Hamilton v. Pike County, Kentucky et al

Filing 80

MEMORANDUM OPINION AND ORDER: (1) Pike County, Kentucky and Rodney Scott's motion for summary judgment, R. 43 , is GRANTED IN PART AND DENIED IN PART. (a) motion is GRANTED with respect to all of plaintiff's claims against Pike County, Kentucky. (b) motion is GRANTED with respect to pla's claims against Rodney Scott in his official capacity and pla's section 1983 claim against Rodney Scott in his personal capacity. (c) motion is GRANTED with r espect to pla's intentional infliction of emotional distress, tort of outrage, and statutory and administrative claims against Rodney Scott in his personal capacity. (d) Since dft Scott failed to properly move for summary judgment, pla's ne gligence and gross negligence claims will proceed to trial. (2) The medical dfts' motion for summary judgment, R. 45 , is GRANTED IN PART AND DENIED IN PART. (a) motion is GRANTED with respect to pla's section 1983 claim aga inst Southern Health Partners. (b) motion is DENIED with respect to pla's state law claims against Southern Health Partners. (c) motion is GRANTED with respect to pla's section 1983 claim against Tina Clevenger in her pers onal capacity. (d) motion is DENIED with respect to pla's state law claims against Tina Clevenger in her personal capacity. (e) motion is DENIED with respect to pla's section 1983 claim against Dr. Waldridge based on Dr. Wald ridge's actions in response to the telephone call from Nurse Ray on September 25, 2010. (f) motion is GRANTED with respect to pla's section 1983 claim against Dr. Waldridge based on Dr. Waldridge's examination and diagnosis o f pla in September 24, 2010. (g) motion is DENIED with respect to pla's section 1983 claim against Nurse Ray in her personal capacity based on her failure to accurately convey Hamilton's symptoms to Dr. Waldridge during their telepho ne call on September 25, 2010. (h) motion is GRANTED with respect to pla's section 1983 claim against Nurse Ray in her personal capacity based on her failure to take further action after reporting pla's symptoms to Dr. Waldridge duri ng their telephone call on September 25, 2010, and complying with Dr. Waldridge's instruction to provide pla with a multivitamin. (i) motion is DENIED with respect to pla's punitive damages claims against medical dfts. (3) Hamilton has until Friday, February 15, 2013, to identify and serve John and Jane Does 1-10. If he does not do so, those claims will be dismissed without prejudice. The pla's motions to strike, R. 73 and R. 74 , are DENIED AS MOOT. Signed by Judge Amul R. Thapar on 2/11/2013. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
)
)
)
Plaintiff,
Civil No. 11-99-ART
)
)
v.
)
MEMORANDUM OPINION
)
PIKE COUNTY, KENTUCKY, et al.,
AND ORDER
)
)
Defendants.
)
*** *** *** ***
RAY D. HAMILTON,

Ray Hamilton entered the Pike County Medical Center after twenty days in the Pike
County Jail. Doctors at the hospital diagnosed him with (among other things) acute kidney
failure, muscle breakdown, high blood pressure, and a hematoma in his lower back. The
question in this case is whether any of the defendants’ actions during those twenty days
violated Hamilton’s constitutional right to medical treatment or were the cause of Hamilton’s
illnesses. Six of the eight defendants filed for summary judgment because they believe the
answer to that question is no. For the reasons given below, the motions are granted in part
and denied in part.
BACKGROUND
Ray Hamilton was booked into the Pike County Jail on September 7, 2010, for
consuming alcohol in violation of the terms of his probation. R. 43-1; R. 47-1 at 5. Upon
admission he responded to a series of screening questions. Hamilton said that he had a
“serious medical condition” that did not need immediate medical attention but might require
treatment during his incarceration. R. 43-2. He elaborated that he suffered from high blood

pressure, neck and back pain, and sleeping problems. R. 50-1 at 34. Hamilton also said that
he was taking medications that needed to continue during his time at the jail. Id. at 34. The
next day, Nurse Tina Clevenger completed a “medical staff receiving screening form.” The
form listed Hamilton’s medications, prior diagnoses of high blood pressure and Hepatitis C,
and his consumption of six beers the day before he was admitted. R. 43-5.
After about ten days in a general population cell, Hamilton complained that he was
having trouble breathing and could not stand without pain. R. 50-1 at 41. His pain might
have started after he fell down in his cell. R. 48-1 at 25. Hamilton was then moved to a
medical cell, though it is not clear whether the jail staff or the medical staff ordered the
move. R. 50-1 at 37, 41. At some point, Hamilton was placed in an isolation cell for a few
days before being moved back to the medical cell. Id. at 41–42. Beginning on the day he
entered the medical cell, Hamilton made daily requests to be taken to a hospital. He directed
these requests to both the jail staff and the medical staff, depending on who walked by his
cell that day. Id. at 43. Sometimes he would explain why and say he was experiencing pain
and numbness; other times he would just make the request. R. 49-1 at 15–17. Hamilton says
the nurses responded by telling him that he was exaggerating his symptoms. R. 50-1 at 43.
While he was in the medical cell, Hamilton sometimes did not receive his medication
because he could not walk to the door to retrieve it from the nurses. R. 49-1 at 9; R. 50-1 at
43.
Mike Fields, one of Hamilton’s cellmates in the medical cell, initially thought
Hamilton was lying about his symptoms. R. 45-3 at 16. But after a few days he realized that
Hamilton was actually ill because Hamilton never sat up or ate. Id. Fields, a diabetic, began
telling the nurses that Hamilton “was in bad shape” every time the nurses gave him an insulin
2

shot.

Id. at 17. At least once, Fields told a nurse whose name he cannot remember that

Hamilton had soiled himself. Id. Fields believes the nurses were aware of Hamilton’s
condition. Id. at 18.
Hamilton’s sister Cheryl Ray became concerned about his health after visiting him in
prison. During two of her visits, Ray delivered refills of Hamilton’s prescriptions to Nurse
Monica Morris, the head nurse. R. 48-1 at 7; R. 47-1 at 9.1 During one visit, Ray remembers
that Hamilton was very weak, told her that he had just soiled himself, and was unable to
continue their conversation. R. 48-1 at 12. Ray asked that the jail staff to return Hamilton to
his cell, and then she called Hamilton’s daughter Heather Baker to tell her about Hamilton’s
condition. Id.
Baker in turn relayed her concerns to the jail staff and medical staff. She called
Rodney Scott, the Jailer, who told her that the jail medical staff handled health issues and
would treat Hamilton. R. 47-1 at 8. Pike County contracted with Southern Health Partners, a
private firm, to provide medical care at the Pike County Jail.

