Ivey v. Tishomingo County, MS
MEMORANDUM OPINION re 48 Judgment. Signed by District Judge Sharion Aycock on 8/22/12. (cr)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO.: 1:10CV165-SA-DAS
TISHOMINGO COUNTY, MS
MEMORANDUM OPINION AND ORDER
Plaintiff Milford Ivey, a Mississippi prisoner proceeding pro se, brings a lawsuit pursuant
to 42 U.S.C. § 1983 alleging that the Tishomingo County Jail violated his constitutional rights by
denying him medical treatment while he was housed there as a pretrial detainee.1 Defendant and
Plaintiff each have a motion for summary judgment pending before the Court, and both parties
have responded to the motion of the other. Having fully considered the submissions of the
parties and the applicable law, the Court finds that Defendant’s motion should be granted, and
this cause dismissed with prejudice, for the reasons that follow.
On December 21, 2007, Plaintiff began a twenty-one month detention as a pretrial
detainee in the Tishomingo County Jail.2 While detained there, Plaintiff underwent procedures
to remove his gallbladder and appendix, was treated for staph infections on two occasions, and
Plaintiff alleged several other constitutional violations, but those claims were dismissed
and the instant claim clarified after the Court held a hearing as set forth in Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985) (See doc. nos. 12 and 26).
The Court notes that Plaintiff’s complaint is one against Tishomingo County itself, as
Tishomingo County Jail is not a separate suable entity. See Turner v. Upton County, 915 F.2d
133 (5th Cir. 1990); Brown v. Thompson, 927 So.2d 733, 737 (Miss. 2006) (holding that sheriff’s
department is not a political subdivision for purposes of the Mississippi Tort Claims Act); see
Fed. R. Civ. P. 17(b) (capacity of entity to sue or be sued determined by State law).
received treatment for heart problems. He also received follow-up visits at the Iuka Family
Clinic. (See Def. MSJ, Ex B, C, D).
Sometime in 2008 or 2009, Plaintiff began to experience chest pain while housed at the
County Jail. (See Def.’s Mot. Summ. J, Ex. A, 35; see also Pl.’s Mot. Summ J., attached
records). County officers called an ambulance, and Plaintiff was transported to North
Mississippi Medical Center-Iuka, where he was treated for a heart attack. (See Def.’s Mot.
Summ. J., Ex. A, 34). He was then treated in the Intensive Care Unit ward of another hospital
for approximately a week before being released to the County and prescribed a daily medication
regimen. (See id. at 35). He later had to be transported to NMMC-Iuka for chest pain, and that
hospital transported him to a hospital in Corinth, which the Court presumes to be Magnolia
Regional Health Center.3 (Id.). At the Corinth hospital, he alleges, he was told that he needed a
heart stent inserted to relieve arterial blockage, but that he did not receive the necessary
treatment. He maintains that Deputy Don Kirk gave a hospital nurse the telephone number to the
Sheriff’s Department, and that she left the hospital room to place a call to the Department. (Id.).
He alleges that once the nurse returned, she stated that Plaintiff was ready to return to jail. (Id. at
On September 23, 2009, Plaintiff pleaded guilty to charges of sexual battery and
fondling and was transported to the Central Mississippi Correctional Facility in Pearl,
Mississippi. On April 16, 2010, after he was in the custody of the Mississippi Department of
The Court is uncertain when the events about which Plaintiff is aggrieved occurred.
Based upon the totality of the medical records filed in the case, it would appear that Plaintiff was
treated at the Magnolia Regional Health Center in Corinth, Mississippi, in March 2009. (See
doc. entry no. 46).
Corrections, he received a heart catheterization. Plaintiff then filed the instant lawsuit alleging
that the heart procedure would have been performed earlier if Tishomingo County had agreed to
pay the bill, and that he now suffers great pain and is facing open-heart surgery because of
Defendant’s refusal to provide treatment. (Pl.’s Resp. to Mot. Summ. J., 5, 8).
Summary Judgment Standard
Summary judgment is proper only when the pleadings and evidence, viewed in a light
most favorable to the nonmoving party, illustrate that no genuine issue of material fact exists and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a),(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). Once the motion is properly supported with competent
evidence, the nonmovant must show that summary judgment is inappropriate. Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); see also Celotex, 477 U.S. at 323.
