Winkler v. Madison County, Kentucky et al
MEMORANDUM OPINION & ORDER: (1) 42 U.S.C. § 1983 claim against all Defendants are DISMISSED WITH PREJUDICE; (2) state law claims against all Defendants are DISMISSED WITHOUT PREJUDICE; (3) All remaining motions are DENIED as MOOT; (4) A separate Judgment will be entered contemporaneously with this Opinion andOrder; and (5) This matter shall be STRICKEN from the Courts active docket. Signed by Judge Karen K. Caldwell on 8/18/2017.(STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CHAROLETTE DIANA WINKLER,
Administratrix of the Estate of Brandon
MEMORANDUM OPINION AND
MADISON COUNTY, KENTUCKY, et. al.,
On April 30, 2014, Brandon Clint Hacker was arrested and transported to the
Madison County Detention Center (the “Detention Center”) where he was booked and placed
into the general population. He died of a perforated duodenal ulcer five days later. This case
is about what unfolded in those five days while Hacker was incarcerated. The question is
whether deliberate indifference, negligence, or both caused Hacker’s death.
Charolette Diana Winkler, Hacker’s mother and Administratrix of his Estate, seeks
to hold Madison County, certain jail personnel, Advanced Correctional Healthcare, Inc.
(“ACH”), and certain ACH medical providers liable for Hacker’s death. Winkler filed suit
under 42 U.S.C. § 1983, alleging that the defendants violated Hacker’s constitutional right
to adequate medical care. Winkler also alleges claims of negligence, gross negligence,
outrage, wrongful death, and negligence per se. Because she cannot establish that the
defendants were deliberately indifferent to a serious medical need, Winkler’s constitutional
claim against each defendant will be dismissed and the defendants’ motions for summary
(DE 154; DE 155) will be granted as to that claim. Winkler’s state law claims will be
dismissed without prejudice so that they may be brought again and properly considered by
the state court.
Madison County operates the Detention Center, which is located in Richmond,
Kentucky. Madison County, through Jailer Doug Thomas, contracted with ACH to provide
medical care to inmates and pretrial detainees housed at the Detention Center. (DE 155-4,
Agreement for Inmate Health Services). ACH contracted Dr. Nadir H. Al-Shami to be the
staff physician responsible for medical care at the Detention Center. Dr. Al-Shami’s duties
included “on-site inmate medical care and treatment, case management and documentation,
24/7 physician call, and supervision of on-site medical staff.” (DE 155-6, Work for Hire
Agreement ¶ 1). Dr. Al-Shami, as “site physician,” would come to the jail once a week to
examine inmates, (DE 155-7, Al-Shami Depo. p. 73, ¶¶ 10–15), and otherwise be on call
twenty-four hours a day. Dr. Al-Shami lived in Louisville, Kentucky and would not visit the
jail every day. When Dr. Al-Shami was not present at the Detention Center, he or Layla
Troutman, a nurse practitioner who lived in Los Angeles, were available by phone. (DE 1556, Work for Hire Agreement ¶ 1).
ACH also provided on-site nursing coverage for the Detention Center through Arlene
Johnson, a licensed practical nurse. Nurse Johnson worked forty hours per week, typically
leaving the jail between 4:00 p.m. and 4:30 p.m. each day, and did not work on the weekends.
(DE 160-5, Agreement for Inmate Health Services; DE 160-7, Johnson Depo. p. 62, ¶ ¶ 8–15).
Nurse Johnson did not create orders or treatment plans for inmates, but relied upon the
orders and directives initiated by the medicals providers with whom she worked. Dr. AlShami, Nurse Troutman, and Nurse Johnson are the only three medical professionals who
provided medical services at the Detention Center relevant to this case.
Pursuant to the Detention Center’s policy, inmates notified jail personnel of their
medical needs by filling out sick call request forms. (DE 160-28, MCDC Policy and Procedure
Manual, 800-3). The deputy jailer on duty would take the sick call forms when on rounds and
leave them for Nurse Johnson. Nurse Johnson would then pick up the sick call slips and have
the inmates brought to the medical office for examination. (DE 160-7, Johnson Depo. pp. 105–
06). During these examinations, Nurse Johnson, “depend[ing] on the circumstances of the
complaints,” would gather pertinent medical information, which she would relay to a
physician or another medical professional with the ability to treat the inmate. (Id. pp. 106–
07). Because Dr. Al-Shami was not often on-site, Nurse Johnson would place a call to Dr. AlShami on a Detention Center telephone and take down any orders she received from him. If
Dr. Al-Shami did not respond to her call, Nurse Johnson would attempt to call another
medical provider, often Nurse Troutman. Nurse Johnson would then follow whatever order
she received from the medical provider. Only practitioners created individual orders for
The deputy jailers at the Detention Center also had the authority to call ACH medical
providers, (DE 154-4, Jones Depo. p. 40), and were duty bound to follow the medical staff’s
instructions regarding inmate treatment. (DE 160-28, MCDC Policy and Procedure Manual
800-4). It is undisputed that the jailers also had the authority to send an inmate to the
hospital for treatment without any orders or approval from ACH physicians or staff. (DE 16028, MCDC Policy and Procedure Manual, 800-4) (“Emergency medical services are available
24 hours a day to inmates to ensure prompt emergency medical attention. All officers are
trained to respond to medical emergencies since and [sic] inmate’s life may depend on
This was the system that was in place when Brandon Hacker arrived at the Detention
Center on April 30, 2014.
That day Hacker was arrested for failure to appear at a show cause hearing relating
to his non-payment of child support. (DE 154-2, Order of Arrest). He was transported to the
Detention Center, where upon his arrival, he was processed by Captain Tom Jones. As part
of the booking process, Captain Jones conducted a medical screening, where he asked Hacker
a series of health-related questions based on what was called the “Standard Medical
Questions” sheet. It included the following questions: “Have you ingested dangerous levels of
drugs or alcohol?” “Have you ever experienced DTS or other serious withdrawal from drugs
or alcohol?” “Do you have a serious medical condition that may require attention while you
are here?” To these questions, Hacker answered “No.” (DE 154-5, Standard Medical
Questionnaire). The only question to which Hacker answered in the affirmative was whether
or not he had allergies. He answered that he was allergic to Augmentin. (Id.). Hacker was
placed into cell number 23, a general population cell with other inmates.
For two days, Hacker made no medical complaints. That changed on Friday, May 2,
when Hacker submitted his first sick call request. When prompted by the form to explain
why he wished to be seen, Hacker wrote “very sick, stomach meds.” (DE 160-11, Sick Call
Request Form). At approximately 1:50 p.m., he was seen by Nurse Johnson. (DE 160-12,
Hacker Progress Note). The medical progress note completed by Nurse Johnson shows that
Hacker described his symptoms as “shaky, chills, upset stomach.” (Id.). Nurse Johnson took
While not raised by any party, because this action is brought on Hacker’s behalf by his estate, the Court finds
that statements made by Hacker to be admissible as admissions by a party opponent. Fed. R. Evid. 801(d)(2);
Estate of Shafer v. Comm’r of Internal Revenue, 749 F.2d 1217, 1220 (6th Cir. 1984) (“Since Arthur, through his
estate, is a party to this action, his statements are a classic example of an admission.”) (internal citation and
quotation marks omitted). Moreover, statements made by Hacker also could be considered under Fed. R. Evid.
807 and, in any event, it is possible that Hacker’s statements would be admissible for a reason other than the
truth of the matter asserted, such as his state of mind. The Court notes that even if the statements were stricken,
their absence from the summary judgment record would not be outcome determinative.
Hacker’s vitals and noted that Hacker displayed “active tremors, body aches, [and that he
was] sweaty.” (Id.). Nurse Johnson did not perform a physical examination on Hacker. (DE
154-8, Johnson Depo. p. 128 ¶ 12) (“I don’t do physical examinations.”). Nurse Johnson
testified that during the examination Hacker told her he was withdrawing from heroin. (DE
160-7, Johnson Depo. p. 123 ¶ 8) (“He said he’s withdrawing from heroin.”). Hacker’s medical
history form presents the same. (DE 155-20, May 2, 2014 Medical History Form) (Under
“other medical complaints,” “yes” is circled next to a description “w/d from heroin.”). Both
facts were undisclosed until Hacker sought treatment from Nurse Johnson. Nurse Johnson,
however, did not document the amount, frequency, or Hacker’s last use of heroin.
