Hargrow v. Shelby County, Tennessee et al

Filing 59

ORDER granting 22 Motion to Dismiss for Failure to State a Claim. Signed by Judge Samuel H. Mays, Jr on 8/7/2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION AT MEMPHIS

Leatha Hargrow, Individually and
on behalf of the wrongful death
beneficiaries of Kendrick Holmes,
Deceased,
Plaintiff,
v.
Shelby County, Tennessee; Shelby
County Sheriff’s Department; and
Correct Care Solutions, LLC,
Defendants.

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No.

13-2770

ORDER GRANTING SHELBY COUNTY’S MOTION TO DISMISS

On October 3, 2013, Plaintiff Leatha Hargrow (“Hargrow”)
filed a Complaint against Defendants Shelby County, Tennessee
(“Shelby
Correct

County”),
Care

Shelby

Solutions,

County

LLC

Sheriff’s

(“CCS”).

Department,1

(Compl.,

ECF

No.

and
1.)

Hargrow is the mother of Kendrick Holmes, who died on October 3,
2012, while in custody at the Shelby County Criminal Justice
Center in Memphis, Tennessee.

(Id. at ¶ 20.)

Defendant CCS is

a limited liability company which staffs the medical department
of the Shelby County Criminal Justice Center.

1

(Id. at ¶¶ 4,

Shelby County Sheriff’s Department is not a legal entity separate from Shelby
County, Tennessee. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994)
(holding that a police department is not a separate legal “entity which may
be sued.”).

13.)

Hargrow brings suit individually and on behalf of the

beneficiaries of her deceased son Kendrick Holmes (“Holmes”),
for deprivation of Constitutional rights under 42 U.S.C. § 1983,
medical malpractice under Tenn. Code Ann. §§ 29-26-115, et seq.,
and wrongful death under Tenn. Code Ann. § 20-5-113.

(Id. ¶¶

21-42.)
Before the Court is Shelby County’s December 5, 2013 Motion
to Dismiss/for Summary Judgment (the “Motion”).
22-1.)

(Mot., ECF No.

The Court construes the Motion as a motion to dismiss.2

Hargrow responded on January 2, 2014.

(Resp., ECF No. 29.)

Shelby County replied on January 16, 2014.

(Reply, ECF No. 31.)

For the following reasons, the Motion is GRANTED.
I.

Background
Around September 8, 2012, Holmes was arrested on charges of

possessing a controlled substance and drug paraphernalia.
at ¶ 11.)

(Id.

Holmes was incarcerated at the Shelby County Criminal

Justice Center (the “Jail”), where he remained until his death
on October 3, 2012.

(Id. at ¶ 12.)

On September 12, 2012,

Holmes visited the Jail’s medical department, which was staffed

2

The Motion should not be construed as a motion for summary judgment because
it was filed before the existence of a record, more than one year before the
discovery deadline. (See Sched. Order, ECF No. 25.) To succeed on a motion
for summary judgment, Shelby County “must support” its assertion that there
is no genuine dispute “by citing to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations . . . showing . . . the absence . . . of a genuine
dispute.” Fed. R. Civ. Proc. 56(c)(1)(A). See also Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The Motion is properly considered as a
motion to dismiss.

2

by CCS.

(Id. at ¶ 13.)

Holmes purportedly complained of neck

pain that had begun two weeks earlier, and a test revealed that
he had high blood pressure.

(Id.)

The Jail’s medical staff

gave Holmes aspirin and anti-hypertensive medication.
14.)

(Id. at ¶

The staff told Holmes to return to the medical department

in two weeks.
Holmes

(Id.)

returned

on

September

26,

2013,

complaining

that

blood was flowing from his ear and that he was unable to breathe
through his nose.

(Id. at ¶ 15.)

Medical staff diagnosed

Holmes with sinusitis and he was returned to his pod.
October

3,

vomiting

2012,

around

continuously

for

2:30

A.M.,

several

Holmes

hours.

(Id.)

allegedly
(Id.

at

On

began

¶

16.)

According to the Complaint, CCS and Jail records do not indicate
whether any CCS or Jail staff evaluated Holmes’ symptoms from
2:30 A.M. until a sick call was placed at 6:28 A.M.

(Id.)

At

7:02 A.M., Holmes, unable to walk, was transported by wheelchair
to the medical department and seen at 8:14 A.M.
Holmes
medical

was

sweating

department,

and

profusely
reported

when

(Id. at ¶ 17.)

he

arrived

at

vomiting,

blurred

vision,

dizziness, lightheadedness, and sharp upper-abdomen pain.
at ¶ 18.)

the

(Id.

