Quiggins v. Louisville/Jefferson County Metro Government et al

Filing 117

MEMORANDUM OPINION AND ORDER by Judge John G. Heyburn, II on 9/17/2012; 89 Motion for Partial Summary Judgment is SUSTAINED and Plaintiffs § 1983 deliberate indifference claim is DISMISSED WITH PREJUDICE. The Court will consider other pending motions in due course. The remaining claim is set fora jury trial 10/29/2012. cc:counsel (TLB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
CIVIL ACTION NO. 3:10-CV-516-H

MELISSA R. QUIGGINS

PLAINTIFF

v.
LOUISVILLE/JEFFERSON COUNTY METRO GOVERNMENT;
MARK E. BOLTON;
CORIZON, INC.; and
UNKNOWN DEFENDANTS

DEFENDANTS

MEMORANDUM OPINION AND ORDER

Plaintiff, Melissa Quiggins, has brought state claims of medical negligence and federal
constitutional claims for deliberate indifference against individuals and corporations associated with
the Louisville/Jefferson Country Metro Government concerning the health and dental care provided
to her while incarcerated. Previously, this court entered a voluntary dismissal of all federal claims
against Louisville/Jefferson County Metro Government, Mark Bolton, and Unknown Defendants.
What remains of Plaintiff’s complaint is a claim for medical negligence and a § 1983 deliberate
indifference claim against Corizon, Inc. (“Corizon”), previously known as Correctional Medical
Services, Inc. Defendant now moves for partial summary judgment in favor of Corizon on the
deliberate indifference claim.
Corizon is a service corporation under contract with the Louisville/Jefferson County Metro
Government Department of Corrections (“LMDC”) to operate the health and dental care programs
at the LMDC facility where Plaintiff was incarcerated. Plaintiff alleges that Defendant violated the
Eighth Amendment by acting with deliberate indifference towards her medical condition, amounting

to a violation of her constitutional right to protection against cruel and unusual punishment.
Defendant makes two arguments to counter this assertion: (1) Plaintiff is unable to establish
that Defendant’s employees were in fact deliberately indifferent to the medical needs of Plaintiff;
and (2) Plaintiff cannot show that Defendant’s employees acted pursuant to an unconstitutional
policy, practice or custom, an element that must be proved to sustain a § 1983 action against a
municipality or an agent thereof. For the reasons that follow, this Court concludes that the actions
of Corizon and its employees did not amount to deliberate indifference under Eighth Amendment
jurisprudence.
I.
Plaintiff and Defendant offer varied perspectives on the precise details of this case. The
following are the facts and sequence of events material to the deliberate indifference claim. On
October 1, 2008, Plaintiff was arrested on bench warrants for flagrant non-support and possession
of controlled substances and paraphernalia. She was sentenced to serve 365 days in jail. Plaintiff
was booked at the LMDC jail, a short-term incarceration facility, where she remained until her
release on August 20, 2009.
Plaintiff suffered from various upper respiratory problems and mental health issues during
her stay at the corrections facility, but her principal medical concern stemmed from pain in her tooth.
With regards to the respiratory problems, Plaintiff requested health services three times during the
month of November before she was referred to a physician. Prior to the physician appointment,
nurses at the jail provided Plaintiff with “cold packs” to alleviate her discomfort. A physician never
attended to her for this problem. One of Plaintiff’s experts, Dr. Stephen Barclay, speculated that