Nurse Johnson then attempted to reach Dr. Al-Shami to receive the treatment plan.
After twice failing to reach him, Nurse Johnson called Nurse Troutman. (DE 154-8, Johnson
Depo. p. 128 ¶¶ 24–25). Nurse Johnson discussed her observations with Nurse Troutman
over the phone. The medical progress note reflects that Nurse Troutman assessed the
information provided and concluded that Hacker was suffering from “possible [withdrawal]
from heroin.” (DE 160-12, Medical Progress Note; DE 154-8, Johnson Depo. p. 128 ¶ 25).
Nurse Troutman then prescribed Hacker Clonidine, Vistaril, and Bentyl. (DE 160-12,
Medical Progress Note). Nurse Johnson recorded the treatment plan in the medical progress
note and ordered the medications as Nurse Troutman instructed. Nurse Troutman did not
order an opiate withdrawal screening, nor did Nurse Johnson generate a “Detox Flow Sheet”
as required by ACH protocol. Hacker was returned to his cell in the general population and
instructed to follow up as needed.
Nurse Johnson then left for the weekend. As was protocol, a deputy jailer “packed”
the medications for the prisoners for the weekend. When “packing” medications for the
weekend, deputy jailers referred to the “MAR” book nurses filled out to determine which
medications and the amount of those medications needed to go to the inmates. On this
particular weekend, the task was left to Deputy Whitney Bratcher. (DE 160-16, Bratcher
Depo. p. 35 ¶ 21). Deputy Bratcher testified that she “packed” Hacker’s prescribed
medications, but that the task of handing the medications to Hacker was left to a male jailer,
Captain Keith Trickler. (DE 160-16, Bratcher Dep. pp. 34–36).
Hacker did not fill out any sick call requests on Saturday, May 3, nor does the record
reflect that any staff members at the Detention Center generated any reports documenting
that Hacker requested care that day. The record does provide some context for Hacker’s
condition that day, though.
A neighboring inmate, Steven Denny, testified about his observations of Hacker on
Saturday, May 3. Denny, a lifelong friend of Hacker, said that he had to help Hacker up the
steps to the visitation room because of Hacker “didn’t feel good.” (DE 160-17, Denny Depo. p.
17 ¶ 13). Denny also testified that he spoke to Hacker about “heroin and ulcers and what
[Hacker was] going to do” while “guid[ing] him by his arm and help[ing] him up the steps.”
(DE 160-17, Denny Depo. p. 15 ¶¶ 7–24). Denny thought Hacker had ulcers because he had
previously heard Hacker and his girlfriend, Tiffany Gibson, argue about it. (DE 160-17,
Denny. Depo. p. 18). To Denny, Hacker “just looked sick” and Denny was worried about his
friend’s health. (DE 160-17, Denny Depo. p. 17 ¶ 22). There is no indication that Denny or
Hacker informed ACH staff or Detention Center staff about the possibility that Hacker
suffered from ulcers.
With Denny’s assistance, Hacker reached the visitation room to meet with James
Potter, another friend. Hacker and Potter met at the visitation room on Saturday evening.
Potter testified that Hacker’s face looked “greasy” and that Hacker “was just tired” (DE 1603, Potter Depo. p. 79) and that Hacker exhibited abdominal pain. (DE 154-10, Potter Depo.
p. 80). Potter also testified that when he asked Hacker how he was feeling, Hacker responded
“I had to take the detox medicine.” (DE 154-10, Potter Depo. p. 33).
The next day, Hacker had two interactions with Detention Center jailers concerning
his need for medical attention. Around 1:00 p.m. on Sunday, Deputy Jeremy LaGrange, a
floor deputy on duty that day, observed Hacker “trying to get [the staff’s] attention at the
door” of his cell. (DE 154-12, LaGrange Depo. p. 61 ¶¶ 14-15). Hacker told Deputy LaGrange
that “he couldn’t keep anything down” and “he thought he was going to be dope sick.” (DE
154-12, LaGrange Depo. p. 62 ¶ 13). Deputy LaGrange took Hacker out of the cell and walked
him down to booking for further evaluation.
Once at booking, Captain Jones ordered Deputy LaGrange to contact Dr. Al-Shami
because, with it being the weekend, no medical provider was on-site. (DE 154-13, LaGrange
Incident Report). The Incident Report filed from that day indicated that Deputy LaGrange
contacted Dr. Al-Shami and that Dr. Al-Shami prescribed three medications: Vistaril, Bentyl,
and Phenergan. (DE 160-20, LaGrange Incident Report). Deputy LaGrange also noted that
Hacker’s blood pressure was 110/70—a normal reading—so no blood pressure medication was
given to Hacker at that point. (DE 160-21, LaGrange Incident Report).
A few hours later, at approximately 3:00 p.m., Hacker was seen again by Captain
Jones after making a verbal complaint. (DE 160-10, Jones Depo. p. 37 ¶¶ 16–18). The Incident
Report states that Hacker “thought he was bleeding internally due to the pain.” (DE 160-21,
Jones Incident Report). Captain Jones immediately called Dr. Al-Shami for instruction. Dr.
Al-Shami instructed Captain Jones to “monitor” Hacker, but did not change his treatment
plan because “internal bleeding would not cause pain.” (DE 154-13, Incident Report; 160-21,
Jones Incident Report). Hacker was placed back into his cell in the general population with
those instructions. Dr. Al-Shami provided no other instructions to Captain Jones. Captain
Corey Dunning replaced Captain Jones on the overnight shift between Sunday and Monday
The record shows that Hacker filled out a second sick call request form, which was
dated on Sunday, May 4. The parties do not dispute its existence, but neither the parties nor
the record indicate definitively when the form was completed or to whom, if anyone, it was
given. The form states that Hacker wanted to be seen because of “his blood pressure” and
that he “need[ed] to [be] see[n] A.S.A.P. Having Trouble Breathing. Stomach Problems.” (DE
160-18, Sick Call Request Form). Deputy LaGrange testified that he was unaware of a sick
call report on file at the time he interacted with Hacker. (DE 154-12, LaGrange Depo. p. 62
¶¶ 18–19) (“Not to me. Whether he did [fill out a form] or not, I don’t know.”). Rather, Deputy
LaGrange responded to Hacker solely because Hacker called for his attention while he was
on duty. Consistent with Deputy LaGrange’s telling, Dr. Al-Shami testified that Deputy
LaGrange did not mention Hacker’s complaint of breathing trouble when the two spoke on
the phone. Hacker’s treatment plan, he testified, was based only on what Deputy LaGrange
told him. (DE 155-7, Al-Shami Depo. p. 132).
Hacker made several phone calls that Sunday, all to his grandmother, Helen Hacker.
Though the record includes no time log of the calls, Ms. Hacker testified that Hacker called
her in the afternoon and in the evening. (DE 160-2, Hacker Depo. p. 15). She stated that, in
all of the calls, he complained of stomach pain and told her that he wanted to go to the
hospital. (DE 160-2, Hacker Depo. p. 16). Ms. Hacker called the detention center herself to
let the staff know of her concerns. According to Ms. Hacker, someone at the jail listened to
her concerns and assured her Hacker was being monitored. (DE 160-2, Hacker Depo. p. 20 ¶
24). Ms. Hacker was unsure of who answered the phone.
