Ham v. Marshall County, Kentucky et al
Filing
171
MEMORANDUM OPINION & ORDER granting in part and denying in part 160 Motion for Summary Judgment. Signed by Senior Judge Thomas B. Russell on 11/12/2013. cc:counsel (KJA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CASE NO. 5:11-CV-00011
TERRELL W. HAM
Plaintiff,
v.
MARSHALL COUNTY, KENTUCKY, ET AL.,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on a Renewed Motion for Summary Judgment by
Defendant Jailer Roger Ford in his individual capacity. (Docket No. 160.) Plaintiff Terrell W.
Ham has filed his response (Docket No. 161), to which Ford has replied, and Ham has filed a
surreply (Docket No. 166). These matters are now ripe for adjudication. For the reasons that
follow, Ford’s Motion is DENIED IN PART and GRANTED IN PART.
BACKGROUND
Plaintiff Terrell Ham began his sentence at Marshall County Detention Center (“MCDC”
or “the Jail”) on January 22, 2010. On Wednesday, February 17, 2010, Mr. Ham reported pain
and a knot in his left shoulder and requested an appointment with Nurse Ruby Starks. (Starks
Dep. at 46; Ham Jan. 10 Dep. at 107.) After examining Mr. Ham, Nurse Starks advised him that
he would need to see Dr. H.W. Ford (“Dr. Ford”) the next day about possible pain medication.
(Starks Dep. at 46; Ham Jan. 10 Dep. at 108.) Mr. Ham was able to walk to the medical room
for his appointment with Nurse Starks and did not appear to have difficulty moving his arms or
legs. (Starks Dep. at 51; Ham Jan. 10 Dep. at. 110.)
1
Both Nurse Starks and Jailer Roger Ford (“Jailer Ford”) were present during Dr. Ford’s
examination of Ham on Thursday, February 18, 2010. Mr. Ham informed Dr. Ford that the pain
persisted in his left shoulder, but had also traveled down his left side to his lower back and spine.
(Ham Jan. 10 Dep. at 112-13; Dr. Ford Dep. at 46.) Mr. Ham walked to his appointment and did
not complain of trouble walking. (Ham Jan. 10 Dep. at 110, 113; Starks Dep. at 61.) Based on
his examination of Mr. Ham, as well as Mr. Ham’s history of back pain, Dr. Ford prescribed a
muscle relaxer. (Dr. Ford Dep. at 46 , 51-55.) This was the last time that medical personnel at
the MCDC attended to Mr. Ham. (Starks Dep at. 59; Dr. Ford Dep. at 50.)
In the late afternoon of Friday, February 19, 2010, Mr. Ham was unable to walk to the
cell door to get his medication. (Ham Jan. 10 Dep. at 121.) After a fellow inmate called the
control room about Mr. Ham’s condition, Deputy Jailer Jeff Schroader checked on Mr. Ham,
who informed him that he could not move his legs and was numb down his left side. (Schroader
Dep. 9.) Deputy Schroader said he took Mr. Ham’s condition “seriously” because “obviously
it’s not good if you can’t feel your legs or . . . half your body.” (Id. at 9.) Deputy Schroader
called Jailer Ford, who said, “Yeah, get him in a wheelchair, get him up to booking and I’ll
contact the judge . . . [W]e’ll get him a bond, see if we can’t get . . . his family here to get him to
some medical attention.” (Id. at 9.) Jailer Ford then contacted Marshall County District Judge
Jack Telle, who told Jailer Ford to “let him make bond, get checked out.” (Jailer Ford Dep. at
51.) Jailer Ford went “straight to the judge” rather than calling Dr. Ford or Nurse Starks because
he “felt pretty certain that they would probably want him checked out.” (Id. at 55.)
2
Jailer Ford testified that when inmates are sent to the hospital, his staff transports the
prisoners, and MCDC generally pays for the transportation. (Jailer Ford Dep. at 29.)1 However,
in this case, MCDC staff contacted Ham’s sister, Dottie Hamlet, and told her that Mr. Ham was
experiencing an emergency and needed to go to the hospital. (Hamlet Dep. at 20.) Because Mr.
Ham was serving a misdemeanor sentence and was sentenced on a commitment order, Jailer
Ford felt there was no risk that Mr. Ham would fail to return after treatment. (Jailer Ford Dep. at
55, 60-61.) Jailer Ford testified that releasing inmates to their families for medical care is not an
uncommon practice among Kentucky’s correctional institutions. (Id. at 61.)2 When Ms. Hamlet
and her husband arrived about fifteen minutes later, Mr. Ham was in a wheelchair in the corner.
