Butler, et al v. Shelby County, et al
Filing
336
MEMORANDUM OF OPINION AND ORDER. Signed by Magistrate Judge Tu M. Pham on 3/31/14. (Pham, Tu)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
_________________________________________________________________
LYNELL MARCUS BUTLER, et al.,
)
)
Plaintiffs,
)
)
)
v.
)
)
SHELBY COUNTY GOVERNMENT,
CORIZON, INC., formerly known as )
)
CORRECTIONAL MEDICAL SERVICES,
)
INC., et al.,
)
)
Defendants.
No. 03-2650-TMP
_________________________________________________________________
MEMORANDUM OF OPINION AND ORDER
_________________________________________________________________
I.
A.
BACKGROUND
Case History
1.
The Complaint
The
plaintiffs
are
inmates
and
former
inmates
who
were
incarcerated at Shelby County Correctional Center (“SCCC”) during
various times in 2002 and 2003.1
(ECF No. 122-1, Amd. Compl.)
This facility is under the control of defendant Shelby County
Government (“Shelby County”), which contracted with defendant
Correctional Medical Services2 (“CMS”) to provide medical services
1
Although the amended complaint also alleged that the plaintiffs
were detained at the Shelby County Jail, according to the
plaintiffs’ own admissions, they were inmates only at SCCC during
the relevant time period. (ECF No. 270-2.)
2
CMS is now known as Corizon, Inc.
for the inmates housed at SCCC, and with Annie’s Pest Control, Inc.
for pest control services.3
The plaintiffs alleged that during
2002 and 2003, they were bitten by brown recluse spiders, Shelby
County allowed SCCC to become “infested and/or reinfested” with
spiders and failed to keep these facilities free of dangerous
conditions, and the defendants failed to meet the plaintiffs’
medical and safety needs.
further
alleged
that
(Id. IV ¶¶ 1, 3, 6, 7.)
individuals
seeking
to
Plaintiffs
investigate
the
problems at these facilities on behalf of the plaintiffs were
denied
access
to
the
plaintiffs,
the
defendants
failed
to
adequately diagnose and treat plaintiffs, and they failed to
investigate their complaints or take adequate remedial action,
which amounted to negligence, gross negligence, and deliberate
indifference.4
(Id. IV ¶¶ 5, 9-11.)
Plaintiffs alleged that the
3
On February 10, 2006, the Clerk of Court entered default judgment
against Annie’s Pest Control, in the amount of $5,000 for each of
the twenty-seven plaintiffs named in the Amended Complaint, for a
total award of $135,000.00. (ECF No. 129.) These twenty-seven
plaintiffs include: Kevin Michon Anderson, Michael Eugene Biggs,
Marvell Lashun Bolton, Clifton Bowles, Johnny Yuma Bonds, Julius
Cameron Braswell, Judune Lever Brown, Lynell Marcus Butler, Marcus
Danner, Carl Frederick Davis, Tyrone L. Dyson, Tim Edwards, Andrew
Tyrone Giden, Nico Antoine Gilkey, Timothy Greer, Marvin Jenkins,
Randy G. Johnson, Antonio Lipsey, Johnny Antonio Maxwell, Rodrigues
McKinney, Timothy Wayne Murley, William L. Ohman, Donald Owens,
Tony Neal a/ka/ Paulo Ross, Elton Sylvester Rubin, Jr., Antonio R.
Sanders, and Christopher Winston.
4
Plaintiffs also listed as defendants unnamed officers, deputy
jailers, prison staff, Shelby County supervisors, medical staff,
and pest control employees.
However, the plaintiffs never
identified these “John Doe” defendants.
-2-
“[r]epeated
spider
bites
and
delays
and
inadequate
prison
healthcare resulted in cruel and unusual punishment” under the
Eighth and Fourteenth Amendments.
(Id. IV ¶ 7, V ¶ 1.)
Plaintiffs
contended that the defendants were deliberately indifferent in the
recruitment,
supervision
oversight,
of
Deputy
hiring,
County
training,
Jailers,
discipline,
SCCC
and
employees,
CMS
employees, and pest control employees, and as a result manifested
a callous and reckless disregard for the rights of the plaintiffs.
(Id. ¶¶ 13, 35, 36, 37.)
Plaintiffs claimed that the defendants deprived them of their
rights under the First, Fourth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, in violation of 42
U.S.C. § 1983.
(Id. V ¶¶ 1, 2.)
Plaintiffs asserted conspiracy
claims under 42 U.S.C. §§ 1985 and 1986.
Plaintiffs further
asserted state law claims for medical malpractice, negligence,
intentional infliction of emotional distress, and violations of the
Tennessee
Constitution.
compensatory
and
attorney’s fees.
2.
punitive
(Id.
V
¶
damages,
20.)
as
well
Plaintiffs
as
an
sought
award
of
(Id. V ¶¶ 2, 3.)
The Parties
The plaintiffs originally included fifty-four inmates and
former inmates.5
A discussion of the procedural history of this
5
The original complaint was filed by plaintiff Lynell Butler.
However, the district court later granted leave to amend the
complaint to expand the case to include a total of fifty-four
-3-
case is contained in the court’s Order Granting in Part and Denying
in Part Motions to Dismiss and Denying Motions for Summary Judgment
(“Order I”) and Order on Shelby County’s Motions for Summary
Judgment (“Order II”).
(ECF Nos. 168, 274).
By two separate
orders entered on June 30, 2008, the court dismissed with prejudice
thirty-five plaintiffs pursuant to Federal Rules of Civil Procedure
37 and 41(b).
(ECF Nos. 150, 214, 215.)
Specifically, the June
30, 2008 Order Granting Defendants’ Motion to Dismiss and Adopting
Report and Recommendation (ECF No. 215) dismissed the following
plaintiffs: Stacy Greer, John Hill, Bronson Clay, Mario Dewayne
Bobo, Ray Burcham, Warren Ghan, James R. Jackson, Jevon Barnes,
John Thomas Brooks, Calvin Ivory a/k/a Calvin Ivery, Ray Kelley,
Marvin Mathews, Courtney Nicholson, James Patterson, Byron Williams
a/k/a “Vyrone Dwyone Willaims,” Kevin White, Myron Arps, Marvin
Jackson,
Jeremy
Garrot
a/k/a
Jeremy
Garrott,
Alonzo
Johnson,
Richard Martin, Willie Williams, Carl Smith, Tommy Jackson, Troy
Jackson, Antonio Johnson, and Daniel Kevin Wright.
In a separate
order entered on June 30, 2008, Order Dismissing With Prejudice
Plaintiffs Biggs, Bowles, Bolton, Davis, Jenkins, Murley, Neal, and
Owens, and Amending Scheduling Order (ECF No. 214), the court
dismissed the following plaintiffs: Michael Biggs, Clifton Bowles,
Marvell
Lashun
Bolton,
Carl
Frederick
Davis,
Marvin
Jenkins,
inmates and former inmates.
Subsequently, the parties through
their counsel consented to the exercise of jurisdiction of the
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
-4-
Timothy Wayne Murley, Tony Neal a/k/a Paulo Ross, and Donald Owens.
On January 15, January 29, and April 30, 2013, the court
entered
orders
granting
motions
to
dismiss
filed
jointly
by
defendant CMS and plaintiffs Kevin Anderson, Johnny Bonds, JuDune
Brown, Marcus Danner, Nico Gilkey, Andre Giden, Timothy Greer,
Pearlie May Lipsey on behalf of Antonio Lipsey6, Johnny Maxwell,
William Ohman, Tony Sanders, and Christopher Winston.
297, 299, 303.)
(ECF Nos.
Therefore, these twelve plaintiffs no longer have
any claims against CMS.
The only plaintiffs who have claims
against CMS are Julius Braswell, Lynell Butler, Tyrone Dyson, Tim
Edwards, Randy Johnson, and Elton Rubin, Jr.
3.
Orders I & II
In Order I, the court dismissed all of the plaintiffs’ § 1983
claims
based
on
violations
of
the
First,
Fourth,
and
Sixth
Amendments, their conspiracy claims brought under §§ 1985 and 1986,
and their claims based on violations of the Tennessee Constitution.
The court dismissed the plaintiffs’ intentional infliction of
emotional
distress
claims
against
Shelby
County
and
punitive
damages claims against Shelby County. The court also dismissed the
§ 1983 claims brought by Rodrigues McKinney, as being barred by the
one-year statute of limitations.
6
Based on that order, the only
Antonio Lipsey died on June 3, 2006, for reasons unrelated to the
alleged injuries at issue in this case. (ECF No. 270-8, Pearlie
Mae Lipsey Dep. at 6.) The court granted plaintiff’s motion to
substitute Lipsey’s mother, Pearlie May Lipsey, as a party. (ECF
No. 229.)
-5-
claims that remained against Shelby County were violations of the
Eighth
and
negligence.
Fourteenth
Amendments
and
state
law
claims
of
The claims that remained against CMS were violations
of the Eighth and Fourteenth Amendments, and state law claims of
medical malpractice, negligence, and intentional infliction of
emotional distress.
In Order II, the court granted summary judgment in favor of
Shelby County on all remaining § 1983 claims against the county.
Specifically, the court concluded (1) the single claim for injuries
on September 4, 2002 brought by Randy Johnson, the 2001 claim for
injuries brought by Tyrone Dyson, the May 2002 claim for injuries
brought by Tim Edwards, and the September 2001 and August 2002
claims for injuries brought by Tony Sanders, were all barred by the
one-year statute of limitations for personal injury and civil
rights claims; (2) Marcus Danner, Tyrone Dyson, Tim Edwards, Andre
Giden,
Timothy
Greer,
Antonio
Lipsey,
William
Ohman,
Elton
Sylvester Rubin, Jr., and Tony Sanders (the “Inmate Plaintiffs”)
failed to exhaust their § 1983 claims, as required by the Prison
Litigation Reform Act (“PLRA”); (3) Shelby County’s alleged actions
or inactions in addressing the spider infestation problems and
providing medical care at SCCC did not rise to the level of
deliberate indifference, and thus plaintiffs’ claims based on
Eighth Amendment violations failed; and (4) plaintiffs offered
insufficient evidence to show that Shelby County had a custom or
-6-
policy, or policy of inaction, that was the “moving force” behind
any constitutional violation.7
4.
2012 Ruling
In 2012, the court announced its ruling on CMS’s Renewed
Motion for Summary Judgment and on the remaining negligence claims
against Shelby County (“2012 Ruling”).
Entry.)
(ECF No. 285, Minute
With regard to CMS’s summary judgment motion, the court
granted in part CMS’s motion and (1) dismissed the remaining state
law claims brought by Rodrigues McKinney on statute of limitations
grounds; (2) dismissed the single claim brought by Randy Johnson,
the 2001 claim for injuries brought by Tyrone Dyson, the May 2002
claim for injuries brought by Tim Edwards, and the September 2001
and August 2002 claims for injuries brought by Tony Sanders, as
these claims were barred by the one-year statute of limitations for
personal injury and civil rights claims; (3) dismissed the § 1983
claims of the Inmate Plaintiffs based on their failure to exhaust
their claims as required by the PLRA; (4) dismissed the § 1983
claims to the extent the claims were based on inadequate medical
7
The case of Sain v. Wood, 512 F.3d 886 (7th Cir. 2008), further
supports the court’s decision. In Sain, the Seventh Circuit held
that a “policy of ‘frequent’ exterminations in this case, made
monthly and in response to plaintiff’s requests, certainly cannot
support a claim of deliberate indifference here”). Id. at 895.
Likewise, the affidavits and pest control records attached to
Shelby County’s original motion to dismiss (ECF No. 137) and
renewed motion for summary judgment (ECF No. 263) evidence a policy
of frequent exterminations, and thus plaintiffs’ claims of
deliberate indifference cannot survive summary judgment.
-7-
care provided once the plaintiffs were seen by CMS staff for their
alleged injuries; (5) dismissed the plaintiffs’ medical malpractice
claims; and (6) dismissed the intentional infliction of emotional
distress claims. The court denied CMS’s summary judgment motion to
the extent the plaintiffs’ § 1983 claims and negligence claims were
based on delays in receiving medical treatment.
remaining
negligence
claims
against
Shelby
Regarding the
County,
the
court
granted summary judgment and dismissed those claims based on
sovereign immunity.
In so ruling, however, the court noted that the record was
unclear as to which, if any, of the plaintiffs might have viable
causes of action based on delays in receiving medical treatment.
The court also noted that it was not clear from the record whether
Shelby County or CMS, or both, were responsible for any such delays
in medical treatment.
The plaintiffs were directed to file their
interrogatory responses - which were heavily relied upon in their
opposition briefs but which had not been attached as exhibits to
their
response
plaintiffs
briefs
filed
those
-
with
the
court.8
interrogatory
8
Subsequently,
responses,
along
the
with
a
In the Plaintiffs’ Statement of Material Facts in response to
CMS’s and Shelby County’s renewed motions for summary judgment,
several plaintiffs cited to “Exhibit 2" in support of additional
facts. (ECF No. 269-1 at 9-33; ECF No. 270-2 at 45-70.) However,
Exhibit 2 contained responses only to interrogatories 6 and 7,
which in turn pertained only to grievances.
The plaintiffs
subsequently filed Exhibit 2, which contains approximately 400
pages of interrogatory responses.
-8-
memorandum.
Thereafter, Shelby County and CMS filed responses to
the plaintiffs’ memorandum, along with various affidavits and
exhibits.
This Memorandum of Opinion and Order memorializes the court’s
2012 Ruling, and sua sponte amends that ruling based on the
parties’ filings received by the court subsequent to that ruling.
The court grants summary judgment in favor of CMS as to all claims
brought by plaintiffs Julius Braswell, Lynell Butler, Tyrone Dyson,
Tim Edwards, Randy Johnson, and Elton Rubin, Jr.
The court grants
summary judgment in favor of Shelby County as to the negligence
claims brought by all plaintiffs.
B.