Around 3:00 a.m. on Monday, May 5, 2014, Captain Keith Trickler saw Hacker while
passing out the inmates’ medication. At the time he first saw Hacker, Captain Trickler did
not know why Hacker had to take the medication. (DE 160-23, Trickler Depo. p. 41). It was
only after Captain Trickler gave Hacker his medication (Id. at 42) that Hacker “[s]aid his
stomach was upset, said that he had been doing drugs for quite a while, and he just said that
he was really, really dope sick.” (Id. at pp. 61 ¶ 24 – 62 ¶ 1). Captain Trickler’s investigation
report, written later that day, also described the interaction:
On the date of May 5, 2014 on or about the time of 03:00 to 03:20, I Captain
Keith Trickler was passing out lower level meds when I Captain Trickler got
to Cell 023. I Captain Trickler noticed inmate Brandon Hacker sitting at the
table. I asked inmate Hacker what was wrong, inmate Hacker stated to me
that he was really going through it. Inmate Hacker stated that he was dope
sick. I Captain Trickler gave inmate Hacker his meds and went to the next cell
(DE 155-23, Trickler Incident Report). Captain Trickler then continued on his rounds
through the detention center without notifying medical personnel of Hacker’s complaints.
Captain Trickler testified that he did not call a healthcare provider after he interacted with
Hacker because “everybody in the cell [told him] that [Hacker] was going to the doctor that
morning. . . .” (DE 154-14, Trickler Depo. p. 58 ¶¶ 17–20); (DE 160-23, Trickler Depo. p. 37
¶¶ 19–21) (“He’d – inmates inside the cell had told me that he had told them that he  already
had plans to see the doctor later on that day.”). Captain Trickler further explained that he
did not inform any medical personnel of Hacker’s complaints “[b]ecause [Hacker] didn’t tell
[him] that he wanted to go to the – to the doctor.” (DE 160-23, Trickler Depo. p. 42 ¶¶ 22–
23). As Captain Trickler saw it, though no policy directed this behavior, he only called medical
personnel for immediate evaluation when the inmate told him to call medical because “nine
times out of ten if an inmate really wants to go to a doctor, they will be the one to – to tell
you.” (Id. at p. 43 ¶¶ 2–5).
Deputy Whitney Bratcher had contact with Hacker a few hours later at approximately
5:30 a.m. while serving breakfast to the inmates in Cell 23. Before Deputy Bratcher served
breakfast, she spoke with Captain Trickler. Deputy Bratcher testified that Captain Trickler
told her that he had administered Hacker’s medications and informed her of the conversation
he had with Hacker earlier that morning. (DE 154-16, Bratcher Depo. p. 37). Deputy Bratcher
stated that she believed Captain Trickler gave Hacker another sick call request form to fill
When it came Hacker’s turn to be served, Deputy Bratcher testified that Hacker did
not get up from the floor to receive his food. (Id. at p. 53). Hacker did not speak to Deputy
Bratcher at all. (Id. at p. 32). Deputy Bratcher did not think much of Hacker’s action because
it was “not unusual” for inmates not to get up for breakfast. (Id. at p. 53 ¶ 9). Deputy Bratcher
left Cell 23 without a filled-out sick call request form. She did not report to anyone in the jail
that Hacker failed to get up for breakfast. (Id. at p. 40). An hour later, Deputy Bratcher came
back around Cell 23 to pick up trash, but did not see or interact with Hacker. (Id.).
Captain Jones reported for his shift around 7:00 a.m. that morning. At around 8:00
a.m., when Nurse Johnson arrived, Captain Jones “immediately went” to Nurse Johnson’s
office. (DE 154-4, Jones Depo. pp. 70–71). He handed her Deputy LaGrange’s incident report
and asked if the nurse “could see [Hacker] expediently.” (Id. at p. 71). Before Captain Jones
met with Nurse Johnson, he had been informed by another deputy on duty that morning,
Deputy Matt Dees, that Hacker had made another medical complaint. (Id.). According to
Deputy Dees’ incident report, the following took place that Monday morning:
Sir, walked by inmate pecked on glass I entered cell and inmate Hacker was
sitting in chair. Inmate Hager [Hacker] stated that he was having withdrawals
from heroin and felt very sick. Left cell and Captain Tom Jones told me to take
him to medical. I helped inmate Hacker put on a t-shirt and walked him to
(DE 155-24, Dees Incident Report).
At the same time, Nurse Johnson reviewed the information given to her by Captain
Jones, including the incident report completed by Deputy LaGrange and the sick call request
form where Hacker complained of “his blood pressure” and that he “need[ed] to [be] see[n]
A.S.A.P. Having Trouble Breathing. Stomach Problems.” (DE 160-18, Sick Call Request
Form; DE 160-7, Johnson Depo. pp. 172–73).2 Deputy Dees then brought Hacker to see Nurse
[Hacker] sat down in a chair and Nurse was interviewing him and asking him
what drugs he was withdrawing from. Nurse asked me to get him some
Gatorade. Went to kitchen and got 2 cups of Gatorade, returned to medical.
Inmate started drinking Gatorade and I left right after this occurred and went
(DE 155-24, Dees Incident Report).
Nurse Johnson met with Hacker for a health appraisal. She observed that he was
“sweaty” and that “he hadn’t had a bowl movement in a while.” (DE 155-25, Medical Progress
Note). Nurse Johnson next asked Hacker several questions. She reported that Hacker told
her that “he was trying to get through withdrawals on his own.” (Id.). When asked what type
of drugs he was withdrawing from, Nurse Johnson noted that Hacker responded “heroin.”
(Id.). Nurse Johnson also observed “track marks  [on his] arms.” (Id.). Nurse Johnson then
called Dr. Al-Shami for instruction, and Dr. Al-Shami ordered Vistaril and Bentyl, along with
increased fluids and rest. (Id.). He told Nurse Johnson to follow up as needed.
Moments after Nurse Johnson administered the medication, Hacker “laid back on
[the] bed [and his] eyes rolled to [the] back of [his] head.” (Id.). After Hacker did not respond
to her verbal stimuli and her attempts to use an ammonia inhalant failed, Nurse Johnson
used an ambu-bag to assist Hacker’s slow breathing while Captain Jones called the EMS for
an ambulance. (DE 155-25, Medical Progress Note; DE 154-8, Johnson Depo. p. 141). EMS
arrived at 9:46 a.m., intubated Hacker, and transported him to the emergency room at
Baptist Health- Richmond. As Hacker left, Nurse Johnson called Dr. Al-Shami to notify him
of Hacker’s “change of condition.” (DE 155-25, Medical Progress Note).
As noted above, there is debate as to the date and time this second sick call request form was completed. The
parties do not dispute, however, that it was the sick call request form that Nurse Johnson examined when she
returned to Madison County Detention Center on Monday, May 5, 2014. She testified that it is her signature on
the form. (DE 155-13, Johnson Dep. at 152).
Once at the hospital, emergency department staff continued CPR and ran a “code
blue” in an attempt to revive Hacker. Those efforts failed. Hacker was pronounced dead at
10:47 a.m. An autopsy later determined that Hacker’s cause of death was acute peritonitis
as a result of peptic ulcer diseases with perforation of duodenal ulcers. (DE 154-18, Death
Winkler sued under 42 U.S.C. § 1983 alleging that the defendants violated Hacker’s
Fourteenth Amendment right to protection against cruel and unusual punishment. Plaintiff
also alleges claims of negligence, gross negligence, outrage, wrongful death, and negligence
per se under Kentucky law. All defendants now move for summary judgment on all counts.
III. SUMMARY JUDGMENT STANDARD
As the moving parties, the defendants must demonstrate that there is no genuine
issue of material fact and that Winkler’s claims must fail as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (requiring the moving party to set forth “the basis for its
motion, and identify[ ] those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate an absence of a genuine issue of material fact”); Fed. R. Civ. P. 56(a). Viewing
the evidence in the light most favorable to the non-moving party, the Court must determine
“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.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251–52 (1986); Ahlers v. Schebil, 188 F.3d 365, 369 (6th Cir. 1999).
A. Winkler’s § 1983 Claim for Violation of Hacker’s Constitutional Right to be from Cruel and
Unusual Punishment Against Individual Defendants
The “Constitution . . . erects a series of hurdles that allegations of prisoner
mistreatment must clear before they proceed to a jury.” Clark-Murphy v. Foreback, 439 F.3d
280, 286 (6th Cir. 2006).
