Cash v. Armstrong et al

Filing 32

MEMORANDUM OPINION: For these reasons, Defendant, Lt. Gallion's motion for summary judgment [Doc. 27] will be GRANTED and he will be DISMISSED from this action. See Order for details. Signed by District Judge J Ronnie Greer on 03/06/2017. (C/M to pro se Plaintiff) (AMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE

SAGE ANDREW CASH,
Plaintiff,
v.
AUTUMN ARMSTRONG, et al.,
Defendants.

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No.

2:14-CV-316-JRG-MCLC

MEMORANDUM OPINION
This civil matter is before the Court on a motion for summary judgment by defendant
Butch Gallion (“Lt. Gallion”) [Doc. 27]. Plaintiff has not filed a response in opposition to the
request and the time for doing so has now passed. E.D. Tenn. L.R. 7.1, 7.2. For the reasons that
follow, the Court will grant Lt. Gallion’s motion for summary judgment.
I.

BACKGROUND
A.

Procedural

Plaintiff filed this instant action under 42 U.S.C. § 1983 against Autumn Armstrong,
Donna Carter, Lt. Gallion, and Brittany Saunders on October 21, 2014 [Doc. 1].

In the

complaint, Plaintiff claimed that Lt. Gallion was deliberately indifferent to his serious medical
need1 [Doc. 1 at 5]. Specifically, Plaintiff alleges that he has not been properly treated for vision

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Plaintiff initially asserted this claim of deliberate indifference in the case of Cash v.
Gallion, et al., No. 2:14-CV-240-JRG-CLC. During the screening process required by the Prison
Litigation Reform Act, this Court dismissed the claim as insufficiently pled. Plaintiff then filed
an amended complaint which this Court denied due to the instant action containing the same
assertions. Even though Cash v. Gallion, et al., No. 2:14-CV-240-JRG-CLC, has been
dismissed, Lt. Gallion references certain representations made by Plaintiff in that earlier lawsuit.
Pursuant to Federal Rules of Evidence 201(b) and (c), the Court takes judicial notice of the
record in the previous lawsuit referred to in Lt. Gallion’s motion for summary judgment.

problems [Doc. 1 at 5]. Plaintiff states that he was told by Lt. Gallion on July 14, 2014, that he
would not be taken for an eye examination unless the jail physician deemed it an emergency
[Id.]. Plaintiff claims that it took him over six months to see the jail physician, Dr. Matthews,
and when he did, Dr. Matthews told Plaintiff he “would be provided an emergency medical eye
exam as soon as Nurse Brittany Saunders approved it through the sheriff” [Id.]. However,
Plaintiff asserts that on October 8, 2014, Lt. Gallion told him that Plaintiff would not receive an
eye exam unless he provided the funds [Id.].
Defendants Autumn Armstrong, Donna Carter, and Butch Gallion were properly served
and filed a timely joint answer on February 27, 2015 [Doc. 11]. On May 12, 2016, defendants
Autumn Armstrong and Donna Carter filed a joint motion for summary judgment which this
Court granted, and they were dismissed from this action [Doc. 31]. On May 12, 2016, Lt.
Gallion filed this instant motion for summary judgment claiming that he is entitled to qualified
immunity on the claim of deliberate indifference to a serious medical need [Doc. 27]. In support
of his request, Lt. Gallion filed a memorandum and statement of material facts [Docs. 28, 29].
Notably, Plaintiff has not responded in opposition to summary judgment or submitted any
evidence in support of his claims.
B.

