute deliberate indifference.”) (internal citations
omitted); Dominguez, 555 F.3d at 551 (finding the plaintiff demonstrated a disregard for
her serious medical needs when nurse allowed him to return to a cell with no air
conditioning despite knowledge of severity of the plaintiff’s heat-stroke symptoms).
Next, turning to the objective prong of the deliberate-indifference test, the SHP
Defendants argue that summary judgment is appropriate because Plaintiff has not
produced verifying medical evidence establishing that Watkins’ actions caused Plaintiff’s
injuries. (Doc. # 83-1 at 17) (citing Napier v. Madison Cty., 238 F.3d 739, 742 (6th Cir.
2001)). The SHP Defendants argue that Watkins did not assess Plaintiff until after the
expiration of the stroke-treatment window established by Plaintiff’s own expert, Dr. Lang,
and therefore Plaintiff cannot show a detrimental effect from Watkins’s three-hour delay
in seeking treatment. Plaintiff’s expert, Dr. Lang, testified that Plaintiff’s treatment window
for being treated for her stroke with tissue plasminogen activator (tPA) closed on May 18,
2016. (Doc. # 86-2 at 49-58). Accordingly, because Watkins did not assess Plaintiff until
May 20, 2016, the SHP Defendants argue that Plaintiff failed to establish causation
against Watkins with respect to her stroke-related injuries.
Where a deliberate indifference claim is based upon a delay in treatment, in order
to satisfy the objective component the plaintiff generally “must place verifying medical
evidence in the record to establish the detrimental effect of the delay in medical treatment
to succeed.” Napier, 238 F.3d at 743. However, as the SHP Defendants appear to
concede, this requirement applies to claims regarding the adequacy of the delayed
treatment. See (Doc. # 83-1 at 23, 25-26) (citing King v. Alexander, 574 F. App’x 603,
605 (6th Cir. 2014); Santiago v. Ringle, 734 F.3d 585 (6th Cir. 2013) (requiring medical
52
proof when the plaintiff, rather than complaining he received no medical treatment,
instead complained that he was delayed in receiving a specific type of medical treatment).
For example, in King, medical staff provided the inmate with treatment for her severe
burn, and the plaintiff’s claim “stem[med] from the alleged inadequacy of her medical
treatment in jail, not from a complete absence of medical care.” King, 574 F. App’x at
606. As the Sixth Circuit explained in King, adequacy-of-care claims differ from inmates’
claims that they received no care at all, and the latter does not require medical expert
testimony regarding causation. King, 574 F. App’x at 606 (citing Blackmore, 390 F.3d at
899-900) (concluding that medical-expert testimony was not necessary to support a
deliberate-indifference claim where Blackmore received no medical care within a
reasonable timeframe).
In the instant action, Plaintiff’s central claim is that “she received no medical
treatment for her stroke symptoms in the Grant County Jail.” (Doc. # 86 at 41). The nurse
Defendants—particularly Watkins—assessed Plaintiff and sporadically ordered her to be
placed on a medical watch, but provided no treatment, did not reach out to the on-call
physician or nurse practitioner, and did not call EMS despite being required by the SHP
Treatment Guidelines to “act F.A.S.T.” when patients show signs of a stroke. The fact
that Watkins eventually ordered Plaintiff to be transported to a hospital hours after
assessing her does not transform Plaintiff’s cause of action into an adequacy-of-care
claim.
Moreover, medical proof is necessary only “to assess whether the denial of
medical care caused a serious medical injury in cases where the prisoner or pretrial
detainee’s ‘affliction is seemingly minor or non-obvious.’” Estate of Owensby v. City of
53
Cincinnati, 414 F.3d 596, 604 (6th Cir. 2005) (citing Blackmore, 390 F.3d at 899). Where,
as here, Plaintiff’s need for medical care when she presented to Watkins on May 20, 2016
was “so obvious that even a layperson would easily recognize the necessity for a doctor’s
attention,” medical proof is not required. Id. As the Sixth Circuit explained in Blackmore,
“[t]his violation is not premised upon the ‘detrimental effect’ of the delay, but rather that
the delay alone in providing medical care creates a substantial risk of serious harm.”
