Colson v. City of Alcoa, Tennessee et al (RLJ2)

Filing 206

MEMORANDUM OPINION. Signed by District Judge R Leon Jordan on 9/17/20. (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE

ANNISSA COLSON,

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Plaintiff,
v.
CITY OF ALCOA, el al.,
Defendants.

No. 3:16-CV-377

MEMORANDUM OPINION
This civil action is before the Court for consideration of the motion for summary
judgment filed by Defendant Jennifer Russell (“Nurse Russell”).1 [Doc. 131]. Plaintiff has
responded [Doc. 163], and Nurse Russell has replied [Doc. 170]. Oral argument is
unnecessary, and the motion is ripe for the court’s determination.
Plaintiff has filed suit pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 1988,
alleging, violations of her constitutional rights under the Fourth, Eighth, and Fourteenth
Amendments. Plaintiff also raises claims under Tennessee law for assault and battery,
negligence, and intentional infliction of emotional distress. For the reasons below, the
motion will be DENIED.
I.

BACKGROUND

1

In the motion for summary judgment, Defendant indicates her name has changed to “Jennifer
McBride” as she has gotten married since the beginning of this case. [Doc. 133, p. 1]. While the
Court acknowledges her name change, she is still in the case heading as “Jennifer Russell.” Thus,
to maintain continuity in the proceedings, the Court will refer to her as “Nurse Russell.”

In its memorandum opinion addressing the summary judgment motion filed by the
City Defendants [Doc. 186], the Court provided an exhaustive account of the video
evidence in this matter. The Court will not reiterate that background again but incorporates
the section of that memorandum opinion labeled “Body Camera Video,” as if contained
herein.
Plaintiff initially raised the following claims against Nurse Russell:
 Claim 4 – Excessive Force & Cruel & Unusual Punishment;
 Claim 9 – Failure to Provide Adequate Medical Care;
 Claim 10 – Failure to Protect;
 Claim 12 – Intentional Infliction of Emotional Distress; and
 Claim 13 – Negligence.
[Doc. 1]. In November 2016, Nurse Russell filed a motion to dismiss. [Doc. 27]. In
response, Plaintiff abandoned all of her claims against Nurse Russell except for Claim 9 –
Failure to Provide Adequate Medical Care. [Doc. 44, p. 2]. In light of Plaintiff’s
abandonment, the Court granted Nurse Russell’s motion to dismiss Claims 4, 10, 12, and
13 but denied dismissal as to Claim 9. [Doc. 65].
As to Claim 9, the Court concluded that, as Plaintiff had established a viable claim
under the Eighth Amendment, Nurse Russell was unable to adequately raise a qualified
immunity defense at that time. [Id. at 11-12] The Court also noted that “the earliest possible
point at which a court should address qualified immunity is usually summary judgment.
[Id. at 11] (internal quotation omitted). Nurse Russell now seeks summary judgment on the
remaining claim against her: Claim 9.

II.

STANDARD OF REVIEW
Nurse Russell’s motion is brought pursuant to Federal Rule of Civil Procedure 56,

which governs summary judgment. Rule 56(a) provides in pertinent part: “The court shall
grant summary judgment 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 procedure set out in Rule 56(c) requires that “[a] party asserting that a fact
cannot be or is genuinely disputed must support the assertion[.]” Fed. R. Civ. P. 56(c)(1).
This can be done by citation to materials in the record, which include depositions,
documents, affidavits, stipulations, and electronically stored information. Fed. R. Civ. P.
56(c)(1)(A). Additionally, a party may “show[] 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)(B).
After the moving party has carried its initial burden of showing that there are no
genuine issues of material fact in dispute, the burden shifts to the non-moving party to
present specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of
a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992)
(quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). Moreover, mere
conclusory and unsupported allegations, rooted in speculation, are insufficient to meet this
burden. Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003).
To defeat a motion for summary judgment, the non-moving party must present
probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986). The non-moving party’s evidence is to be believed, and all justifiable
inferences are to be drawn in that party’s favor. Id. at 255. The court determines whether
the evidence requires submission to a jury or whether one party must prevail as a matter of
law because the issue is so one-sided. Id. at 251-52.
III.

ANALYSIS

Claim 9 – Failure to Provide Adequate Medical Care
Nurse Russell raises three issues in her motion for summary judgment: 1) whether
the claim against Nurse Russell alleging deliberate indifference regarding Plaintiff’s knee
injury should be dismissed, 2) whether any claim against Nurse Russell alleging deliberate
indifference regarding Plaintiff’s alleged panic attack should be dismissed, and 3) whether
all claims against Nurse Russell in Claim 9 should be dismissed under the doctrine of
qualified immunity. [Doc. 133, p. 7].
1. Deliberate Indifference Regarding Plaintiff’s Knee Injury
To establish deliberate indifference, Ms. Colson has to muster evidence to create a
material factual dispute as to two components, one objective and one subjective. Farmer
v. Brennan, 511 U.S. 825, 834 (1994); Baynes v. Cleland, 799 F.3d 600, 618 (6th Cir. 2015).
The objective component requires evidence showing that Ms. Colson had a serious medical
need, which means “one that is so obvious that even a lay person would easily recognize
the necessity for a doctor’s attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008)
(quotation omitted). The subjective component requires evidence showing that Nurse
Russell (1) knew of and (2) disregarded a substantial risk to Ms. Colson’s health. Farmer,
511 U.S. at 840–47.

