Frederick v. Jones County Board Of Supervisors et al
Filing
44
OPINION AND ORDER granting 40 Motion for Summary Judgment filed by Captain Hare, Sergeant Tillman, Sergeant Welborn, and Nurse Johnston. Signed by Magistrate Judge Michael T. Parker on 9/11/2013. (KW)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
GEORGE T. FREDRICK
PLAINTIFF
V.
CASE NO. 2:11-CV-00224-MTP
JONES COUNTY BOARD OF SUPERVISORS, ET AL.
DEFENDANTS
OPINION AND ORDER
Defendants David Hare, Brenda Tillman, Jessica Welborn, and Carroll Johnston seek
summary judgment on the claims asserted against them in this 42 U.S.C. § 1983 action. They
argue that they are immune from liability in this case and that a dismissal with prejudice should
be entered. Plaintiff George T. Fredrick did not file a response to the motion or notify the Court
of his intent not to respond. L.U. Civ. R. 7(b)(3)(A). Having considered the motion, case record,
and applicable law, the Court finds that motion should be granted for the reasons discussed
below.
I.
FACTS AND PROCEDURAL HISTORY
Plaintiff George T. Fredrick, proceeding pro se and in forma pauperis, originally filed his
§ 1983 complaint for civil damages in the Circuit Court for the Second Judicial District of Jones
County, Mississippi, on July 25, 2011. Fredrick’s claims arise from alleged constitutional
violations he suffered while housed at Jones County Jail1 on a grand larceny charge and on
parole hold for the Mississippi Department of Corrections (“MDOC”). According to the MDOC
website and the Plaintiff’s notice of change of address, Fredrick is no longer incarcerated.
1
Fredrick lists the Jail as “Jones County Adult Detention Center” in the state court
complaint. Doc. [1-2] at 14. However, he lists the Jail as “Jones County Jail” in the amended
complaint he filed in this Court. See Docs. [5-1][12].
The following defendants are named in the state court complaint: Jones County Board of
Supervisors, Sheriff Alex Hodge, Captain David Hare, Sergeant Brenda Tillman, Sergeant
Jessica Welborn, Nurse Carroll Johnston, Sergeant Greg Folks, Sergeant Cooksey, and Fernando
Thigpen.2 Process was served on all defendants except Folks, Cooksey, and Thigpen, who could
not be found in Jones County.3 The properly served defendants removed the case to this Court
on November 3, 2011, pursuant to 28 U.S.C. § 1441, asserting jurisdiction based on a federal
question, 28 U.S.C. § 1331.
On December 27, 2011, the Plaintiff filed an amended complaint, removing Fernando
Thigpen as a defendant and adding Jones County Sheriff’s Department, Jones County Jail, and
Jones County to the case. Docs. [5-1][12]. An omnibus hearing was held on October 12, 2012,
at which time the Plaintiff summarized the basis of his claims against the Defendants. Fredrick
claims that on April 26, 2011, Sergeant Folks transferred him to a cell populated by gang
members who often fought White and Hispanic inmates. Fredrick asserts that once he was inside
the cell, gang members harassed him and later that night, beat him to a state of unconsciousness.
When a nurse came by the cell the following morning, April 27, 2011, Fredrick initially told her
he had a seizure, but once outside the cell, he told her that he had been attacked. Fredrick was
taken to Captain Hare’s office. Captain Hare questioned Fredrick about the assault before
2
In his state court complaint, Fredrick identifies Thigpen as another inmate at Jones
County Jail. Doc. [1-2] at 15-16. Fredrick does not provide a first name for Sergeant Cooksey.
The Plaintiff incorrectly identifies Sergeant Greg Fowlkes as “Sergeant Folks” in his complaint.
See Docs. [1-2][36-2]. For consistency purposes, the Plaintiff’s spelling will be used throughout
this opinion.
3
According to the state court docket, summonses were returned for Sergeant Folks,
Sergeant Cooksey, and Fernando Thigpen on October 24, 2011, stating that these defendants
could not be found in Jones County, Mississippi. Doc. [1-2] at 101-106. Although the
complaint was filed on July 25, 2011, summonses were not issued as to the defendants until
October 20, 2011. Doc. [1-2] at 83-100.
sending him to get medical attention.
On April 28, 2011, Fredrick was transported to South Central Regional Medical Center
(“SCRMC”) for a CT scan. He was admitted to SCRMC for surgery on April 29, 2011. The
following day, Fredrick returned to Jones County Jail. The Plaintiff claims he could not to eat
regular food after the surgery due to his jaw being broken. He asserts that Captain Hare refused
to provide him with any special food, despite knowing his medical condition. A few weeks later,
Fredrick was transferred from Jones County Jail to another facility.