(Hamlet Dep. at 24.) Ms. Hamlet received instructions to take Mr. Ham to Marshall County
Hospital (“MCH”) and return immediately upon his discharge. (Hamlet Dep. at 23-24.) Mr.
Ham was loaded into his sister’s Jeep Liberty and the family went immediately to Marshall
County Hospital.3
Mr. Ham was discharged from the hospital around 11:30 p.m. Mr. Ham and his family
returned to MCDC thereafter. Deputy Jailer Robert Milan was on duty when Mr. Ham and his
family pulled up to the jail’s sally port. Ms. Hamlet gave Mr. Ham’s discharge papers to Deputy
Milan, and Mr. Ham indicated that he still could not walk. (Hamlet Dep. at 38; Milan Dep. at
10-11, 24.) Deputy Milan observed that the family appeared upset that Mr. Ham had been
1
This statement echoes jail standard 501 KAR 3:090 Section 1(12), which dictates that “[i]f the prisoner is
transported to a hospital . . . transport will be provided [by] Deputy Jailer, or Ambulance.”
2
Defendants’ expert, James Daley, testified that “a lot of jails historically have allowed family members to transport
inmates to get them out of their facility so they don’t get saddled with a huge medical bill,” but that he did not know
whether that occurred in MCDC’s case.
3
Testimony is conflicting as to who loaded Ham into the vehicle. Hamlet testified in her deposition that her
husband loaded Ham by himself (Hamlet Dep. at 25), while Deputy Schroader and Deputy Edwin Newcom, Jr.
recall Deputy Schroader placing Ham in the vehicle (Schroader Dep. 13-14, 25; Newcom Dep. at 21.) Testimony
from all parties, however, indicates that Ham had the use of his arms when he left for the hospital. Hamlet testified
that though he was shaking, he was able to hold the handle when her husband loaded him. (Hamlet Dep. at 26, 74.)
Deputy Schroader testified that he had Ham put his arms around her neck, and he lifted Ham out of the wheelchair
in a cradle position and put him in the vehicle. (Schroader Dep. at 14, 25-26.)
3
released from the hospital and that they “said there was . . . other stuff going on with him, and . .
. they was just mad, I guess, because they didn’t get admitted. . . . [T]hey was talking about, they
was going to have to get him in to see somebody else.” (Milan Dep. at 13-14.)4 Jail staff
thereafter called Jailer Ford at home,5 and he arrived roughly fifteen minutes later. (Hamlet Dep.
at 38; Milan Dep. at 17.)
Upon arriving, Jailer Ford told Mr. Ham to get out of the vehicle and said that “[Mr.
Ham] could walk . . . there wasn’t nothing wrong with him [and that] he was fine.” (Hamlet
Dep. at 39.) He was “cursing,” accused them of “partying,” and indicated that a strip search
would reveal if Mr. Ham “had any dope” on him. (Id.; Ham Jan. 10 Dep. at 135.) Ms. Hamlet
denied Jailer Ford’s accusations and urged him to call the hospital to confirm the length of their
visit. (Hamlet Dep. at 39.) At Ms. Hamlet’s request, Deputy Milan gave Ham’s discharge
papers to Jailer Ford as proof of their visit, and Jailer Ford appeared to familiarize himself with
the papers before calling the hospital. (Id.; Milan Dep. at 21.)6 Mr. Ham’s discharge papers
indicated that he had been diagnosed with “BILAT[ERAL] LOWER EXTREMITY
PARASTHESIA OF UNDETERMINED EITOLOGY.” (ER Release, Docket No. 139, Ex. 2.)
The papers further indicated that Mr. Ham was to “FOLLOW UP WITH NEUROLOGIST ON
MONDAY” and should see his private physician if his symptoms persisted or worsened.” (Id.)
4
Deputy Milan also testified that when Mr. Ham first arrived, he witnessed him roll onto his left side and “dig[]
around in his crotch,” which led him to believe that that Mr. Ham might be able to walk despite his assertions to the
contrary. (Milan Dep. at 30-31.)
5
It is customary for jail staff to notify Jailer Ford at home when an inmate returns from the hospital. (Milan Dep. at
14, 19-20.) Although Deputy Milan is unsure if Jailer Ford regularly returns to the jail after such notification, he
remembers him doing so “several times in the past 10 years.” (Id. at 16.)
