Dennison v. Marion County Sheriff Office et al

Filing 54

MEMORANDUM OPINION AND ORDER by Judge David J. Hale granting 40 the SHP Defendants' Motion for Summary Judgment; granting 42 Defendant Hardin County's Motion for Summary Judgment; denying 41 Plaintiff's Motion for Summary Judgment ; denying 48 Plaintiff's Motion for Summary Judgment; denying 50 Plaintiff's Motion for Summary Judgment; and denying 51 Plaintiff's Motion for Summary Judgment. cc: Plaintiff, pro se; Counsel(RR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
JIMMIE LEE DENNISON,

Plaintiff,

v.

Civil Action No. 3:14-cv-P378-DJH

HARDIN COUNTY DETENTION CENTER et al.,

Defendants.

*****
MEMORANDUM OPINION AND ORDER
This matter is before the Court on several cross-motions for summary judgment. These
motions include a motion for summary judgment by Defendants Christy Aubrey, RN, Christi
Curry, LPN, Heather Kennedy, LPN, and Southern Health Partners, Inc. (DN 40); Plaintiff’s
“Dispositive Motion and Request to Add Defendant” (DN 41); Defendant Hardin County’s
motion for summary judgment (DN 42); Plaintiff’s motion to deny Defendant’s motion for
summary judgment and request for summary judgment for Plaintiff (DN 48); Plaintiff’s “Reply
and Request for Summary Judgment Against Defendant” (DN 50); and Plaintiff’s motion for
summary judgment and response to Defendants’ motion to deny Plaintiff’s Motion (DN 51). For
the following reasons, the Court will deny each of Plaintiff’s motions for summary judgment and
grant Defendants’ motions for summary judgment.
I. PROCEDURAL HISTORY
Plaintiff Jimmie Lee Dennison, who was incarcerated at Hardin County (Kentucky)
Detention Center (HCDC) for approximately nine months, filed this pro se 28 U.S.C. § 1983
action, making a variety of claims against different Defendants. Because Plaintiff is proceeding
in forma pauperis, the Court screened his complaint pursuant to 28 U.S.C. § 1915A and allowed
his claims of deliberate indifference to a serious medical need, and medical malpractice to
proceed against Defendants Hardin County, Southern Health Partners, Inc. (SHP), and nurses

Christy Aubrey, Christi Curry, and Heather Kennedy. (DN 12) It is undisputed that SHP was
HCDC’s contract healthcare provider and the three Defendant nurses were SHP employees
during the relevant time period.
In his amended complaint (DN 22), Plaintiff alleged that, prior to being incarcerated at
HCDC, he had been “diagnosed as fully disabled . . . with Type 1 Bi-Polar, Paranoid
Schiztophrenic, P.T.S.D., and Agoraphobia” and had been prescribed “Depakote, Respridal, and
Seroquil” by a private physician. (DN 22, Am. Compl., p. 4). He also alleged that, prior to his
incarceration, he been diagnosed with advanced arthritis and bursitis in both shoulders and had
been prescribed Lortab, Tramadol, a muscle relaxer, and Ibuprofen to treat the pain caused by
these conditions. Id. Plaintiff further reported that he was injured in a fall at HCDC, shortly
after being incarcerated there, and was x-rayed and diagnosed with a “torn rotator cuff and
tendons” and that, as a result of such, Defendants only provided him with Ibuprofen for ten days.
Id. Plaintiff also alleged that as result of this fall, “it was a constant day and night struggle with
the blinding, crippling pain, to the point my blood pressure was running 200/100.” Id. Plaintiff
further alleged that despite repeated requests, Defendants refused to provide him with his
prescription medications for his mental health diagnoses. Ultimately, Plaintiff alleged that this
inadequate medical treatment resulted in him having a “light stroke.” Id. For relief, he requested
$150 million in money damages, $500 million in punitive damages, and another $500 million for
“almost causing [his] painful death.” Id.
II. FACTS
The evidence shows that Plaintiff was housed at HCDC from December 10, 2013,
through August 20, 2014. Upon booking at HCDC, on December 10, 2013, Plaintiff answered
medical questions and indicated that he was currently taking “Tramadol, Loratab, Ibuprofen, and