As to his claims for relief, the Plaintiff asserts that Officer Folks failed to protect him by
placing him in a cell with violent gang members who would likely attack him. Fredrick claims
that Captain Hare is responsible for the delay in his medical treatment because he interviewed
him about the attack instead of immediately sending him to get medical assistance. Fredrick
asserts that Sergeant Jessica Welborn and Nurse Carroll Johnston caused him to suffer extreme
pain by failing to properly administer and/ or deliver his medication as often as prescribed. He
claims that Nurse Johnston also failed to provide him with a soft pillow for his broken jaw. The
Plaintiff further alleges that Sergeant Brenda Tillman wrongfully charged $6.00 to his inmate
account for Tylenol he received, although he was advised by a nurse at the jail that he would not
be charged. Fredrick also asserts that he filed grievances regarding the issues in this case, but
that Tillman, who was then an assistant to Captain Hare, failed to answer the complaints to his
satisfaction. Fredrick seeks compensatory and punitive damages from the Defendants.
Also at the omnibus hearing, Fredrick agreed to dismiss his claims against the Jones
County Board of Supervisors, Jones County Sheriff’s Department, Jones County Jail, Jones
County, and Sheriff Alex Hodge. The Court granted the Plaintiff’s motion and dismissed them
from the case. Sergeant Folks apparently has not yet been served with process.4
At this time, Captain Hare, Sergeant Tillman, Sergeant Welborn, and Nurse Johnston
move for summary judgment on the claims asserted against them in their individual capacity.
See Motion [40]. The Defendants contend that they are entitled to qualified immunity and that,
as such, the Plaintiff cannot establish a prima facie case of liability against them. By Order [43]
dated August 8, 2013, the Court directed Fredrick to file a response or notify the Court of his
intent not to respond on or before August 22, 2013. However, he did not respond to the motion
or otherwise comply with the order.
Fifth Circuit precedent provides that an unopposed dispositive motion should not be
granted unless there is a “clear record of delay or contumacious conduct.” Johnson v. Pettiford,
442 F.3d 917, 919 (5th Cir. 2006). There is no such record in this case. Similarly, the local rules
of this Court do not permit a dispositive motion to be granted merely because no opposition is
filed. See L.U. Civ. R. 7(b)(3)(E). Accordingly, the Court will examine the merits of the
Defendants’ motion.
II.
LEGAL AUTHORITY
A.
Summary Judgment
Rule 56 (a) of the Federal Rules of Civil Procedure “mandates the entry of summary
judgment...against a party who fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When ruling on a motion for
summary judgment, the court must consider the record evidence and draw all reasonable
4
The Defendants were ordered and directed to provide the Court with the last known
address for Folks. See Doc. [33]. The Defendants complied with the order [36], but process was
not reissued. Process will be reissued pursuant to a separate order.
inferences in the nonmoving party’s favor. Paz v. Brush Engineered Materials, Inc., 555 F.3d
383, 391 (5th Cir. 2009).
The party seeking summary judgment bears the burden of “informing the district court of
the basis for its motion, and identifying those portions of [the record evidence] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. “A
genuine issue of material fact exists if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Paz, 555 F.3d at 391 (quoting Crawford v. Formosa Plastics
Corp., 234 F.3d 899, 902 (5th Cir. 2000)). Once the moving party meets its burden, the
nonmoving party must then “come forward with specific facts showing a genuine factual issue
for trial.” Harris ex rel. Harris v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 690 (5th Cir. 2011).
B.
Qualified Immunity
Under 42 U.S.C. § 1983, a state official acting “within the scope of [his or her]
discretionary authority” is entitled to qualified immunity. Cronen v. Texas Dept. Human Svcs.,
977 F.2d 934, 939 (5th Cir. 1992). The doctrine of qualified immunity is an “immunity from suit
rather than a mere defense to liability; and like absolute immunity, it is effectively lost if a case
is erroneously permitted to go to trial.” Mitchell v. Forsyth, 427 U.S. 511, 526 (1985). In
determining whether an official is entitled to qualified immunity, the district court must decide
whether the facts alleged by the plaintiff show that the defendant official violated a constitutional
right and whether that right was clearly established at the time of the official’s alleged
misconduct. Pearson v. Callahan, 555 U.S. 223, 231-32 (2009). A court must enter judgment in
favor of the official unless his or her conduct violates “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Id. at 231 (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
A defense of qualified immunity alters the usual burden of proof in the context of
summary judgment. See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010) (citing Michalik
v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005)). Once an official pleads qualified immunity, the
burden shifts to the plaintiff, who must then “rebut the defense by establishing a genuine fact
issue as to whether the official’s allegedly wrongful conduct violated clearly established law.”