Facts
The following facts are viewed in the light most favorable to
the plaintiffs as the non-moving party and are based on the
evidence
submitted
by
the
parties,
including
the
plaintiffs’
medical records for treatment they received at SCCC9; the affidavit
and deposition of Dr. Kerry O. Cleveland, M.D.; the depositions of
the eight plaintiffs who were deposed: Butler, Dyson, Gilkey,
9
All of the parties relied heavily on the plaintiffs’ medical
records in support of and in opposition to the summary judgment
motions. See Meller v. Meller Management, LLC, No. 10-6018, 2011
WL 2260923, at *9 (W.D. Ark. June 8, 2011) (“medical records are
admissible under Federal Rules of Evidence 803(4) and 803(6) and
may be considered for summary judgment”). Unless otherwise noted,
all of the medical treatment discussed in this section took place
at SCCC.
-9-
Greer, Pearlie Lipsey, Rubin, Sanders, and Winston10; the complete
set of plaintiffs’ interrogatory responses; and the parties’ postruling filings, including all attached affidavits and exhibits.11
1.
Dr. Kerry O. Cleveland
Kerry O. Cleveland, M.D., is board certified in Internal
Medicine and Infectious Diseases.
(ECF No. 243-2.)
In his
affidavit, Dr. Cleveland states that he has reviewed the medical
records for each plaintiff, including the records from SCCC, The
Regional Medical Center at Memphis (“the Med”), and other medical
providers.
He states that he has reviewed the depositions of all
plaintiffs who have been deposed in this case, namely, Butler,
Dyson, Giden, Greer, Pearlie Lipsey, Rubin, Sanders, and Winston.
According to Dr. Cleveland:
CMS, through its medical providers, did not deviate
from the applicable standard of care in the treatment of
plaintiffs Kevin Anderson, Johnny Bonds, Julius Braswell,
JuDune Brown, Lynell Butler, Marcus Danner, Tyrone Dyson,
Tim Edwards, Andre Giden, Nico Gilkey, Timothy Greer,
Antonio Lipsey, Johnny Maxwell, William Ohman, Elton
Rubin, Tony Sanders, and Christopher Winston. CMS was,
at all relevant times, addressing these plaintiffs’
complaints and treating them based upon observations of
10
None of the other plaintiffs were deposed.
11
The court has included the medical evidence for all plaintiffs,
including those twelve plaintiffs who have since dismissed their
claims against CMS: Kevin Anderson, Johnny Bonds, JuDune Brown,
Marcus Danner, Nico Gilkey, Andre Giden, Timothy Greer, Pearlie May
Lipsey on behalf of Antonio Lipsey, Johnny Maxwell, William Ohman,
Tony Sanders, and Christopher Winston. The court has included this
evidence because it may be relevant to claims brought by the six
remaining plaintiffs who still have claims against CMS, such as
evidence of a policy or custom.
-10-
plaintiffs’ conditions.
Based upon my training,
experience, and review of the records, plaintiffs more
likely than not suffered from boils, furuncles, and/or
abscesses, rather than spider bites. However, even if
plaintiffs were bitten by spiders, they were treated
appropriately, and their skin conditions did not warrant
immediate referral to an outside hospital. In fact, most
spider bites resolve without medical intervention. In
appropriate instances and at appropriate times, some
plaintiffs were referred to The Regional Medical Center
for further treatment. No action or inaction on the part
of CMS medical providers caused or contributed to any
injury or harm to these plaintiffs.
(Id.)
Dr. Cleveland was also deposed about his opinions.
He
testified that “there were other explanations for most of the skin
lesions if not all of the skin lesions and that most of these
[plaintiffs] may not have suffered from spider bites at all, . . .
[or] if they were spider bites, most of them suffered no lasting
damage or harm and they were dealt with, diagnosed and treated
appropriately for the conditions that they had.”
Cleveland Dep. at 14.)
(ECF No. 270-13,
Dr. Cleveland testified that just because
a medical record reflects that a particular patient complained that
he was bitten by a spider does not mean that the health care
professional who treated the patient found that the patient was, in
fact, bitten by a spider.
(Id. at 16.)
Based on his review of the
medical records, Dr. Cleveland opined that he did not believe any
of the plaintiffs had a definitive diagnosis of a brown recluse
spider bite.
(Id. at 16.)
He testified that the plaintiffs more
-11-
likely than not suffered from boils, furuncles, or abscesses.12
(Id. at 18-19.)
He further testified that “[i]n this community,
most things that are felt to be brown recluse spider bites are not
brown recluse spider bites.
resolve
without
any
Most brown recluse spider bites
treatment
whatsoever
so
the
most
common
treatment for brown recluse spider bite is to do nothing or to
treat the patient symptomatically. . . . Only a very tiny minority
of things that are felt to be brown recluse bites are brown recluse
bites and, even a very smaller percentage of those actually develop
significant disease from it.”
2.
(Id. at 20-21, 29.)
Kevin Anderson
According to the medical records, Kevin Anderson was seen by
a nurse practitioner, Ron Abston, on March 31, 2003, for a swollen
“pinkie” finger on his left hand.
(ECF No. 243-1 at 1.)
Nurse
Abston assessed the condition as an abscess with cellulitis. (Id.)
Anderson was given ibuprofen and antibiotics.
(Id.)
He was seen
by the medical staff on April 1, 2003, and then again on April 6,
2003, when his dressing was changed.
(Id. at 4.)
At the time, it
was noted that there was a very small amount of yellow drainage on
the left pinkie finger.
(Id.)
No other medical records reflect
care to his finger after the April 6 visit.
In Anderson’s Statement of Material Facts in response to CMS’s
12
Dr. Cleveland described furuncles as an infection of the skin due
to staphylococci and are a type of a small abscess. (Cleveland
Dep. at 28.)
-12-
and Shelby County’s motions for summary judgment (“SMF”), he states
that he was bitten by a brown recluse spider on his buttock and
arm; he was seen by the medical unit about six or seven days after
he was bitten; he put in a medical request form but was not seen by
a doctor; and he was seen for a follow-up visit two weeks later and
was given additional medication.
270-2 at 45.)
(ECF No. 269-1 at 9-10; ECF No.
According to Anderson’s supplemental response and
interrogatory responses (“Supplemental Response”), he was bitten by
a spider on March 24, 2003, while housed in the “J Building, C
Pod.”
(ECF No. 287 at 282.)
He claims he notified two SCCC
employees, an “Officer J. Jones” and an “Officer Wade” on March 28,
2003, that his finger was “full of puss due to a spider bite and
had swollen very badly and whole left side was hurting.”
287 at 273, 282, 283.)
(ECF No.
He also states that he filed a grievance
form on April 4, 2003, approximately four days after he saw the
nurse practitioner.
(ECF No. 287 at 276, 283.)
County has no record of this grievance.
However, Shelby
(ECF No. 293 at 3.)
further states that
My arm turned blue and I could not move it. It hurt my
finger all the way to my neck. I could not turn my neck
or move my arm. After four or five days the nurse came
around and I showed her my bite. She sent me downstairs.
The nurse said that I would have died if I had not come
down in the next 15 minutes, that the poison was near my
heart. I was supposed to have been sent to the outside
Med. They have me [on] penicillin and a shot. I suffer
from fear of spiders.
(ECF No. 287 at 283.)
-13-
He
3.
Johnny Bonds
According to the medical records, Johnny Bonds saw a doctor on
March 18, 2003, for a complaint of a spider bite on his right
buttock, which he said happened three or four days earlier.
No. 244-2 at 1.)
(ECF
He was seen by Dr. Nwannem Obi-Okoye, who
observed a lesion and assessed the condition as “cellulitis right
buttock secondary to spider bite.”
ibuprofen and antibiotics.
(Id.)
(Id.)
He was treated with
He was seen again on March 20,
21, 23, 24, 25, 27, and 31, and April 1 and 7, 2003, to change the
dressing and drain pus from the lesion.
On April 8, Bonds was
examined by Dr. Obi-Okoye, who noted that the lesion had completely
healed.13
(Id. at 11.)
On July 3, 2003, he was seen at the medical
unit and complained of another spider bite on his right buttock.
(Id. at 14.)
He was treated with ibuprofen and antibiotics.
On
July 9, he had his dressing changed and pus drained from the
lesion.
He went to the medical unit again on July 11, for a
dressing change, and it was noted that “area on right hip is no
longer draining or inflammed [sic].”
(Id. at 17.)
On July 16,
Bonds was seen by Nurse Abston for a sore on his left-hand finger.
(Id. at 18.)
He was assessed with folliculitis (inflammation of
hair follicles) and was given antibiotics.14
13
(Id.)
He refused to come to sick call on April 28.
14
On July 18, he
(Id. at 12.)
Dr. Cleveland testified that it would be “extraordinarily unusual
and uncommon” to get folliculitis from a spider bite. (Cleveland
Dep. at 99-100.)
-14-
was seen by Dr. Obi-Okoye for further treatment of his finger, at
which time the doctor noted cellulitis on Bond’s finger.
19.)
He was treated with ibuprofen and antibiotics.
(Id. at
(Id.)
He was
seen on July 28, by Dr. Obi-Okoye, who noted that the lesion had
healed and the cellulitis had resolved.15
(Id. at 20.)
He saw a
nurse on July 29 and then saw Nurse Abston on July 31, who noted
that the cellulitis had resolved.
(Id. at 22.)
According to Bonds’s SMF, he filed an inmate grievance form on
March 12, 2003, regarding the failure to receive medical treatment
for his spider bite.
(ECF No. 270-2 at 45; ECF No. 287 at 290.)
However, the grievance form is actually dated March 18, 2003 (not
March 12), and in it Bonds refers to his medical visit on March 18.
(ECF No. 149, Ex. D.)
Moreover, the CMS records show that Bonds
submitted his medical request form on Saturday, March 15, and he
was seen by CMS on March 18.
(Id.)
In his interrogatory
responses, Bonds was unable to identify any injuries, either
physical or mental, caused by the spider bite or his medical
treatment.
4.
(ECF No. 287 at 290.)
Julius Braswell
According to the medical records, Julius Braswell was seen by
the medical staff on November 11, 2002, complaining of a spider
15
It does not appear from the record that Bonds filed a grievance
for the alleged spider bite that occurred after his initial spider
bite on or about March 12, 2003. (ECF No. 270-2 at 45; ECF No. 149
Ex. D.)
-15-
bite on his forehead, but he refused treatment at that time.
No. 245-2 at 1.)
(ECF
On November 18, he saw Dr. Obi-Okoye, for a
complaint of a spider bite on his nose, which he said happened two
or three days earlier.16 (Id. at 2.) He was treated with ibuprofen
and antibiotics.
He saw Dr. Obi-Okoye on November 21, at which
time it was noted that the lesion on his nose was resolving.
December
31,
2002,
Braswell
was
seen
by
Nurse
Abston
complaint of spider bites on his tailbone area and chest.17
treated with antibiotics.
for
On
a
He was
On January 23, 2003, he reported to the
medical unit for a complaint of another spider bite near his
tailbone area, which he said happened five days earlier.
9.)
He was treated by Dr. Obi-Okoye with antibiotics.
(Id. at
(Id.)
On
January 27, during pill pass Braswell told Nanette Jefferson, a
nurse, that he needed to be seen by a doctor that day, and he was
told to talk to Nurse Melinda Mello so that he could be put on the
sick call list.
(Id. at 10.)
Braswell said he would talk to his
16
Dr. Cleveland testified that, in his opinion, the lesions on
Braswell’s nose were the result of a staph infection unrelated to
bites by brown recluse spiders.
He based his opinion on his
training and experience, in that brown recluse spiders rarely bite
a person’s face and because staph bacteria are frequently carried
within the nose and “we see very commonly these pustular or pusfilled lesions as opposed to necrotic or ulcerative type lesions on
the nose and the face due to staph rather than due to brown recluse
bites.” (Cleveland Dep. at 53.)
17
The medical records from December 31 also note “internal fistula
continues to bleed daily.”
According to Dr. Cleveland, this
condition is unrelated to the complaints of spider bites because
“it seems extraordinarily unlikely” that a spider bite could cause
an internal fistula. (Cleveland Dep. at 56.)
-16-
mother and walked away.
(Id.)
On January 28, Braswell was sent to
the emergency room at the Med for “incision and drainage” of a
furuncle on his buttock area.
(Id. at 11.)
Braswell was next seen
on January 29, by Dr. Obi-Okoye, at which time his dressing was
changed and he was given antibiotics.
(Id. at 13-14.)
He saw Dr.
Obi-Okoye on January 30, and his dressing was changed and he was
given pain medication.
(Id. at 15.)
He saw the nurse for dressing
changes on January 31 and February 2, 3, 5, 7, 9, 10, and 11,
2003.18
On February 11, Dr. Obi-Okoye examined Braswell and noted
that the furuncle had healed and that he had no complaints.
at 29.)
(Id.
On February 13, he reported to the medical unit that he
had a fear of spiders and that he was afraid to sleep for fear that
the spiders would bite him.
(ECF No. 270-2 at 32).
He was seen on
March 31, 2003, by Dr. Obi-Okoye, complaining of itching near the
area of the spider bite.
(Id. at 33.)
Dr. Obi-Okoye noted that
the “lesion is completely healed, non tender.”
(Id.)
In Braswell’s SMF, he states he was bitten twice around
January 22, 2003, on the nose and near his tailbone, and that he
killed the spider; and that the “outcome of my spider bites and
lack of immediate medical attention has led to facial swelling,
difficulty
paranoia
breathing,
stress
eating,
disorder,
nightmares,
difficulty
18
irritable,
making
bowel
afraid,
movements,
The medical records indicate that Braswell refused a dressing
change on February 3 and 10.
-17-
walking and unable to sit normally, fear of sleeping because of
spiders, [and] unable to pay attention to detail.”
(ECF No. 269-1
at 10-11; ECF No. 270-2 at 46-47; ECF No. 287 at 296.)
According to Braswell’s Supplemental Response, he states that
he filled out medical request forms and verbally complained to
unidentified guards on January 22 and January 28, 2003.