6
Jailer Ford disputes these facts. He testified that upon arriving he “asked Terrell what the problem was. He said
he couldn’t get out. And I asked, you know, what his diagnosis was.” (Jailer Ford Dep. at 64.) See also Jailer Ford
Affidavit, Docket No. 133, Ex. A (“I did not cuss or otherwise verbally abuse [Mr. Ham] or his family on February
19th. I did, however, warn Ham that he ‘had better make sure [he] didn’t have any [contraband] on him when he
came back into the jail,’ or other similar words to that effect.”). Deputy Milan does not remember if Jailer Ford
spoke with Mr. Ham before calling the hospital, but remembers immediately giving Jailer Ford the discharge papers
after he arrived. (Milan Dep. at 21, 26-27.)
4
Jailer Ford then stepped away to call the Marshall County Hospital. He spoke with a
nurse whose name he cannot recall who informed him that “they could not find [any]thing wrong
with him. Possibly a bladder infection.” (Jailer Ford Dep. at 64.) Based on his conversation
with the nurse and the fact that Mr. Ham had been released from the hospital, Jailer Ford decided
to readmit Mr. Ham to the jail. (Id.)
After deciding to readmit Mr. Ham, Jailer Ford returned to the sally port to remove Mr.
Ham from the vehicle. When Deputy Milan pulled Mr. Ham out of the vehicle, Mr. Ham “fell to
his knees and flat on his face.” (Hamlet Dep. at 40.) Mr. Ham “kept telling him that he couldn’t
get up. He couldn’t move his lower body,” as Jailer Ford “kept cursing, yelling at him” and had
Deputy Milan pick Mr. Ham up underneath his arms and drag him across the sally port to the
wheelchair waiting on the other side. (Id. at 41-42.) Mr. Ham remembers the men dropping him
again, and “[t]his time [his] face and all hit the concrete. And Roger Ford said, ‘Well, you son of
a bitch, you can walk because I seen your leg move.’” (Ham Dep. at 138.) The men then lifted
Mr. Ham into the wheelchair; after he slid out of the chair, the men were able to put him back
into it. (Id.; Hamlet Dep. at 42.)7
Before placing Mr. Ham in a medical observation cell, the men searched him for
contraband pursuant to MCDC policy. (Milan Dep. at 44; Jailer Ford Dep. at 71.) Deputy Milan
recalls that Mr. Ham was able to assist the men in removing his shirt and roll onto his right side
to face the wall. (Milan Dep. at 47.) Deputy Milan does not remember Mr. Ham moving his
7
Jailer Ford and Deputy Milan also dispute this account of events. Jailer Ford testified that the pair “got a
wheelchair, eased him out into the wheelchair and put him in a medical cell.” (Jailer Ford Dep. at 64-65.) See also
Jailer Ford Affidavit, Docket No. 133, Ex. A (“My deputy and I did not drop Ham or otherwise let him fall to the
ground, when we moved him from his sister’s vehicle to a wheelchair before he was readmitted to the Jail.”).
Deputy Milan recalls that Jailer Ford asked him to get a wheelchair for Ham and then the two men “had to pick him
up underneath his arms to get him from [the vehicle] to the wheelchair.” (Milan Dep. at 28-29.) He denies that
Ham fell to the ground at any point during the transition. (Id.)
5
legs at any point during the search. (Id. at 49.) Mr. Ham had no contraband on him and was
placed under medical observation. (See Jail Log, Docket No. 188, Ex. H.) Though Mr. Ham
was once observed holding a blanket over his head, none of the deputies saw him on his feet or
moving his legs. (Gardner Dep. at 11; Loe Dep. at 12; Milan Dep. at 57; Schroader Dep. at 12.)
At 7:35 a.m., Mr. Ham told Deputy Eugene Loe that he could not get up to see a visitor. Loe
noted this on the jail log, but also noted that Ham was “ok.”8 (Loe Dep. at 10-11; Jail Log, Ex.
H.) That morning, Jailer Ford called into the jail while he was at a political function in Hardin,
Kentucky. (Jailer Ford Dep. at 73.) After learning that Mr. Ham had not been up throughout the
night and morning, Jailer Ford spoke with Judge Telle, who was also attending the event, around
10 a.m. (Id. at 73-75.) “The judge said, ‘Roger, let’s make him a bond. Put him back in court in
two or three weeks. Have him to bring me some medical documentation.’” (Id. at 73.)