R. 46-1 at 4, 5. Southern

Health Partners provided nurses at the jail for sixteen hours a day, seven days a week. The
company also provided a doctor who visits the jail once a week and is on call at all times. Id.
at 5, 8. Baker asked Jailer Scott if he would have a member of the medical staff contact her,
and he responded that he would. R. 47-1 at 9. Nurse Morris contacted Baker, told her
Hamilton was in the medical pod, and said Dr. Waldridge would be examining Hamilton. Id.
1

Nurse Morris stated during her deposition that she had not had or alternatively could not recall any contact
with Hamilton’s family members before September 24. R. 76-1 at 27, 71–72. She also stated that she had not
heard about any complaints from Hamilton’s family prior to the 27th. R. 76-1 at 41. For the purposes of
summary judgment, the Court must accept Baker and Ray’s testimony on this disputed issue of fact. See
Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th Cir. 2009) (explaining that a district court must “view
the facts in the light most favorable to the nonmovant” but need not “accept mere allegations that are not
supported by factual evidence”).

3

Nurse Morris also told Baker that Hamilton was not getting up to take his medication,
Hamilton was being stubborn, and he was detoxing. Id.
Dr. Waldridge saw Hamilton on Friday, September 24, and he performed a physical
exam during that visit. R. 50-1 at 44. Dr. Waldridge was the independent contractor
Southern Health Services hired to provide medical services at the Pike County Jail. R. 51-1
at 4. Nurse Morris and Nurse Tina Clevenger were present during the exam. R. 76-1 at 19.
Dr. Waldridge found nothing during his examination that would explain Hamilton’s
complaint of impaired mobility and shortness of breath. R. 51-1 at 22. He noted that
Hamilton might be “malingering” or feigning his symptoms. R. 43-9 at 1. He thought that
Hamilton’s symptoms might be the result of drug interactions, so he discontinued three of
Hamilton’s medications. Id.; R. 51-1 at 18. After the examination, Dr. Waldridge called
Baker and told her that Hamilton was detoxing from alcohol, which was why he was feeling
ill. He stated that Hamilton’s symptoms were consistent with detoxing and that the medical
staff would take care of Hamilton. R. 47-1 at 10, 41.2
The next day Ray visited Hamilton again, thought that Hamilton was getting worse,
and called Baker to tell her that. Id. at 11. Nurse Morris was off duty that weekend, and
Nurse Rose Ray was on staff. R. 76-1 at 10–11; R. 75-1 at 17. Nurse Ray’s notes from that
day state that Hamilton complained of “not being able to get on [his] feet to walk” and that
others had helped him to the shower. R. 43-9 at 2; R. 75-1 at 60. Nurse Ray does not
remember Hamilton or anyone else telling her that Hamilton was soiling himself. R. 75-1 at
33, 61. Nurse Ray called Dr. Waldridge, who prescribed a multivitamin. Id. at 6; R. 43-9 at
2

Dr. Waldridge and Nurse Morris both deny that, or alternatively do not remember that, Hamilton was in
detox. R. 51-1 at 15; R. 76-1 at 66. But on summary judgment the Court must view the facts in the light most
favorable to Hamilton. See Chappell, 585 F.3d at 906.

4

2. The content of their discussion is unclear because neither Nurse Ray nor Dr. Waldridge
remembers the conversation. R. 75-1 at 66; R. 51-1 at 19. Nurse Ray believes that, given
the notations on Hamilton’s chart, she would have told Dr. Waldridge of Hamilton’s
complaints. R. 75-1 at 61–62. Dr. Waldridge believes that had she done so, he would have
ordered further tests instead of prescribing a multivitamin. R. 51-1 at 19–20. Nurse Ray in
turn believes that had Dr. Waldridge ordered more tests, she would have written the results
down in the chart. R. 75-1 at 62.
At some point3 Baker began calling Jailer Scott daily, explaining that even though
Nurse Morris said Hamilton was fine, Cheryl Ray’s visits made her think that Hamilton was
actually sick. R. 47-1 at 11. During that time, Baker felt like she “lived on the phone . . .
trying to beg for somebody to take [Hamilton] to the hospital.” Id. at 38. Baker asked Jailer
Scott to take Hamilton to the hospital, but Jailer Scott told her that the doctor had to sign off
before Hamilton could be taken to the hospital. Id. at 13. When Baker called, Jailer Scott
would transfer her calls to the medical staff. R. 46-1 at 11.
The day before he was taken to the hospital, Hamilton remembers feeling “terrible.”
R. 50-1 at 45. His legs and hips were bothering him, he couldn’t walk, and he had trouble
breathing. Id.
The next morning, Nurse Morris entered his cell to provide Hamilton with his
medications. She did so because Hamilton would not come to the door of the cell. R. 76-1 at

3

In his brief, Hamilton estimates that these calls began about a week before Hamilton was taken to the
hospital. R. 63 at 4. The portions of the deposition cited are unclear on this point. Baker estimated that she
began calling Jailer Scott about a week before Hamilton was taken to the hospital, which would be around
September 20. R. 47-1 at 12. But she also stated that she began calling daily after Dr. Waldridge saw
Hamilton, which would have been only two days before Hamilton was taken to the hospital. R. 47-1 at 10–11.
The date of Baker’s calls is relevant to only Hamilton’s claims against Jailer Scott. As explained below, even
assuming Baker’s daily calls lasted a week, there was no section 1983 violation. See infra at 11.

5

30–31. Nurse Morris thought that Hamilton was “alert and oriented . . . [and] not in any
form of distress.” Id. at 30. Around noon that day, Baker called Jailer Scott, who said that
he would go talk to the medical staff and see what they could do. R. 47-1 at 13. An hour or
so later, Nurse Morris called Baker and said that Dr. Waldridge did not think Hamilton
needed to go to the hospital. Id. at 13. Cheryl Ray then went to the jail to request that
Hamilton be taken to the hospital. R. 48-1 at 8. She told Jailer Scott that he was “going to
let [her] brother lay here and die.” Id. at 9. At that point, Jailer Scott brought Nurse Morris
into the office and then left. Id. Nurse Morris said she would contact Dr. Waldridge.4 Id.
The meeting lasted only a few minutes. Soon after that, both Nurse Morris and Jailer Scott
called Baker back and told her that Dr. Waldridge had approved the trip to the hospital and
that Hamilton was on his way there. R. 47-1 at 13. Hamilton was taken to the hospital late
that evening. See R. 43-10 at 1.
The Pikeville Medical Center records state that Hamilton was “essentially
unresponsive and not breathing” at the time of admission. See id. After receiving oxygen
and fluids, he told the medical center staff that he had abdominal pain that had increased over
the previous few days.

