United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Bunning, United States District Judge.
February 2, 2015, David Smith was arrested for drug crimes in
Campbell County, Kentucky, and transported to the Campbell
County Detention Center (“CCDC”). During his time
at the CCDC, Plaintiff suffered from epidural abscesses and
osteomyelitis of the spine, resulting in sepsis and acute
paraplegia of the lower part of his body. Plaintiff filed
suit against Campbell County, Campbell County Jailer James
Daley, Southern Health Partners, Inc. (“SHP”),
Dr. Mina Kalfas, nurses Anna Nash, Marissa Sparks, Amanda
Clarkson, Leslie Doremus, and Krista Slayback, and various
John and Jane Does. In his Complaint, Plaintiff alleges that
Defendants exhibited deliberate indifference to his serious
medical needs in violation of the Eighth and Fourteenth
Amendments to the federal Constitution. (Doc. # 1 at 8-9). He
also brings numerous pendant state-law claims, including
negligence, outrage, intentional infliction of emotional
distress, and violation of Kentucky Administrative Regulation
(“KAR”) 501 3:090. Id. at 9-10.
are currently two Motions for Summary Judgment before the
Court, both of which are fully briefed and ripe for review.
(Docs. # 89, 91, 98, 99, 100, and 101).
Campbell County and James Daley (collectively “County
Defendants”) seek summary judgment on the
deliberate-indifference and state-law claims against them.
(Doc. # 91). They also argue that the claims against the John
Doe defendants should be dismissed. Id. SHP, Kalfas,
Nash, Sparks, Clarkson, Doremus, and Slayback (collectively
“SHP Defendants”) also filed a Motion for Summary
Judgment, requesting dismissal of all claims against them.
(Doc. # 89). For the reasons set forth below, the County
Defendants' Motion for Summary Judgment is granted. The
SHP Defendants' Motion for Summary Judgment is granted in
part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
David Smith was arrested February 2, 2015 on a warrant in
Campbell County, Kentucky, for several drug-related crimes.
(Doc. # 89-1). Smith was taken to the Campbell County
Detention Center (“CCDC”) where he remained
incarcerated until March 5, 2015. At the time of his
incarceration, Campbell County contracted with Southern
Health Partners, Inc. (“SHP”) to provide medical
care to inmates at CCDC. (Doc. # 89-2). In turn, SHP
contracted with Dr. Mina Kalfas to oversee the administration
of medical care at CCDC. (Doc. # 89-3).
admission to the CCDC on February 2nd, Smith advised prison
staff of a number of health problems, including withdrawal
from heroin, depression, anxiety, leg pain, and a history of
pain and bone fractures in his back. (Doc. # 98-3). Later on
the same day, Smith reported to SHP nurse Marissa Sparks-a
named defendant in this case-that he suffered from high blood
pressure, depression, bipolar disorder, and hepatitis B and C
and that he was taking blood pressure medications. (Docs. #
98-4 and 89-5). Smith also told the SHP nursing staff that he
had overdosed on heroin in January 2014 and had attempted
suicide “over a year ago.” (Doc. # 89-5). That
same day, the SHP physician on staff at the CCDC, Dr. Mina
Kalfas (also a named defendant), gave orders for detox and
blood pressure monitoring. (Doc. # 89-6). Smith's
medication reconciliation from CVS Pharmacy showed that his
current medications were Lisinopril, HCTZ, Zantac, Cymbalta,
Elavil, and Lithium, which all had been filled on January 2,
2015. (Doc. # 89-7). On February 3, 2015, Smith refused to
allow SHP head nurseKrista Slayback (a named defendant) to
evaluate him for his antidepressant medications, Elavil and
Cymbalta. Id. Smith also declined further detox
monitoring on February 4th. Id.
February 5, 2015, Smith requested medical assistance by
submitting a “Sick Call Slip, ” complaining of
“Chronic Pain Due to Back” and indicated that it
had been going on for the past two weeks. (Doc. # 98-5). SHP
nurse Amanda Clarkson (who is also a named defendant)
responded to the Sick Call Slip on February 7th and recorded
the results on a “Clinical Pathways/Patient Clinical
Data Form.” (Doc. # 89-11). Smith described his pain as
“aches” and stated that his pain level was 8 out
of 10 on the pain scale. Id. He also reported that
his pain was greater with activity. Id. When asked
if he had had this pain before, his answer was
“no.” Id. Despite Smith being
“very verbal” about his pain and his statement
that his pain level was 8 out of 10 on the pain scale, Nurse
Clarkson perceived Smith to be in only “slight
pain” because he did not manifest physical symptoms of
extreme pain, including sweating or difficulty breathing.