After Judge Telle directed that Mr. Ham be released to seek additional medical care,
MCDC staff called his daughter, Jessica Ham. (Jessica Ham Dep. at 15.) Because she was at
work, Jessica missed the call. (Id.) MCDC left a voicemail. (Id.) Although Jessica’s shift
normally ended at two o’clock, she had to stay at work longer because a coworker arrived late.
(Id. at 17.) Jessica “clocked out and checked [her] voicemail, and it was from the jail stating that
[she] just needed to come pick [Mr. Ham] up. It didn’t say why.” (Id. at 15.) Jessica and her
children’s father, Jon Pace, took her nephews to the jail to pick up her father. (Id. at 17.) When
jail staff wheeled her father out, Jessica “started crying because [she] could tell his condition
right away. . . . [H]e almost looked dead.” (Id. at 24.)
8
Each entry in the jail log includes a description of Ham as “ok.” Deputy Milan said that when he wrote “ok,” he
meant that Ham was “still breathing, and talking, and there wasn’t [contraband] found on him.” (Milan Dep. at 56.)
Deputy Newcom looked to make sure that Ham was “conscious and breathing” while he was in medical observation.
(Newcom Dep. at 15.) Jailer Ford indicated that the notation “okay” indicates “okay, I have checked him. Okay, I
have talked to him.” (Jailer Ford Dep. at 74.)
6
Mr. Ham left MCDC six hours after Judge Telle directed his release, around 3:55 p.m.
Jailer Ford and Deputy Newcom attribute this delay to waiting for his family to come pick him
up. (Jailer Ford Dep. at 86-87; Newcom Dep. at 26.) Deputy Newcom cannot recall any
problem at MCDC that would have prevented a deputy from transporting Mr. Ham to the
hospital or an ambulance being called. (Newcom Dep. at 26.) Mr. Ham was admitted into the
emergency room at Lourdes Hospital in Paducah at 6:20 P.M. Testing revealed a spinal abscess
and cord compression, which required immediate surgery. Despite the surgery, Ham now suffers
from paraplegia and weakness in his left arm.
Mr. Ham filed his original complaint with this Court on January 24, 2011, naming as
defendants Marshall County; Jailer Ford; MCDC Physician Dr. H.W. Ford; MCDC Nurse
Practitioner, Ruby Starks; the Marshall County Public Hospital District Corporation; Dr. Louis
Forte; and John and Jane Does, Nos. 1-10, “employees of and health care professionals at the Jail
and the Hospital.” (Docket No. 1.) He amended his complaint on August 2, 2011 to add Drs.
Scott Wilson and William R. Wilson and their practice groups, Sterling Emergency Services of
the Midwest, Inc. (“Sterling”) and Radiology Associates of Murray, PLLC (“RAM”),
respectively. Mr. Ham voluntarily dismissed or assented to summary judgment on his claims
against RAM and Dr. William R. Wilson (Docket No. 54), Dr. Forte (Docket No. 56), H.W. Ford
(Docket No. 97), and Ruby Starks (Docket No. 112). On November 27, 2012, the Court also
granted summary judgment for Defendants Sterling Emergency Services and Dr. Scott Wilson.
(Docket No. 148.)
Defendants Marshall County and Jailer Ford moved for summary judgment on Mr.
Ham’s remaining claims, which alleged violations of 42 U.S.C. § 1983 and state law. The
Court’s December 19, 2012 Memorandum Opinion and Order granted partial summary
7
judgment, dismissing all claims against Marshall County and against Jailer Ford in his official
capacity. (Docket No. 152.) The Court also dismissed Mr. Ham’s claims for the tort of outrage.
The Court denied Jailer Ford’s motion for summary judgment for violation of Mr. Ham’s rights
pursuant to 42 U.S.C. § 1983 and for negligence.
In the instant action, Jailer Ford renews his motion for summary judgment, urging the
Court to dismiss all remaining claims against him. Jailer Ford argues that a recent Sixth Circuit
decision requires dismissal of the claims against him. He further alleges that upon the expiration
of discovery and expert disclosure deadlines, Ham has not established the causation necessary to
survive summary judgment.
STANDARD
Summary judgment is appropriate where “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). In determining whether summary judgment is appropriate, a court must resolve
all ambiguities and draw all reasonable inferences against the moving party. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“[N]ot every issue of fact or conflicting inference presents a genuine issue of material
fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989). The test is whether
the party bearing the burden of proof has presented a jury question as to each element in the case.
Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996). The plaintiff must present more than a mere
scintilla of evidence in support of his position. Rather, plaintiff the must present evidence on
which the trier of fact could reasonably find for him. See id. (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). Mere speculation will not suffice to defeat a motion for
8
summary judgment; “the mere existence of a colorable factual dispute will not defeat a properly
supported motion for summary judgment. A genuine dispute between the parties on an issue of
material fact must exist to render summary judgment inappropriate.” Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1177 (6th Cir. 1996).
DISCUSSION
Jailer Ford claims that only three issues remain unresolved:
(1) whether he was
deliberately indifferent to Mr. Ham’s serious medical needs; (2) whether he ignored MCDC’s
policy that required either jail staff or an ambulance to transport Mr. Ham to the hospital; and (3)
whether the six-hour delay between Jailer Ford’s call and the arrival of Mr. Ham’s family caused
any detriment to Mr. Ham’s condition. (Docket No. 160-1 at 5.) Jailer Ford argues that none of
these questions can be submitted to a jury, as Mr. Ham lacks the medical evidence necessary to
prove causation. Specifically, he argues that Mr. Ham cannot prove that his medical outcome
would have been different had he been transported to the hospital at approximately 10:00 a.m.
rather than picked up by his family at 3:55 p.m. Jailer Ford alleges that no expert has opined
otherwise. (Id.)
I.
The Court’s December 21, 2012 Memorandum Opinion denying Jailer Ford’s
Motion for Summary Judgment remains consistent with Sixth Circuit precedent.
In its prior ruling, the Court opined that a factual dispute existed as to whether Jailer Ford
was deliberately indifferent to Mr. Ham’s medical needs. “The Eighth Amendment forbids
prison officials from unnecessarily and wantonly inflicting pain on an inmate by acting with
deliberate indifference toward the inmate’s serious medical needs…. Prison officials’ deliberate
indifference violates these rights [w]hen the indifference is manifested by … prison guards in
9
intentionally denying or delaying access to medical care … for a serious medical need.”
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895-96 (6th Cir. 2004) (citations omitted).
A plaintiff alleging a constitutional claim for denial of medical care must demonstrate both
objective and subjective components. To fulfill the objective component, the inmate must show
that he had a sufficiently serious medical need and that the conditions of his incarceration posed
a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 825 (1970). To fulfill the
subjective component, an inmate must “show that prison officials have a sufficiently culpable
state of mind in denying medical care.” 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. Rather, “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. 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 896 (internal citations and quotations omitted).
Jailer Ford argues that a recent Sixth Circuit decision precludes such a finding in this case.
Smith v. County of Lenawee, 505 Fed. Appx. 526 (6th Cir. 2012) concerned a pretrial detainee
who died as while incarcerated in a county jail. When booking Smith into the jail on Friday, a
sergeant noted that Smith, an alcoholic, suffered from tremors. Her symptoms included shaking,
hallucinations, loss of appetite, and irrational behavior. The sergeant called the jail’s medical
director, who prescribed medication for alcohol withdrawal and assured him that “she’s on good
medicine,” that jail would “do her some good,” and that he would have a nurse examine her on
Sunday. On Monday morning, jail personnel summoned medical help when they observed that
Smith had stopped breathing; she died shortly after. Her mother then sued both the county itself
10
and a number of county officials, claiming that they were deliberately indifferent to the
detainee’s serious medical needs and asserting a gross negligence claim under state law.
On appeal, the Sixth Circuit held that the sergeant’s failure to contact emergency medical
services did not constitute deliberate indifference to the detainee’s serious medical needs. The
Court pointed to precedents cautioning federal courts from second-guessing the medical
judgment of treating professionals and constitutionalizing negligence or medical malpractice
claims. Smith, 505 Fed. Appx. 526, at 532 (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th
Cir 1976). The Court further acknowledged that “[i]f a prisoner is under the care of medical
experts …, a non-medical prison official will generally be justified in believing that the prisoner
is in capable hands.” Smith, 505 Fed. Appx. 526, at 532 (quoting Spruill v. Gillis, 372 F.3d 218,
236 (3d Cir. 2004).
Among the named defendants was the sergeant who periodically checked on Smith and opted
against transporting her to the emergency room based on the jail physician’s advice. The Court
found that because a serious medical need existed, the plaintiff had established the objective
component of her deliberate indifference claim against the sergeant. However, the sergeant
lacked a sufficiently culpable state of mind in denying or delaying medical care, precluding the
claim’s subjective component. Although hindsight made clear that the sergeant should have
obtained medical intervention, he placed Smith in an observation cell and consulted with the
jail’s physician, who assured him that Smith’s condition did not require emergency treatment.
