Sours v. Big Sandy Regional Jail Authority et al
Filing
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MEMORANDUM OPINION & ORDER: It is therefore ORDERED that dfts motion for summary judgment, R. 51 , is DENIED with respect to plas claims against Nurse Allison for negligence and gross negligence. Summary judgment is GRANTED with respect to all other claims. Signed by Judge Amul R. Thapar on 5/28/2013. (TDA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
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Civil Action No. 11-115-ART
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MEMORANDUM OPINION
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AND ORDER
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WILLIAM SOURS, Administrator of the
Estate of James Sours,
Plaintiff,
v.
BIG SANDY REGIONAL JAIL
AUTHORITY, et al.,
Defendants.
On July 13, 2010, James Sours was arrested and booked into the Big Sandy Regional
Detention Center. R. 52-1. Two days later Sours was dead. R. 52-14. The tragic events that
led to Sours’s death are the subject of this case, instituted by plaintiff William Sours as the
administrator of his brother’s estate. The plaintiff believes that the defendants violated
Sours’s rights under the Fourteenth Amendment and state law. The defendants have now
moved for summary judgment. Their motion is granted in part and denied in part.
BACKGROUND
When Sours entered the Big Sandy Regional Detention Center, the intake officer sent
him to see Nurse Nancy Allison because Sours was a diabetic. R. 56-1 at 26–27. Nurse
Allison was responsible for inmates’ medical care when the Detention Center’s physician,
Dr. Sarah Belhasen, was not present. R. 58-2 at 34. Nurse Allison met with Sours to discuss
his medical history. She noted that he had liver problems, high blood pressure, and diabetes.
1
R. 51-1 at 1. His last medical evaluation for his diabetes was at least one month before his
arrest.1 R. 51-1 at 1; R. 56-1 at 41. Thus, Nurse Allison concluded that Sours’s diabetic
condition was not “too bad.” Id. at 42–43. His last doctor had put him on a “sliding scale,”
meaning that a scale indicates the appropriate insulin dosage for a particular blood sugar
level. Id. at 34–35. But Sours had not taken insulin in over a month, and he told Nurse
Allison that he was sometimes confused about when and if he took insulin. R. 56-1 at 42–43.
Sours explicitly told Nurse Allison that he could not care for himself and had no one who
could bring insulin to the jail. R. 52-2 at 1. Nurse Allison recognized that Sours’s blood
sugar, which dropped from 283 to 274 during this meeting, was “a little high.” R. 56-1 at 45,
53. But Nurse Allison attributed Sours’s high blood sugar to the influence of drugs or
alcohol, which can cause a spike in blood sugar. R. 56-1 at 44–45, 106. After meeting with
Sours, Nurse Allison faxed her progress notes about Sours to Dr. Belhasen, seeking
instructions for Sours’s treatment. R. 51-2. Nurse Allison then implemented Dr. Belhasen’s
standing order that diabetics receive a carbohydrate-restricted diet and left instructions for
the deputy jailers to monitor Sours’s blood sugar. R. 51-2; R. 56-1 at 29–30.
Sours’s blood sugar remained erratic. At 6:00 a.m. the following day, Sours’s blood
sugar dropped to 254, only to rise at 2:30 p.m. to 327. R. 51-3 at 1. Nurse Allison attributed
this blood sugar spike to the fact that Sours was detoxing. R. 56-1 at 55–56. At 5:35 p.m.,
Sours told Deputy Jailers Salyer and Blanton that he did not feel well. R. 51-4; R. 56-1 at
73–76. Deputies Blanton and Salyer took Sours to see Nurse Allison. R. 51-4. Sours was
agitated. He told Nurse Allison that he wanted to go home, was nauseous, and had vomited.
1
The next day, Nurse Allison contacted two of Sours’s former health-care providers. Both providers told
Nurse Allison that they had not seen Sours in over four months. R. 56-1 at 40–41.
2
R. 56-1 at 73–76. But he denied that his blood sugar was acting up. Id. And Sours did not
have the “classical symptoms” of a diabetic episode such as increased thirst, hunger,
urination, or headache. Id. at 82–83. So Nurse Allison concluded that Sours was still
detoxing and placed him in a medical observation cell where Sours would be monitored by
video and regularly observed in person by deputy jailers. R. 51-5; R. 56-1 at 76, 142–43.
Nurse Allison did not observe anything unusual before she left that night. Id. at 77,
79. Before she left, she told the deputy jailers to monitor Sours’s blood sugar level, although
she noted that there was no insulin in the Detention Center for Sours. R. 51-7. Nurse
Allison also noted that Dr. Belhasen had ordered blood work and would see Sours the
following week. R. 51-6; R. 51-7. But Nurse Allison did not send her progress notes to Dr.
Belhasen, and she did not tell Dr. Belhasen that Sours’s blood sugar had spiked to 327.
R. 56-2 at 8; R. 56-3 at 27–28. Nurse Allison also met with the jail administrator, Randy
Madan. R. 56-1 at 112. Madan coordinates all training and supervision for the Big Sandy
Regional Jail Authority (“Jail Authority”). R. 58-2 at 70. Nurse Allison told Madan that
Sours was a “critical situation” because he was uncooperative. R. 56-1 at 112.
Deputy Jailers Jordan, Allen, and Adkins worked from midnight to 8:00 a.m. on July
15, 2010. R. 57-1 at 24–25, 33. Deputy Allen was the senior officer and supervisor on duty.
R 52-9 at 1. The previous shift informed the deputy jailers that Sours was a diabetic in
observation who was irritable and had vomited. R. 57-2 at 25; R. 57-3 at 26–28. At
approximately 3:15 a.m., Sours complained to deputies Allen and Adkins that he was having
chest pains. R. 57-2 at 30. Deputy Allen asked Deputy Jordan (who was monitoring Sours
via video, R. 58-1 at 10) to watch Sours closely on video monitors in the control room.