Brown, 623 F.3d at 253; Michalik, 422 F.3d at 262. The plaintiff must essentially show that no
reasonable officer could have believed his actions were appropriate. Babb v. Dorman, 33 F.3d
472, 477 (5th Cir. 1994).
C.
Delay and/ or Denial of Medical Treatment
At the times alleged in this lawsuit, Fredrick was being held at Jones County Jail on a
burglary charge and on parole hold for the MDOC. As such, it is unclear whether the Plaintiff
was a pretrial detainee or post-conviction inmate when his claims arose. The rights of a pretrial
detainee to medical treatment are protected under the Fourteenth Amendment, whereas those of a
convicted prisoner are protected under the Eighth Amendment. Bell v. Wolfish, 441 U.S. 520, 99
S.Ct. 1861, 60 L. Ed. 2d 447 (1979); Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50
L. Ed. 2d 251 (1976).
As stated by the Fifth Circuit:
Pretrial detainees and convicted prisoners...look to different constitutional provisions for
their respective rights to...medical care and safety. The constitutional rights of a
convicted state prisoner spring from the Eighth Amendment’s prohibition on cruel and
unusual punishment, and, with a relatively limited reach, from substantive due process.
The constitutional rights of a pretrial detainee, on the other hand, flow from both the
procedural and substantive due process guarantees of the Fourteenth Amendment.
Hare v. City of Corinth, 74 F.3d 633, 639 (5th Cir. 1996) (internal citations omitted).
i.
Pretrial Detainees
“A denial of medical care by a pretrial detainee alleges a deprivation of due process
under the Fourteenth Amendment.” Fields v. City of South Houston, Tex., 922 F.2d 1183, 1191
(5th Cir. 1991) (citing Pfannstiel v. City of Marion, 918 F.2d 1178, 1186 (5th Cir.1990)). The
Fifth Circuit provides that a pretrial detainee has a “Fourteenth Amendment right not to be
denied, by deliberate indifference, attention to his serious medical needs.” Brown v. Callahan,
623 F.3d 249, 253 (5th Cir. 2010) (citing Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir.
1996)). An officer is deliberately indifferent, as defined in due process cases, if the officer has
“subjective knowledge of a substantial risk of serious harm to a pretrial detainee” and he
responds with “deliberate indifference to that risk.” Hare, 74 F.3d at 650.
ii.
Post-Conviction Inmates
Similarly, a deliberate indifference standard is applied to a convicted prisoner’s claim of
delay of medical treatment. To prevail on a delay or denial of medical care claim under § 1983,
“a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference
to serious medical needs” because “only such indifference [] can offend ‘evolving standards of
decency’ in violation of the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.
285, 50 L. Ed. 2d 251 (1976). “[A] prison official cannot be found liable under the Eighth
Amendment...unless the official knows of and disregards an excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U.S. 825, 829, 114 S.Ct. 1970, 128 L.Ed. 2d 811 (1970). The
official must have known that an inmate faced “a substantial risk of serious harm and
disregard[ed] that risk by failing to take reasonable measures to abate it.” Id. at 847. If the risk
is obvious, the official’s knowledge of that risk may be inferred. Id. at 837; Easter v. Powell,
467 F.3d 459, 463 (5th Cir. 2006). “Further, delay in medical care can only constitute an Eighth
Amendment violation if there has been deliberate indifference, which results in substantial
harm.” Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
A prisoner’s mere disagreement with medical treatment does not state a valid claim for
deliberate indifference. Castilla v. July, 470 F. App’x 358, 359 (5th Cir. 2012) (citing Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997)). Rather, the prisoner-plaintiff must demonstrate
that officials “refused to treat him, ignored his complaints, intentionally treated him incorrectly,
or engaged in any similar conduct that would clearly evince a wanton disregard for any serious
medical needs.” Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
III.
DISCUSSION
The Defendants argue that they are entitled to qualified immunity because the Plaintiff
has not shown that he suffered a constitutional violation. The Court will evaluate the Plaintiff’s
claims and determine whether qualified immunity applies in this case and whether judgment
should be entered in favor of the Defendants as a matter of law.
i.
Captain Hare
Fredrick asserts that Captain Hare delayed him medical treatment by interviewing him
about the assault rather than immediately sending him to get medical attention. Fredrick also
alleges that Hare knew his jaw was broken, but refused to provide him with a soft food diet. In
response to these claims, Captain Hare asserts that he interviewed Fredrick to find out who his
attacker was and that any delay Fredrick may have had in his medical treatment was, at worst,
brief. Hare claims he never knew Fredrick needed to be on a soft food diet.
