Stivers v. Shelby County, Kentucky et al

Filing 43

MEMORANDUM OPINION & ORDER: 1. The Motion for Summary Judgment filed by Southern Health Partners, Inc., and Dr. Ron Waldridge [R. 34] is GRANTED; 2. The Motion for Summary Judgment filed by the Shelby County Defendants [R. 36] is also GRANTED. 3. The Shelby County Defendants' Motion to Strike the Plaintiff's Response [R. 41] is DENIED AS MOOT; and 4. Final judgment shall be entered contemporaneously herewith. Signed by Judge Gregory F. VanTatenhove on 1/30/2017.(AKR)cc: COR, paper copy to plaintiff via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
CHARLES STIVERS,
Plaintiff,
v.
SHELBY COUNTY, KENTUCKY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil No. 15-45-GFVT

MEMORANDUM OPINION
&
ORDER

*** *** *** ***
In 2014, Charles Stivers spent ninety days in the Shelby County Detention Center on a
shoplifting charge. While serving his sentence, Stivers fell off of a metal shelf in his cell and
injured his left foot. He subsequently obtained counsel and filed a civil lawsuit against a number
of Defendants, alleging a violation of the Eighth Amendment as well as various pendant state
law claims. Mr. Stivers is now proceeding pro se, and he has filed a response in opposition to
the Defendants’ two pending motions for summary judgment. Because there is no evidence that
any of the Defendants acted with deliberate indifference towards Stivers, the motions for
summary judgment will be GRANTED.
I
A
The following facts have been gleaned from Mr. Stivers’s initial complaint [R. 1] and his
response in opposition to the Defendants’ two summary judgment motions.1 [R. 39.] During the

1

Many additional facts are set forth in the Defendants’ motions for summary judgment and Stivers’s

summer of 2014, Charles Stivers served a ninety-day sentence in the Shelby County Detention
Center. On July 15, 2014, Stivers and a fellow inmate in an adjoining cell notified jail officials
that they were cold. [See R. 39 at 1.] This was a particular problem for Stivers, who claims he
suffers from medical conditions such as arthritis and neuropathy that are “exacerbated” in cold
climates. [Id.] When Stivers and his fellow inmate were denied “additional blankets and/or any
form of assistance,” Stivers climbed up on a small metal shelving unit and attempted to close an
open air vent. [Id.] Unfortunately for Stivers, the shelving unit collapsed beneath his weight and
he fell to the ground, injuring his left foot.2 [Id.] His foot ultimately proved to be fractured. [R.
1 at 6.]
The complaint Stivers filed through counsel alleges an Eighth Amendment claim for
deliberate indifference based on the fact that Stivers was not taken to see a doctor for his foot
injury until July 22, 2014, and because certain medical professionals were unavailable when
needed. [Id.] By contrast, Stivers’s pro se response brief3 suggests any Eighth Amendment
violation stems not from the way his foot fracture was treated, but from the cold conditions in his
jail cell as well as his alleged removal from the medical unit to the jail’s general population on

deposition testimony, but the Court recounts here only what is necessary to resolve the two pending
motions.
2
The record indicates that, rather than fall one time in his jail cell on July 15, 2014, Mr. Stivers actually
fell three times during a twenty-four hour period. The first fall occurred on July 14, 2014, when Stivers
was in the shower. Stivers indicates that he fell out of the shower when he bent down to pick up his soap
and a cup he had left on the floor. [R. 35 at 23.] The next fall occurred on July 15, while Stivers was
unpacking his commissary supplies in cell 310. [Id. at 42.] Stivers purportedly dropped a plastic cup and
tripped on it. [Id.] Then, also on July 15, Stivers fell off the shelving unit while trying to close an air
vent as described above. [Id. at 24-25.] In Stivers’s deposition, he testified that the only fall forming the
basis for his initial complaint was the July 15 fall off the shelving unit. [Id. at 38.]
3
In January 2016, Stivers’s counsel moved to withdraw, stating that Stivers would not take his advice and
that communication issues had caused a breakdown in the attorney-client relationship. [R. 24.] United
States Magistrate Judge Edward B. Atkins granted the motion to withdraw [R. 26] and ultimately also
granted Stivers’s request to represent himself going forward. [R. 30.]