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R. 51-10. Six minutes later, Deputy Jordan observed Sours trying to make himself throw up.
R. 51-11. Then, at 6:17 a.m., Deputy Adkins went to Sours’s observation cell to escort him
to the medical wing so that staff could test his blood sugar. R. 51-12; R. 57-2 at 19–20.
Sours refused to take his blood sugar. R. 51-12. But he did complain of chest pain and said
that his blood pressure was “out of control.” R. 51-12; R. 57-1 at 47; R. 57-2 at 48–49.
Deputy Jailer Paul Griffith worked from 8:00 a.m. to 4:00 p.m. on July 15, 2010.
R. 57-4 at 11. Sours refused Deputy Griffith’s repeated offers of medication and refused
another deputy jailer’s attempts to take his blood sugar. R. 51-13; R. 51-14; R. 57-4 at 11.
Sours later refused Deputy Montgomery’s attempts to bring Sours to the nurses’ station to
have his blood sugar taken. R. 51-3; R. 58-3 at 11–12. Jail guards believed that everything
was “ok” until 10:15 p.m., when Deputy Blanton observed Sours attempting to make himself
throw up. R. 51-17; R. 57-3 at 29. Then, at 10:45 p.m., Deputy Salyer found Sours awake
and breathing but unresponsive. R. 51-21; R. 51-22; R. 57-3 at 34–35. Deputy Salyer
summoned deputies Blanton and Montgomery, who arrived seven minutes later. R. 57-3 at
53. Deputy Montgomery called an ambulance six minutes after he arrived at the cell. R. 5123; R. 58-3 at 42, 46. The ambulance arrived several minutes later, but Sours stopped
breathing “just seconds before” emergency personnel entered his cell. R. 51-21; R. 52-12; R.
58-3 at 48. The medical personnel took Sours to the local hospital, where he died of diabetic
ketoacidosis. R. 52-12; R. 52-14.
The plaintiff sued under 42 U.S.C. § 1983, alleging that the defendants violated
Sours’s Fourteenth Amendment rights. The plaintiff also believes the defendants are liable
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for negligence, gross negligence, and violations of 501 Ky. Admin. Regs. § 3:090. See R.
25. The defendants now move for summary judgment. R. 51.
ANALYSIS
As the moving party, the defendants must demonstrate that undisputed evidence
forecloses a claim or identify an element of a claim that Sours cannot support with
admissible evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). If they do so,
Sours 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)).
The Court then decides whether a reasonable juror could find for Sours on each of his claims
when all reasonable inferences are drawn in his favor. See Scott v. Harris, 550 U.S. 372, 380
(2007). Sours’s constitutional claims fail this standard, as does his claim under Kentucky’s
Administrative Regulations and his negligence claims against the Jail Authority,
Administrator Madan, and Deputies Allen, Blanton, Montgomery, Salyer, and Griffith.
However, his negligence claims against Nurse Allison survive.
I.
Section 1983 Claim for Violations of Sours’s Constitutional Rights
The plaintiff believes that the defendants violated his brother’s Fourteenth
Amendment right to adequate medical treatment. See Jones v. Muskegon Cnty., 625 F.3d
935, 941 (6th Cir. 2010) (“The Eighth Amendment forbids prison officials from . . . acting
with deliberate indifference toward [an inmate’s] serious medical needs. . . . [A] pretrial
detainee[] is analogously protected under the Due Process Clause of the Fourteenth
Amendment.” (internal quotations omitted)). Constitutional claims based on the adequacy of
an inmate’s medical treatment turn on whether the defendant was deliberately indifferent to
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the inmate’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976).
Deliberate indifference is the “reckless[] disregard” of a “substantial risk of serious harm to a
prisoner.” Farmer v. Brennan, 511 U.S. 825, 836 (1994). Thus, a deliberate indifference
claim has two components. First, the objective component requires a plaintiff to show “that
the medical need at issue [wa]s sufficiently serious.” Comstock v. McCrary, 273 F.3d 693,
702 (6th Cir. 2001) (quotation omitted). Second, the subjective component requires proof
that the defendant was actually aware of the plaintiff’s serious medical needs and chose to
disregard that risk. Id. at 703. None of the plaintiff’s constitutional claims meet this high
bar.
A.
Nurse Nancy Allison is Entitled to Summary Judgment
Nurse Allison rightly concedes the objective component of the deliberate indifference
test. R. 51 at 7. Sours was a diagnosed diabetic. R. 52-14. Diabetes is a serious medical
condition that satisfies the objective prong of the deliberate indifference test. See, e.g.,
Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005) (finding diabetes
that “required insulin injections at regular intervals” a serious medical condition). The
plaintiff’s deliberate indifference claim fails on the subjective component of the deliberate
indifference test.
Sours believes that the following facts show Nurse Allison’s knowledge of the
seriousness of Sours’s condition. Nurse Allison knew that Sours was diabetic. She knew that
his other conditions (like liver disease) could exacerbate his diabetes, R. 56-1 at 39, that he
couldn’t care for himself, R. 52-2 at 1, that his blood sugar was fluctuating, and that he was
nauseous. R. 56-1 at 73–76. All in all, Sours was “clearly a sick man,” R. 56-3 at 32, and
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Nurse Allison knew he was in a “critical situation[].” R. 56-1 at 112. And Nurse Allison
moved Sours to a medical cell, indicating that she believed his condition should be
monitored. Id. at 75–76.
But none of these facts without further speculation creates a material issue as to Nurse
Allison’s knowledge about Sours’s risk for diabetic ketoacidosis, or indicate that she
recklessly disregarded her knowledge about Sours’s diabetic condition. Nurse Allison stated
that she believed Sours was detoxing, and that this condition explained his blood sugar
spikes and his nausea. See, e.g., R. 56-1 at 55. And while Nurse Allison’s assumption
turned out to be incorrect, deliberate indifference requires a prison official to have actual
knowledge of an inmate’s risks. Farmer, 511 U.S. at 837. Negligence in diagnosing a
medical condition is not deliberate indifference. Jones, 625 F.3d at 945. So Nurse Allison’s
failure to properly diagnose diabetic ketoacidosis or provide treatment for this condition
cannot constitute deliberate indifference.
