WILLIAM J. BRAMBLE, JR., ET AL., Plaintiffs
CAMPBELL COUNTY, KENTUCKY, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, District Judge.
This is an action by former detainees at the Campbell County Detention Center (CCDC) against the jail, and against Southern Health Partners (SHP), alleging cruel and unusual punishment in violation of the 5th, 8th, and 14th Amendment and plaintiffs' civil rights under 42 U.S.C. § 1983. Plaintiffs also allege various state law claims.
This matter is before the court on the motion of the Campbell County defendants for summary judgment as to plaintiff, Kimberly Eversole, both individually and as the Administratrix of Michael Webb's estate (Doc. 74), and the motion for partial summary judgment of Southern Health Partners, as to plaintiff, Kimberly Eversole, both individually and as the Administratrix of Michael Webb's estate (Doc. 75).
Having reviewed the parties briefs and having conducted oral argument on September 27, 2013, the Court issues the following Memorandum Opinion and Order.
A. Facts Common to All Claims
Since February 1, 2007, the CCDC has had a contract with SHP pursuant to which SHP provides "all professional medical, mental health, dental and related health care and administrative services" for CCDC inmates, including sick call, nursing care, regular and emergency physician care. (Holt, Doc. 132 Ex. 1). SHP, in turn, contracts with a physician and employs nurses to staff the CCDC. These arrangements were in place at all times relevant to this action.
Plaintiffs filed this case on August 27, 2010, as a proposed class action. (Doc. 1). On September 24, 2010, plaintiffs filed a Second Amended Class Action Complaint, which is the operative complaint herein. (Doc. 5). Plaintiffs allege that they were denied medical attention for their serious medical needs in violation of their 5th, 8th and 14th Amendment rights. (Doc. 5 ¶ 16, ¶¶ 366-69). Plaintiffs also allege Kentucky statutory claims ( Id. at ¶¶ 370-71), negligent or intentional infliction of emotional distress ( Id. at ¶¶ 372-73), negligence ( Id. at ¶¶ 374-75), loss of consortium ( Id. at ¶¶ 376-77), and wrongful death ( Id. at ¶¶ 378-79).
On March 25, 2011, the parties stipulated to dismissal of plaintiffs' class action allegations. (Doc. 28). Discovery ensued and, after numerous extensions, the pending motions for summary judgment were filed and briefed.
B. Plaintiff Kimberly Eversole, Adminstratix of Michael Webb's Estate, and individually.
Michael Webb ("Mr. Webb") was incarcerated at the CCDC from April 17, 2009 to September 22, 2009. (Doc. 74 Ex. 3, 23). He was forty-seven years old at the time he began this incarceration. (Doc. 74 Ex. 3).
Mr. Webb told the booking officer when admitted to the CCDC that he had a hernia which required medical treatment, but otherwise had no medical conditions for which he required treatment or medication. (Doc. 74 Ex. 4).
There is a debate between the parties about when the first "Inmate Sick Call slip" was filed. The CCDC defendants assert that a Sick Call Slip was submitted June 18, 2009, (Doc. 74 p. 3, ) while the Plaintiffs assert it was submitted May 18, 2009 (Doc. 99 p. 2) (hereinafter referred to as "the First Sick Call Slip"). On its face, the sick call slip appears to have been filled out May 18, 2009 but the "Received" stamp says June 19, 2009. (Doc. 74 Ex. 6). It is unclear from the facts presented by any party what occurred in the interim. The First Sick Call Slip stated:
I have yellow skin tone and might have been exposed to hepatitis (c) through intravenous drug use and unprotected sex. I'm requesting to be tested, blood work up.
How long have you had this problem? 6 months, on & off, more continuous discolored last 30 days.
(Doc. 74 Ex. 6)
The Second Sick Call Slip was submitted June 23, 2009. It stated:
Been told I'm Jaundice' of color numerous times, possibly exposed to herpatit [sic] through intravenous drug use/unprotected [sic] request blood work.
How long have you had this problem? Approx. 3 wks.
(Doc. 73 Ex. 7) (hereinafter "the Second Sick Call Slip").
On June 23, 2009, the day of the Second Sick Call Slip, Mr. Webb was seen by Nurse Betty Dawes. (Doc. 74 Ex. 8). On this Patient form, Nurse Dawes stated "Color: Race Appropriate: Checked" and she placed Mr. Webb on the Physician's List to be seen. ( Id. )
On July 10, 2009, Mr. Webb submitted his first grievance. (Doc. 74 Ex. 9). In this grievance, Mr. Webb states he was seen by the nurse on July 3, 2009, and placed on the physician's list and he also reasserts his desire to be seen by the doctor. ( Id. ) Lt. Col. Fickenscher received the grievance on July 15, 2009, and responded on July 17, 2009. (Doc. 74 Ex. 10). In Lt. Col. Fickenscher's response, he states he forwarded the grievance to medical for information, and medical informed him that Mr. Webb was on the list to the see the Doctor, and the Doctor would make the decision to see him. ( Id. )
The Medical Staff Response form indicates that the Doctor reviewed Mr. Webb's chart and chose not to conduct an in-person exam. (Doc. 74 Ex. 11). It also indicates that Mr. Webb was ...