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these sinus issues were a sign of dental infection; though without examination by a physician at the
time, Dr. Barclay provides no opinion within a reasonable degree of medical probability.
On January 16, 2009, a jail dentist responded to Plaintiff’s complaint of a toothache by
prescribing penicillin and Ibuprofen, although it is unclear from the record whether the dentist
actually saw Plaintiff or ordered this prescription via telephone. When Dr. Schmutz, a jail dentist,
saw Plaintiff one week later, he recorded tooth decay and administered pain medication. On March
18, 2009, Plaintiff reported to medical staff that she was experiencing common cold or sinus
infection symptoms, for which she was treated with a “cold pack.”
On March 30, Plaintiff again complained of a toothache to a dental nurse. At this time, or
during another examination by a dental nurse on April 3, Plaintiff explained that she did not want
her tooth extracted and it was her intent to see a dentist upon her release. Dr. Marilyn Brown, a
dentist employed by Defendant and who examined Plaintiff in July, stated that under the
Correctional Medical Services Policy and Procedures Manual, the only options available for a
patient like Plaintiff were to extract the maligned tooth or treat the patient with antibiotics and pain
relief medication. While a root canal or other procedure may be more advantageous, the options at
a temporary corrections facility like the one in the instant case are limited. Additionally, Dr. Brown
testified that a sedative filling was not an appropriate treatment given the condition of Plaintiff’s
tooth. Plaintiff told the dental staff at the jail that she wanted to preserve the tooth, effectively
rejecting the extraction procedure. As a result, the nurse provided Plaintiff with medications to
mitigate her pain.
Several months later, on June 5, 2009, Plaintiff again requested treatment for cold-like
symptoms, and on or around June 10, health services personnel prescribed Plaintiff cold medication.

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Two weeks later on June 23, Plaintiff saw a dental health nurse again concerning her toothache, but
told the nurse that she would be released in a number of days and only needed medication to hold
her over until she could see a dentist outside the jail. Plaintiff was not released within a few days.
Later that month, as the pain persisted, Plaintiff asked to see a dentist. The dental nurse
continued to provide Ibuprofen to relieve Plaintiff’s pain. Dr. Brown examined her on July 1, 2009,
and found irregularities in the pulp of three teeth. She provided palliative treatment, prescribing an
antibiotic and pain medication. One week later, Plaintiff saw Dr. Brown again, and reiterated her
desire to keep her tooth and defer treatment until her release. On July 15, Plaintiff signed a Release
of Responsibility form, indicating that she refused to accept dental treatment and recommendations,
and acknowledging that she has been fully informed of the treatments, recommendations, and risks
involved in refusing this treatment.
On August 16, 2009, the on-call provider responded to Plaintiff’s complaints of pain by
prescribing an antibiotic and Motrin and placing her on the dental call list. The nurse noted on the
health forms that Plaintiff’s face was swollen and Plaintiff was tearful and anxious. Two days later,
Dr. Herbert Labordeaux, another jail dentist, evaluated Plaintiff and found an acute abscess tooth.
He administered pain medication and ordered Plaintiff to continue the antibiotic course previously
prescribed by the on-call doctor until release. Plaintiff was released two days later, on August 20,
2009. Plaintiff argues that Dr. Labordeaux should have prescribed the treatment for three days after
her release, as per LMDC and Corizon policies. It is disputed, however, whether Plaintiff’s
particular situation even triggered these policies, and whether the LMDC facility indeed failed to
offer such medication to the Plaintiff.
On August 21, 2009, Plaintiff visited her family physician, Dr. Katherine Witherington. Dr.

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Witherington noted that Plaintiff said she saw her dentist earlier that day, and her dentist scheduled
a root canal. The following day, Plaintiff was transported to the Baptist East Emergency Room due
to fever and pronounced facial swelling. Amputation of both her legs and all ten fingers resulted.
Plaintiff attributes these injuries to an untreated tooth abscess that spontaneously drained
bacteria-laden pus which aspirated into Plaintiff’s lung. According to Plaintiff, this bacteria then
either caused her to contract pneumonia complicated by sepsis or poisoned her bloodstream, leading
to the amputation of Plaintiff’s limbs. Defendant presents medical evidence that the infection
leading to the amputation has an entirely independent origin.
Plaintiff’s and Defendant’s disparate recitation of the facts and the varied expert opinions
show that serious issues persist as to the causal connection between the toothache and the
amputation of Plaintiff’s feet and fingers. However, Defendant does not seek summary judgment
on that basis. It focuses on the deliberate indifference issue, not causation. In this analysis, the
Court must view the evidence of deliberate indifference and draw all reasonable inferences in favor
of the Plaintiff. Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). Taking the Plaintiff’s allegations as true, the Court must determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986). Based on this standard, the Court proceeds to address the substantive issues in the motion
for partial summary judgment.
II.
Plaintiff alleges that Defendant was deliberately indifferent to her serious medical needs by
failing to provide proper medical treatment. This claim arises under 42 U.S.C. § 1983, “which