The plaintiff, however, points to further failures. He believes Nurse Allison exhibited
deliberate indifference when she did not order insulin (despite Sours’s high blood sugar) and
failed to call Dr. Belhasen or leave thorough instructions for the deputy jailers. R. 52 at 18.
The plaintiff may be correct that Nurse Allison should have done those things. But her
treatment of Sours was not “so cursory as to amount to no treatment at all.” Terrance v.
Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002) (quotation omitted).
Nurse Allison conducted an initial interview with Sours and concluded that his diabetes was
not serious, that he was surviving without insulin, and that his blood sugar spikes were due to
detoxing. R. 52-2; R. 56-1 at 42–45. She instituted Dr. Belhasen’s standing order for
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diabetics, ordered blood work for later in the week and scheduled Sours to see Dr. Belhasen
the following week. R. 56-1 at 29–30, 56–57. Nurse Allison also ordered that Sours’s blood
sugar be taken before meals and during her shift convinced Sours to test his blood sugar. Id.
at 50–54. When Sours continued to feel ill, Nurse Allison placed him in a medical cell so he
could be constantly observed. Id. at 73–76. Finally, she left instructions for guards to
monitor Sours and take his blood sugar, apparently assuming that guards would call her if
Sours refused to take his blood sugar. R. 51-7; R. 56-1 at 88. Where, as here, a prisoner
received medical attention for his serious needs, courts are “generally reluctant” to wade into
disputes over the adequacy of treatment. Graham ex rel. Estate of Graham v. Cnty. of
Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004) (quoting Westlake v. Lucas, 537 F.2d 857,
860 n.5 (6th Cir. 1976)).
This is not a case where Nurse Allison ignored Sours’s symptoms for several weeks,
or where Sours explicitly informed the defendants that he needed insulin. See, e.g., Phillips
v. Roane Cnty., Tenn., 534 F.3d 531, 541 (6th Cir. 2008) (finding deliberate indifference
where the decedent “exhibited life-threatening symptoms over a two-week period” but “the
correctional officers’ fail[ed] to transport her to a hospital” and the jail doctor failed to
follow-up on tests during this period); Garretson, 407 F.3d at 798 (finding deliberate
indifference where the plaintiff “informed [the defendant] at her booking that she required
insulin for her condition and that she was past due for her current dose” (emphasis added)).
Nurse Allison made several false assumptions in her treatment of Sours, and these
assumptions ended in tragedy. But she attempted to treat his medical needs. So she was not
deliberately indifferent.
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B.
Deputy Jailer Allen is Entitled to Summary Judgment2
Defendant Tony Allen was the supervisor on duty the morning of July 15, 2010.
R. 57-2 at 24. Like Nurse Allison, Deputy Allen concedes the objective component of the
deliberate indifference test, so the dispute is over Deputy Allen’s subjective perceptions.
The plaintiff believes that Deputy Allen “could have perceived a substantial risk of serious
harm to [Sours].” Clark-Murphy, 439 F.3d at 290. Specifically, the plaintiff argues that
Deputy Allen knew Sours was in observation, had vomited and was trying to throw up, was
irritable, and was having chest pains. R. 57-2 at 25, 30; R. 57-3 at 26–28. And Deputy Allen
knew that Sours refused to take his blood sugar and said that his blood pressure was “out of
control.” R. 51-12; R. 57-1 at 47; R. 57-2 at 48–49.
None of these facts imply that Deputy Allen had knowledge of Sours’s serious
medical risk of insulin deprivation. Deputy Allen was “under the impression” that Sours was
detoxing. R. 57-2 at 46–48. And Deputy Allen was entitled to rely on Nurse Allison’s
medical judgments that Sours was detoxing, rather than experiencing a different and more
serious medical complication. See Hamilton v. Pike Cnty., Ky., No. 11-cv-99-ART, 2013
WL 529936, at *7 (E.D. Ky. Feb. 11, 2013) (collecting cases). Sours refused to take his
blood sugar, so there was no way Deputy Allen could have known that his blood sugar was
unusually high. 52-9; R. 57-2 at 49. And it is no surprise that Sours’s refusal did not trigger
any alarm bells for Deputy Allen–after all, it was not uncommon for Detention Center
inmates to refuse blood sugar tests. R. 57-2 at 15. And Deputy Allen was unaware that
Sours’s chest pain and his attempts to make himself vomit indicated an ongoing medical
2
The plaintiff has no objection to the dismissal of his claims against defendants Adkins and Jordan. R. 52 at
19 n.4.
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emergency. R. 57-2 at 17–18, 34–35. In fact, he kept watch on Sours’s condition and
“couldn’t tell any difference” in Sours’s condition over much of the shift. R. 57-2 at 49–51.
And he was prepared to call someone if Sours’s condition appeared to worsen. R. 57-2 at 50.
So, Deputy Allen was not deliberately indifferent.
C.
Deputy Jailer Paul Griffith is Entitled to Summary Judgment
Deputy Jailer Paul Griffith worked from 8:00 a.m. to 4:00 p.m. on July 15, 2010.
R. 57-4 at 11. Like the other defendants, Griffith agrees that Sours’s medical needs were
objectively serious but argues that the plaintiff cannot demonstrate subjective awareness of
these needs. The plaintiff argues that knowledge can be inferred from the following facts:
(1) Griffith knew Sours was diabetic.
(2) Sours refused Griffith’s repeated offers of
medication. R. 51-14 at 1; R. 57-4 at 11. (3) Griffith knew the importance of diabetics
taking their medication. R. 57-4 at 22. (4) Griffith did not inform medical staff that Sours
did not take his medication, even though he would have done so had the medical staff been
present at the jail. Id. at 30.