288 at 3; ECF No. 287 at 295.)
(ECF No.
He was treated on January 24 by Dr.
Obi-Okoye and a nurse (the medical records, however, show that he
was seen on January 23).
(ECF No. 287 at 296.)
He was examined by
a nurse in his cell on January 27, 2003, who cleaned the infected
area and dressed it.
(Id.)
He states that he saw Dr. Obi-Okoye on
January 28 and was transported to the Med for treatment.
5.
(Id.)
JuDune Brown
According to the medical records, JuDune Brown saw Dr. ObiOkoye on November 1, 2002, and complained of a spider bite on his
upper left leg.
The doctor noted “left upper thigh cellulitis 2
degree to spider bite (small 0.2 cm x 0.1 cm).”
with ibuprofen and antibiotics.
She treated him
There are no other records of
additional visits to the medical unit by Brown for his alleged
spider bite.
Dr. Cleveland testified at his deposition that the
measurements of the “bite” were not consistent with a spider bite:
“The
size
is
extraordinarily
small;
point
two
by
point
one
centimeters, and most spider bites that develop the manifestations
where one thinks they appear to be spider bites would usually be
-18-
larger than that.
So, given the fact that - that true spider bites
are extraordinarily uncommon and that’s an extraordinarily small
lesion, I think it makes it more likely than not that it is not a
spider bite.”
(Cleveland Dep. at 60.)
In Brown’s SMF, he states he was bitten by a brown recluse
spider on the upper left buttock around October 19, 2002, and a
nurse told him that it was a brown recluse spider that bit him.
(ECF No. 269-1 at 12; ECF No. 270-2 at 47; ECF No. 287 at 302.)
According to his Supplemental Response, Brown claims he notified
his lawyer about the spider around October 19.
(ECF No. 288 at 3.)
However, he does not claim that either he or his lawyer notified
Shelby County or CMS about the bite prior to November 1, 2002.
According to his interrogatory responses, he does not claim any
injury, either physical or mental, caused by the spider bite. (ECF
No. 287 at 302.)
6.
Lynell Butler
According to the medical records, Lynell Butler was seen by
Nurse Abston on October 1, 2002, for a complaint of a spider bite.
(ECF No. 247-2 at 1.)
The nurse noted a “1 cm ulceration” on
Butler’s lower right leg.
antibiotics.
(Id.)
the same complaint.
He was given ibuprofen and
(Id.)
On October 4, he was seen by Nurse Abston for
(Id. at 3.)
The records reflect that “the
lesion has worsened since last exam.
Now the erythematous area is
about 2 inches in diameter and the area is warm to touch.”
-19-
(Id.)
The nurse assessed the condition as a “furuncle with cellulitis,”
and gave him ibuprofen, Tylenol, and antibiotics.19
(Id.)
On
October 8, Nurse Abston made a small incision in the abscess and
pus was expressed from the abscess.
(Id. at 8.)
On October 9,
Butler was seen with “no improvement to the abscess, the total size
of the abscess is 3" in diameter, very little pus.”
(Id. at 10.)
After Nurse Abston spoke to Dr. Obi-Okoye about the abscess, Butler
was sent to the Med’s emergency room that same day.
(Id.)
At the
Med, he was seen by Dr. Daniel Beene, who made an incision and
drained the abscess.
(ECF No. 270-2 at 29-30.)
On October 10,
Butler saw Nurse Abston, who noted “site looks a little better
today - swelling and redness appear slightly decreased.”
(ECF No.
247-2 at 12.) The nurse gave Butler ibuprofen and antibiotics. On
that same day, Butler had his dressing changed.
(Id. at 15.)
Butler returned for a follow-up visit to have his dressing changed
on October 11, 13, 16, and 17.
On October 18, he was seen by Nurse
Abston, who observed that the “site looks good.
filling in.
at 21.)
Ulcreation is
Erythema and induration have lessened greatly.”
(Id.
On October 19, Butler visited the medical unit, when it
was noted “poor wound healing complicated by diabetic condition.”
(Id. at 22.)
Butler saw the nurse for dressing changes and to have
19
Dr. Cleveland testified that the furuncle noted by the nurse on
the October 4 examination of Butler was not likely caused by a
spider bite.
(Cleveland Dep. 64.)
He opined that the lesion
became worse because it became infected. (Id. at 66-67.)
-20-
his recovery monitored on October 20, 21, 22, 23, 24, and 25, 2002.
Butler testified at his deposition that he was bitten by a
spider on his leg while he was asleep at night, causing his hand,
arm, and leg to swell.20
(ECF No. 270-6, Butler Dep. at 25-28.)
He did not see the spider that bit him.
(Id. at 25.)
By 7:00 a.m.
the next morning, the swelling in his hand and arm had gone down.
(Id. at 29.)
He told a SCCC guard that he had been bitten by a
spider.
(Id. at 25.)
morning.
(Id. at 30, 32-33, 89.)
He saw the nurse practitioner that same
He testified that he was seen by
the nurse within hours after he was bitten by the spider.
88-89.)
(Id. at
He testified that he submitted a grievance on that same
day about the spider bite, although he did not know what became of
it.
(Id. at 75.)
He was initially told by the nurse that he had
a boil, and then he was told he had a staph infection, and he was
later told that it was a spider bite.
(Id. at 38.)
The nurses
worked on the wound for several days but were unsuccessful.
at 92.)
doctor.
(Id.
Butler kept “begging” Nurse Abston to let him see a
(Id. at 26, 35.)
Butler told Nurse Abston that he had
diabetes, but the nurse kept saying “just let me work on it another
day” and kept “cutting” at the wound without success. (Id. at 26.)
20
Butler testified that he believed the spider bite occurred
sometime in August or September 2002. (Id. at 29). However, he
also testified that he was seen by the nurse practitioner the
morning after he experienced the bite. (Id. at 30, 32-33, 83, 89.)
The medical records show that the first time he was seen for any
alleged spider bite was on October 1, 2002.
-21-
Butler was later admitted to the Med, where a “big old core” was
cut out of his leg.
(Id. at 37.)
According to Butler, he was told
by a doctor and nurse at the Med that he had a spider bite. (Id. at
44.)
Butler testified that the medical staff “didn’t take care of
me enough and I could have lost my leg.
And I had a hole in my leg
so big if you had seen it, you wouldn’t have believed it.
You
could see the bone, as a matter of fact.” (Id. at 33.)
He
testified that he has nightmares about the spider, and that “[my
wife] about to leave me about this spider bite because I scream at
night.
I be about to jump out of the bed and stuff.
screaming at night sometimes about this spider.”
39.)
I wake up
(Id. at 33-34,
According to Butler, the wound in his leg was the size of a
silver dollar.
(Id. at 44-45.)
Importantly, Butler does not
complain about any delay in seeing a medical professional while at
SCCC.
Instead, he believes that after he saw the nurse at SCCC, he
should have been sent to the Med sooner.
(Id. at 39; 81-82.)
He
also believes that he was incorrectly diagnosed by Nurse Abston as
having a boil, instead of a spider bite.
7.
(Id. at 39.)
Marcus Danner
According to the medical records, Marcus Danner was seen by
the medical staff on December 5, 2002, and complained of a spider
bite on his right forearm.
blood.”
The records noted “center core has
(ECF No. 248-2 at 1.)
He stated that he had been bitten
twelve hours ago, and complained of numbness and pain in his
-22-
forearm.
(Id.)
and antibiotics.
The wound was cleaned and he was given ibuprofen
(Id.)
“spider bite protocol.”21
The records reflect that he was given
(Id.)
On December 6, Danner reported to
Nurse Mello that he had another spider bite on his left buttock,
which he said happened three days earlier.
(Id. at 2.)
The nurse
cleaned and dressed the area, gave him a penicillin injection, and
notified Dr. Obi-Okoye.
(Id. at 2-3.)
On that same day, Dr. Obi-
Okoye examined Danner and observed a lesion “with a 0.5 cm x 0.2 cm
central nectrotic area.”
(Id. at 4.)
He was given antibiotics.
His wound was cleaned on December 7 and 9.
On December 9, Dr. Obi-
Okoye examined Danner and noted that the wound on his right forearm
was resolving and he had no new complaints.
(Id. at 7.)
An
examination by a nurse on December 10 revealed that “left buttock
area is resolved.
No open areas seen.”
(Id. at 9.)
On January 6,
2003, Danner saw Dr. Obi-Okoye and complained of another spider
bite on his buttock, which he said happened three days earlier.
(Id. at 10.)
(Id.)
The doctor noted “spider bite lesion sacral area.”
He was given ibuprofen and antibiotics.
(Id.)
On January
31, he saw Dr. Obi-Okoye for boils under his left arm, which he
said happened three days earlier.
(Id. at 11.)
The doctor noted
“left axillary furuncles with red streak on inner left arm,” and
21
Dr. Cleveland testified that he believes “spider bite protocol”
involves telling the patient how to take care of suspected or
proven spider bites, or possibly the medical clinic personnel
giving the patient instructions on how to care for the wound.
(Cleveland Dep. at 76.)
-23-
gave him ibuprofen and antibiotics. (Id.) On February 3, 2003, he
saw Dr. Obi-Okoye, who conducted an incision and drainage procedure
on the furuncle on his left arm.
(Id. at 12.)
On February 4, he
saw Dr. Obi-Okoye for a follow-up exam, at which time she noted
that he had no complaints and the furuncle was resolving with
“minimal drainage” and “no longer swollen.”
(Id. at 13.)
In Danner’s SMF, he states he was bitten by a spider in
December 2002 on the right arm, in February 2003 on the right
buttock, and in March 2003 on the right buttock; he filled out four
medical request forms to see a doctor; he was denied treatment in
December 2002 but was seen by a doctor in February 2003 when his
infection was removed; he was given a shot and pills by a doctor in
March 2003; and he has scarring as a result of the bites and lack
of adequate medical attention.
at 315.)
(ECF No. 270-2 at 51; ECF No. 287
In his Supplemental Response, Danner presents the same
evidence and arguments contained in his original response to the
defendants’ motions and in his Statement of Material Facts.
8.
Tyrone Dyson
According to the medical records, Tyrone Dyson saw Dr. Henry
Stamps on December 23, 2002, for a “possible spider bite” on his
right thigh.
(Id.)
(ECF No. 249-2 at 1.)
He was given an antibiotic.
On December 31, Dyson saw Dr. Stamps again, at which time
Dr. Stamps conducted an incision and drainage procedure on an
abscess on his right thigh.
(Id. at 2.)
-24-
On January 15, 2003, he
was seen by Nurse Abston for sores on his leg.
The records
indicate “(r) inner upper thigh has an indurated reddened area
approx. 1" in diameter . . . there is also a smaller similar lesion
developing.”
(Id. at 4.)
Nurse Abston assessed the condition as
a furuncle forming, and gave him antibiotics.
(Id.)
On January
21, he saw Nurse Abston for a follow-up on his boils, and the nurse
noted that the lesions had healed.
(Id. at 5.)
On February 14,
2003, Dyson reported to Nurse Abston with a sore in his nose.
at 9.)
(Id.
The nurse noted a lesion on the nose and gave him
antibiotics.
On February 17, he returned to the medical unit for
a “boil in nose” and “soreness in left side of neck.”
(Id. at 11.)
Nurse Abston continued him on antibiotics and gave him ibuprofen.
(Id.)
On February 19, Earnestine Eason, a nurse practitioner,
examined Dyson and noted that the lesion in his nose had improved
and the boil had resolved.
(Id. at 12.)
On May 8, 2003, Dyson saw
Nurse Abston and complained of a sore in his nose, which he said
was a recurring problem every two to three weeks.
was treated with antibiotics and an ointment.
(Id. at 18.)
(Id.)
2003, he saw Nurse Abston for a sore in his nose.22
He
On June 10,
Nurse Abston
observed that “this is a recurring problem” and noted a postular
22
In Dyson’s Supplemental Response, he states that he was
transferred to the Med on June 11. (ECF No. 288 at 5.) However,
the medical records do not support this contention. The records
from June 11 show only that his medication was reordered. (ECF no.
249-2 at 22.) Moreover, Dyson does not state the reason why he was
purportedly transferred to the Med, or whether it was related to
his treatment for alleged spider bites.
-25-
lesion above his right ear.
(Id. at 21.)
The nurse assessed the
condition as a furuncle, and gave him ibuprofen and antibiotics.
(Id.)
On June 18, he saw Nurse Abston again for a sore in his
nose, and the nurse assessed the condition as folliculitis.
at 23.)
He was given an antibiotic ointment.
(Id.
On July 1, 2003,
Dyson reported to Nurse Abston with a complaint of nasal sores and
a sore behind his ear, which was swollen and red.
(Id.)
He was
given an antibiotic.
In his deposition, Dyson testified that he was bitten on the
right thigh by a brown recluse spider sometime in 2002.
270-12, Dyson Dep. at 15-16, 39.)
(Id. at 17-18.)
20, 39.)
He was treated for the wound.
He claimed that the bite on his thigh later
“traveled” to his nose.
inside his nose.
(ECF No.
(Id. at 16-17.)
(Id. at 19; 40-41.)
Later, he was bitten
The wounds healed.
(Id. at
He testified that he told “the whole staff” about being
bitten by a spider.
(Id. at 21.)
He claimed that “half the time”
the medical staff would not see him, without specifying the
circumstances in which he was allegedly denied treatment.
(Id. at
17.)
In Dyson’s SMF, he states that he received treatment and had
surgery for his spider bite and was put on antibiotics; he filed a
grievance in 2001 about being bitten by a brown recluse spider; and
he complained to his counselor at the penal farm about his spider
bites. (ECF No. 270-2 at 52.) In his Supplemental Response, Dyson
-26-
states that he verbally complained about a spider bite to “a
corrections officer” on February 22, 2003, although he could not
remember the officer’s name or the outcome of the grievance.
No. 288 at 4; ECF 287 at 321.)
(ECF
As for the injury caused by the
spider bites, Dyson states that “I received treatment and had
surgery for my spider bite and was put on antibiotic[s] to no
avail.”
