Jimenez et al v. Hopkins County, Kentucky et al

Filing 112

MEMORANDUM OPINION AND ORDER granting in part and denying in part 76 Motion for Summary Judgment; granting in part and denying in part 77 Motion for Summary Judgment; denying 106 Motion for Hearing. Signed by Chief Judge Joseph H. McKinley, Jr on 1/13/14. cc:counsel (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:11-CV-00033-JHM
CINDY JIMENEZ, Administratrix of the
Estate of TYLER BUTLER, deceased,

PLAINTIFFS

V.
HOPKINS COUNTY, KENTUCKY, et. al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Defendants, Southern Health Partners,
Inc., Henry Davis, M.D., Candace Moss, Renee Keller, Betty Dawes, and Angela Pleasant (“SHP
Defendants”), for summary judgment [DN 76]; on a motion by Defendants, Hopkins County, Joe
Blue, Jeremy Witherspoon, Teressa Kreitler, Angela Peterson, Eric Poe, Diana Potocnick, and
Jessica Bennett (“County Defendants”), in their individual and official capacities, for summary
judgment [DN 77], and on a motion by Plaintiff, Cindy Jimenez, Administratrix of the Estate of
Tyler Butler, for a hearing on the motions for summary judgment [DN 106]. Fully briefed, these
matters are ripe for decision.
I. STANDARD OF REVIEW
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
demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U .S. 242,

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247–48 (1986).
Although the Court must review the evidence in the light most favorable to the nonmoving party, the non-moving party must do more than merely show that there is some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the nonmoving 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. It is against this standard the Court reviews the following facts.
II. BACKGROUND
Plaintiff, Cindy Jimenez, Administratrix of the Estate of Tyler Butler, brings this action
pursuant to 42 U.S.C. § 1983 alleging that the Defendants violated Butler’s rights under the
Eighth, Tenth, and Fourteenth Amendment to the Constitution of the United States by acting
with deliberate indifference to his serious medical needs while he was an inmate in the Hopkins
County Detention Center (“HCDC or Jail”).

Plaintiff also asserts state law claims for

negligence, gross negligence, and the tort of outrage arising from the same conduct.
HCDC contracted with Southern Health Partners (“SHP”) to provide medical services for
its inmates. SHPS separately contracted with Dr. Henry Davis to act as HCDC medical director.
Davis was not a SHP employee. SHP employed nurses and other medical personal at HCDC. In
April of 2010, SHP employed Candace Moss, LPN; Betty Dawes, R.N.; Angela Pleasant, LPN;
and Renee Keller, LPN.

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A. Thursday, April 8, 2010
On Thursday, April 8, 2010, at 4:57 p.m., Tyler Butler (hereinafter “Butler”) surrendered
himself at HCDC to serve a scheduled sentence for assault. Upon his arrival at the Jail’s intake
area, Deputy Jailer Sherry McDowell, who was working the control tower, buzzed him through
the outer door of the facility into a receiving area, where he was met by Deputy Jailer Rodney
Knox. Knox escorted Butler into the facility’s booking area. Knox took Butler to a section of
the booking area to be fingerprinted. During this procedure, Butler vomited into a trashcan.
Knox placed Butler into a diversion cell directly across from the booking desk to await booking.
Knox informed his shift supervisor, Deputy Jailer Carl Coy, and Defendant Deputy Jailer Angela
Peterson that Butler had vomited.
Peterson served as Butler’s booking officer. Peterson testified that Butler communicated
to her that he was late for his intake because he had to walk to the Jail from his father’s home in
Madisonville because he could not find a ride. Peterson indicated that Butler was sweating
profusely when she first saw him. Peterson further testified that she was alerted by the control
tower operator Sherry McDowell that Butler appeared to have swallowed something as he stood
at the booking window.

Peterson indicated that Butler’s condition noticeably deteriorated

between the time of his arrival and the time he was brought into the booking area of the Jail to be
processed. According to Peterson,
From the time that he walked in the door, he – I mean, he was
really sweaty, but he could actually speak to me. He got to where
he could barely even stand up outside. Almost like he was under
the influence of something. He could not hardly stand up outside.
His eyes was like almost closed, where he was like this
(indicating). I mean, like he was really squinting to see.
(Angela Peterson Dep. at 9.) During Butler’s medical interview at booking, Butler indicated that
he suffered from gout, high blood pressure, rheumatoid arthritis, osteoporosis, and methicillin-

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resistant staphylococcus aureus (“MRSA”). Butler also reported that he was taking Prednisone,
Seroquel, Allopurinol, and Colchicine and that he had been treated recently for depression.
Finally, Peterson testified that Knox reported that Butler had vomited twice.
Based on Butler’s responses to the questions and his physical appearance, Peterson
testified that she was very concerned and wanted to refuse his admission to the jail. Peterson
testified that she did not know if she had authority to refuse a scheduled intake. Peterson
contacted her shift supervisor, Deputy Jailer Coy, for instructions. Coy instructed her to contact
HCDC’s medical department because “it was medical’s call.” (Id. at 11.) HCDC’s Policy 4.1.2
provides that “[o]nly Medical has authority to refuse intakes for health reasons.” (DN 101-4.)
Acting at Coy’s direction, Peterson contacted the medical department. Defendant
Candace Moss, a SHP employee and an LPN, came to the booking area to examine Butler. Both
Moss and the president of SHP, Jennifer Hairsine, testified that an LPN could not diagnose
medical conditions nor administer medications without physician approval. Moss testified that at
the time she examined Butler she was aware that she was going to make a decision as to whether
to authorize or deny Butler’s admission to the facility. Peterson testified that she informed Moss
of Butler’s medical conditions and medications that he had indicated he was taking on admission
to the HCDC. According to Moss, Butler reported to her that he had frequent staph infections,
currently had a staph infection in his groin area, had been vomiting recently, had not seen a
doctor for the staph infection, and had a rash of unknown origins. Moss testified that she did not
conduct a physical exam of Butler, take his vital signs, or consult with HCDC’s medical director.
Moss directed the staff to admit Butler to HCDC to serve his sentence.
Based on the deputy jailers’ reports of suspected drug use and Butler’s report of a
possible staph infection, Moss placed Butler in a 72-hour detox as a precaution. SHP Policy

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requires that an Alcohol/Drug Withdrawal Flow Chart be prepared for all inmates placed on a
72-hour detox protocol. The chart requires that inmate’s vital signs are taken twice a day.
Because Moss was at the end of her shift, she did not prepare a chart. Moss testified that she
assumed that incoming SHP employee Andy Johnson would start the flow sheet. The record
reflects that an Alcohol and Drug Detox Flow Sheet was not prepared. Butler was housed in a
detox cell on HCDC’s “100 walk.”
B. Friday, April 9 and Saturday, April 10
Surveillance logs for the 100 walk reflect that HCDC staff monitored Butler at 20-minute
intervals throughout his time in that cell as required by HCDC policy and Kentucky
Administrative Regulations. According to the County Defendants, none of the deputy jailers
who monitored Butler during those two days or accompanied a SHP nurse on “med pass” noted
or were informed by Butler that he was suffering from any “acute distress,” instead they only
noticed that Butler’s rheumatoid arthritis made it difficult for Butler to move around. Butler’s
medical records reflect that his blood pressure was taken by SHP LPN Andy Johnson on April 9,
10, and 11. However, Johnson testified that he does not remember ever touching Butler. No
time is specified in the blood pressure record, and there is no other record of any of Butler’s
other vital signs being taken, or of his appearance, signs, or symptoms. Additionally, the
medication administration record (MAR) indicates that Butler was administered Allopurinol,
Prednisone, and Quetiapine on April 9, 10, and 11. However, in its written verified responses to
discovery, SHP stated that the medical records reflect that Butler received no medication. (DN
101-12.) Further, the record reflects that the medication in question was not prescribed or
authorized by Dr. Davis.
Brad Foster, a fellow inmate, testified that he saw Butler on Friday, August 9, when he

