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Newberry v. Melton

United States District Court, M.D. Tennessee, Northeastern Division

February 8, 2017

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

          JURY DEMAND REPORT AND RECOMMENDATION

          JEFFERY S FRENSLEY United States Magistrate Judge.

         I. Introduction and Background

         Pending before the Court is a Motion for Summary Judgment filed by Defendants W.B. Melton, Shannon Harvey, and Rodney Phillips, in their individual capacities (“Individual Defendants”). Docket No. 46. In support of their Motion, the Individual Defendants have filed a Memorandum of Law (Docket No. 48), a Statement of Undisputed Facts (Docket No. 49), excerpts from the Depositions of Ashley Deck (Docket No. 50-1), Debbie Deck (Docket No. 50-2), Shannon Harvey (Docket No. 50-3), Judy Parrigin (Docket No. 50-4), Justin Due (Docket No. 50-5), Jack Newberry (Docket No. 50-6), Ethan Bean (Docket No. 50-7), Christy Beed (Docket No. 50-8), Lisa Ledbetter (Docket No. 50-9), Donny Allred (Docket No. 50-10), Patricia Hensley (Docket No. 50-11), Joshua Densmore (Docket No. 50-12), and Rodney Phillips (Docket No. 50-13), the Declarations of Justin Due (Docket No. 55) and Joshua Densmore (Docket No. 56), and the Declarations with exhibits of Shannon Harvey (Docket Nos. 52, 54-1 - 54-21) and Rodney Phillips (Docket Nos. 53, 54-22).

         Plaintiff has filed a Response in Opposition to the Individual Defendants' Motion for Summary Judgment (Docket No. 59) that is supported by a Memorandum of Law (Docket No. 61), a Response to the Individual Defendants' Statement of Undisputed Facts (Docket No. 68), Plaintiff's own Statement of Material Facts (Docket No. 69), the Declaration of Jack Newberry (Docket No. 62-1, p. 138-39), and numerous other exhibits, including excerpts from the Depositions of Debbie Deck (Docket No. 62-1, p. 15-23), Ashley Deck (Docket No. 62-1, p. 24-30), W.B. Melton (Docket No. 62-1, p. 35-43), Patricia Hensley (Docket No. 62-1, p. 44-50), Ethan Bean (Docket No. 62-1, p. 51-57), Nicholas Franklin (Docket No. 62-1, p. 59-69), Travis Melton (Docket No. 62-1, p. 70-80), Thurman Bolinger (Docket No. 62-1, p. 81-88), Justin Due (Docket No. 62-1, p. 89-94), Donnie Allred (Docket No. 62-1, p. 95-103), Lisa Copeland (Docket No. 62-1, p. 104-09), Christy Beed (Docket No. 62-1, p. 110-15), and Jack Newberry (Docket No. 62-1, p. 127-35).

         The Individual Defendants have filed a Reply (Docket No. 77) and a Response to Plaintiff's Statement of Material Facts (Docket No. 78).

         Plaintiff, who is epileptic, filed his Amended Complaint in this action pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs by, inter alia, (1) not providing him with his anti-seizure medication for the first month of his incarceration; (2) not providing him with his oral potassium supplement pills; (3) not providing any assistance or stabilization for him during his seizures; (4) not providing first aid or other medical attention to Plaintiff's gashes, scrapes, bruising, black eyes, concussion, strained ligaments, and other injuries incurred during his seizures; and (5) not sending Plaintiff for examination by a physician who could ascertain why his seizures were increasing in frequency, intensity, and duration, in violation of his Fourth, Eighth, and Fourteenth Amendment rights. Docket No. 26. Plaintiff sues Overton County, Tennessee as the entity responsible for the remaining named Defendants' actions in their official capacities, and he sues the remaining named Defendants in their individual capacities as well. Id.[1]

         In addition to the stated general allegations against all Defendants, Plaintiff specifically avers that the instant Defendants, in their individual capacity, violated his rights as follows:[2]

