Reynolds v. LNU et al

Filing 161

MEMORANDUM OPINION AND ORDER by Chief Judge Joseph H. McKinley, Jr., granting in part and denying in part 157 Motion for Summary Judgment. IT IS ORDERED that Defendants' motion for summary judgment is GRANTED with respect to Plaintiff's medical malpractice claim and is DENIED with respect to Plaintiff's Fourteenth Amendment claim of deliberate indifference to a serious medical need. The motion is denied without prejudice to filing a properly supported motion for summary judgmen t. Within 30 days of entry of this Memorandum Opinion and Order, Defendants must file a properly supported motion for summary judgment in accordance with Fed. R. Civ. P. 56. Plaintiff must file a response within 21 days from service of Defendants� 39; motion. Plaintiff must file a new response addressing Defendants' arguments raised in their new motion. The Clerk of Court is DIRECTED to send Plaintiff a copy of 136 his earlier response along with the exhibits attached thereto for his reference. Defendants may file a reply within 14 days of service of Plaintiff's response. cc: Plaintiff, pro se; Counsel (JLS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
ROBERT A. REYNOLDS
v.

PLAINTIFF
CIVIL ACTION NO. 1:11CV-P142-M

ELIZABETH et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Defendants Elizabeth Walkup, APRN, Joanna Thomas, RN, and John Adams, M.D., by
counsel, filed a renewed motion for summary judgment pursuant to Fed. R. Civ. P. 56 (DN 157).
Plaintiff Robert A. Reynolds filed a pro se response (DN 159), incorporating by reference his
response (DN 136), including exhibits, to a previously filed motion for summary judgment.
Defendants did not file a reply. For the reasons that follow, the motion for summary judgment
will be granted in part and denied in part.
I. STATEMENT OF CLAIMS AND PROCEDURAL HISTORY
During the time of the alleged wrongdoing described in the complaint, Plaintiff was a
pretrial detainee for the United States Marshals Service in Nashville, Tennessee, being detained
in the Warren County Jail (WCJ). According to the verified complaint (DN 1), on October 11,
2010, Plaintiff was involved in an altercation with two other inmates (a federal inmate and a
county or state inmate) and sustained an injury to his right side. He assumed he had broken his
ribs given “the extreme pain, hard time breathing, [and] any movement was excruciating.”
Plaintiff reported being “immediately taken to the medical unit” in the jail, where non-defendant
Nurse Jennifer said that he was sore and would be fine. He stated that he was then taken to the
segregation unit for administrative or disciplinary reasons and given “3 Advil (200mg. each).”
He alleged that he had a serious medical need that was ignored. He reported filing a medical

request everyday for four days and finally being seen by Defendant Nurse Practitioner Walkup,
who evaluated him by listening to his breathing and performing a visual examination of his ribs.
Defendant Elizabeth determined that Plaintiff “was fine” and “just sore” and prescribed Tylenol,
two times daily for three days.
Plaintiff reported being placed back into maximum security cell A-8, where the
altercation occurred, and filing a medical request and/or grievance almost everyday. After about
ten days, he was called to the medical department by Defendant Nurse Thomas to discuss his
requests. Plaintiff claimed that “she responded with a arrogant, hateful attitude. telling me my
ribs were not broken. I was merely sore.” He advised her that he knew his body, was having
trouble breathing, was unable to move around, was unable to sleep, and was in “serious pain.”
Plaintiff asked Defendant Thomas how she knew his ribs were not broken, and “[h]er response
was how do you think they did it in the old days . . . and then threatened me with the ‘hole’
(segregation) for so much paper work.”
Plaintiff decided to call his attorney with the Nashville Public Defenders Office. After
Plaintiff explained to his counsel what happened and what was not being done, his counsel
contacted Defendant Etheridge of the USMS in Nashville, who contacted the WCJ about
Plaintiff’s medical needs not being met. The WCJ replied that Plaintiff had been seen, that
nothing was wrong, and that he was merely sore. Plaintiff stated that his counsel received an
email from the USMS with the WCJ’s response and “left it at that. Totally agreeing with their
medical assessment without finding if their facts were even correct.” In the description of his
claim, Plaintiff stated that this exchange occurred ten to twelve days after the incident, but an
attached email between Plaintiff’s public defender and Defendant Etheridge is dated October 14,
2010, only three days after the incident.
2

