Cairns et al v. Malvasi et al

Filing 45

Memorandum Opinion: Defendants' motion for summary judgment (Doc. No. 28 ) is granted and this case is dismissed. Defendants also moved for oral argument on their motion. (See Doc. No. 40 .) As there is no need for oral argument that motion is denied. Judge Sara Lioi on 1/16/2019. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LEWIS CAIRNS, et al.,
PLAINTIFFS,
vs.
PHILLIP MALVASI, et al.,
DEFENDANTS.

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CASE NO. 4:17-cv2215
JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court is the motion for summary judgment filed by defendants. (Doc. No. 28
[“MSJ”].)1 Plaintiffs filed a memorandum in opposition (Doc. No. 36 [“Opp’n”]2), and defendants
filed a reply (Doc. No. 39 [“Reply”]). For the reasons set forth herein, defendants’ motion is
granted.
I. BACKGROUND
On October 19, 2017, Lewis Cairns (“Cairns”) and his wife Natalie Mondary, MD
(“Mondary”) (collectively “plaintiffs”) filed a complaint under 42 U.S.C. § 1983 against Phillip
Malvasi, DO (“Malvasi”) and Mary Schuler (“Schuler”) (collectively “defendants”) alleging two
claims: one against Schuler, asserting deliberate indifference to the serious medical needs of
Cairns—allegedly resulting in drug withdrawal and various other injuries—while he was
incarcerated at the Trumbull County Jail from November 19, 2014 to November 28, 2014, and one

1

Defendants also moved for oral argument on their motion. (See Doc. No. 40.) As there is no need for oral argument
that motion is denied.
2

The last two pages of the appendix accompanying the opposition are completely illegible and have not been relied
upon for any reason.

against Malvasi for failure to train and/or supervise Schuler. Incorporated within the first claim
(against Schuler) is language that might be construed as a loss of consortium claim by Mondary.
Malvasi was, at all relevant times, the Medical Director of the Trumbull County Jail (the
“jail”). (Doc. No. 34-1, Deposition of Dr. Phillip Malvasi (“Malvasi Dep.”) at 478.3) Schuler was
a registered medical assistant at the jail. (Doc. No. 25-1, First Deposition of Mary Schuler (“1
Schuler Dep.”) at 181-82 (8-9).4) Schuler was supervised by Malvasi. (Id. at 182 (11).)
Cairns himself has little or no memory of the events he alleges in his complaint. (Doc. No.
23-1, Deposition of Lewis Cairns (“Cairns Dep.”) at 114 (48-49); 116 (55).) He was sent to the
jail on November 19, 2014 due to a parole violation, namely, testing positive for cocaine. (Id. at
115 (54).) This was his fourth time at the jail. (Id.)
When Cairns arrived at the jail on November 19, 2014, he went through the normal intake
process, as evidenced by jail intake and observation forms produced by Trumbull County during
discovery. (Doc. No. 28-1, MSJ Exhibit A (“Ex. A”).) Cairns has no memory of the intake process
on that day, but knows generally of the process from his previous incarcerations. (Cairns Dep. at
117 (62).) Cairns was observed to be behaving normally in all respects and was without signs or
symptoms of any alcohol or drug influence or withdrawal. (Ex. A. at 277.) He reported being on
one medication – Effexor (identified on the intake form as “Effoxin”)—which he had with him
when he arrived at the jail. (Id. at 278; Doc. No. 28-2, MSJ Exhibit B (“Ex. B”) at 279.) The
prescription was taken from Cairns and was reported immediately to Malvasi, who ordered that a
75 mg. dose of the drug be administered to Cairns twice daily during the regular Med Pass. (Ex.

3

All page number references are to the page identification number generated by the Court's electronic docketing
system.
4

For this and any other deposition filed in a form with four pages to each sheet, the Court will first cite to the Page
ID# followed by the actual page number in parentheses.