20. During one particularly bad episode, Shift Sgt. Rodney Phillips dragged [him] out of his cell on a mattress, down a hallway and into a booking cell, where he left [Plaintiff] by himself. During another particularly bad seizure in the same cell, when [Plaintiff] regained consciousness, he found himself face-down in a dirty drain located on the floor of the cell, his face so disfigured from swelling and discoloration that he demanded Sgt. Phillips take a photograph of his face, which Sgt. Phillips proceeded to do. Instead of offering medical assistance, [Plaintiff] could hear Sgt. Phillips tell other deputies that Sgt. Phillips should “just grab him by the head and drag him around the booking area.”
22. On October 14, 2013, [Plaintiff] contacted defendant Harvey, the jail administrator, via the Overton County Corrections Division grievance complaint form “to explain the situation” about what the county could do to alleviate the constant, intense seizures. However, defendant Harvey refused to see [Plaintiff], saying his was a medical problem that she could not help with.
23. Thereafter, [Plaintiff] attempted to contact Overton County Sheriff W.B. Melton about the recurring seizures by filling out an Overton Country grievance complaint form. However, [Plaintiff] received no response from defendant Melton.
25. [Plaintiff's] family contacted defendant Melton about the constant seizures. However, they were told that defendant Melton would not talk to them because he could not discuss inmate health concerns with “outside individuals.”
46. Defendant Harvey, under color of law, violated [Plaintiff's] constitutional rights as guaranteed by the 4th, 8th, and 14thAmendments to the U.S. Constitution by deliberately and intentionally failing to provide first aid or other medical attention to the Plaintiff's serious medical condition; 47. With callous indifference, defendant Harvey refused to provide assistance to the plaintiff for serious injuries that were obvious, that is, frequent and intense grand mal epileptic seizures, and, the ensuing aftermath - black eyes, a concussion, gashes, cuts, abrasion, and strained arms and ligaments. [Plaintiff] only wanted to see a physician who could ascertain why [he] experienced seizures in such a large number and with such intensity and duration. Defendant Harvey failed to ensure that [Plaintiff] receive any medical treatment whatsoever.
50. Defendant Melton, under color of law, violated [Plaintiff's] constitutional rights as guaranteed by the 4th, 8th, and 14thAmendments to the U.S. Constitution by deliberately and intentionally failing to provide first aid or other medical attention to the plaintiff's serious medical condition; 51. Defendant [Melton] refused to provide assistance to the plaintiff for a serious injury that was obvious, that is, frequent and intense grand mal epileptic seizures, and, the ensuing aftermath -black eyes, a concussion, gashes, cuts, abrasion, and strained arms and ligaments. [Plaintiff] only wanted to see a physician who could ascertain why [he] experienced seizures in such a large number and with such intensity and duration. Defendant Melton failed to ensure that [Plaintiff] receive any medical treatment whatsoever.
54. Defendant Phillips, under color of law, violated [Plaintiff's] constitutional rights as guaranteed by the 4th, 8th, and 14thAmendments to the U.S. Constitution by deliberately and intentionally failing to provide first aid or other medical attention to the plaintiff's serious medical condition; 55. Defendant [Phillips] refused to provide assistance to the plaintiff for serious injuries that were obvious, that is, frequent and intense grand mal epileptic seizures and, with callous indifference only wanted to see a physician [sic] who could ascertain why [Plaintiff] experienced seizures in such a large number and with such intensity and duration.

Id.

         Plaintiff contends that his seizures continued until he transitioned to the Bledsoe County Correctional Facility, where he was immediately permitted to see a physician who changed his medication. Id. Plaintiff seeks compensatory and punitive damages in an amount to be determined at trial, as well as “an order compelling Overton County to comply with Tennessee Corrections Institute and American Correctional Association standards regarding medical treatment of inmates and to properly train personnel and revamp its policies with regard to medical care for inmates, ” reasonable attorney's fees, costs, and other further relief as the Court deems just and proper. Id.

         The Individual Defendants filed their Motion for Summary Judgment and supporting materials arguing that they are entitled to a judgment as a matter of law regarding Plaintiff's claims against them in their official capacity because they were never served in their official capacity. Docket No. 48.

         Addressing Plaintiff's individual capacity claims against them, Defendants Harvey and Melton argue that they are entitled to a judgment as a matter of law because Plaintiff cannot sue them simply for being responsible for the actions of the corrections officers, since respondeat superior is not a basis for the imposition of liability under § 1983, and the specific allegations Plaintiff levies against them are insufficient to establish that either of them “encouraged the specific incident of misconduct or in some other way directly participated in it.”[3] Id., citing Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

         As to Plaintiff's general allegations of a lack of care by the corrections officers, the Individual Defendants argue that in each and “every instance where officers were notified that [Plaintiff] was undergoing a seizure, the officers responded and ensured that he was on his side. They additionally ensured that he was far away from situations which could harm him.” Id. The Individual Defendants further argue that, “Once the seizures were over, staff checked him. In the event that [Plaintiff] was injured, they gave him a sick call form to complete to see the nurse and/or transported him to booking for observation, ” and they assert that “[i]f the injuries were serious, the officers contacted the nurse and then followed her recommendations.” Id. The Individual Defendants contend that because: (1) they promptly responded and took steps to prevent Plaintiff from further injuring himself until his seizures ended; (2) they checked on him following the seizures to ensure that he had not suffered injuries; (3) in the event that Plaintiff had suffered injuries, they notified medical personnel and followed their instructions; and (4) Plaintiff was monitored following seizures during which he was injured, they did not violate Plaintiff's constitutional rights. Id.

         The Individual Defendants also assert that they are entitled to qualified immunity, and they contend that Plaintiff has failed to exhaust his administrative remedies regarding “most of the claims in this matter.” Id. They further contend that Plaintiff has alleged only de minimis injury and has failed to show actual damage allegedly caused by the Individual Defendants. Id. Finally, the Individual Defendants maintain that “[t]his matter should be deemed frivolous pursuant to 28 U.S.C. §1915(g).” Id.