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creates a civil cause of action against individuals who, while acting under the color of state law,
deprive a person of the ‘rights, privileges, or immunities secured by the Constitution or laws of the
United States.’” Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012)(quoting Bennett v. City of
Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)). Plaintiff’s claim under § 1983 is based on alleged
violations of the Eighth Amendment, which forbids prison officials from acting with deliberate
indifference toward an inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976).
To maintain this § 1983 action, an inmate who claims a violation for denial of medical care must
satisfy both an objective component and a subjective component of deliberate indifference. See
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
A.

The objective component requires the existence of a “sufficiently serious” medical need.
Id. “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.’” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)(quoting Blackmore
v. Kalamazoo Cnty., 390 F.3d 890, 897 (6th Cir. 2004)).
Defendant would argue that no one could have known about the seriousness of Plaintiff’s
condition and that, indeed, it was unrelated to her dental complaints. Taking Plaintiff’s
allegations as true, however, her condition meets the objective component of her claim. Dental
problems have been recognized as a serious medical need when the condition results in
significant pain and discomfort. See Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)
(recognizing a serious need where the dental problem results in pain to the plaintiff, tooth
deterioration due to lack of treatment, or “the inability to engage in normal activities”).

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According to Plaintiff, over the course of her eleven-month incarceration, she experienced
significant pain resulting from her toothache and abscessed tooth. In making this assertion,
Plaintiff has presented sufficient evidence to meet the objective element of deliberate
indifference.
B.
The remaining issue is whether Plaintiff presented enough evidence to establish the
subjective component of the deliberate indifference claim. This is a difficult test to meet,
particularly considering the amount of attention devoted to Plaintiff’s care over an extended time.
The subjective component of a § 1983 claim requires Plaintiff to establish that prison officials had
a sufficiently culpable state of mind by acting with deliberate indifference to a serious medical need.
See Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004). The Supreme Court defined
deliberate indifference as being more than acting negligently but less than acting with purpose or
knowledge. See Farmer, 511 U.S. at 836; Estelle, 429 U.S. at 106. For liability to attach, a plaintiff
must show that the official: (1) subjectively knew of a risk to the inmate’s health; (2) drew the
inference that a substantial risk of harm to the inmate existed; and (3) consciously disregarded that
risk. Farmer, 511 U.S. at 837.
In the medical context, “[w]here a prisoner has 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 in state tort law.” 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)). However, prison officials cannot avoid § 1983
liability by providing some minimal measure of treatment. Indeed, the Sixth Circuit recognizes that