Plaintiff reported continuing to file medical requests and inmate grievances on a daily
basis. On about the fourteenth day, Plaintiff was called to the medical department, where
Defendant Thomas was present with someone contracted with WCJ to perform x-rays. X-rays
were performed, and three days later, Plaintiff was informed by “a medical tech. nurse named
Kimber” that he had two fractured ribs. Despite the findings, he reported that he still received no
medical attention, including no pain medication. Thereafter, for 30 days, he filed medical
requests and grievances.
To deal with the pain while incarcerated at the WCJ, Plaintiff reported faking a shoulder
injury. To his surprise, there was no hassle, and he was given ten days worth of Advil. After
those ten days, he faked a toothache and received ten more days of Advil for pain.
In the complaint and a supplement thereto (DN 6), Plaintiff reported that it had been
months since his injury and that his ribs still hurt; he had trouble breathing in deep; and he could
not lie on his right side or participate in physical activity. X-rays taken in July and August 2011
at USP McCreary, where Plaintiff was incarcerated at the time he filed his complaint, were
abnormal and showed a “poorly healing right sided 9th and 10th rib fx” and an “Old 9th right rib
fracture non-union.”1
Plaintiff alleged that his right to proper medical care was violated by Defendants Thomas
and Walkup from October 11, 2010, until April 2011, and also alleged medical malpractice.
As relief, Plaintiff sought monetary and punitive damages.

Plaintiff’s supplement (DN 6) to the complaint contains a copy of these x-rays dated July 7, 2011, and August
17, 2011. During an examination by a nurse at USP McCreary on July 19, 2011, Plaintiff complained that he
was “continuing to have pain in the area it’s usually just aggravating during the day but [a]t night it’s worse
when I’m lying down.” Plaintiff received orders for ibuprofen and a rib belt. On follow up on July 29, 2011,
Plaintiff asked for “a low bunk because of his persistent rib pain” and complained that he continued “to be
unable to lie on the right side.” He was prescribed ibuprofen 600 mg tablets to be taken twice daily with food
for 180 days and given a low bunk permit for six months due to poor healing rib fractures.
1

3

On initial review of the complaint and supplement pursuant to 28 U.S.C. § 1915A, the
Court allowed three claims to continue (DN 12). First, because Plaintiff alleged a continued
refusal by Defendant Nurses Joanna Thomas and Elizabeth Walkup to provide treatment for a rib
injury, the Court allowed the 42 U.S.C. § 1983 claims of deliberate indifference to a serious
medical need to proceed against those Defendants in their individual capacities. Second, because
Plaintiff alleged that Defendant Thomas threatened him with the “hole”/segregation for filing so
much “paperwork,” the Court allowed the § 1983 retaliation claim to continue against Defendant
Thomas in her individual capacity. Finally, the Court allowed a state-law medical-malpractice
claim to proceed against Defendants Thomas and Walkup.
Thereafter, the Court granted (DN 76) Plaintiff’s motion to amend the complaint to add
Dr. John Adams (DN 54) to the medical claims since he directly oversaw Plaintiff’s medical
treatment. To his motion to amend, Plaintiff attached WCRJ medical records signed by
Defendant Dr. Adams as “Attending Physician.” Plaintiff claimed that the documents “prove Dr.
John Adams is as much responsible for the plaintiffs claims” as Defendants Thomas and
Walkup.
By Memorandum Opinion and Order entered September 5, 2014 (DN 149), the Court
granted Plaintiff’s request to dismiss the retaliation claim against Defendant Joanna Thomas.
Consequently, the remaining claims before the Court are Plaintiff’s Fourteenth Amendment
claim of deliberate indifference to a serious medical need and his state-law medical malpractice
claim.
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
4