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was handing out dinner trays. Foster testified that he informed a deputy jailer that Butler could
not get his tray and the deputy opened the door to allow Foster to give the tray to Butler. Foster
testified that he notified the deputy that Butler needed a nurse or doctor because he could tell he
was in pain. Additionally, Foster testified that when he entered his room to give him his tray, he
could smell urine and feces.
Deputy Jennifer Chambers testified that on Saturday, August 10, she informed Deputy
Rodney Knox that Butler had requested a sick-call slip and Knox indicated that he would get
Butler one. Chambers indicated that although she wasn’t a medical professional, she believed
Butler had a need for outside medical care and was at an obvious risk of serious harm. She
testified that she would have sent Butler to the hospital, but that she did not have the authority to
do so. Chambers further testified that she had never seen anybody in the jail in Butler’s
condition. Chambers testified that during her shift, Knox indicated to her that Butler did not look
good, that Knox had called for medical but they hadn’t “came up there yet,” and that Knox
appeared frustrated and upset that medical had not come to see Butler. Prior to the end of her
shift, Deputy Knox communicated to Chambers that someone from medical came up to Butler’s
cell.
C. Sunday, April 11
On Sunday, April 11, Deputy Jailer Brandon Lampton started his shift at 6:00 a.m.
Among his regular duties, he was assigned the 100 walk observations. Lampton testified that
when he first saw Butler, he was sitting on the floor of the cell with his feet straight out in front
of him and his back against the wall directly in front of the cell door’s window. According to
Lampton, he wasn’t aware of the reason Butler was in the detox cell, but he assumed it was for
medical because it was obvious that he had some issues. Lampton testified that Butler had very

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limited mobility, his joints were swollen and red, and Lampton could “tell he was hurting.”
Lampton testified that he asked Butler if he was alright and Butler indicated he was fine.
Lampton further testified that he asked Butler what was wrong with him and Butler indicated he
had rheumatoid arthritis.
On Lampton’s third or fourth time through the walk, Butler asked him for a new uniform
because he had used the bathroom on himself. Butler informed Lampton that he couldn’t stand
up and that he had defecated on himself because he couldn’t get to the toilet. With the help of
Deputy Jailer Stephen O’Reilly, Lampton picked Butler up and helped him into the restraint
chair, which was used to transport Butler to the shower. Lampton testified that the officers
helped Butler remove his clothes and then sat him in a plastic chair in the shower to wash off.
Lampton stayed with him because he was concerned he might fall out of the chair. While in the
shower area, Butler requested to use the restroom. Lampton and another deputy helped him to
the toilet. Officers then helped Butler get dressed and transported him back to his cell. Lampton
testified that he never observed a nurse visit Butler in the shower area or at any time while Butler
was on the 100 walk. Similarly, Deputy Jailer Stephen O’Reilly does not remember a nurse
being there while they were helping Butler in the shower area.
Within 10 to 20 minutes after returning Butler to his cell, Lampton went to the medical
office and informed the nurse on duty what had happened, including that Butler had defecated on
himself. Lampton testified that the nurse indicated that she was aware of the situation. Lampton
does not recall who was working in the medical office, but it is undisputed that the only nurse at
HCDC that morning was Defendant, Renee Keller, LPN.
About an hour or so later, Butler defecated on himself again. Lampton believed that
Butler had diarrhea. Lampton testified that he asked if Butler wanted another shower, and Butler

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said no. Lampton provided Butler with another uniform and then Lampton went to the medical
office again. Lampton testified that he chose to return to the medical office to tell them his
opinion on how to make the situation a little better for Butler. “[I]t was obvious he couldn’t get
off the floor . . . . So I told them . . . [t]he 500 walk cell has got a bunk. They’re at least 18
inches or 20 inches off the ground and they’re about level with the toilet, you know, so I figured
it would be easier for him to be able to rotate himself over or get to a standing position from a
sitting up position . . . .” (Brandon Lampton Dep. at 44-45.) Lampton testified that the nurse
was aware that Butler had defecated on himself twice.

Medical approved the move, and

Lampton and another officer moved Butler to the 500 walk. Lampton had no other contact with
Butler.
Defendant LPN Renee Keller, the nurse on duty on April 11, testified that she was
informed by Lampton that Butler had used the restroom on himself because he had problems
getting up and down off the floor to get to the toilet. Keller testified that she observed Butler in
the shower room where he informed her that he did not need anything and that he was just
hurting in his arm and ankle from rheumatoid arthritis. According to Keller, he did not appear to
be in distress. Keller testified that she helped him put his shirt on at which time he did not
appear to be running a fever. Keller did not take his vital signs, including his rate of respiration,
temperature, or heart rate. Additionally, Keller indicated she wasn’t aware of SHP policy on the
whether to take vitals of an inmate in such a situation. She further testified that she approved
Butler’s move from detox to medical isolation where he would have available a bed.
After Butler was removed to the 500 walk, Defendant Deputy Jailer Jessica Bennett made
rounds in the 500 walk until 12:11 p.m., according to the observation logs. Bennett did not enter
any of the cells on her rounds and cannot recall having any conversation with Butler. Bennett

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testified that she did recall Butler being transported to the 500 walk in a restraint chair.
Similarly, Defendant Deputy Jailer Diana Potocnick saw Butler when he arrived in the
500 walk.

Potocnick testified that she believed that Defendant Deputy Jailer Eric Poe

transported him to the 500 walk. Potocnick stated that she asked Poe what the situation was and
Poe informed her that Butler was unable to get up off the floor in detox so they moved him to
segregation so it would be easier for him. Poe informed her that Butler had defecated on
himself. The observation log indicates that Potocnick checked Butler after his move to the 500
walk five times. She testified that she never opened Butler’s cell or communicated with him.
The observation log indicates that Defendant Deputy Jailer Eric Poe checked Butler once
at 12:22 p.m. Poe testified that he accompanied other deputies throughout the day to do checks.
Contrary to Potocnick’s statement, Poe doesn’t recall being one of the deputy jailers who took
Butler to his cell. Poe testified that during a security check an hour before Butler was found
unresponsive, Butler asked Poe for a glass of water. Poe did not enter Butler’s cell; instead he
told Butler no, that he had water in the cell, and walked away.
Defendant Deputy Jailer Teresa Kreitler’s initials appear in the observation log on 11
occasions prior to Butler’s death. Kreitler testified that within an hour of Butler being found
nonresponsive he had asked her for water. Kreitler stated that she could not hear what he was
saying so she opened the door. She testified that she told him to get the water out of the faucet,
but Butler informed her he couldn’t get up because of his rheumatoid arthritis and gout. Kreitler
stated that she told Butler she would check on getting him a cup of water.
D. Butler’s Death
On another round check, Kreitler passed Butler’s cell and noticed Butler was lying
awkward on his bed. She entered the cell, shook him, he made no response. She checked for a

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pulse, but felt none. When she touched him, he was cold. LPN Keller was notified at 4:19 p.m.
by the staff that Butler had been found non-responsive in his cell. Keller testified that when she
arrived at his cell, Butler was bluish and gray in color, he had no pulse, and was cold. No
attempt to revive him was made. The coroner arrived at 4:40 p.m. and pronounced Butler dead.
An autopsy was performed at the Western Kentucky Regional Medical Examiner’s
Office on April 12, 2010, by Dr. Deirdre Schuluckebier. Her final diagnoses provided that the
“[d]eath in this 25-year-old man, Tyler Butler, is attributed to findings consistent with sepsis.
Obesity with hypertension, rheumatoid arthritis and coronary atherosclerosis are considered
significant coexisting conditions.” (Schuluckebier Report at 1, DN 77-19.)
III. FEDERAL CLAIMS
As an initial matter, the SHP Defendants move for summary judgment in favor of
Defendant, Henry Davis, M.D., noting that the parties have stipulated to Dr. Davis’ dismissal on
August 30, 2013, but no final order was entered. The record reflects that Dr. Davis was
dismissed by Order of the Court on September 4, 2013. [DN 78]. Additionally, in response to
the motions for summary judgment by both the SHP Defendants and the County Defendants,
Plaintiff states that she has no objection to the dismissal of her claims against Defendants Betty
Dawes, Joe Blue, and Angela Peterson. Likewise, Plaintiff states that she has no objection to the
dismissal of her claims brought pursuant to the Tenth Amendment and Fourteenth Amendment.
Plaintiff’s federal claims for damages arise under 42 U.S.C. § 1983 which states in part
that
[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an
action at law. . . .