(ECF No. 287 at 322.)
He does not claim any mental or
emotional injuries caused by the spider bites or his medical
treatment.
9.
(Id.)
Tim Edwards
The medical records show that Tim Edwards was seen by Dr. ObiOkoye on October 7, 2003, and complained of a burning sensation
when urinating, a boil on his neck, chest pain on the left side,
constipation, and a spider bite on his right leg.
at 1.)
(ECF No. 250-2
On October 10, he was seen by Dr. Obi-Okoye, who noted that
the lesion on his right leg was healing.
(Id. at 3.)
On October
15, he had a dressing change following a medical procedure at the
Med.
(Id. at 4.)
The records do not describe the exact procedure
he underwent at the Med.
The nurse noted “wound is a 5 cm circular
area with appearance of a second degree burn.
Tissue is red with
a tiny area of what looks like purulent matter, but not draining.
Some loose, dark skin was easily moved off of the wound.”
(Id.)
He was seen by Dr. Obi-Okoye for a dressing change on October 16,
when it was noted that the lesion was healing.
-27-
(Id. at 6.)
On
October 18, he had his dressing changed.
(Id. at 7.)
On October
20, he was seen by Dr. Obi-Okoye for a follow-up exam, and she
noted the lesion was healing “with good granulation tissue.”
at 8.)
He was given ibuprofen and antibiotics.
(Id.
He was seen for
follow-up exams and/or dressing changes on October 21, November 1,
6, 10, 11, 15, 17, 18, 19, 21, 23, 24, 26, and 28, and December 3,
2003.
In Edwards’s SMF, he states he was bitten on the leg by a
brown recluse spider; he has severe permanent scarring; he went to
the Med on or about October 7, 2003, on two occasions; and during
November and December of 2003, he was treated seven days a week
with antibiotics and had a bandage change every day for sixty days.
(ECF No. 270-2 at 53.)
In his Supplemental Response, Edwards
states that he filed a grievance on May 5, 2002.23
5; ECF No. 287 at 328-29.)
on December 7, 2003.
(ECF No. 288 at
He also states that he went to the Med
(ECF No. 288 at 5.)
However, the medical
records do not show that Edwards was ever seen at the Med on or
about December 7, nor has Edwards asserted that this December 7
visit was related in any way to spider bites. In his interrogatory
responses, Edwards does not claim any mental or emotional injuries
caused by the spider bite or his medical treatment.
23
He also does
The court notes that the grievance filed concerns his complaint
of not having a counselor for “P Building,” and makes no mention of
spider bites or an alleged delay in medical treatment. (ECF No.
149-7 at 7.)
-28-
not provide any evidence regarding the exact date of his alleged
spider bites, whether he ever submitted a medical request form or
made a verbal request for treatment to SCCC or CMS employees, or
allege any delays in receiving medical treatment for his injuries.
10.
Andre Giden
According to the medical records, Andre Giden was seen on
September 1, 2002, by Nurse Sharon Piat, and complained of spider
bites on his right hip, which he said happened a week earlier.
(ECF No. 270-2 at 25.)
The nurse noted that Giden had a “quarter
size” area of necrotic tissue and drainage.
(Id.)
The nurse
cleaned the area and called Nurse Abston, who placed Giden on
ibuprofen and antibiotics.
(Id.)
On September 5, he was seen by
Dr. Obi-Okoye, for a follow-up exam and was assessed with a “spider
bite lesion on right thigh area.”
(Id. at 26.)
On October 10,
2002, Giden was seen by Dr. Obi-Okoye for a complaint of a possible
spider bite on his right hip that he noticed the day before.
at 27.)
(Id.
The doctor indicated “no bite marks noted,” assessed him
with cellulitis, and gave him ibuprofen and antibiotics. (Id.) On
October 11, he was seen by Dr. Obi-Okoye for a follow-up exam, who
noted “left hip cellulitis/abscess” and cleaned out the pus area.
(Id. at 28.)
On July 7, 2003, Giden was seen by Dr. Obi-Okoye, and
complained of a possible spider bite on the left side of his chest.
(ECF No. 251-2 at 1.)
The doctor’s assessment was a “spider bite
abscess left thoracic area,” measured at 1 cm x 1 cm.
-29-
(Id.)
The
area was cleaned and he was given ibuprofen, pain medication, and
antibiotics.
(Id. at 3.)
His dressing was changed on July 8, he
had a follow-up exam and dressing change on July 11 (when Dr. ObiOkoye noted the lesion was resolving), and his dressing was changed
on July 12 and 16.
In Giden’s SMF, he states he was bitten five times at SCCC.
(ECF No. 269-2 at 16; 270-2 at 53.)
However, according to Giden’s
Supplemental Response, he was bitten four times.
5; ECF No. 287 at 268-69.)
(ECF No. 288 at
He states that he was bitten on his hip
in April 2002; under his right arm and hip in August/September
2002; under his left arm sometime in 2003; and on the nose sometime
in 2003, possibly in June.
(ECF No. 287 at 268-69.)
However, he
did not file any grievances relating to any of these incidents.
(ECF No. 287 at 335.)
Giden has not presented any evidence that he
ever requested treatment that was delayed.
11.
Nico Gilkey
According to the medical records, Nico Gilkey was seen on
March 13, 2002, by Nurse Katheryn Stewart, and complained of a
spider bite which he noticed the day before.
22.)
(ECF No. 270-2 at
The nurse noted a 0.5 inch hard knot on the left side of
Gilkey’s neck, raised with a white center, and assessed it as an
insect bite. (Id.) He was given ibuprofen, and the nurse referred
him to Dr. Obi-Okoye for further evaluation.
On March 14, he was
seen by Dr. Obi-Okoye, who assessed the condition as a furuncle.
-30-
(Id. at 23.)
On March 15, Nurse Carol Bray saw Gilkey on a
complaint of a spider bite under his chin.
(Id. at 24.)
told him that the doctor said it was a furuncle.
(Id.)
The nurse
On January
23, 2003, Gilkey saw Nurse Katherine Byrd and stated that he was
bitten by a spider and needed to be seen.
(ECF No. 252-2 at 1.)
The nurse noted a small, firm area of erythema but was unable to
express any pus from the area.
On January 24, he was seen by Nurse
Abston and complained of a bite on his inner thigh.
(Id. at 2.)
Nurse Abston noted a “3" diameter swollen area that is warm to the
touch,” and assessed the condition as an abscess with cellulitis.
(Id.)
He gave Gilkey ibuprofen and antibiotics.
On January 27,
Gilkey was seen by Nurse Abston for a follow-up exam, at which time
the nurse noted that the lesion had been draining.
(Id. at 3.)
On
February 24, 2003, he was seen by Nurse Abston for a sore on his
right leg, which the nurse assessed as folliculitis which was
resolving.
(Id. at 7.)
On February 28, he was seen by Nurse
Abston for a complaint of a spider bite.
noted
a
small
pustular
lesion
on
the
(Id. at 8.)
right
forearm
The nurse
and
two
indurated areas (non-pustular) on his right thigh, and assessed the
condition as folliculitis.
antibiotics.
(Id. at 8.)
The nurse gave Gilkey
On March 10, 2003, he was seen by Nurse Abston and
complained of several sores “all over my body that I think may be
spider bites.” (Id. at 10.) The nurse noted lesions over multiple
areas of his body that were dry and crusted but had no pus
-31-
drainage.
He assessed the condition as folliculitis.
(Id.)
Gilkey testified at this deposition that he was bitten by a
spider on his leg sometime in 2000.
21, 24, 71.)
(ECF No. 270-7, Gilkey Dep. at
Medical request forms are placed in a drop box, and
nurses come around once a day to pick up the forms.
(Id. at 23.)
He testified that it would normally take three days after turning
in a medical request form to be seen by the medical staff.
79.)
(Id. at
He submitted a medical request form and was seen by a nurse
and doctor three days later, was told that it was a boil, and
received treatment with antibiotics.
(Id. at 23, 25-26.)
A week
later, the wound dried up and he no longer experienced pain.
at 27, 29.)
(Id.
About six weeks later, he saw the doctor, complained
that the treated area was itchy, and received an antibiotic
ointment.
(Id. at 30.)
Sometime toward the end of 2001 or early
2002, he was placed in a lockdown cell, at which time he saw
spiders “everywhere” and later noticed “little white bumps” on his
legs, arms, and chest.
(Id. at 33-34, 77.)
He asked officers if
he could change cells, but was only told “I’ll see what I can do.”
(Id. at 33.)
He spent thirty days in the lockdown cell, during
which time the nurses checked on his once a week.
(Id. at 33, 35.)
He told the nurses about the bites, but they allegedly told him
they were not spider bites and gave him antibiotics and ointment,
which resolved the condition within one week.
(Id. 34-36.)
the bites cleared up, he no longer experienced any pain.
-32-
Once
(Id. at
37.)
He testified that he was bitten on other occasions, but did
not recall the details of those incidents.
(Id. at 37, 72-77.)
He
does not experience any physical or emotional pain from the spider
bites.
(Id. at 41.)
Gilkey further testified that on March 13,
2002, he was bitten by a brown recluse spider on his neck while in
the “H Building.”
(Id. at 69-70.)
He did not file any grievances
relating to the spider bites or his medical care.
(Id. at 61, 64.)
According to Gilkey’s SMF, he was bitten on his right leg
above the knee, and immediately reported to the medical unit. (ECF
No. 269-2 at 16.)
The medical staff told him it was a boil and
gave him no treatment.
swollen.
(Id.)
(Id.)
The bite became infected and
He was eventually given a shot and antibiotics.
He claims that he has scarring from the bite and has a fear of
spiders.
12.
(Id.)
Timothy Greer
The medical records show that on July 30, 2003, Timothy Greer
went to the medical unit and complained of bumps on his right
forearm.
The condition was assessed as folliculitis.24
Dep. at 98-99.)
(Cleveland
Greer was seen on September 25, 2003, by Nurse
Piat, and he complained of a spider bite on his right buttock.
(ECF No. 253-2 at 1.)
The nurse noted a “moderate size area of
24
Greer also states in his response that he was seen on July 30,
2003, for a spider bite on his forearm. (ECF No. 270-2 at 24.)
However, no medical records or other supporting evidence relating
to this complaint were attached to his response.
-33-
induration and inflammation on right buttocks near anus.”25
(Id.)
He was given ibuprofen and was placed on Dr. Obi-Okoye’s sick call
list for the next day.
The records from September 26 indicate he
was a “no show” for the medical appointment.
(Id. at 2.)
On
September 27, a nurse “removed core from buttock” and cleaned the
wound.
(Id. at 3.)
He was seen for a dressing change on October
1 and 2, 2003, and was given ibuprofen and antibiotics.
(Id. at
6.) On October 2, he was seen by Dr. Obi-Okoye, who assessed Greer
with a furuncle on his right buttock and noted that the lesion was
still draining fluid.
(Id. at 6.)
On October 8, he was seen by
Dr. Obi-Okoye, who noted that the furuncle was resolving and that
the lesion was smaller in size.
(Id. at 8.)
He was seen by Nurse
Abston on October 30, who observed a sore on Greer’s left buttock
and assessed the condition as a “boil/insect bite-infected.”
at 9.)
He was given ibuprofen and antibiotics.
(Id.
On November 3,
2003, Greer was seen by Nurse Abston for a follow-up appointment,
at which time it was noted that the “lesion has been draining” and
“site looks good.”
(Id. at 10.)
On November 7, Nurse Abston
examined Greer and noted that the “lesion on right upper buttock is
healing well.”
(Id. at 11.)
Greer testified at his deposition that in 2003, he felt a
25
Dr. Cleveland opined that the condition reported by Greer was the
“beginning of an early perirectal or perianal abscess rather than
a spider bite.” (Cleveland Dep. at 101.) He testified that the
location near the anus “would be very unusual for a spider to have
access to.” (Id.)
-34-
“little sting” while sleeping and his buttock area started to swell
the next day.
(ECF No. 270-5, Greer Dep. at 20, 22.)
dead spider in his bed, which had a darkish brown color.
21.)
He saw a
(Id. at
He submitted a medical request form, but was not seen by the
medical staff for “six to eight days.”
(Id. at 22, 45.)
He
testified that he was not able to see the nurse until he complained
to an SCCC counselor, who took him to the medical unit.
56.)
(Id. at
He testified that he was bitten by a spider a second time,
this time on his arm, although he could not recall when it
happened.
(Id. at 25-26.)
He was seen by the medical unit and was
treated with antibiotics. (Id. at 26.) The bite cleared up within
the next few days.
(Id.)
His only complaint about the medical
treatment he received was that he had to submit more than one
request before he could see the medical staff.26
13.
(Id. at 27.)
Randy Johnson27
According to the medical records, Randy Johnson was admitted
to the Med on September 4, 2002, after complaining that he had
multiple lesions and that he had been bitten by a brown recluse
26
He testified that he was advised of SCCC’s grievance procedures
during orientation and was fully aware of the grievance process.
(Id. at 38-39.) He only filed a grievance about an unrelated leg
injury; he did not file a grievance about the spider bites. (Id.
40, 57-58.)
27
Because Johnson’s only claim is based on a single injury that
occurred on September 4, 2002, the court’s 2012 Ruling (as
explained below) granted summary judgment for Shelby County and CMS
on Johnson’s claim as being barred by the one-year statute of
limitations.
-35-
spider.28 (Cleveland Dep. 106; ECF No. 254-2 at 1.) His right fifth
finger
was
incised
antibiotics.
and
(Id. 108.)
drained,
and
he
was
treated
with
Dr. Cleveland testified that “[m]ore
likely than not they were not spider bites.”
(Id. 109-110.)
He
supported his opinion as follows:
[I]t is very unusual to have multiple lesions or multiple
. . . spider bites simultaneously. Usually, they’re a
solitary lesion. At The Med, the lesions were cultured
and grew methicillin resistant Staphylococcus, R S, which
is the classic organism that causes multiple skin lesions
or abscesses or furuncles or boils. And, again, spider
bites are typically not found on the hands and fingers
although they can be. So location on the hand, multiple
lesions and the fact that the classic organism for
multiple cutaneous skin infections were isolated all make
it much less likely to have been a spider bite rather
than staphylococcal lesions.