Blackmore, 390 F.3d at 899.
Here, Plaintiff’s need for medical care was obvious by the time Watkins conducted
his assessment. Watkins observed that Plaintiff was behaving bizarrely and was unable
to speak, write her name, or raise her arms equally; furthermore, Watkins’s review of
Plaintiff’s chart revealed that she had been suffering stroke symptoms since May 18,
2016. Plaintiff need not prove that Watkins’s acts or omissions were the proximate cause
of her injuries in order to satisfy the objective prong of the deliberate-indifference test.
The effect of Watkins’s delay “goes to the extent of the injury, not the existence of a
serious medical condition.” Owensby, 414 F.3d at 604. Plaintiff has therefore alleged
facts which, taken in the light most favorable to her, show that Watkins was deliberately
indifferent to Plaintiff’s serious medical needs. Accordingly, summary judgment as to
Plaintiff’s § 1983 claim against Defendant David Watkins is denied.
3.
While Defendant Watkins is entitled to summary judgment as to
Plaintiff’s state-law medical malpractice claim, Defendant
Preston is not.
The SHP Defendants next argue that Defendants Watkins and Preston are entitled
to summary judgment as to Plaintiff’s state-law medical malpractice claim (Count Two),
because “there is no medical proof linking any action or inaction by them to an injury to
54
the Plaintiff.”15 (Doc. # 92 at 7).
Specifically, the SHP Defendants argue that Preston
and Watkins did not assess Plaintiff until after the expiration of the stroke-treatment
window established by Plaintiff’s expert. Dr. Lang testified that the cause of Plaintiff’s
injuries was LPN Ross’s failure to send her to the hospital on May 18, 2016 at 9:27 p.m.
Defendants argue that, because LPN Preston and RN Watkins did not interact with
Plaintiff until the window for Plaintiff to receive tPA had closed, Plaintiff cannot show
causation.
To establish a prima facie claim for medical malpractice under Kentucky law, “a
plaintiff must introduce evidence, in the form of expert testimony, demonstrating (1) the
standard of care recognized by the medical community as applicable to the particular
defendant, (2) that the defendant departed from that standard, and (3) that the
defendant’s departure was a proximate cause of the plaintiff’s injuries.” Heavrin v. Jones,
No. 02-CA-16-MR, 2003 WL 21673958, at *1 (Ky. Ct. App. July 18, 2003) (citing Reams
v. Stutler, 742 S.W.2d 586 (Ky. 1982)).
Likewise, “[a] plaintiff bringing a medical
negligence claim in Kentucky must establish three elements: breach, causation, and
injury.” Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. Ct. App. 2006). Under either theory,
“expert testimony is generally required to establish causation.” Baylis v. Lourdes Hosp.,
Inc., 805 S.W.2d 122, 124 (Ky. 1991).
a.
Debbie Preston
As to Defendant Preston, the SHP Defendants’ argument fails to recognize that
LPN Preston was first notified of Plaintiff’s symptoms within the window of tPA efficacy.
15
Defendants do not argue that Defendant Ross is entitled to summary judgment on this basis, as
Plaintiff’s expert opined that LPN Ross’s failure to transfer Plaintiff to the hospital on May 18, 2016 at 9:27
p.m. is the cause of Plaintiff’s permanent injuries. (Doc. # 86-2 at 49-58).
55
On May 18, 2016, at approximately 6:15 p.m., Deputy Adams informed LPN Preston that
Plaintiff reported not being able to feel her leg. However, LPN Preston did not assess
Plaintiff at that time. Dr. Lang’s report opines that the SHP Defendants “deviated from
applicable standards of care in recognizing and treating stroke like symptoms and
transporting Ms. Kindoll to a hospital where she could receive appropriate treatment” and
that such “deviation from the standard of care was a direct and proximate/substantial
factor in causing her injuries as a result of her stroke.” (Doc. # 83-9 at 13). Moreover,
Dr. Lang’s report opines that “[i]f Michelle Kindoll had been transferred to the hospital
promptly after [David Ross’s] examination on May 18 at [9:27 p.m.], it is more likely than
not that she would have avoided the severe permanent injury she sustained as a result
of the stroke.” Id. at 14. Because LPN Preston failed to appreciate, during the applicable
treatment window, that Plaintiff’s inability to feel her leg was a stroke symptom, and Dr.