The nonmovant cannot rely upon “conclusory allegations, speculation, and unsubstantiated
assertions” to satisfy his burden, but rather, must set forth specific facts showing the existence of
a genuine issue as to every essential element of his claim. Ramsey v. Henderson, 286 F.3d 264,
269 (5th Cir. 2002) (citation omitted); Morris, 144 F.3d at 380. If the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party,” then there is a genuine dispute
as to a material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If no proof is
presented, however, the Court does not assume that the nonmovant “could or would prove the
necessary facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Denial of Medical Care
A pretrial detainee’s claim that he was denied medical care in violation of the
Constitution requires him to prove that jail officials were “deliberately indifferent” to his
“serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).4 The test for
establishing deliberate indifference is one of “subjective recklessness as used in the criminal
law.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Under this standard, § 1983 liability will
not attach to a state actor unless the plaintiff alleges facts which, if true, would establish that the
official “knows of and disregards an excessive risk to inmate health or safety[.]” Id. at 838.
Negligent medical treatment does not provide a basis for a § 1983 claim. See Williams v. Treen,
671 F.2d 892, 901 (5th Cir. 1982).
Plaintiff’s testimony fails to demonstrate that Tishomingo County Jail willfully withheld
medical treatment from him. The undisputed evidence in this case demonstrates that Defendant
secured medical care for Plaintiff on numerous occasions. (See doc. entry no. 23, p. 10-11).
Plaintiff acknowledges that his gallbladder and appendix were removed while in Defendant’s
care, that he was treated twice for a staph infection while in Defendant’s care, and that jail
personnel called an ambulance and transported him for treatment on more than one occasion
when he began experiencing chest pain. (See Pl.’s Dep. 30-31, 33-35). Plaintiff has testified
that he is not aware of the contents of the conversation that occurred between the nurse at the
Corinth hospital and whomever she spoke to at the Sheriff’s Department. (Id. at 61-62). He
concedes that he was released from the hospital by a doctor’s order, and he admits that it is only
his speculation that the heart procedure was not performed because of Tishomingo County Jail’s
refusal to pay for the procedure. (Id. at 41-42).
As a pretrial detainee, the Fourteenth Amendment, rather than the Eighth Amendment,
is applicable to Plaintiff’s claims, but the same deliberate indifference standard applies. See
Hare v. City of Corinth, 74 F.3d 633, 648 (5th Cir. 1996); see also Wagner v. Bay City, Tex., 227
F.3d 316, 324 (5th Cir. 2000).
Additionally, the medical records Plaintiff submitted in support of his motion for
summary judgment do not support his claim. The records from Magnolia Regional Health
Center in Corinth that were submitted along with Plaintiff’s motion for summary judgment state
that Plaintiff was admitted with chest pain on March 15, 2009. (See Pl.’s Mot. Summ. J.). The
records show that Plaintiff was observed overnight and then underwent an exercise stress test,
which was “stopped secondary to shortness of breath.” (Id.). There was “no recurrence of chest
pain” during the stress test. (Id.). The medical conclusion from the hospital course was that he
was “at low risk” and would be discharged. (Id.). The discharge instructions recommended that
he continue his medications and advised to return if his chest pain reoccurred. (Id.).
The evidence in this case demonstrates that Plaintiff received treatment for his chest
pains, and there has been no evidence presented that he was advised of a course of treatment that
he did not receive while in the care of the Tishomingo County Jail. Plaintiff’s allegations are
insufficient to demonstrate that the County had actual subjective knowledge of a risk to which it
was indifferent. Hare v. City of Corinth, Miss., 74 F.3d 633, 648-49 (5th Cir. 1996). Plaintiff’s
disagreement with the care he received does not state a constitutional claim of deliberate
indifference. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 2001).
Moreover, because Plaintiff’s suit is against a governmental entity and not an
individually-named defendant, liability attaches only where Plaintiff shows that it was the
execution of a policy or custom of Tishomingo County Jail that was “the moving force of the
constitutional violation.” Monnell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Plaintiff
testified that he could not identify a policy of the Tishomingo County Jail that led to denial of
medical care he alleges. (See Pl. Dep. at 62-63). For the foregoing reasons, Defendant is
entitled to judgment as a matter of law.
The Court finds that Defendant’s motion for summary judgment (docket entry no. 37)
should be GRANTED, and this action be DISMISSED WITH PREJUDICE. All pending
motions are dismissed as moot. A final judgment in accordance with this opinion and order will
issue this day.
SO ORDERED this the 22nd day of August, 2012.
/s/ Sharion Aycock
U.S. DISTRICT JUDGE
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