2

Bacorat1” and that he suffered from “losing feeling in right side of leg and pain in shoulder area.”
(DN 40, SHP Defs.’ Br., Ex. 6, Medical Questions). On that same date, Plaintiff was again
asked questions regarding his medical history for the Medical Staff Receiving Screening Form.
(DN 40, SHP Defs.’ Br., Ex. 7). On that form, Plaintiff indicated that the only condition he had
been treated for was high blood pressure and that he was not currently taking any medications
prescribed to him by a physician. Id. According to the form, he did not express to the
interviewer that he had any mental health issues or that he was taking medications for such. Id.
Plaintiff’s vital signs at the screening did indicate, however, that he had high blood pressure. Id.
At Plaintiff’s request, Defendants contacted Plaintiff’s pharmacy in Alabama and asked for a
current list of Plaintiff’s medications. HCDC medical staff received the pharmacy log on
December 19, 2013. The medications listed on the log were Ibuprofen, Hydrocodone, Baclofen,
Tramadol, Prednisone, and Rhinoflex. (DN 40, SHP Defs.’ Br., Ex. 8, Pharmacy Log). The log
indicated that there were no refills authorized for any medication except Ibuprofen. Id.
In support of Plaintiff’s allegations, Plaintiff attached several documents to his amended
complaint that the Court will consider as evidence in analyzing the cross-motions for summary
judgment. These documents included two clinical progress notes from a medical provider (one
from 2005 and one from 2006); a 2013 letter from a Dr. Keith Morrow stating that Plaintiff’s pet
provided him emotional support; seven sick call slips from Plaintiff’s time at HCDC; two sick
call slips from his time at another facility; and a list of Plaintiff’s “current medications” from the
Kentucky Department of Corrections (KDOC) which appears to have been printed on September
22, 2014. Id.

1

In their brief, the SHP Defendants state that they believe Plaintiff meant “Bacoflen” instead of “Bacorat.” They
state that Baclofen is a muscle relaxer and was also listed on Plaintiff’s pharmacy’s log. (DN 40, SHP Defs.’ Br., p.
3, n.10; Ex. 8, Pharmacy Log).

3

The referenced 2005 and 2006 clinical progress notes from the Suncoast Center for
Community Mental Health, Inc., indicate that Plaintiff had been prescribed Risperdal, Zoloft,
Depakote, and Seroquel for mental health issues in those years. These documents do not indicate
that Defendants ever received a copy of them or that Plaintiff was still taking these medications
when he was first incarcerated at HCDC in December 2013. (DN 22, pp. 13-14).
Plaintiff’s sick call slips from his time at HCDC establish that he frequently reported
physical concerns and made requests for pain medications and was repeatedly told he could not
be given medication for chronic pain. For example, Plaintiff’s sick call slips from March 30,
2014, and March 31, 2014, indicate that he sought to be transferred because “the pains are
getting out of hand” and that he requested an arm sling for the “right arm [he] injured” and
another “regiment of 600 mg Ibuprophen for a while or until a place is found to move me too.”
(DN 22, pp. 20-21). On these forms, Plaintiff indicates that he had been in pain since he “fell in
the kitchen” at HCDC on December 3, 2013. (DN 22, p. 21-22). In response to these
complaints, a nurse states, “You are not being moved anywhere else. I cannot approve the above
requests, as this is a chronic issue.” Id. Plaintiff’s sick call slip from April 1, 2014, shows that
he again requested Ibuprofen, an arm sling, and relocation and that a nurse responded by stating,
“No treatment for chronic pain, or arm sling. You are not being relocated.” (DN 22, p. 23).
Similarly, Plaintiff’s sick call slip from April 2, 2014, also shows a nurse informed him that “we
do not treat chronic pain.” (DN 22, p. 24). Finally, Plaintiff’s last sick call slip at HCDC, dated
August 17, 2014, states, “My shoulder has flaired up, would like some ibuprophen, the medical
papers you asked for was mailed out Saturday, I’ll get them next week.” (DN 22, p. 25). A
nurse responded to this request by stating: “You have been treated numerous times for shoulder

4

pain. As you have been advised several times before, we do not medicate for chronic pain.
Ibuprofen and Tylenol are available on canteen.” Id.
The other sick call slips submitted by Plaintiff at HCDC show concerns regarding his
blood pressure. For example, Plaintiff’s January 6, 2014, sick call slip shows that he reported
losing feeling in his legs and feet on January 6, 2014, but was advised by a nurse that this could
be due to his refusal to take his blood pressure medicine. (DN 22, p. 19). In addition, Plaintiff’s
sick call slip from August 13, 2014, shows that he reported having sharp chest and arm pains and
that a nurse responded by telling him that his “blood pressure is doing much better. Please try to
remain on these, as well as the diuretic the doctor has added. Hopefully it will subside.” (DN 22,
p.20).
Finally, the form Plaintiff submitted from the KDOC, which appears to have been printed
on September 22, 2014, indicates that Plaintiff began being prescribed Guaifenesin for acute
bronchitis, Ibuprofen and Methocarbamol for pain, and Risperdone, Depakote, and Sertraline,
once he was transferred from HCDC to Roederer Correctional Complex in late August 2014.
(DN 22, p. 12). On this form, Plaintiff states that he still seeks to be prescribed Lortab,
Tramadol, and a muscle relaxer for pain. Id.
II. LEGAL STANDARD
Before the Court may grant a motion for summary judgment, it must find that there is no
genuine dispute as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the record that demonstrates the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the
moving party satisfies this burden, the non-moving party thereafter must produce specific facts