However, it appears that the medication that Sours refused was unrelated to his
diabetes. The defendants state that the medication was for irritable bowel syndrome and
nausea. R. 51 at 15. Deputy Griffith’s incident report, however, simply indicates that Sours
refused unspecified medications. R. 51-13; R. 51-14. But the plaintiff does not argue that
the medication was for Sours’s diabetes.
R. 52 at 24.
In fact, one of the plaintiff’s
complaints is that the Jail did not have insulin for Sours. R. 52 at 15. And the fact that Sours
refused medication for conditions that were not clearly related to his diabetes does not
demonstrate that Deputy Griffith was aware of Sours’s risk for diabetic complications.
10
Instead, it appears that Deputy Griffith, like Deputy Allen, simply followed Nurse Allison’s
instructions to observe Sours and attempt to take Sours’s blood sugar. And, like Deputy
Allen, Deputy Griffith did not believe Sours was experiencing a medical emergency. R. 57-4
at 15. Sours’s symptoms were consistent with the typical symptoms of a detoxing inmate, so
this belief was not unreasonable. R. 57-1 at 55–56. Perhaps Deputy Griffith should have
realized that the situation was dire. But deliberate indifference requires actual knowledge,
and so Deputy Griffith is entitled to summary judgment on this claim. See Reilly, 680 F.3d at
624.
D.
Deputy Jailers Montgomery, Blanton, and Salyer are Entitled to Summary
Judgment
Deputy Jailers Montgomery, Blanton, and Salyer worked between 4:00 p.m. and
midnight on July 14 and 15, 2010. Like the other defendants, Deputies Montogomery,
Blanton, and Salyer agree that Sours’s condition was objectively serious. So the only
disputed issue is whether these defendants “recklessly disregard[ed]” a “substantial risk of
serious harm” to Sours. Farmer, 511 U.S. at 836. They did not. The evidence demonstrates
that Deputy Montogomery, the shift supervisor, knew that Sours was diabetic and believed
that he was detoxing. R. 58-3 at 21, 14–16. Deputy Montgomery tried to take Sours’s blood
sugar at 7:15 p.m. on July 15, 2010, but Sours refused. Id. at 17. At 10:15 p.m. Deputy
Blanton observed Sours attempting to make himself throw up. R. 51-17; R. 57-3 at 29.
Shortly thereafter, Deputy Salyer found Sours awake and breathing but unresponsive. R. 5121; R. 51-22; R. 57-3 at 34–35. Deputy Salyer then summoned Deputies Blanton and
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Montgomery, who quickly arrived at Sours’s cell. R. 57-3 at 53. Deputy Montgomery
called an ambulance shortly thereafter. R. 51-23; R. 58-3 at 42, 46.
The plaintiff believes these actions demonstrate deliberate indifference. First, he
believes that Deputy Montgomery should have contacted a medical professional when Sours
refused to take his blood sugar. Second, he believes that Deputies Blanton and Montgomery
should have realized the seriousness of Sours’s condition when Sours tried to make himself
throw up. R. 52 at 27. Third, the plaintiff faults the defendants for their responses to finding
Sours unresponsive. He believes Deputy Salyer exhibited deliberate indifference for calling
Deputies Blanton and Montgomery to Sours’s cell instead of immediately calling an
ambulance. R. 52 at 25. He faults all the defendants for waiting six minutes to call an
ambulance after Deputies Montgomery and Blanton arrived at the cell.
Id. at 29. And he
believes that all the defendants should have administered first aid, id. at 26, 29, and driven
Sours to the hospital instead of waiting for an ambulance. Id. at 29.
None of these facts demonstrate deliberate indifference. Like Deputies Allen and
Griffith, Deputies Montgomery and Blanton did not believe that Sours’s refusal of a blood
sugar test or his attempts to make himself throw up indicated a medical emergency. R. 57-2
at 30–33; R. 58-3 at 14–15, 18. And there are undisputed explanations for the delay between
Deputy Salyer’s discovery that Sours was unresponsive and his transport to the local
hospital. When Deputy Salyer first discovered that Sours was unresponsive, he was still
awake and breathing. R. 51-21; R. 58-3 at 38. Deputy Salyer was apparently unsure how to
proceed, so he contacted Deputies Blanton and Montgomery. R 57-3 at 53. Both deputies
came as fast as they could. R. 57-3 at 53; R. 58-3 at 30. After arriving at Sours’s cell, the
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deputies tried “touching [Sours] on the arm, [] to get him to talk” and “asked him if he was
all right and tried to get him to talk back.” R. 58-3 at 44. When it was clear that Sours was
having a medical emergency, id., Deputies Montgomery and Blanton conferred about the
best way to transport Sours to the hospital. R. 57-3 at 52. Deputy Montgomery decided to
call an ambulance because he believed it would be the quickest way to transport Sours to the
hospital. R. 58-3 at 33–36. And, while the plaintiff believes that the deputies should have
administered first aid to Sours, he does not specify what actions he believes the deputies
should have taken.
The constitutionality of a delay in medical treatment turns, in part, on the reason for
the delay. Cf. Scicluna v. Wells, 345 F.3d 441, 446 (6th Cir. 2003) (“In the absence of an
explanation for the delay, however, a reasonable inference [of deliberate indifference]
arises.”); McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999) (“[T]he reason for the
delay and the nature of the medical need is relevant in determining what type of delay is
constitutionally intolerable.”). The plaintiff points to cases where there is an unexplained
delay in the face of a clear medical emergency. R. 52 at 30. Those cases held that an
officer’s decision to attend to other tasks can be so reckless as to amount to deliberate
indifference. Those cases do not control here. Every action that the deputy jailers took after
finding Sours unresponsive was focused on Sours’s well-being. Deputy Salyer delayed only
to get second opinion from the other deputy jailers. The deputy jailers then examined Sours
to determine whether he was having a medical emergency. The deputies then consulted
about how to transport Sours to the hospital. They determined that an ambulance would be
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most efficient. None of these decisions indicate deliberate indifference to Sours’s serious
medical needs.