56(a). The party moving for summary judgment bears the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party’s burden may be discharged by demonstrating that there is an absence
of evidence to support an essential element of the nonmoving party’s case for which he or she
has the burden of proof. Id. Once the moving party demonstrates this lack of evidence, the
burden passes to the nonmoving party to establish, after an adequate opportunity for discovery,
the existence of a disputed factual element essential to his case with respect to which he bears the
burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for the
nonmoving party, the motion for summary judgment should be granted. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Where the nonmoving party bears the burden of proof at trial, “a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323. The nonmoving party must do more than raise
some doubt as to the existence of a fact; the nonmoving party must produce evidence that would
be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp.
Serv., Inc., 738 F. Supp. 214, 217 (E.D. Mich. 1990). The moving party, therefore, is “entitled to
a judgment as a matter of law because the nonmoving party has failed to make a sufficient
showing on an essential element of [his] case with respect to which [he] has the burden of
proof.” Id. (internal quotation marks omitted).
III. ANALYSIS
A. Medical Malpractice Claim
Plaintiff asserts a claim of medical malpractice against Defendants Walkup, Thomas, and
Dr. Adams. Defendants seek summary judgment on this claim arguing that Plaintiff has failed to
5

disclose or produce any competent and qualified expert witness critical of the care provided in
this case and therefore cannot establish a prima facie case of medical malpractice. Plaintiff
responds that he has tried to obtain an expert witness, even asking the Court for appointment of
an expert, to no avail.
Under Kentucky law, “[e]xcept in limited factual circumstances, . . . the plaintiff in a
medical negligence case is required to present expert testimony that establishes (1) the standard
of skill expected of a reasonably competent medical practitioner and (2) that the alleged
negligence proximately caused the injury.” Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. Ct.
App. 2006). “Kentucky consistently recognizes two exceptions to the expert witness rule in
medical malpractices cases.” Id. (citing Perkins v. Hausladen, 828 S.W.2d 652, 655 (Ky.
1992)). “Both exceptions involve the application of the res ipsa loquitur doctrine and permit the
inference of negligence even in the absence of expert testimony.” Id.
One exception involves a situation in which “‘any layman is competent to
pass judgment and conclude from common experience that such things do
not happen if there has been proper skill and care’; illustrated by cases
where the surgeon leaves a foreign object in the body or removes or injures
an inappropriate part of the anatomy. The second occurs when ‘medical
experts may provide a sufficient foundation for res ipsa loquitur on more
complex matters.’” An example of the second exception would be the case
in which the defendant doctor makes admissions of a technical character
from which one could infer that he or she acted negligently.
White v. Norton Healthcare, Inc., 435 S.W.3d 68, 76-77 (Ky. Ct. App. 2014) (quoting Andrew v.
Begley, 203 S.W.3d at 170-71) (internal citations omitted).
Defendants argue that neither exception applies to the expert witness requirement. As to
the first exception, they assert that whether their evaluation of Plaintiff’s chest for fractured ribs
was proper, and in accordance with accepted standards of medical care, is beyond the everyday
knowledge of laypersons. The Court agrees.
6

As to the second exception, in their motion for summary judgment, Defendants assert that
no Defendant has admitted, nor will admit, that his or her actions gave rise to negligence. In his
response, Plaintiff cites to various exhibits (such as the incident report of the assault, WCJ
medical records, pictures, emails, among other documents) seemingly in support of a contention
that one or both exceptions apply to his case. None of the exhibits, however, establish a clear
inference of Defendants’ negligence in this case or contain any admissions of a technical
character by any Defendant or other treating physician from which negligence or causation could
be inferred. For these reasons, the Court finds that the second exception to the need for expert
testimony does not apply in this case.
Because Plaintiff failed to produce an expert witness in support of his medical
malpractice claim, Plaintiff has failed to create a genuine dispute of material fact as to
Defendants’ duty of care and breach thereof. Defendants, therefore, are entitled to summary
judgment on this issue.
B. Fourteenth Amendment Claim
At the outset, the Court mentions that Plaintiff was not a convicted prisoner at the time of
the events alleged; he was a pretrial detainee. As such, the Eighth Amendment’s proscription
against cruel and unusual punishment does not apply to him. Watkins v. City of Battle Creek,
273 F.3d 682, 685 (6th Cir. 2001). “Under the Fourteenth Amendment Due Process Clause,
however, pretrial detainees have a right to adequate medical treatment that is analogous to the
Eighth Amendment rights of prisoners.” Id. at 685-86. Thus, “[t]o sustain a cause of action
under § 1983 for failure to provide medical treatment, plaintiff must establish that the defendants
acted with ‘deliberate indifference to serious medical needs.’” Id. at 686; Estelle v. Gamble, 429
U.S. 97, 104-06 (1976).
7

