Zain v. Advance Health Care Provider et al

Filing 39

MEMORANDUM OPINION AND ORDER granting in part and denying in part 25 Motion for Summary Judgment: Specifically, it is GRANTED as to Plaintiffs medical claims and as to his state-law claims against Defendant Blue in his official capacity. The moti on is DENIED with respect to the failure-to-protect-claim and the individual-capacity state-law claims. The denial of summary judgment on these claims is without prejudice to filing a properly supported summary-judgment motion. Signed by Chief Judge Joseph H. McKinley, Jr on 9/12/13. cc:counsel, Plaintiff (pro se) (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT OWENSBORO
REVEL ZAIN

PLAINTIFF

v.

CIVIL ACTION NO. 4:12CV-P5-M

ADVANCE HEALTH CARE PROVIDER et al.

DEFENDANTS

MEMORANDUM OPINION
Before the Court is the motion for summary judgment filed by Defendant Joe Blue
(DN 25). For the reasons set forth below, the motion will be granted in part and denied in part.
I. SUMMARY OF CLAIMS
On initial review of this pro se, in forma pauperis complaint, the Court allowed
Plaintiff’s Eighth Amendment claims for failure to protect him from assault by other inmates and
failure to provide medical care and his state-law claims to go forward against Defendant
Advanced Correctional Healthcare, Inc. (ACH)1 and against Defendant Blue in both his
individual and official capacities. Defendant ACH has been granted summary judgment and is
no longer a party to this action.
In his complaint, Plaintiff alleged that, while housed at Hopkins County Jail, he suffered
injuries when he was attacked by three other inmates on November 17, 2011. He stated that,
despite the fact that there were cameras monitoring the attack, no staff came to stop the attack
until he was able to push the emergency button for help. He alleged that at that time he was
taken to the nurses’ station, where he told “Nurse Connie and Sgt. Stephens” that he had internal
bleeding, cuts to his arms and knees, a fractured left middle finger, and needed to go to the

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According to the answer to the complaint, this Defendant was misidentified in the
complaint by Plaintiff as “Advance Healthcare Provider.”

hospital emergency room. Plaintiff alleged that they did nothing for his injuries and simply put
him in isolation where he continued to be in pain and spit out blood.
Plaintiff alleged that he complained repeatedly to the guards about his injuries and was
told that he needed to fill out a sick-call slip before he could see a doctor for treatment. He
stated that he submitted a sick-call slip and was taken to see Nurse Connie where he again
requested emergency medical treatment for his fractured left finger and internal bleeding. He
alleged that he was told there was nothing they could do for him and that he kept being told by
the nurses that without seeing a doctor there was nothing they would do for him other than wrap
his finger with tape. He alleged that it is the practice of the Hopkins County Jail to charge
inmates $20 for a doctor visit even though they only get to see a nurse and nurse assistant. He
also alleged that after he filed a grievance he was told that his finger would heal normally with
no treatment and that he could order pain medication from the commissary, which, he alleged,
they knew he could not due to poverty.
II. ANALYSIS
Summary-judgment standard
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). The party moving for summary judgment bears the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party’s burden may be discharged by demonstrating that there is an absence
of evidence to support an essential element of the nonmoving party’s case for which he or she
has the burden of proof. Id. Once the moving party demonstrates this lack of evidence, the

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burden passes to the nonmoving party to establish, after an adequate opportunity for discovery,
the existence of a disputed factual element essential to his case with respect to which he bears
the burden of proof. Id. If the record taken as a whole could not lead the trier of fact to find for
the nonmoving party, the motion for summary judgment should be granted. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Where the nonmoving party bears the burden of proof at trial, “a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all
other facts immaterial.” Celotex, 477 U.S. at 323. The nonmoving party must do more than
raise some doubt as to the existence of a fact; the nonmoving party must produce evidence that
would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi
Transp. Serv., Inc., 738 F. Supp. 214, 217 (E.D. Mich. 1990). The moving party, therefore, is
“entitled to a judgment as a matter of law because the nonmoving party has failed to make a
sufficient showing on an essential element of [his] case with respect to which [he] has the burden
of proof.” Id. (internal quotation marks omitted).
Failure-to-protect claim
Defendant Blue argues in his motion for summary judgment with regard to the
individual-capacity failure-to-protect claim against him that he was not aware of any risk to
Plaintiff by any other inmates. He attaches no support for this statement, such as an affidavit.
With regard to the official-capacity failure-to-protect claim against him, Defendant Blue argues
that Plaintiff has identified no county custom or policy that resulted in injury to him.
In Plaintiff’s response (DN 33), Plaintiff argues that he was attacked “as jail guards were
monitoring the cameras” and they did nothing to stop the attack but that he was able to push the