Based on these facts, the Sixth Circuit reversed the denial of summary judgment to the
sergeant. “[A]bsent a reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner, a non-medical prison official … will not be
11
chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Smith,
505 Fed. Appx. 526, at 532 (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). The
Court pointed to the Supreme Court’s teaching that “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.” Smith, 505 Fed. Appx. at 533 (quoting Farmer v. Brennan, 511 U.S.
825, 837 (1994) (emphasis added). Based on the physician’s reassurances, “it is understandable
that [the sergeant] did not draw the inference that Smith was at substantial risk of serious harm
even though he recognized that she was suffering from delirium tremens.” Id. at 534.
The question, then, is whether Ham can establish the subjective component of his claim
for deliberate indifference—that is, whether Jailer Ford actually inferred that a substantial risk of
serious harm existed. Id. (citing Farmer, 511 U.S. at 837). Jailer Ford points to a number of
factors supporting his assessment. When Jailer Ford contacted medical staff at Marshall County
Hospital, a nurse assured him that Mr. Ham did not require additional care. He had no reason to
believe that Mr. Ham received faulty care at the hospital, as neither Mr. Ham nor members of his
family complained of improper or ineffective treatment. Further, while Ham’s discharge papers
evinced a diagnosis of “BILAT[ERAL] LOWER EXTREMITY PARESTHESIA OF
UNDETERMINED EITOLOGY,” there is no indication that such a condition demanded
emergent care.
Despite these facts, this Court’s previous Memorandum Opinion and Order denying Jailer
Ford’s original motion for summary judgment remains consistent with Smith. In its earlier
ruling, this Court held:
… Ham complained of serious back and neck pain, and ultimately
suffered complete paralysis of his lower body that left him unable
12
to walk. This Court agrees with the Eleventh Circuit’s observation
that “paralysis is such an uncommon, serious, and traumatic event
that even someone without any medical training would have
recognized the situation as requiring immediate care by a doctor.”
Fields v. Corizon Health, Inc., 490 Fed. Appx. 174, 184 (11th Cir.
2012).
Jailer Ford relied upon his conversation with a Marshall County Hospital nurse and upon
Mr. Ham’s discharge papers in determining to readmit Mr. Ham to the jail. Smith counsels that
Jailer Ford was entitled to defer to medical professionals in this initial decision. However, the
analysis cannot end here; it must also encompass the approximately fourteen hours between Mr.
Ham’s readmission to the jail and his transport to Lourdes Hospital. Mr. Ham was placed in a
medical observation cell overnight, during which time no deputies observed him walking or
moving his legs. He continued to complain of immobility when he refused a visit on the
morning of February 20. After discussing Mr. Ham’s status that morning with MCDC staff,
Jailer Ford consulted with Judge Telle about releasing Mr. Ham for further medical treatment
that day rather than waiting until Monday. Although Jailer Ford directed that a bond be issued at
approximately 10:00 a.m., approximately six hours elapsed before Mr. Ham arrived at Lourdes.
Construing the facts in the light most favorable to Mr. Ham, a jury could determine that
notwithstanding Mr. Ham’s medical clearance for readmission, Jailer Ford’s culpability
increased over the fourteen-hour delay and that he at some point developed “reason to believe”
that Mr. Ham’s condition had not been adequately treated. A prison official may be found
deliberately indifferent even after seeking medical treatment for an inmate when, confronted
with “continued complaints by [an inmate]” or “manifest symptoms” of a continuing serious
condition, the prison official nonetheless fails to seek additional medical attention. See Cooper
v. Dyke, 814 F.2d 941 (4th Cir. 1987). Where Mr. Ham’s continued “symptoms would have
13
made it obvious that [he] required immediate medical attention,” a jury could conclude that
delaying such required treatment manifests deliberate indifference. A jury might infer that the
continued severity of Ham’s medical condition—namely, debilitating immobility—at some point
constituted an emergency medical situation that obligated Jailer Ford to facilitate additional
treatment. Jailer Ford’s culpability hinges not on whether he knew that Mr. Ham’s family
experienced delays in actually transporting him, but whether Jailer Ford should have taken steps
to ascertain that fact.