The first is the legal standard applicable in this case. The Fourteenth Amendment
forbids prison officials from unnecessarily and wantonly inflicting pain on a pretrial detainee
by acting with deliberate indifference to his serious medical needs. See Jones v. Muskegon
Cty., 625 F.3d 935, 941 (6th Cir. 2010); see also Estelle v. Gamble, 429 U.S. 97, 104 (1976). A
§ 1983 claim asserting “a constitutional violation for denial of medical care has objective and
subjective components.” Jones, 625 F.3d at 941. The objective component requires the
existence of a “sufficiently serious” medical need. Farmer v. Brennan, 511 U.S. 825, 834
(1994) (citation omitted). Such a medical need has been defined as one “that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.” Harrison v. Ash, 539
F.3d 510, 518 (6th Cir. 2008) (citations omitted). A claimant may satisfy the subjective prong
of this inquiry by establishing that “the official knows of and disregards an excessive risk to
inmate health or safety,” which is to say “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.” Farmer, 511 U.S. at 837.
The second hurdle is one of defense. In § 1983 constitutional tort claims, qualified
immunity prevents government officials from being held liable if (1) the officers did not
violate any constitutional guarantees or (2) the guarantee, even if violated, was not “clearly
established” at the time of the alleged misconduct. See Pearson v. Callahan, 555 U.S. 223,
The parties do not dispute that Winkler has established the objective component of
her Fourteenth Amendment claim, nor does either side dispute that the right at issue is not
clearly established. See Rouster v. Cty. of Saginaw, 749 F.3d 437, 446 (6th 2014) (considering
a “perforated duodenum, which leaked toxic materials into [the] abdominal cavity and caused
internal bleeding” to be an objectively serious medical need); see generally Nallani v. Wayne
Cty., 665 F. App’x 498, 511, 2016 WL 7241400, at *10 (6th Cir. Dec. 15, 2016) (citing Estelle,
429 U.S. at 104–05) (“[A]t least since the 1976 Supreme Court’s decision in Estelle v. Gamble,
the principle of law has been clearly established ‘that deliberate indifference to serious
medical needs of prisoners constitutes’ a violation of the Eighth Amendment, regardless of
whether that indifference is manifested by prison doctors or prison guards.”); Arrington- Bey
v. City of Bedford Heights, 858 F.3d 988, 993 (6th Cir. 2017) (quoting White v. Pauly, ––– U.S.
––––, 137 S. Ct. 548, 552 (2017) (“The Supreme Court recently reminded us that a plaintiff
must identify a case with a similar fact pattern that would have given ‘fair and clear warning
to officers’ about what the law requires.”).
Thus the question of immunity and liability become the same: whether the subjective
component of a deliberate indifference claim necessary for Winkler to hold them
constitutionally responsible has been met. Having assessed each defendant’s potential
liability, Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010), the Court concludes that
Winkler’s constitutional claims do not clear the necessary hurdles to place this case in front
of a trier of fact. Accordingly, the Court will grant defendants’ motions for summary judgment
as to Winkler’s constitutional claim.
1. Claims Against Advance Correctional Health’s Individual Medical Providers
Section 1983 requires a plaintiff to establish the following two elements: (1) the
defendant acted under the color of state law; and (2) the defendant’s conduct deprived the
plaintiff of a federally guaranteed right. Handy–Clay v. City of Memphis, 695 F.3d 531, 539
(6th Cir. 2012). Medical professionals who render services to inmates at a county prison
qualify as state actors for the purposes of § 1983. See Harrison v. Ash, 539 F.3d 510, 521 (6th
Cir. 2008) (citing West v. Atkins, 487 U.S. 42, 56 (1988)). Whether Dr. Al-Shami, Nurse
Troutman, and Nurse Johnson each were deliberately indifferent to a serious medical need
is a matter of application of law to the facts.
a. Nurse Layla Troutman is Entitled to Summary Judgment
Nurse Troutman had one interaction concerning Hacker on Friday May 2. After Nurse
Johnson was unable to contact Dr. Al-Shami, she called Nurse Troutman, who was not
physically present at the Detention Center. Nurse Johnson testified that she notified Nurse
Troutman “of the facts” she observed (DE 160-7, Johnson Depo. p. 128 ¶¶ 22–23) when
evaluating Hacker, who had filled out a sick call request. Nurse Troutman, after listening to
the symptoms as they were reported to her, ordered Nurse Johnson to start a plan of
medication consisting of Clonidine, Vistaril, and Bentyl to treat what she interpreted as
withdrawal symptoms. Winkler does not specifically argue how Nurse Troutman showed
deliberate indifference. Instead, Winkler states that the nurse made “the wrong diagnosis”
and that “she failed to order the proper monitoring for an inmate experiencing withdrawal.”
(DE 162, at 32).
None of those assertions or the facts in the record creates a material issue as to Nurse
Troutman’s knowledge about Hacker’s serious medical condition or as to whether she
recklessly disregarded any knowledge that she may have inferred. First, “deliberate
indifference cannot be based solely on a violation of company policy . . . .” Rice v. Montgomery
Cty., No. 5:14-CV-181-KKC, 2016 WL 2596035, at *12 (E.D. Ky. May 5, 2016). Instead, the
Court must look to what Nurse Troutman actually knew at the time she treated Hacker and
what she did with any knowledge she had.
Nurse Troutman treated Hacker for the condition that she thought he had—
withdrawal. (DE 160-12, Medical Progress Note). She was wrong. But there is no evidence in
the record to suggest that Nurse Troutman was aware of what was actually ailing Hacker
when she treated him. Even if she would have ordered Nurse Johnson to initiate the
withdrawal protocol (or to otherwise order “appropriate and timely monitoring” as Winkler
says), nothing in that monitoring could have played into what she knew at the time she gave
the orders. Any knowledge gained in the future cannot be imputed to Nurse Troutman
retrospectively. Hacker did not disclose his complete medical history, and it was only during
Nurse Johnson’s treatment that she learned Hacker did have a past history of drug
withdrawal. Moreover, Nurse Troutman did provide treatment to Hacker and did instruct
Nurse Johnson to have Hacker follow up. It is true that opiate withdrawal protocol was not
initiated, but based on the facts Nurse Troutman received, her decision to treat Hacker for
withdrawal in the manner she did was not “so cursory as to amount to a conscious disregard
of his needs.” Rouster, 749 F.3d at 448.
b. Nurse Arlene Johnson is Entitled to Summary Judgment
Winkler argues that Nurse Johnson displayed deliberate indifference to Hacker when
she saw him on his first sick call at 1:50 p.m. on May 2. Like her claim against Nurse
Troutman, Winkler faults and seeks to hold Nurse Johnson constitutionally liable for failing
to follow specific withdrawal protocols. From those failures, Winkler argues, Nurse Troutman
did not receive enough information to make a sufficient medical judgment, which ended in
Hacker losing his life. (DE 162, at 31). Winkler may be correct. But that does not necessarily
mean that Nurse Johnson was deliberately indifferent. See Harris v. City of Circleville, 583
F.3d 356, 369 (6th Cir. 2009) (considering a failure to follow policy as evidence that the
subjective component of a deliberate indifference claim has been met).
What matters here is that Nurse Johnson was not aware of facts from which it could
be inferred that a substantial risk existed, and it is nevertheless clear from the evidence that
Nurse Johnson did not draw an inference. Nurse Johnson did not know about Hacker’s
medical past initially, but learned of his past history of heroin withdrawal. She observed
Hacker, took down his vitals, reported what she observed and what Hacker told her—which
the medical records indicate were complaints of withdrawal (DE 155-20)—and followed
Nurse Troutman’s orders. While she could have done more, the facts do not show that Nurse
Johnson either perceived that Hacker had a medical condition more serious than drug
withdrawal, and they certainly do not show that Nurse Johnson consciously disregarded any
risk to a serious medical need—including any symptoms exhibited by Hacker at the time he
was seen. At bottom, Nurse Johnson saw and evaluated Hacker, relayed what she saw to
Nurse Troutman, and then followed Nurse Troutman’s orders. Her actions may have not been
perfect, but they were not indifferent so as to rise to the level of a constitutional violation.
c. Doctor Nadir Al-Shami is Entitled to Summary Judgment
Dr. Al-Shami had two interactions with Hacker on Sunday, May 4, each occurring
within a matter of hours. First, Deputy LaGrange called him after Hacker complained of
being “dope sick.” Dr. Al-Shami prescribed three medications: Vistaril, Bentyl, and
Phenergan, for Hacker’s withdrawal symptoms and for his inability to “keep anything down.”