E.
Randy Madan is Entitled to Summary Judgment
Randy Mandan was the Detention Center’s administrator. R. 58-2 at 11. Madan had
no personal interaction with Sours. R. 58-2 at 79–80. On July 14, 2010, Madan and Nurse
Allison had a conversation in which Nurse Allison described Sours as a “critical situation”
because Sours was irritable and was not cooperating with efforts to take his blood sugar.
R. 56-1 at 112. The plaintiff argues that Madan was therefore aware that Sours was at
serious medical risk and that “[g]iven Defendant Madan’s statutory, regulatory and policy
responsibilities . . . he must share with Defendant Allison liability for what followed . . . .”
R. 52 at 31. But, as noted above, non-medical prison officials are not deliberately indifferent
when they rely on the judgment of the prison medical staff. See, e.g., Ronayne, 173 F.3d
856, at *3 (6th Cir. 1999) (unpublished table decision) (“Supervisory officials are entitled to
rely on medical judgments made by medical professionals responsible for prisoner care.”).
Here, Madan relied on Nurse Allison’s medical judgments. R. 58-2 at 33–35, 51–52. And
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). So Madan was not
deliberately indifferent to Sours’s serious medical needs.
Like the rest of the individual defendants, Madan is entitled to summary judgment on
the plaintiff’s deliberate indifference claims. Thus, the Court need not decide whether any of
these defendants is entitled to qualified immunity on this claim.
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F.
The Jail Authority and Randy Madan in his Official Capacity Are Entitled to
Summary Judgment
The plaintiff believes that the Jail Authority is liable for violations of his Fourteenth
Amendment rights. R. 52 at 31.3 The Jail Authority was created by several Kentucky
counties. See Ky. Rev. Stat. § 441.800. So the Jail Authority cannot be sued under section
1983 because municipal departments—such as jails—are not “persons” subject to suit under
the statute. See Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991). Accordingly, the
Court construes the plaintiff’s suit as against Johnson, Lawrence, Magoffin, and Martin
Counties. See Bush v. Carter County Det. Ctr., No. CIV.A. 10-16-DLB-EBA, 2011 WL
3880468, at *1 n.1 (E.D. Ky. Aug. 29, 2011) (“Accordingly, the Court construes the claims
against Carter County Detention Center as against Carter County itself.”).
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 (1978). The plaintiff believes that the Jail Authority failed to train its employees “and/or
to promulgate appropriate operating policies and procedures . . . .” R. 25 at 3; R. 52 at 35–
36. Madan had sole responsibility to coordinate health care and emergency response training
at the Detention Center. R. 52 at 31; R. 56-1 at 101 (Nurse Allison’s statement that she had
no authority to conduct this training). But, the plaintiff argues, jail officers were not trained
to identify or respond to medical emergencies. R. 52 at 31–37.
But even if the Jail Authority’s training was inadequate, it cannot be held liable
without an underlying constitutional violation by the individual defendants. See Watkins v.
3
The plaintiff’s official-capacity suit against Madan is redundant with his suit against the Jail Authority. Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“But a suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office.”).
15
City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001).
Thus, the official-capacity
defendants are entitled to summary judgment.
II.
State Law Claims for Negligence and Gross Negligence
The plaintiff also brings state-law tort claims against the defendants for negligence
and gross negligence in their treatment of Sours. R. 25 at 8. The defendants believe they are
immune from liability on these claims. The individual defendants also argue that they were
not negligent. R. 51 at 27. The defendants are right in part. The Jail Authority is entitled to
sovereign immunity, and both Administrator Madan and the deputy jailers are entitled to
qualified official immunity. But Nurse Allison is not entitled to immunity, and there is a
genuine issue of material fact as to Nurse Allison’s negligence.
A.
The Jail Authority is Entitled to Sovereign Immunity
Counties in Kentucky are “cloaked with sovereign immunity.” Lexington-Fayette
Urban Cnty. 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. So the Jail
Authority has sovereign immunity for claims of negligent operation of the Detention Center.
Commonwealth v. Harris, 59 S.W.3d 896, 899 (Ky. 2001). Therefore, summary judgment in
favor of the Jail Authority on the plaintiff’s negligence claims is appropriate.
B.
Qualified Official Immunity
Public officials in Kentucky enjoy qualified official immunity, “which affords
protection from damages liability for good faith judgment calls made in a legally uncertain
environment.” Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001). There are three elements to
the affirmative defense of qualified official immunity. The official must have been (1)
16
performing a discretionary act or function (2) within the scope of his authority and (3) in
good faith. See id. If an official establishes the first two elements, then the plaintiff has the
burden to disprove the third. See id. at 523. The plaintiff does not argue that the defendants’
actions were outside the scope of their authority or that they acted in bad faith. R. 52 at 37.
Thus, the defendants’ immunity turns on whether their acts were discretionary or ministerial.
A discretionary act is one that involves “the exercise of discretion and judgment, or
personal deliberation, decision, and judgment.” Yanero, 65 S.W.3d at 522; see also Turner
v. Nelson, 342 S.W.3d 866, 875–76 (Ky. 2011) (holding that a teacher’s acts in carrying out
her duty to prevent foreseeable harm to her students were discretionary); Rowan Cnty. v.
Sloas, 201 S.W.3d 469, 480 (Ky. 2006) (holding that a prison official’s job of supervising a
prison work crew was “as discretionary a task as one could envision”).
An act is
discretionary where it “may be performed in one [of] two or more ways, either of which
would be lawful, and where it is left to the will or judgment of the performer to determine in
which way it shall be performed.” Upchurch v. Clinton Cnty., 330 S.W.2d 428, 430 (Ky.
