Newberry v. Melton et al

Filing 82

REPORT AND RECOMMENDATION The undersigned finds that genuine issues of material fact exist as to whether Plaintiff received any medical treatment during or for some of his seizures and/or resulting injuries. The undersigned therefore recommends t hat the Deck Defendants' Motion for Summary Judgment (Docket No. 44 ) be DENIED. Signed by Magistrate Judge Jeffery S. Frensley on 1/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NORTHEASTERN DIVISION

JACK NEWBERRY,
Plaintiff,
v.
SHERIFF W.B. MELTON, et al.,
Defendants.

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Case No. 2:14-cv-00024
Judge Sharp / Frensley

JURY DEMAND

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon a Motion for Summary Judgment filed by
Defendants Debbie Deck and Ashley Deck (“Deck Defendants”). Docket No. 44. In support of
their Motion, the Deck Defendants have filed the Declaration of Debbie Deck (Docket No. 44-1),
Deposition of Debbie Deck (Docket No. 44-2), Deposition of Ashley Deck (Docket No. 44-3),
Declaration of Janet Stephens (Docket No. 44-4), Plaintiff’s Jail medical records (Docket No. 741), and excerpts from the Deposition of Nicholas Franklin (Docket No. 74-2).
Plaintiff, who is represented by counsel, has filed a Response in Opposition to the Deck
Defendants’ Motion for Summary Judgment (Docket No. 65) that is supported by a
Memorandum of Law (Docket No. 66), a Response to the Deck Defendants’ Statement of
Undisputed Facts (Docket No. 67), Plaintiff’s own Statement of Material Facts (Docket No. 69),
the Declaration of Jack Newberry (“Plaintiff’s Dec.”) (Docket No. 66-1, p. 138-39), and
numerous other exhibits, including excerpts from the Depositions of Debbie Deck (Docket No.
66-1, p. 15-23), Ashley Deck (Docket No. 66-1, p. 24-30), W.B. Melton (Docket No. 66-1, p. 35-