See id.

Hamilton was diagnosed with acute renal failure,

rhabdomyolysis, metabolic acidosis, uremia, hyperglycemia, a retroperitoneal hematoma,
altered mental status, hypertension, initial bradycardia, and transient apnea. See id. at 2.
Those conditions were “possibility [sic] from trauma to his right flank initiating the majority
4

Nurse Morris’s account of the day’s events is different. She stated that the first time she had contact with a
member of Hamilton’s family was when she met with Cheryl Ray on the afternoon of September 27. R. 76-1
at 41, 71. After Cheryl Ray requested that Hamilton be taken to a hospital, Nurse Morris states that she
checked with Jailer Scott and Dr. Waldridge, who both approved the transfer. Id. at 44. Then Nurse Morris
arranged for Hamilton to be transported to the hospital. Id. Dr. Waldridge also remembers being called only
once. During that call someone told him that Hamilton seemed to be worse, so he approved Hamilton’s
transfer to a hospital. R. 51-1 at 20. On summary judgment, however, this Court must view the facts in the
light most favorable to Hamilton. See Chappell, 585 F.3d at 906.

6

of the symptoms.” Id. A few days later, the medical center entered a final diagnosis of a
retroperitoneal bleed, resolving rhabdomyolysis, resolving acute renal failure, deep venous
thrombosis of the right lower extremity, and sepsis. R. 43-11 at 1.
Hamilton was discharged from the Pikeville Medical Center on October 8, 2010, and
transferred to the University of Kentucky Medical Center. Id. at 4. Doctors there treated
him for deep venous thrombosis and an inferior vena cava clot, retroperitoneal hematoma, a
pressure ulcer, and renal failure secondary to rhabdomyolysis. R. 43-12 at 1. Hamilton was
discharged after six days and returned home for house arrest. Id. at 3; R. 47-1 at 36.
Hamilton learned that he had MSRA at some point after he left the jail. R. 50-1 at 51, 53.
Hamilton later returned to Pikeville Medical Center where he had surgery to treat his blood
clots in his leg and thigh. Id. at 53. Hamilton now uses a wheelchair when he needs to travel
any significant distance, and he sometimes uses a cane for shorter distances. Id. at 51. He is
still being treated for blood clots and a MRSA infection. Id.
Hamilton filed suit against eight defendants. R. 18-1. He sued Pike County, Jailer
Rodney Scott, Southern Health Partners, Inc., and Dr. Ron Waldridge. He also named
Nurses Tina Clevenger, Monica Morris, and Rose Ray as both individuals and in their
official capacities as nurses at the Pike County Jail. Finally he named “John and Jane Does
1–10” as defendants. His suit raises one federal claim and five state law claims against each
defendant. The federal claim is under 42 U.S.C. § 1983, which allows plaintiffs to recover
damages for constitutional violations by state actors. See id. at 5–6. The state law claims are
for: (1) negligence, (2) gross negligence, (3) intentional infliction of emotional distress, (4)
the tort of outrage, and (5) violations of various state statutes and administrative regulations.
See id. at 6. Hamilton seeks punitive damages for all of his claims. See id. at 7.
7

Six of the eight defendants have now filed for summary judgment. Jailer Scott and
Pike County filed one motion. R. 43. Southern Health Partners, Dr. Waldridge, and Nurses
Clevenger and Ray (the medical defendants) filed a separate motion. R. 45.
DISCUSSION
Summary judgment is appropriate when the moving party is entitled to judgment as a
matter of law because there are no genuine issues of material fact in dispute. See Fed. R.
Civ. P. 56. The party seeking summary judgment bears the initial burden of “informing the
district court of the basis for its motion” and “identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The nonmoving party must respond with “specific facts
showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). This Court then determines “whether the
evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Id. at 251–52. When determining
whether there is a genuine issue for trial, the Court views the evidence and draws “all
justifiable inferences” in favor of the nonmoving party. Id. at 255. A mere “scintilla” of
evidence in support of the non-moving party’s position is insufficient to defeat summary
judgment. Id. at 251.
I.

Pike County, Kentucky
Hamilton correctly concedes that summary judgment is appropriate for both his

Section 1983 and his state law claims against Pike County, Kentucky. See R. 63 at 1 n.1.
Counties are liable under section 1983 if a constitutional violation results from an official
policy or custom of that county. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690
8

(1978). As Pike County points out, there is no evidence that the County maintained a policy
or custom encouraging or resulting in the disregard of inmates’ medical needs. Instead, the
evidence shows that Pike County increased the medical staff presence at the Pike County Jail
by hiring Southern Health Partners. R. 46-1 at 4–5. And Pike County Jail’s stated policy is
to provide inmates with medical care “comparable to that available to citizens in the
surrounding community.” R. 43-6 at 2. As for Hamilton’s state law claims, “Kentucky
counties are cloaked with sovereign immunity.” Lexington-Fayette Urban County Gov’t v.
Smolcic, 142 S.W.3d 128, 132 (Ky. 2004). Kentucky has not waived its immunity against
tort suits or suits for violations of administrative regulations such as Hamilton’s. Therefore
summary judgment in favor of Pike County on Hamilton’s Section 1983 and state law claims
is appropriate.
II.

Jailer Rodney Scott
Jailer Scott argues summary judgment on Hamilton’s Section 1983 claims is

appropriate both because he did not commit a constitutional violation and because he is
entitled to qualified immunity.5
Jailer Scott is entitled to qualified immunity because he did not violate Hamilton’s
constitutional rights.

Qualified immunity shields government officials performing

discretionary functions from liability under Section 1983 so long as “their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Phillips v. Roane Cnty., 534 F.3d 531, 538 (6th Cir. 2008) (internal
5

Hamilton sued Jailer Rodney Scott in both his official and personal capacities. In Kentucky, a county Jailer
is an officer of the county and shares the county’s sovereign immunity. See Ky. Const. § 99; Commonwealth
Bd. of Claims v. Harris, 59 S.W.3d 896, 899 (Ky. 2001). Therefore, summary judgment against Hamilton on
claims against Jailer Rodney Scott in his official capacity is appropriate. Hamilton concedes this point. See
R. 63 at 1 n.1.