Moreover, Jailer Ford’s conduct deviated from MCDC policy, which required jail staff to
transport Mr. Ham to the hospital or contact an ambulance to do so.9 A jury could conclude that
Jailer Ford disregarded a substantial risk when he recognized Mr. Ham’s need for further
medical attention and allowed Mr. Ham to remain at the jail for six hours, awaiting his family’s
arrival. See 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). Although Jailer Ford can point to a number of factors
defending his decisions, the Court determines that summary judgment is not appropriate on this
measure.
II.
Mr. Ham need not present verifying medical evidence to support his § 1983
claim.
Additionally, Jailer Ford argues that even if he had directed his staff to call an ambulance or
transport Mr. Ham to the hospital on Saturday morning instead of calling his family, Mr. Ham
has presented no evidence that the outcome would have differed. Having considered the parties’
arguments, the Court cannot agree with Jailer Ford.
9
“Transport: If the prisoner is transported to a hospital, or the facility physician’s office, transport will be provided
[by] Deputy Jailer, or Ambulance[.]” MCDC Medical Emergency Policy (Docket No. 130-1 at 2).
14
In the Sixth Circuit, “[a]n inmate who complains that delay in medical treatment rose to a
constitutional violation must place verifying medical evidence in the record to establish the
detrimental effect of the delay in medical treatment to succeed.” Napier v. Madison County, Ky.,
238 F.3d 739 (6th Cir. 2001) (quoting Hill v. Dekalb Regional Youth Detention Center, 40 F.3dd
1176, 1188 (11th Cir. 1994)).
Like the Napier plaintiff, Mr. Ham has offered no medical evidence indicating that he
suffered a detrimental effect from not receiving medical attention earlier on Saturday. However,
the Sixth Circuit later clarified that Napier’s “verifying medical evidence” requirement applies
only to claims involving “minor maladies or non-obvious complaints of a serious need for
medical care.” Blackmore v. Kalamazoo County, 390 F.3d 890, 898 (6th Cir. 2004). “Napier
does not apply to medical care claims where facts show an obvious need for medical care that
laymen would readily discern as requiring prompt medical attention by competent health care
providers.” Id. The inquiry hinges upon whether a lay person would determine that the prisoner
plainly required medical care—not the actual existence of such harm.
Where the seriousness of a prisoner’s needs for medical care is
obvious even to a lay person, the constitutional violation may arise.
This violation is not premised upon the ‘detrimental effect’ of the
delay, but rather that the delay alone in providing medical care
creates a substantial risk of serious harm. When prison officials
are aware of a prisoner’s obvious and serious need for medical
treatment and delay medical treatment of that condition for nonmedical reasons, their conduct in causing the delay creates the
constitutional infirmity. In such cases, the effect of the delay goes
to the extent of the injury, not the existence of a serious medical
condition. Blackmore was suffering from appendicitis, and it is
sufficient that the officers’ delay in treatment of an obvious
medical emergency posed a substantial risk of serious harm to
Blackmore by subjecting him to unnecessary infliction of pain.
15
[W]here a plaintiff’s claims arise from an injury or illness “so
obvious that even a layperson would easily recognize the necessity
for a doctor’s attention,” the plaintiff need not present verifying
medical evidence to show that, even after receiving the delayed
necessary treatment, his medical condition worsened or
deteriorated. Instead, it is sufficient to show that he actually
experienced the need for medical treatment, and that the need was
not addressed within a reasonable timeframe.
Id. at 899 (emphases added).
As this Court discussed in its previous ruling, Mr. Ham’s sudden and unexplained inability to
move his lower extremities was an “obvious manifestation[] of pain and injury.” (Docket No.
152 at 16, quoting Blackmore, 390 F.3d at 898.) A jury could find a constitutional violation if
Jailer Ford allowed six hours to pass before releasing Mr. Ham to obtain medical care, despite
Ham’s obvious and continuing need for medical treatment. Regardless of the contents of Mr.
Ham’s expert reports, Mr. Ham need not present “verifying medical evidence” that he was
harmed by the delay in treatment, as the constitutional injury does not depend on such a causal
connection.
III.
Mr. Ham’s lack of evidence regarding causation precludes his negligence claim.
Mr. Ham’s constitutional claim does not share all elements with his negligence claim, which
is grounded in state law. Mr. Ham does not prove that any breach of duty by Jailer Ford caused
or exacerbated his injuries. Because Mr. Ham has not established causation, his negligence
claim must be dismissed.