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42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must establish both that 1)he “was
deprived of a right secured by the Constitution or laws of the United States and 2) the
deprivation was caused by a person acting under color of state law.” Redding v. St. Eward, 241
F.3d 530, 532 (6th Cir. 2001) (citation omitted). Plaintiff contends that the Defendants violated
Butler’s Eighth Amendment rights.
The Eighth Amendment imposes a duty upon prison officials to provide humane
conditions of confinement. See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials
must “ensure that inmates receive adequate food, clothing, shelter, and medical care, and must
‘take reasonable measures to guarantee the safety of the inmates.’” Id. at 832–33 (citation
omitted) (emphasis added). “A prison official’s ‘deliberate indifference’ to a substantial risk of
serious harm to an inmate violates the Eighth Amendment.” Id. at 828.
To establish an Eighth Amendment violation premised on inadequate medical care, a
prisoner must demonstrate that the defendant acted, or failed to act, with “deliberate indifference
to serious medical needs.” Id. at 835 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976));
Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834 (6th Cir. 2002). To rise to the level
of an Eighth Amendment violation, a prison official must “know[] of and disregard[] an
excessive risk to inmate health or safety; the official must both be aware of the facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837–38. In other words, to establish that a prison official, in
his individual capacity, was deliberately indifferent to an inmate’s serious medical needs, the
plaintiff must establish two elements. See Comstock v. McCrary, 273 F.3d 693, 702–03 (6th Cir.
2001). The first element is an objective element, which requires a plaintiff to show that the
inmate’s medical needs were “sufficiently serious.” Id. (citing Farmer, 511 U.S. at 834). The

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second element is a subjective element, which is satisfied if “the official knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also draw
the inference.”

Farmer, 511 U.S. at 837.

“Complaints of malpractice or allegations of

negligence are insufficient to entitle a plaintiff to relief.” Lewis v. McClennan, 7 Fed. Appx.
373, 375 (6th Cir. 2001) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Furthermore, “[a]
prisoner’s difference of opinion regarding treatment does not rise to the level of an Eighth
Amendment violation, . . . and, where the prisoner has received some medical attention and now
disputes the adequacy of that treatment, the federal courts are reluctant to second-guess prison
officials’ medical judgments and to constitutionalize claims which sound in state tort law.” Id.
(citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)) (internal citation omitted).
However, “a prisoner who is needlessly allowed to suffer pain when relief is readily available
does have a cause of action against those whose deliberate indifference is the cause of his
suffering.” Westlake, 537 F.2d at 860.
Objective Component
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 County, 390 F.3d 890, 897 (6th Cir. 2004)).
Both rheumatoid arthritis and a MRSA infection unquestionably are serious medical
conditions. Gaines v. Armor Health Care, Inc., 2013 WL 6410311, *5 (E.D.N.Y. Dec. 9, 2013).
See also Nelson v. Putnam County Justice Center, 2013 WL 1623686, *3 (M.D. Tenn. April 15,

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2013); Gurule v. Hanlin, 2013 WL 5774131, *4 (D. Or. Oct. 21, 2013). Additionally, Butler had
a serious medical need obvious even to a layperson. The facts in the light most favorable to the
Plaintiff demonstrate that laypersons believed Butler needed medical attention. For example, on
April 9, 2010, Deputy Jailer Peterson did not want to admit Butler to the jail because of his
condition -- vomiting, sweating profusely, and having trouble walking, talking, and standing;
Brad Foster testified that when he observed Butler on April 10, 2010, Butler could not move,
could not reach the toilet or eat, was urinating and defecating on himself, and needed a doctor;
and Deputy Jailers Knox and Chambers testified that they believed Butler needed medical
attention and requested it. See also Taylor v. Franklin County, Ky., 104 Fed. Appx. 531, 538 (6th
Cir. 2004)(recognizing that signs of reoccurring incontinence and debilitating immobility were
clear symptoms of a serious problem); Phillips v. Roane County, Tenn., 534 F.3d 531, 540 (6th
Cir. 2008).

Based on this testimony, the Court finds these “facts show an obvious need for

medical care that laymen would readily discern as requiring prompt medical attention by
competent health care providers.” Blackmore, 390 F.3d at 898. Thus, Plaintiff has produced
sufficient evidence to demonstrate the objective element of her deliberate indifference claim
against the individual defendants.
Subjective Component
To fulfill the subjective component, an inmate must “’show that prison officials have a
sufficiently culpable state of mind in denying medical care.’” Ham v. Marshall County, Ky.,
2013 WL 6017441, *5 (W.D. Ky. Nov. 13, 2013)(quoting Blackmore, 390 F.3d at 895).
“Although deliberate indifference requires a mental state more culpable than mere negligence,
the official need not have acted with the purpose of causing harm or knowing that harm will
result.” Id. Rather, “the official must both be aware of facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of
such needs, is essential to a finding of deliberate indifference.” Id. at *5 (quoting Blackmore, 390
F.3d at 896 (internal citations and quotations omitted)). See also Smith v. County of Lenawee,
505 Fed. Appx. 526, 532 (6th Cir. 2012).
A. INDIVIDUAL LIABILITY
1. Claims of Deliberate Indifference against the SHP Nurses
At the outset, it is important to specify that the question is not whether Nurse Moss,
Nurse Keller, or Nurse Pleasant is liable for failing to recognize that Butler was septic or had
myocarditis. “[A] LPN is not authorized to make a diagnosis. However, a LPN, and especially a
LPN who is the sole gatekeeper for access to a physician, must be able to know when there is a
risk of a serious condition that requires additional care.” Rodrigue v. Morehouse Detention
Center, 2012 WL 4483438, *6 (W.D. La. Sept. 28, 2012).
a. LPN Candace Moss
A reasonable jury could find that Moss had direct, personal knowledge of Butler’s serious
medical need the afternoon of April 9 and disregarded the risk. The record reflects when Butler
presented at HCDC to serve his scheduled sentence, Butler was sweating profusely, vomiting,
and having difficulty standing. He reported that he suffered from gout, high blood pressure,
rheumatoid arthritis, osteoporosis, and MRSA; that he currently had a staph infection in his
groin; and that he had a rash of unknown origins.

In fact, based on Butler’s responses to the

questions and his physical appearance, Deputy Jailer Peterson testified that she was very
concerned and wanted to refuse his admission to the jail. However, as required by HCDC
Policy, Peterson contacted HCDC’s medical department because medical could only refuse an

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intake.
After being informed of Butler’s medical conditions and his current medication, Moss
interviewed Butler. Deputy Chambers testified that Moss also observed some open wounds on
Butler and witnessed him vomit. Despite the information discussed above, Moss failed to
conduct a physical exam of Butler, take his vital signs, or consult with HCDC’s medical director.
Instead, Moss directed the staff to admit Butler to HCDC to serve his sentence. Moss placed
Butler in a 72-hour detox as a precaution due to suspected drug use and Butler’s reports of
possible staph infection.
Significantly, SHP Policy J-G-06 provides that “[d]etoxification will be carried out only
under medical supervision and initiated by the medical staff with physician overview on an
individual care basis.” (SHP Policy, Intoxication and Withdrawal, J-G-06, DN 101-5.) SHP’s
President testified that it is a requirement of SHP that the nurse contact the medical director if an
inmate is going to be placed in detox and administered medicine. (Hairsine Dep. at 74.) In fact,
the policy provides that “[a]ll detainees found to be demonstrating the signs and symptoms of
drug/alcohol withdrawal will either be seen or reviewed by the Medical Director and his ordered
care treatment plan will be followed.” (SHP Policy, J-G-06, DN 101-5.) SHP Policy J-G-06 also
provides that “[d]etox inmates must be monitored on a consistent basis and all findings charted
in his/her medical record. Documentation of the patient’s status during detoxification is very
important and must be reviewed by all medical staff members when needed in order to maintain
patient care while incarcerated. Use the Alcohol and Drug Detox Flow Sheet.” (Id.) Thus, at a
minimum, SHP Policy requires that an Alcohol/Drug Withdrawal Flow Chart be prepared for all
inmates placed on a 72-hour detox protocol. The flow chart requires that inmate’s vital signs are
taken twice a day. While Moss placed Butler in detox, Moss failed to prepare the Alcohol and

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Drug Detox Flow Sheet. This failure is in direct violation of SHP’s policy. See also Harris v.
City of Circleville, 583 F.3d 356, 369 (considering a defendant’s failure to follow policy as
evidence that the subjective prong of a deliberate indifference claim had been satisfied).
Furthermore, even SHP’s regional administrator, Betty Dawes, testified that Moss should have at
the minimum prepared a drug and alcohol withdrawal flow sheet, document Butler’s vital signs,
his state of restlessness and confusion, including her reasons for placing him in detox. (Dawes
Dep. at 27.)
Additionally, SHP Policy also requires that “[a]ll inmates undergoing intake screening
and physical exams should be carefully evaluated for skin infections.” (SHP’s Policy, Practice
Guidelines for the Management, Identification, and Treatment of Staph Infections, Suspected
MRSA Infections, and MRSA Infections, DN 101-8.)