9

quotation omitted). In resolving a government official’s claim of qualified immunity, courts
look to whether (1) the plaintiff has alleged or shown facts establishing the violation of a
constitutional right, and (2) the right at issue was “clearly established” at the time of the
alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). Courts may decide
those two questions in any order. Id. at 236. When government officials wrongly deprive a
prisoner of medical care, they violate that prisoner’s constitutional rights. See DeShaney v.
Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 199–200 (1989) (citing Estelle v.
Gamble, 429 U.S. 97, 103–04 (1976). But Jailer Scott is still entitled to qualified immunity
because the plaintiff has failed to point to facts demonstrating that Scott violated his
constitutional rights.
The Eighth Amendment is incorporated against the states through the Fourteenth
Amendment and prohibits punishments that “‘involve the unnecessary and wanton infliction
of pain.’” Lockett v. Suardini, 526 F.3d 866, 875 (6th Cir. 2006) (quoting Rhodes v.
Chapman, 452 U.S. 337, 346 (1981)). A prison official or member of the prison medical
staff violates the Eighth Amendment when he is deliberately indifferent to a prisoner’s
serious medical needs. See Estelle, 429 U.S. at 104–05. Deliberate indifference requires
more than negligence. The defendant must have “recklessly disregard[ed]” a “substantial
risk of serious harm to a prisoner.” Farmer v. Brennan, 511 U.S. 825, 836 (1994). A
deliberate indifference claim therefore has an objective component and a subjective
component. First, the plaintiff must show “that the medical need at issue [wa]s sufficiently
serious.” Comstock v. McCrary, 273 F.3d 693, 702–03 (6th Cir. 2001) (quotation omitted).
Second, the plaintiff must show that the defendant was actually aware of a substantial
medical risk to the plaintiff and that the defendant disregarded that risk. Id. at 703.
10

Jailer Scott concedes the objective component of the deliberate indifference test, so
the dispute is over the subjective component. At the summary judgment stage, Hamilton
must point to facts that show Jailer Scott “could have perceived a substantial risk of serious
harm to [Hamilton].”

Clark-Murphy v. Foreback, 439 F.3d 280, 290 (6th Cir. 2006).

Hamilton offers two facts to meet that burden, and the second is sufficient. First, Baker
stated that she called Jailer Scott on a daily basis for around a week asking that Hamilton be
taken to the hospital. During most of those calls, Baker explained that although the medical
staff said Hamilton was fine, her aunt had visited Hamilton and did not think he was okay.
R. 47-1 at 11. Those calls simply show that Baker disagreed with how the jail medical staff
was handling Hamilton’s care. Baker did not point to a specific medical condition, so her
calls are not evidence that Jailer Scott perceived a serious medical risk to Hamilton. See
Young v. Martin, 70 F. App’x 256, 261 (6th Cir. 2003) (finding that family members’ “vague
and generalized concern for [a prisoner’s] well-being and medical care” was not enough to
put a warden on notice of the prisoner’s serious medical condition). Second, Baker also
stated that during two of her calls to Jailer Scott she told him: (1) that Cheryl Ray said
Hamilton looked ill and said he had fallen and could not get up, and (2) that Hamilton was
soiling himself, not eating, and not taking his medicine. R. 47-1 at 10–11, 40–41. Baker did
not specify when she relayed this information to Scott. The Sixth Circuit has held that
“obvious signs of reoccurring incontinence and debilitating immobility [are] clear symptoms
of a serious problem.” Taylor v. Franklin Cnty., Ky., 104 F. App’x 531, 538 (6th Cir. 2004).
Jailer Scott argues that these calls could not have put him on notice of a serious risk to
Hamilton because neither he nor Baker had ever directly observed Hamilton’s symptoms.
See R. 70 at 4, 7–8. But Jailer Scott offers no reason why third-party information is so
11

unreliable that no reasonable fact-finder could conclude that he believed Baker and perceived
a serious medical risk to Hamilton. The two calls therefore do raise a genuine issue of
material fact as to whether Jailer Scott perceived of a serious medical risk to Hamilton.
But even if Jailer Scott was aware of a serious medical risk to Hamilton, there is no
evidence that he consciously disregarded that risk. “‘[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.’” Sanderfer v. Nichols, 62
F.3d 151, 155 (6th Cir. 1995) (quoting Farmer, 511 U.S. at 844).
Baker, the only member of Hamilton’s family who had prolonged contact with Jailer
Scott, testified that Jailer Scott was responsive to her concerns. R. 47-1 at 17. She asked
Jailer Scott to have a member of the medical staff call her during their first call, and he did.
R. 47-1 at 9. After that he consistently referred her calls to the medical staff. When Baker
asked him to send Hamilton to the hospital, he explained to her that the decision to do so was
up to the medical staff, not him. R. 47-1 at 11. Once Dr. Waldridge approved Hamilton’s
transfer to the hospital, Jailer Scott approved the transfer as well.
Moreover, Jailer Scott reasonably relied on the assumption that the medical staff
would attend to Hamilton’s medical needs.

Jailer Scott testified that Southern Health

Partners had medical authority at the jail and that he expected them to deal with medical
issues. R. 46-1 at 14. He had received “hardly [] any” complaints about the medical staff at
the jail while he was in charge. R. 46-1 at 8. Non-medical prison officials, such as Jailer
Scott, act reasonably when they rely on the judgment of the prison medical staff. See
Ronayne v. Ficano, 173 F.3d 856, at *3 (6th Cir. 1999) (unpublished table decision)
(“Supervisory officials are entitled to rely on medical judgments made by medical
12

professionals responsible for prisoner care.”); see also Phillips v. Tiona, 2013 WL 239891, at
*6 (10th Cir. 2013) (reasonable reliance on the medical staff “negates rather than supports
liability” (quotation omitted)); Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011) (holding
that prison officials were entitled to rely upon a nurse’s medical opinion); Johnson v.
Doughty, 433 F.3d 1001, 1010–11 (7th Cir. 2006) (finding no deliberate indifference when
prison official made sure the medical staff was addressing the issue and deferred to their
judgment); Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (holding that where a prisoner
is cared for by medical personnel “a non-medical prison official will generally be justified in
believing that the prisoner is in capable hands” unless there is reason to believe that the
medical staff is not treating or mistreating a prisoner). Hamilton argues that Jailer Scott’s
reliance on the jail medical staff was unreasonable because Jailer Scott never checked to
make sure that Hamilton had been treated. R. 63 at 19. But again, there was no history of
complaints about the jail medical staff that call into question Jailer Scott’s assumption that
Hamilton was receiving adequate treatment. And when Baker called Jailer Scott, she told
him the medical staff was providing Hamilton with care and that the medical staff’s opinion
was that Hamilton was “okay.” R. 47-1 at 11.
Hamilton also argues that Jailer Scott had the authority to supervise and override
medical decisions and that the failure to do so shows he disregarded a serious medical risk to
Hamilton.6 R. 63 at 21–22. The fact that a defendant “had a job to do and did not do it,”
may support a conclusion that the defendant disregarded a serious medical risk. Young ex
rel. Estate of Young v. Martin, 51 F. App’x 509, 515 (6th Cir. 2002). However, Hamilton
6