Jailer Ford argues that because no evidence suggests that he knew of the six-hour delay
of Mr. Ham’s family, Mr. Ham’s state law negligence claims must be dismissed. In addressing
this argument, the Court references its earlier Memorandum Opinion, which stated:
16
Ham has presented evidence from which a jury could conclude
Jailer Ford disregarded [a substantial risk of harm to Mr. Ham].
Despite testimony that nothing prevented a deputy from
transporting Ham to the hospital or calling the EMS pursuant to
MCDC policy, staff called Ham’s family requesting they pick up
Ham, who did not arrive until nearly six hours later. A jury could
conclude that Jailer Ford disregarded a substantial risk to Ham
when he recognized Ham’s need for further medical attention,
ignored MCDC practice and policy requiring jail staff to transport
Ham to this hospital, and instead allowed Ham to remain at the jail
for an additional six hours waiting for his family to arrive. See
Harris v. City of Circleville, 583 F.3d 356, 369 (6th Cir. 2009)
(considering a defendant’s failure to follow policy as evidence that
he subjective prong of a deliberate indifference claim had been
satisfied).
(Docket No. 152 at 15-16.)
Assuming arguendo that Jailer Ford’s departure from MCDC policy constituted a breach
of his duty to Mr. Ham, Mr. Ham has nonetheless failed to establish causation. Federal Rule of
Civil Procedure 26(a)(2)(B) requires a complete statement of a potential witness’s opinions.1
“Under Rule 26(a), a ‘report must be complete such that opposing counsel is not forced to
depose an expert in order to avoid an ambush at trial.’” R.C. Olmsetad, Inc., v. CU Interface,
LLC, 606 F.3d 262, 271 (6th Cir. 2010) (quoting Salgado v. Gen. Motors Corp., 150 F.3d 735,
742 n. 6 (7th Cir. 1998)).
At the close of discovery, no expert testimony suggests that had Mr. Ham been transported
to the hospital on Saturday morning, his medical outcome would have improved. Dr. Hadi,
Ham’s treating neurologist and medical expert, testified that Mr. Ham was a complete paraplegic
when he first presented at Lourdes Hospital on the afternoon of Sunday, February 21, 2012; he
17
could not indicate when Ham became a complete paraplegic.10 Furthermore, Dr. Hadi’s expert
report fails to establish causation.11 His analysis concerns only whether treatment on Friday
evening would have changed Ham’s outcome, not about the “detrimental effect of the delay” on
Saturday. Additionally, Dr. Hadi testified that even had he performed surgery on Ham within
twenty-four hours of the onset of his paralysis, odds are slim that Ham would have ultimately
regained function. (Dr. Hadi Dep. at 65-66.)
In the only medical testimony regarding the timing issue, Jailer Ford’s expert neurosurgeon,
Dr. Richard Berkman, opines that Ham was “almost certainly paraplegic” upon his arrival at
Marshall County Hospital at 6:20 p.m. on Friday, February 19.1 Dr. Berkman will testify that
when Jailer Ford learned of Ham’s complaints on February 19, his paralysis was already
irreversible. Dr. Berkman indicates that any delay caused by the determination that Ham’s family
should transport him to Lourdes did not contribute to his ultimate outcome. (Docket No. 160-3
at 1.)
Mr. Ham neither rebuts Dr. Berkman’s testimony nor offers an expert opinion as to when
treatment would have been too late. Because Ham cannot establish that Jailer Ford’s actions or
omissions proximately caused his injury, Jailer Ford is entitled to summary judgment.
CONCLUSION
For the foregoing reasons, it is HEREBY ORDERED THAT:
10
Dr. Hadi Dep. at 63 (“I can’t say because I don’t have an exam. I don’t have an accurate time frame of when . . .
he became a complete paraplegic. I just know that when I saw him he was a complete paraplegic.”).
11
Dr. Hadi Expert Report, Docket No. 118-15, at 1 (“As of 2/21/10 at 12:15pm, Mr. Terrell Ham, upon my
examination, was an ASIA level A C6 quadriplegic, which is to say he had no discernible function, neither sensory
or motor below those controlled by the sixth cervical nerve. This included the ability to use his hands, the ability to
use his legs, bowel and bladder control as well as sexual function. It was unclear how long he had been in this
[quadriplegic] state.”).
18
1.
Defendant’s Renewed Motion for Summary Judgment is DENIED as to Plaintiff’s §
1983 claim; and
2. Defendant’s Renewed Motion for Summary Judgment is GRANTED as to Plaintiff’s
state law negligence claim.
CC: Counsel
November 12, 2013
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