(Doc. # 98-6 at 59). Nevertheless, Nurse Clarkson observed
that Smith's vital signs were “slightly elevated,
” so she recommended a three-day regimen of ibuprofen
400 mg, which Dr. Kalfas prescribed. (Docs. # 89-6 and 98-6).
filled out his second Sick Call Slip on February 8, 2015,
writing “Back Pain Severe.” (Doc. # 98-7). Nurse
Julia Schlake (not a named defendant) responded to
Smith's Sick Call Slip on February 9, 2015. (Doc. #
98-8). Again, Smith complained of constant pain that was 8
out of 10 on the pain scale and that had started two weeks
ago. Id. Smith also stated that the increased pain
began when he “sneezed and felt like he [had] pulled a
muscle.” (Doc. # 89-13). Nurse Schlake determined that
Smith's vital signs were “elevated, ” but did
not prescribe any additional treatment, as Smith was still
taking ibuprofen. (Doc. # 98-9 at 47). Later on February 9th,
Smith was seen by SHP Nurse David Watkins (not a named
defendant), although no written record of this visit exists.
(Doc. # 98-10 at 46).
February 10th, Nurse Leslie Doremus (also a named Defendant)
attempted to conduct a “History and Physical
Assessment” for Smith, but he declined, stating
“Don't need one.” (Doc. # 89-14). On February
11th, Smith submitted a third Sick Call Slip, on which he
wrote “Upper back Disc . . . as well as breathing due
to Spinal Compression!! Please Help!!” (Doc. # 98-11).
He also wrote that had experienced the problem for
“years but last two weeks.” Id. Nurse
Schlake responded on February 12th and noted that Smith was
experiencing pain in the middle of his back that was a 10 on
the pain scale. (Doc. # 98-12). Smith once again told the
nurse that the onset of back pain corresponded with a sneeze
two weeks prior to entering CCDC. Id. Nurse Schlake
recommended Tylenol, which Dr. Kalfas prescribed that same
day. (Docs. # 89-6 and 98-12).
filed his fourth Sick Call Slip on February 13, 2015, which
stated “Need to See Doctor ASAP Back.” (Doc. #
98-13). Smith was seen by Nurse Clarkson on February 14th.
(Doc. # 98-14). In her evaluation, Nurse Clarkson noted that
Smith described his back pain as “sharp, aches, ”
and that his pain was at ¶ 10 on the pain scale.
Id. She also noted “prior back injury”
and that his vital signs were normal. Id. Nurse
Clarkson did not recommend new treatment. Id.
February 15, 2015, Smith sent in his fifth Sick Call Slip,
complaining of “Back Pain Numbness and Tingling Extra
Strength Tylenol and See The Doctor!!” (Doc. # 98-15).
Smith was seen by Nurse Doremus on February 16th. (Doc. #
89-20). During this visit, Smith stated that his back pain
started in 2007 when he was “hit by a tractor” in
an accident. Id. Smith further reported that his
pain was constant and a 5 out of 10 on the pain scale.
Id. Despite mentioning numbness and tingling in his
Sick Call Slip, the Clinical Pathways form that Nurse Doremus
filled out did not mention numbness or tingling. Smith was
prescribed Naproxen 500 mg for his pain. (Docs. # 89-6 and
Kalfas examined Smith for the first time on February 17,
2015. During the examination, Smith complained of “back
pain, neck mid back pain.” (Doc. # 98-17). Dr. Kalfas
recorded that Smith had seen a chiropractor at age fifteen
and was hit by a forklift in 2007, resulting in a
“crushed” L5-S1 in his back. Id. Dr.
Kalfas noted that Smith received treatment for his back from
Dr. Hanson, who performed “epidurals and dye.”