(Id. 110.)
In Johnson’s Supplemental Response, he states that he was seen
for a spider bite by the medical unit on September 4, 2002, and
that this was the only spider bite incident claimed by him.
(ECF
No. 288 at 6).
14.
Antonio Lipsey
Antonio Lipsey’s medical records show that he was seen on
April 7, 2003, for a boil under his arm.
(ECF No. 270-2 at 19).
The nurse noted a “3 cm round nodule” with no redness or drainage,
28
Johnson’s medical records from the Med, other than the single page
found at ECF No. 254-2, are not attached as exhibits to either
defendants’ motions or the plaintiffs’ response.
However, Dr.
Cleveland was questioned about these additional medical records at
his deposition.
-36-
and he was treated with ibuprofen.
(Id.)
On April 8, he was seen
by Dr. Obi-Okoye, who treated Lipsey with antibiotics.
20).
(Id. at
He was seen again on June 11, 2003, by Dr. Obi-Okoye, who
assessed him with furuncles under both arms.
(Id. at 21.)
He was
treated with ibuprofen and antibiotics. (Id.) He was seen on July
11, 2003, by Nurse Abston, and complained of a spider bite on his
leg.
(ECF No. 255-2 at 1.)
The nurse assessed the condition as a
furuncle, and treated him with ibuprofen and antibiotics.
dressing changes on July 12, 13, 14, and 16.
He had
On July 16, Nurse
Abston examined Lipsey and noted that the furuncle was resolving.
(Id. at 6.)
On August 13, 2003, he was seen by Nurse Bray and
complained of a spider bite.
condition as folliculitis.
(Id. at 13.)
The nurse assessed the
On August 27, he complained to Nurse
Abston of a spider bite, which the nurse assessed as folliculitis.
(Id. at 15.)
On September 2, 2003, he was seen by Nurse Bray and
complained of a spider bite.
(Id. at 22.)
The nurse observed a
lesion on his right knee, assessed the condition as a boil, and
gave him antibiotics. His dressing was changed on September 5. On
September 13, he complained to Nurse Susan Sing of a spider bite on
his right leg. (Id. at 27.)
The nurse observed a small red wound
on his right knee and a small amount of drainage.
He was seen by
Nurse Abston on September 15, who noted a lesion on Lipsey’s knee,
which the nurse assessed as a boil/abscess.
given ibuprofen and antibiotics.
-37-
(Id. at 28.)
He was
His dressing was changed on
September 20.
He was seen by Nurse Abston on September 22, who
noted that the lesion was healing well.
(Id. at 31.)
On October
8, 2003, Lipsey saw Nurse Abston and complained of a spider bite,
and he was given antibiotics.
(Id. at 34.)
On October 23, he was
seen by Nurse Abston and complained of a spider bite.
(Id. at 40.)
The nurse observed a lesion on his chest that had ruptured and was
draining.
He was given ibuprofen, antibiotics, and hydrocortisone
cream.
On October 29, he was seen by Nurse Abston, who noted a
rash.29
(Id. at 42.)
In his Supplemental Response, Lipsey states that he filled out
a medical request form on November 11, 2003, and that he filed a
grievance on February 19, 2002.
at 13-14.)
(ECF No. 288 at 7; ECF No. 149-7
The November 11 form is not a medical request form, but
rather is a Shelby County “Release From Liability” form, in which
Lipsey agreed to be interviewed by his former attorney, Paul
Leitch.
The February 19 grievance relates to allegations of
harassment by an officer, and does not relate to spider bites or
medical treatment.
15.
Johnny Maxwell
According to the medical records, Johnny Maxwell was seen by
Nurse Mary White-Landa on May 3, 2002, and complained of a spider
bite on his right knee.
(ECF No. 270-2 at 4.)
29
On June 26, 2002,
The deposition of Pearlie Mae Lipsey for the most part contains
inadmissible hearsay testimony and is not material to the matters
before the court.
-38-
he saw Nurse Adrienne Askew, and stated that he had several spider
bites on the lower part of his body and that he was in pain.
at 5.)
(Id.
The nurse observed two large swollen bites on both thighs.
She cleaned the area, applied gauze, and gave him ibuprofen and
antibiotics. He saw Dr. Obi-Okoye on June 27, who observed lesions
discharging pus and assessed his condition as spider bites.
at 7.)
(Id.
On July 29, 2002, he saw Nurse Abston and complained of a
spider bite on his left hip.
(Id. at 10.)
The nurse assessed the
condition as a furuncle and gave him ibuprofen and antibiotics. On
August 2, his dressing was changed.
On August 5, he saw Nurse
Abston and complained of a spider bite.
(Id. at 16.)
The nurse
observed a lesion on the right thigh and a lesion on the left
thigh.
He assessed the condition as a spider bite.
His dressing
was changed on August 11, at which time it was noted that the wound
was healing well.
On December 13, 2002, he saw Dr. Obi-Okoye for
a boil on his right ear, which he said he noticed four days
earlier.
(Id. at 18.)
The doctor assessed the condition as a
furuncle, and gave him ibuprofen and antibiotics.
On June 20,
2003, he saw Nurse Abston on a complaint of a spider bite behind
his left ear.
(ECF No. 256-2 at 1.)
The nurse assessed the
condition as folliculitis, and expressed a small amount of pus from
the affected area.
In Maxwell’s SMF, he states he “did a lot of complaining to a
number of officers concerning his mistreatment and about his spider
-39-
bite,” without any details regarding the nature of the complaints,
such as when and to whom he made those complaints.
at 60.)
(ECF No. 270-2
In his Supplemental Response, Maxwell states that he was
bitten four time between 2000 and 2002 on his legs.
at 7; ECF No. 287 at 361.)
(ECF No. 288
He states he complained to guards and
others about his spider bites.
(ECF No. 287 at 361.)
He also
states that he was seen after two weeks and was told by the doctor
that he was bitten by a brown recluse spider.
(Id.)
However,
Maxwell does not provide any details regarding whether and when he
submitted a medical request form, or any delays in receiving
medical treatment.
Maxwell never filed a complaint or grievance
(Id. at 360.)
relating to his spider bites.
16.
William Ohman
William Ohman’s medical records reveal that he was seen on
September 27, 2003, by Nurse Gloria Scott, and complained of a
spider bite on the right side of his neck.
He was given pain medication.
(ECF No. 257-2 at 1.)
On September 29, he saw Nurse
Abston, who observed a swollen lesion on his neck and assessed the
condition as an abscess.
(Id. at 2.)
medication and antibiotics.
The nurse gave Ohman pain
Ohman saw Nurse Abston on October 1,
2003, at which time the nurse noted that the lesion remained
swollen and had not yet drained.
(Id. at 3.)
ibuprofen, pain medication, and antibiotics.
Ohman was given
On October 6, Nurse
Abston examined Ohman and observed that the lesion was much better
-40-
and that the boil/abscess was resolving.
(Id. at 5.)
In his SMF, he states he filed a grievance about being bitten
by spiders and that it took two days to see a doctor; he gave his
complaint to a “Ms. Jones,” the counselor on duty; he did not know
the outcome of the complaint because he was transferred to another
facility; he was moved due to his grievance and his complaints
about the spider bites and poor medical treatment; and he was given
fifteen different types of pills for about three to four weeks, in
addition to shots.
(ECF No. 270-2 at 61; ECF No. 287 at 368.)
In
his Supplemental Response, Ohman claims that he has two scars on
his right shoulder and on the right side of his neck.
at 369.)
(ECF No. 287
He also states that he has an “inferiority complex” due
to the scar on his neck and that he is “terrified of spiders.”
(Id.)
17.
Elton Rubin
According to the medical records, on May 2, 2003, Elton Rubin
saw Nurse Piat for an “apparent spider bite,” which he said
happened three days earlier.
(ECF No. 258-2 at 1.)
The nurse
observed a lesion on his right underarm. She called Dr. Obi-Okoye,
who placed Rubin on ibuprofen and antibiotics.
staff
approximately
eight
more
times
He saw the medical
following
his
May
2
examination, but did not complain of any further complications from
the lesion.
On May 27, he saw Nurse Piat and complained of a
spider bite on his buttocks.
(Id. at 11.)
-41-
He was given ibuprofen
and was placed on the sick call list.
On May 28, he saw Dr. Obi-
Okoye, and complained of a spider bite on his right buttock and
right underarm. (Id. at 12.) The doctor assessed the condition on
his right buttock as cellulitis secondary to spider bites, and the
condition on his right underarm as furuncles.
He was continued on
ibuprofen and antibiotics. His dressing was changed on May 29. On
July 2, 2003, he was seen by Dr. Obi-Okoye for a spider bite on his
left buttock.
(Id. at 14.)
He saw Dr. Obi-Okoye on August 4,
2003, and complained of a spider bite on the right side of his
chest, which he said happened three to four days earlier.
18.)
The doctor assessed his condition as cellulitis.
(Id. at
He was
treated with ibuprofen, pain medication, and antibiotics.
On
August 6, he saw Dr. Obi-Okoye for a follow-up exam, and had no new
complaints.
(Id. at 21.)
The doctor observed that the lesion on
the right chest wall was filled with pus and was draining, and
“presence of necrotic tissue surrounded by areas of erythema.”
He
saw Dr. Obi-Okoye on August 8, at which time the doctor noted
“spider bite cellulitis-resolving.” (Id. at 23.) His dressing was
changed on August 9 and 10, and he was seen by Dr. Obi-Okoye on
August 11 for a follow-up exam.
She noted that the lesion was
healing well and was no longer draining pus.
(Id. at 30.)
At his deposition, Rubin testified that he was bitten multiple
times by spiders.
(ECF No. 270-10, Rubin Dep. at 19.)
He was
bitten by a spider on February 14, 2002, at SCCC in Building H (the
-42-
alcohol drug facility).
(Id. at 21.)
He testified he was
“paralyzed” by the bite and was not seen by the medical staff until
three days later.
(Id. at 16.)
He testified that he was bitten a
second time by a spider on February 17, 2002, on his right arm pit.
(Id. at 21.) Rubin experienced his third spider bite on October 7,
2003, on the right side of his chest.
(Id. at 23.)
Rubin later
testified that he was bitten by a spider on May 27, 2003 and August
4, 2003.
(Id. at 43, 45.)
On the August 4 incident, he testified
that the affected area was the “size of a softball and it had a
head on it the size of a ping-pong ball.”
(Id. at 45.)
Rubin’s
only complaint related to the first two bites, in that he believes
he was not seen fast enough by the medical staff.
(Id. at 25.)
In his Supplemental Response, Rubin states that on October 7,
2003, he filed a grievance for a request for medical records. (ECF
No. 287 at 374.)
He also states generally that he was “bitten and
he made verbal complaints and filled out medical grievance forms,”
although he does not describe the nature of these grievances.
(Id.)
As discussed in Order II, Rubin did not file a grievance as
required by the PLRA.
He testified that he filed a grievance
regarding complaints about eyeglasses and to get his medical
records, but he did not file a grievance relating to any of the
spider bite incidents.
18.
(Id. 37, 54.)
Tony Sanders
On February 26, 2003, Tony Sanders was seen by Linda Kelly, a
-43-
nurse practitioner, and complained that he had a spider bite on his
right knee, which he said happened four days earlier.
(ECF No.
259-2 at 3.) He was given ibuprofen and antibiotics. His dressing
was changed on February 28.
On March 1, 2003, he had another
dressing change, at which time it was noted that the wound on his
right knee had a slight amount of drainage.
(Id. at 9.)
He had a
follow-up exam on March 3 and his dressing was changed on March 3,
5, and 7.30
On April 6, 2003, he saw Nurse Tabitha Warren, and
complained of two boils on his upper thigh and one boil in his
groin.
(Id. at 24.)
The nurse called Dr. Obi-Okoye, who placed
him on ibuprofen and antibiotics.
On May 13, 2003, he saw Nurse
Abston and complained of a spider bite on his right torso, which he
said happened three days earlier. (Id. at 28.) The nurse assessed
the condition as a furuncle and gave him ibuprofen and antibiotics.
On July 7, 2003, he was seen by Dr. Obi-Okoye and complained of a
spider bite on his left knee, which he said happened seven days
earlier.
(Id. at 39.)
other medication.
He was given ibuprofen, antibiotics, and
His dressing was changed on July 8.
He saw Dr.
Obi-Okoye on July 10 for a follow-up exam, and she noted the lesion
was scabbing over and the swelling had resolved.
(Id. at 42.)
dressing was changed on July 10, 12, 14, 16, 17, 20, and 21.
30
His
On
During this time, he was seen by a mental health professional, who
diagnosed Sanders with Schizophrenia, paranoid type. (Id. at 21.)
Sanders stated that he heard voices that come and go. (Id. at 34.)
He also has a long history of seizures.
-44-
November 4, 2003, he saw Nurse Abston and complained of a spider
bite.
(Id. at 62.)
The nurse observed a lesion on his chin and
assessed the condition as an abscess with cellulitis. He was given
ibuprofen and antibiotics.
On November 6, Nurse Abston examined
Sanders on a follow-up visit and observed that the lesion had
enlarged and was “grossly swollen.” (Id. at 63.) He discussed the
situation with Dr. Obi-Okoye, and Sanders was sent to the Med. The
doctor’s assessment at the Med was that Sanders had an allergic
reaction.
(Id. at 65.)
On November 14, he saw Dr. Obi-Okoye, who
noted that the abscess on his lip had resolved.
(Id. at 66.)
Sander testified at this deposition that he was bitten by
spiders on multiple occasions.
18, 23, 72.)
(ECF No. 270-11, Sanders Dep. at
He testified that he tried to go to the Med, but that
unknown officers would not let him go.
(Id. at 19.)
five or six days later by the medical staff at SCCC.