Instead of being sent to the emergency room, Holmes

was returned to his pod at 10:00 A.M.

(Id.)

At about 11:00

A.M., Holmes was found unresponsive in his cell, and a Shelby
County Sheriff’s employee activated the Mandown Unit.
3

(Id. at ¶

19.)

At 11:45 A.M., Holmes was transported to the Regional

Medical Center emergency room, where he was pronounced dead on
arrival.
II.

(Id. at ¶ 20.)

Jurisdiction
The Court has federal question jurisdiction over Hargrow’s

§ 1983 claims under 28 U.S.C. § 1331.
The

Court

has

supplemental

See 28 U.S.C. § 1331.

jurisdiction

over

the

remaining

claims because they derive from a “common nucleus of operative
fact.”

United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725

(1966).
III. Standard of Review
In addressing a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), the court
must construe the complaint in the light most favorable to the
plaintiff and accept all well-pled factual allegations as true.
League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523,
527

(6th

Cir.

2007).

A

plaintiff

can

support

a

claim

“by

showing any set of facts consistent with the allegations in the
complaint.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

(2007).
This standard requires more than bare assertions of legal
conclusions.

Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356,

361 (6th Cir. 2001).

“[A] formulaic recitation of the elements

of a cause of action will not do.”
4

Twombly, 550 U.S. at 555.

Any claim for relief must contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
Erickson

v.

Pardus,

551

U.S.

89,

93

(2007)

(per

curiam).

“Specific facts are not necessary; the statement need only ‘give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’”
at 555).
Rule

8

Id. (quoting Twombly, 550 U.S.

“[D]etailed factual allegations” are not required, but
does

demand

“more

than

unlawfully-harmed-me accusation.”

an

unadorned,

the-defendant-

Ashcroft v. Iqbal, 129 S. Ct.

1937, 1949 (2009) (quoting Twombly, 550 U.S. at 544).
A

complaint

must

contain

sufficient

facts

“to

‘state

a

claim to relief that is plausible on its face’” to survive a
motion to dismiss.

Id.

“The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.”
(citing Twombly, 550 U.S. at 556).

Id.

“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
plaintiff

with

no

facts

Id. at 1949 (citation omitted).

and

“armed

with

nothing

more

conclusions” cannot “unlock the doors of discovery.”

A

than

Id. at

1950.
IV.

Analysis
Shelby County argues that dismissal is appropriate because

(1) Hargrow failed to properly serve Shelby County,
5

(2) the

Complaint did not state a claim under § 1983 because it did not
specify a Shelby County policy that caused the injury, and (3)
Shelby County is entitled to sovereign immunity for Hargrow’s
state law claims.
A.

Failure to Serve
Shelby County moves for dismissal under Federal Rule of

Civil

Procedure

12(b)(5)

for

“insufficiency

of

service

of

process” because Hargrow did not serve the appropriate Shelby
County official.

See Fed. R. Civ. P. 12(b)(5).

Hargrow asserts

that she cured that insufficiency with proper service within the
appropriate time.
A

plaintiff

corporation,

properly

or

any

serves
other

“[a]

state,

state-created

a

municipal

governmental

organization that is subject to suit by . . . delivering a copy
of

the

summons

and

of

the

complaint

to

its

chief

executive

officer” or by complying with the state’s procedure for serving
such a defendant.

Fed. R. Civ. P. 4(j)(2).

Under the Tennessee

Rules of Civil Procedure, a plaintiff properly serves a county:
by delivering a copy of the summons and of the
complaint to the chief executive officer of the
county, or if absent from the county, to the county
attorney if there is one designated; if not, by
delivering the copies to the county court clerk.
Tenn. R. Civ. P. 4.04(7).

Effective service of process must

occur within 120 days of filing the complaint.
4(m).
6

Fed. R. Civ. P.

Although Hargrow initially served the secretary for County
Attorney Kelly Rayne (“Rayne”), Hargrow served Rayne directly
within 120 days of filing the Complaint.
Serv., ECF No. 28.)

(See Summons/Aff. of

The Motion to Dismiss the Complaint for

insufficient service is DENIED.
B.

Failure to State a § 1983 Claim
Shelby County argues that Hargrow has made only conclusory

allegations that Shelby County had policies that caused Holmes’
injuries and that Shelby County failed to adequately train the
medical

personnel

who

were

responsible

for

treating

Holmes.

Hargrow argues that her pleadings are sufficient to survive a
motion to dismiss because discovery is required to make more
detailed allegations.
The Supreme Court has held that a local government may not
be held vicariously liable under § 1983 for injuries inflicted
by its employees or agents.

Monell v. Department of Social

Services of City of New York, 436 U.S. 658, 694 (1978).