2

B. at 280.) It is undisputed that Cairns never told jail personnel that, for about a year, he had also
been prescribed (and was taking) Xanax.5 Cairns does not know why he failed to inform the jail
about this medication during intake. (Cairns Dep. at 130 (111).)
Schuler was working the morning shift at the jail from 6:00 a.m. to 2:00 p.m. on November
25, 2014. (Doc. No. 25-2, Second Deposition of Mary Schuler (“2 Schuler Dep.”) at 210.) Her
only contact with Cairns occurred on that day, when she gave Cairns his prescribed Effexor at 8:00
a.m., as reflected in jail records. (1 Schuler Dep. at 191–94 (45-57); Doc. No. 28-4, MSJ Exhibit
D (“Ex. D”) at 282.) A narrative supplement to the medication report, which was made by Officer
Matthew Abbott (not by Schuler), notes that “during Med Pass [Cairns] was paged multiply [sic]
times and was very slow to the door[.]” (Doc. No. 28-5, MSJ Exhibit E (“Ex. E”) at 283.) When
Cairns finally appeared at his door, “he was shaking and seemed on edge.” (Id.) Abbott reported
that “medical staff (Mary)” (i.e., Schuler) told him that Cairns had “missed the last few days of his
medication.” (Id.; Ex. D at 282.)6 Cairns was given his Effexor and “returned to his bunk.” (Ex. E
at 283.)
As already noted, Cairns never told Schuler (or, apparently, anyone at the jail) about his
Xanax prescription. Schuler testified that, had Cairns told her, she would have promptly obtained
an order from Malvasi to administer that prescription to Cairns pursuant to the jail’s medical
policy. Schuler was familiar with withdrawal signs and had seen them many times in her work at

Cairns’ history with Xanax is described more fully in the Expert Report of Stephen Noffsinger, M.D. (See, Doc. No.
28-7 at 311.)
5

Medical records show that Cairns had been a complete “no show” for Med Passes (as indicated by a circled “NS”)
on November 22, 23, and 24, 2014. Cairns also refused to take his Effexor on November 26 and 27, 2014 (as shown
by the circled “R” on the medication form). (Ex. D at 282.) Schuler testified that, when an inmate refuses a medication
or is a “no show,” nothing is done because “[t]hat’s his right to refuse his medications or not show up for his
medications. We can’t force anybody to take their medications.” (1 Schuler Dep. at 192 (52).)
6

3

the jail. (1 Schuler Dep. at 182-84 (12–17); Doc. No. 28-6, MSJ Exhibit F (“Ex. F”) at 284.) She
considered withdrawal from drugs to be a “serious medical condition[,]” and “possibly . . . life
threatening[.]” (Id. at 184 (20).)7
On November 25, 2014, at approximately 1350 hours (i.e., 1:50 p.m.), Cairns was
reportedly not responding to lock-down orders from Officer Cintron (a relatively new employee
at the time). He was “acting off a little bit[]” and was “not understanding what [she was] saying.”
(Doc. No. 30, Deposition of Bernice Cintron (“Cintron Dep.”) at 367–369.) In a jail incident report,
Cintron stated that she “called over the radio for [Officer] Anders to let him know about the [sic]
Cairns due to the fact he [Anders] was the rolver [sic – probably rover] that took him down to
medical for an observation after lunch approximately 1251 [12:51 p.m.] because he was acting
strangly [sic].” (Doc. No. 37-3 at 629.) During her deposition, Cintron testified that she had no
idea why Cairns would have been taken to medical after lunch, as she had not requested it. (Cintron
Dep. at 369–70.) When questioned about this during his deposition, Anders had no recollection of
taking Cairns for any medical evaluation after lunch on that day. (Doc. No. 26-1, Deposition of
James Anders (“Anders Dep.”) at 231–32 (11–12).) In addition, Schuler, who would have been
the medical person on duty at that time, also did not recall seeing Cairns at or around 12:51 p.m.
(1 Schuler Dep. at 212.) In fact, other than the passing mention in Cintron’s jail incident report of
the 1251 medical observation, there is no documentation of any such medical visit.