Factual2

Plaintiff, who has been housed at the Hawkins County Jail since November 17, 2013,
began requesting medical attention for vision problems in June of 2014 [Doc. 27-1 p. 6]. After
submitting several requests over a period of months [id.], Plaintiff filed the instant action against
Lt. Gallion on October 21, 2014 [Doc. 1].
2

Plaintiff has not submitted any affidavits or other evidence in support of the claimed
series of events contained in his complaint. As such, the following factual summary is derived
from the evidentiary record created by affidavits and exhibits submitted contemporaneously with
Defendant’s motion for summary judgment [Docs. 27-1, 27-2, 27-3].
2

The Hawkins County Jail has a kiosk system where an inmate can communicate online
with correctional staff and medical staff [Doc. 27-1 at ¶ 27]. Although several requests and
grievances related to his vision were submitted, Lt. Gallion responded to two (2) requests and
two (2) grievances regarding this matter; the other requests and grievances were handled by other
jail house employees [Id. at ¶ 28].
On July 14, 2014, Plaintiff filed a grievance through the jail kiosk system complaining
that he had not been given an eye exam as he had previously requested [Id. at 27]. Lt. Gallion
responded by saying:
Mr. Cash, have you been seen by the doctor? If the doctor deems that it is an
emergency or medically necessary, he will advise and have an appointment made
for you to see an eye doctor. If he does not feel that it is medically necessary,
then you will not be sent.
[Id.].
On August 4, 2014, Plaintiff filed a request through the jail’s online kiosk system stating
that he was having “serious eye problems” and was told “this facility doesn’t fund eye care” [Id.
at 19]. Plaintiff requested to be transferred to a facility that funds eye care [Id.]. Lt. Gallion
responded to Plaintiff by saying:
Mr. Cash, have you been examined by the doctor? If the doctor determines that
your need is an emergency or medically necessary he will order it. If it is a vision
problem that does not constitute an emergency, he will not order it.
[Id.].

On August 12, 2014, Plaintiff filed a request through the jail’s online kiosk

system complaining that he had “been trying to see the doctor so [he] can get some
glasses” and requested to be transferred to a facility that funds eye care [Id. at 20]. Lt.
Gallion responded to Plaintiff by saying:
Mr. Cash, if there is a medical necessity or an emergency situation concerning
your eyes it will be treated. As far as you getting shipped out, you know the deal.
The state calls us when they have available beds. Then we look at sentence and
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special needs to decide who goes. In almost two years I can only recall three
times the state has called, it doesn’t happen very often.
[Id.].
On October 9, 2014, Plaintiff filed a grievance through the jail’s online kiosk system
complaining that he has not been given an eye exam [Id. at 30]. Lt. Gallion responded by
saying:
Mr. Cash, I have always advised you that if the Doctor said you needed to see an
eye doctor that we would send you to an eye doctor. But as far as purchasing you
a pair of eye glasses, I advised you that we were not going to purchase eye
glasses.
[Id.].
Hawkins County contracted with Southern Health Partners (“SHP”) to provide medical
care to inmates at the Hawkins County Jail [Doc. 27-1 at ¶ 26]. At the time of Plaintiff’s alleged
denial of medical treatment, Lt. Gallion was the jail administrator of the Hawkins County Jail
[Doc. 29 at ¶ 3]. Lt. Gallion had no involvement with whether Plaintiff, or any other inmate, is
seen by SHP’s medical staff [Id. at ¶ 5].
According to Plaintiff’s medical records, he saw Dr. Mathews on September 22, 2014
[Doc. 27-2 at ¶ 4]. During that visit, Plaintiff reported that he “can’t see TV or read a book”
[Doc. 27-2 ¶ at 4; Doc. 29 at ¶ 7]. He also reported constant headaches [Doc. 27-2 at ¶ 4; Doc.
29 at ¶ 7]. He told Dr. Mathews that he has glasses at home or in his car, but that his family
cannot find them [Doc. 27-2 at ¶ 4; Doc. 29 at ¶ 7]. Dr. Mathews noted on the Progress Notes:
“Needs Glasses.” [Doc. 27-2 at ¶ 4; Doc. 29 at ¶ 7]. According to Dr. Mathews, this notation of
“Needs Glasses” was based on Plaintiff’s subjective complaints [Doc. 27-2 at ¶¶ 4-6; Doc. 29 at
¶ 8]. Dr. Mathews did not make any objective findings [Doc. 27-2 at ¶¶ 4-6; Doc. 29 at ¶ 8]. Dr.
Mathews denies Plaintiff’s allegation that Plaintiff was ordered an “emergency eye exam” by Dr.