A local

government is only liable under § 1983 when a “policy or custom
. . . inflicts the injury.”

Id.

Accordingly, to survive a motion to dismiss under Rule
12(b)(6), a plaintiff must adequately plead (1) that a
violation of a federal right took place, (2) that the
defendants acted under the color of state law, and (3)
that a municipality’s policy or custom caused that
violation to happen.

7

Bright

v.

Gallia

County,

Ohio,

753

F.3d

639,

660

(6th

Cir.

2014)(citing Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008)).
Pretrial

detainees

“adequate

medical

Amendment

rights

have

treatment
of

a

Fourteenth

that

prisoners.”

is

Amendment

analogous

Watkins

right

to

the

Eighth

City

v.

to

of

Battle

Creek, 273 F.3d 682, 686 (6th Cir. 2001) (citing City of Revere
v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)); Ford v. County
of Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008) (holding
that “[p]retrial detainees . . . are guaranteed the equivalent
right to adequate medical treatment” as prisoners).

See also

Graham v. M.S. Connor et al., 490 U.S. 1865, 1870 n.6 (1989)
(explaining
until

that

after

Eight

Amendment

conviction

and

protection

sentence).

A

inadequate care must meets two requirements.
511 U.S. 825, 834 (1994).

does

not

claim

attach

alleging

Farmer v. Brennan,

“First, the deprivation alleged must

be, objectively, ‘sufficiently serious.’”

Id. (citing Wilson v.

Seiter, 501 U.S. 294, 299 (1991) (stating that the wanton supply
of

insufficient

medical

needs

constitutional rights) (dicta).
care

providers

medical needs.

act

with

See id.

may

violate

a

prisoner’s

The second requirement is that

“deliberate

indifference”

to

those

See also Jackson v. Wilkins, 517 Fed.

App’x 311, 317 (2013) (holding that “deliberate indifference to

8

serious medical needs” is a violation of a detainee’s Fourteenth
Amendment rights).
To allege deliberate indifference adequately, a plaintiff
must state facts that show “defendants knew of and disregarded a
substantial risk of serious harm to [the pretrial detainee's]
health and safety.”

Estate of Owensby v. City of Cincinnati,

414 F.3d 596, 603 (6th Cir. 2005) (citation omitted).
A plaintiff must plead that the constitutional violation
resulted from a policy or custom by identifying:
(1) The municipality’s 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 to federal rights
violations.
Spears v. Ruth, 589 F.3d 249, 256 (6th Cir. 2009).

A mere

conclusory allegation that a city employed an unlawful policy or
custom, without identifying the policy or stating a pattern of
conformance to that custom, is not sufficient.

See Iqbal, 129

S. Ct. 1937, 1949 (2009); Huffer v. Bogen, 503 Fed. App’x 455,
462 (6th Cir. 2012) (dismissing a § 1983 claim against a county
defendant when the complaint “failed to identify any policy or
custom that resulted in a constitutional violation”); Broyles v.
Correctional Medical Services, Inc., 2009 WL 3154241, at *2 (6th
Cir.

2009)

unsupported

(“[B]are
by

any

allegations
evidence,

are
9

of

a

custom

insufficient

or
to

policy,
establish

entitlement to relief.”); accord Rowland v. City of Memphis, et
al., 2013 WL 2147457, at *5 (W.D. Tenn., May 15, 2013)(“[T]he
three

allegations

in

the

Amended

Complaint

that

refer

to

‘policies and procedures’ are conclusory.”)
To plead a policy of insufficient training adequately, the
plaintiff must state facts showing that the municipality knew
yet ignored that its training was lacking.
540 F.3d 449, 457 (6th Cir. 2008).

Slusher v. Carson,

“The easiest way for an

individual to meet her burden is to point to past incidents . .
. that authorities ignored.”

Birgs v. City of Memphis, 686 F.

Supp. 2d 776, 780 (W.D. Tenn. 2010).
train

reflects

a

deliberate

or

“Only where a failure to
conscious

choice

by

a

municipality — a policy as defined by our prior cases — can a
municipality be liable for such a failure under § 1983.”

City

of Canton v. Harris, 489 U.S. 378, 388-89 (1989).
To plead adequately that a policy caused an injury, the
complaint must plausibly allege that the identified policy “was
the

moving

rights.”

force

behind

the

deprivation

of

the

plaintiff’s

Savoie v. Martin, 673 F.3d 488, 494 (6th Cir. 2012);

accord Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520
U.S. 397, 404 (1997).
Although Hargrow has plausibly alleged that Shelby County
deprived Holmes of his rights under the Constitution, she has
not stated a claim that Holmes’ injuries were caused by a County
10

policy or custom.
put

staff

and

objectively

The Complaint alleges facts that would have

physicians

serious

at

the

medical

Jail

on

notice

condition.

of

Holmes

Holmes’
reported

increasingly alarming symptoms during three separate visits to
medical staff.