Id. In addition, Smith reported problems with his
left ankle, knee, and with heartburn. Id. Dr. Kalfas
also observed that Smith had been on heroin, that he had not
had any recent Lithium labs, and that he had no upper
extremity or lower extremity symptoms at the time. (Docs. #
98-17 and 49-7 at 107). Based on his examination and review
of Smith's health history, Dr. Kalfas diagnosed Smith
with degenerative disc disease that caused chronic back and
neck pain. (Doc. # 49-7 at 107). As treatment, he prescribed
Voltaren (an anti- inflammatory gel) and Baclofen (a muscle
relaxant). (Doc. # 98-17). Dr. Kalfas also prescribed
Prilosec for Smith's heartburn and ordered labs for
Lithium. (Docs. # 89-6, 98-17, and 49-7 at 107).
February 22, 2015, Smith complained of pain in his lower
back, along with tingling and numbness in his lower
extremities. (Doc. # 98-22). He also indicated that the pain
interfered with walking. (Doc. # 98-22). Nurse Doremus
completed an examination, during which she noted Smith had
facial grimacing. (Doc. # 98-22). Nurse Doremus did not
record Smith's pain level, nor did she complete a
Clinical Pathways form. (Doc. # 98-16 at 44, 47). She
reported Smith's symptoms to Dr. Kalfas, who prescribed a
higher dose of Baclofen. (Docs. # 89-6 and 98-19).
early morning of February 25, 2015, Smith approached Deputy
Rickey Pemberton, who noticed that Smith was “breathing
heavy and was in pain.” (Doc. # 98-20 at 2). Smith told
Deputy Pemberton that if he wasn't sent to the hospital
to treat his pain, he would swallow a razor blade.
Id. Noticing what appeared to be metal in his mouth,
Deputy Pemberton contacted SHP Nurse Marissa Sparks, who was
unable to contact her supervisor. (Doc. # 98-21 at 4-5).
After some time, Smith revealed that the “razor
blade” was in fact a metal washer and that he was just
trying to get some help because he was in so much pain.
Id. at 3. Later on February 25th, Smith was
evaluated by a social worker at NorthKey mental health
clinic, who noted that Smith reported back pain and had
threatened to swallow a razor blade if not treated. (Doc. #
98-23). The social worker also noted that Smith apologized
and stated that he wanted treatment for his pain.
Id. Smith reported to the social worker that he had
attempted suicide in 2002 and 2011. Id. As a result
of this incident, Smith was assessed as a high risk for
suicide, placed in an anti-suicide smock, and relocated to an
observation cell. (Doc. # 98-22). Smith was taken off suicide
watch that same afternoon. Id.
February 26, 2015, Smith submitted his sixth Sick Call Slip,
complaining of “Back Pain, Possible Bulging Discs Need
to See Doctor Need X Rays Immediately.” (Doc. # 98-24).
He wrote on the Sick Call Slip that he had had the problem
for 25 days. Id. Smith was tended to by Nurse
Doremus, who took Smith's vitals and referred him to Dr.
Kalfas. (Doc. # 98-22). There is no indication in the record
that Doremus completed a Clinical Pathways form for this
that day, Smith was examined by Dr. Kalfas for the second
time. Id. Smith complained to Dr. Kalfas of
increased pain in his back and right buttock. Id.
Dr. Kalfas acknowledged that he would have reviewed the
progress note from February 22nd, which indicated that Smith
had complained of numbness and tingling in his legs as well
as difficulty walking. (Doc. # 49-7 at 92). Smith also claims
to have told Dr. Kalfas during this visit that he was
experiencing “sporadic paralysis.” (Doc. # 98-45
at 5). In his evaluation, Dr. Kalfas noted that Smith had
sustained injuries in multiple motor vehicle accidents,
including a forklift injury in 2007. (Doc. # 98-22). Dr.
Kalfas performed a straight-leg-raise test, which revealed
radiating pain. Id. Smith also reported pain when
bending axially and cried out when Dr. Kalfas put pressure on
several para-spinal areas. Id. Despite this, Dr.