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Mathews [Doc. 27-2 at ¶¶ 4-6; Doc. 29 at ¶ 8]. Dr. Mathews declared that he did not order
Plaintiff be referred to an eye specialist-- on an emergency basis or otherwise [Doc. 27-2 at ¶¶ 46; Doc. 29 at ¶ 8].
In addition, Plaintiff’s medical records contain a notation from a nurse which states that
Plaintiff was offered reading glasses but turned down the offer “because they do not help” [Doc.
27-2 at ¶ 7; Doc. 29 at ¶ 9]. However, just five days before his visit with Dr. Mathews, Plaintiff
represented to the Court in his previous lawsuit, by means of letter, that his “eye sight has gotten
so bad, [he’s] having [his] cell-mate write this letter for [him]” [Doc. 29 at ¶ 10; Doc. 8 p 39 in
Cash v. Gallion, et al., No. 2:14-CV-240-JRG-CLC]. It was later admitted in his answered
requests for admission in Cash, No. 2:14-CV-240-JRG-CLC, that Plaintiff did, in fact, write the
letter himself to the Court [Doc. 27-3; Doc. 29 ¶ 11]. Plaintiff’s explanation for the discrepancy
is that a cell mate wrote the first draft of the letter, but the handwriting was so sloppy that
Plaintiff borrowed glasses from another inmate and rewrote the letter himself [Doc. 27-3 p. 5].
II.

STANDARD
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “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). The motion can be limited to a
single claim or part of each claim and the moving party bears the burden of establishing that no
genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986);
Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). Summary judgment is proper
where “the pleadings, depositions, answers to interrogatories, admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

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All facts and all inferences to be drawn therefrom must be viewed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002). “Once the moving party
presents evidence sufficient to support a motion under Rule 56, the non-moving party is not
entitled to a trial merely on the basis of allegations.” Curtis Through Curtis v. Universal Match
Corp., Inc., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Catrett, 477 U.S. at 317). To
establish a genuine issue as to the existence of a particular element, the non-moving party must
point to evidence in the record upon which a reasonable finder of fact could find in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be
material; that is, it must involve facts that might affect the outcome of the suit under the
governing law. Id.
The Court’s function at the point of summary judgment is limited to determining whether
sufficient evidence has been presented to make the issue of fact proper for the factfinder. Id. at
250. The Court does not weigh the evidence, determine the truth of the matter, id. at 249, or
search the record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). “The inquiry performed is the
threshold inquiry of determining whether there is a need for a trial—whether, in other words,
there are any genuine factual issues that properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either party.” Liberty Lobby, Inc., 477 U.S. at 250.
III.

Analysis
Lt. Gallion argues that he is entitled to qualified immunity on the claims presented

against him in this matter. “Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or

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constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. Al-Kidd, 563 731, 735 (2011) (citation omitted); Saucier v. Katz, 533 U.S.
194, 201-02 (2001), abrogated in part, Pearson v. Callahan, 555 U.S. 223, 236 (2009).
Qualified immunity is an affirmative defense3, and once raised, the plaintiff must show that the
official violated a right so clearly established that a “reasonable official would have understood
that what he [was] doing violate[d] that right.” Al-Kidd, 563 U.S. at 741 (internal citation and
quotations omitted). The plaintiff bears the ultimate burden of proof, Garretson v. City of
Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) (citation omitted) and if the plaintiff fails to
carry his burden as to either element of the qualified immunity analysis, then the official is
immune from suit, Cockrell v. City of Cincinnati, 468 F.App’x 491, 494 (6th Cir. 2012).
A.