(DE 160-20; DE 160-27, Al-Shami Depo. p. 109 ¶¶ 20–21; 113–114). No blood pressure
medication was given to Hacker at that point because Hacker’s blood pressure was 110/70—
a normal reading. (DE 160-21, Incident Report). About an hour later, Captain Jones called
Dr. Al-Shami after Hacker complained of stomach pain and of fear that he had internal
bleeding. (DE 160-21, Al-Shami Depo. p. 115 ¶¶ 24–25). Dr. Al-Shami told Captain Jones to
have Hacker monitored, but he did not change Hacker’s treatment. Dr. Al-Shami assessed
that Hacker was not likely bleeding because “internal bleeding doesn’t cause pain, and people
when they bleed, they don’t know.” (DE 160-21, Al-Shami Depo. p.122 ¶¶ 12–21). Instead,
Dr. Al-Shami explained in his testimony, signs of internal bleeding are normally shown when
people “vomit blood or they have dark stool . . . tarred looking or blood or coffee ground blood.”
(DE 160-21, Al-Shami Depo. p. 116 ¶¶ 20–21).
As a starting point, “courts are generally reluctant to second guess the medical
judgment of prison medical officials.” Jones, 625 F.3d at 944. “[C]ourts find deliberate
indifference where there is evidence tending to establish that the physician is present while
the inmate is in distress, that distress is communicated to the physician, and the physician
purposefully ignores the distress knowing that an adverse outcome is likely to occur.” Id. at
945 (citing Gibson v. Moskowitz, 523 F.3d 657 (6th Cir. 2008)) (emphasis omitted). This does
not mean that prison officials are absolved of liability by merely treating an inmate, as “[a]
government doctor has a duty to do more than simply provide some treatment to a prisoner
who has serious medical needs; instead, the doctor must provide medical treatment to the
patient without consciously exposing the patient to an excessive risk of serious harm.” Sours
v. Big Sandy Regional Jail Authority, 593 F. App’x 478, 486 (6th Cir. 2014).
The Court cannot conclude based on his interactions with Hacker that Dr. Al-Shami
was deliberately indifferent to a serious medical need. Dr. Al-Shami was not subjectively
aware that Hacker was experiencing anything other than drug withdrawal. Like in Rouster,
Winkler has not shown that Dr. Al-Shami “was in fact aware that [Hacker] had a serious
medical need.” Rouster, at 449. Dr. Al-Shami “did not have one very critical piece of
information” which could allow for an inference to be drawn: that ulcers were the cause of
the symptoms. Id at 448. There is nothing in the record to suggest that Dr. Al-Shami knew
about this possibility when he treated Hacker. And while it is true that perhaps Dr. Al-Shami
could have gotten to the bottom of it all with more questions, his failure “to follow best
medical practices is not necessarily evidence of deliberate indifference if [he] did not know
that [Hacker’s complaints of] [internal bleeding] was caused by a serious ailment.” Id. at 449.
As the doctor testified, Hacker’s complaints of pain were not necessarily indicative of internal
bleeding, as other objective indicators would prove more definitive. And, furthermore, no
matter what Dr. Al-Shami should have known, the evidence is clear as to what Dr. Al-Shami
did infer from Hacker’s complaints; he perceived Hacker’s ailment as nothing other than drug
Additionally, Dr. Al-Shami did not consciously disregard Hacker’s complaints and
needs, nor did he fail to treat what he thought were symptoms of withdrawal. In the first
instance, he changed Hacker’s medications based on the symptoms Hacker exhibited
(including taking him off of the blood pressure medication previously prescribed by Nurse
Troutman). In the second, Dr. Al-Shami considered Hacker’s complaints and made a medical
judgment to stay with the course of treatment. Much like her charges against Nurse
Troutman and Nurse Johnson, Winkler argues that Dr. Al-Shami was deliberately
indifferent in the way he treated Hacker based on what he did not do and what he could have
done to provide better treatment. But his provision of treatment was not unreasonable in
response to the symptoms Hacker exhibited, Farmer, 511 U.S. at 844–45, because, as stated
above, there is no indication that Dr. Al-Shami perceived Hacker’s ailment as anything other
than drug withdrawal.
Dr. Al-Shami’s may seem inappropriate in hindsight, based on his knowledge and the
inferences he drew from the facts of which he was aware, it was not unreasonable to continue
to treat Hacker for withdrawal symptoms. Even though Dr. Al-Shami’s diagnosis was
incorrect and Hacker fell victim to Dr. Al-Shami’s and others’ misjudgment, any “[n]egligence
in diagnosing a medical condition does not constitute unconstitutional deliberate
indifference.” Jones, 625 F.3d at 945. As the Sixth Circuit has stated, “a plaintiff alleging
deliberate indifference must show more than negligence or the misdiagnosis of an ailment.
When a prison doctor provides treatment, albeit carelessly or inefficaciously, to a prisoner,
he has not displayed a deliberate indifference to the prisoner’s needs, but merely a degree of
incompetence which does not rise to the level of a constitutional violation.” Comstock v.
McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (internal citations omitted).
2. Claims Against the Madison County Defendants in their Individual Capacities
In addition to the ACH defendants, Winkler claims that several jailers at the
Detention Center were deliberately indifferent to Hacker. Each of these defendants will be
a. Deputy J.J. LaGrange is Entitled to Summary Judgment
Deputy LaGrange worked as the floor deputy on Sunday, May 4. Deputy LaGrange’s
only documented interaction with Hacker occurred around 1:00 p.m. when Hacker caught
LaGrange’s attention at the cell door. Deputy LaGrange testified that Hacker said “he
couldn’t keep anything down” and “he thought he was going to be dope sick.” (DE 154-12,
LaGrange Depo. p. 62). Deputy LaGrange did not ignore Hacker’s call for attention. Instead,
after he listened to Hacker, Deputy LaGrange took Hacker out of his cell and walked him
down to booking for further evaluation. At booking, Deputy LaGrange followed Captain
Jones’ order to contact the medical professional and called Dr. Al-Shami. Deputy LaGrange
informed Dr. Al-Shami of Hacker’s complaints and administered the medications that Dr. AlShami prescribed. (DE 154-13, Incident Report).
Winkler does not dispute that Deputy LaGrange took Hacker to booking, called a
medical professional, and administered medication. Winkler instead argues that Deputy
LaGrange was deliberately indifferent because he “contacted Dr. Al-Shami with very limited
information about [Hacker].” (DE 160, at 28). If Deputy LaGrange “had collected more
information about [Hacker],” Winkler states, “Dr. Al-Shami would have been better equipped
to assess his patient.” (Id.).
Again, all of this may be true. But this argument does not create a material issue of
fact as it relates to Deputy LaGrange’s knowledge about Hacker’s serious medical need, nor
does it do anything to indicate that Deputy LaGrange recklessly disregarded his knowledge
about Hacker’s medical need. While it is not clear from the record whether Deputy LaGrange
thought Hacker had a serious medical condition, the Court can assume that he did because
Deputy LaGrange thought enough of Hacker’s cell-door protestations to go over to the cell to
investigate. But even so, there is no evidence that Deputy LaGrange acted with deliberate
indifference toward what he appreciated about Hacker’s condition. Deputy LaGrange took
Hacker to booking, told his supervisor what was going on, and relayed what he knew of
Hacker’s condition to Dr. Al-Shami as he was told to do. After receiving instruction from the
physician, Deputy LaGrange administered the medicine Dr. Al-Shami prescribed.