2

July 3, 2014. [See R. 39 at 2, 4, 5.] Defendants Southern Health Partners, Inc., and Dr. Ron
Waldridge filed one motion for summary judgment [R. 34], and the remaining Defendants—
referred to herein as “the Shelby County Defendants”—filed another. [R. 36.]
B
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate where the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. A fact’s materiality is
determined by the substantive law, and a dispute is genuine if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986).
Summary judgment is inappropriate where there is a genuine conflict “in the evidence,
with affirmative support on both sides, and where the question is which witness to believe.”
Dawson v. Dorman, 528 F. App’x 450, 452 (6th Cir. 2013). “Credibility determinations, the
weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge. . . . The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Morales v. American Honda Motor Co., Inc.,
71 F.3d 531, 535 (6th Cir. 1995) (quoting Liberty Lobby, 477 U.S. at 255).
II
The Court notes at the outset that Mr. Stivers’s response in opposition to the Defendants’
summary judgment motions is untimely. Though the Court generally applies less stringent
standards to evaluate a pro se plaintiff’s filings, the Sixth Circuit has noted that “[w]here, for
example, a pro se litigant fails to comply with an easily understood court-imposed deadline,
3

there is no basis for treating that party more generously than a represented litigant.” Pilgrim v.
Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). In this case, Mr. Stivers failed to respond to either
of the motions for summary judgment within the time allotted by Local Rule 7.1. The Court then
issued an order directing Stivers to show cause within twenty days why the action should not be
dismissed for failure to prosecute. [R. 38.] Stivers again failed to respond within the appropriate
timeframe, instead filing a response brief three days after the Court’s deadline which includes no
explanation for his repeatedly dilatory behavior. [R. 39.]
Although Stivers’s response is untimely, the Court recognizes its duty to liberally
construe pro se plaintiffs’ filings and, out of an abundance of caution, has considered the merits
of Mr. Stivers’s arguments. See, e.g., Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999). For
the reasons that follow, even if Stivers’s response was not untimely, summary judgment should
still be entered in favor of the Defendants.
First, Mr. Stivers wholly failed to respond to any of the Defendants’ arguments regarding
his claims for negligence, gross negligence, outrage, intentional infliction of emotional distress,
or assault and battery. [Compare R. 39 with R. 1.] Accordingly, Stivers is deemed to have
waived any opposition to the Defendants’ arguments on those counts. See Humphrey v. U.S.
Attorney General’s Office, 279 F. App’x 328, 331 (6th Cir. 2008) (noting that a plaintiff’s failure
to oppose arguments raised in defendants’ motion is grounds for a district court to assume that
opposition to the motion is waived).
Mr. Stivers does address his Eighth Amendment deliberate indifference cause of action in
his response brief, but he does so in an interesting way. As noted above, there is a discrepancy
between the theory set forth in Stivers’s complaint—that the Defendants were deliberately
indifferent to Stivers in their treatment of his July 15 fall and foot fracture—and the theory
4

presented by Stivers in his response brief. Stivers’s response indicates as follows:
[T]he purported deprivation arises not out of the inadequate medical care received
by the Plaintiff while incarcerated but rather can be more broadly defined by the
indifference shown by officials at the jail and their seemingly arbitrary and
capricious removal of Mr. Stivers from within the medical unit which was both
the actual and proximate cause of his injury in that but for Mr. Stivers being
removed from the medical unit on or about July 3, 2014 he would have
necessarily not found himself housed in the general population and thereby would
not have been subject to the cold conditions within his cell that necessarily
precipitated his fall on or about July 15, 2014.
[R. 39 at 2.] The response goes on to explain:
In short, the analysis of the Plaintiff’s Eight[h] Amendment deprivation claim
turns not upon the sufficiency of the medical treatment he received following his
sustaining injury but whether or not the staff was deliberately indifferent in both
removing him from the medical unit on or about July 3, 2014 without sufficient
cause despite being patently aware of his ongoing medical conditions and whether
such indifferent was ongoing insofar as on July 15, 2014 when being asked by
both Mr. Stivers and a fellow inmate within an adjoining cell to either provide
additional blankets and/or alternatively lessen the flow of cool air into the cell all
such requests were summarily denied by the staff of the detention center thereby,
prompting Mr. Stivers to undertake closure of the vent during the course of which
he sustained the injuries at issue in this case.
[Id. at 2-3.]
This shift in theory is puzzling, particularly in light of Stivers’s deposition testimony.
During his December 2015 deposition, Stivers plainly testified that the crux of his complaint was
that he should have received different medical treatment for his foot injury. [R. 35 at 37.] He
mentioned nothing about the Defendants’ failure to provide blankets or change the temperature
of his cell in connection with his Eighth Amendment claim. [See id. at 1-55.] And he did not
declare or otherwise insinuate that he wished to sue the Defendants because of their failure to
house him in a medical cell. [Id.] In light of the language of the complaint and Stivers’s lengthy
deposition testimony, his response to the Defendants’ summary judgment motions appears to be
either an attempt to raise new claims or to significantly modify his existing ones.
5

