Wicks v. Hopkins County Detention Center et al

Filing 38

MEMORANDUM OPINION AND ORDER by Senior Judge Joseph H. McKinley, Jr. on 9/7/2021: For the reasons set forth in the Memorandum Opinion and Order, Defendant Hopkins County's motion for summary judgment 22 is DENIED with leave to refile after the close of discovery.cc:counsel; Plaintiff, pro se (EAS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:20CV-P158-JHM
JEREMY RAY WICKS

PLAINTIFF

V.
HOPKINS COUNTY, ET AL.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Defendant Hopkins County filed a motion for summary judgment pursuant to Fed. R. Civ.
P. 56. [DN 22]. Plaintiff filed a letter in response. [DN 30]. Defendant Hopkins County did not
file a reply. Fully briefed, this matter is ripe for decision. For the reasons set forth below, the
Defendant Hopkins County’s motion for summary judgment is DENIED.
I. BACKGROUND
Plaintiff Jeremy Ray Wicks, a pretrial detainee at Hopkins County Detention Center, filed
the instant pro se action under 42 U.S.C. § 1983. [DN 1, DN 26]. Upon initial review of the
complaint pursuant to 28 U.S.C. § 1915A, the Court allowed Plaintiff’s claims for deliberate
indifference to his serious medical needs in violation of the Fourteenth Amendment to proceed
against Defendant Matthew Johnson in his individual and official capacities and against Hopkins
County, Advanced Correctional Healthcare (“ACH”), and West Kentucky Correctional Healthcare
(“WKCH”). [DN 6, DN 7, DN 32]. Defendant Hopkins County filed an answer to the complaint.
In May of 2020, Hopkins County filed a motion for summary judgment. However, since that time,
the Court permitted Plaintiff to file a supplemental complaint and statement of claims [DN 26, DN
27] and extended the discovery deadline to November 19, 2021 [DN 32].

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II. STANDARDS OF REVIEW
A. Motion to Dismiss
On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), a court “must construe the complaint in the light most favorable to plaintiff[],”
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007), “accept all
well-pled factual allegations as true,” id., and determine whether the “complaint states a plausible
claim for relief,” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff
must provide the grounds for his or her entitlement to relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when he or
she “pleads factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads
facts “‘merely consistent with’ a defendant’s liability,” id. at 678 (quoting Twombly, 550 U.S. at
557), or if the alleged facts do not “permit the court to infer more than the mere possibility of
misconduct,” id. at 679. Instead, the allegations must “show[ ] that the pleader is entitled to relief.”
Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
B. Summary Judgment
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

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genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
Although the Court must review the evidence in the light most favorable to the non-moving
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 non-moving party to
present specific facts showing that a genuine factual issue exists by “citing to particular parts of
materials in the record” or by “showing that the materials cited do not establish the absence . . . of
a genuine dispute[.]” Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on which
the jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
III. DISCUSSION
A. Policy, Practice, or Custom
While Defendant Hopkins County labels its entire motion as one for summary judgment,
Hopkins County moves to dismiss the municipal liability claim arguing that Plaintiff failed to
allege or identify a policy or custom on the part of the county that caused the alleged deprivation
of medical care. [DN 22-1 at 2–3]. The Court will review this argument with the motion to dismiss
standard.
“[A] municipality 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.” Monell
v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978); Searcy v. City of
Dayton, 38 F.3d 282, 286 (6th Cir. 1994); Berry v. City of Detroit, 25 F.3d 1342, 1345 (6th Cir.
1994). “[T]he touchstone of ‘official policy’ is designed ‘to distinguish acts of the municipality
from acts of employees of the municipality, and thereby make clear that municipal liability is

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limited to action for which the municipality is actually responsible.’” City of St. Louis v.
Praprotnik, 485 U.S. 112, 138 (1988) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479–80
(1986)) (emphasis in original). To demonstrate municipal liability, a plaintiff “must (1) identify
the municipal policy or custom, (2) connect the policy to the municipality, and (3) show that his
particular injury was incurred due to execution of that policy.” Alkire v. Irving, 330 F.3d 802, 815
(6th Cir. 2003) (citing Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). A
custom is a practice “that has not been formally approved by an appropriate decision maker,” but
is “so widespread as to have the force of law.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997).
In the instant case, Plaintiff alleges that he has been denied medical treatment at the
Hopkins County Detention Center (“HCDC”) as a result of the actions of HCDC, the physician at
the facility, and the contracted medical providers. He alleges that he has a history of acid reflux,
Gastro Esophageal Reflux Disease (“GERD”), and severe esophageal problems, that prior to his
incarceration a physician indicated that he may need surgery due the severity of the condition, that
a medical professional scheduled an endoscopy to determine the severity, and that because of his
incarceration he did not have the endoscopy. Plaintiff states that he has repeatedly requested
treatment from the medical department at “HCDC”. [DN 1 at 5]. Plaintiff asserts that he is in
constant pain, throws up blood and bile several times a week, experiences heartburn and
constipation, and is unable to eat the meals provided by HCDC because the meals contain
ingredients that aggravate his condition. [Id.; DN 26 at 5, DN 27]. Since his incarceration at
HCDC, Plaintiff contends that his symptoms have started to include convulsing, vomiting in his
sleep, and dental problems. [DN 26 at 5, DN 26-1]. Despite the worsening of his conditions,
HCDC and the medical staff have repeatedly refused to provide prescription medication and