Deliberate Indifference Standard

As part of its prohibition of “cruel and unusual punishment,” the Eighth Amendment
imposes duties on prison officials to provide humane conditions of confinement and to ensure
that inmates receive adequate food, clothing, shelter, and medical care. Farmer v. Brennan, 511
U.S. 825, 832 (1994). In short, officials must “take reasonable measures to guarantee the safety
of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). The Eighth Amendment
prohibition against mistreatment only arises, however, if it is tantamount to “punishment,” and
courts have consequently imposed liability upon prison officials only where they are “so
deliberately indifferent to the serious medical needs of prisoners as to unnecessarily and
wantonly inflict pain.” Horn v. Madison Cty. Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994).
Therefore, a prison official’s “deliberate indifference” to a “substantial risk of serious harm” to
an inmate violates the Eighth Amendment. Farmer, 511 U.S. at 828.

3

Lt. Gallion pleaded qualified immunity in his answer [Doc. 11at ¶ 5].
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The Supreme Court has established that “deliberate indifference” in this context is
equivalent to a criminal recklessness standard. See Farmer, 511 U.S. at 829 (explaining that the
official must have been subjectively aware of the risk to the inmate in order to have been
deliberately indifferent); Perez v. Oakland Cty., 466 F.3d 416, 423 (6th Cir. 2006) (“Negligence
or medical malpractice alone cannot sustain an Eighth Amendment claim, absent a showing of
deliberate indifference.”). It is not necessary, however, for the plaintiff to demonstrate that the
official acted “for the very purpose of causing harm or with knowledge that harm will result.”
Farmer, 511 U.S. at 835.
“[A] prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety.” Id. at 837. Thus, “deliberate indifference” has both an
objective and a subjective component. Perez, 466 F.3d at 423-24; Johnson v. Karnes, 398 F.3d
868, 874 (6th Cir. 2005). In other words, “the official must both be aware of acts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Perez, 466 F.3d at 423-24; see also, Comstock v. McCrary, 273 F.3d 693, 703 (6th
Cir. 2001) (stating that a plaintiff must produce evidence showing “that the official being sued
subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact
draw the inference, and that he then disregarded that risk”).
With regard to the objective component, and thereby what qualifies as a “substantial risk
of serious harm,” the Sixth Circuit has repeatedly held that only inmates’ serious medical needs
mandate attention under the Eighth Amendment. Perez, 466 F.3d at 423. A “serious medical
need” is “one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person could easily recognize the necessity for a doctor’s attention.”

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Blackmore v. Kalamazoo Cty., 390 F.3d 890-897 (6th Cir. 2004); see Perez, 466 F.3d at 423-24
(“In cases involving an inmate’s medical needs, the need ‘must be, objectively, sufficiently
serious.’”). (quoting Farmer, 511 U.S. at 834).
“An 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 Cty., 238 F.3d 739, 742 (6th
Cir. 2001) (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994)).
If the plaintiff cannot establish the detrimental effect of delay in treatment, then he fails to satisfy
the objective prong under Perez. 466 F.3d at 423-24; see also Doe v. Sullivan Cty., 956 F.2d
545, 550 (6th Cir. 1992), cert. denied, 506 U.S. 864 (1992) (holding that proximate causation is
an essential element of a § 1983 claim for damages).
As to the subjective component, courts should analyze this prong “in light of the prison
authorities’ current attitudes and conduct.” Smith v. Cty. Of Lenawee, 505 F. App’x 526, 532 (6th
Cir. 2012); see Miller v. Calhoun Cty., 408 F.3d 803, 813 (6th Cir. 2005) (finding that the
subjective prong requires that an official possessed “a sufficiently culpable state of mind in
denying medical care”). “Where a prisoner has received some medical attention and the dispute
is over the adequacy of the treatment, federal courts are generally reluctant to second guess
medical judgment and to constitutionalize claims which sound in state tort law.” Westlake v.
Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). If the inmate received “grossly inadequate care”
accompanying “a decision to take an easier but less efficacious course of treatment,” however,
this may amount to deliberate indifference. Terrance v. Northville Reg’l Psychiatric Hosp., 286
F.3d 834, 843 (6th Cir. 2002) (quoting McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.
1999)). In order to qualify as “grossly inadequate care,” the medical treatment must have been

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“so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.” Id. at 844 (quoting Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir,
1989)).
B.