1959) (citation omitted). In contrast, a ministerial act “requires only obedience to the orders
of others” or involves a duty that “is absolute, certain, and imperative, involving merely
execution of a specific act arising from fixed and designated facts.” Yanero, 65 S.W.3d at
522 (holding that enforcement of a rule requiring that students wear helmets during batting
practice was a ministerial act).
Despite these general guidelines, a regulation or statute will often task officials with
both ministerial and discretionary functions. Haney v. Monsky, 311 S.W.3d 235, 240 (Ky.
2010) (“[F]ew acts are ever purely discretionary or purely ministerial.”) Take, for example,
17
an official investigation into allegations of child abuse. Such an investigation will involve
both ministerial tasks, such as the mandatory interview of particular individuals, and the
discretionary decision of whether and how to pursue the allegations. See, e.g., Stratton v.
Commonwealth, 182 S.W.3d 516, 521 (Ky. 2006); see also Carl v. Dixon, 2010-CA-000676MR, 2011 WL 919896, at *3 (Ky. Ct. App. Mar. 18, 2011) (duty to create an inmate
classification is ministerial, but an officer’s decisions on how to enforce the inmate
classification system is discretionary).
Consequently, the determination of whether a
particular act is discretionary or ministerial focuses on the “dominant nature of the act.”
Haney, 311 S.W.3d at 240.
In Kentucky, it is generally true that “[t]he administration of medical care is a
ministerial function” such that “[c]ompliance with the applicable standard of care does not
involve a discretionary governmental function.” Gould v. O'Bannon, 770 S.W.2d 220, 222
(Ky. 1989) (three doctors were members of anesthesiology team and were allegedly
negligent in regard to the insertion of a needle for a catheter which cut the plaintiff’s artery).
However, this general rule has exceptions where the provision of medical care primarily
involves the exercise of an official’s judgment. In this situation, jail officials are required to
make the sort of “good faith judgment calls [] in a legally uncertain environment” that
Kentucky’s qualified official immunity doctrine were designed to protect.
Yanero, 65
S.W.3d at 522; see also Caneyville Volunteer Fire Dep’t, 286 S.W.3d 790, 809 n.9 (Ky.
2009) (finding that the exercise of professional judgment is more likely to be a discretionary
act).
18
The classification of an act as ministerial or discretionary is further complicated when
a ministerial policy is dependant on a factual precondition. Sometimes, the determination of
whether the factual precondition is present is a discretionary act.
For example, the
discretionary determination that an inmate is suicidal may trigger ministerial duties related to
the inmate’s care. Jerauld ex rel. Robinson v. Kroger, 353 S.W.3d 636, 641–42 (Ky. Ct.
App. 2011). But not all factual determinations are discretionary acts. Upchurch, 330 S.W.2d
at 430 (“[T]hat a necessity may exist for the ascertainment of . . . facts does not operate to
convert the act into one discretionary in its nature.” (quotation omitted)). In the end, the
determination of whether a factual precondition requires a separate discretionary judgment or
is part and parcel of the ministerial act depends on the particularity of the official’s
investigative responsibilities. See Leonhardt v. Simmons, 2011-CA-001208-MR, 2012 WL
3538464, at *9 (Ky. Ct. App. Aug. 17, 2012) (“[I]n any event, portions of investigative
responsibilities as set out in policies and regulations, which are particular in their directive . .
. are nevertheless ministerial.”).
If an official’s investigative responsibilities are particular and stem from fixed and
designated facts, then they are part and parcel of the ministerial duty triggered by the factual
precondition.
For example, compliance with a protocol requiring “nurses to contact a
physician if [an] inmate’s symptoms persist[] for more than 24 hours” is a ministerial act. It
requires no exercise of judgment to determine that an inmate’s symptoms have lasted a full
day. See Osborne v. Aull, No. 2010-ca-1073-mr, 2012 WL 3538276, at *6 (Ky. Ct. App.
Aug. 17, 2012).
Similarly, an official with training to recognize the symptoms of
intoxication and withdrawal has a ministerial duty to identify these conditions and comply
19
with the attendant regulations. See Leonhardt, 2012 WL 3538464, at *9. And jailers act in
their ministerial capacities when they follow policies forbidding the admission of arrestees
who are unconscious or have a blood alcohol content greater than .30 percent. Coleman v.
Smith, 2011-CA-001276-MR, 2012 WL 4210031, at *5 (Ky. Ct. App. Sept. 21, 2012).
Other factual determinations require discretionary judgment calls, and are protected
by qualified official immunity.
For example, the evaluation of whether an individual is a
suicide risk involves professional judgment and is a discretionary act. Jerauld, 353 S.W.3d
at 641–42.
Jailers also exercise discretion when they determine “whether the arrestee
presents discernable indicators of serious illness, injury, or drug overdose as distinguished
from inebriation caused by the intemperate consumption of alcohol or drugs.” Coleman,
2012 WL 4210031, at *5; see also Finn v. Warren Cnty., Ky., 1:10-CV-00016-JHM, 2012
WL 3066586, at *26 (W.D. Ky. July 27, 2012) (holding that the determination whether an
inmate is deteriorating requires “the exercise of professional expertise and judgment” that
qualified official immunity was created to protect,” but finding that “the requirements to
record assessments and notify deputy jailers about [] detoxification are . . . ministerial”
(quotations omitted)). Once such a factual determination is made, it may trigger ministerial
duties, such as notifying medical personnel or transporting the inmate to the hospital. But
the initial factual determination requires the exercise of judgment and is protected by
qualified official immunity.
Thus, when evaluating an inmate’s claim that his medical care was negligent, the
Court must answer the following questions: (1) What was the alleged negligent act; (2) Was
the act discretionary or ministerial; (3) if the act was ministerial, was it triggered by “fixed
20
and designated” facts or an exercise an official’s professional judgment; (4) if the ministerial
duty is triggered by a discretionary judgment, is there evidence indicating that the official’s
factual judgment triggered the ministerial duty for which he does not have immunity?