7

Malvasi testified, however, that symptoms are much the same for withdrawal from any drug of abuse (nausea,
vomiting, abdominal pain); merely observing those symptoms would not allow the observer to pinpoint any specific
drug, without being told what drug had been taken or without performing a urine drug screen test. (Malvasi Dep. at
516–17.) Drug screen tests are not routinely performed when a person is booked into jail. They are performed upon
court order; even then, the test results are provided to the probation department, not to the jail’s medical personnel.
(Id. at 517.)

4

In any event, officers came to assist Cintron at around 1355 hours (i.e., 1:55 p.m.). (Doc.
No. 37-3 at 629.) They placed Cairns in restraints and notified medical personnel that they were
taking him to the medical floor for observation. (Doc. No. 27-1, Deposition of Richard Nichols
(“Nichols Dep.”) at 246 (34–36) and Doc. No. 37-4 (Exhibit) at 631.)8 Schuler’s shift that day
would have been just ending (at 2:00 p.m.) and, according to Nichols, the medical person he
notified was Kara Lightner.9 (Id. at 246 (36).)10 Pursuant to jail policy, once Cairns was in the
medical lockdown, he would have been monitored every ten minutes by the officers on duty. (Id.
at 214 (16).)11

8

A few days after this incident, in a narrative supplement, Officer Nichols reported that, although on November 25,
2014, he had assumed Cairns was suffering from alcohol withdrawal, someone (whom he could not remember) told
him Cairns was “coming off of Xanax.” (Exhibit to Nichols Dep. at 631; Nichols Dep. at 247 (36–37).) In their
opposition brief, plaintiffs cite to this same paragraph of the narrative as creating “a fact in dispute.” (Opp’n at 593.)
Reporting on the events of November 25, 2014, Nichols stated in his narrative that “medical was again notified[.]”
Plaintiffs incorrectly offer this statement as proof that “prior to the first reported instance on the 25th day of November,
2014 . . . Cairns had been observed by medical staff.” (Id. at 592, emphasis added.) This is highly disingenuous since
plaintiffs questioned Nichols about this “again notified” phrase during his deposition. Nichols explained that, on
November 25, 2014 when Cintron called for backup due to Cairns’ strange behavior, medical was notified but was
not yet on the third floor when Nichols arrived, so “medical was again notified[.]” (Nichols Dep. at 246 (35–36).) In
view of their own very particular questioning about this phrase, it appears that plaintiffs are now attempting to
purposely blur the facts in hopes of creating the appearance of a material factual dispute.
Plaintiffs assert that Nichols reported to Schuler that Cairns was taken to the medical floor at 1:55 p.m. (Opp’n at
590.) This is arguably possible (though not likely), since Schuler was on duty until 2:00 p m. and, according to
Lightner, her shift on November 25, 2014 began at 10:00 p.m. (Lightner Dep. at 459.) It is not clear who might have
been on duty between 2:00 p.m. and 10:00 p.m. For purposes of analysis, it does not seem material who precisely in
the medical department would have received notice that Cairns was being moved to a medical observation cell, since
there is nothing in the record to suggest that medical personnel would have been expected to go to the cell to perform
any services unless called to do so by an officer.
9

10

Plaintiffs also point to an email that supposedly suggests that Schuler left instructions after her shift on November
25, 2014 to “[k]eep an eye on Inmate Cairns” who “is coming off of Xanax[.]” (Opp’n at 591 (quoting Trumbull Bates
Nos. 000076–77).) Although the exhibit is identified by plaintiffs as an exhibit to Schuler’s deposition—and it appears
it was discussed during her second deposition—defendants assert that it was originally an exhibit to the deposition of
Major Mason taken on April 25, 2018, which is buttressed by the fact that “Major Mason” is written just above the
bates number. In any event, this document was an internal email which, according to Major Mason, would not have
been transmitted to the medical department. Schuler denied ever having seen it. (2 Schuler Dep. at 214.) Plaintiffs
have provided no evidence that Schuler was aware of, or under any impression that, Cairns may have been suffering
from Xanax withdrawal. Plaintiffs again appear to be attempting to blur facts to give the impression of a material
factual dispute.
11