Lang testified that such failure constituted a deviation from the standard of care that was
“a direct and proximate/substantial factor” in causing Plaintiff’s injuries, id. at 13, there
remains a genuine issue of material fact as to the requisite causation. Accordingly,
summary judgment as to Plaintiff’s medical malpractice claim against Defendant Debbie
Preston is denied.
b.
David Watkins
The SHP Defendants’ argument is more applicable to RN Watkins, because he did
not receive notice of Plaintiff’s symptoms until the treatment window had closed. Dr. Lang
testified that even after the treatment window closed, the standard of care still called for
sending Plaintiff to the hospital as soon as possible. (Doc. # 86-2 at 56). However, Dr.
Lang conceded that he does not know if administration of tPA outside of the treatment
56
window specifically would have prevented Plaintiff from suffering the neurological deficits
she incurred as a result of her stroke. Id. Dr. Lang’s report does not indicate any other
treatment outside the window would have prevented Plaintiff’s injuries. Plaintiff’s expert
evidence therefore falls short of the causation requirement under Kentucky law as to
Defendant Watkins.
While Plaintiff’s claims against Defendants Ross and Preston
survive, Watkins is entitled to summary judgment as to Plaintiff’s state-law malpractice
claim against him. Accordingly, summary judgment as to Plaintiff’s medical malpractice
claim against Defendant David Watkins is granted.
4.
The SHP Defendants failed to demonstrate that the causation
opinion of Plaintiff’s expert Dr. Lang is speculative.
The SHP Defendants’ next argument also focuses upon Dr. Lang’s causation
opinion. Defendants argue that Plaintiff cannot demonstrate the requisite element of
causation because the opinion of Plaintiff’s expert, Dr. Lang, is improperly speculative.
(Doc. # 83-1 at 27-28). Defendants point to Dr. Lang’s testimony that tPA treatment would
not likely have “completely reverse[d]” Plaintiff’s stroke symptoms, and there is no
certainty as to what Plaintiff’s response to tPA would have been. See id.
Defendants’ argument mischaracterizes the level of probability an expert opinion
is required to show under Kentucky law. “An expert medical witness is not required to
use the magic words ‘reasonable probability.’” Sakler v. Anesthesiology Assocs., P.S.C.,
50 S.W.3d 210, 213 n.3 (Ky. Ct. App. 2001). The Supreme Court of Kentucky has
explained that “[w]hile evidence of causation must be in terms of probability rather than
mere possibility, we have held that substance should prevail over form and that the total
meaning, rather than a word-by-word construction, should be the focus of the inquiry.”
Baylis, 805 S.W.2d 122, 124 (Ky. 1991).
57
Plaintiff has presented expert testimony that it is more likely than not her
permanent injuries would have been prevented or mitigated if she had been transferred
to the hospital at 9:27 p.m. on May 18, 2016. Dr. Lang, a neurologist, testified that had
Plaintiff been transferred to the hospital within this treatment window, “she would more
likely than not have received tPA” treatment and that, “more likely than not, she would
have been spared her deficits” caused by the stroke. (Doc. # 86-2 at 50-51, 67-69). See
also (Doc. # 83-9 at 14). Viewing the evidence in the light most favorable to Plaintiff, Dr.
Lang’s opinion presents appropriate causation evidence.
Accordingly, summary
judgment on this basis is denied.
5.
SHP is not entitled to summary judgment as to Plaintiff’s § 1983
claim (Count One) and negligence claim (Count Three).