He was seen
(Id. at 20.)
He testified that the bite later became infected, which required
him to go to the Med to have the affected area lanced.
22.)
(Id. at
Sanders testified that when he was bitten on the left thigh
by a spider, he went into a seizure.
(Id. at 23, 72.)
He
testified that he stayed in the cell for about a week before he
could see the medical staff.
(Id. at 24.)
He testified that he
was given some “wrong medicine,” which caused an allergic reaction,
and that he was rushed to the hospital and then to the Med.
at
25-26.)
He
testified
that
-45-
the
medical
staff
(Id.
was
“unprofessional” because when they were busy, they would send him
back to his cell without changing his dressing.
This happened to him on at least two occasions.
19.
(Id. at 70-71.)
(Id. at 85.)
Christopher Winston
Christopher Winston saw Dr. Obi-Okoye on April 7, 2003, and
complained of a “possible spider bite x 2 days, on his left thigh.”
(ECF No. 260-2 at 1.)
The doctor observed a healing lesion on his
thigh and assessed the condition as cellulitis.
ibuprofen and antibiotics.
She gave him
On April 17, he was examined by Nurse
Byrd, who observed that the wound had healed and no problems were
noted.
time
(Id. at 5.)
she
On April 18, he saw Dr. Obi-Okoye, at which
determined
completely healed.
that
the
lesion
on
Winston’s
thigh
had
(Id. at 6.)
Winston testified at his deposition that he was bitten in 2003
by a spider on two separate occasions (although the medical records
only show treatment for one alleged spider bite incident).
No. 270-9, Winston Dep. at 15.)
(ECF
He was first bitten on his left
leg, was treated at the medical unit the next day, and then
returned to his cell.
(Id. at 15, 17.)
the right leg by a spider.
(Id.)
Later, he was bitten on
He brought the spider to the
doctor to prove that he had been bitten by a spider.
described the spider as brown in color.
20.
(Id.)
He
(Id. at 18-19).
Shelby County’s Supplemental Filing
Attached to Shelby County’s supplemental filing (ECF No. 293),
-46-
is the Affidavit of James E. Coleman, the Director of the Shelby
County
Division
of
Corrections.
Director
Coleman
states
relevant part as follows:
3.
When inmates are accepted into the SCCC, they are
informed of, among many things, their right to medical
care and the grievance process. They are provided that
information orally and in writing through the inmate
handbook.
4.
I have reviewed the former medical provider’s Policy
and Procedure No. 37.00, effective November 20, 1998 . .
. . The Policy and Procedure provides that non-emergency
healthcare will be provided pursuant to written Health
Services Request Forms, which are provided in each
housing unit and collected daily and triaged by health
care staff. . . .
5.
SCCC had a Medical Co-Pay policy, effective February
1, 2002, a copy of which is attached as Exhibit C. It
provide[s] for such things as sick calls, walk-in visits,
return visits, responses to medical emergencies.
6.
Health Services Request Forms are also known as
“sick call” requests. State and federal law prohibits
SCCC personnel from having access to inmates’ medical
conditions/treatment.
SCCC is compliant with all
applicable HIPAA statutes.
7.
Sick call requests were not and are not received,
viewed, or transmitted by SCCC personnel to health care
providers. If an inmate orally expressed a medical need
or concern to SCCC personnel, the inmate would be
instructed to submit a sick call request although,
depending on the nature of the need or concern, SCCC
personnel might contact medical personnel to convey the
information. Occasionally that [] is done to schedule a
walk-in visit. If the inmate has an emergent medical
need[], that will be communicated so that medical
personnel may respond on an immediate basis.
8.
If an inmate raises concerns about his health care
through a grievance, SCCC personnel are allowed access to
the medical records to the extent necessary to respond to
the grievance. A grievance is the proper mechanism to be
used by inmates to notify SCCC personnel that CMS is
-47-
in
alleged to be unresponsive to inmates’ medical needs.
Once such a grievance is filed, SCCC personnel will
investigate the allegations and take corrective action if
warranted.
9.
It is and was the policy and practice of the SCCC to
respond promptly to the medical requests and needs of
inmates.
SCCC
employees
who
fail
to
respond
appropriately are and were subject to discipline and
employees are aware that such conduct will not be
tolerated.
(Id. ¶ 7.)
CMS’s Health Services Division Policy & Procedure
Manual, attached as Exhibit B to Shelby County’s supplemental
filing, provides the following procedures for non-emergency medical
requests:
Policy:
1.
Inmates of the institution will have access to nonemergency healthcare by submitting a written request that
is triaged by a qualified healthcare staff member on a
daily basis.
2.
A designated healthcare staff member will make
rounds in segregation areas daily to solicit healthcare
requests from segregated inmates.
Procedures:
1.
An approved Health Services Request Form will be
provided in each housing unit.
2.
Segregation rounds will be documented on security
log.
3.
Written requests will be collected daily at
scheduled times in each housing unit. Request forms will
be stamped with date of receipt and retained for
potential retrieval.
4.
Triage decision, or inmate assessment, will be
documented on Health Services Request Form or Medical
Record.
-48-
5.
Any inmate with a request suggesting the problem may
be of an emergent nature (i.e. chest pain) will receive
prompt attention.
6.
Non-emergency requests
appropriate level sick call.
will
be
scheduled
for
7.
A Sick Call Log of all inmates who have requested
healthcare will be prepared.
8.
Sick Call Log will be placed in designated area for
Medical Record retrieval, in preparation for sick call.
9.
Arrangements for inmate movement will be made in
accordance with institutional procedures.
(ECF No. 293-1.)
II.
A.
ANALYSIS
Standard of Review
Federal Rule of Civil Procedure 56(a) provides that
A party may move for summary judgment, identifying each
claim or defense – or the part of each claim or defense on which summary judgment is sought. 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); see Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Canderm Pharmacal, Ltd. v. Elder Pharms., Inc., 862
F.2d 597, 601 (6th Cir. 1988).
In reviewing a motion for summary
judgment, the evidence must be viewed in the light most favorable
to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
supported
by
proof
such
as
depositions
When the motion is
and
affidavits,
the
nonmoving party may not rest on his pleadings, but rather he must
present some “specific facts showing that there is a genuine issue
-49-
for trial.”
Celotex, 477 U.S. at 324.
It is not sufficient
“simply [to] show that there is some metaphysical doubt as to the
material facts.” Matsushita, 475 U.S. at 586. These facts must be
more than a scintilla of evidence and must meet the standard of
whether a reasonable juror could find by a preponderance of the
evidence that the nonmoving party is entitled to a verdict.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Summary
judgment must be entered “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, 477 U.S. at 322.
As an initial matter, the court will explain its basis for
dismissing
plaintiff
Randy
Johnson’s
limitations grounds in the 2012 Ruling.
claims
on
statute
of
The court also finds,
consistent with its ruling in Order II, that the 2001 claim for
injuries brought by Tyrone Dyson and the May 2002 claim for
injuries brought by Tim Edwards are time-barred.
Previously, in
Order II, the court granted summary judgment in favor of Shelby
County based, in part, on the determination that all causes of
action in this case that accrued more than one year before the
October 29, 2003 amended complaint are barred by the statute of
limitations.
(ECF No. 274 at 9.)
During discovery, Shelby County
served the following interrogatories on the plaintiffs:
INTERROGATORY NO. 6: Have you ever filed or lodged a
grievance or complaint against a corrections’ employee or
-50-
a correctional facility? . . . .
INTERROGATORY NO. 7: Did you file a grievance in
connection with the incident that is the subject of your
complaint? . . . .
INTERROGATORY NO. 8: For every illness, disease, injury
or other affliction and every physical disability,
impairment or handicap that Plaintiff alleges to have
resulted from the alleged spider bites as alleged in his
complaint, please state the nature and extent of such
illness, disease, injury, affliction or physical or
mental disability . . . .
Johnson responded that he had filed a grievance complaining
that he was denied medical treatment with respect to a spider bite.
He indicated that he was in the hospital for eight days following
surgery as a result of the spider bite.
His response did not
indicate a specific date of his hospitalization, but the response
stated
that
it
hospitalized,
Defendant.”
was
so
“the
records
(D.E. 261-4.)
only
time
should
be
I
has
easily
[sic]
ever
available
to
been
the
Johnson’s medical records show that he
was hospitalized on September 4, 2002.
(D.E. 254-2.)
Other than
this single event, Johnson has alleged no other injuries.
Dyson,
in his SMF, has claimed that he filed a grievance sometime in 2001
regarding being bitten by a spider, but has provided no details
about that event.
Edwards, in his Supplemental Response, has
claimed that he filed a grievance on May 5, 2002, although the
grievance related to not having a counselor for “P Building,” and
made no mention of spider bites or medical treatment.
The Sixth Circuit has held that “in all actions brought under
-51-
§ 1983 alleging violations of civil rights or personal injuries,
the state statute of limitations governing actions for personal
injuries is to be applied.” Brandt v. Tennessee, 796 F.2d 879, 883
(6th Cir. 1986); see also Frasure v. Shelby Cnty., 4 F. App’x 249,
250 (6th Cir. 2001).
The statute of limitations for civil rights
actions arising in Tennessee is one year.
Frasure, 4 F. App’x at
250 (citing Jackson v. Richards Med. Co., 961 F.2d 575, 578 (6th
Cir. 1992)).
As the Sixth Circuit has stated, “an amendment which
adds a new party creates a new cause of action and there is no
relation back to the original filing for purposes of limitations.”
In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449
(6th Cir. 1991).
the
addition
of
The rule was extended by the Sixth Circuit to bar
plaintiffs,
not
just
defendants,
applicable statute of limitations has expired.
after
the
Asher v. Unarco
Material Handling, Inc., 596 F.3d 313, 318 (6th Cir. 2010). In
addition, the language of Rule 15(c)(1)(B) permits relation back of
an amendment asserting “a claim or defense” but does not authorize
the relation back of an amendment adding a new party.
Id.
Rule
15(c)(1)(C) permits limited changes in the identities of parties
but only to correct misnomers or misdescriptions made in the
original, timely filing.
In re Kent Holland, 928 F.2d at 1450.
Thus, because Johnson’s single September 2002 injury, Dyson’s
2001 injury, and Edwards’s May 2002 “injury” accrued more than one
year before they were added as plaintiffs in the Amended Complaint,
-52-
these
§
1983
claims
are
barred
by
the
one-year
statute
of
limitations. Similarly, their state law tort claims based on these
injuries are time-barred.
Tenn. Code Ann. § 28–3–104 (actions for
injuries to the person shall be commenced within one year after the
cause of action accrued); Tenn. Code Ann. § 29–26–116(a)(1) (oneyear statute of limitations for medical malpractice claims); Leach
v. Taylor, 124 S.W.3d 87, 91 (Tenn. 2004) (stating that intentional
infliction
of
emotional
distress
is
a
personal
injury
tort,
governed by the general one-year statute of limitations in Tenn.
Code Ann. § 28–3–104). These plaintiffs have provided no basis for
excusing the untimely complaint on equitable tolling grounds.
For
these reasons, the court grants summary judgment in favor of CMS
and dismisses Johnson’s claims, Dyson’s 2001 claim, and Edwards’s
May 2002 claim.31
B.
CMS
As stated above, on January 15, January 29, and April 30,
2013, the court entered orders granting motions to dismiss filed
jointly by CMS and plaintiffs Anderson, Bonds, Brown, Danner,
Gilkey,
Winston.
Giden,
Greer,
Lipsey,
Maxwell,
(ECF Nos. 297, 299, 303.)
Ohman,
Sanders,
and
Therefore, only plaintiffs
Braswell, Butler, Dyson, Edwards, and Rubin potentially have claims
against CMS. The court will address the claims for these remaining
31
In addition to being time-barred, the court also finds that these
claims must be dismissed for the same reasons that the other
plaintiffs’ claims are subject to dismissal (as discussed below).
-53-
five defendants below.
1.
Exhaustion of Administrative Remedies Under the PLRA
CMS argued that the claims of the Inmate Plaintiffs are
governed by the PLRA, that the PLRA required these plaintiffs to
exhaust their administrative remedies prior to filing suit under §
1983, and that CMS’s motion for summary judgment should be granted
as to the Inmate Plaintiffs because it has demonstrated that these
plaintiffs had not exhausted their administrative remedies.
As
discussed in Order II, the Inmate Plaintiffs include, among others,
plaintiffs Dyson, Edwards, and Rubin.
For the same reasons stated
in Order II, the court grants summary judgment for CMS with respect
to the § 1983 claims of all Inmate Plaintiffs, including Dyson,
Edwards, and Rubin, for failure to exhaust.32
(ECF No. 274 at 10-
19); see also Reeves v. Corr. Med. Servs., No. 08-13776, 2009 WL
3876292, at *5 (E.D. Mich. Nov. 17, 2009) (holding that PLRA
exhaustion
requirements
corporations
that
apply
provide
to
actions
correctional
against
services,
private
such
as
Correctional Medical Services) (citing Alder v. Corr. Med. Servs.,
73 F. App’x 839, 842 (6th Cir. 2003)).
2.
§ 1983 Claims Based on Medical Care
CMS moved for summary judgment on the plaintiffs’ § 1983
32
In addition to their failure to exhaust, the court also finds that
Dyson, Edwards, and Rubin’s § 1983 claims must be dismissed on the
merits for the same reasons that the other plaintiffs’ claims are
subject to dismissal (as discussed below).
-54-
claims for violations of their Eighth Amendment rights. The Eighth
Amendment provides: “Excessive bail shall not be required, nor
excessive
fines
inflicted.”
imposed,
nor
cruel
U.S. CONST. Amend. VIII.
and
unusual
punishment
The Supreme Court has held
that the Eighth Amendment imposes upon prison officials the duty to
“provide humane conditions of confinement,” and that among the
obligations attendant to the discharge of that duty is to “ensure
that inmates receive adequate food, clothing, shelter, and medical
care.”
Farmer v. Brennan, 511 U.S. 825, 832 (1994).