In their opposition brief, plaintiffs merge the possible 12:51 p m. medical visit with the documented 1:55 p.m. visit,
blaming Schuler for failing to monitor Cairns every ten minutes after the alleged 12:51 visit (as evidenced, according
to plaintiffs, by his almost immediate need for a 1:55 visit). (Opp’n at 590.) Even taking as true that the 12:51 visit

5

On November 27, 2014, while he was apparently still in medical lockdown, Cairns had to
be moved to another cell because he had “trash[ed] his cell with feces and urine.” (Doc. No. 37-4,
Jail Incident Report, at 631; Nichols Dep. at 247 (40).) Although Nichols’ subsequent narrative
supplement relating to the incident states that medical was notified, he does not recall for certain
whether anyone from medical actually came to check on Cairns. (Nichols Dep. at 248 (42).) Nor
is there anything in the record to suggest that Malvasi was contacted.
On November 28, 2014, at around 0737 hours (7:37 a.m.), Cairns seemed to have “gotten
worse” and Kara Lightner was called to check on him. (Id. at 248, 249 (41–43, 45); Lightner Dep.
at 413-14.) She found Cairns “lying on the floor, shaking.” (Lightner Dep. at 414.) Cairns was
“not coherent, didn’t know where he was at, and couldn’t talk.” (Id. at 416.) She realized Cairns
was not stable and needed to be sent to the hospital. (Id.) Lightner administered Effexor. (Id.)
Lightner testified that this was the first time she ever noticed Cairns experiencing a medical
problem. (Id. at 417.) She also acknowledged that he did not always show up for his medicine
during Med Pass. (Id.) Lightner was under the impression that he was suffering from withdrawal.
(Id. at 425.)
Contemporaneously, several attempts were made to reach Malvasi by telephone. As it
turned out, he was in a hospital where he could not get cell phone reception. A message was left
and Malvasi called back promptly. (Nichols Dep. at 249 (46–47).) Lightner testified that Malvasi
called in less than five minutes. (Lightner Dep. at 427.) She informed him that Cairns was

occurred, Cairns thereafter returned to his regular housing on the second floor of the jail. He would only have been
monitored every ten minutes once he was moved to the medical floor (third floor). This is another example of
plaintiffs’ attempt to create the impression of a factual dispute regarding the care given by Schuler by blurring these
two incidents, assuming they both occurred. In addition, Kara Lightner testified that the ten-minute monitoring on the
medical floor was conducted by the officers, who might call medical personnel if needed. (Doc. No. 33, Deposition
of Kara Lightner (“Lightner Dep.”) at 451-52.)

6

transported to the hospital emergency room. (Malvasi Dep. at 567, 571.) Malvasi apparently had
no personal contact with Cairns at any time during Cairns’ time at the jail.
II. DISCUSSION
A.

Legal Standard
When a party files a motion for summary judgment, it must be granted “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).
A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record . . .; or (B)
showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.
Fed. R. Civ. P. 56(c)(1).
In reviewing summary judgment motions, this Court must view the evidence in a light most
favorable to the nonmoving party to determine whether a genuine issue of material fact exists.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); White v.
Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943–44 (6th Cir. 1990), impliedly overruled on
other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190
(1991). A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Determination
of whether a factual issue is “genuine” requires consideration of the applicable evidentiary
standards. Thus, in most civil cases the Court must decide “whether reasonable jurors could find
by a preponderance of the evidence that the [nonmoving party] is entitled to a verdict[.]” Id. at
252.