Although Winkler may object to the thoroughness by which Deputy LaGrange did his
job, this objection does not suffice to create a triable issue as to whether Deputy LaGrange
was deliberately indifferent by consciously disregarding a risk to Hacker’s medical needs. He
was not and is therefore entitled to summary judgment. See Ruiz-Bueno v. Scott, 639 F. App’x
354, 360 (6th Cir. 2016) (“Although Hahn did not follow up to determine whether anything
was done in response to his request, the fact that Hahn requested medical attention for
Peterson is sufficient to demonstrate that he was not deliberately indifferent.”).
b. Captain Corey Dunning is Entitled to Summary Judgment
Captain Dunning worked the overnight shift from 11:00 p.m. Sunday, May 4, until
the morning of Monday, May 5, when Captain Jones returned to duty. The evidence related
to Captain Dunning’s involvement in this case is sparse. The evidence that does exist does
not present evidence that Captain Dunning was actually aware that Hacker had a serious
medical need or that Captain Dunning consciously disregarded any risk of which he was
aware. There is no evidence that Captain Dunning interacted with Hacker at any point
during the time he was on shift. (DE 160-29, Dunning Depo. pp. 22–23). In fact, when asked
during his deposition if he had any information on Hacker, Captain Dunning simply replied
“No.” (DE 160-29, Dunning Depo. p. 17 ¶ 5).
Winkler points to Captain Dunning’s deposition testimony where he stated that “he
could” have been told about Hacker’s medical complaints (DE 160-29, Dunning Dep. p. 22, ¶
¶ 1-18, p. 23 ¶ 1-7) and argues that one could reasonably infer that he was told. (DE 160, at
29). But this is insufficient. At best, and not without further speculation, this testimony
shows that Captain Dunning may have been told that Hacker was ill and/or receiving medical
treatment for withdrawal, but it does not prove that he was aware of any facts that a
substantial risk of serious harm existed or that he actually drew such an inference. Winkler
show allege more to allow the Court to impute sufficient knowledge to Captain Dunning.
Conscious disregard requires a level of culpability higher than negligence and is one
concerned with what a defendant actually knows. Farmer, 511 U.S. at 836. The evidence as
it relates to Captain Dunning does not establish that he consciously disregarded any risk to
Hacker’s serious medical need and therefore Captain Dunning is entitled to summary
judgment on this claim.
c. Captain Tom Jones is Entitled to Summary Judgment
Captain Jones interacted with Hacker on several occasions in the five days that
Hacker was incarcerated at Detention Center. Captain Jones performed Hacker’s medical
intake when Hacker arrived at Detention Center on Wednesday, April 30, and placed Hacker
into the general population. Captain Jones also saw Hacker twice on Sunday, May 4. He
ordered Deputy LaGrange to contact Dr. Al-Shami after Deputy LaGrange brought Hacker
to booking around 1:00 p.m. Two hours later, Hacker returned to booking complaining of
stomach pain and what Hacker thought was internal bleeding. Captain Jones immediately
called Dr. Al-Shami, who told Captain Jones that Hacker’s latest complaints did not warrant
a change in treatment and to monitor the inmate. Captain Jones then placed Hacker back
into general population. Lastly, Captain Jones, upon returning to work on Monday after
taking the night off, “immediately” advised Nurse Troutman of Hacker’s medical complaints.
(DE 160-10, Jones Depo. p. 71 ¶ 12).
Winkler’s complaints against Captain Jones’ conduct are similar to hers against
Deputy LaGrange. Winkler charges Captain Jones with “fail[ing] to obtain an adequate
intake medical history” when Hacker was booked, “fail[ing] to obtain any history related to
Clint’s complaints,” “contact[ing] Dr. Al-Shami with very limited information,” and failing to
provide Dr. Al-Shami with the necessary information to make better medical decisions. (DE
160, at 28).
First, although it may have been obvious that Hacker suffered from some kind of
serious medical illness, the record does not confirm that Captain Jones was subjectively
aware that Hacker was suffering from anything other than withdrawal. Hacker’s medical
intake form reflected nothing of significance and there is nothing in the record to indicate
that Hacker ever told anyone on staff, let alone Captain Jones, that he had previous issues
with ulcers. Moreover, given that Hacker’s treatment was entirely consistent with
withdrawals, it is not entirely clear that Captain Jones ever thought something more sinister
Moreover, even if the evidence taken in the light most favorable to Winkler establishes
that Captain Jones was likely subjectively aware of a substantial risk of harm to Hacker,
there is no proof that Captain Jones acted with deliberate indifference to that risk. When
Deputy LaGrange took Hacker to booking, Captain Jones assessed the situation and ordered
Deputy LaGrange to contact Dr. Al-Shami. When Hacker returned to booking, Captain Jones
called Dr. Al-Shami himself and treated Hacker in a manner consistent with Dr. Al-Shami’s
In both instances, Captain Jones did not display deliberate indifference when he
encountered Hacker. He did not shake off Hacker’s first or second complaint or ignore Hacker.
He called a medical professional for help. Moreover, Captain Jones was fully entitled to rely
on the medical judgments made by Dr. Al-Shami. See Harrison v. Ash, 539 F.3d 510, 519 (6th
Cir. 2008) (concluding a correctional officer was not deliberately indifferent when, upon the
inmate’s complaint, he requested the nurse to “check on” the inmate); see also Smith v. Cty.
of Lenawee, 505 F. App’x 526, 532 (6th Cir. 2012) (holding a correctional officer was not
deliberately indifferent when he contacted a doctor regarding an inmate’s medical condition
and received assurances regarding the inmate’s medical status); Ronayne v. Ficano, 173 F.3d
856, 1999 WL 183479, at *3 (6th Cir. 1999) (unpublished table decision); Hamilton v. Pike
Cty., No. 11-CV-99-ART, 2013 WL 529936, at *7 (E.D. Ky. Feb. 11, 2013).
Though Captain Jones observed Hacker’s condition and recognized that he needed to
called Dr. Al-Shami (or to instruct another deputy to do the same), the record is insufficient
to prove that Captain Jones acted with deliberate indifference. See Scott, 639 F. App’x at 360;
see also Farmer, 511 U.S. at 844 (“[P]rison officials who actually knew of a substantial risk
to inmate health or safety may be found free from liability if they responded reasonably to
the risk, even if the harm ultimately was not averted.”). Captain Jones is therefore entitled
to summary judgment.
d. Captain Keith Trickler is Entitled to Summary Judgment
Captain Trickler made his first and only contact with Hacker early Monday morning
on May 5 when he passed out medications to the inmates. Hacker was sitting on a table in
his cell (DE 154-14, Trickler Depo. p. 14 ¶ 3) and, after Captain Trickler gave Hacker his
medication, Hacker told Captain Trickler that his stomach was upset, “said that he had been
doing drugs for quite a while, and he just said that he was really, really dope sick.” (DE 16023, Trickler Depo. pp. 61–62). Captain Trickler was informed by other inmates that Hacker
was expected to visit the nurse later in the morning and then Captain Trickler continued on
to other cells.
Winkler argues that, although Hacker informed Captain Trickler that he “dope sick,”
Trickler was deliberately indifferent because he failed to conduct any further investigation
or examination and made no attempt to seek guidance from any medical authority. (DE 160,
at 29). Captain Trickler’s actions that morning, while undoubtedly questionable, were not
Hacker told Captain Trickler that he was “dope sick,” and Hacker’s own assessment
coincided with Captain Trickler’s observations. (DE 160-23, Trickler Depo. p. 62 ¶¶ 2–3) (in
response to the question “how did Hacker look,” Captain Trickler stated: “Like a person that
was withdrawing.”). Everything Captain Trickler perceived Hacker to be experiencing was
consistent with withdrawals. Winkler presents no facts to suggest that Captain Trickler
knew of the seriousness of Hacker’s condition before the Monday morning interaction, and
none of the facts indicate that Captain Trickler consciously disregarded Hacker’s condition
after the two spoke briefly across the cell door.