The record shows that Nurse Johnston came to Fredrick’s jail cell at approximately 9:00
a.m. on April 27, 2011, the morning after the attack, and found Fredrick in a severely bruised
condition. Doc. [40-3] at 26. Fredrick was taken to Captain Hare’s office for an interview and
evaluation between 9:15 and 9:30 a.m. that day. Id.; Hare Affidavit [40-4] at 2. During the
interview, Fredrick told Captain Hare that another inmate, Fernando Thigpen, had attacked him
the night before. Doc. [40-3] at 27. Fredrick prepared a written statement regarding the assault.
Id. Nurse Johnston evaluated Fredrick in the office and, prior to 12:00 noon, Fredrick was taken
to outside medical facilities for further evaluation and treatment. Hare Affidavit [40-4] at 2-3.
Based on the evidence in the record, Fredrick waited a maximum of approximately two
and a half hours between the time he was brought to Captain Hare’s office and taken to an
outside facility. The Plaintiff has not shown he suffered a delay in medical treatment that
amounts to a constitutional violation. He does not establish that Captain Hare was deliberately
indifferent to his medical needs.
The following sequence occurred after Fredrick was taken to the office: Nurse Johnston
evaluated him and it was determined that he needed further medical treatment. Before Fredrick
could be taken to an outside medical facility, however, approval was needed for his
transportation and outside medical care. Doc. [40-4] at 2. It is unclear how long it took for Hare
to get approval for outside treatment. However, during the time he was in Hare’s office, the
Plaintiff was attended to by a nurse and interviewed regarding the incident.
Captain Hare testified by sworn affidavit that he needed to interview Fredrick so that
charges could be brought, at Fredrick’s request, against his attacker and so that the Jail could
prevent future attacks by that inmate. Doc. [40-4] at 3. Hare also testified that he is unaware of
any physician’s order requiring the Plaintiff to receive a soft diet. Id. at 3.
Fredrick does not allege that he faced a substantial risk of serious harm by not
immediately receiving medical treatment or by not being placed on any type of special diet.
Likewise, he does not allege that Hare subjectively knew any such harm existed; that Hare failed
to take reasonable steps to prevent the harm; or that he otherwise acted with deliberate
indifference to the Plaintiff's medical needs. See Farmer, 511 U.S. at 829; Hare v. City of
Corinth, 74 F.3d at 650. As such, Fredrick fails to establish a constitutional violation based on a
delay in or denial of medical treatment. Because the Plaintiff does not show he suffered a
constitutional violation, qualified immunity applies to preclude Captain Hare from being held
personally liable in this lawsuit. Therefore, summary judgment as to this Defendant is
appropriate.
ii.
Nurse Johnston and Sergeant Welborn
The Plaintiff claims that Nurse Johnston and Sergeant Welborn violated his constitutional
rights by failing to give him his pain medication as often as prescribed. He further claims that
Nurse Johnston refused to give him a soft pillow. Although the Plaintiff alleges that Nurse
Johnston and Sergeant Welborn denied him medical treatment, the record does not support this
claim.
On April 27, 2011, Nurse Practitioner Donnie Scoggins ordered Fredrick to take one
tablet of Tramadol every six hours as needed for pain. Doc. [40-3] at 8. Fredrick’s prescription
was for thirty tablets. Id. On April 30, 2011, Dr. Carl Stevens prescribed Hydroco for the
Plaintiff's pain. Id. at 10. The prescription was for twenty tablets and Fredrick was ordered to
take one to two tablets every four to six hours as needed for pain. Id. On May 5, 2011, the
Plaintiff’s prescription for Hydroco was refilled. Id. at 9. Fredrick was again given twenty
tablets and ordered to take one to two tablets every four to six hours as needed for pain. Id.
By sworn affidavit, Nurse Johnston testified that she emptied pill packets for all
medication prescribed to the Plaintiff. Doc. [40-5] at 2. Nurse Johnston testified that Fredrick
was provided Tramadol and Hydroco “per his complaints of pain, not in excess of the maximum
amount ordered.” Id. She states that he requested and was given Tylenol for pain “once on May
9, 2011, twice on May 10, 2011, and once on May 13-15, 2011.” Id. at 3. Nurse Johnston also
testified that she was “not made aware of any further requests for pain medication by Fredrick
after May 15, 2011.” Id.