A.
Nurse Allison is Entitled to Partial Immunity
The plaintiff points to several acts which he believes demonstrate Nurse Allison’s
negligence. First, he faults Nurse Allison for failing to order insulin, despite her knowledge
that Sours was a sliding-scale diabetic. R. 52 at 13. Second, he believes that Nurse Allison
should have informed Dr. Belhasen about Sours’s symptoms and blood sugar reading on July
14, 2010. Id. at 13–14. Third, the plaintiff argues that Allison should have been aware of
Sours’s risk for diabetic ketoacidosis on July 14, id. at 18. Fourth, the plaintiff contends that
Allison failed to leave adequate instructions for the deputy jailers. Id. at 18.4 Only the last
act supports a viable claim against Nurse Allison.
Failure to Order Insulin: Nurse Allison was required to provide Sours with adequate
medical care. See Ky. Rev. Stat. § 71.040 (The jailer shall treat [inmates] humanely . . . .”);
501 Ky. Admin. Regs. § 3:140 (requiring access to necessary medical care).
These
requirements trigger ministerial and discretionary duties. If an inmate requires a particular
medication (such as insulin), it “is absolute, certain, and imperative” that the inmate receive
that medication. Yanero, 65 S.W.3d at 522. It does not require any discretionary judgment
to order a medication that the official knows is necessary. But, the diagnosis that an inmate
needs a particular medication may require the discretionary exercise of professional
4
The plaintiff also faults the Nurse Allison for leaving Sours in a position where he would be required to test
his own blood sugar and administer his own insulin. But since Sours refused most blood sugar tests and never
administered his own insulin, it is not clear how the Jail Procedure 2(f), which prohibits inmates from
“perform[ing] any medical functions within the jail,” demonstrates that any defendant was negligent with
respect to Sours’s care. R. 52-16 at 2.
21
judgment. Jerauld, 353 S.W.3d at 641–42. And, in Nurse Allison’s professional judgment,
Sours did not need insulin “right away.” R. 56-1 at 69. So even if the plaintiff could prove
that Nurse Allison’s failure to order insulin caused his injury, qualified official immunity
would protect Nurse Allison from liability for this decision.
Failure to Contact Dr. Belhasen: The plaintiff believes that when Nurse Allison saw
that Sours’s blood sugar tested at 327, she should have contacted Dr. Belhasen or sent Sours
to the hospital. R. 52 at 14. But, when faced with Sours’s high blood sugar, Nurse Allison
did not have a mandatory course of action. As Dr. Belhasen explained, Nurse Allison could
have called her, taken Sours to the hospital, or done nothing. R. 56-3 at 48–49. Nurse
Allison may have chosen poorly here.
As noted above, Nurse Allison’s professional
judgment led her to believe that Sours was detoxing and that there was little cause for alarm.
R. 56-1 at 44–45, 106. But her choice was part of a “qualitative assessment” that relied on
her professional judgment. See, e.g., Coleman, 2012 WL 4210031, at *5. Thus, Nurse
Allison is entitled to qualified official immunity for this act.
Failure to Diagnose: Nurse Allison’s determination that Sours’s blood sugar spikes
were due to detoxing was incorrect. But it was also discretionary. Diagnosing a patient
requires the subjective interpretation of the patient’s symptoms and the exercise of
professional judgment. Coleman, 2012 WL 4210031, at *5. These are classic features of
discretionary acts.
Haney, 311 S.W.3d at 243 (emphasizing that a discretionary act is
“largely subjective and left to the will or judgment of the performer” (internal quotation
marks omitted)). Thus, Nurse Allison is entitled to qualified immunity for this decision.
22
Failure to Leave Instructions: Nurse Allison conceded that “the standard of care of a
registered nurse” required her to make sure that the deputy jailers had “the education,
experience, training” necessary to care for Sours in her absence. R. 56-1 at 101–02. There is
a material question of fact as to whether she complied with this standard of care.
Nurse
Allison admitted that the deputy jailers probably could not identify the symptoms of diabetic
ketoacidosis, that she did not write these symptoms down, and that there was no information
in the Detention Center about diabetes. Id. at 97–98, 114. And Nurse Allison is not entitled
to qualified official immunity for her actions. Her duty to ensure that Sours could be cared
for in her absence was mandatory and ministerial, even if her decision how to do so was
discretionary. See, e.g., Carl, 2011 WL 919896, at *3. Nurse Allison’s decision to leave a
note to the guards to check Sours’s blood sugar does not change this analysis. This does not
demonstrate compliance with Nurse Allison’s duty to leave Sours in the care of someone
with “the education, experience, training” necessary to care for him. Thus, Nurse Allison is
not entitled to qualified official immunity for this act.
B.
Randy Madan is Entitled to Immunity
The plaintiff faults Madan for his failure to realize that Sours was at risk during his
conversation with Nurse Allison. The plaintiff argues that “[g]iven Defendant Madan’s
statutory, regulatory and policy responsibilities . . . he must share with Defendant Allison
liability for what followed . . . .” R. 52 at 31. It is unclear what acts Sours believes
demonstrate Madan’s negligence. While the plaintiff charges Madan with his failure to train
the deputy jailers, it appears that these claims are brought against Madan in his official
capacity only. R. 52 at 31. And it is not the Court’s role to make the plaintiff’s arguments.
23
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)). So the Court must agree with the
defendant that the plaintiff has not demonstrated a genuine issue of material fact for trial on
this claim.
C.
The Deputy Jailers Are Entitled to Qualified Official Immunity
The plaintiff faults the deputy jailers for two types of action. First, the plaintiff
believes that the deputy jailers were negligent when they did not realize that Sours’s situation
was dire because Sours refused his blood sugar tests, said that his chest hurt, and tried to
make himself throw up. Second, that Deputies Blanton, Montgomery, and Salyer were
negligent in responding when they found Sours unresponsive in his cell. The deputy jailers
are entitled to immunity on each claim.