Application

Here, based on the record before the Court and relevant case law described herein, the
Court finds that Lt. Gallion did not violate Plaintiff’s constitutional rights under the Eighth
Amendment and therefore is entitled to qualified immunity.
Plaintiff has failed to establish the objective component required for a deliberate
indifference claim, as Plaintiff has not provided any evidence to support that the delay in medical
treatment- or inadequacy of medical treatment- had a detrimental effect. See Napier, 238 F.3d at
742 (determining that a plaintiff fails to satisfy the objective prong of deliberate indifference if
he cannot establish the detrimental effect of delay). The declaration of Dr. Mathews [Doc. 27-2]
leads this Court to the contrary conclusion. When Plaintiff saw Dr. Mathews, he complained of
vision trouble and headaches [Doc. 27-2 at ¶¶ 4-7]. He told Dr. Mathews that he has glasses at
home or in his car, but his family could not find them [Doc. 27-2 at ¶ 4]. Dr. Mathews’ note for
needing glasses was based solely on Plaintiff’s subjective complaints and not his own objective
findings [Doc. 27-2 at ¶¶ 7,8].

Additionally, when the Court focuses on Plaintiff’s

communication of his need for glasses to Lt. Gallion, it cannot conclude that this is an injury that
a layperson would readily discern as requiring prompt medical attention. Thus, without the
required “verifying medical evidence” in the record to establish the detrimental effect of the
delay in medical treatment, this Court cannot conclude that that Plaintiff suffered from a serious
medical need.

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Moreover, Plaintiff has failed to establish the subjective component for a claim of
deliberate indifference by failing to show Lt. Gallion possessed a sufficiently culpable state of
mind in denying medical care. Dr. Mathews did not order an emergency eye exam nor did he
refer Plaintiff to an eye specialist [Doc. 27-2 at ¶¶ 4-6]. Lt. Gallion’s responses to Plaintiff’s
requests and grievances fail to show he acted in a “criminally reckless manner”. See Farmer,
511 U.S. at 839-4.
Under the first prong of the qualified immunity test, Plaintiff failed to establish his
constitutional rights have been violated because he failed to meet either the objective or
subjective components of a deliberate indifference claim. Based on this finding the Court does
not reach the second prong of the qualified immunity test.
IV.

Failure to Respond in Opposition to Motion for Summary Judgment
As an alternative basis for dismissal, the Court notes that it may properly dismiss a case

for want of prosecution. See, e.g., Custom v. Detroit Edison Co., 789 F.2d 377, 379 (6th Cir.
1986); Fed. R. Civ. P. 41(b). Failure to respond or otherwise oppose a motion operates as both a
waiver of opposition to and an independent basis for granting the unopposed motion. See, e.g.,
Notredan, LLC v. Old Republic Exch. Facilitator Co., 531 F. App’x 567, 569 (6th Cir. 2013); see
also E.D. Tenn. L.R. 7.2 (“Failure to respond to a motion may be deemed a waiver of any
opposition to the relief sought.”).
More than nine months have passed since Lt. Gallion filed the instant motion for
summary judgment on May 12, 2016 [Doc. 27]. Plaintiff has not responded and, by way of the
same, is found to have waived opposition to Lt. Gallion’s request. Millworks Construction, LLC
v. Environmental, Safety & Health, Inc., No. 3:12-CV-177, 2015 WL 11019129, at *1–2 (E.D.
Tenn. Mar. 23, 2015). As a result, the motion will be granted.

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V.

CONCLUSION
For these reasons, Defendant, Lt. Gallion’s motion for summary judgment [Doc. 27] will

be GRANTED and he will be DISMISSED from this action.
SO ORDERED.

s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE

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