Jailer Scott interprets this argument as a new claim against Jailer Scott based on supervisory liability. R. 70
at 10–11. He misunderstands Hamilton’s argument, which is simply that Jailer Scott’s failure to do his job is
proof that he disregarded the serious medical risk to Hamilton.

13

has not shown that it was Jailer Scott’s job to override the medical staff. The statutes and
regulations Hamilton cites do not require jailers to veto medical decisions or set out any
criteria under which they must do so. See Ky. Rev. Stat. § 71.040 (stating that if an arrestee
needs emergency medical care, he shall receive it prior to admission into a jail and that
jailers must treat inmates humanely); 501 Ky. Admin. Regs. § 3:090 (stating that emergency
care shall be provided when needed and setting out a procedure for transferring inmates
when the care they need is not available at their current location). Nor does the jail’s medical
policy. R. 43-6 at 2 (stating that “Southern Health Partners is responsible for medical
services . . . and shall not be restricted by the jailer in their performance[]”). Indeed, the
jail’s “emergency medical services” policy cited by Hamilton undermines his position. In
the event of a medical emergency, the jail officer is supposed to contact Southern Health
Partners and then comply with the physician’s orders regarding transportation to Pikeville
Medical Center or treatment.

See R. 63-1 at 3–4. Furthermore, Kentucky regulations

specifically prohibit jailers from “restrict[ing]” the health care staff’s performance of their
duties. 501 Ky. Admin. Regs. § 3:090(1)(3). Jailer Scott did concede that he is responsible
for supervising Southern Health Partners, but he viewed his role as limited to investigating
complaints. R. 46-1 at 8. Therefore, Hamilton has not offered any evidence from which a
fact-finder could conclude that Jailer Scott disregarded a serious medical risk to Hamilton by
failing to perform his job as a jailer.
Hamilton also argues in passing that Jailer Scott disregarded a medical risk to
Hamilton by delaying Hamilton’s transportation to the hospital. See R. 63 at 19–20. The
decision to send Hamilton to the hospital was made in the late afternoon, and Hamilton
arrived at the hospital in the late evening. There is no evidence in the record that explains, or
14

even hints at, the cause of the delay. Therefore, there is no evidence that suggests Jailer
Scott was responsible for the delay. To the contrary, all of the evidence, including Baker’s
deposition testimony, depicts Jailer Scott as someone willing to act when he had the power to
do so. Therefore, Hamilton has not met his burden on summary judgment of pointing to
facts showing that Jailer Scott delayed his transportation to the Pikeville Medical Center.
Along with his federal claim, Hamilton raised five state law claims against Jailer
Scott: (1) intentional infliction of emotional distress, (2) the tort of outrage, (3) negligence,
(4) gross negligence, and (5) violations of various statutory and regulatory provisions.
Hamilton concedes summary judgment is appropriate in favor of Jailor Scott on the first two
claims. See R. 63 at 23 n.1. Jailer Scott did not move for summary judgment on the third
and fourth claims, so they remain pending.7 With respect to the fifth claim, Jailer Scott
argues that Hamilton’s complaint failed to identify which sections of the statutes and
regulations Jailer Scott violated and to explain those violations. See R. 43 at 19–20. In
response, Hamilton states that he has proven a violation of the various Kentucky statutes and
administrative regulations mentioned in the complaint. R. 63 at 24. But he has not. The
Court agrees with Jailer Scott that Hamilton has failed to develop the argument and point to
facts that make out a violation. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997) (“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.” (internal quotation and ellipses omitted));

7

Hamilton’s response brief urged the Court not to grant the defendants summary judgment on his negligence
and gross negligence claims. R. 63 at 23–24. Jailer Scott never moved for summary judgment on those
claims, so of course the Court has no reason to grant summary judgment on those claims. For the same reason,
the Court also has no reason to consider the new argument made in Jailer Scott’s reply brief that he is entitled
to qualified official immunity on all of Hamilton’s state law claims. See R. 70 at 12–13; see also Fastenal Co.
v. Crawford, 609 F. Supp. 2d 650, 674 (E.D. Ky. 2009) (“[I]ssues may not be raised in district court for the
first time in a reply brief.”).

15

see also R. 63 at 24 (arguing only that if Jailer Scott violated the Kentucky statutes and
regulations, those violations would constitute negligence per se). Because Hamilton has not
met his burden of explaining why a genuine issue of material fact exists on his standalone
administrative and statutory claims, summary judgment in favor of Jailer Scott is appropriate.
III.

Southern Health Partners
Hamilton correctly concedes that summary judgment is appropriate for his Section

1983 claims against Southern Health Partners. See R. 64 at 1 n.1. Southern Health Partners
is a private corporation under contract with the Pike County Jail. Thus, Southern Health
Partners is liable under Section 1983 only if one of its own official policies or customs
caused a violation of Hamilton’s constitutional rights. See Johnson v. Karnes, 398 F.3d 868,
877 (6th Cir. 2005). Hamilton offers no proof that a policy or custom of Southern Health
Partners caused a violation of his constitutional rights. Summary judgment in favor of
Southern Health Partners is therefore appropriate.
Because Southern Health Partners did not move for summary judgment on
Hamilton’s state law claims, those claims survive summary judgment. The first time the
state law claims against Southern Health Partners are mentioned is in the medical
defendants’ reply brief. See R. 71 at 7–8. “However, issues may not be raised in district
court for the first time in a reply brief.” Fastenal Co., 609 F. Supp. 2d at 674. Earlier in this
litigation, the Court granted a motion in limine by the medical defendants that excluded
certain testimony by Nurse Madeline LaMarre, Hamilton’s expert witness. See R. 61. The
Court granted the motion in mid-December after the defendants filed their motions for
summary judgment. The medical defendants argue that they could not have briefed the state
law claims without first knowing the outcome of the motion in limine. See R. 71 at 7–8.
16

Even assuming that is true, three weeks elapsed between the ruling on the motion in limine
and the date Hamilton filed his response brief. The medical defendants could have asked for
permission to supplement their summary judgment motion during that time, but they chose
not to. By waiting until the reply brief to contest the state law claims, the medical defendants
created a situation in which Hamilton could not respond. Ruling on the state law claims
would be unfair to Hamilton, and the medical defendants offer no compelling reason to
override this concern. Therefore, summary judgment on Hamilton’s state law claims against
the medical defendants, including Southern Health Partners, is not appropriate.
IV.