Comparison is useful on this point. Although it is not entirely clear to whom Winkler
refers, she cites to Finn v. Warren Cty., et al., No. 1:10-CV-16-JHM, 2012 WL 3066586 (W.D.
Ky. July 27, 2016), for the proposition that “deputy jailers who are aware of an inmate’s
serious medical condition and do nothing” are deliberately indifferent. (DE 160, at 29). In
Finn, the court held two deputy jailers constitutionally liable in a scenario similar to the
present case. One jailer, Captain Martin, was found deliberately indifferent when he “did not
report his observation [of the deceased experiencing symptoms of withdrawal], did not enter
[his] cell, and did not even attempt to engage [him] in conversation.” 2012 WL 3066586, at
*10. The other jailer, Deputy Maxwell, also “simply listed” the deceased as “appears to be ok,”
even though the deputy knew of the deceased’s condition. 2012 WL 3066586, at *11. In
contrast, the facts of this case make clear that Captain Trickler did not simply ignore Hacker.
Unlike Captain Martin and Deputy Maxwell in Finn, Captain Trickler engaged Hacker, gave
him his medication, and determined that a nurse would examine him later in the morning.
Thus, even to the extent he did perceive a risk, Captain Trickler did not consciously disregard
it because he performed his duties. Captain Trickler’s decision not to take further action is
concerning. However, “[t]hat he did not take the extra step of bringing the need for more
aggressive intervention to his superiors, that failure at most . . . amounts only to negligence.”
Smith, 505 F. App’x at 536.
e. Deputy Jailer Whitney Bratcher is Entitled to Summary Judgment
Deputy Bratcher served breakfast to Cell 23 at approximately 5:30 a.m. and came
back around to the cell an hour later to pick up trash. Deputy Bratcher testified that she
knew Hacker received medication because she spoke with Captain Trickler about Hacker and
because she was the one who most likely “packed” the medicine for the weekend. Deputy
Bratcher did not engage with Hacker in either her first or second trip by Cell 23.
Deputy Bratcher’s is a close case. Winkler does little to address Deputy Bratcher’s
actions except to state that she “did not do any further investigation or examination and did
not seek the guidance of any medical authority.” (DE 160, at 29). Winkler is correct, to an
extent. The record makes clear that Deputy Bratcher did not do much of anything with
respect to Hacker. Unlike Captain Trickler, she did not engage with Hacker. However,
deliberate indifference also requires that Deputy Bratcher have a sufficiently culpable
mental state. That is, Deputy Bratcher must have actually inferred that a substantial risk of
serious harm existed. The Court declines to make such a finding.
Deputy Bratcher’s only information about Hacker came from Captain Trickler. She
was informed that Hacker was “really going through it” and that Hacker was being treated
for those symptoms. Thus, she had reason to assume that Hacker’s condition was being
treated. It does not appear from the facts that Deputy Bratcher ever drew the inference that
a substantial risk of serious harm to Hacker existed. The only evidence suggesting that
Hacker was seriously ill of which Deputy Bratcher was aware was what Captain Trickler told
her that Hacker did not get up to receive his breakfast. To the latter fact, importantly, the
evidence shows that Deputy Bratcher testified that she did not think much of Hacker’s failure
to respond to the breakfast call because it was not “unusual” for inmates to not get up at the
early hour. (DE 154-16, Bratcher Depo. p. 53). This evidence shows that Deputy Bratcher
never drew the connection between Hacker’s failure to get up and Hacker’s serious medical
need. Without more, the facts are insufficient for Winkler to show a question of fact as to
whether Deputy Bratcher should have known of the risk. Garretson v. City of Madison
Heights, 407 F.3d 789, 797 (6th Cir. 2005).
Perhaps Deputy Bratcher should have done more. The facts assuredly show that she
made an incorrect assumption. But “[i]f an officer fails to act in the face of an obvious risk of
which he should have known but did not, the officer has not violated the Eighth or Fourteenth
Amendment.” Watkins v. City of Battle Creek, 273 F.3d 682, 686 (6th Cir. 2003). Here, Deputy
Bratcher did not infer that a substantial risk of serious harm existed because the facts do not
prove her to have believed that Hacker was experiencing a medical emergency. See, e.g.,
Speers v. Cty. of Berrien, 196 F. App’x 390, 396–97 (6th Cir. 2006) (“By itself, the fact that
Hyun knew that Speers was going through alcohol withdrawal, an occasional reality of life
in a prison setting, does not establish a triable issue of fact over deliberate indifference.”).
Deliberate indifference requires actual knowledge of such a risk. Without the necessary
inference, Deputy Bratcher is entitled to summary judgment on this claim.
f. Jailer Doug Thomas is Entitled to Summary Judgment
Jailer Thomas was the Madison County Jailer at the time of Hacker’s death. Winkler
seeks to hold Jailer Thomas liable in his individual capacity for deliberate indifference based
on his position as the county jailer. Specifically, Winkler argues that Jailer Thomas was
“responsible for establishing adequate policies and procedures,” that “[h]e was responsible
for the selection of the jail medical provider,” and that “[h]e was responsible for the
employment, training, [and] supervision of the officers, employees and independent
contractors” at the Detention Center. (DE 160, at 30). In making this argument, Winkler
relies on this Court’s previous decision in Rice v. Montgomery Cty. In that case, the Court
found that a deliberate indifference claim against Eric Jones, jailer for Montgomery County
Regional Jail, withstood summary judgment. 2016 WL 2596035, at *9.
But this case is easily distinguished on the facts and on the law. In Rice, the Court
found Jailer Jones’ deliberate indifference stemmed from what he actually knew and did not
do in response to the inmate. It noted that a nursed “informed” him of the inmate’s condition
and that he was “instructed” to call her or 911 if the inmate’s condition worsened. Id. at *9.
The Court then concluded that “a juror could find Jones’ failure to pass these instructions on
to his deputies constituted deliberate indifference . . . .” Id. Here, there is nothing in the
record to indicate that Jailer Thomas knew of Hacker’s serious medical need or that he was
in any way involved in Hacker’s treatment other by virtue of his position as the county jailer.
Thus, Rice is factually inapplicable.
Unlike Rice, Winkler’s claim against Jailer Thomas, when properly construed, is less
concerned with Jailer Thomas’ conduct specific to Hacker, but is rooted in Jailer Thomas’
alleged liability in his supervisory role as the county jailer. As a jailer sued in his individual
capacity, Jailer Thomas may only be personally liable on a § 1983 claim to the extent of his
personal involvement. The doctrine of respondeat superior, or the right to control employees,
does not apply in § 1983 actions to impute liability onto supervisors. Monell v. New York City
Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); Taylor v. Mich. Dep’t of Corr., 69 F.3d 76, 80–
81 (6th Cir. 1995); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984). Rather, to establish
supervisory liability in a § 1983 action, “[t]here must be a showing that the supervisor
encouraged the specific incident of misconduct or in some other way directly participated in
it.” Bellamy, 729 F.2d at 421 (citing Hays v. Jefferson Cty., 668 F.2d 869, 872–74 (6th Cir.
As stated above, Jailer Thomas did not directly participate in the events related to
Winkler’s claim. Further, there is no evidence that Jailer Thomas somehow implicitly
authorized or acquiesced in a deprivation of proper medical care. See Hicks v. Frey, 992 F.2d
1450, 1455 (6th Cir. 1993) (finding, “at a minimum,” a government official must have “at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct” in
order to be held liable).