SHP policies further require an

examination of the skin infections, culturing of draining wounds, treatment while awaiting
culture results, and documentation of the examination using the SHP Wound Care Flow Sheet.
(Id.) It is undisputed that Moss did not conduct a physical exam of Butler, including an
examination of his groin area where the reported staph infection was located.
Plaintiff’s nursing expert, Madeleine LaMarre, opined that at the time of Butler’s arrival,
given his condition, Moss should have immediately performed an intake medical screening that
included vital signs and physical examination to assess the severity of his medical condition and
to make a determination whether Butler could safely be admitted to the jail or required
immediate referral to a physician or emergency department. (Madeleine LaMarre Report at 4-5,
DN 81-1.)

LaMarre further opined that “[b]y not performing an intake screen, ensuring

continuity of prescribed medication, assessing his systems related to a groin infection, or
performing nursing assessments of the patient who was presumed to be withdrawing from drugs

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or alcohol, LPN Moss . . . did not meet generally accepted standards of nursing practice and
[was] not in compliance with SHP policies and procedures regarding receiving screening,
practice guidelines for MRSA infection, and intoxication and withdrawal and special needs
treatment plan.” (Id. at 5.)
Further, LPN Keller testified that when an inmate reports he has MRSA, the medical staff must
report to all staff that the inmate has MRSA to protect themselves and other inmates. (Keller
Dep. at 36.)
Given Butler’s reported condition at intake and the fact that Moss interviewed him, there
are sufficient facts to demonstrate that Moss was aware of facts from which it could be inferred
that a substantial risk of serious harm existed, and that she did in fact draw that inference.
Additionally, based on her violation of SHP policies and the testimony of Dawes, Hairsine, and
Expert LaMarre, a reasonable jury could conclude that LPN Moss disregarded that risk by not
conducting an intake medical screening including a physical examination and vital signs, by
admitting Butler to the jail despite his medical symptoms, and by not preparing an Alcohol and
Drug Detox Flow Sheet. Therefore, Moss’s motion for summary judgment in her individual
capacity as to the deliberate indifference claim is denied.
b. LPN Renee Keller
Likewise, a reasonable jury could find that Keller had direct, personal knowledge of
Butler’s serious medical need the morning of April 11 and disregarded that risk. Keller testified
that when she began her 6:00 a.m. shift, she reviewed the inmates that were in detox and cleared
Butler from detox. Keller stated in her report that “[i]nmate to remain in medical isolation . . .
related to inmate . . . stating, staph on groin area. Inmate to remain in isolation until cleared by
medical.” (Keller Dep. at 42.) Thus, the record reflects that Keller was aware as early as 6:18

17

a.m. that Butler had stated at intake that he had a staph infection in his groin area. Deputy Jailer
Lampton testified that he informed Keller of Butler’s condition of incontinence with severely
limited mobility, but Keller did not do anything. Lampton testified while Keller approved of
Butler’s removal from the 100 walk at Lampton’s request, Keller did not visit Butler in the
shower room. Even if the Court accepts Keller’s claim that she visited Butler in the shower
room, the record reflects that despite her knowledge of his incontinence, hot and swollen joints,
extremely limited mobility, and possible staph infection in groin, Keller testified that when
called to the shower because Butler had defecated on himself, she did not examine the groin area,
ask any questions about it, ask whether he was having any other symptoms like diarrhea or
vomiting, did not take his vital signs, and did not contact the physician. (Keller Dep. at 43.)
SHP’s regional administrator Betty Dawes testified that if Keller was informed that
Butler had defecated on himself, SHP policies required Keller to at least go see him, take his
vitals, and document not only his vitals but her observation of his condition. (Betty Dawes Dep.
35-36.) Dawes also testified that SHP’s policies required Keller to telephone Dr. Davis when
she learned that Butler could not get off the floor. (Id. at 39-40.) See also Harris v. City of
Circleville, 583 F.3d 356, 369 (6th Cir. 2009) (considering a defendant’s failure to follow policy
as evidence that the subjective prong of a deliberate indifference claim had been satisfied).
“This is not a case where an inmate saw a physician and that physician made an
unfortunately incorrect medical decision.” Rodrigue, 2012 WL 4483438, *6. Instead, in the
present case, despite reports of multiple occasions of incontinence, hot and swollen joints, and
extremely limited mobility, and in violation of SHP policies, Keller conducted no physical exam,
did not record Butler’s vital signs, and did not contact the physician. Butler “was simply denied
access to a medical professional competent to diagnose and treat his condition.” Id. When a

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gatekeeper to emergency care knowingly disregards a prisoner’s symptoms, “she acts with
deliberate indifference to that prisoner’s medical needs.”

Id.

In response to his medical

symptoms, Keller did nothing for Butler other than approve his movement from a detox cell to a
medical cell where he would continue to be observed every 15 to 20 minutes by deputy jailers.
On these facts, a reasonable jury could find that Keller was aware of a serious risk to Butler’s
health and safety and disregarded that risk. See also Hamilton v. Pike County, Ky., 2013 WL
529936, *11 (E.D. Ky. 2013)(denying summary judgment where a fact-finder could find that the
doctor knew of a serious medical risk – the inmate’s inability to walk – and disregarded that risk
by prescribing a multivitamin).

Therefore, Keller’s motion for summary judgment in her

individual capacity as to the deliberate indifference claim is denied.
c. LPN Angela Pleasant
Plaintiff seeks to hold Angela Pleasant liable based on her supervisory position as SHP
Medical Team Administrator at the Jail. “[L]iability of supervisory personnel must be based on
more than merely the right to control employees.” Hays v. Jefferson County, Ky., 668 F.2d 869,
872 (6th Cir. 1982). “Because § 1983 liability cannot be imposed under a theory of respondeat
superior, proof of personal involvement is required for a supervisor to incur personal liability.”
Miller v. Calhoun County, 408 F.3d 803, 817 n.3 (6th Cir. 2005). To establish supervisory
liability in a § 1983 action, “[t]here must be a showing that the supervisor encouraged the
specific incident of misconduct or in some other way directly participated in it. At a minimum, a
§ 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved or
knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” Bellamy v.
Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (citing Hays, 668 F.2d at 872–74). It is undisputed
that

Pleasant had no interaction with Butler between April 8, 2010, and April 11, 2010.

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Additionally, Pleasant testified that she was out of town while Butler was incarcerated. As such,
Plaintiff has failed to allege any evidence that Pleasant authorized, approved, or knowingly
acquiesced in Moss and Keller’s treatment of Butler. Therefore, Pleasant’s motion for summary
judgment in her individual capacity as to the deliberate indifference claim is granted.
2. Claims of Deliberate Indifference against the Deputy Jailers
As discussed above, it is important to specify that the question is not whether the deputy
jailers knew that Butler suffered from sepsis or myocarditis. Instead, regardless of which
condition caused Butler’s death, a deputy jailer must be able to recognize when there is a risk of
a serious condition that requires additional care. See, e.g., Rodrigue, 2012 WL 4483438, *6.
a. Jeremy Witherspoon
On April 11, Deputy Jailer Jeremy Witherspoon was the shift supervisor at HCDC.
Witherspoon testified that his first contact with Butler occurred when one of the deputy jailers
contacted Witherspoon and informed him that Butler did not make it to the bathroom.
Witherspoon testified that he contacted LPN Keller and requested to move Butler to a different
cell to get him off of the floor. Witherspoon stated that Keller indicated that Butler had been
cleared from detox, and he could go to a segregation cell. (Jeremy Witherspoon Dep. at 19-20.)
Witherspoon further testified that Keller informed him that Butler had rheumatoid arthritis.
According to Witherspoon, he was aware that Butler was having difficulty walking, but had not
been told he had MRSA. After placing Butler in his cell, Witherspoon continued his duties as
shift supervisor and had no further contact with Butler until the red flag alarm had been called.
Plaintiff has failed to demonstrate that Witherspoon acted unreasonably under the
circumstances. Unlike the other deputy jailers discussed below, Witherspoon notified medical
regarding Butler’s condition. He informed medical that Butler had defecated on himself because