Kalfas diagnosed Smith with malingering, observing that Smith
exaggerated his pain and his gait. (Docs. # 49-7 at 96 and
98-22). In addition to his exaggerated gait, Dr. Kalfas
recorded that Smith “cried out excessively, ”
(Doc. # 98-22), in one instance shouting “oh, oh”
as Dr. Kalfas pressed lightly on his head. (Doc. # 49-7 at
98). Dr. Kalfas also stated in his deposition that he
suspected Smith to be malingering “[b]ecause he wanted
to go to the hospital.” Id. at 93. In response
to Smith's complaint of sporadic paralysis in his legs,
Dr. Kalfas advised that he could still walk because he was
capable of moving his toes. (Doc. # 98-45 at 5). Also during
this evaluation, Smith requested an X-ray, which Dr. Kalfas
declined, citing “no recent trauma.” (Docs. #
49-7 at 99 and 98-22). Dr. Kalfas also noted that Smith had
no swelling or inflammation and no motor or sensory deficits.
(Doc. # 98-22). Notably, Dr. Kalfas did not order any
treatment as a result of this second examination. (Doc. #
49-7 at 100).
February 27, 2015, Officer Alexander Fead wrote in an
incident report that he had heard Smith moaning while
“slowly attempting to sit in a chair.” (Doc. #
98-26). Smith told Officer Fead that he was experiencing back
pain. Id. Officer Fead notified Nurse Schlake, who
said that she “would contact the doctor to see if
anything could be done. Id. Also on February 27th,
Smith submitted a Campbell County Inmate Grievance Form, on
which he wrote
Issues I have is medical refuses to find solution by looking
into cause by x -Ray. They think trying to mask the pain
external with medication. But without knowing cause. How can
you treat the problem and letting problem get works and cause
more damage. Back problems can lead to paralysys or death!!I
cause issues within the dorm by excess painful out crys
through out the night!! If you heard any details ask any
night officers who have seen me in degress of health!!Please
I just want to find out problem before any more damage
encures. P.S. medical staff as well as Dr. Calvis. I believe
E.R. would be only option! Thank you.
(Doc. # 98-27).
March 1, 2015, Smith sent in his seventh Sick Call Slip,
stating “No Improvement In Back!! Getting Worse and
Causing Breathing Problems and Sore Ribs!! Also Need
Treatments for Heels Cracked Bad!!” (Doc. # 98-28).
While on an observation round at 7:30 a.m. on March 2nd,
Officer Tyler Holzschuh heard Smith making “audible
‘grunting' sounds as if he was in pain.”
(Doc. # 98-31). Officer Holzschuh wrote in his report that
“Smith was observed laying in his bunk, out of breath
and stated ‘my legs are numb, I can't feel my legs
all the way up to my waist.'” Id. After
reporting the incident to his supervisor, Officer Holzschuh
called Nurse Slayback, who advised Officer Holzschuh that
Smith was “faking” and that he was already on the
sick call list for later that morning. Id. According
to Officer Holzschuh, Nurse Slayback told him that Smith
“had ready seen the doctor twice in the past month for
the same issue.” Id. Nurse Slayback also
stated that “for the numerous times he has been
evaluated for the same issue by the medical department,
Inmate D. Smith needed to be placed into medical isolation
for observation.” Id. Officer Holzschuh
testified that at the time of his report, Smith was being
housed in “DS-3 203 A, ” an isolation cell used
for inmates who have medical issues or disciplinary problems.
(Doc. # 98-32 at 6). Holzschuh indicated that Smith had been
moved into isolation because he was disturbing other inmates
by crying out in pain during the night. Id. at 7.
was seen by Nurse Slayback twice on March 2nd. At 11:20 a.m.,
Nurse Slayback noted that Smith complained of back pain and
numbness in both legs. (Doc. # 98-29). She observed that
Smith was not answering her questions and continually moaned.
Id. Nurse Slayback ordered that Smith be held in
isolation for “abuse of medical services.”
Id. Later at 1:56 p.m., Nurse Slayback observed that
Smith was able to bear weight and move all of his
extremities. Id. He continued to moan, yell, and
scream. Id. Nurse Slayback recommended that Smith
get an X-ray, which Dr. Kalfas approved. (Doc. # 49-5 at
48-49). Smith received an X-ray on March 2, 2015, which
showed degenerative disc disease in the thoracic and lumbar
spine. (Doc. # 89-26).
March 3, 2015, Officer Patricia Dietz was notified that Smith
had urinated on himself. Smith told her that he was unable to
walk and could not move to get water or to use the restroom.