To the extent that Winkler argues that Jailer Thomas should be held individually
liable because he failed to promulgate adequate jail policies and because he failed to properly
train the jail staff, those arguments fall short. The Sixth Circuit has held that a prison
supervisor can be held individually liable for failing to adopt and implement operating
procedures “in the face of actual knowledge of a breakdown in the proper workings of the
department.” Taylor v. Michigan Dep’t. of Corrections, 69 F.3d 76, 81 (6th Cir. 1995). The
Sixth Circuit has clarified this to mean that “it [is] the defendant supervisors’ active
engagement in a function of their position that directly resulted in the injury to the
plaintiff.” Essex v. Cty. of Livingston, 518 F. App’x 351, 355 (6th Cir. 2013). The record
contains no evidence to tie Jailer Thomas’ conduct (in whatever form that may be) to Hacker’s
alleged injury, nor has Winkler herself directed the Court to any such evidence. Thus,
because the facts do not show any personal involvement on the part of Jailer Thomas,
Winkler cannot establish a constitutional violation based on an individual capacity
supervisory liability theory. Therefore, Jailer Thomas, in his individual capacity, is entitled
to summary judgment on the deliberate indifference claim.
B. Winkler’s § 1983 Claim Against Madison County
Winkler seeks to hold Madison County liable for the deliberate indifference of the
ACH defendants and also seeks to hold the county liable for its failure to train the individual
Madison County defendants. Both theories of liability fail.
Winkler first asserts that Madison County is responsible for the deliberate
indifference of the ACH defendants because the county specifically delegated decisionmaking authority regarding inmate treatment to ACH. In support, she cites Pembaur v.
Cincinnati, 475 U.S. 469, 480 (1986), and St. Louis v. Praprotnik, 485 U.S. 112 (1988).
Winkler does little else to argue how these cases apply or to argue how Madison County is
responsible for the deliberate indifference of the ACH defendants. Thus, Winkler has waived
the argument. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“Issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to put flesh on its bones.”).
Nevertheless, the argument is unpersuasive because Winkler’s claim is based on Madison
County’s delegation of treatment-related decisions and is not that Madison County vested
within ACH authority to make all policy decisions. See Finn, 2012 WL 3066586, at *18
(discussing Johnson v. Hardin Cty., 908 F.2d 1280 (6th Cir. 1990), which stands for the
proposition that “[t]he power of an official to make final decisions regarding questions
involving a particular subject matter, in and of itself, is not necessarily enough to establish
a local government’s liability”); Graham v. Cty. of Washtenaw, 358 F.3d 377, 384 (6th Cir.
2004). Thus, her first argument fails as a matter of law.
Winkler’s argument seeking to hold Madison County liable for the actions of the ACH
defendants fails too for the same reason that her failure-to-train argument fails: there is no
underlying unconstitutional conduct by any of the individual defendants in this case. Without
any predicate constitutional violations, Winkler’s derivative failure-to-train claim against
Madison County must fail. Despite Winkler’s citations to out-of-circuit case law, the law in
the Sixth Circuit is well established that if “no constitutional violation by the individual
defendants is established, the [governmental] defendants cannot be held liable under § 1983.”
Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001); Baynes v. Cleland, 799 F.3d
600, 622 (6th Cir. 2015) (“Baynes failed to present facts upon which a reasonable juror could
conclude that the individual defendants’ conduct constituted deliberate indifference to a
serious medical need under the Eighth Amendment. Without an underlying unconstitutional
act, Baynes’ claim against the County under § 1983 must also fail.”); Grabow v. Cty. of
Macomb, 580 F. App’x 300, 311–12 (6th Cir. 2014) (affirming the trial court’s grant of
summary judgment to the county-defendant where plaintiff failed to present facts upon which
a reasonable juror could conclude the inmate’s Eighth and Fourteenth Amendment rights to
adequate medical care were violated, noting that “[a]bsent an underlying constitutional
violation, [plaintiff’s] claim against the county under § 1983 must also fail”) (internal
citations omitted); Perez v. Oakland Cty., 466 F.3d 416, 431 (6th Cir. 2006) (“Perez Sr. must
identify an Oakland County policy or custom that demonstrated deliberate indifference to
the serious mental health needs of inmates at the County Jail. Liability would rest, if at all,
on the actions of Rice in the context of the County’s policy, since we found that she violated
Perez’s Eighth Amendment rights.”) (citing Watkins, 273 F.3d at 687) (emphasis added); see
also McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006) (“a prerequisite of
supervisory liability under § 1983 is unconstitutional conduct by a subordinate of the
supervisor”). Therefore, Madison County is entitled to summary judgment.
C. Winkler’s § 1983 Claim Against Advanced Correctional Healthcare
Winkler argues that ACH was deliberately indifferent because it failed to provide
timely and appropriate medical care to Hacker and other inmates. (DE 162, 36). As a private
corporation in the § 1983 context, ACH can be held liable under theories similar to municipal
liability. See Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993) (“It is clear that a private
entity which contracts with the state to perform a traditional state function such as providing
medical services to prison inmates may be sued under § 1983 as one acting ‘under color of
state law.’”). However, for ACH to be liable, Hacker must identify some custom, policy, or
procedure that caused a violation of her Fourteenth Amendment rights. See Grose v. Corr.
Med. Servs., Inc., 400 F. App’x 986, 989 (6th Cir. 2010) (citing Perez, 466 F.3d at 430)).
Winkler’s claim against ACH must fail because there are no underlying constitutional
violations in this case. Rouster, 749 F.3d at 454 (“Rouster is unable to prove that Jerry’s
constitutional rights were violated. Therefore, we need not consider whether Secure Care’s
[a private corporation] staffing or training policies might have caused such a violation.”).
ACH is therefore entitled to summary judgment.
D. Remaining State Law Claims
Having found no constitutional violations, summary judgment has been granted on
all § 1983 claims
in favor of all of the defendants in this case. The § 1983 claims served
as the sole basis for federal jurisdiction. Now without a federal hook, the Court declines to
exercise supplemental jurisdiction over Winkler’s state law claims. As has been shown above,
there are significant state-law related issues in this case all related to complex and sensitive
issues regarding negligence and medical care for prisons. The state courts, as a “surer-footed
read[er] of applicable law,” are best suited to resolve them. United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966); Moon v. Harrison, Piping Supply, 465 F.3d 719, 728 (6th Cir.
2006) (citation omitted) (“[A] federal court that has dismissed a plaintiff’s federal-law claims
should not ordinarily reach the plaintiff’s state-law claims.”); see also Rouster, 749 F.3d at
454 (upholding a district court’s decision to decline supplemental jurisdiction over remaining
state-law claims after the district court disposed of constitutional deliberate indifference
claims). Winkler may pursue the remaining claims in the appropriate state court.
To say that this is a tragic case would be a gross understatement. A young man lost
his life while incarcerated, despite his protestations and despite attempts from both jail and
medical to treat him. Hacker’s death may well have been avoided. Had jail officials and
medical personnel known what was truly ailing Hacker, they may have been able to save his
life, or, perhaps, different decisions would have been made in the crucial hours. “But the
Fourteenth Amendment does not permit claims against jail officials [and medical
professionals] for negligence, that is, claims regarding what [they] should have known or
should have done.” Scott, 639 F. App’x at 361 (emphasis in original). Rather, the Constitution
focuses on the defendant’s mental state to isolate those defendants who inflict punishment
because, after all, the “Eighth Amendment [and the Fourteenth Amendment corollary] . . .
outlaws cruel and unusual ‘punishments.’” Farmer, 511 U.S. at 837. “[A]n official’s failure to
alleviate a significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction of punishment.” Id. at
838. On this narrow question—whether any of the defendants knew of and consciously
disregarded a substantial risk of harm—the Court cannot answer in the affirmative. This is
not to say that Winkler is without a remedy. But under the facts in the record and considering
them in the light most favorable to her, such a remedy cannot be found under the rights
afforded by the Constitution.
Accordingly, being otherwise sufficiently advised, IT IS ORDERED:
(1) The 42 U.S.C. § 1983 claim against all Defendants are DISMISSED WITH
(2) The state law claims against all Defendants are DISMISSED WITHOUT
(3) All remaining motions are DENIED as MOOT;
(4) A separate Judgment will be entered contemporaneously with this Opinion and
(5) This matter shall be STRICKEN from the Court’s active docket.
Dated August 18, 2017.
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