20

he was unable to get to the toilet. Upon speaking to LPN Keller, Witherspoon was informed that
Butler suffered from rheumatoid arthritis, he had been released from detox, and could be moved
to medical segregation which contained a bed at the same height as the toilet. Considering his
contact with medical, Plaintiff has failed to demonstrate that Witherspoon acted with deliberate
indifference to Butler’s medical needs. For these reasons, Witherspoon’s motion for summary
judgment on Plaintiff’s deliberate indifference claim is granted.
b. Jessica Bennett
According to the observation logs, Defendant Deputy Jailer Jessica Bennett made
multiple rounds in the 500 walk until 12:11 p.m. on Sunday, April 11. Bennett did not enter any
of the cells on her rounds and cannot recall having any conversation with Butler. Bennett
testified that she did recall Butler brought to the 500 walk in a restraint chair, assumed he was
there for medical reasons, and assumed he was having problems walking.
The facts in light most favorable to Plaintiff demonstrates that Brad Foster, Chambers,
and Knox testified that Butler did not look good and that Butler needed medical care; that
Butler’s condition did not improve from Saturday, but in fact worsened throughout the day on
Sunday; that Bennett was aware that Butler was in the 500 walk for a medical reason and that
Butler had trouble walking. Nevertheless, Bennett did not enter Butler’s cell and did not even
attempt to engage Butler in conversation. On these facts, a reasonable jury could find that
Bennett was aware of a serious risk to Butler’s health and safety and disregarded that risk by
failing to do more than passively look into Butler’s cell and check that she had made her rounds.
Thus, Bennett’s motion for summary judgment in her individual capacity as to the deliberate
indifference claim is denied.

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c. Diana Potocnick
Defendant Deputy Jailer Diana Potocnick saw Butler when he arrived in the 500 Walk on
Sunday, April 11. Potocnick stated that she asked Deputy Jailer Poe about Butler and was
informed that Butler was unable to get up off the floor in detox so they moved him to segregation
so it would be easier for him. Poe informed her that Butler had defecated on himself. Potocnick
testified that she assumed Butler was having trouble walking. The observation log reflects that
Potocnick checked Butler after his move to the 500 walk five times at 1110, 1126, 1154, 1255,
and 1436. She testified that her conversation with Poe occurred prior to her observation rounds.
Further, she testified that with any security check at the jail she does, as long as the inmate is
breathing or moving, there is no cause for concern. According to Potocnick, she never opened
Butler’s cell or communicated with him. She testified that she did not talk to anyone at medical
about Butler because she “figured it was being handled.” (Diana Potocnick Dep. at 17.)
Where officers are aware that an inmate is exhibiting severe symptoms, there exists a “a
triable issue of fact about whether the guards should have contacted medical personnel in
response to this problem or at least should have tried to engage [the inmate] verbally or entered
his cell.”

Finn v. Warren County, Ky., 2012 WL 3066586, *10 (W.D. Ky. July 27,

2012)(citation omitted). In the instant case, the record reflects that Potocnick knew Butler was
having trouble walking and that he was incontinent. Additionally, Foster, Chambers, and Knox
testified regarding Butler’s condition on Saturday. The evidence in the light most favorable to
Plaintiff demonstrates that Butler’s condition did not improve, but in fact worsened throughout
the day on Sunday. Nevertheless, Potocnick did not enter Butler’s cell and did not even attempt
to engage Butler in conversation. Considering Potocnick’s testimony regarding her perceived
role in observing inmates on medical segregation, coupled with the facts above, a reasonable jury

22

could find that Potocnick was aware of a serious risk to Butler’s health and safety and
disregarded that risk by failing to do more than passively look into Butler’s cell and check that
she had made her rounds. Thus, Potocnick’s motion for summary judgment in her individual
capacity as to the deliberate indifference claim is denied.
d. Eric Poe
Deputy Jailer Potocnick testified that Deputy Jailer Poe was one of the deputy jailers who
transported Butler to the 500 walk on April 11. She testified that Poe informed her of the reason
for Butler’s placement in the 500 walk -- Butler was unable to get off the floor and Butler had
defecated on himself. In contrast to Potocnick’s statement, Poe doesn’t recall being one of the
deputy jailers who took Butler to his cell. Additionally, Poe testified that he was only aware that
Butler was in the 500 walk for medical reasons, but had no knowledge of the nature of his
medical problems. The observation log indicates that Poe checked Butler once at 12:22 p.m.
Poe testified that he accompanied other deputies throughout the day to do checks. Further, Poe
testified that during a security check an hour before Butler was found, Butler asked Poe for a
glass of water. Poe did not enter Butler’s cell; instead, he told Butler no, that he had water in the
cell, and walked away. Poe testified that he did not try to determine why Butler was asking for a
glass of water, instead of just getting up and getting it for himself.
Where officers are aware that an inmate is exhibiting severe symptoms, there exists a “a
triable issue of fact about whether the guards should have contacted medical personnel in
response to this problem or at least should have tried to engage [the inmate] verbally or entered
his cell.” Finn, 2012 WL 3066586, *10 (citation omitted). In the instant case, the evidence in
the light most favorable to Plaintiff demonstrates that Foster, Chambers, and Knox testified
regarding Butler’s medical condition on Saturday, that Butler’s condition did not improve from

23

Saturday, but in fact worsened throughout the day on Sunday, and Poe knew Butler was having
trouble walking and that he was incontinent. Nevertheless, like Potocnick, Poe did not enter
Butler’s cell and did not even attempt to engage Butler in conversation. Furthermore, when
Butler requested water from Poe an hour before his death, Poe summarily denied the request
without entering the cell and without engaging him in further conversation, despite being aware
that Butler was in medical segregation and despite his alleged knowledge of Butler’s inability to
walk. Deputy Jailer Potocnick even testified that if she had been the deputy jailer whom Butler
informed he needed water because he could not get up to get it, she would have notified medical
because he might be at obvious risk of serious harm. (Potocnick Dep. at 35-36.)
On these facts, a reasonable jury could find that Poe was aware of a serious risk to
Butler’s health and safety and disregarded that risk by failing to do more than passively look into
Butler’s cell and check that he had made his rounds. Thus, Poe’s motion for summary judgment
in his individual capacity as to the deliberate indifference claim is denied.
e. Teresa Kreitler
Defendant Deputy Jailer Teresa Kreitler’s initials appear in the observation log on 11
occasions prior to Butler’s death. Kreitler testified that within an hour of Butler being found
nonresponsive he had asked her for water. Kreitler stated that she could not hear what he was
saying so she opened the door. She testified that she told him to get the water out of the faucet,
but Butler told her he couldn’t get up because of his rheumatoid arthritis and gout. Kreitler
stated that she told Butler she would check on getting him a cup of water.

Deputy Jailer

Potocnick testified that at some point after the lawsuit was filed, Kreitler stated that when Butler
had requested water from her, he had informed her that he couldn’t walk. (Potocnick Dep. at 2931.)

24

In the instant case, the evidence in the light most favorable to Plaintiff demonstrates that
Foster, Chambers, and Knox testified regarding Butler’s condition on Saturday; that Butler’s
condition did not improve from Saturday, but in fact worsened throughout the day on Sunday,
and Kreitler knew Butler was unable to walk and could not reach his water. Nevertheless,
despite being aware that Butler was in medical segregation, Kreitler did not report the situation
to medical and not return to Butler’s cell with water. As discussed above, Potocnick testified
that if she had been the deputy jailer whom Butler informed he needed water because he could
not get up to get it, she would have notified medical because he might be at obvious risk of
serious harm. (Potocnick Dep. at 35-36.)

LPN Keller testified that she relied on the deputy

jailers to let her know if there is something that appears to be a significant medical problem with
an inmate. (Keller Dep. at 29.) Further, Keller stated that if a jailer had been told by Butler that
he could not get from his bed to the faucet in his cell to get a drink of water, the jailer should
have immediately informed medical. (Id.)
On these facts, a reasonable jury could find that Kreitler was aware of a serious risk to
Butler’s health and safety and disregarded that risk by failing to do more than passively look into
Butler’s cell during the majority of cell checks, to contact medical upon learning he was unable
to walk, or to return to his cell. Thus, Kreitler’s motion for summary judgment in her individual
capacity as to the deliberate indifference claim is denied.
B. MUNICPAL LIABILITY
Plaintiff asserts that Hopkins County is responsible for the deliberate indifference of the
SHP employees and the deputy jailers; for the custom and practice of completely deferring to the
medical decisions of SHP; and for failure to train SHP nurses and the deputy jailers.