The record shows that the Plaintiff received his pain medications as prescribed and that
he received over-the-counter medication for his complaints of pain. Based on this unchallenged
evidence, the Plaintiff fails to show that he was denied medication and/ or medical treatment or
that the Defendants were deliberately indifferent to his medical condition. Since the Plaintiff
cannot show that Nurse Johnston or Sergeant Welborn refused to given him pain medication as
prescribed, he does not have a valid claim for denial of medical treatment under the Eighth or
Fourteenth Amendment. Therefore, Nurse Johnston and Sergeant Welborn are entitled to
qualified immunity on the claims asserted against them in their individual capacity.
iii. Sergeant Tillman
Fredrick asserts that Sergeant Tillman improperly charged $6.00 to his inmate account
for Tylenol that he requested and received for pain. Fredrick argues that another nurse at the Jail
told him he would not be charged for the pills. However, to the extent he asserts he should have
received free over-the-counter medication, the Plaintiff has not alleged a constitutional violation.
Fredrick also claims that Sergeant Tillman failed to properly respond to his grievances.
During the omnibus hearing, the Plaintiff testified that he was unsatisfied with Sergeant
Tillman’s responses to the grievances he filed regarding the issues complained of in this case.
Doc. [40-2] at 22-23. He claims that Tillman’s response to one of his grievances addressed a
matter other than the one he had complained about. Id. at 24. Fredrick asserts that she never
responded to another of his grievances. Id. However, the Plaintiff has not submitted any proof
of having filed grievances related to the issues in this case.
Fredrick testified at the hearing that Tillman was as an administrative assistant to Captain
Hare at the times alleged in this case and that Tillman was responsible for delivering Hare’s
responses to inmate grievances. Id. at 23. Based on this testimony, it appears that the Plaintiff
is suing Tillman for responses that were issued by Hare. He does not allege that Tillman issued
grievance responses to inmates. Fredrick does not provide a legal or factual basis upon which
Sergeant Tillman should be held personally liable for violating his constitutional rights. Further,
to the extent the Plaintiff asserts liability against Tillman for acts made by Captain Hare, he has
not alleged a constitutional claim. Fredrick does not show that no reasonable officer could have
believed Sergeant Tillman’s actions were appropriate. See Babb, 33 F.3d at 477. Therefore,
qualified immunity applies to shield Tillman from individual liability in this case.
iv. Official Capacity Claims
Although unclear, it appears that the Plaintiff is suing the Defendants in their official
capacities. However, a lawsuit against the Defendants in their official capacities is, in essence, a
suit against Jones County. See Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 691 n.
55, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (stating that a lawsuit suit against a local government
employee is essentially an action against the entity where the officer is employed). For Jones
County to be liable in this case under § 1983, Fredrick “must demonstrate that the allegedly
constitutionally deficit offense is the policy or custom of the municipality.” Woodard v. Andrus,
419 F.3d 348, 352 (5th Cir. 2005) (citing Monell, 436 U.S. at 690-91, 98 S. Ct. 2018, 56 L. Ed.
2d 611). That is, the Plaintiff must show: “(1) that the municipal employee violated [his] clearly
established constitutional rights with subjective deliberate indifference; and (2) that this violation
resulted from a municipal policy or custom adopted and maintained with objective deliberate
indifference.” Brumfield v. Hollins, 551 F.3d 322, 331 (5th Cir. 2008) (quoting Olabisiomotosho
v. City of Houston, 185 F.3d 521, 528-29 (5th Cir. 1999)).
Fredrick does not allege that Jones County implemented a policy or custom that caused
him to suffer a constitutional violation. As discussed above, the Plaintiff does not show that the
Defendants violated his constitutional rights. Thus, the Plaintiff fails to meet his burden of proof
with regard to municipal liability and, therefore, the Defendants cannot be held liable for the
claims asserted against them in their official capacities. As such, summary judgment should be
entered in favor of the Defendants as to the official capacity claims.
IV.
CONCLUSION
Based on the above analysis, the Court finds that the Defendants are entitled to qualified
immunity and, therefore, cannot be held personally liable in this lawsuit. Moreover, the
Defendants cannot be held liable in their official capacities because the Plaintiff does not show
that an official Jones County policy was the “moving force” behind any alleged constitutional
deprivation. Brumfield, 551 F.3d at 331. Therefore, the Defendants’ Motion for Summary
Judgment [40] is well taken and is hereby granted. A separate judgment will be entered pursuant
to Fed. R. Civ. P. 59.
SO ORDERED, this the 11th day of September, 2013.
/s/MICHAEL T. PARKER
UNITED STATES MAGISTRATE JUDGE
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