         Plaintiff responds that genuine issues of material fact exist that should preclude summary judgment in favor of the Individual Defendants. Docket No. 59. Specifically, Plaintiff contends that the Individual Defendants “point to 15 seizure episodes in the Summary Judgment Motion in which the officers allegedly responded appropriately, demonstrating no indifference to [Plaintiff's] medical needs. However, the testimony of at least five witnesses, two of whom are Defendant[s'] witnesses, reveals that [Plaintiff] actually experienced many more seizures than was documented in his Overton County Jail files, and that staff repeatedly failed to respond when he did experience seizures.” Id., referencing testimony of Officer Lisa Copeland, Officer Justin Due, Nicholas Franklin, Travis Melton, and Thurman Bollinger.

         As to Defendant Harvey, Plaintiff argues that he asked her “to intervene in asking the jail's medical staff to treat him, ” but “[s]he told him she was not a doctor and could not make a call.” Id. Plaintiff asserts that, “[a]s the person who was responsible for ensuring that all policies, rules, regulations, orders, and procedures are enforced and implemented, she could have seen to it that [Plaintiff] was referred to an outside specialist.” Id. Plaintiff maintains that Defendant Harvey's written response to him essentially articulating that nothing could be done for him was insufficient, inter alia, because she had been notified of the frequency and duration of Plaintiff's seizures, but failed to even inquire whether the seizures were being treated, because there were a number of things that could have been done to treat Plaintiff, and because the Jail's own Standing Orders define seizures as a medical emergency, such that she should have sent Plaintiff for a consultation with a neurologist. Id., citing General Orders, p. 75.[4] Plaintiff further maintains that Defendant Harvey failed to train officers: (1) how to respond to his seizures; (2) how to document seizures; (3) how to ensure the medical staff knew about each of his seizures; and (4) how to prevent inmates with seizure-like symptoms from being locked alone in a jail cell. Id.

         As to Defendant Melton, Plaintiff contends that he was “subjectively aware that [Plaintiff] was suffering from untreated seizures by the October 27, 2013 grievance form that [Plaintiff] appealed to him.” Id.[5] Plaintiff further contends, “[h]aving defined seizures as a medical emergency in the Jail's General Orders, Sheriff Melton then failed to train correctional officers in the proper response to [Plaintiff's] seizures - even such common sense notions as calling 911 when the duration and severity of the seizure warranted calling emergency responders.” Id.

         Plaintiff additionally argues that because the right to needed medical care is a constitutional right, the Individual Defendants who denied or delayed Plaintiff's right to his needed medical care are not entitled to qualified immunity. Id. Specifically, Plaintiff contends:

The question then becomes which of the individual Defendants were subjectively aware that [Plaintiff] was being deprived of his medical care. Jail Administrator Shannon Harvey subjectively knew that [Plaintiff] was being deprived of his rights because he communicated with her in a grievance form. In addition, Mr. Franklin also communicated with Ms. Harvey twice not only that the nurses were not responding to [Plaintiff] but also that [Plaintiff] had stopped breathing and his fellow inmates thought he was going to die. Accordingly, Ms. Harvey is not entitled to summary judgment.
Mr. Phillips was subjectively aware that [Plaintiff] was being deprived of his rights as he drug [Plaintiff] down a hall and left him in a booking cell after [Plaintiff] was found to have injured himself during a seizure.
Sheriff Melton was subjectively aware that [Plaintiff] was suffering from untreated seizures by the October 27, 2013 grievance form that [Plaintiff] appealed to him.

Id.

         Addressing the Individual Defendants' argument that Plaintiff failed to exhaust his administrative remedies in violation of the PLRA, Plaintiff asserts that the PLRA requires the exhaustion of “such administrative remedies ‘as are available.'” Id., citing 42 U.S.C. § 1997e(a) (emphasis added). Plaintiff argues that the Individual Defendants “readily admit” that there was no formal grievance policy “on paper, ” and that, although “inmates were allegedly ‘made aware' of the grievance policy, ” “there's nothing in the Declaration of Shannon Harvey (D.E. 52) or supporting exhibits that say exactly how inmates were made aware” of the grievance policy, and Plaintiff testified that he was never made aware how the Overton County Jail grievance policy was supposed to work. Id., citing Plaintiff's Dec., ¶ 4. Plaintiff additionally argues that the Overton County Inmate Grievance Form itself is non-PLRA compliant on its face because it: (1) did not state that the form was the sole method utilized in registering a grievance; (2) made no reference to the PLRA; (3) did not state the grievance was mandatory for any purpose; and (4) failed to indicate that in order to exhaust the administrative process, it was necessary to appeal to Sheriff Melton. Id. Plaintiff contends that Overton County correctional officers would not give him a grievance form because he was told medical issues were nongrievable, but when Plaintiff did grieve one of his seizure episodes, Defendant Harvey told him that she “was not a doctor and could not make a call.” Id. ...


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