25

1. Official Capacity Claims
Plaintiff has sued the Defendants in their official capacity. A suit against a governmental
officer in his official capacity is the same as a suit against the entity of which the officer is an
agent. Kentucky v. Graham, 473 U.S. 159, 166 (1985). Therefore, the official capacity claim
against the Defendants is actually a claim against the municipality, Hopkins County. Stemler v.
City of Florence, 126 F.3d 856, 864 n. 8 (6th Cir. 1997); Rothhaupt v. Maiden, 144 Fed. Appx.
465 (6th Cir. July 20, 2005). A municipality is a “person” liable to suit under § 1983. Monell v.
Department of Social Services, 436 U.S. 658, 690 (1978).
2. Liability for Deliberate Indifference of SHP and HCDC Employees
Plaintiff argues that Hopkins County has the primary and absolute responsibility for
ensuring that inmates of HCDC receive the medical care required by Kentucky’s statutes and
regulations and HCDC’s own policies, and are primarily liable if they fail to do so. Plaintiff
contends that Hopkins County is liable for SHP employees’ failure to follow SHP’s own policies
and procedure and for any actions or omissions of SHP employees and HCDC deputy jailers.
The Sixth Circuit has made clear that “[a] local government ‘cannot be held liable solely
because it employs a tortfeasor—or, in other words, a municipality cannot be held liable under §
1983 on a respondeat superior theory.’” Johnson v. Hardin County, Ky., 908 F.2d 1280, 1285
(6th Cir. 1990) (quoting Monell, 436 U.S. at 691). To the extent that Plaintiff believes Hopkins
County is liable simply because HCDC employed SHP, SHP employees, and/or the deputy
jailers, and those employees may have been deliberately indifferent, Plaintiff is clearly mistaken.
Hopkins County cannot be held liable for the actions or omissions of SHP staff or HCDC
employees on a respondeat superior theory.

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3. Delegation of Decision-Making Authority
Second, Plaintiff argues that Hopkins County is liable for the deliberate indifference of
SHP and its employees because Hopkins County delegated final decision-making authority to
SHP employees regarding medical decisions. See, e.g., HCDC Policy 4.1.2 (“[o]nly medical has
authority to refuse intakes for health reasons.”) In support of this argument, Plaintiff cites
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) and City of St. Louis v. Praprotnik, 485
U.S. 112 (1988). The Court finds this argument unpersuasive as well.
First, “[t]he power of an official to make final decisions regarding questions involving a
particular subject matter, in and of itself, is not necessarily enough to establish a local
government’s liability.” Johnson, 908 F.2d at 1286. In Johnson, the plaintiff attempted to
establish municipal liability by arguing that the jailer had been delegated final decision making
authority over medical decisions, and thus his decisions reflected the official policy of the
municipality. Id. at 1285–86. The Sixth Circuit held that “in order for [the plaintiff] to prevail
under this theory, he must have produced evidence from which a jury could reasonably conclude
that [the defendant] was vested with final authority to set medical treatment policy for the
county’s prisoners.” Id. at 1286. The Sixth Circuit found that “[a]lthough it is clear that [the
defendant] applied policy by making decisions regarding [the plaintiff’s] treatment, [the plaintiff]
introduced no evidence that indicates [the defendant] is vested with authority to make all of the
county’s medical policy decisions.” Id. at 1287 (emphasis in original).
Thus, to prevail on this theory, Plaintiff in the instant case must produce evidence that
SHP and its employees were “vested with authority to make all of the county’s medical policy
decisions.” Id. Similar to the facts in Johnson, Plaintiff has produced evidence that SHP and its
employees were the final decision-makers on medical treatment for the inmates at the HCDC.

27

However, Plaintiff has failed to produce evidence that SHP was vested with authority to make all
of the county’s medical policy decisions. Accordingly, Hopkins County cannot be held liable for
the decisions of the SHP Defendants because those decisions do not reflect the official policy of
Hopkins County.
Second, the Sixth Circuit rejected a similar argument in Graham v. County of
Washtenaw, 358 F.3d 377 (6th Cir. 2004). In Graham, the Sixth Circuit held that “it is not
unconstitutional for municipalities to hire independent medical professionals to provide on-site
health care to prisoners in their jails.” Id. at 384. In Graham, as in the present case, the Plaintiff
alleged that the county defendant was liable for having a policy of deferring to the medical
decisions of the private healthcare company. The Sixth Circuit “held that even if Washtenaw’s
policy was to defer absolutely to SecureCare employees’ decisions, and even if that permitted
nurses to make medical decisions that Michigan law did not permit them to make, ‘those alleged
defects are insufficient to hold the County liable for the alleged constitutional violation in this
case.’” Fisher v. County of Macomb, 2011 WL 2414413, *9 (E.D. Mich. June 14, 2011.) In fact,
the Sixth Circuit praised the county’s policy of outsourcing the medical treatment of prisoners,
finding that “most would find such a policy laudable in many respects. Not only does such a
policy—like the one at issue in this case—allow prisoners to receive prompt health care from onsite doctors or nurses, it also ensures that an independent party, rather than a corrections officer,
makes the critical decisions about whether and at what point a prisoner’s medical needs are
sufficiently severe that ambulatory care or hospitalization is warranted.” Graham, 358 F.3d at
384.
Thus, as in Graham and Fisher, the Court finds that Hopkins County cannot be held liable
for Hopkins County’s policy of deferring to the medical decisions of a private healthcare

28

company.
4. Failure to Train Deputy Jailers
Plaintiff alleges that Hopkins County should be held liable for its failure to train the
deputy jailers to ensure that legally mandated health care is provided.

Plaintiff’s specific

complaint against Defendant Hopkins County is that nowhere in the policies are the deputy
jailers provided any guidance as to what constitutes a “medical emergency or what to do in its
event.” (Plaintiff’s Response to County Defendants’ Motion for Summary Judgment, 23.) To
succeed on a claim of failure to train, Plaintiff must establish (1) the Hopkins County training
program was inadequate for the tasks the officers were required to perform; (2) the inadequacy
was the result of Hopkins County’s deliberate indifference; and (3) the inadequacy was closely
related to or actually caused the injury. Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th
Cir. 1992).
The Court finds that Plaintiff has produced sufficient evidence for a reasonable jury to
find that the deputy jailers received inadequate training regarding how to observe and assess
inmates medical needs and respond to these needs, how to determine what medical symptoms
and needs should be reported to medical, and the deputy jailer’s role in observing inmates that
are located both in the 26-bed medical segregation unit and the detox unit. A review of HCDC
Policies provided to the Court reflect that HCDC does not have jail policies providing any
guidance to deputy jailers as to what constitutes a medical emergency, what constitutes a medical
symptom or condition that should be reported to medical, and what to do in the event that the
medical staff does not respond. The deputy jailers testified that they had received only training
in CPR and first aid. The deputy jailers further testified that when they conduct the required
observation of inmates in the medical segregation unit, the deputy jailers merely check the

29

inmates to make sure they are breathing, moving, or not bleeding. (See, e.g., Dep. of Potocnick
at 21.) In fact, often times the deputy jailers are not even aware of why the inmate is in medical
segregation.
The County Defendants contend that HCDC’s medical policy has been found to comply
with all regulations of the Kentucky Department of Corrections. County Defendants also argue
that the Department of Corrections signed off on the HCDC policy manual and dictated the
training each deputy jailer was required to attend. (Plaintiff’s Reply at 10.) That the deputy
jailers received the bare minimum training required by the state does not mean that they received
adequate training in this particular area of jail administration. If proof of completion of state
required minimum training was sufficient to defeat a failure to train claim, such claims would
virtually cease to exist. Under these circumstances, the Court finds that proof of the successful
completion of state mandated training alone is insufficient to demonstrate adequate training
regarding medical needs in the prison setting. See Thomas City of Shaker Heights, 2006 WL
160303, *7 (N.D. Ohio Jan. 20, 2006)(rejecting similar argument that officers training was
adequate because it was based on template provided by the state). Considering that SHP nurses
rely upon the deputy jailers to report medical needs or emergencies (Keller Dep. at 29), but that
the deputy jailers receive no training regarding when to notify medical, a reasonable jury could
conclude that the training in this area was inadequate to the tasks that the deputy jailers were
required to perform.
Plaintiff has also produced sufficient evidence to satisfy the deliberate indifference prong.
There are two situations that justify a conclusion that a municipality’s failure to train was
deliberately indifferent. “One is failure to provide adequate training in light of foreseeable
consequences that could result from the lack of instruction.” Brown v. Shaner, 172 F.3d 927,

30

931 (6th Cir. 1999). The other “is where the [municipality] fails to act in response to repeated
complaints of constitutional violations by its officers.” Id. Plaintiff has produced no evidence of
repeated complaints regarding deputy jailers monitoring inmates in detox or medical segregation
at HCDC, therefore the failure to train claim must proceed under the first scenario.
The Supreme Court has held that “evidence of a single violation of federal rights,
accompanied by a showing that a municipality has failed to train its employees to handle
recurring situations presenting an obvious potential for such a violation, could trigger municipal
liability.”