Next, the SHP Defendants argue that SHP is entitled to summary judgment as to
both of Plaintiff’s claims against it. (Doc. # 83-1 at 28-31). SHP contends that (1) there
is no evidence that SHP consciously disregarded a known risk of harm to the Plaintiff; (2)
Plaintiff failed to establish verifying medical evidence showing that SHP’s conduct caused
her harm; and (3) Plaintiff cannot demonstrate that SHP breached its duty to establish
appropriate treatment policies at GCDC because the opinion of Plaintiff’s correctional
health care expert, Lawrence Mendel, DO, should be excluded under Rule 702 of the
Federal Rules of Evidence.16 Id. Each of these arguments fail.
SHP’s argument that it is entitled to summary judgment as to Plaintiff’s negligence
claim because Plaintiff “has failed to establish verifying medical evidence of any harm to
Plaintiff resulting from SHP’s conduct” is unavailing. (Doc. # 83-1 at 28). Dr. Lang’s
16
The SHP Defendants seek to exclude Dr. Mendel in a subsequently-filed Motion, which the Court
will address separately. See (Doc. # 82).
58
report opines that “[i]f Michelle Kindoll had been transferred to the hospital promptly after
[David Ross’s] examination on May 18 at [9:27 p.m.], it is more likely than not that she
would have avoided the severe permanent injury she sustained as a result of the stroke.”
Id. at 14. However, Plaintiff was incorrectly diagnosed by LPN Ross with sciatica—a
diagnosis Ross was unqualified to make. Viewing the evidence in the light most favorable
to Plaintiff, a genuine issue of material fact exists as to whether the lack of any policies
or procedures to rectify the risks identified by the DOJ investigation caused Plaintiff’s
injury.
SHP has also failed to show that it is entitled to summary judgment as to Plaintiff’s
§ 1983 claim. The Court is unconvinced by SHP’s argument that it is entitled to summary
judgment because Plaintiff’s correctional medical expert, Dr. Mendel, should be excluded.
Even if Dr. Mendel’s opinion were found to be inadmissible, Plaintiff has produced
sufficient evidence that, when viewed in the light most favorable to her, supports Plaintiff’s
§ 1983 claim against SHP.
SHP contends that it is entitled to summary judgment as to Plaintiff’s § 1983 claim
because Plaintiff cannot satisfy the subjective prong of the deliberate-intent test and show
that “SHP ‘consciously disregarded’ a known risk of harm to the Plaintiff.” (Doc. # 83-1).
SHP’s argument misapplies the appropriate standard. Plaintiff’s § 1983 claim alleges,
inter alia, that “[t]he rules, regulations, customs, policies and procedure of Grant County,
the Grant County Jailer and SHP were inadequate and unreasonable and were the
moving force behind the constitutional deprivations suffered by Michelle Kindoll.” (Doc.
# 1 at 11).
Thus, Plaintiff’s § 1983 claim against SHP requires application of the
municipal-liability standard, not the two-prong deliberate-indifference test. See, e.g., Horn
59
v. City of Covington, 2018 WL 3865377, at *38 (E.D. Ky. Aug. 14, 2018) (citing Gray v.
City of Detroit, 399 F.3d 612, 617 (6th Cir. 2005)).
“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 purposes of § 1983” and therefore face the same municipal
liability as any other municipal entity. Bartell v. Lohiser, 215 F.3d 550, 556 (6th Cir. 2000).
A private corporation such as SHP, therefore, “may be liable under § 1983 where the risks
from its decision not to train its officers were ‘so obvious’ as to constitute deliberate
indifference to the rights of its citizens.” Gray, 399 F.3d at 617. A violation will occur
when “in light of the duties assigned to specific officers or employees the need for more
or different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the [private corporation] can reasonably be
said to have been deliberately indifferent to the need.” Miller v. Calhoun Cty., 408 F.3d
803, 816-17 (6th Cir. 2005) (citing Pembaur v. City of Cincinnati, 475 U.S. 469 (1986)).