In his verified complaint (DN 1), Plaintiff alleges that Defendants were deliberately
indifferent to a serious medical need by denying him adequate treatment for two broken ribs. In
their motion for summary judgment, Defendants claim that Plaintiff fails “to present sufficient
evidence to support his claim for deliberate indifference to a medical need.” They argue:
In the present case, Mr. Reynolds was evaluated, treated, and given
medication on at least three occasions within a two week span and all three
qualified medical personnel evaluated Mr. Reynolds with sore ribs. Mr.
Reynolds now claims an x-ray at a different facility showed a poorly healed
broken rib. This is hardly a scenario that gives rise to a constitutional claim
for deliberate indifference to a medical need. Mr. Reynolds unequivocally
fails to meet the burden of showing the requisite culpable state of mind and
the objective harm necessary to establish a constitutional claim for
deliberate indifference and his claim should therefore be dismissed with
prejudice.
Defendants, however, attach no medical records, or any other documentation, to their motion for
summary judgment in support of their assertions and argument.
Further, Defendants reference only Plaintiff’s complaint in detailing the limited facts that
they do provide in their motion. To the extent that Defendants’ recitation of the facts are solely
from Plaintiff’s complaint, Defendants’ version of some of the facts is inaccurate.2 Other
assertions in Defendants’ factual recitation are not contained in Plaintiff’s complaint and could
only be considered in support of a motion for summary judgment if made by the Defendants
themselves in sworn statements.3 In addition, Defendants wholly fail to address Plaintiff’s claim

2

For instance, the date Defendants give for the alleged assault resulting in the rib injury is wrong as is their
statement that “[o]n or about the fourteenth day, Mr. Reynolds alleges that x-rays taken at USP McCreary, a
subsequent prison where Mr. Reynolds was detained, showed a poorly healing right sided 9th and 10th rib
fracture.” The complaint and supplement, instead, indicate that Plaintiff was still at the Warren County Jail
fourteen days after his rib injury and that x-rays at USP-McCreary were not taken until the next year in July
and August 2011.
3

Examples of such assertions are: (1) “Defendant Walkup was an employee of Dr. Adams and, as a licensed
nurse practitioner, was allowed to practice medicine independently within her scope of practice in the state of
Kentucky. She never consulted with Dr. Adams regarding Plaintiff’s injuries, nor was Dr. Adams contacted by
anyone else at the jail regarding Mr. Reynolds”; and (2) “Ms. Thomas is not an employee of Dr. Adams and
did not contact him regarding Mr. Reynolds.”
8

that he was repeatedly denied pain medication for his rib injury.4 Finally, Defendants discuss
the Kentucky summary-judgment standard and rely primarily on Kentucky appellate law instead
of federal law in support of their argument that Plaintiff fails to establish a constitutional claim of
deliberate indifference to a serious medical need.
A party asserting that a fact cannot be genuinely disputed “must support the assertion
by[] citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed. R.
Civ. P. 56(c)(1)(A). Moreover, “at summary judgment, parties must submit evidence that would
be admissible at trial.” Lee v. EquiFirst Corp., No. 3:10-cv-809, 2011 WL 1584124, at *5 (M.D.
Tenn. Apr. 25, 2011).
The Court concludes that Defendants have not properly supported their motion for
summary judgment as to the Fourteenth Amendment claim of deliberate indifference to a serious
medical need and, therefore, will deny the motion without prejudice.
IV. ORDER
For the foregoing reasons,
IT IS ORDERED that Defendants’ motion for summary judgment (DN 157) is
GRANTED with respect to Plaintiff’s medical malpractice claim. Defendants Walkup,
Thomas, and Dr. Adams are entitled to judgment as a matter of law on that state-law claim.