(Doc. # 98-33). Officer Dietz spoke with Nurse Schlake, who
said that Smith had received X-rays, which showed no broken
bones. (Doc. # 98-33). Smith was given a jug of water and his
pants were taken to be washed. (Doc. # 98-33). Also on March
3rd, Smith was seen by Dr. Kalfas for the third time, who
reviewed the X-ray results and noted that Smith complained of
increased pain. (Doc. # 98-29). Dr. Kalfas acknowledged that
he would have seen the progress notes from the day before
stating that Smith complained of bilateral leg numbness and
was seen moaning, yelling, and screaming. (Doc. # 49-7 at
58). He also states in his notes that Smith had back issues
and testified that Smith “appeared to be in some
pain.” Id. at 69. Nevertheless, Dr. Kalfas
concluded once again that Smith was malingering. (Doc. #
98-29). According to Dr. Kalfas's notes, a sensory
examination of Smith's lower extremities was
“inconsistent.” Id. He wrote that Smith
would withdraw his feet in response to stimuli but act as if
he didn't feel anything. Id. Dr. Kalfas also
observed that Smith's deep tendon reflexes were 2 and
symmetrical, the pulses were intact, and he had good strength
and coordination of his lower extremities. Id.
Finally, when Smith told Dr. Kalfas that he was unable to
walk, Dr. Kalfas told Smith that he “need[ed] to get up
and walk!” and explained in his deposition
that this command “ha[d] a little bit of forcefulness
behind it.” (Doc. # 49-7 at 63). Dr. Kalfas testified
that after he ordered Smith to walk, Smith “got up
slowly and he limped a little bit and seemed to, after a
couple steps, move a little better.” (Doc. # 49-7 at
69). Dr. Kalfas ordered no new treatment or diagnostic tests
as a result of this third exam.
p.m. on March 3rd, Officer Dietz received a phone call from
Smith's sister, Casey Simon, who requested that her
brother be taken to the hospital because he could not feel
his legs. (Doc. # 98-35). Smith's sister called again on
March 4th at 1:57 p.m., this time speaking with Nurse
Slayback. (Doc. # 98-37). Smith's sister told Nurse
Slayback that Smith was not mentally stable and that she was
concerned for his safety. Id. She also told Nurse
Slayback that Smith was unable to move his legs and that he
needed to be transferred to the emergency room. Id.
Nurse Slayback told Smith's sister that Smith had been
evaluated by the prison doctor and that “if any issues
arise [Smith] will be treated.” Id. Later on
March 4th, Smith was again placed on suicide watch after
Nurse Slayback observed multiple scratch marks on Smith's
left forearm. (Doc. # 98-37). According to Nurse
Slayback's Progress Notes, Smith denied any suicidal
ideations and claimed the scratches resulted from the wall.
Id. While on suicide watch, Smith was observed
yelling. (Docs. # 98-10 at 3 and 98-38).
March 5, 2015 at 5:00 a.m., Smith was observed laying on the
floor of his cell yelling for help. (Doc. # 98-40). Sergeant
Pemberton and three deputies responded to Smith's cell.
Id. Smith told the officers that that he had fallen
from his bunk and couldn't get up, but that he did not
want assistance in returning to his bunk for fear of
“hurting his back worse.” Id. Smith
further stated that he did not want anyone but a “St.
Elizabeth [Hospital] medical professional” to help him.
Id. Sergeant Pemberton told Smith that “you
have been checked by our medical staff, had xrays, and they
the medical staff say that you can walk.” Id.
Later at 8:30 a.m., Nurse Slayback observed Smith sleeping on
his stomach on the floor. (Doc. # 98-37). Nurse Slayback
examined Smith when we woke up less than two hours later.
Id. Nurse Slayback noted that she witnessed Smith
move his legs and wiggle his toes despite his claims to the
contrary. (Doc. # 49-5 at 32). Nevertheless, Nurse Slayback
decided to transport Smith to St. Elizabeth Hospital for
evaluation of Smith's mental status and because of
“psychosomatic complaints of lower extremity
paralysis.” (Docs. # 49-7 at 45 and 98-37). She
testified that Smith was able to bend his knees in the
process of moving him into the wheelchair and did not appear
to be in pain. (Doc. # 49-5 at 33). She also observed that he
was able to stand and walk with the assistance of one person
on each side. Id. at 34. Numerous officers who
transported Smith to the hospital corroborated Nurse
Slayback's account. For instance, Officer Joan Warfield
noted that “[a]s deputies and medical personnel were
helping [Smith] to the wheel chair he was moving his legs and
at the same time stating he could not move them.” (Doc.
admission to St. Elizabeth Hospital in Edgewood, Kentucky,
Dr. Laroy Kendall noted that Smith complained of back pain,
difficulty walking, and abdominal pain. (Doc. # 98-43). Dr.