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emergency button for help and he was then taken by a guard to the nurse’s station for help.
The Eighth Amendment imposes a duty upon prison officials to protect prisoners in
custody from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833
(1994). To prevail on a claim of failure to protect, an inmate must show that he was
“incarcerated under conditions posing a substantial risk of serious harm” and that the prison
officials subjectively knew of and disregarded that safety risk. Farmer, 511 U.S. at 834, 837.
“Whether a prison official had the requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference from circumstantial evidence,
and a fact finder may conclude that a prison official knew of a substantial risk from the very fact
that the risk was obvious.” Id. at 842 (internal citation omitted). Further, a prison official may
not escape liability for deliberate indifference by showing that, while he was aware of an
obvious, substantial risk to inmate safety, he did not know that the complainant was especially
likely to be assaulted by the specific prisoner who eventually committed the assault. Lopez v.
LeMaster, 172 F.3d 756, 762 n.5 (9th Cir. 1999) (quoting Farmer).
In evaluating a motion for summary judgment, first, “a party seeking summary judgment
. . . bears the initial responsibility of informing the district court of the basis for its motion[] and
identifying those portions of [the record] which it believes demonstrate the absence of a genuine
issue of material fact[.]” Celotex Corp., 477 U.S. at 323 (internal citation omitted); see also
LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The movant may
do so by merely identifying that the non-moving party lacks evidence to support an essential
element of its case. See Celotex Corp., 477 U.S. at 323; Barnhart v. Pickrel, Schaeffer &
Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993) (per curiam).

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Here, Defendant Blue does not meet his burden with regard to the failure-to-protect
claim. Although he asserts that he “was not aware of any risk to Plaintiff by any of the other
inmates in his cell,” he offers no evidence, such as his sworn statement that he was not one of the
staff Plaintiff alleges were watching the assault on camera but did not respond until Plaintiff
pushed the emergency button. Plaintiff’s verified complaint alleges that “guards and
suppervisers [sic] was watching the incident on tape while this assault was taking place. Only
after I was able to push the emergency button for help before guards came to the housing unit
cell.” Statements in a verified complaint that are based on personal knowledge may function as
the equivalent of affidavit statements for purposes of summary judgment. Weberg v. Franks,
229 F.3d 514, 526 n.13 (6th Cir. 2000); Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992).
“Although the nonmoving party ‘may not rest upon the mere allegations or denials’ of his
pleading, Fed. R. Civ. P. 56(e), a verified complaint . . . satisfies the burden of the nonmovant to
respond.” Thaddeus-X v. Blatter, 175 F.3d 378, 385 (6th Cir. 1999).
Granted, the Court is not sure that Plaintiff’s allegation that the cameras were being
watched by guards and supervisors is a statement made on Plaintiff’s personal knowledge.
However, Defendant Blue has not presented any evidence that it is not or that he did not see the
alleged attack on the cameras. Moreover, although Defendant Blue argues that Plaintiff does not
allege a policy or custom, reading Plaintiff’s verified complaint liberally, it appears to the Court
that Plaintiff has alleged a custom or policy of the Hopkins County Jail to watch inmate assaults
on camera until the emergency button is pushed. Defendant Blue offers no evidence that here is
no such policy. As such, Defendant’s motion for summary judgment relating to the failure-toprotect claim will be denied.

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Medical claims
Defendant Blue argues that Plaintiff has not produced any proof of his denial-of-medical
care claim. After Defendant ACH filed its summary-judgment motion, Defendant Blue filed a
response in which he states that he agrees and adopts the argument section of Defendant ACH’s
memorandum of law and that those same reasons support his motion for summary judgment on
the denial-of-medical-care claim.
For the same reasons that the Court found that Defendant ACH was entitled to summary
judgment regarding Plaintiff’s claim of denial of medical care, see DN 38, the Court finds that
Defendant Blue is likewise entitled to summary judgment in his favor on this claim.
State-law claims
With regard to the state-law claims against him, Defendant Blue argues that he is immune
from liability in his official capacity to state law claims made by Plaintiff because, under
Kentucky law, counties are protected by sovereign immunity. With regard to the claims against
him in his individual capacity, Defendant Blue argues that Plaintiff has provided no proof of
personal wrongdoing which is fatal because he cannot be held vicariously liable for acts of
subordinates or employees. He also asserts that he is shielded by the doctrine of qualified
immunity.
With regard to the official-capacity state-law claims, the Court finds that Defendant Blue
in his official capacity is entitled to summary-judgment based on the doctrine of sovereign
immunity. See Jones v. Cross, 260 S.W.3d 343, 345 (Ky. 2008); Jones v. Christian Cnty. Jail,
No. 2010-CA-001496-MR, 2012 WL 411425, at *4 (Ky. Ct. App. Feb. 10, 2012) (holding that
suit against jailer in official capacity barred by governmental immunity).

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Defendant Blue fails to support his argument that the individual-capacity state-law claims
against him fail without proof of personal wrongdoing because he offers no evidence that he was
not personally involved. Therefore, summary judgment will be denied to Defendant Blue on this
claim at this time.
III. CONCLUSION AND ORDER
For the foregoing reasons, Defendant Blue’s motion for summary judgment (DN 25) is
GRANTED in part and DISMISSED in part. Specifically, it is GRANTED as to Plaintiff’s
medical claims and as to his state-law claims against Defendant Blue in his official capacity.
The motion is DENIED with respect to the failure-to-protect-claim and the individual-capacity
state-law claims. The denial of summary judgment on these claims is without prejudice to filing
a properly supported summary-judgment motion.
Date:

September 12, 2013

cc:

Plaintiff, pro se
Counsel of record
4414.009

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