Likewise, as to the adoption of policies, “[e]ven if a municipality has not adopted
an explicitly unconstitutional policy, the municipality may be liable for the failure to make
a policy where one is needed.” Id. (citing Jones. v. City of Chicago, 787 F.2d 200, 204
(7th Cir. 1986)). “It is not sufficient merely to show that a particular [employee] acted
improperly or that better training would have enabled an [employee] to avoid the particular
conduct causing injury.” Id. at *38 (citing Simmons v. City of Philadelphia, 947 F.2d 1042,
1059-70 (3d Cir. 1991)).
The need for additional policies or procedures “to avoid
deprivations of a constitutional right must be so apparent that any reasonable policymaker
or supervisor would have taken appropriate preventive measures.” Id. (citing Jones, 787
60
F.2d at 204.
Plaintiff has produced evidence that, along with Grant County, SHP was put on
notice that the practice of having nursing staff act as gatekeepers to medical care placed
inmates at risk—particularly in the case of acute medical conditions. SHP representatives
met with Jailer Hankins and his subordinates to discuss bringing the facility into
compliance to rectify the constitutional deficiencies in medical treatment identified in the
DOJ investigation. Plaintiff was injured when an unqualified LPN misdiagnosed her acute
condition and barred her from receiving care from a physician—the very risk that was
identified and anticipated by the DOJ. Viewing the evidence in the light most favorable
to Plaintiff, a genuine issue of material fact exists as to whether the lack of any policies
or procedures to rectify the risks identified by the DOJ investigation would obviously lead
to constitutional violations; likewise, a genuine issue of material fact exists as to whether
the need for more or different training was so obvious, and the inadequacy so likely to
result in the violation of constitutional rights, that SHP’s policymakers can reasonably be
said to have been deliberately indifferent to the need.
For the same reason, and as set forth, supra, Plaintiff’s negligence claim against
SHP survives. Viewing the evidence in the light most favorable to Plaintiff, there is a
genuine issue of material fact as to whether SHP breached its duty to establish
appropriate policies and procedures concerning medical treatment at GCDC.
Accordingly, summary judgment as to Plaintiff’s § 1983 claim and negligence claim
against Defendant SHP is denied.
61
6.
Defendants Preston and Ross—but not SHP or Watkins—are
entitled to summary judgment on punitive damages.
Sixth and finally, the SHP Defendants argue that they are entitled to summary
judgment as to Plaintiff’s claim for punitive damages against them because there is
insufficient evidence of the requisite mental state on the part of these Defendants. Under
Kentucky law, “[a] plaintiff shall recover punitive damages only upon proving, by clear and
convincing evidence, that the defendant from whom such damages are sought acted
toward the plaintiff with oppression, fraud or malice.”
Ky. Rev. Stat. § 411.184(2).
Punitive damages may also be awarded where “gross negligence” is shown. Williams v.
Wilson, 972 S.W.2d 260, 262-65 (Ky. 1998). Gross negligence involves a “wanton or
reckless disregard for the safety of other persons.” Kinney v. Butcher, 131 S.W.3d 357,
359 (Ky. Ct. App. 2004). A showing of gross negligence does not require “that the jury
find the defendant to have acted with express malice; rather, it is possible that a certain
course of conduct be so outrageous that malice can be implied from the facts of the
situation.” Id.
The Sixth Circuit has indicated that a finding of deliberate indifference can justify
an award of punitive damages, as “the two standards are ‘consistent,’ . . . and that much
of the evidence bearing on one question bears on the other.” Gibson v. Moskowitz, 523
F.3d 657, 664 (6th Cir. 2008) (finding that “the trial court permissibly delegated the
question of punitive damages to the jury.”). See also Hill v. Marshall, 962 F.2d 1209,
1217 (6th Cir. 1992) (stating that other courts of appeals “have held that the state of mind
that meets the standard of deliberate indifference is sufficient to meet the standard for
punitive damages” and finding that the conduct of the defendant in that case could support
a verdict for punitive damages). Defendant’s assertion therefore “is a harder argument
62
to make now that [the Court has] concluded that [Plaintiff] presented sufficient evidence
to support a finding of deliberate indifference” as to Defendant Watkins. Id.