Amendment’s
prohibition
against
cruel
and
unusual
The Eighth
punishment
protects against the unnecessary and wanton infliction of pain, the
existence of which is evidenced by the “deliberate indifference” to
an inmate’s “serious medical needs.”
Estelle v. Gamble, 429 U.S.
97, 104-06 (1976); Napier v. Madison Cnty., Kentucky, 238 F.3d 739,
742 (6th Cir. 2001).
steps.
The Eighth Amendment analysis involves two
First, the court must determine, under an objective
standard, whether the alleged deprivation was sufficiently serious.
A
“serious
medical
need”
sufficient
to
implicate
the
Eighth
Amendment is “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay
person
would
attention.”
easily
recognize
the
necessity
for
a
doctor’s
Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008).
Second, the court must determine whether the defendant possessed a
sufficiently culpable state of mind.
-55-
Wilson v. Seiter, 501 U.S.
294, 302 (1991).
This subjective component requires that the
defendant act with the requisite intent, which must rise at least
to the level of deliberate indifference.
“[D]eliberate
indifference
describes
blameworthy than negligence.”
Farmer, 511 U.S. at 834.
a
state
of
mind
more
Id. at 835; see also Lewellen v.
Metro. Gov’t of Nashville & Davidson Cnty., 34 F.3d 345, 348 (6th
Cir. 1994); Bell v. Shelby Cnty., No. 06-2456, 2006 WL 3734421, at
*3 (W.D. Tenn. Dec. 15, 2006).
Under this deliberate indifference
standard,
a prison official may be held liable under the Eighth
Amendment for denying humane conditions of confinement
only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take
reasonable measures to abate it.
Farmer, 511 U.S. at 847.
To the extent, however, that a plaintiff simply disagrees with
the treatment he received, or asserts that he received negligent
medical care, his claim does not implicate the Eighth Amendment.
“[A] complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of
medical
mistreatment
under
the
Eighth
Amendment.
Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner.”
Estelle, 429 U.S. at 106; see
also Mingus v. Butler, 591 F.3d 474, 480 (6th Cir. 2010) (to
prevail on an Eighth Amendment denial of medical treatment claim,
“the inmate must show more than negligence or the misdiagnosis of
-56-
an ailment”); Robbins v. Black, 351 F. App’x 58, 62 (6th Cir. 2009)
(“mere negligence or malpractice is insufficient to establish an
Eighth Amendment violation”); Brown v. Kashyap, No. 00-1322, 2000
WL 1679462, at *1 (6th Cir. Nov. 1, 2000) (“allegations of medical
malpractice or negligent diagnosis and treatment” do not implicate
the Eighth Amendment); Williams v. Mehra, 186 F.3d 685, 691 (6th
Cir. 1999) (“[m]edical malpractice does not become a constitutional
violation merely because the victim is a prisoner”).
To survive
summary judgment, a plaintiff must “allege facts which, if true,
would show 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.” Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 540 (6th Cir.
2008).
Prison officials’ deliberate indifference violates an
inmate’s rights “when the indifference is manifested by prison
guards intentionally denying or delaying access to medical care for
a serious medical need.”
omitted).
Phillips, 534 F.3d at 539 (quotation
This is a “stringent standard,” meant to “prevent the
constitutionalization of medical malpractice claims.”
McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
Comstock v.
Although a plaintiff
need not show that an official acted with the very purpose of
causing him harm or with knowledge that harm will result, he must
show more than negligence.
Id. (citing Estelle, 429 U.S. at 106).
Accordingly, the misdiagnosis of an ailment is insufficient to
-57-
establish an official’s deliberate indifference.
Comstock, 273
F.3d at 703. Indeed, “[w]here 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
judgments and to constitutionalize claims which sound in state tort
law.”
Arflack v. Cnty. of Henderson, Kentucky, 412 F. App'x 829,
832 (6th Cir. 2011) (quoting Westlake v. Lucas, 537 F.2d 857, 860
n.5 (6th Cir. 1976)); see Comstock, 273 F.3d at 703 (“When a prison
doctor provides treatment, albeit carelessly or inefficaciously, to
a prisoner, he has not displayed a deliberate indifference to the
prisoner’s needs.”).
In this case, the court concludes that no reasonable jury
could find that any of CMS’s medical professionals engaged in
medical malpractice because, as discussed later, the plaintiffs
have not presented any of the requisite expert medical testimony
necessary to support these claims.
Moreover, the plaintiffs have
not presented evidence that CMS, in fact, delayed in providing
medical treatment once treatment was requested by the plaintiffs,
nor have the plaintiffs presented any medical evidence regarding
the effect of any alleged delay in receiving treatment.
See
Blosser v. Gilbert, 422 F. App’x 453, 460 (6th Cir. 2011) (“If a
deliberate indifference claim is based on the prison’s failure to
treat
a
verifying
condition
medical
adequately,
evidence
in
.
.
the
-58-
.
a
plaintiff
record
to
must
place
establish
the
detrimental effect of the delay in medical treatment.”) (internal
citations and quotation marks omitted). In any event, as the cases
cited above demonstrate, any such isolated instances of negligence
or medical practice would not amount to a constitutional violation.
Thus, their § 1983 claims against CMS must fail.
However,
even
assuming
that
a
constitutional
violation
occurred, it does not necessarily follow that CMS is liable under
§ 1983.
A private company deemed to be acting under color of state
law for purposes of § 1983 cannot be held vicariously liable for
the actions of its employees on a theory of respondeat superior.
Starcher v. Corr. Med. Sys., Inc., 7 F. App’x 459, 465 (6th Cir.
2001); Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir.
1996) (citing Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir.
1992)).
Instead, a plaintiff bringing a § 1983 claim against a
state actor must also identify a custom or policy, or policy of
inaction, that was the “moving force” behind the constitutional
violation.
Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown,
520 U.S. 397, 403 (1997); City of Canton v. Harris, 489 U.S. 378,
379 (1989); Perez v. Oakland Cnty., 466 F.3d 416, 430 (6th Cir.
2006).
The plaintiff must demonstrate a “direct causal link”
between state action and the deprivation of rights, such that the
“deliberate conduct” of the state actor is the “moving force”
behind the alleged constitutional violation.
Waters v. City of
Morristown, 242 F.3d 353, 361-62 (6th Cir. 2001).
-59-
The
Sixth
Circuit
has
identified
at
least
four
ways
a
plaintiff may prove the existence of a policy or custom: (1)
legislative enactments or official agency policies; (2) actions
taken by officials with final decision-making authority; (3) a
policy of inadequate training or supervision; or (4) a custom of
tolerance or acquiescence of federal rights violations.
Thomas v.
City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).
Where, as
in the present case, a plaintiff alleges that the defendant has an
unwritten policy or a policy of “inaction,” the plaintiff must
show: (1) the existence of a “clear and persistent pattern” of
illegal activity; (2) the defendant had notice or constructive
notice of such; (3) the defendant tacitly approved of the illegal
activity, such that “their deliberate indifference in their failure
to act can be said to amount to an official policy of inaction”;
and (4) the policy, practice, or custom in question was the “moving
force” or “direct causal link” in the constitutional deprivation.
Id. at 429.
The court, viewing all of the evidence in the light most
favorable to the plaintiffs, concludes that the plaintiffs have not
presented sufficient proof from which a reasonable jury could find
that CMS is liable for any alleged constitutional violations.
There is no evidence of a “clear and persistent pattern” of illegal
activity.
See Peet v. City of Detroit, 502 F.3d 557, 568 (6th Cir.
2007) (“[N]o reasonable juror could infer such a custom or policy
-60-
based on a mere three instances [of police misconduct] that are
limited to one police investigation.”); Ellis ex rel. Pendergrass
v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 701 (6th Cir. 2006)
(“To establish deliberate indifference through these reports [of
sexual abuse], Pendergrass would have had to allege and put on some
evidence that two incidents of abuse over two years is an excessive
number.”).
To the contrary, the medical records show that all of
the plaintiffs were examined by health care professionals when they
complained about their spider bites and other sores, they were
provided with medical treatment, and they were regularly seen for
follow-up appointments. While the plaintiffs may disagree with the
assessments of the doctors and nurses as to whether a particular
injury was caused by a spider bite or something else, they have not
presented any evidence that they received improper medical care as
a result of the alleged incorrect diagnoses.
As Dr. Cleveland
opined, “CMS, through its medical providers, did not deviate from
the applicable standard of care in the treatment of plaintiffs,”
“CMS was, at all relevant times, addressing these plaintiffs’
complaints and treating them based upon observations of plaintiffs’
conditions,” and “[n]o action or inaction on the part of CMS
medical providers caused or contributed to any injury or harm to
these plaintiffs.”
Furthermore, the plaintiffs have not shown that CMS had actual
or
constructive
notice
of
any
inadequate
-61-
or
delayed
medical
treatment, that CMS in any way tacitly approved of the “illegal”
activity, or that the policy, practice, or custom was the “moving
force” or “direct causal link” in the constitutional deprivation.
As stated in Order II, “[t]he voluminous medical records of the
plaintiffs produced by the defendants during discovery in this case
demonstrate that every plaintiff received some level of medical
treatment
for
their
spider
bites
and
other
ailments.
.
.
.
Plaintiffs highlight instances where they allege medical treatment
was delayed or denied, but the wealth of the evidence that the
[parties] present indicates that they were receiving prompt and
adequate medical care from CMS.”
In the 2012 Ruling, the court concluded that the plaintiffs
sufficiently created a genuine dispute to survive summary judgment
on the issue of whether CMS had a policy of delaying medical
treatment.
demonstrates
A review of the entire medical evidence, however,
that
this
conclusion
was
clearly
erroneous.
Importantly, the plaintiffs (with limited exceptions, as discussed
below) have not shown for any particular injury exactly when they
submitted their medical request forms, or the amount of delay
between when those forms were submitted and when they were able to
see a medical professional.
Therefore, the court amends its 2012
Ruling and grants CMS’s motion for summary judgment on plaintiffs’
-62-
§ 1983 claims.33
3.
Negligence/Medical Malpractice
The elements of common law negligence include “(1) a duty of
care
owed
by
defendant
to
plaintiff;
(2)
conduct
below
the
applicable standard of care that amounts to a breach of that duty;
(3) an injury or loss; (4) cause in fact; and (5) proximate, or
legal, cause.” Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364
(Tenn. 2009) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
1995)).
Generally stated, a medical malpractice action is an
action for damages for personal injury or death as a result of any
medical malpractice by a health care provider, whether based upon
tort or contract law. Peete v. Shelby Cnty. Health Care Corp., 938
S.W.2d 693, 696 (Tenn. Ct. App. 1996), perm. app. denied (Tenn.
Jan. 6, 1997).
In order to prevail on a claim of medical
malpractice, a plaintiff must establish the following statutory
elements: (1) the recognized standard of professional care in the
specialty and locality in which the defendant practices; (2) that
33
The court, in its 2012 Ruling, also noted that it was unclear,
based on the record that was before the court at that time, whether
Shelby County may have been responsible for any delays in notifying
CMS of the inmates’ request for medical treatment. Shelby County’s
subsequently filed affidavit of Director Coleman and CMS’s Health
Services Division Policy & Procedure Manual now make clear,
however, that it was CMS’s responsibility to collect on a daily
basis the inmates’ medical request forms and to schedule a time for
the inmates to be seen by a medical professional. Therefore, the
court finds no basis to revisit its prior order granting summary
judgment in favor of Shelby County on the plaintiffs’ § 1983 claims
for inadequate medical treatment.
-63-
the defendant failed to act in accordance with the applicable
standard
of
care;
and
(3)
that
as
proximate
result
of
the
defendant’s negligent act or omission, the claimant suffered an
injury which otherwise would not have occurred.
29–26–115(a).
Tenn. Code Ann. §
In medical malpractice cases, the negligence of the
defendant physician usually must be proved by expert testimony.
Chambliss v. Stohler, 124 S.W.3d 116, 119 (Tenn. Ct. App. 2003).
The rationale behind the expert testimony requirement stems from
the complicated and technical information presented in medical
malpractice cases, much of which is “beyond the general knowledge
of a lay jury.”
Seavers v. Methodist Med. Ctr. of Oak Ridge, 9
S.W.3d 86, 92 (Tenn. 1999).
“Unless the negligence is obvious and
readily understandable by an average layperson, expert testimony
will be required to demonstrate the applicable standard of care and
breach of that standard.”
Barkes v. River Park Hosp., Inc., 328
S.W.3d 829, 892 n.2 (Tenn. 2010).
Alternatively, no expert
testimony is required in order to litigate an ordinary negligence
claim.
Estate of French v. Stratford House, 333 S.W.3d 546, 554
(Tenn. 2011).
The determination of whether a case is an ordinary
negligence case or a malpractice case is a determination of law for
the court.
Id. at 557.
As the Supreme Court of Tennessee stated
in Estate of French:
Because medical malpractice is a category of negligence,
the
distinction
between
medical
malpractice
and
negligence claims is subtle; there is no rigid analytical
line separating the two causes of action . . . the
-64-
distinguishing feature between ordinary negligence and
medical malpractice cases is whether a plaintiff’s claim
is for injuries resulting from negligent medical
treatment. . . .
If the alleged breach of the duty of care set forth in
the complaint is one that was based upon medical art or
science, training, or expertise, then it is a claim for
medical malpractice. If, however, the act or omission
complained of is one that requires no specialized skills,
and could be assessed by the trier of fact based on
ordinary everyday experiences, then the claim sounds in
ordinary negligence.
Id. at 555–56 (quotation marks and citations in original omitted).
Not all cases involving health or medical care automatically
qualify
as
medical
malpractice
claims.
Id.
at
556.
The
distinction between ordinary negligence and malpractice turns on
whether the acts or omissions complained of involve a matter of
medical science or art requiring specialized skills not ordinarily
possessed by lay persons, or whether the conduct complained of can
instead be assessed on the basis of common everyday experience of
the trier of fact.
Id.