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deliberate indifference can be found in cases where the defendant rendered “‘grossly inadequate
care’ or made a ‘decision to take an easier but less efficacious course of treatment.’” McCarthy v.
Maitland Place, D.D.S., 313 F. App’x 810, 814 (6th Cir. 2008)(quoting Terrance v. Northville Reg’l
Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002)); see Rogers v. Evans, 792 F.2d 1052, 1058
(11th Cir. 1986) (defining grossly inadequate medical care as medical treatment “so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental
fairness”).
Plaintiff argues Defendant is liable because the inadequate medical treatment provided in the
LMDC facility effectively was no treatment at all. She states that Defendant’s employees allowed
her grossly undertreated tooth abscess to advance to such a point that it spontaneously drained
bacteria into her lung resulting in the amputation of both her legs and her fingers. However, during
the nearly eleven-month period of Plaintiff’s incarceration, at least three different licensed dentists
saw her on four different occasions. Additionally, she met with numerous other medical personnel,
including physicians and dental nurses. She received a variety of treatments for her ailments,
including the administration of pain medications and antibiotics.
Most notably, she refused a procedure that would have greatly improved her medical
situation and which might have prevented subsequent problems. When her tooth infection advanced
to such a state where extraction was warranted, the Defendant’s licensed dentist offered to perform
the procedure. At that point, Plaintiff had two options: to continue taking pain medication or to have
her tooth extracted.1 Plaintiff then voluntarily decided to forgo the dental care offered to her and
1

Plaintiff cites McCarthy v. Maitland Place, D.D.S., to buttress her argument that dental personnel rendered
inefficacious treatment. 313 F. App’x 810 (6th Cir. 2008). In that case, the Sixth Circuit found an issue of fact with
regard to deliberate indifference in a case involving alleged inadequate dental care. Id. at 814. However, a closer
look at this case reveals that its facts differ materially from those here. In McCarthy, the dentist may have withheld

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indicated she would see an outside dentist when released. The course of treatment offered was
adequate and the choice was in Plaintiff’s control. She chose to defer the procedure until release.
Throughout this ordeal, Plaintiff actively received ongoing dental and general health care.
Defendant’s medical personnel attended to Plaintiff’s medical needs and made efforts to increase
her comfort. When Plaintiff deferred treatment for her tooth abscess, Defendant’s staff continued
to administer pain medication and antibiotics until her release. Such medical care is not “so cursory
as to amount to no treatment at all.” Terrance, 286 F.3d 834, 843-44 (6th Cir. 2002) (quoting
Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989)). Plaintiff’s additional arguments that Defendant
performed improper intake dental screenings and failed to meet the suggested standard of providing
25 hours of dentistry a week have no bearing on the deliberate indifferent analysis in these
circumstances.
A thorough review of the record reveals that the Defendant’s employees may have been, at
most, negligent in treating Plaintiff. However, neither negligent medical care nor the delay in
providing medical care can rise to the level of a constitutional violation absent specific allegations
of sufficiently harmful acts or omissions establishing deliberate indifference. Looking at the record
in the light most favorable to Plaintiff, and giving her the benefit of all favorable inferences, a
reasonable jury could not conclude that Defendant’s medical personnel were deliberately indifferent
to Plaintiff’s medical needs.2
a more effective treatment option despite performing that procedure on other inmates. In essence, the dentist did not
offer a procedure out of his own convenience rather than medical need. Id. Here, Dr. Brown stated she offered those
treatments that were available to a patient in plaintiff’s condition and in that facility. Plaintiff, on her own accord,
refused a procedure that would have potentially alleviated her dental pain. Because the facts here are materially
different, McCarthy is not controlling.
2

The remaining issue in analyzing § 1983 municipal authority liability would be whether there is a direct
causal link between a municipal policy or custom and the constitutional deprivation. A private corporation under
contract to provide medical care to inmates at a state prison is acting under the color of state law and is therefore

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For the reasons stated herein, and being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendants’ Motion for Partial Summary Judgment is
SUSTAINED and Plaintiff’s § 1983 deliberate indifference claim is DISMISSED WITH
PREJUDICE.
The Court will consider other pending motions in due course. The remaining claim is set for
a jury trial commencing October 29, 2012.

September 17, 2012

cc:

Counsel of Record

subject to suit under § 1983. West v. Atkins, 487 U.S. 42, 56 (1988). When a § 1983 claim is made against such an
entity, a court must also determine that the municipality is responsible for that violation. Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 120 (1992). The Court need not address this issue because Plaintiff cannot satisfy the
first element of this § 1983 claim.

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