As set forth supra, Plaintiff’s deliberate-indifference claims as to Defendants
Preston and Ross fail. While there is certainly evidence that Preston and Ross did not
undertake appropriate actions in response to Plaintiff’s condition, there is not clear and
convincing evidence to raise a genuine issue of material fact as to whether Preston or
Ross acted with the requisite “oppression, fraud, or malice.” Ky. Rev. Stat. § 411.184(2).
There is not clear and convincing evidence that either nurse disregarded Plaintiff’s safety;
accordingly, summary judgment as to Plaintiff’s punitive damages claim against
Defendants Debbie Preston and David Ross is granted.
On the other hand, viewing the facts in the light most favorable to Plaintiff, there is
evidence that Defendant Watkins as well as SHP acted with the requisite mental state.
As to Defendants Watkins and SHP, therefore, “the Court will determine whether a
punitive damages instruction should be submitted to the jury after hearing all the
evidence.” Finn v. Warren Cty, 1:10-cv-16, 2013 WL 3786634, at *5 (W.D. Ky. July 18,
2013). Accordingly, summary judgment as to Plaintiff’s punitive damages claim against
Defendants SHP and David Watkins is denied.
III.
CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)
The County Defendants’ Motion for Summary Judgment (Doc. # 62) is
granted in part and denied in part. Specifically,
(a)
The County Defendants’ Motion for Summary Judgment as to all
claims against Defendants Dedi Adams, Jessica Helton, and Whitney Jett is denied as
63
moot in light of the Court’s August 7, 2018 Order dismissing all claims against these
Defendants without prejudice (Doc. # 75);
(b)
The County Defendants’ Motion for Summary Judgment as to
Plaintiff’s claim under 42 U.S.C. § 1983 against Defendants Audra Napier, Tammy
Bullock, Christopher Hankins, and John and Jane Doe, in their official capacities, is
hereby granted as unopposed;
(c)
The County Defendants’ Motion for Summary Judgment as to all
remaining claims against John and Jane Doe is hereby granted;
(d)
The County Defendants’ Motion for Summary Judgment as to
Plaintiff’s claim under 42 U.S.C. § 1983 against Grant County is hereby denied;
(e)
The County Defendants’ Motion for Summary Judgment as to
Plaintiff’s claim under 42 U.S.C. § 1983 against Defendants Audra Napier, Tammy
Bullock, and Christopher Hankins, in their individual capacities, is hereby denied; and
(f)
The County Defendants’ Motion for Summary Judgment as to
Plaintiff’s negligence claim against Defendants Audra Napier and Tammy Bullock is
hereby denied.
(2)
The SHP Defendants’ Motion to Strike (Doc. # 79) is denied.
(3)
The SHP Defendants’ Motion for Summary Judgment (Doc. # 83) is
granted in part and denied in part. Specifically,
(a)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
claim under 42 U.S.C. § 1983 against Defendant David Watkins is hereby denied;
(b)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
claim under 42 U.S.C. § 1983 against Defendants Debbie Preston and David Ross is
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hereby granted;
(c)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
medical-malpractice claim against Defendant Debbie Preston is hereby denied;
(d)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
medical-malpractice claim against Defendant David Watkins is hereby granted;
(e)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
claim under 42 U.S.C. § 1983 against Defendant Southern Health Partners, Inc. is hereby
denied;
(f)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
negligence claim against Defendant Southern Health Partners, Inc. is hereby denied;
(g)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
punitive-damages claim against Defendants Debbie Preston and David Ross is hereby
granted; and
(h)
The SHP Defendants’ Motion for Summary Judgment as to Plaintiff’s
punitive-damages claim against Defendants David Watkins and Southern Health
Partners, Inc. is hereby denied.
(4)
Within twenty (20) days from the date of entry of this Memorandum Opinion
and Order, the remaining parties—Defendants Grant County, Audra Napier, Tammy
Bullock, Christopher Hankins, Southern Health Partners, Inc., David Watkins, Debbie
Preston, and David Ross—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.
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This 28th day of March, 2019.
L:\DATA\Opinions\Covington\2017\17-84 Kindoll MSJ MOO.docx
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