5

demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247–48 (1986).
The evidence of the non-moving party is to be believed, Anderson, 477 U.S. at 255, and
all reasonable inferences that may be drawn from the facts placed before the Court must be
drawn in favor of the party opposing summary judgment . Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). Nevertheless, the non-moving party must do
more than merely show that there is some “metaphysical doubt as to the material facts.” Id. at
586 (1986). Instead, the Federal Rules of Civil Procedure require the non-moving party to
present specific facts showing that a genuine factual issue exists by “citing to particular parts of
materials in the record” or by “showing that the materials cited do not establish the absence . . .
of a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence
in support of the [non-moving party’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
III. ARGUMENTS
A. Plaintiff’s Motions for Summary Judgment
Plaintiff has seemingly filed four motions for summary judgment (DNs 412, 48, 50, and
51). The Court will consider the arguments that Plaintiff has raised in each motion. In his first

2

Docket Entry No. 41 is actually entitled “Dispositive Motion and Request to Add Defendant.” In this motion,
Plaintiff also requests that the Court allow him to “re-add the Hardin County Detention Center” as a defendant. The
Court, however, points Plaintiff to its Memorandum Opinion and Order entered on November 6, 2014 (DN 12),
which stated as follows:
Hardin County Detention Center is not a “person” subject to suit under § 1983 because municipal
departments, such as jails, are not suable under § 1983. Marbry v. Corr. Med. Servs., No. 996706, 2000 U.S. App. LEXIS 28072, at *2 (6th Cir. Nov. 6, 2000) (holding that a jail is not an
entity subject to suit under § 1983); see also Rhodes v. McDannel, 945 F.2d 117, 120 (6th Cir.
1991) (holding that a police department may not be sued under § 1983). In this situation, Hardin
County is the proper defendant. Smallwood v. Jefferson Cnty. Gov’t, 743 F. Supp. 502, 503 (W.D.
Ky. 1990) (construing claims brought against the Jefferson County Government, the Jefferson
County Fiscal Court, and the Jefferson County Judge Executive as claims against Jefferson

6

motion (DN 41), Plaintiff argues that although Defendants had his medical records, “stating [his]
physical and mental medical needs, they . . . repeatedly over 9 months; even after their
misdiagnosis of my mental medication and the fall in the kitchen destroying my right shoulder
. . . constantly and Continually denied me my M.D. prescribed medications.” (DN 41, Pl.’s Br.,
p. 1). Plaintiff also states that his sick call slips alone prove that Defendants are liable for
“misdiagnosis of [his] psych meds and refusal to treat my chronic pain.” (Id., p. 2) In support
of his motion, Plaintiff attached the following three opinions to his brief: Harlow v. Fitzgerald,
457 U.S. 800 (1982) (holding that qualified immunity is defeated “if an official knows or
reasonably should know that the action he takes within his sphere of official responsibility will
violate the constitutional rights of the plaintiff); Romero v. Lappin, No. 10-35-ART, 2011 U.S.
Dist. LEXIS 86435 (E.D. Ky. Aug. 4, 2011) (citing Harlow v. Fitzgerald’s holding that qualified
immunity shields government officials from liability for monetary damages “insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person should have known); and McLaurin v. Morton, 48 F.3d 944 (6th Cir. 1995)
(also citing Harlow).
In Plaintiff’s second motion for summary judgment (DN 48), he reiterates that he was
repeatedly denied the medications he had been prescribed by his doctor, including hydrocodone
and “trimodal” for arthritis and bursitis which he has suffered from since the 1990’s. He again
states that although he was prescribed Ibuprofen for ten days after his fall at HCDC, Defendants

County itself). Further, Hardin County is a “person” for purposes of § 1983. See Monell v. New
York City Dept. of Soc. Servs., 436 U.S. 658 (1978).
In addition, the Court notes that it has allowed Plaintiff’s claims of deliberate indifference to a serious medical need
in violation of the Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution
and his claims of medical malpractice to proceed against Hardin County and that they are the subject of the motions
for summary judgment now before the Court (DN 23).