Board of County Comm’rs v. Brown, 520 U.S. 397, 409 (1997). One example of

such a circumstance is a city’s failure to train its police officers in the use of deadly force,
because city officials know that their officers will need to use such force when attempting to
arrest fleeing felons. See City of Canton, Ohio v. Harris, 489 U.S. 378, 390 n.10 (1989). In a
jail setting, the failure of a medical care provider “to train medical personnel how to deal with
medical emergencies relating to diabetes could foreseeably lead to terrible consequences,
including death[,]” and thus satisfied this deliberate indifference standard. Lawson v. Whitley
County, 2012 WL 300617, *4 (E.D. Ky. Jan. 31, 2012).
In the instant case, the Court finds that Plaintiff has produced “evidence of a single
violation of federal rights, accompanied by a showing that a municipality has failed to train its
employees to handle recurring situations presenting an obvious potential for such a violation.”
Brown, 520 U.S. 397, 409 (1997). The record reflects that other than CPR and first-aid training,
“the County does not train officers to look for or be aware of symptoms of physical illness, how
to recognize and respond to medical needs, how to document requests from inmates for medical
care, or how to pass on medical concerns to jail nursing staff.” See Morris v. Dallas County,
2013 WL 3014673, *20 (N.D. Tex. June 18, 2013). The jail’s personnel and procedures are

31

structured so that the deputy jailers provide the link between inmates and medical. Id. In fact,
the nurses testified that they must rely on the deputy jailers to notify medical of any significant
medical problems with an inmate. (Keller Dep. at 29.) Despite this, the deputy jailers who work
both the 100 walk and the 500 walk are not provided any training on how to monitor, observe,
and determine potential medical needs of the inmates and how to respond to those needs. Thus,
Plaintiff has produced sufficient evidence to satisfy the deliberate indifference prong.
The Court further finds that Plaintiff has produced sufficient evidence that the inadequacy
of the training was related to or actually caused the injury to Butler. Because the deputy jailers
“are the only persons in somewhat regular and direct contact with the inmates,” and because
HCDC provides no training to the deputy jailers in relation to the tasks they must perform,
Plaintiff has raised a fact question whether Butler’s injury “was a predictable consequence of the
absence of training.” Morris, 2013 WL 3014673, *20 (citing City of Canton, 489 U.S. at 390–91;
Goodman v. Harris County, 571 F.3d 388, 395 (June 9, 2009); Sanders–Burns v. City of Plano,
594 F.3d 366, 381 (5th Cir. 2010). Accordingly, the Court must deny the Hopkins County's
request for summary judgment on this claim.
C. SHP LIABILITY
The Sixth Circuit has held that in the § 1983 context a private corporation can be liable
under theories similar to municipal liability. Street v. Corrections Corp. of America,102 F.3d
810, 818 (6th Cir. 1996). However, the same limitations apply to a § 1983 suit against a private
corporation as one against a municipality, namely that there is no respondeat superior or
vicarious liability. See id.
First, Plaintiff appears to assert a supervisory claim against Defendant SHP based on the
theory discussed in Taylor v. Michigan Department of Corrections, 69 F.3d 76, 81 (6th Cir.

32

1995). Plaintiff contends that as in Taylor, SHP had the responsibility to enforce, through
appropriate training and supervision, policies and procedures that were intended precisely to
protect someone in Butler’s condition, which it failed to do. The Court finds that Plaintiff has
failed to produce evidence that SHP abandoned the specific duties of its position, providing
adequate medical care to the detainees at the HCDC, in the face of actual knowledge that there
was a breakdown in such care. See, e.g., Samples v. Logan County, Ohio, 2006 WL 39265, *7–
8 (S.D. Ohio Jan. 6, 2006). Plaintiff has not directed the Court to any evidence of record that
demonstrates that SHP had actual knowledge that there was a breakdown in the medical care of
the inmates at HCDC as a result its employees’ failure to follow policies or procedures.
Second, Plaintiff contends that Defendant SHP is liable for its failure to train the LPNs at
the HCDC. Plaintiff argues that the nurses at the HCDC receive shadow training rather than
specific orientation; Nurses Moss, Johnson, and Keller had not reviewed the HCDC policies and
procedures; and Nurses Moss, Johnson, and Keller violated various SHP policies. To succeed on
a claim of failure to train, Plaintiff must establish (1) the SHP training program was inadequate
for the tasks the nurses were required to perform; (2) the inadequacy was the result of SHP’s
deliberate indifference; and (3) the inadequacy was closely related to or actually caused the
injury. Russo, 953 F.2d at 1046.
While there is evidence that Nurses Moss and Keller did indeed violate at least some of
the applicable SHP policies, Plaintiff has failed to present evidence that these violations were
due to inadequate training of the nurses at HCDC. The record reflects that SHP nurses are
required to read its policies and procedures and to sign a document attesting that they have.
(Hairsine Dep. at 65.) SHP has written policies regarding intoxication and withdrawal, special
needs treatment plans, and practice guidelines for the management, identification, and treatment

33

of staph infections, suspected MRSA, and MRSA. In fact, much of Plaintiff’s allegations
regarding the nursing staff involve their failure to follow SHP’s applicable policies and
procedures. Furthermore, Plaintiff has not alleged any past instances of unconstitutional conduct
by SHP employees at the HCDC. Plaintiff has not set forth any facts that there are prior
instances of similar misconduct as to demonstrate that SHPS was on notice that its training and
supervision with respect to medical care was deficient. See Burgess v. Fischer, 735 F.3d 462,
478 (6th Cir. 2013). As a result, the Court finds that Plaintiff has failed to produce evidence that
SHP “has failed to train its employees to handle recurring situations presenting an obvious
potential for such a [constitutional] violation.” Brown, 520 U.S. at 409.
Even if the Court were to assume that the LPNs’ policy violations alone were sufficient
to demonstrate inadequate training, Plaintiff has also failed to present evidence that this lack of
training was due to SHP’s deliberate indifference. Accordingly, summary judgment in favor of
Defendant SHP regarding Plaintiff’s failure to train claim is granted.
II. STATE LAW CLAIMS
Plaintiff concedes that the Hopkins County is entitled to sovereign immunity on all the
state law claims.
A. Outrage
Plaintiff has alleged that each Defendant is liable for the common law tort of outrage. In
Kentucky, this tort is also known as intentional infliction of emotional distress (“IIED”). See
Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 788 (Ky. 2004). Kentucky considers the tort
of outrage to be a “gap-filler.” Rigazio v. Archdiocese of Louisville, 853 S.W.2d 295, 298-99
(Ky. Ct. App. 1993). Thus, a claim of outrage is not a valid cause of action in Kentucky where
the alleged conduct makes out a claim for another tort for which emotional distress damages are

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available. Id. The result is the general rule that an IIED or outrage claim cannot be pled by itself,
in tandem with another tort, or in the alternative as long as some other tort with adequate relief
fits the facts. See Carter v. Porter, 617 F. Supp. 2d 514 (E.D. Ky. 2008) (dismissing IIED claim
on 12(b)(6) motion because malicious prosecution claim would potentially allow damages for
emotional distress); Martin v. Crall, 2007 WL 2083682, *4–5 (W.D. Ky. July 18, 2007)
(dismissing IIED claim on summary judgment where plaintiff had alleged a § 1983 claim for
deliberate indifference to a serious medical need which allowed damages for emotion distress);
see also Taylor v. University Med. Ctr., Inc., 2005 WL 1026190, *3 (W.D. Ky. April 26, 2005)
(dismissing IIED as a gap-filler tort while simultaneously granting summary judgment on all
other tort claims). The sole exception to this general rule is where the alleged “actions or contact
is intended only to cause extreme emotional distress in the victim.” Brewer v. Hillard, 15
S.W.3d 1, 8 (Ky. Ct. App. 1999).
In the instant case, Plaintiff has alleged claims of deliberate indifference to a serious
medical need as well as negligence and gross negligence. Because emotional distress damages
are available for each of those claims, Plaintiff’s outrage claim is inappropriate unless Plaintiffs
can produce evidence that the Defendants took the above actions “only to cause [Butler] extreme
emotional distress[.]” Banks . Fritsch, 39 S.W.3d 474, 481 (Ky. Ct. App. March 2, 2001).
Plaintiff has produced no such evidence.