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gastrointestinal testing. Instead, they merely place him in medical segregation.
The documents attached to Plaintiff’s supplemental complaint reflect that HCDC received
over 20 “red flags” from Plaintiff’s medical segregation block where HCDC staff found Plaintiff
at times vomiting blood. While HCDC staff on some occasions would notify medical, on other
occasions the deputy would advise Plaintiff that medical was already aware of the situation. [DN
26-1]. Additionally, on at least one occasion, the deputy informed Plaintiff that using the red flag
for non-emergencies would result in disciplinary actions. [Id.].
Plaintiff also alleges that HCDC and the medical staff deny him prescription medication
for his condition. Instead, he has been instructed by medical staff to purchase over-the-counter
Prilosec; however, he represents that he is sometimes unable to purchase the medicine because of
his poverty and because HCDC doubles the cost of the over-the-counter medicine to pay for his
sick calls. Plaintiff further represents that each medical visit with a nurse costs a processing fee of
$35.00 and a visit with the site physician costs an additional $50.00 processing fee, despite the
“clear directive in KRS § 441.045 that jails pay for all necessary medical costs of indigent persons
in their care.” [DN 27 at 6–7]. According to Plaintiff, HCDC jail policies also only “allow [him]
to discuss one medical condition at a time with any medical professional.” [Id.]. Finally, Plaintiff
contends that HCDC also punishes him for seeking medical care by taking away his ability to buy
commissary food. [DN 27 at 9].
While not scattered with legalese, Plaintiff adequately alleges in his pleadings that the lack
of treatment of his potentially serious medical condition is a result of policies, customs, or practices
of HCDC to not inform medical when a “red flag” notification is made, to require indigent inmates
to purchase over-the-counter medication to treat potentially severe medical conditions, and to
require indigent inmates to pay for sick visits which interferes with his ability to purchase over-

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the-counter medication. See, e.g., Farr v. Centurion of Tennessee, LLC, No. 17-5482, 2018 WL
5621612, at *2 (6th Cir. June 5, 2018) (allegations that municipality or contracted medical provider
deprived an inmate of adequate medical care in order to save money, i.e., directing inmates to
purchase their own medicine at the commissary and refusing to take inmates to specialists,
sufficiently alleged Eighth Amendment claim). Furthermore, the Court previously considered in
its § 1915A review whether Plaintiff’s allegations contained sufficient factual matter to state a
claim for relief against Hopkins County and permitted that claim to proceed. [DN 6].
For these reasons, Hopkins County’s motion to dismiss on this ground is denied.
B. Serious Medical Condition
Hopkins County argues that summary judgment is warranted in the present case because
acid reflux does not constitute a serious medical condition as a matter of law. Hopkins County
also argues that Plaintiff has failed to present any medical proof that his acid reflux is a serious
medical need or that an agent of Hopkins County was deliberately indifferent to his medical need.
The Tenth Circuit has observed that “GERD—also known as acid reflux—is a common
problem and in many instances is not a serious condition warranting [constitutional] scrutiny.”
Tennyson v. Raemisch, 638 F. App’x 685, 689 (10th Cir. 2015). Various courts have concluded
that acid reflux under the facts presented in those cases does not constitute an objectively serious
medical condition. Williamson v. Bolton, No. 3:18-CV-529-CHB, 2019 WL 96306, at *5 (W.D.
Ky. Jan. 3, 2019) (“Plaintiff’s vague allegation that he was in pain due to acid [reflux] is not
sufficient to establish a serious medical need to meet the objective standard of a deliberate
indifference claim.”); Watson-El v. Wilson, No. 08-CV-7036, 2010 WL 3732127, at *13 (N.D. Ill.
Sept. 15, 2010) (“The court finds as a matter of law that the plaintiff’s acid [reflux] did not rise to
the level of a serious medical need for purposes of Eighth Amendment analysis.”); Fox v. Rodgers,