43), Patricia Hensley (Docket No. 66-1, p. 44-50), Ethan Bean (Docket No. 66-1, p. 51-57),
Nicholas Franklin (Docket No. 66-1, p. 59-69), Travis Melton (Docket No. 66-1, p. 70-80),
Thurman Bolinger (Docket No. 66-1, p. 81-88), Justin Due (Docket No. 66-1, p. 89-94), Donnie
Allred (Docket No. 66-1, p. 95-103), Lisa Copeland (Docket No. 66-1, p. 104-09), Christy Beed
(Docket No. 66-1, p. 110-15), and Jack Newberry (Docket No. 66-1, p. 127-35).
The Deck Defendants have filed a Reply (Docket No. 76) and a Response to Plaintiff’s
Statement of Material Facts (Docket No. 75).
Plaintiff, who is epileptic, filed his Amended Complaint in this action pursuant to 42
U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs
by, inter alia, (1) not providing him with his anti-seizure medication for the first month of his
incarceration; (2) not providing him with his oral potassium supplement pills; (3) not providing
any assistance or stabilization for him during his seizures; (4) not providing first aid or other
medical attention to Plaintiff’s gashes, scrapes, bruising, black eyes, concussion, strained
ligaments, and other injuries incurred during his seizures; and (5) and not sending Plaintiff for
examination by a physician who could ascertain why his seizures were increasing in frequency,
intensity, and duration, in violation of his Fourth, Eighth, and Fourteenth Amendment rights.
Docket No. 26. Plaintiff sues Overton County, Tennessee as the entity responsible for the
remaining named Defendants’ actions in their official capacities, and he sues the remaining
named Defendants in their individual capacities as well. Id.1 Plaintiff contends that his seizures
continued until he transitioned to the Bledsoe County Correctional Facility, where he was
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Overton County, Tennessee was added as a Defendant in Plaintiff’s Amended
Complaint. See Docket No. 26. It does not appear, however, that Overton County, Tennessee
has been served, nor has anyone made an appearance or filed anything on its behalf.
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immediately permitted to see a physician who changed his medication. Id. Plaintiff seeks
compensatory and punitive damages in an amount to be determined at trial, as well as “an order
compelling Overton County to comply with Tennessee Corrections Institute and American
Correctional Association standards regarding medical treatment of inmates and to properly train
personnel and revamp its policies with regard to medical care for inmates,” reasonable attorney’s
fees, costs, and other further relief as the Court deems just and proper. Id.
The Deck Defendants filed their Motion for Summary Judgment and supporting materials
arguing that the undisputed evidence shows that “they provided extensive and ongoing care” to
Plaintiff, “under a doctor’s supervision and in accordance with the doctor’s orders.” Docket No.
45. Specifically, the Deck Defendants maintain that they, as “licensed practical nurses,
administered anti-seizure medications as ordered by the doctor, obtained blood samples for
testing, monitored [Plaintiff’s] condition, and provided basic nursing care.” Id. They further
argue that a prisoner has a right to medical care, but not necessarily the type or scope of medical
care that he wants, and therefore that Plaintiff’s “disagreement over the adequacy of the care is
not a valid basis for a deliberate indifference claim.” Id. They add that Plaintiff’s contention that
they should have provided him more or better care was a contention to be made in a state law
medical malpractice claim, not a deliberate indifference claim. Id. The Deck Defendants also
argue that it is “significant that they acted under the direction of a medical doctor who served as
Medical Director at the jail,” because “a person who knows that a prisoner is under the care of a
professional with superior medical training is generally entitled to defer to that treatment,” such
that nurses are generally “broadly shielded from liability for deliberate indifference where the
nurse deferred to a doctor’s course of treatment.” Id.
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Plaintiff responds that he is an epileptic under a physician’s care. Docket No. 66. He
contends that the Deck Defendants knew that he had this serious medical condition and were
under an obligation to offer him medical care. Id. Plaintiff argues that, although the Deck
Defendants cite to the parts of the record where they responded to one of Plaintiff’s seizures,
three of Plaintiff’s former cellmates testified that the Deck Defendants either did not come to the
aid of Plaintiff during many of his seizure episodes or did not treat Plaintiff for many of his
seizure episodes. Id., citing Franklin Dep., p. 8; Melton Dep., p. 9; Bollinger Dep., p. 8. Plaintiff
argues that the Deck Defendants cannot rely upon the fact that they were acting under the
direction of a medical doctor or relying on that doctor’s orders, because several witnesses
testified that the Deck Defendants failed to respond when called. Id. Plaintiff maintains that
nurses cannot be said to reasonably rely on a doctor’s orders where they fail to attend to an
inmate experiencing a medical emergency such as a seizure. Id. Plaintiff clarifies that his
“contention is not that he should have received better care or different care, only that he should
have received some care during the times he experienced seizures and the nurses failed to do
anything in response to the seizures.” Id. (emphasis original).
The Deck Defendants, in their Reply, argue that the cellmates’ testimony “does nothing”
to satisfy Plaintiff’s burden of proof. Docket No. 76. They contend:
[E]ven evidence indicating gross medical negligence cannot satisfy
the subjective component of a deliberate indifference claim. In this
case, the undisputed evidence shows that the plaintiff had the
ability to see a doctor upon request, that he visited with a doctor
several times during his incarceration, and that the doctor
prescribed him medications, including anti-seizure medication.
The undisputed evidence shows that Debbie Deck and Ashley
Deck, as licensed practical nurses, followed the doctor’s orders.
They administered anti-seizure medications as ordered by the
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doctor, monitored [Plaintiff’s] condition, and provided basic
nursing care. As a matter of law, [Plaintiff’s] disagreement with
the quality of care they provided is not a valid basis for a deliberate
indifference claim.
Id.
For the reasons set forth below, the undersigned finds that genuine issues of material fact
exist as to whether Plaintiff received any medical treatment during or for some of his seizures
and/or resulting injuries. The undersigned therefore recommends that the Deck Defendants’
Motion for Summary Judgment (Docket No. 44) be DENIED.
II. Law and Analysis
A. Motion for Summary Judgment
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and 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 a judgment as a matter of law.” A dispute is “genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
In order to prevail on a Motion for summary judgment, the moving party must meet the
burden of proving the absence of a genuine issue as to material fact concerning an essential
element of the opposing party’s claim. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553, 91 L. Ed. 2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). In determining whether the moving party has met its burden, the Court must view the
evidence in the light most favorable to the nonmoving party. Matsushita Electric Indus. Co. v.

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Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Fed. R. Civ. P. 56 provides that the nonmoving party may not rest upon the mere
allegations or denials of his or her pleading, but his or her response, by affidavits or otherwise,
must set forth specific facts showing that there is a genuine issue for trial. If a nonmoving party,
however, 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, there is no genuine
issue as to any material fact because a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex, 477 U.S. at
322-23, 106 S. Ct. at 2552, 91 L. Ed. 2d at 273. When this occurs, the moving party is entitled to
summary judgment as a matter of law. Id. at 322-23, 106 S. Ct. at 2552; Williams v. Ford Motor
Co., 187 F.3d 533, 537-38 (6th Cir. 1999).
B. 42 U.S.C. § 1983
1. Generally
Plaintiff alleges violations of his Fourth, Eighth, and Fourteenth Amendment rights
pursuant to 42 U.S.C. § 1983. See Docket Nos. 1, 26. Section 1983 provides, in part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress...
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged

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deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48, 108 S. Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct.
1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams,
474 U.S. 327, 330-331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)); Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). The traditional definition of
acting under color of state law requires that the defendant in a § 1983 action have exercised
power “possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” Id. at 49, 108 S. Ct. 2255, quoting United States v. Classic, 313
U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941).
2. Eighth Amendment
a. Generally
The Eighth Amendment provides that:
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
U.S. Const. amend. VIII.
The United States Supreme Court has held that the constitutional prohibition of “cruel
and unusual punishments” forbids punishments that are incompatible with “the evolving
standards of decency that mark the progress of a maturing society,” or which “involve the
unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct.
285, 290, 50 L. Ed. 2d 251 (1976) (citations omitted).
In order to establish an Eighth Amendment claim, an inmate must satisfy a two-prong
test: (1) the deprivation alleged must be objectively serious; and (2) the official responsible for

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the deprivation must have exhibited deliberate indifference to the inmate’s health or safety.
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994).
b. Deliberate Indifference To Serious Medical Needs
The State has a constitutional obligation, under the Eighth Amendment, to provide
adequate medical care to those whom it has incarcerated. Estelle, 429 U.S. at 104, 97 S. Ct. at
291.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle, 429
U.S. at 104. This is true “whether the indifference is manifested by prison doctors in their
response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05.
Not every prisoner’s allegation of inadequate medical treatment, however, is a violation
of the Eighth Amendment. Estelle, 429 U.S. at 105. For instance, courts have held that the
accidental, inadvertent, or negligent failure to provide adequate medical care does not state such
a claim. Id. at 105-06 (citations omitted).
Pursuant to Supreme Court precedent, the Sixth Circuit held, in Hunt v. Reynolds, that
Eighth Amendment deliberate indifference claims must contain both an objective component,
“that [plaintiff’s] medical needs were sufficiently serious,” and a subjective component, “that the
defendant state officials were deliberately indifferent to the plaintiff’s needs.” 974 F.2d 734, 735
(6th Cir. 1992) (citations omitted).
In order to satisfy the objective requirement, the Supreme Court requires that an inmate
demonstrate evidence of a current harm or evidence of a medical complaint or condition of
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confinement that “is sure or very likely to cause serious illness and needless suffering.” Helling
v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993). Under the Eighth
Amendment, inmate plaintiffs, must allege, at the very least, unnecessary pain or suffering
resulting from prison officials’ deliberate indifference. Id. (prisoner alleging that he suffered
pain and mental anguish from delay in medical care states a valid Eighth Amendment claim).
As for the subjective element, the Sixth Circuit has held that “a determination of deliberate
indifference does not require proof of intent to harm.” Weeks v. Chaboudy, 984 F.2d 185, 187
(6th Cir. 1993). There must, however, be a showing of deliberate indifference to an inmate’s
serious medical needs. Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988) (citing
Westlake v. Lucas, 537 F. 2d 857, 860 n. 3 (6th Cir. 1976)). In fact, “[k]nowledge of the asserted
serious needs or of circumstances clearly indicating the existence of such needs, is essential to a
finding of deliberate indifference.” Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th
Cir. 1994) (citations omitted). The inquiry, therefore, according to the Sixth Circuit, is “[w]as this
individual prison official aware of the risk to the inmate’s health and deliberately indifferent to
it?” Thaddeus-X, 175 F.3d at 402 (citing Farmer v. Brennan, 511 U.S. 825, 837, 844, 114 S. Ct.
1970, 1979, 1982-83, 128 L. Ed. 2d 811 (1994)).
C. The Case at Bar
As an initial matter, the Deck Defendants are correct in their assertion that a prisoner has
a right to adequate medical care, but not necessarily the type or scope of medical care that he
wants. See, e.g., Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011). In the instant
action, however, that assertion is misplaced, because Plaintiff has made clear that his “contention
is not that he should have received better care or different care, only that he should have received
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some care during the times he experienced seizures and the nurses failed to do anything in
response to the seizures.” Docket No. 66 (emphasis original). The distinction between claims of
no treatment and claims of inadequate treatment is a fundamental one (see, e.g, Westlake v.
Lucas, 537 F.2d 857, 860, n. 5 (6th Cir. 1976)), and one that is central to the case at bar.
A review of the Declarations and Depositions submitted by the Deck Defendants and by
Plaintiff establishes that genuine issues of material fact exist with regard to, inter alia, whether
the Deck Defendants responded every time they were summoned for Plaintiff’s seizures and/or
resulting injuries, and whether the Deck Defendants treated each of Plaintiff’s seizures and/or
resulting injuries. In light of these genuine issues of material fact, summary judgment is
inappropriate.
III. Conclusion
For the reasons discussed above, the undersigned finds that genuine issues of material
fact exist as to whether Plaintiff received any medical treatment during or for some of his
seizures and/or resulting injuries. The undersigned therefore recommends that the Deck
Defendants’ Motion for Summary Judgment (Docket No. 44) be DENIED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after service of this Report and Recommendation in which to file any written objections to
this Recommendation with the District Court. Any party opposing said objections shall have
fourteen (14) days after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
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reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

________________________________
JEFFERY S. FRENSLEY
United States Magistrate Judge

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