In other words, in medical malpractice
cases, courts look to whether the decision, act, or omission
complained of required the assessment of a patient’s medical
condition and whether the decision, act, or omission required a
decision based upon medical science, specialized training or skill.
See
Holt
ex
rel.
Waller
v.
City
of
Memphis,
No.
W2000–00913–COA–R3–CV, 2001 WL 846081, at *6 (Tenn. Ct. App. July
20, 2001). Where causes of action involve complaints about acts or
omissions involving medical science and expertise, they qualify as
-65-
medical malpractice cases; where they do not involve such training
and knowledge, they generally sound in ordinary negligence.
See
generally Peete, 938 S.W.2d 693.
The five remaining plaintiffs’ claims pertain primarily to the
adequacy of the medical treatment after they were seen by a nurse
or doctor, for which expert testimony is required to demonstrate
the applicable standard of care and breach of that standard. These
include plaintiffs’ claims based on the providers’ diagnoses and
treatment, and their medical judgment as to whether any of the
plaintiffs should have been seen (and if so, when) by an outside
medical provider, such as the Med.
None of the plaintiffs have
provided any such expert testimony.
Therefore, the court grants
summary judgment in favor of CMS on the medical malpractice claims.
The court’s 2012 Ruling, however, denied CMS’s motions for
summary judgment to the extent the plaintiffs’ claims sounded in
ordinary
negligence
based
on
delays
in
providing
treatment.
Assuming, arguendo, that the scheduling of medical appointments
does not involve an assessment of a patient’s medical condition
based upon medical science, specialized training, or skill, the
court
finds
that
its
prior
ruling
was
nevertheless
clearly
erroneous. Only three of the five remaining plaintiffs - Braswell,
Butler, and Rubin - have presented any evidence regarding the
amount of “delay” between when they were allegedly bitten by a
spider
and
when
they
were
able
-66-
to
see
a
nurse
or
doctor.
Specifically, (1) Braswell’s medical records indicate that he saw
Dr. Obi-Okoye on November 18, 2002, and reported to the doctor that
he had been bitten by a spider on the nose two or three days
earlier; (2) Braswell’s medical records indicate that he was seen
by Dr. Obi-Okoye on January 23, 2003, for a spider bite near his
tailbone area, and reported to the doctor that he had been bitten
five days earlier; (3) Butler’s medical records and deposition
testimony show that he saw a nurse within a matter of hours after
being bitten by a spider; (4) Rubin’s medical records show that he
saw a nurse on May 2, 2003, and reported to the nurse that he had
been bitten by a spider three days earlier; (5) Rubin’s medical
records indicate that he saw Dr. Obi-Okoye on August 4, 2003, and
reported to the doctor that he had been bitten by a spider three to
four days earlier; and (6) Rubin testified that he was bitten by a
spider on February 14, 2002, and was not seen by the medical staff
until three days later.
Rubin has not provided any evidence
regarding when he submitted his medical request form or otherwise
notified CMS of his request for medical treatment.
Without
evidence of when he submitted his requests, Rubin cannot show any
delay in obtaining medical treatment.
With respect to Braswell,
his Supplemental Response states that he filled out medical request
forms and verbally complained to unidentified guards on January 22
and January 28, 2003.
The medical records show, however, that he
was seen by Dr. Obi-Okoye on January 23 and went to the Med on
-67-
January 28.
With respect to Butler, he saw a nurse within a matter
of hours after being bitten by a spider.
The court concludes that
no reasonable jury could find that CMS was negligent for delayed
treatment under these facts.
Therefore, the court amends its 2012 Ruling and grants summary
judgment in favor of CMS on the plaintiffs’ negligence and medical
malpractice claims, including all claims based on alleged delays in
receiving medical treatment.
4.
In
Intentional Infliction of Emotional Distress
order
for
the
plaintiffs
to
prevail
on
a
claim
for
intentional infliction of emotional distress, “(1) the conduct
complained of must be intentional or reckless; (2) the conduct must
be so outrageous that it is not tolerated by civilized society; and
(3) the conduct complained of must result in serious mental
injury.”
Akers v. Prime Succession of Tenn., Inc., No. E2009-
02203-COA-R3-CV, 2011 WL 4908396, at *21 (Tenn. Ct. App. Oct. 17,
2011) (quoting Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)).
The burden to establish these elements is not easily met.
Id.
The
Tennessee Supreme Court has adopted the high standard described by
the Restatement (Second) of Torts, which states:
[t]he cases thus far decided have found liability only
where the defendant’s conduct has been extreme and
outrageous. It has not been enough that the defendant
has acted with an intent which is tortious or even
criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized
by ‘malice,’ or a degree of aggravation which would
entitle the plaintiff to punitive damages for another
-68-
tort. Liability has been found only where the conduct
has been so outrageous in character, and so extreme in
degree, as to go beyond all bounds of decency, and to be
regarded as atrocious and utterly intolerable in a
civilized community. Generally, the case is one in which
the recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, ‘Outrageous.’
Bain, 936 S.W.2d at 622-23 (quoting Medlin v. Allied Inv. Co., 217
Tenn. 469, 479 (Tenn. 1966) and RESTATEMENT (SECOND)
OF
TORTS § 46 cmt.
d(1965)).
The Tennessee Court of Appeals has also stated, in regard to
the third required element of intentional infliction of emotional
distress claims, that:
serious mental injury is that in which the distress is so
severe that no reasonable person could be expected to
endure it. In Miller v. Willbanks, [8 S.W.3d 607 (Tenn.
1999)], the Tennessee Supreme Court recognized that a
plaintiff may establish such emotional harm by several
means, such as through the plaintiff’s own testimony, lay
witness testimony of the plaintiff’s acquaintances,
physical manifestations of emotional distress, evidence
of nightmares, insomnia and depression, proof of
psychiatric treatment, or evidence of the mental
distress’ intensity and duration.
Akers, 2011 WL 4908396, at *21 (internal citations and quotation
marks omitted) (quoting Levy v. Franks, 159 S.W.3d 66, 85 (Tenn.
Ct. App. 2004)).
While expert testimony is not required to
demonstrate the severity of the alleged mental injury, a plaintiff
must present some evidence that his mental injury is “serious or
severe.”
Id.
Liability only attaches when “the distress is so
severe that no reasonable [person] could be expected to endure it.”
Id. (quoting Miller, 8 S.W.2d at 615 n.4).
-69-
Based on the evidence, viewed in the light most favorable to
the plaintiffs, the court concludes that no reasonable jury could
find in favor of any of the five remaining plaintiffs on their
intentional infliction of emotional distress claims.
The evidence
of mental or emotional injuries to these plaintiffs include: (1)
Braswell’s medical records for February 13, 2003, which indicate he
reported to the medical unit that he had a fear of spiders and that
he was afraid to sleep for fear that spiders would bite him; (2)
Braswell’s interrogatory responses, in which he states that the
spider bites and lack of immediate medical attention caused, among
other conditions, “nightmares, irritable, afraid, paranoia stress
disorder, . . . fear of sleeping because of spiders”; (3) Butler
testified at his deposition that he has a fear of spiders and has
nightmares, including waking up and screaming at night; and (4)
Gilkey has a “fear of spiders.”
Neither Dyson nor Edwards claim
any mental or emotional injuries caused by the spider bites or the
medical treatment they received.
Thus, only Braswell, Butler, and
Gilkey have produced evidence that relates to mental or emotional
injuries.
The court finds that no reasonable jury could conclude that
the conduct of CMS or its employees was intentional or reckless, or
that the conduct was so outrageous that it is not tolerated by
civilized society. No rational juror could find that CMS’s conduct
was “so outrageous in character, and so extreme in degree, as to go
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beyond all bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community.”
Therefore, the
court grants summary judgment for CMS and dismisses the plaintiffs’
intentional infliction of emotional distress claims.
C.
Shelby County
The court has a “continuing duty” to dismiss any case in which
a party is proceeding in forma pauperis if the court determines
that the complaint is frivolous or malicious, fails to state a
claim, or seeks monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b);
see also Alexander v. United States, No. 13-00678, 2013 WL 1789378,
at *1 (N.D. Cal. April 26, 2013) (stating that the court has a
“continuing duty” to dismiss an in forma pauperis action if it
determines that the complaint is frivolous or malicious, fails to
state a claim, or seeks monetary relief against a defendant who is
immune from such relief); Anderson v. Macy’s, Inc., No. 2:12-cv556, 2013 WL 1857535, at *7 n.13 (W.D. Pa. May 2, 2013) (same);
Gunn v. Steed, No. 10-3213, 2012 WL 1327795, at *1 (D. Kan. April
17, 2012) (same); Days v. Johnson, No. Civ. A. 5:01-CV-305-C, 2004
WL 2101725, at *1 (N.D. Tex. Sept. 15, 2004) (same).
Section
29-20-201(a)
of
the
Tennessee
Governmental
Tort
Liability Act (“TGTLA”), Tenn. Code Ann. § 29-20-101 et seq.,
provides that “[e]xcept as may be otherwise provided in this
chapter, all governmental entities shall be immune from suit for
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any injury which may result” from the exercise of government
duties.
“No party may bring a suit against ‘the State’ except ‘in
such manner and in such courts as the Legislature may by law
direct.’” Davidson v. Lewis Bros. Bakery, 227 S.W.3d 17, 19 (Tenn.
2007) (quoting Tenn. Const. art. I, § 17).
municipalities.
Id.
(citation
“The State” includes
omitted).
The
TGTLA
removes
immunity for “injury proximately caused by a negligent act or
omission of any employee within the scope of his employment,” but
provides a list of exceptions to this removal of immunity.
Tenn.
Code Ann. § 29-20-205.
Injuries that “arise[] out of . . . civil
rights”
exception,
are
one
such
that
is,
continues to apply in those circumstances.
sovereign
Id.
immunity
The Sixth Circuit
and the federal courts in Tennessee have construed TGTLA’s “civil
rights” exception to include claims arising under 42 U.S.C. § 1983
and the United States Constitution.
See Johnson v. City of
Memphis, 617 F.3d 864, 871-72 (6th Cir. 2010); Eibel v. Melton, No.
2:10-128, 2012 WL 5247282, at *22 (M.D. Tenn. Oct. 23, 2012); Okolo
v. Metro. Gov’t of Nashville, 892 F. Supp. 2d 931, 947 (M.D. Tenn.
2012); Monroe v. McNairy Cnty., No. 07-1055, 2012 WL 393108, at *21
(W.D. Tenn. Feb. 6, 2012); Dillingham v. Millsaps, 809 F. Supp. 2d
820, 852 (E.D. Tenn. 2011); Stone v. City of Grand Junction, 765 F.
Supp. 2d 1060, 1078-79 (W.D. Tenn. 2011); Campbell v. Anderson
Cnty., 695 F. Supp. 2d 764, 778 (E.D. Tenn. 2010).
In this case, the plaintiffs claim that while they were
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incarcerated at the SCCC, Shelby County allowed the SCCC to become
infested with spiders, and as a result, the county failed to keep
the facility free of dangerous conditions.
They allege that the
repeated spider bites and delays in providing healthcare resulted
in cruel and unusual punishment under the Eighth and Fourteenth
Amendments.
Plaintiffs’ negligence claims against Shelby County
are based on the same acts that give rise to the § 1983 claims.
Thus, the TGTLA bars the plaintiffs’ state law negligence claims
against Shelby County.
See Johnson, 617 F.3d at 872 (“Plaintiff’s
claim regarding the dispatcher’s negligence arises out of the same
circumstances giving rise to her civil rights claim under § 1983.
It therefore falls within the exception listed in § 29-20-205, and
the City retains its immunity.”); Monroe, 2012 WL 393108, at *21
(holding that because plaintiffs’ claims against county and the
officers
of
its
sheriff’s
department
arose
out
of
the
same
circumstances giving rise to their civil rights claim under § 1983
for violations of plaintiffs’ constitutional rights, the TGTLA’s
civil rights exception applied); Dillingham, 809 F. Supp. 2d at 852
(holding that plaintiffs’ negligence claim against the county,
which arose out of allegation that county failed to train its
officers under § 1983, was barred under the civil rights exception
of the TGTLA); Campbell, 695 F. Supp. 2d at 778 (holding that
plaintiff’s negligence claim was barred under the civil rights
exception
of
the
TGTLA
because
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the
claim
was
predicated
on
intentional tortious conduct involving the violation of her civil
rights by county employees); Shelton v. Rutherford Cnty., No. 3:09cv-0318, 2009 WL 2929394, at *12 (M.D. Tenn. Sept. 8, 2009) (where
“negligence claims are asserted in the context of a civil rights
case and are based upon the same actions that gave rise to the
civil rights claims . . . the cause of action falls within . . .
[the] immunity granted under Tenn. Code Ann. § 29-20-205"); Butler
v. City of Englewood, No. 1:07-cv-184, 2008 WL 4006786, at *3 (E.D.
Tenn. Aug. 25, 2008) (holding that where plaintiff’s state law
claims “clearly arise out of and directly flow from the allegations
that
the
police
officer
deprived
[plaintiff]
of
[her]
civil
rights,” the municipality was entitled to immunity under the
TGTLA); see also Jackson v. Thomas, No. M2010-01242-COA-R3CV, 2011
WL 1049804, at *7 (Tenn. Ct. App. Mar. 23, 2011) (dismissing a
claim for negligence against the county under the civil rights
exception, where plaintiff asserted Fourth Amendment violation as
a result of the erroneous issuance of an arrest warrant).
For these reasons, the court grants summary judgment for
Shelby County on all of the plaintiffs’ state law negligence claims
brought against the county.
III.
CONCLUSION
For the reasons stated above, CMS is entitled to summary
judgment against plaintiffs Braswell, Butler, Dyson, Edwards,
Johnson, and Rubin, and therefore all claims brought by these six
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plaintiffs against CMS are dismissed with prejudice. Shelby County
is entitled to summary judgment on the negligence claims brought by
all named plaintiffs, and therefore these negligence claims for all
named plaintiffs are dismissed with prejudice.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
United States Magistrate Judge
March 31, 2014
Date
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