Nurse Russell first argues that Plaintiff cannot carry her burden under the objective
component. Nurse Russell avers that Plaintiff cannot show that she had a serious medical
need that would be “so obvious that even a layperson would easily recognize the necessity
for a doctor’s attention.” [Doc. 133, p. 9]. Plaintiff responds that she has produced evidence
“of falling down multiple times because she could not bear weight on her knee and not
tolerating even a perfunctory examination of her knee make a threshold showing of
deliberate indifference.” [Doc. 163, p. 1].
The Court has already found that Plaintiff has identified more than enough evidence
establishing genuine issues of material fact in the record as to whether her injury would
have been obvious to a layperson. [Doc. 105, p. 31]. The Court also determined that there
is “conflicting evidence” regarding Plaintiff’s knee injury which require a jury’s
deliberation to determine the objective component of the deliberate indifference test.2 [Id.
at 25-26]. Nothing Nurse Russell has brought before the Court in the motion for summary
judgment memorandum [Doc. 133] or reply brief [Doc. 170] changes the Court’s analysis
and conclusions regarding the objective component to the deliberate indifference test
previously set forth. [Doc. 105, pp. 23-31].
Nurse Russell also argues that Plaintiff cannot meet her burden under the subjective
component as Plaintiff cannot show that Nurse Russell knew “about the acuity of the knee
pop which occurred in the scuffle with Officer Wilson.” [Doc. 133, p. 11]. Nurse Russell

2

The Court specifically noted the evidence of Plaintiff’s “repetitious complaints about knee pain,
her screams, and her intermittent ability to remain standing” is more than enough to establish
genuine issues of material fact in the record. [Doc. 105, p. 25].

relies on the proof adduced in the depositions to show that she did not know anything about
Plaintiff’s knee audibly popping. [Id.]. Plaintiff responds that the video evidence
contradicts Nurse Russell’s assertion that she did not know about the knee pop. [Doc. 163,
p. 4]. The video evidence does show Plaintiff speaking to Nurse Russell, pointing to her
knee, and stating that she had never heard it pop so much in her life. [Doc. 105, p. 6 (citing
Cook VieVu 20:12:02-25)]. Further, Nurse Russell was called into the room because
Plaintiff complained about her knee and was having trouble standing and walking. [Id.].
As there is conflicting evidence regarding whether Nurse Russell knew of Plaintiff’s knee
injury, the Court cannot grant summary judgment as to the subjective component to the
deliberate indifference test.
Nurse Russell further argues that Plaintiff cannot show that any delay in medical
treatment was the proximate cause of injury or medical detriment to Plaintiff. However, as
the Court has previously noted, in cases where the evidence shows that the injury was
obvious, this argument is meritless. [Doc. 105, p. 30, n. 17 (quoting Blackmore v.
Kalamazoo County, 390 F.3d 890, 898 (6th Cir. 2004) (“[T]he ‘verifying medical evidence’
requirement is relevant only to those claims involving . . . non-obvious complaints of a
serious need for medical care.”)).
As there are genuine issues of material fact regarding Plaintiff’s deliberate
indifference claim to Nurse Russell, the Court cannot grant summary judgment as to this
claim. A jury has to consider Ms. Colson’s claim under the Eighth Amendment.
2. Deliberate Indifference Regarding Plaintiff’s Panic Attack

Nurse Russell states that “[i]t is unclear whether Plaintiff attempted to plead a claim
against Nurse [Russell] for Ms. Colson’s alleged panic attack.” [Doc. 133, p. 14]. In her
response, Plaintiff states that she “makes no claim for failure to provide medical care in
[r]elation to her panic attack.” [Doc. 163, p. 1, n. 2]. As Plaintiff has clarified that she has
not brought a cause of action against Nurse Russell for the panic attack, the Court will
DENY Nurse Russell’s motion for summary judgment on that portion of Claim 9 as
MOOT.
3. Qualified Immunity
As the Sixth Circuit has established, “Plaintiff bears the burden of showing that
defendants are not entitled to qualified immunity.” Chappell v. City of Cleveland, 585 F.3d
901, 907 (6th Cir. 2009). “Plaintiff must show both that, viewing the evidence in the light
most favorable to her, a constitutional right was violated and that the right was clearly
established at the time of the violation.” Id. Nurse Russell focuses her argument solely on
the first prong and does not argue the second prong of this test. [Doc. 133, p. 17].
Nurse Russell relies on her arguments regarding deliberate indifference addressed
above to show that she was not deliberately indifferent to a substantial risk of serious harm
to Plaintiff. [Id.]. As the Court has already determined above that there are genuine issues
of material fact to where a reasonable jury could find that Nurse Russell was deliberately
indifferent as to Plaintiff’s knee injury, the Court declines to grant summary judgment
based on qualified immunity.3 See Bass v. Robinson, 167 F.3d 1041, 1051 (6th Cir. 1999)

3

As Nurse Russell does not argue that the right violated was clearly established, the Court will not
address the second prong of the qualified immunity test here. However, the Court notes that it has

(“We . . . hold that Defendants are not entitled to qualified immunity on this claim because
a question of fact exists[.]” (citation omitted)). Plaintiff has established enough evidence
of a plausible claim under the Eighth Amendment for inadequate medical care. See Grose
v. Caruso, 284 F. App’x 279, 284 (6th Cir. 2008) (“[I]t is well-settled that lack of proper
medical treatment can constitute an Eighth Amendment violation.” (citations omitted)).
Further, the Court has previously determined that the question of whether Nurse Russell’s
statement, “I don’t see no swelling,” even amounts to a medical opinion or
recommendation is a genuine issue of material fact for a jury. [Doc. 105, p. 28].
As there are genuine issues of material fact, the Court will DENY summary
judgment on Count 9 as to Nurse Russell.
IV.

CONCLUSION
Accordingly, for the reasons stated herein, Nurse Russell’s motion for summary

judgment [Doc. 131] will be DENIED. An order consistent with this opinion will be
entered.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge 

previously determined that a pretrial detainee has a clearly established right to receive adequate
medical care. [Doc. 202, p. 13].