7

subsequently refused to provide him with medication after that because they “do not treat chronic
pain.”
In Plaintiff’s third motion for summary judgment (DN 50), he reiterates that the sick call
slips, their dates, and Defendants’ responses to them, which he attached to his amended
complaint, are all the proof he needs to show that he is entitled to summary judgment.
Finally, in Plaintiff’s final motion for summary judgment (DN 51), he states that there is
no such thing as judicial immunity. He also reiterates that he had an accident wherein he tore the
rotator cuff in his right shoulder and that he was denied medical treatment as was prescribed by
“Dr. Morrow” and that this resulted in him having three strokes. 3
B. Defendants Christy Aubrey, RN, Christi Curry, LPN, Heather Kennedy, LPN, and
SHP’s Motion for Summary Judgment
In Defendants Christy Aubrey, RN, Christi Curry, LPN, Heather Kennedy, LPN, and
SHP’s (or the “SHP Defendants’”) motion for summary judgment (DN 40), the SHP Defendants
first argue that the evidence establishes that they were not deliberately indifferent to a serious
medical need. They also argue that Defendant SHP cannot be held liable for deliberate
indifference under a theory of respondeat superior. The SHP Defendants further argue that
Plaintiff’s medical malpractice claim must fail because Plaintiff has not provided any expert
testimony in support of this claim. Finally, the SHP Defendants argue that that they are
protected from liability by the doctrine of qualified official immunity.

3

In DN 48, DN 50, and DN 51, Plaintiff also states that he is “recharging” Defendants and Judge Mark Easton with
“deliberate unusual punishment, mental and physical abuse and duress, dereliction of duty, violation of my 8 th
Amendment of the U.S. Constitution, Section 17 of the Kentucky Constitution, violation of my 1st, 2nd, 4th, and 15th
civil rights.” With regard to these claims, the Court notes that they were included in Plaintiff’s amended complaint
and that the only claims the Court allowed to proceed were the claims of deliberate indifference in violation of the
Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution and medical
malpractice (DNs 21 & 22). The Court also notes that Plaintiff’s claims against Judge Easton were also dismissed
by a prior Court Order (DN 12).

8

C. Defendant Hardin County’s Motion for Summary Judgment
In its motion for summary judgment (DN 42), Defendant Hardin County argues that it is
entitled to summary judgment because Plaintiff has not identified a Hardin County official,
employee, or representative who was responsible for his medical treatment and because Plaintiff
has not identified a policy or custom that was the moving force behind his alleged constitutional
deprivation. Hardin County also argues that it is entitled to summary judgment on Plaintiff’s
medical malpractice claim because “counties are cloaked with sovereign immunity.”
IV. ANALYSIS
A. The SHP Defendants
a. Deliberate Indifference to a Serious Medical Need
Section 1983 creates no substantive rights but merely provides remedies for deprivations
of rights established elsewhere. Flint ex rel. Flint v. Ky. Dep't of Corr., 270 F.3d 340, 351 (6th
Cir. 2001). Two elements are required to state a claim under § 1983. Gomez v. Toledo, 446 U.S.
635, 640 (1980). “A plaintiff must allege the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Absent either element,
a § 1983 claim will not lie. Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).
The Eighth Amendment protects convicted prisoners from the “unnecessary and wanton
infliction of pain.” U.S. Const. amend. VIII. An Eighth Amendment claim requires a plaintiff to
prove two distinct components - one objective and one subjective. First, the alleged deprivation
must be, objectively, “sufficiently serious,” i.e., the “official’s act or omission must result in the
denial of the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825,

9

834 (1970) (citations and internal quotation marks omitted). Second, the official must have been
“deliberately indifferent” to the inmate’s health or safety. Id.4
To satisfy the objective component of an Eighth Amendment deliberate indifference
claim, Plaintiff must show the existence of a sufficiently serious medical need, meaning that he
is “incarcerated under conditions posing a substantial risk of serious harm.” Id. (citing Farmer,
511 U.S. at 834). 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 Cty., 390 F.3d 890, 897 (6th Cir. 2004)).
The subjective component is met “where a plaintiff demonstrates that prison officials
acted with ‘deliberate indifference’ to a serious medical need,” which “is the equivalent of
‘recklessly disregarding that risk.’” McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008)
(quoting Farmer, 511 U.S. at 836). In other words, “[s]atisfying the objective component
ensures that the alleged deprivation is sufficiently severe, while satisfying the subjective
component ‘ensures that the defendant prison official acted with a sufficiently culpable state of
mind.’” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013) (quoting Smith v.
Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003)). In Alspaugh v. McConnell, the Sixth Circuit
held as follows:
“[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received
inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th
4