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“Once the moving party has presented evidence sufficient to support a motion for summary
judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant
probative evidence must be presented to support the complaint.” Goins v. Clorox Co., 926 F.2d
559, 561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely
on the pleadings but must present evidence supporting the claims asserted by the party. Banks v.
Wolfe Cty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); see Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (finding that summary judgment is appropriate
whenever the nonmoving party 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).
Moreover, conclusory allegations, speculation, and unsubstantiated assertions are not evidence,
and are not sufficient to defeat a well-supported motion for summary judgment. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). In other words, to
defeat summary judgment, the party opposing the motion must present affirmative evidence to
support his or her position; a mere “scintilla of evidence” is insufficient. Bell v. Ohio State Univ.,
351 F.3d 240, 247 (6th Cir. 2003). Rule 56 further provides that “[t]he court need consider only”
the materials cited in the parties’ briefs. Fed. R. Civ. P. 56(c)(3); see also Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989) (“The trial court no longer has the duty to search
the entire record to establish that it is bereft of a genuine issue of material fact.” (citing Frito-Lay,
Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988))).
Under this standard, the mere existence of some factual dispute will not frustrate an
otherwise proper summary judgment motion. Dunigan v. Noble, 390 F.3d 486, 491 (6th Cir. 2004)
(quotation marks omitted) (citing Anderson, 477 U.S. at 247–48). “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
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summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”
Anderson, 477 U.S. at 248.
B.

Analysis
1.

Plaintiff Cairns

In the first claim of his complaint, Cairns alleges, under Section 1983, that defendant
Schuler “became aware of facts from which to infer substantial medical risks to Cairns, including
the acute drug withdrawal symptoms . . .[,]” but despite “[drawing] that inference, . . .disregarded
those risks in deliberate indifference to Cairns’ stated medical needs.” (Compl. ¶¶ 5–6.)
To prevail on his claim against Schuler under 42 U.S.C. § 1983, Cairns must prove “‘(1)
the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a
person acting under color of state law.’” Shadrick v. Hopkins Cty., 805 F.3d 724, 736 (6th Cir.
2015) (quoting Jones v. Muskegon Cty., 625 F.3d 935, 941 (6th Cir. 2010)). Defendants have not
challenged the second element, nor could they.
The constitutional right at issue here is the Eighth Amendment right to be free from cruel
and unusual punishment. The requisite “state of mind is one of deliberate indifference to inmate
health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811
(1994). The Supreme Court has required something more than mere negligence to demonstrate
deliberate indifference to serious medical needs. There must be a showing of “the ‘unnecessary
and wanton infliction of pain[.]’” Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976)).
“This does not mean “that every claim by a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 104.

9

It is undisputed that, to establish deliberate indifference, a plaintiff must satisfy both an
objective and a subjective component. Blackmore v. Kalamazoo Cty., 390 F.3d 890, 895 (6th Cir.
2004). “Satisfying the objective component ensures that the alleged deprivation is sufficiently
severe, while satisfying the subjective component ensures that the defendant prison official acted
with a sufficiently culpable state of mind.” Quigley v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th
Cir. 2013). Even assuming for the sake of argument that the objective component is met here,
Cairns fails to satisfy the subjective component.
In Farmer v. Brennan, supra, the Court held that “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, 511 U.S. at 837. “[A]n official’s failure to alleviate a significant
risk that he should have perceived but did not, while no cause for commendation, cannot under our
cases be condemned as the infliction of punishment.” Id. at 838.
Despite the jumble of facts that plaintiffs have tried to weave together in their opposition
brief—attempting to attribute knowledge of all those facts to Schuler (see Opp’n at 590–91, 592)—
the record shows that Schuler’s only contact with Cairns was early in the morning during one
eight-hour shift on November 25, 2014, when, at around 8:00 a.m., she provided Cairns with the
only prescribed medicine (Effexor) that he had informed the jail about. At that time, Schuler knew,
from the medical reports, that Cairns had refused to take that medicine during the preceding days.
This was the result of Cairns’ own choices. Cairns has not pointed to any case law that would
suggest it was Schuler’s (or anyone’s) affirmative responsibility under the undisputed facts to force
Cairns to take the Effexor. Even if there were such a duty, failure to discharge that duty would be
no more than negligence, which is not actionable under Section 1983. See, e.g., Comstock v.
McCrary, 273 F.3d 693, 703 (6th Cir. 2001) (noting that the Court in Estelle rejected “the
10