Kendall also observed that Smith “reports that he
cannot move his lower extremities but has been witnessed to
move them on several occasions and did move them for
me.” Id. Doctors at St. Elizabeth later
determined that Smith had a spinal abscess and osteomyelitis
of the spine. (Doc. # 98-39). Doctors performed an emergency
L7-10 laminectomy on the afternoon of March 5, 2015.
Id. Also on March 5th, Nurse Schlake wrote that
Deputy O'Brien had received reports from inmates that
Smith was giving away his commissary and food trays in
exchange for getting assaulted so that he could go to the
hospital. Id. Smith was discharged on April 30,
2015, at which point he was determined to be paraplegic with
“trace” movements of his legs. (Doc. # 89-1 at
8). Smith was then transported to Gateway Rehabilitation
Hospital. Id. Upon discharge from Gateway on May 27,
2015, Smith was diagnosed with the “effects of spinal
epidural abscess with MRSA with paraplegia.”
Id. At the time of discharge from Gateway, Smith was
unable to move or ambulate. Id.
January 29, 2016, Smith sued Campbell County, Jailer James
Daley, SHP, Dr. Kalfas, and nurses Anna Nash, Marissa Sparks,
Amanda Clarkson, Leslie Doremus, and Krista Slayback, and ten
John and Jane Does. (Doc. # 1). Plaintiff alleged that
defendants exhibited deliberate indifference to his serious
medical needs in violation of the Eighth and Fourteenth
Amendments to the U.S. Constitution. (Doc. # 1 at 8-9).
Plaintiff also brought pendant state claims, including
negligence, outrage, intentional infliction of emotional
distress, and violation of Kentucky Administrative Regulation
(“KAR”) 501 3:090. (Doc. # 1 at 9-10). On April
30, 2018, both the SHP and County Defendants filed Motions
for Summary Judgment on all claims. (Docs. # 89 and 91).
Plaintiff filed Responses (Docs. # 98 and 99), to which both
sets of Defendants replied. (Docs. # 100 and 101).
Standard of Review
judgment is appropriate when the record reveals “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). A genuine issue of material fact exists
where “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The “moving party bears the burden of showing
the absence of any genuine issues of material fact.”
Sigler v. Am. Honda Motor Co., 532 F.3d 469, 483
(6th Cir. 2008). Once a party files a properly-supported
motion for summary judgment, by either affirmatively negating
an essential element of the non-moving party's claim or
establishing an affirmative defense, “the adverse party
must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250.
However, “the mere existence of a scintilla of evidence
in support of the [non-moving party's] position will be
insufficient.” Id. at 252.
Court must “accept Plaintiff's evidence as true and
draw all reasonable inferences in his favor.”
Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th
Cir. 2014) (citing Anderson, 477 U.S. at 255). The
Court may not “make credibility determinations”
or “weigh the evidence when determining whether an
issue of fact remains for trial.” Id. (citing
Logan v. Denny's, Inc., 259 F.3d 558, 566 (6th
Cir. 2001)). “The ultimate question is ‘whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.'” Back
v. Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012)
(quoting Anderson, 477 U.S. at 251-52). If there is
a dispute over facts that might affect the outcome of the
case under governing law, the entry of summary judgment is
precluded. Anderson, 477 U.S. at 248.
moving parties, the Defendants must shoulder the burden of
showing the absence of a genuine dispute of material fact as
to at least one essential element of each of Plaintiff's
claims. Fed.R.Civ.P. 56(c); see also Laster, 746
F.3d at 726 (citing Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986)). Assuming Defendants satisfy their
burden, the Plaintiff “must-by deposition, answers to
interrogatories, affidavits, and admissions on file-show
specific facts that reveal a genuine issue for trial.”