The legal analysis for Plaintiff's claims under the Eighth Amendment and Section 17 of the Kentucky Constitution
is the same. See Simms v. City of Harrodsburg, 2007 U.S. Dist. LEXIS 70250, *15 (E.D. Ky. Sept. 21,
2007)(“[Section 17 of the Kentucky Constitution] is nearly identical in language to the Eighth Amendment of the
United States Constitution, and it has been treated very similarly by Kentucky Courts.”) (citing Workman v.
Commonwealth, 429 S.W.2d 374, 376 (Ky. 1968)); Riley v. Commonwealth, 120 S.W.3d 622, 633 (Ky. 2003) (“We
regard [the] variation in phraseology [between the Eighth Amendment and the Section 17 of the Kentucky
Constitution] as a distinction without a difference.”). As such, the Court's analysis of Plaintiff’s Eighth Amendment
claims is equally applicable to his claims arising under Section 17 of the Kentucky Constitution.

10

Cir. 1976). Where a prisoner alleges only that the medical care he received was
inadequate, “federal courts are generally reluctant to second guess medical
judgments.” Id. However, it is possible for medical treatment to be “so woefully
inadequate as to amount to no treatment at all.” Id.
643 F.3d 162, 169 (6th Cir. 2011).
The Sixth Circuit has also held that “[a] plaintiff alleging deliberate indifference must
show more than negligence or misdiagnosis of an ailment.” Johnson v. Karnes, 398 F.3d 868,
874 (6th Cir. 2005). A plaintiff must also show that his claim involves more than a difference of
opinion between the plaintiff and a doctor regarding the plaintiff’s diagnosis and treatment.
Westlake, 537 F.2d at 860 n.5.
i. Medical Treatment for Chronic Pain
Plaintiff’s primary complaint against the SHP Defendants is that they repeatedly refused
to treat his chronic pain. Plaintiff first alleges that he had been diagnosed with bursitis and
arthritis prior to being incarcerated at HCDC and was prescribed prescription pain medication for
these ailments. However, Plaintiff has provided no evidence of any of these diagnoses or
evidence that he informed the SHP Defendants that he had these diagnoses. The evidence does
show that Plaintiff informed the SHP Defendants upon his arrival at HCDC that he was taking
“Tramadol, Loratab, Ibuprofen, and Bacorat.” However, the pharmacy log produced by the SHP
Defendants indicates that although Plaintiff had been prescribed Ibuprofen, Hydrocodone,
Baclofen, Tramadol, Prednisone, and Rhinoflex at some point, the only refill authorized at the
time Plainitff entered HCDC was for Ibuprofen.
Plaintiff also alleges that he suffered a torn rotator cuff as a result of a fall of HCDC.
While there is no evidence of a diagnosis, the inmate sick call slips submitted by Plaintiff do

11

indicate that he fell in the kitchen on December 3, 2013, and that he was prescribed a regimen of
600 mg of Ibuprofen by the SHP Defendants as a result.5
Thus, Plaintiff’s primary evidence that the SHP Defendants were deliberately indifferent
to his reports of chronic pain are the five call slips he submitted, ranging from March 30, 2014,
to August 17, 2014, which show that he repeatedly reported suffering from pain and that, in
response to his request for pain medication and, on occasion, an arm sling and a transfer, he was
informed by the SHP Defendants four separate times that they do not treat “chronic pain.” And,
indeed, on the last sick call slip that Plaintiff provided, in which he again stated that his shoulder
was in pain and that he would like medication, he was informed as follows: “You have been
treated numerous times for shoulder pain. As you have been advised several times before, we do
not medicate for chronic pain. Ibuprofen and Tylenol are available on canteen.”
In response, the SHP Defendants argue that Plaintiff’s sick call slips show that his
requests were for narcotics and that they have a very strict policy against providing narcotics to
inmates due to safety and security concerns. Significantly, however, there is no evidence in the
record showing that Plaintiff specifically requested narcotics for his pain, and one shows that all
he was requesting was “another regiment of 600 mg Ibuprofen.”
The SHP Defendants also state that in response to Plaintiff’s requests for pain
medication, he was given Voltaren – a non-narcotic pain medication. Again, however, there is
no evidence in the record to support this claim.
The first determination that the Court must reach in its analysis is whether Plaintiff has
shown that the pain he alleges he suffered from constitutes a “serious medical need.” As stated

5

In his amended complaint (DN 22), Plaintiff claims that he received an x-ray on the night of his fall and that he
was told that he had a torn rotator cuff. Significantly, however, Plaintiff has provided the Court with no evidence
that he actually received this diagnosis. And the record contains no medical records, such as the x-ray or other tests,
showing that he received this or any other diagnosis.

