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Pfiefer v. Hiland

United States District Court, W.D. Kentucky, Paducah

April 20, 2019

MARK PFIEFER, Administrator of the Estate of James Kenneth Embry, Deceased, PLAINTIFF


          Thomas B. Russell, Senior Judge

         This matter comes before the Court upon Defendant Steve Hiland, M.D.'s Motion for Summary Judgment. (R. 207). Fully briefed, the matter is ripe for adjudication. For the reasons that follow, Hiland's Motion is GRANTED IN PART, and DENIED IN PART.


         A. Inmate Embry's Death.

         James Embry was an inmate at Kentucky State Penitentiary (KSP). He suffered from bipolar and other mood disorders for which he received psychotropic medications while incarcerated. (R. 207-1, Ex. 12, Embry's Med. R., pp. 56-62). However, in May and June of 2013, those medications were discontinued by KSP mental health providers. (See Id.). In November of 2013, Embry was transferred to the Segregated Management Unit within KSP. While there, Embry made multiple request to mental health providers to be put back on his medications. (Id.). They refused. (Id.). From December to January, Embry made numerous complaints to mental health providers at KSP, telling them things such as, “I have nothing left to live for, ” “I don't feel good, I am up and down, ” and “I still want to hurt myself.” (Id.). In fact, Embry did hurt himself-twice. On December 10, 2013, Embry struck his head on his cell door, and was seen by a nurse. (Id.). The next day, Embry scratched his arm with a plastic spork. (Id.). Also from December to January, Embry started increasingly refusing meals. (Id.). By January, Embry was missing meals regularly. (Id.). Finally, on January 13, 2014, Embry was found dead in his cell from dehydration with contributing starvation, duodenal ulcer, and emphysema with right ventricle hypertrophy. (R. 207-1, Ex. 1, Med. Examiner's Rep., p.1).

         B. The KSP Nursing Staff.

         Throughout December and January the KSP nursing staff, along with various mental health professionals, came into contact with Embry and made decisions affecting his care. Specifically, KSP Nurse Jim Royster came into contact with Embry on January 4, 2014. On that occasion, Nurse Royster sent the following medical note to KSP Physician Steve Hiland and Nurse Practitioner Bob Wilkinson:

[Embry] states that he is weak and shaky. [Embry] appears pale and extremities shake. Advised [Embry] that best plan of action would be to resume eating. [Embry] states that he thinks it has been too long to resume now. Weight is 138, last recorded weight 9/26/13 of 170. This is a loss of 32 lbs. Will recheck weight and notify provider. [Embry] is also tachycardic. Unable to check b/p d/t.

(R. 207, Ex. 14, Embry's Med. R., p. 22). Similarly, KSP Nurse Bruce Bruaer was specifically involved, at least in some manner, with a decision concerning Embry's transfer from his cell to the infirmary the day he died. The extent of Bauer's involvement is disputed. Embry was never transferred from his cell. (R. 207, Ex. 12, External Movement Report). He died there. (Id.).

         There is evidence suggesting the KSP Nursing staff followed rules and policies created or promulgated by Dr. Hiland, the KSP Physician. (R. 224, Ex. 6, Bauer Depo. p. 14; R 224, Ex. 7, Secoy Depo. p. 120). There is also evidence that at least some of the KSP nursing staff thought there would be employment related consequences if they did not. (Id.). However, Dr. Hiland never issued any specific orders to any nurse at KSP regarding Embry's care.

         C. Doctor Hiland.

         Dr. Steve Hiland was a KSP Physician at the time of Embry's death. In fact, he was the only KSP Physician at that time. (R. 269, Hiland Depo., p. 134). Hiland claims he never treated Embry, and there is no evidence to the contrary. (Id. at p. 191). However, Hiland cosigned, with Nurse Practitioner Wilkinson, the January 4, 2014 medical note from Nurse Royster while on vacation.

         Hiland started vacation on January 3, 2014. (R. 207., Ex. 22, Crall Email; R. 207., Ex. 24, Hiland travel receipts). He did not return from vacation until after Embry's death. (Id.). There is no evidence Hiland knew Embry had skipped meals prior to the January 4, 2014. There is no evidence that Hiland was responsible for Embry's physical care while on vacation. To the contrary, there is evidence Hiland was not responsible for Embry's physical care on vacation. (R. 207, Ex. 8, Crall Depo., pp. 249-250). Instead, Nurse Practioner Bob Wilkinson was responsible for Embry's care while Dr. Hiland was on vacation. (Id.). There is nothing in the Record that suggest Hiland had reason to question Wilkenson's professional competency.

         There is no evidence Hiland was ever responsible for, or aware of, Embry's mental health. Indeed, there is evidence that Embry's mental health was outside Hiland's purview at KSP. (Id.; R. 207, Ex. 16. Hinkebein Depo., p. 227).

         D. The “Tea-Rule.”

         There is evidence that some of the KSP staff, including the KSP medical staff, followed the “tea-rule.” (R. 224, Ex. 6, Bauer Depo., pp. 24, 140; R. 224, Ex. 13, Wilkinson Depo., pp. 82, 90-91). The tea-rule was an unwritten policy dictating that if an inmate had any caloric intake, including from juice, or even tea (hence the name), that inmate was no longer classified as being on hunger-strike. There is evidence the KSP nursing staff adhered to the unwritten rule, that it was ...

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