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No. 08-CV-14727, 2010 WL 2605940, at *3 (E.D. Mich. June 8, 2010) (“Plaintiff falls short of
satisfying the objective component. He did not present any authority for the proposition that his
acid reflux disease presented a serious medical need.”); Ross v. McGinnis, No.00-CV-0275E, 2004
WL 1125177, at *10 (W.D.N.Y. Mar. 29, 2004) (diagnosis of chronic dyspepsia, a small hiatal
hernia, and mild reflux esophagitis does not constitute a serious medical need); Boldry v. Gibson,
No. 4:16-CV-P88-JHM, 2019 WL 1410912, at *6 (W.D. Ky. Mar. 28, 2019) (“Plaintiff has failed
to produce evidence in response to the SHP Defendants’ motion for summary judgment upon
which a reasonable jury could conclude that he faced a risk of substantial harm unless he received
Prilosec.”).
Other courts have found that acid reflux may constitute a serious medical need where it is
accompanied by more than vague complaints of pain, such as five days of vomiting acid while
sleeping, Bell v. Jendell, 980 F. Supp. 2d 555, 560 (S.D.N.Y. 2013), or interference with the ability
to eat, Lane v. Corizon Healthcare, No. 3:13-CV-519 JD, 2013 WL 5348489 (N.D. Ind. Sept. 23,
2013). See also Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (“Leaving a serious case
of GERD untreated for two months is a dereliction of medical duty”); Gray v. Wexford of Indiana,
LLC, No. 1:19-CV-01880-TWP-TAB, 2021 WL 798053, at *5 (S.D. Ind. Mar. 2, 2021) (GERD is
a serious medical condition); Henderson v. Smith, No. 7:19-CV-00420, 2021 WL 867585, at *5
n. 5 (W.D. Va. Mar. 4, 2021) (“[T]the doctors’ own decisions to continue Henderson on
medications for months and years [for his GERD] indicates that they consider his symptoms
serious enough to warrant treatment.”); Dobbey v. Randle, No. 10-CV-3965, 2015 WL 5245003,
at *7 (N.D. Ill. Aug. 26, 2015) (Chronic abdominal pain and GERD are objectively serious medical
conditions). Thus, contrary to Hopkins County’s argument, acid reflux or GERD may qualify as
a serious medical condition.

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With respect to Hopkins County’s argument that summary judgment is warranted because
Plaintiff failed to prove that GERD or acid reflux from which he suffers is a serious medical
condition or that an HCDC agent was deliberately indifferent to his medical need, the Court
disagrees.
Hopkins County fails to identify any evidence or attach any documentation to its motion
for summary judgment in support of its assertion that no genuine issue of material fact exists with
respect to Plaintiff’s deliberate indifference to medical condition claim. A party asserting that a
fact cannot be genuinely disputed “must support the assertion by[ ] citing to particular parts of
materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1)(A). Thus, Hopkins
County fails to satisfy its burden under the summary judgment standard.
Notwithstanding, the Court finds that Plaintiff provided specific facts showing that a
genuine factual issue exists, at least with the current record. In his verified complaint and
supplemental complaint, Plaintiff submitted both his statement, medical records, and medical
requests to HCDC regarding his history of acid reflux, GERD, and severe esophageal problems.
[DN 1, DN 26]. Plaintiff further averred that prior to his incarceration at HCDC, a physician
indicated that he may need surgery due the severity of his acid reflux. Plaintiff stated that he is in
constant pain, throws up blood and bile several times a week, experiences heartburn and
constipation, and is unable to eat the meals provided by HCDC because the meals contain
ingredients that aggravate his condition. [DN 1 at 5, DN 26 at 5, DN 27]. Since his incarceration
at HCDC, Plaintiff averred that his symptoms have started to include convulsing, vomiting in his
sleep, and dental problems. [DN 26 at 5, DN 26-1]. Finally, Plaintiff tendered evidence that on

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some occasions when informed of Plaintiff throwing up blood and bile, an HCDC deputy advised
Plaintiff that medical was already aware of the situation or, on at least one occasion, the deputy
informed Plaintiff that continued reporting of his medical condition would result in disciplinary
actions. [DN 26-1].
Plaintiff’s verified complaint carries the same weight as an affidavit because he signed the
complaint under penalty of perjury, see El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008), and the
Sixth Circuit accepts a verified complaint, to the extent that it is based on personal knowledge, as
an opposing affidavit within the meaning of Fed. R. Civ. P. 56(c). See Hooks v. Hooks, 771 F.2d
935, 945–46 (6th Cir. 1985). Thus, in light of Plaintiff’s factual statements, exhibits tendered with
his verified complaint and supplemental complaint, and Hopkins County’s failure to present any
evidence in support of its position, the Court finds that Plaintiff presented specific facts showing
that he suffers from a serious medical condition and presented evidence suggesting a deliberate
indifference to his medical needs from HCDC.
Finally, the Court notes that Hopkins County’s motion for summary judgment is premature
in that Plaintiff’s new deadline for completing discovery has not expired. [DN 32].
Accordingly, Hopkins County’s motion for summary judgment is denied.
IV. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that the motion by Defendant
Hopkins County for summary judgment pursuant to Fed. R. Civ. P. 56 [DN 22] is DENIED with
leave to refile after the close of discovery.

cc:

Plaintiff, pro se
Counsel of Record

September 7, 2021

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