Nurse Tina Clevenger
Hamilton does not contest the motion for summary judgment with respect to his

Section 1983 claim against Nurse Clevenger. See R. 64 at 1 n.1. Therefore, summary
judgment on Hamilton’s Section 1983 claim against Nurse Clevenger is appropriate. As
previously explained, Hamilton’s state law claims against Nurse Clevenger survive summary
judgment because the medical defendants waited until the reply brief to raise their arguments
on these claims.8
V.

Dr. Ron Waldridge
Like Jailer Scott, Dr. Waldridge moves for summary judgment on Hamilton’s Section

1983 claims both because he did not violate the Eighth Amendment and because he is
entitled to qualified immunity. Dr. Waldridge is an independent contractor working for
Southern Health Partners, a private corporation. R. 51-1 at 4. That means that although he is
a state actor for the purposes of section 1983, he “is not entitled to assert qualified
8

Hamilton sued the three nurses—Tina Clevenger, Monica Morris, and Rose Ray—in both their official and
personal capacities. The medical defendants’ motion for summary judgment did not explicitly seek summary
judgment in favor of the nurses in both their official and personal capacities. Therefore the Court treats the motion
for summary judgment as one only relating to the personal capacity claims.

17

immunity.” McCullum v. Tepe, 693 F.3d 696, 700, 704 (6th Cir. 2012) (“[T]here does not
appear to be any history of immunity for a private doctor working for the government, and
the policies that animate our qualified-immunity cases do not justify our creating an
immunity unknown to the common law.”).
The only issue is whether there is a genuine issue of material fact as to whether
Dr. Waldridge was deliberately indifferent to Hamilton’s medical needs. As summarized
earlier, a deliberate indifference claims has two components: (1) the plaintiff must show he
had a sufficiently serious medical need, and (2) the plaintiff must show that the defendant
was aware of a serious medical risk to the plaintiff and disregarded that risk. See Comstock,
273 F.3d at 702–03.
In his reply brief, Dr. Waldridge mentions in passing that Hamilton cannot prove the
objective component of his deliberate indifference claim. A serious medical need is “one
that has been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004) (internal quotation omitted). Dr.
Waldridge points to Hamilton’s cellmate Fields’s statement that he initially believed
Hamilton was faking his symptoms.

Dr. Waldridge argues that because he examined

Hamilton only briefly, his suspicion that Hamilton was faking his symptoms was reasonable
given Fields’s initial doubts. R. 71 at 10. However, this argument conflates the objective
and subjective prongs. The objective prong simply asks whether Hamilton clearly needed
medical attention. Viewing the facts in the light most favorable to Hamilton, he was unable
to walk, had soiled himself multiple times, and was having trouble breathing.

Those

symptoms qualify as an obviously serious medical condition. See Taylor, 104 F. App’x at
18

538. Thus, Hamilton has pointed to facts sufficient to raise a genuine issue of material fact
on the objective competent.
Hamilton offers two reasons why Dr. Waldridge’s actions satisfy the subjective
competent of his deliberate indifference claim. His first argument is that Dr. Waldridge’s
examination and conclusions on September 24 were so inadequate as to amount to deliberate
indifference. But the facts do not support Hamilton’s allegation. Dr. Waldridge conducted an
exam and could not determine why Hamilton was having trouble walking and breathing. Dr.
Waldridge checked Hamilton’s blood pressure, pulse, and oxygen levels. R. 43-9 at 1. He
also performed a physical exam that included checking Hamilton’s heart sounds, extremities,
and abdomen, and he found nothing unusual. Id.; R. 51-1 at 16. Dr. Waldridge hypothesized
that Hamilton’s symptoms might be either feigned or the result of drug interactions. R. 43-9
at 1. So he decided to discontinue some of Hamilton’s medications. Id.; R. 51-1 at 17.
Hamilton faults Dr. Waldridge for not figuring out that Hamilton was seriously ill. R. 64 at
25–26.

He focuses on Hamilton’s ultimate diagnoses upon admission to the Pikeville

Medical Center and argues that Dr. Waldridge’s failure to identify any of them amounts to
deliberate indifference. Id. However, “[n]egligence in diagnosing a medical condition does
not constitute unconstitutional deliberate indifference.” Jones v. Muskegon Cnty., 625 F.3d
935, 945 (6th Cir. 2010) (quotation omitted). Hamilton does not point to any evidence that
Dr. Waldridge knew or should have known that Hamilton had any particular ailments. Even
when all the facts are viewed in the light most favorable to Hamilton, there is no evidence
that Dr. Waldridge was aware that Hamilton was fully unable to walk or was soiling himself
at the time of the examination. Hamilton stated that he told Dr. Waldridge that he was
having trouble walking, not that he was totally immobile. R. 50-1 at 44. And Dr. Waldridge
19

recalls Hamilton walking into the exam room. R. 51-1 at 17. Hamilton points to statements
by his sister and his cellmate who said they knew something was wrong with Hamilton, but
those statements do not shed light on what Dr. Waldridge knew. Dr. Waldridge has offered
an explanation for his diagnosis and treatment plan. See, e.g., id. at 17–18 (testimony by Dr.
Waldridge that he took Hamilton off his psoriasis medication that was known to have side
effects consistent with Hamilton’s symptoms).