12

above, although Plaintiff alleges that he had been diagnosed with bursitis, arthritis, and a torn
rotator cuff, he has not presented evidence which establishes such. Indeed, the only evidence of
Plaintiff’s “injury” are the five sick call slips in which he reports that he is in pain and requests
pain medication.
In Dearing v. Mahalma, a district court extensively analyzed and addressed this very
issue. No. 1:11-cv-204, 2013 U.S. Dist. LEXIS 188064 (S.D. Ohio Oct. 7, 2013). In that case,
the plaintiff complained that he suffered severe and chronic pain from a decades-old gunshot
injury; that his pain was so severe it that impacted his regular activities, including his sleep; and
that the defendants failed to adequately treat his pain. Id. at *2-3. The Dearing court began by
taking judicial notice of the fact that chronic pain is an extremely common problem, not just in
the prison population, but in the U.S. population at large. Id. at *19. The court cited an article in
an issue of the National Institutes of Health (NIH) publication, MedlinePlus, which states that
although more than 76 million people in the United States live with chronic pain, almost half of
them receive no treatment. http://www.nlm.nih.gov/medlineplus/magazine. (Spring 2011, Vol.
6, Number 1, page 4).
Using this information as a guide, the Dearing court concluded that the plaintiff’s chronic
pain from a gunshot wound years before did not meet the Sixth Circuit’s definition of an
“objectively serious” medical condition. Id. at *20. In so holding, it relied upon the Sixth
Circuit’s holding in Blackmore, in which it defined an “objectively serious” medical condition as
“one that has been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention.” 390 F.3d at
897. The Dearing court noted that “the latter ‘obvious’ category of claim is generally limited to
those claims that involve a need ‘for immediate or emergency medical attention,’ involving ‘life-

13

threatening conditions or situations where it is apparent that delay would detrimentally
exacerbate the medical problem,’ such as the acute appendicitis symptoms at issue in
Blackmore.” Id. at *20-21 (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187-88
(11th Cir. 1994)). Like the court in Dearing, this Court concludes that Plaintiff has not presented
evidence that his chronic pain meets the “obviousness” standard for determining that he suffered
from a serious medical need, especially since his chronic pain was not accompanied by evidence
of any acute injury or diagnosis. See, e.g., Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. 1991)
(inmate who alleged denial of prescribed treatment for red, swollen and draining surgical wound
following gunshot, stated claim for deliberate indifference, because wanton interruption of a
prescribed plan of treatment can violate Eighth Amendment).
The Court notes, however, that a plaintiff can also prove a medical need is “objectively
serious” by showing the effect of a delay in treatment. Blackmore, 390 F.3d at 897. To
demonstrate a “serious medical need” under this standard, a plaintiff must demonstrate that a
“delay in treatment . . . caused injury, loss, or handicap.” Id. To succeed under this standard, a
plaintiff “must place verifying medical evidence in the record to establish the detrimental effect
of a delay in treatment.” Id. at 898 (quoting Napier, 238 F.3d at 742). With regard to this line of
cases, the Court finds that the facts in Wright v. Taylor most closely parallel the facts in this case.
79 F. App’x 829 (6th Cir. 2003). In Wright, the Sixth Circuit rejected an inmate’s Eighth
Amendment challenge to a five-week delay in treatment for tooth decay and the prison’s failure
to provide him with over-the-counter pain medication because the inmate had not shown that the
five-week delay had any detrimental effect on his condition. Id. at 830-831. Similarly, the Court
finds that here Plaintiff has failed to submit medical proof that the SHP Defendants’ failure to
provide him with pain medication had any detrimental effect on his condition. Indeed, although