4

In the complaint, Plaintiff reports “extreme pain” and that “I can’t move around, I can’t sleep, I can’t eat.”
He further stated that even after the x-rays showed that he had two broken bones, “I was still refused medical
attention. I continued for 30 days filing medical request and grievances. My attorney had his private
investigator [] come to Bowling Green and ask me about my injury . . . .” He stated that to deal with the pain,
he was “forced to fake a shoulder injury in the form of a medical request, seeking pain meds,” and he was
given ten days of Advil with no hassle. Then, asserted Plaintiff, he faked a toothache and received ten more
days of Advil.
9

IT IS FURTHER ORDERED that Defendants’ motion for summary judgment
(DN 157) is DENIED with respect to Plaintiff’s Fourteenth Amendment claim of deliberate
indifference to a serious medical need. The motion is denied without prejudice to filing a
properly supported motion for summary judgment.
IT IS THEREFORE ORDERED that within 30 days of entry of this Memorandum
Opinion and Order, Defendants must file a properly supported motion for summary judgment in
accordance with Fed. R. Civ. P. 56. Plaintiff must file a response within 21 days from service of
Defendants’ motion. Failure to do so will result in consideration of the motion without benefit of
a response from Plaintiff. Defendants may file a reply within 14 days of service of Plaintiff’s
response.
In Plaintiff’s response to the current motion for summary judgment, Plaintiff incorporated
by reference his response (DN 136) to an earlier filed dispositive motion. Should Defendants file
a properly supported motion for summary judgment, Plaintiff must file a new response
addressing Defendants’ arguments raised in their new motion. The Clerk of Court is
DIRECTED to send Plaintiff a copy of his earlier response (DN 136) along with the exhibits
attached thereto for his reference.
The Court provides Plaintiff with the following guidance in responding to a motion for
summary judgment under Fed. R. Civ. P. 56. See United States v. Ninety-Three Firearms, 330
F.3d 414, 427 (6th Cir. 2003). The Court advises Plaintiff that, in order for him to defeat
Defendants’ motion for summary judgment, he must demonstrate a genuine issue of material fact
for trial and must support this assertion by citing to facts that can be presented in a form that
would be admissible in evidence. See Fed. R. Civ. P. 56(c). Plaintiff must support his facts with
affidavits (sworn witness statements) and/or other documents contradicting the material facts
10

asserted by Defendants. Otherwise, the Court may accept Defendants’ facts as true and grant
judgment in favor of Defendants without a trial. The full text of Rule 56 (the summary-judgment
rule) is attached to this Order.
Date:

September 29, 2015

cc:

Plaintiff, pro se
Counsel of record
4414.005

11

FEDERAL RULE OF CIVIL PROCEDURE 56—SUMMARY JUDGMENT
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for
summary judgment, identifying each claim or defense--or the part of each claim or defense--on
which summary judgment is sought. The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the record the reasons for granting or
denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders
otherwise, a party may file a motion for summary judgment at any time until 30 days after the
close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that
the material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider
other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts
considered undisputed--show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond,
the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that
may not be genuinely in dispute.

2

(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested
by the motion, it may enter an order stating any material fact--including an item of damages or
other relief--that is not genuinely in dispute and treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or
declaration under this rule is submitted in bad faith or solely for delay, the court--after notice and
a reasonable time to respond--may order the submitting party to pay the other party the
reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or
attorney may also be held in contempt or subjected to other appropriate sanctions.

3