Hamilton has not pointed to any facts

showing that a diagnosis that he was malingering or suffering from pharmaceutical side
effects was “grossly inadequate care.” Terrance v. Northville Reg’l Psychiatric Hosp., 286
F.3d 834, 843 (6th Cir. 2002). When, as here, a prisoner “received some medical attention
and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to
second guess medical judgments and to constitutionalize claims that sound is state tort law.”
Graham ex rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004)
(quotation omitted). Thus, Hamilton has not shown that Dr. Waldridge disregarded a serious
medical risk to Hamilton during the examination on September 24.
Hamilton’s second argument is that Dr. Waldridge exhibited deliberate indifference
on September 25, by prescribing a multivitamin after learning Hamilton was unable to walk
and needed help to reach the shower. Viewed in the light most favorable to Hamilton, Nurse
Ray called Dr. Waldridge the day after she examined Hamilton. She reported that Hamilton
was complaining of “not being able to get on [his] feet to walk” and needing to be “helped . .
. to have a shower.” R. 43-9 at 1; R. 75-1 at 61. Dr. Waldridge argues that Hamilton just
repeated the complaints he had made the day before, and that Dr. Waldridge decided to
continue his treatment plan. See R. 71 at 15. That might be a reasonable interpretation of the
evidence. But it is also reasonable to interpret Hamilton’s complaints as describing an
20

escalation of his symptoms—from having trouble walking to being unable to walk at all. See
R. 64 at 28. And at this stage, that reasonable inference must be drawn in Hamilton’s favor.
As with his first argument, Hamilton’s claim is that Dr. Waldridge’s treatment (here,
prescribing a multivitamin) was inadequate. To succeed on this claim, Hamilton must show
“that he received grossly inadequate care in the face of a decision to take an easier but less
efficacious course of treatment.”

Scott v. Ambani, 577 F.3d 642, 650 (6th Cir. 2009)

(internal quotations omitted). Hamilton’s case resembles Jones v. Muskegon Cnty., 625 F.3d
935 (6th Cir. 2010). There, the Sixth Circuit stated that the prescription of a laxative in
response to complaints of substantial weight loss and severe stomach pain “seem[ed]
inappropriate.” Id. at 945. However, the Court affirmed a grant of summary judgment
because those symptoms were consistent with the doctor’s diagnosis of constipation, the
doctor scheduled follow up exams, and the doctor transferred the patient to a hospital once
his condition worsened. Id. Here, Dr. Waldridge conceded that his “typical response” in
response to Hamilton’s complaints would not have been the prescription of a multivitamin.
R. 51-1 at 20. There is no evidence that immobility, as opposed to impaired mobility, is
consistent with his initial diagnosis of drug interactions. And there is no evidence that Dr.
Waldridge ever followed up with Hamilton or ordered further tests. Dr. Waldridge did
approve Hamilton’s transfer to the hospital, but he made that decision on September 27th,
two days after a nurse told him that Hamilton’s condition had worsened. Id. When the
evidence is viewed in the light most favorable to Hamilton and all plausible inferences are
drawn in his favor, a fact-finder could find that Dr. Waldridge was deliberately indifferent. It
is at least plausible that Dr. Waldridge knew of a serious medical risk—Hamilton’s inability
to walk—and disregarded that risk by prescribing only a multivitamin in response.
21

Therefore, summary judgment on Hamilton’s Section 1983 claims against Dr. Waldridge is
inappropriate.
Hamilton’s state law claims against Dr. Waldridge survive summary judgment
because, as explained earlier, the medical defendants waited until the reply brief to raise their
qualified immunity arguments.
VI.

Nurse Rose Ray
Nurse Ray also argues that she is entitled to summary judgment on Hamilton’s

Section 1983 claim on qualified immunity grounds and because she did not violate
Hamilton’s Eighth Amendment rights. Nurse Ray was an employee or an independent
contractor of Southern Health Partners, a private corporation. Therefore, she is a state actor
for the purposes of section 1983, but she may not assert a qualified immunity defense. See
Harrison v. Ash, 539 F.3d 510, 521, 525 (6th Cir. 2008) (reviewing the “history and purpose
of qualified immunity, as well as the case law interpreting the scope of the doctrine” and
concluding that nurses employed by a private medical provider are not entitled to qualified
immunity). The remaining issue is whether there is a genuine issue of material fact as to
whether Nurse Ray was deliberately indifferent to Hamilton’s medical needs.
At the start of her shift on Saturday, September 25, Nurse Ray read Hamilton’s chart
to see if Dr. Waldridge had left her any orders. R. 75-1 at 59. At some point after that, she
called Dr. Waldridge to relay Hamilton’s complaints about being unable to walk and needing
to be helped to shower. She gave Hamilton a multivitamin, per Dr. Waldridge’s instructions.
R. 43-9 at 1. She does not remember seeing Hamilton after that. R. 75-1 at 68.
Hamilton argues that Nurse Ray was deliberately indifferent to his medical needs
because she did not check on Hamilton after providing him with a multivitamin. Viewing
22

the evidence in Hamilton’s favor, Nurse Ray was aware of a serious medical risk: Hamilton’s
inability to walk. See id. at 77 (deposition testimony of Nurse Ray that the inability to walk
might be a sign of a serious medical condition). Nurse Ray responded to that risk by calling
Dr. Waldridge, who did not order her to take further action beyond providing Hamilton with
a multivitamin. Nurse Ray’s deference to Dr. Waldridge’s course of treatment was not
deliberate indifference. See Holloway v. Delaware Cnty. Sheriff, 700 F.3d 1063, 1075 (7th
Cir. 2012) (“Nurses may generally defer to instructions given by physicians, but that
deference may not be blind or unthinking, particularly if it is apparent that the physician’s
order will likely harm the patient.” (quotation omitted)). Nurse Ray provided an explanation
for why she followed Dr. Waldridge’s order:

She knew that Dr. Waldridge had seen

Hamilton in person the day before her call with Dr. Waldridge about Hamilton. R. 75-1 at
67. Furthermore, Nurse Ray was not licensed to independently diagnose conditions, devise
treatment plans, or prescribe medicine. R. 76-1 at 54, 63. Hamilton’s need for additional
treatment was not so obvious that Nurse Ray’s deference to Dr. Waldridge’s order was
deliberate indifference. See Williams v. Simpson, 509CV-31-R, 2010 WL 5186722, at *7
(W.D. Ky. Dec. 15, 2010) (applying Holloway and finding no deliberate indifference because
a nurse was “shielded by [the doctor’s] diagnosis” where nurse had only one encounter with
an inmate, contacted a doctor, and accepted the doctor’s diagnosis of malingering as
reasonable). Hamilton’s complaint about Nurse Ray’s failure to check on him amounts to a
“dispute is over the adequacy of the treatment,” and “federal courts are generally reluctant to
second guess medical judgments.” Graham, 358 F.3d at 385. Therefore, Nurse Ray’s failure
to check on Hamilton does not support a constitutional claim of deliberate indifference.