The Sixth Circuit has repeatedly found that a non-moving plaintiff may not raise new
claims for the first time in response to an opposing party’s summary judgment motion. See
Tucker v. Union of Needletrades, Ind. & Textile Employees, 407 F.3d 784, 788 (6th Cir. 2005);
see also Desparois v. Perrysburg Exempted Village School District, 455 F. App’x 659, 666 (6th
Cir. 2012) (“[A] plaintiff may not expand his claims to assert new theories for the first time in
response to a summary judgment motion.”). Allowing a plaintiff to do so would “subject
defendants to unfair surprise.” Tucker, 407 F.3d at 788 (citing Guiffre v. Local Lodge No. 1124,
940 F.2d 660 (6th Cir. 1991) (refusing to hear claims raised for the first time in response to a
summary judgment motion, because “the defendants had no opportunity to investigate them
when they conducted their own discovery”)). Accordingly, the appropriate avenue for a nonmoving plaintiff to bring any new allegations before the Court at the summary judgment stage is
a motion to amend the complaint. See Desparois, 455 F. App’x at 666.
Stivers’s response does contain a brief request to amend his complaint to bring it into
conformity with his new theories. [See R. 39 at 5 (arguing he “should be afforded an opportunity
to amend his complaint to more accurately reflect the true nature of his claims with particularly
specificity concerning the purported deprivation of his constitutional rights”). However, the
Court need not grant his request to amend. Pursuant to Federal Rule of Civil Procedure 15(a),
motions for leave to amend should be freely granted so long as there is not (1) undue delay; (2)
bad faith; (3) undue prejudice to the opposing party; or (4) futility of amendment. See Foman v.
Davis, 371 U.S. 178, 182 (1962). In this circumstance, the Court arguably risks undue delay,
undue prejudice to the Defendants, and futility of amendment if Stivers’s passing request to
amend were to be granted.
As for the timing of the request to amend, Stivers first filed this lawsuit in July 2015. [R.
6

1.] A scheduling order was issued in August 2015, which required Mr. Stivers to file any
motions for leave to amend his complaint by December 1, 2015. [See R. 12 at 3.] In light of
this, the request to amend is more than one year delayed. Further, the facts which form the basis
of Stivers’s new allegations and/or theories were known to him at the time the original complaint
was filed. This is not a situation where Stivers was somehow prevented from alleging his new
claims until recently. Instead, he knew about them at the time the complaint was filed and when
his deposition was taken. The Court does not know why he refused to raise the ideas until now,
but that refusal constitutes an undue delay. See Sherman v. Ludington, 969 F.2d 1216 (6th Cir.
1992) (explaining that a district court need not allow a plaintiff to amend his complaint at the
summary judgment stage when the facts forming the basis for any new claims were “known to
him from the time the original complaint was filed and should have been apparent from the
outset.”).
Moreover, allowing Stivers to amend his complaint after the close of discovery and on
the basis of a late-filed response brief would potentially cause undue prejudice to the Defendants,
who have been subject to this litigation now for quite some time. And Stivers’s amendments
would also likely be futile. While Stivers did not submit a proposed amended complaint, his
response brief hints at the new allegations. Significantly, Stivers has not presented any
evidentiary support for his Eighth Amendment allegations under either the theory espoused in his
initial complaint or the new theories set forth in his response brief. To succeed on an Eighth
Amendment claim for deliberate indifference to serious medical needs, a plaintiff must prove
more than mere negligence on behalf of prison authorities. Brooks v. Celeste, 39 F.3d 125, 127
(6th Cir. 1994); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976). Instead, a prison official
will be liable only when he or she “knows of and disregards an excessive risk to inmate health or
7

safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Put another way, “the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id.
Throughout the duration of this lawsuit, Mr. Stivers simply has presented no evidence
demonstrating the merits of his claims. While he testified in his deposition that he suffers from
peripheral neuropathy and arthritis [R. 35 at 6, 16], he has put forth no proof that either of those
chronic illnesses posed an “excessive risk” to his health or safety that any of the Defendants
intentionally disregarded. See Farmer, 511 U.S. at 837. He never mentions the applicability of
the qualified immunity defense, to which numerous Defendants contend they are entitled. [See
R. 36-1 at 10-12.] On the whole, Stivers has simply failed to present any evidence at all
rebutting the arguments set forth in the Defendants’ two summary judgment motions.
Ultimately, while the Court must apply “less stringent standards” when determining
whether pro se pleadings state a claim upon which relief may be granted, “pro se plaintiffs are
not automatically entitled to take every case to trial.” Pilgrim, 92 F.3d at 416. The Sixth Circuit
has made clear that “the lenient treatment generally accorded to pro se litigants has limits.” Id.
(citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). In this case, Mr. Stivers has reached
the limits. He initially failed to respond to the summary judgment motions altogether and, upon
response, asserts theories never presented in the complaint or throughout discovery. Based on
the evidence in the record, no genuine issues of material fact exist, and the Defendants are
entitled to summary judgment.
III
Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED
as follows:
8

1. The Motion for Summary Judgment filed by Southern Health Partners, Inc., and Dr. Ron
Waldridge [R. 34] is GRANTED;
2. The Motion for Summary Judgment filed by the Shelby County Defendants [R. 36] is
also GRANTED;
3. The Shelby County Defendants’ Motion to Strike the Plaintiff’s Response [R. 41] is
DENIED AS MOOT; and
4. Final judgment shall be entered contemporaneously herewith.
This the 30th day of January, 2017.

9