Laster, 746 F.3d at 726 (citing Celotex
Corp., 477 U.S. at 324). Furthermore, “the trial
court no longer has a duty to search the entire record to
establish that it is bereft of a genuine issue of material
fact.” Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479-80 (6th Cir. 1989).
preliminary matter, the Defendants identified in
Plaintiff's Complaint as “John and Jane Does
1-10” must be dismissed under Federal Rule of Civil
Procedure 4(m), which states that “[i]f service . . .
is not made upon a defendant within 120 days after the filing
of the complaint, the court . . . shall dismiss the action
without prejudice as to that defendant . . . .” As
Plaintiff provides no evidence that these pseudonymous
defendants have been served, all claims against those
defendants must be dismissed without prejudice. Fed. R. Civ. P
4(m); see Petty v. Cty. of Franklin, 478 F.3d 341,
345 (6th Cir. 2007).
Defendants Anna Nash and Marissa Sparks
Response to the SHP Defendants' Motion for Summary
Judgment, Plaintiff concedes that the facts do not support
any of his claims against Defendant nurses Anna Nash and
Marissa Sparks. (Doc. # 98 at 22). After reviewing the
record, the Court agrees. Accordingly, all of Plaintiff's
claims against Anna Nash and Marissa Sparks are
dismissed with prejudice.
Section 1983 Deliberate Indifference Claim
the County and SHP Defendants seek summary judgment on
Plaintiff's § 1983 claim. To prevail on a claim
under 42 U.S.C. § 1983, a plaintiff “must
establish that he was  denied a constitutional right, and
 that the deprivation was caused by a defendant acting
under color of state law.” Carl v. Muskegon
Cty., 763 F.3d 592, 595 (6th Cir. 2014). The Court will
address the second element first.
Under color of state law
the exception of Dr. Kalfas, none of the Defendants dispute
that the second element is met in this case. Counties are
suable “persons” under § 1983. Alkire v.
Irving, 330 F.3d 802, 814 (6th Cir. 2003) (citing
Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978)); see also Jones v. Muskegon Cty., 625 F.3d
935, 946 (6th Cir. 2010). Furthermore, county correctional
institutions and their employees are routinely regarded as
acting under color of state law. See, e.g.,
Blosser v. Gilbert, 422 Fed.Appx. 453, 456 (6th Cir.
2011); Jones, 625 F.3d at 944-46. Therefore,
Campbell County and Campbell County Jailer James Daley may
both be sued under § 1983.
SHP and its employees, including the nurse defendants in this
case, are subject to suit under § 1983 because they
acted under color of state law. “It is well settled
that private parties that perform fundamentally public
functions, or who jointly participate with a state to engage
in concerted activity, are regarded as acting ‘under
color of state law' for the purposes of §
1983.” Bartell v. Lohiser, 215 F.3d 550, 556
(6th Cir. 2000). “Contracting out prison medical care
does not relieve” the Commonwealth or its counties of
the “constitutional duty to provide adequate medical
treatment to those in its custody, and does not deprive . . .
prisoners of the means to vindicate their”
constitutional rights. West v. Atkins, 487 U.S. 42,
56 (1988); see also Hicks v. Frey, 992 F.2d 1450,
1458 (6th Cir. 1993). Thus, SHP and its employees are suable
persons under § 1983.
Dr. Kalfas contends-without citation to case law-that he did
not act under color of state law because he is an independent
contractor of SHP and not a direct employee. (Doc. # 89-1 at
14-15). In essence, Dr. Kalfas argues that while a private
contractor of a county jail is suable under § 1983, a
private subcontractor is not. Plaintiff argues to
the contrary, citing Carl v. Muskegon County, 763
F.3d 592 (6th Cir. 2014) for the proposition that “the
employment arrangement of an individual does not affect the
authority under which they act.” (Doc. # 98-19). The
Court agrees with Plaintiff on this point.
Carl, a county jail contracted out psychiatric
services to another county agency, which then hired a private
physician as an independent contractor. 763 F.3d at 594. The
court found that the physician could be sued under §
1983 because she was acting under color of state law.
Id. at 595. Carl held that in determining
whether a private prison doctor is a state actor for purposes
of § 1983, the key question is if the doctor
“exercise[s] powers which are traditionally exclusively
reserved to the state.” Id. (quoting
Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.