constitutionalization of medical malpractice claims”). In addition, on the day she saw Cairns,
Schuler had no reason to know of, or suspect withdrawal from, Xanax, since Cairns had not
informed medical personnel that he was prescribed, and taking, that medication.
Further, around the time Schuler’s shift ended on November 25, 2014 (i.e., 2:00 p.m.), and
at about the time Cairns claims he may have seen Schuler (i.e., 1:55 p.m.), Cairns was placed on
medical lockdown and was thereafter monitored every ten (10) minutes. Despite plaintiffs’ attempt
to argue that, while Schuler was still on duty, she should have been observing him every ten (10)
minutes, the record does not support that assertion. In the first place, Cairns was not placed in
medical lockdown until 1:55 p.m. and Schuler’s shift ended at 2:00 p.m. There is nothing to suggest
that she was even involved; in fact, the record shows that Kara Lightner was the medical assistant
on duty when the medical lockdown occurred.12 In addition, during medical lockdown, it was the
guards who would do the monitoring, not medical personnel themselves. During that lockdown,
the medical staff was not notified of any serious medical issues and, therefore, could not be found
to have been deliberately indifferent. And, in any event, Schuler was off-duty during the medical
lockdown. On November 28, 2014, when a different medical assistant noted Cairns’ deteriorated
condition, he was promptly taken to the hospital.
Plaintiffs’ argument amounts to little more than their personal belief that Schuler (1) “no
doubt observed [Cairns’] drug-withdrawal symptoms[,]” (2) “drew [an] inference [of drug
withdrawal],” and (3) chose to “do[] nothing to address the situation.” (Opp’n at 592.) In support

12

Plaintiffs originally filed a complaint in another civil action that included Lightner, and others, as defendants. See
Case No. 4:15-cv-2442, Cairns v. Trumbull Cty. Comm’rs, et al. Over time, all but defendants Schuler, Malvasi, and
Lightner were voluntarily dismissed. Then, on May 1, 2017, plaintiffs voluntarily dismissed their claims, without
prejudice as to Schuler and Malvasi, and with prejudice as to Lightner. When the instant complaint was filed, plaintiffs
indicated that it was this earlier case refiled against Schuler and Malvasi. (See Doc. No. 1-1, Civil Cover Sheet at 5.)

11

of the first assertion, plaintiffs cite to places in the record where others (Cintron, Nichols, and
Anders, but not Schuler) observed or commented on Cairns’ “extremely strange,” “very
disoriented,” “missing something” demeanor. (Id. at 590, 592.) In support of the second assertion,
plaintiffs cite to CO Nichols’ shift report that Cairns “is coming off Xanax” but they point to
nothing whereby this alleged “knowledge” might be imputed to Schuler. (Id. at 591, 592.) And to
support their third assertion, plaintiffs cite the lack of any “notation of her [Schuler’s] observations
of [Cairns] in his chart[,]” (Id. at 592), as proof that she did nothing. But this assumes that Schuler
would have had any observations of “medical issues” that needed to be reported. The record shows
that Cairns’ “medical issues”—which were caused by his failure to advise that he was prescribed
Xanax, exacerbated by his own inexplicable refusal to take his Effexor—developed at a time when
Schuler was not on duty and were addressed immediately when they came to light.
Cairns is simply unable to meet his burden to show the subjective element required to make
out a claim for deliberate indifference as to defendant Schuler. Therefore, defendants are entitled
to summary judgment on the first Section 1983 claim.
In his second claim under Section 1983, Cairns alleges that Malvasi “executed a
governmental policy or custom of deliberate indifference to the emergency and other serious
medical needs of his jail patients . . . and wholly failed to train and supervise his jail medical staff,
including [d]efendant Schuler; or trained and supervised them so recklessly, grossly negligently
or deliberately indifferently; and/or failed to hire the staff necessary to address the serious medical
needs of the inmate population, such that future medical staff misconduct, including that of
[d]efendant Schuler, was near inevitable or substantially certain to occur.” (Compl. ¶¶ 2-3.) Cairns
alleges that “[a]s a direct and proximate result of [d]efendant Malvasi’s stated execution and/or
failures,” he was injured and suffered losses. (Id. ¶ 4.)
12