Accordingly, summary judgment in favor of all

Defendants as to Plaintiffs’ claim of outrage is granted.
B. Negligence and Gross Negligence
Public officers and employees enjoy qualified official immunity when they negligently
perform “(1) discretionary acts or functions, i.e., those involving the exercise of discretion and
judgment, or personal deliberation, decision, and judgment; (2) in good faith; and (3) within the

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scope of the employee’s authority.” Miller v. Schrand, 2013 WL 558721, *3 (Ky. Ct. App. Feb.
15, 2013)(quoting Yanero v. Davis, 65 S.W.3d 510, 522 (Ky. 2001)). Therefore, “qualified
immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Id.
(quoting Rowan v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) (quoting Anderson v. Creighton, 483
U.S. 635, 638 (1987)).
“Discretionary acts are, generally speaking, ‘those involving the exercise of discretion
and judgment, or personal deliberation, decision, and judgment.’” Haney v. Monsky, 311 S.W.3d
235, 240 (Ky. 2010) (quoting Yanero, 65 S.W.3d at 522). “Discretion in the manner of the
performance of an act arises when the act may be performed in one or 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 County., 330 S.W.2d 428,
430 (Ky. 1959). In contrast, “ministerial acts or functions—for which there are no immunity—
are those that require ‘only obedience to the orders of others, or when the officer’s duty is
absolute, certain, and imperative, involving merely execution of a specific act arising from fixed
and designated facts.’” Haney, 311 S.W.3d at 240 (quoting Yanero, 65 S.W.3d at 522).
“Once the officer or employee has shown prima facie that the act was performed within
the scope of his/her discretionary authority, the burden shifts to the plaintiff to establish by direct
or circumstantial evidence that the discretionary act was not performed in good faith.” Yanero,
65 S.W.3d at 523. Thus, under Kentucky law, “even if an act is discretionary, there is no
immunity if it violates constitutional, statutory, or other clearly established rights, or if it is done
willfully or maliciously with intent to harm, or if it is committed with a corrupt motive or in bad
faith.” Autry v. Western Kentucky University, 219 S.W.3d 713, 717 (Ky. 2007) (emphasis
added). See also Bryant v. Pulaski County Detention Center, 330 S.W.3d 461, 466 (Ky. 2011).

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This has come to be known simply as “bad faith.” According to the Kentucky Supreme Court in
Rowan County v. Sloas, “[a]s is most often the case, the establishment of ‘bad faith’ occurs upon
proof of a violation of a ‘clearly established right’ of the plaintiff, which ‘a person in the public
employee’s position presumptively would have known was afforded to a person in the
[plaintiff’s] position, i.e., objective unreasonableness[.]’” Sloas, 201 S.W.3d at 481 (quoting
Yanero, 65 S.W.3d at 523). See also Miller, 2013 WL 558721, *3.
1. SHP Defendants
Traditionally, under Kentucky law, providing medical care has been deemed a ministerial
duty. “The administration of medical care is a ministerial function by employees, including
doctors. Compliance with the applicable standard of care does not involve a discretionary
governmental function.” Gould v. O’Bannon, 770 S.W.2d 220, 221-222 (Ky. 1989). See also
Blue v. Pursell, 793 S.W.2d 823, 825 (Ky. Ct. App. 1989) (“[T]he administration of medical care
is a ministerial rather than a discretionary function by employees, including physicians.”)
Notwithstanding, even if the nurses were engaged in discretionary duties, Moss and Keller are
not entitled to qualified official immunity because, as discussed above, a reasonable jury could
conclude that they acted in bad faith by demonstrating deliberate indifference to Butler’s medical
needs. Therefore, Moss and Keller’s motion for summary judgment on the negligence and gross
negligence claim is denied.
With respect to Pleasant, Plaintiff has failed to demonstrate any bad faith through the
deliberate indifference to Butler’s medical needs on the part of Pleasant. As discussed above,
Pleasant had no interaction with Butler between April 8, 2010, and April 11, 2010. In fact, she
was out of town while Butler was incarcerated. Therefore, LPN Pleasant’s motion for summary
judgment on the negligence and gross negligence claim is granted.

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Defendant SHP also requests qualified official immunity for its actions in developing and
pursuing a course of action for treating the health issues of inmates at the HCDC. In Autry, the
Kentucky Supreme Court held that a private corporation could avail itself of the defense of
qualified official immunity. See Autry, 219 S.W.3d at 719. Furthermore, the development and
implementation of policies is an inherently discretionary action. See Williams v. Ky. Dept. of
Educ., 113 S.W.3d 145, 150 (Ky. 2003) (finding the “promulgation of rules is a discretionary
function”). Thus, the Court sees no reason why SHP’s discretionary promulgation of policies
does not entitle it to qualified official immunity in this case. Furthermore, for the reasons
discussed above, the Court finds that Plaintiff failed to put forth sufficient evidence to
demonstrate bad faith on the part of SHP. Accordingly, summary judgment in favor of SHP on
Plaintiff’s negligence and gross negligence claims is granted.
2. County Defendants
With respect to the County Defendants, even if the Court determines that the deputy
jailer’s actions were deemed discretionary, in its discussion of Plaintiff’s § 1983 claim, the Court
found that the facts in the light most favorable to Plaintiff demonstrated that a reasonable jury
could believe that Defendants Bennett, Potocnick, Poe, and Kreitler were deliberately indifferent
to Butler’s serious medical needs in violation of his constitutional rights. As bad faith requires
proof of a violation of a constitutional right that was clearly established at the time, the facts in
the light most favorable to Plaintiff demonstrates bad faith on the part of Defendants Bennett,
Potocnick, Poe, and Kreitler that negates qualified official immunity for any of their
discretionary actions. In contrast, as discussed above, Plaintiff has failed to demonstrate any bad
faith through the deliberate indifference to Butler’s medical needs on the part of Witherspoon.
Accordingly, the motion for summary judgment on the negligence and gross negligence claims

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by Bennett, Potocnick, Poe, and Kreitler is denied. The motion is granted with respect to
Witherspoon.
V. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED as follows:
1.

The motion by Defendants, Southern Health Partners, Inc., Henry Davis, M.D.,

Candace Moss, Renee Keller, Betty Dawes, and Angela Pleasant (“SHP Defendants”), for
summary judgment [DN 76] is GRANTED IN PART AND DENIED IN PART. Henry Davis
was dismissed by a previous order of the Court. All Tenth Amendment, Fourteenth Amendment,
and outrage claims against all Defendants are dismissed.

All claims against Defendants,

Southern Health Partners, Betty Dawes, and Angela Pleasant, are dismissed. Summary judgment
is denied with respect to Plaintiff’s Eighth Amendment deliberate indifference claim, negligence
claim, and gross negligence claim against Candace Moss and Renee Keller.
2. The motion by Defendants, Hopkins County, Joe Blue, Jeremy Witherspoon, Teressa
Kreitler, Angela Peterson, Eric Poe, Diana Potocnick, and Jessica Bennett (“County
Defendants”), in their individual and official capacities, for summary judgment [DN 77] is
GRANTED IN PART AND DENIED IN PART. All Tenth Amendment, Fourteenth
Amendment, and outrage claims against all Defendants are dismissed. All claims against the
Defendants in their official capacities are dismissed. All claims against Defendants, Joe Blue,
Jeremy Witherspoon, and Angela Peterson, are dismissed. All state law claims against Hopkins
County are dismissed. Summary judgment is denied with respect to Plaintiff’s Eighth
Amendment deliberate indifference claim, negligence claim, and gross negligence claim against
Teressa Kreitler, Eric Poe, Diana Potocnick, and Jessica Bennett, in their individual capacity.
Likewise, summary judgment is denied with respect to Plaintiff’s Eighth Amendment failure to

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train claim against Hopkins County.
3. The motion by Plaintiff, Cindy Jimenez, Administratrix of the Estate of Tyler Butler,
for a hearing on the motions for summary judgment [DN 106] is DENIED.

cc: counsel of record
January 13, 2014

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