14

Plaintiff claims that the SHP Defendants’ denial of pain medication ultimately caused him to
have a mild stroke, he has not presented the Court with any evidence upon which a jury could
reasonably conclude that he actually suffered a stroke or that the denial of pain medication was
its cause.6
Based on the above, the Court concludes that Plaintiff has failed to prove that his chronic
pain constituted an objectively serious medical need. The Court notes that this holding is
supported by a series of cases in addition to the ones outlined above. See, e.g., Harrell v.
Grainger Cty., Tenn., 391 F. App’x. 519, 524 (6th Cir. 2010) (exacerbation of prior back injury
evaluated under Napier standard, affirming summary judgment because failing to dispense
medication and “dispensing ibuprofen to Plaintiff two times in six days may have been deficient
to adequately alleviate Plaintiff’s pain . . . [but] does not rise to the level of exacerbating an
objectively obvious injury”); Lane v. Wexford Health Sources, No. 2:10-cv-389, 2011 U.S. Dist.
LEXIS 53403 (S.D. Ohio, May 18, 2011) (granting summary judgment to defendants on claim
that prison medical staff failed to adequately treat exacerbation of chronic pain from gunshot
wound, based on inmate’s failure to submit medical evidence to establish the detrimental effect
of the alleged delay in treatment); Aladimi v. Jones, No. 1:08-cv-810, 2010 U.S. Dist LEXIS
71055 (S.D. Ohio June 21, 2010) (no objective component demonstrated based on argument that
prison doctors should have prescribed pain medication absent medical evidence of serious
medical need). In summary, because Plaintiff has failed to establish that his chronic pain
constituted a “sufficiently serious medical condition,” the Court holds that the SHP Defendants

6

In one of Plaintiff’s sick call slips from the facility to which he was ultimately transferred, he does report that he
had a mild stroke. However, the Court finds that this one statement, which may be no more than a self-assessment
of what occurred, does not constitute evidence upon which a jury could reasonably find that Plaintiff actually had a
stroke or that a lack of pain medication caused him to have a stroke.

15

are entitled to summary judgment on Plaintiff’s claim of deliberate indifference to his chronic
pain.7
ii. Medical Treatment for Mental Health Issues
Plaintiff has submitted evidence showing that he had serious mental health issues in 2005
and 2006. He has also submitted evidence showing that a “Dr. Morrow” had indicated that he
needed an emotional support animal in 2013. The Sixth Circuit has held that a prisoner’s
“psychological needs may constitute serious medical needs.” Comstock v. McCrary, 273 F.3d
693, 703 (6th Cir. 2001)(quoting Horn v. Madison Cty. Fiscal Court, 22 F.3d 653, 660 (6th Cir.
1994)). Here, however, the Court need not determine whether Plaintiff’s evidence establishes
that he had a serious mental condition at the time he entered HCDC because Plaintiff has failed
to produce evidence which establishes the subjective component of deliberate indifference – that
the SHP Defendants recklessly disregarded his mental health needs.
The undisputed evidence shows that, on the day of his admission to HCDC, Plaintiff
failed to inform the SHP Defendants that he had ever been diagnosed with any mental health
condition or that he was taking medication for such, despite twice being asked specific questions
regarding his medical history. Plaintiff also has not shown that the SHP Defendants ever
received a copy of the 2005 and 2006 progress notes from the Suncoast Center for Community
7

Because Plaintiff failed to establish the first component of an Eighth Amendment violation, the Court need
not determine whether the record establishes that the SHP Defendants were deliberately indifferent to Plaintiff’s
chronic pain. The Court is concerned, however, that the evidence shows that SHP’s policy prohibits treatment of
chronic pain. The Court could conceive of circumstances under which this would amount to reckless disregard of an
inmate’s serious medical needs. As the court in Seal opined, there may be situations where chronic pain would
constitute a serious medical need, e.g., where an inmate’s complaints of pain were accompanied by weight loss,
vomiting, or other significant impact on daily activities. 2013 U.S. Dist. LEXIS 188064, at *21 n.6.
The Court could find only one case in which a similar policy had even been discussed. In that case, the
Nevada Department of Corrections “made a policy determination to no longer treat chronic pain on a routine basis”
due to health concerns associated with the prolonged use of Ibuprofen and Naproxen. Collins v. MacArthur, No.
CV-N-05-0237-PMP, 2006 U.S. Dist. LEXIS 101111 (D.C. Nev. June 14, 2006). Significantly, however, the
defendants in Collins emphasized that although pain medicine would no longer be routinely prescribed for chronic
pain, inmates would still be evaluated on an individual basis to determine whether pain medication was appropriate
to their specific medical needs. Id. at *16-17.