(Compl. ¶¶ 13, 15, 18.)

Staff could observe

Holmes’ profuse sweating, and was made aware of his neck pain,
high

blood

breathe

pressure,

through

blood

the

flow

nose,

from

the

blurred

ear,

inability

vision,

lightheadedness, and sharp upper-abdomen pain.

to

dizziness,

(Id.)

Holmes

died within hours of reporting the last of those symptoms.
Hargrow also alleges specific facts supporting her claim
that Shelby County acted with deliberate indifference to Holmes’
serious medical needs.
staff

sent

Holmes

to

(See Compl. ¶ 23, 15-17.)
his

pod

rather

than

That medical
providing

him

additional care hours before his death gives rise to a plausible
claim of deliberate indifference.
Shelby County is not vicariously liable for the deprivation
of Holmes’ rights.

Monell, 436 U.S. at 694.

Hargrow’s § 1983

claim fails because she has not adequately alleged that Shelby
County employed a policy or custom causing Holmes’ deprivation
of rights.

Hargrow claims that “Defendants’ current practices,

policies, and procedures regarding the provision and monitoring
of medical care to inmates . . . caused Kendrick Holmes to
sustain serious injury and death.”
11

(Compl. ¶ 25.)

Hargrow does

not identify any enactment or specific Shelby County policy or
custom

of

tolerance

violations.

or

acquiescence

to

See Spears, 589 F.3d at 256.

federal

rights

Her claim that Shelby

County policies led to Holmes’ deprivation of rights is entirely
conclusory because she alleges no facts to support it.
Broyles,

2009

WL

3154241

at

*2.

Although

she

See

alleges

that

Shelby County failed to train its employees, she offers no facts
to show that Shelby County knew yet ignored that its training
was lacking.
past

See Carson, 540 F.3d at 457.

incidents

that

authorities

She points to no

ignored.

See

Birgs,

686

F.Supp.2d at 780.
Because she does not allege the existence of a policy or
custom

adequately,

caused

Holmes’

Hargrow’s

deprivation

claims
of

that

rights

a

are

policy
also

or

custom

conclusory.

Without adequately pleading the existence of a policy or custom
that caused the deprivation of Holmes’ constitutional rights,
Hargrow fails to state a § 1983 claim for which relief can be
granted.

The

Motion

to

Dismiss

Hargrow’s

§

1983

claims

is

GRANTED.
C.

Sovereign Immunity
Because Hargrow has alleged civil rights violations, Shelby

County argues that it is entitled to sovereign immunity under
the Tennessee Governmental Tort Liability Act (“TGTLA”), Tenn.
Code Ann. §§ 29-20-101, et seq., on Hargrow’s state law medical
12

malpractice and wrongful death claims.

Hargrow argues that,

because she has made alternative claims sounding in civil rights
and negligence, the TGTLA does not bar her state claims.
The

TGTLA

provides

that

Tennessee

governmental

entities

“shall be immune from suit for an injury which may result from
the

activities

of

such

governmental

otherwise provided in the statute.
201(a).

entities”

except

as

Tenn. Code Ann. § 29-20-

The statute removes immunity for “injury proximately

caused by a negligent act or omission of any employee within the
scope of his employment except if the injury arises out of . . .
civil rights” violations.

§ 29-20-205(2).

The civil rights

exception has been construed to include § 1983 claims.
v. City of Memphis, 617 F.3d 864, 872 (2010).

Johnson

A negligence

claim falls under the civil rights exception where “the same
circumstances

giv[e]

rights claims.”

rise

to

both

the

negligence

and

civil

Partee v. City of Memphis, Tenn., 449 Fed.

App’x 444, 448 (6th Cir. 2011) (alteration in original).
Hargrow

states

no

facts

in

the

Complaint

for

tort

violations other than those underlying her § 1983 claims. Shelby
County is immune from suit on Hargrow’s medical malpractice and
wrongful

death

claims

because

they

arise

from

the

same

circumstances as Hargrow’s § 1983 claims.

Partee, 449 Fed.

App’x

Dismiss

at

448.

Shelby

County’s

Motion

to

Hargrow’s

medical malpractice and wrongful death claims is GRANTED.
13

V.

Conclusion
For

the

foregoing

reasons,

Shelby

County’s

Motion

Dismiss is GRANTED.
So ordered this 7th day of August, 2014.

s/_Samuel H. Mays, Jr. _____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

14

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