1992)). The court had no trouble in concluding that providing
medical care to individuals in state custody constitutes a
traditional state function. Id. at 596. Hence, the
Carl physician's psychiatric evaluation of the
incarcerated plaintiff was sufficient to qualify her as a
state actor. Id. Likewise in this case, Dr. Kalfas
was performing a traditional state function by treating
individuals, including Plaintiff, who were detained in the
CCDC. Therefore, Dr. Kalfas will be considered a state actor.
Kalfas counters that Carl is distinguishable because
the psychiatrist in that case contracted directly with a
county agency. (Doc. # 100 at 3). Yet, Carl makes
clear that “an employment relationship does not control
whether a private individual acts under color of state
law.” 763 F.3d at 597 (citing West, 487 U.S.
at 56). Rather, “[i]t is the physician's function .
. . that determines whether he is acting under color of state
law.” Id. (alteration in original) (quoting
West, 487 U.S. at 56).
just last year, the Sixth Circuit found that a private
subcontractor who provided healthcare in a county prison
could be subject to liability under § 1983. In
Winkler v. Madison County, 893 F.3d 877, 885 (6th
Cir. 2018), the court adjudicated a § 1983
deliberative-indifference claim involving a county that had
contracted with a private medical provider, Advanced
Correctional Healthcare, Inc., which “in turn entered
into a contract with Dr. Nadir H. Al-Shami to be the staff
physician at several county jail facilities.” Although
the court ultimately affirmed a grant of summary judgment for
all defendants, including Dr. Al-Shami, it easily concluded
that Dr. Al-Shami acted under color of state law, observing
that “[t]he principle is well settled that private
medical professionals who provide healthcare services to
inmates at a county jail qualify as government officials
acting under the color of state law for the purposes of
§ 1983.” Id. at 890. Thus, the Court
has little difficulty in finding Dr. Kalfas to have acted
under color of state law.
Deprivation of a constitutional right
concluded that all the Defendants in this case acted under
color of state law, the Court next turns to the first element
of a § 1983 claim -"whether there was an actionable
deprivation of a right secured under the Constitution or the
laws of the United States.” Miller v. Calhoun
Cty., 408 F.3d 803, 812 (6th Cir. 2005).
in state custody have a right to adequate medical care under
the Eighth Amendment. Harrison v. Ash, 539 F.3d 510,
518 (6th Cir. 2008). Pretrial detainees like Smith have the
same right by way of the Due Process Clause of the Fourteenth
Amendment. Richmond v. Huq, 885 F.3d 928, 937 (6th
Cir. 2018). The Sixth Circuit “has historically
analyzed Fourteenth Amendment pretrial detainee claims and
Eighth Amendment prisoner claims ‘under the same
rubric.'” Id. (quoting Villegas v.
Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th
establish a cause of action under § 1983 for failure to
provide adequate medical treatment, a pretrial detainee must
show that “the defendants acted with ‘deliberate
indifference to [his] serious medical needs.'”
Watkins v. City of Battle Creek, 273 F.3d 682, 686
(6th Cir. 2001) (quoting Estelle v. Gamble, 429 U.S.
97, 104 (1976)). A deliberate-indifference claim involves an
objective and subjective component. Richmond, 885
F.3d at 937-38. “The objective component requires the
plaintiff to show that the medical need at issue is
‘sufficiently serious.'” Id. at 938
(quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)). “A serious medical need is ‘one that has
been diagnosed by a physician as mandating treatment or one
that is so obvious that even a lay person would easily
recognize the necessity for a doctor's
attention.'” Harrison, 539 F.3d at 518
(quoting Blackmore v. Kalamazoo Cty., 390 F.3d 890,
897 (6th Cir. 2004)).
the Defendants in this case dispute that the objective
component has been satisfied. Nor could they, as Plaintiff
was diagnosed with an epidural abscess and osteomyelitis of
the spine resulting in sepsis and paraplegia. (Docs. # 89-1
at 8 and 98-39); see Taylor v. Franklin Cty., 104
Fed.Appx. 531, 538 (6th Cir. 2004) (finding that a plaintiff
whose undiagnosed spinal tumor resulted in paralysis had met
the objective prong of the deliberate-indifference test);
Ham v. Marshall Cty., No. 5:11-cv-11, 2012 WL
6675133, at *6 (W.D. Ky. Dec. 21, 2012) (holding that a jury
could find the ...