To prevail on a claim of supervisory liability, Cairns must first establish that he suffered a
constitutional injury. Failing that, he cannot maintain a derivative action against a supervisor, even
if it is possible that the supervisor may have fostered a policy of unconstitutional practices. See
City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986) (“If a
person has suffered no constitutional injury at the hands of the individual [state actor], the fact that
the departmental regulations might have authorized the use of [unconstitutional action] is quite
beside the point.”); see also McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006)
(“[A] prerequisite of supervisory liability under § 1983 is unconstitutional conduct by a
subordinate of the supervisor.”).
Because Cairns has not established a constitutional injury, his claim against Malvasi for
supervisory liability must fail.
2.

Plaintiff Mondary

Plaintiffs take the position that their complaint states an independent claim for loss of
consortium by Mondary. Although not argued by defendants in their motion for summary
judgment, the Court doubts that there is such a separate claim. The only mention of Mondary and
her purported loss of consortium is in paragraph 9 of the complaint, incorporated into the cause of
action captioned “42 USC § 1983 Individual Liability.”
“Section 1983 creates a cause of action for deprivation of civil rights.” Jaco v. Bloechle,
739 F.2d 239, 241 (6th Cir. 1984). By its terms, “the statute grants the cause of action ‘to the party
injured.’” Id. “Accordingly, it is an action personal to the injured party.” Id. (emphasis in original.)
“[O]nly the purported victim . . . may prosecute a section 1983 claim; conversely, no cause of
action may lie under section 1983 for . . . any other consequent collateral injuries allegedly suffered
personally by the victim’s family members.” Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir.
13

2000);13 see also H.M. v. Bd. of Educ. of the Kings Local Sch. Dist., 117 S. Supp. 3d 992, 1016
(S.D. Ohio 2015) (noting that a person “cannot sue for loss of consortium directly under § 1983”).
Mondary has no standing to assert loss of consortium under Section 1983.
In any event, given the fact that Cairns’ Section 1983 claims do not survive summary
judgment, as discussed above, even if the complaint were generously construed to include a
separately-pleaded loss of consortium claim (or even if an amendment were sought and
permitted—which has not occurred), that claim would also not survive because it would be
derivative of the failed constitutional tort claims. See Bowen v. Kil-Kare, Inc., 585 N.E.2d 384,
392 (Ohio 1992) (“[A] claim for loss of consortium is derivative in that the claim is dependent
upon the defendant’s having committed a legally cognizable tort upon the spouse who suffers
bodily injury.”).
To the extent the complaint contains a loss of consortium claim brought by Mondary, it is
dismissed.

In Claybrook, the Court of Appeals reversed the district court’s Rule 12(b)(6) determination that two Section 1983
counts of the complaint arguably purporting to raise children’s personal claims for injuries arising from a violation of
their deceased father’s constitutional rights should be dismissed for lack of standing. The Sixth Circuit held that,
“[n]otwithstanding that certain allegations of the amended complaint also appear to aver that [decedent’s] children
suffered personal losses . . . which created some ambiguity regarding the identity of the person(s) whose injuries in
fact were asserted in counts one and two,” Claybrook, 199 F.3d at 357–58, the complaint sufficiently alleged that the
children were seeking recovery as representatives of their father’s estate. The court of appeals characterized “those
extraneous allegations to constitute mere surplusage[.]” Id. at 358. Here, the situation is different. Mondary is not the
personal representative of any estate; she is, rather, improperly attempting to assert her own injuries within the context
of a Section 1983 claim.
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III. CONCLUSION
For the reasons set forth herein, defendants’ motion for summary judgment (Doc. No. 28)
is granted and this case is dismissed.

IT IS SO ORDERED.
Dated: January 16, 2019
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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