23

Alternatively, Hamilton argues that Nurse Ray was deliberately indifferent because
she concealed Hamilton’s complaints from Dr. Waldridge. Dr. Waldridge believes that the
only way he would have prescribed a multivitamin is if Nurse Ray had called him and asked
him to or said that Hamilton wanted one. He does not believe he would have done so if
Nurse Ray had told him that Hamilton’s condition had worsened. R. 51-1 at 20. Hamilton
argues that if Dr. Waldridge’s testimony is credited then Nurse Ray must have chosen not to
tell Dr. Waldridge about Hamilton’s complaints. (Of course, the other consequence of
crediting Dr. Waldridge’s testimony is that Hamilton’s section 1983 claim against
Dr. Waldridge would fail.) Hamilton’s argument leads to a somewhat hard-to-believe story:
A nurse committed to ignoring a patient’s need for medical care nonetheless calls a doctor
for a multivitamin prescription, either on her own initiative or at the patient’s request. But
Hamilton’s interpretation of the facts is plausible, and “intentionally denying or delaying
access to medical care” is deliberate indifference. Estelle, 429 U.S. at 104–05. Thus,
summary judgment in favor of Nurse Ray on Hamilton’s Section 1983 claims is not
appropriate.
As with the other medical defendants, Hamilton’s state law claims against Nurse Ray
survive summary judgment because the medical defendants waited until the reply brief to
raise their arguments on the issue.
VII.

Punitive Damages
Summary judgment on the plaintiff’s punitive damages claim is not appropriate. The

medical defendants’ motion for summary judgment on this issue is one conclusory sentence
stating that no evidence in the record supports a punitive damages claim. See R. 45-1 at 12.
The defendants have not identified the relevant legal standards for punitive damages under
24

federal and Kentucky law or explained why there is not enough evidence in the record to
meet those standards. A party moving for summary judgment has the burden of “pointing
out to the district court [] that there is an absence of evidence to support the nonmoving
party's case.” Celotex Corp., 477 U.S. at 325. This initial burden is a light one. However, a
“defendant should not make a motion for summary judgment, without pointing out the
deficiencies of the plaintiff's case, and then expect the court to rule in the defendant's favor.”
Max Arnold & Sons, LLC v. W.L. Hailey & Co., Inc., 452 F.3d 494, 507 (6th Cir. 2006). The
medical defendants did just that, so they have not met their initial burden and summary
judgment is inappropriate.
VIII. John and Jane Does One Through Ten
Hamilton’s complaint names “John and Jane Does 1–10” as defendants. R. 18-1 at 1.
Hamilton had until April 6, 2012, to identify and serve those defendants, and he has not done
so. Accordingly, Hamilton has until Friday, February 15, 2013, to identify and serve John
and Jane Does 1–10. If he does not do so, those claims will be dismissed without prejudice.
See Fed. R. Civ. P. 4(m) (“If a defendant is not served within 120 days after the complaint is
filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made within a
specified time.”).
IX.

The Motions To Strike
Both of the defendants’ included new arguments in their reply briefs, which Hamilton

moved to strike. R. 73; R 74. The defendants respond that this Court could eliminate any
prejudice from their new arguments by allowing the plaintiff to file a surreply. R. 77; R. 78.
That might do the trick, but doing so would also eliminate the incentive for movants to
25

include all of the grounds for their motion in their initial brief. In any case, the motions are
now moot because the Court did not consider the defendants’ new arguments.
CONCLUSION
Accordingly, it is ORDERED that:
(1)

Pike County, Kentucky and Rodney Scott’s motion for summary judgment, R.
43, is GRANTED IN PART AND DENIED IN PART.
(a)

The motion is GRANTED with respect to all of the plaintiff’s claims
against Pike County, Kentucky.

(b)

The motion is GRANTED with respect to the plaintiff’s claims against
Rodney Scott in his official capacity and the plaintiff’s section 1983
claim against Rodney Scott in his personal capacity.

(c)

The motion is GRANTED with respect to the plaintiff’s intentional
infliction of emotional distress, tort of outrage, and statutory and
administrative claims against Rodney Scott in his personal capacity.

(d)

Since defendant Scott failed to properly move for summary judgment,
plaintiff’s negligence and gross negligence claims will proceed to trial.

(2)

The medical defendants’ motion for summary judgment, R. 45, is GRANTED
IN PART AND DENIED IN PART.
(a)

The motion is GRANTED with respect to the plaintiff’s section 1983
claim against Southern Health Partners.

(b)

The motion is DENIED with respect to the plaintiff’s state law claims
against Southern Health Partners.

26

(c)

The motion is GRANTED with respect to the plaintiff’s section 1983
claim against Tina Clevenger in her personal capacity.

(d)

The motion is DENIED with respect to the plaintiff’s state law claims
against Tina Clevenger in her personal capacity.

(e)

The motion is DENIED with respect to the plaintiff’s section 1983
claim against Dr. Waldridge based on Dr. Waldridge’s actions in
response to the telephone call from Nurse Ray on September 25, 2010.

(f)

The motion is GRANTED with respect to the plaintiff’s section 1983
claim against Dr. Waldridge based on Dr. Waldridge’s examination and
diagnosis of the plaintiff in September 24, 2010.

(g)

The motion is DENIED with respect to the plaintiff’s section 1983
claim against Nurse Ray in her personal capacity based on her failure to
accurately convey Hamilton’s symptoms to Dr. Waldridge during their
telephone call on September 25, 2010.

(h)

The motion is GRANTED with respect to the plaintiff’s section 1983
claim against Nurse Ray in her personal capacity based on her failure to
take further action after reporting the plaintiff’s symptoms to Dr.
Waldridge during their telephone call on September 25, 2010, and
complying with Dr. Waldridge’s instruction to provide the plaintiff
with a multivitamin.

(i)

The motion is DENIED with respect to the plaintiff’s punitive damages
claims against the medical defendants.

27

(3)

Hamilton has until Friday, February 15, 2013, to identify and serve John and
Jane Does 1–10. If he does not do so, those claims will be dismissed without
prejudice. See Fed. R. Civ. P. 4(m).

(4)

The plaintiff’s motions to strike, R. 73 and R. 74, are DENIED AS MOOT.

This the 11th day of February, 2013.

28