16

Health, Inc., which outlined his mental health issues at that time, or a copy of the 2013 letter
from Dr. Morrow indicating that he believed that a pet would provide Plaintiff with emotional
support. Finally, the evidence presented by the SHP Defendants shows that, shortly after
Plaintiff was incarcerated at HCDC, they requested and received a medication log from the
pharmacy that Plaintiff indicated he was currently using and that this log showed that the only
medicine that Plaintiff had a current prescription for was Ibuprofen. In fact, according to the
record, Plaintiff only mentioned his mental health prescriptions on one occasion. According to
Plaintiff’s January 6, 2014, sick call slip, he complained as follows: “Just a reminder that I’m
losing more feeling in my legs and feet. If need be in the future, you can call Dr. Morrow to
verify my prescriptions for Depakote and Respridal [sic], I haven’t taken Seroquil for a while to
save my liver.” A nurse responded as follows: “Depakote, Risperdal, nor Seroquel are for loss of
feeling in your legs. You are refusing to take your BP medicine, this may have something to do
with what you are experiencing.” Thus, other than the January 6, 2014, sick call slip, Plaintiff
has produced no evidence that the SHP Defendants were aware that he had ever been prescribed
medications for mental health diagnoses. And even this slip does not indicate that Plaintiff
actually informed the SHP Defendants of his mental health history or that he was requesting
medications to treat current mental health issues. Thus, based on the undisputed evidence, the
Court concludes that, as a matter of law, the SHP Defendants were not deliberately indifferent to
Plaintiff’s mental health needs because the evidence does not show that they acted with “a
sufficiently culpable state of mind.”
b. Medical Malpractice
The Court will now consider the SHP Defendants’ argument that they are entitled to
judgment on Plaintiff’s state-law claim of medical malpractice. Under Kentucky law, “[e]xcept

17

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); see also Reynolds v. Elizabeth, No.
1:11CV-P142-M, 2015 U.S. Dist. LEXIS 132070, at *9-11 (W.D. Ky. Sept. 29, 2015); Griffin v.
Lappin, No. 10-49-GFVT, 2011 U.S. Dist. LEXIS 29025, at *22-24 (E.D. Ky. March 21, 2011);
Muhammed v. United States, No. 08-CV-131-KKC, 2009 U.S. Dist. LEXIS 89799 (E.D. Ky.
Sept. 28, 2009).
The Court agrees with the SHP Defendants that they are entitled to summary judgment as
a matter of law on Plaintiff’s medical malpractice claim because Plaintiff has failed to disclose or
produce any competent and qualified expert witness critical of the care Plaintiff received in this
case. The Court finds that an expert witness is necessary because the issue of medication choice
18

is nearly always an issue of medical judgment, and therefore beyond the everyday knowledge of
laypersons. The Court finds this to be especially true in light of the information on chronic pain
published by the NIH, referenced above, which reads as follows: “Assisting people in managing
chronic pain is tough. Strong medicines that relieve the pain can also create new problems and
must be used with great care.” http://www.nlm.nih.gov/medlineplus/magazine. (Spring 2011,
Vol. 6, Number 1, page 4). The article goes on to state that “[t]hose who prescribe these
medicines, and those who use them, must learn to do safely and effectively.” Id.
B. Defendant Hardin County
Finally, the Court holds that Defendant Hardin County is likewise entitled to summary
judgment. As set forth above, with regard to his claims of deliberate indifference to a serious
medical need, Plaintiff has failed to establish that his constitutional rights were violated. A
municipality can only be held liable under §1983 if a plaintiff can prove that a municipal policy
or custom was the “moving force” behind a constitutional violation. Monell v. Dep’t. of Soc.
Servs., 436 U.S. 658, 694 (1978); see also Alkine v. Irving, 330 F.3d 802, 815 (6th Cir. 2003).
With regard to Plaintiff’s medical malpractice claim, the Court holds that Defendant
Hardin County is entitled to summary judgment both because Plaintiff has failed to produce an
expert witness and because his claim is barred by the doctrine of sovereign immunity. In
Kentucky, a county government, as a subdivision of the state, shares the state’s sovereign
immunity, Schwindel v. Meade Cty., 113 S.W.3d 159, 163 (Ky. 2003), and Kentucky has not
waived its immunity against tort suits. See Sours v. Big Sandy Reg'l Jail Auth., 946 F. Supp. 2d
678, 689 (E.D. Ky. 2013).

19

V. CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendants Christy
Aubrey, Christi Curry, Heather Kennedy, and SHP’s motion for summary judgment (DN 40) is
GRANTED; Defendant Hardin County’s motion for summary judgment (DN 42) is
GRANTED; and Plaintiff’s motions for summary judgment (DNs 41, 48, 50, and 51) are
DENIED as moot.
Date:

February 23, 2016

David J. Hale, Judge
United States District Court

cc:

Plaintiff, pro se
Counsel of record
4415.011

20