Negligent Treatment: The plaintiff has not pointed to a specific policy or regulation
requiring the deputy jailers to contact Nurse Allison or Dr. Belhasen if Sours refused a blood
sugar test. It appears that the plaintiff believes that the deputy jailers should have realized
that Sours’s refusal of these tests put him at serious medical risk, triggering regulations
related to emergency care. R. 52 at 8–10. Similarly, the plaintiff faults these defendants for
failing to realize that Sours was having a medical emergency when he said that his chest hurt
and when they saw Sours try to make himself throw up. But the determination of whether an
inmate is having a medical emergency is discretionary. See Finn, 2012 WL 3066586, at *24
(holding that the determination whether an inmate is deteriorating requires “the exercise of
professional expertise and judgment”); Coleman v. Smith, No. 2011-CA-001276-MR, 2012
24
WL 4210031 (Ky. Ct. App. Sept. 21, 2012). This is not a case where the defendants failed in
their ministerial obligations to observe Sours for an “objective factual question,” such as
whether he was conscious or unconscious. See Hedgepath v. Pelphrey, No. 12-5314, 2013
WL 1395893, at *6 (6th Cir. Apr. 5, 2013).
The deputy jailers made a subjective
determination that Sours’s symptoms did not qualify as an emergency. This determination
requires the sort of good faith judgment call protected by qualified official immunity.
Yanero, 65 S.W.3d at 522. And regulations that classify detoxing as a medical emergency do
not change the Court’s analysis. See R. 52 at 10. Nurse Allison originally diagnosed Sours
as detoxing, so it would make little sense for the deputy jailers to contact her based on the
medical emergency for which she had already prescribed a course of action.
Emergency Response: The plaintiff also faults the deputy jailers for their response
after finding Sours unresponsive.
Sours appears to argue that the deputies individual
decisions–for example, Deputy Salyer’s decision to get a second opinion from his fellow
deputies, or Deputy Montgomery’s decision to call an ambulance–were negligent. It is not
clear that this is so, because Sours has failed to present admissible evidence to demonstrate
that either deputy should have realized the other course was correct or that Sours was harmed
by either decision.
In any case, the defendants are entitled to qualified official immunity because they did
not violate any ministerial duty in responding to Sours’s medical emergency. Deputy Salyer
called Deputies Blanton and Montgomery as part of his discretionary determination that
Sours was experiencing a medical emergency. See Finn, 2012 WL 3066586, at *24. As
soon as it was clear that Sours was completely unresponsive, the deputies complied with
25
regulations requiring the provision of emergency care. Deputies Blanton and Montgomery
briefly conferred about how best to transport Sours to the hospital. R. 57-3 at 52. Deputy
Montgomery decided to call an ambulance, which presumably arrived as soon as possible.
R. 58-3 at 33–36. So the defendants complied with their ministerial duty to provide care in a
medical emergency. See 501 Ky. Admin Regs § 3:090; 501 Ky. Admin. Regs. § 3:140; Jail
Policy 47, R. 52-16. The plaintiff clearly believes that the deputies should have responded
differently, for example, by taking Sours to the hospital in the Detention Center’s vehicle
instead of conferring and calling an ambulance. But the deputies are entitled to qualified
official immunity on their decisions about how to follow the regulations governing
emergency care. While the provision of emergency care is ministerial, the deputies retained
“significant discretion” in their provision of this care. See Carl, 2011 WL 919896, at *3
(“Since Carl retains significant discretion in the manner in which to enforce the system, a
claim based on his failure to enforce the prisoner classification system implicates
discretionary functions.”). So the deputy jailers are entitled to qualified official immunity for
their response.
III.
Administrative Claim Under 501 Ky. Admin Regs. § 3:090
The defendants are also entitled to summary judgment on the plaintiff’s
administrative claim under 501 Ky. Admin. Regs. § 3:090. The defendants argue that section
3:090 does not provide a private right of action, and, in any case, that they did not violate the
regulation. R. 51 at 33. As an initial matter, the defendants are probably correct that the
regulation does not provide a private right of action. As one court recently noted, “the
viability of a claim for violations of 501 KAR Chapter 3 is questionable” without an enabling
26
statute that specifically provides that a violation of the regulation is a violation of the
enabling statute. See Johnson v. Prison Health Servs., Inc., No. 3:06-cv-516-H, 2009 WL
3856188, at *2 (W.D. Ky. Nov. 17, 2009) (citing Hargis v. Baize, 168 S.W.3d 36 (Ky.
2005), which held that the violation of an administrative regulation “is actionable . . . if the
right of action arises from a source” separate from the regulation, and finding the enabling
statute a separate source).
But the Court need not decide whether the regulation creates a private right of action.
The individual defendants also argued that they are not subject to this regulation, and the Jail
Authority argued that there is no evidence that it violated section 3:090. R. 51 at 33. While
the plaintiff makes a half-hearted attempt to argue that the regulation provides a private right
of action, R. 52 at 37–38, he does not respond to either substantive defense. At most, the
plaintiff cites three subsections of section 3:090 as generally applicable to his constitutional
and negligence claims. So the Court agrees with the defendants that the plaintiff has not
pointed to facts that make out a separate violation of this regulation. See McPherson, 125
F.3d at 995–96. Thus, summary judgment is appropriate because Sours has not demonstrated
that a genuine issue of material fact exists on his standalone administrative claim.
27
CONCLUSION
It is therefore ORDERED that the defendants’ motion for summary judgment, R. 51,
is DENIED with respect to the plaintiff’s claims against Nurse Allison for negligence and
gross negligence. Summary judgment is GRANTED with respect to all other claims.
This the 28th day of May, 2013.
28
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