WENDI KYLE FLOWERS, Plaintiff(s), vs. THOMAS EARL BENNETT, et al., Defendant(s).



CV-00-PT-0773-M



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA, MIDDLE DIVISION



135 F. Supp. 2d 1150; 2000 U.S. Dist. LEXIS 20742



December 11, 2000, Decided

December 11, 2000, Entered







DISPOSITION: [**1] Defendant's motion filed on October 31, 2000 Denied.









COUNSEL: For WENDI KYLE FLOWERS, plaintiff: K Lee Cleveland, CLEVELAND & CLEVELAND PC, Jonathan E Lyerly, Birmingham, AL.


For THOMAS EARL BENNETT, defendant: Bart G Harmon, Robbie Alexander Hyde, WEBB & ELEY PC, Montgomery, AL.



JUDGES: ROBERT B. PROPST, SENIOR UNITED STATES DISTRICT JUDGE.



OPINIONBY: ROBERT B. PROPST



OPINION: [*1151]

MEMORANDUM OPINION

This cause comes to be heard upon the defendant, Thomas Earl Bennett's ("defendant") motion to Alter, Amend, or Vacate this court's prior Memorandum Opinion of October 17, 2000, filed October 31, 2000.

FACTS

To conserve time and space, this court incorporates by reference its statement of the facts contained in its Memorandum Opinion of October 17, 2000.

PROCEDURAL HISTORY

This court issued its October 17 Memorandum Opinion in response to the defendant's motion for summary judgment, filed July 31, 2000. In the Memorandum Opinion and the contemporaneously filed Order, this court denied the defendant's motion for summary judgment because it found that genuine issues of material fact existed as to whether the defendant's conduct constituted deliberate indifference to a serious medical [**2] need.

On October 31, 2000, the defendant filed the instant motion to alter, amend, or vacate the October 17 Memorandum Opinion and Order in light of the Eleventh Circuit's recent decision in Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000). The defendant argues that the evidence that the plaintiff has presented does not rise to the standard of deliberate indifference articulated in Taylor. The defendant quotes for the court the portion of Taylor in which, he argues, the Eleventh Circuit articulated a more recent, more rigorous standard:


"First, there must be, objectively speaking, conduct by public officials "sufficiently serious" to constitute a cruel or unusual deprivation-- one "denying 'the minimal civilized measure of life's necessities.'" Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324, 115 L. Ed. 2d 271 (1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981)). Second, there must be a subjective intent by the public [*1152] officials involved to use the sufficiently serious deprivation in order to punish. See Id. at 300, 111 S. Ct. at 2325."


221 F.3d at 1257. [**3] Later in the opinion, the court stated that a defendant's response to a medical need must be "poor enough to constitute 'unnecessary and wanton infliction of pain,' and not merely accidental inadequacy" for the defendant to be found to have been deliberately indifferent. Id. The defendant argues that because, in light of the Eleventh Circuit's newest articulation of the deliberate indifference standard, the plaintiff's evidence is clearly insufficient, this court should amend or vacate its prior opinion and award summary judgment to him. Specifically, the defendant argues that the plaintiff's evidence shows only that the defendant made a poor decision that does not rise to the level of a denial of a measure of life's necessities with the intent to punish.

Finally, the defendant argues that he is entitled to qualified immunity because "there are no cases which hold that every arrestee who asks for immediate medical care should be given it." According to the defendant, the applicable case law does not truly compel the conclusion for every like-minded jail captain that placing the plaintiff on medical watch instead of providing her with insulin violates the law, citing Lassiter v. Alabama A&M University, 28 F.3d 1146, 1150 (11th Cir. 1994). [**4] The defendant maintains that "the law leaves room for a supervising jail official to take a wait and see attitude . . . to get medical care as the situation calls for it."

This court issued an order on November 7, 2000, directing the plaintiff to respond to the motion by either presenting evidence that met the standard expressed in Taylor or providing a reason that Taylor does not state the applicable law. The plaintiff responded on November 17, 2000, by arguing that the quotations from Taylor that the defendant presented to the court did not articulate the specific standard to be applied, but instead were statements of historical background information used to show how the elements of deliberate indifference were refined by later cases. The plaintiff cites to a subsequent portion of Taylor, in which the court stated that


"to show the required subjective intent to punish, a plaintiff must demonstrate that the public official acted with an attitude of 'deliberate indifference' which in turn is defined as requiring two separate things: 'awareness of facts from which the inference could be drawn that a substantial risk of serious harm exist [sic] and . . . drawing [**5] of the inference."


221 F.3d at 1258 (internal citations omitted). The plaintiff argues that the difference in the Taylor court's articulations of the standard and the applicable standard in this case lies in the differences between the types of defendants to whom they were applied. The plaintiff claims that the "subjective intent to punish" standard is applied in cases where medical personnel are involved and that the standard set forth in McElligott v. Foley applies in the case of non-medical officials. The standard articulated in McElligott is the framework in which this court analyzed the plaintiff's case in the October 17 Memorandum Opinion: (1) subjective knowledge of a risk of serious medical harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence. n1 182 F.3d 1248, 1255 [*1153] (11th Cir. 1999). The plaintiff contends that, as in this case, where the defendant is a non-medical person, the plaintiff can show subjective intent to punish by presenting evidence that the defendant disregarded a serious medical risk by conduct that was more than negligent, citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979, 128 L. Ed. 2d 811 (1994). [**6]



n1 In determining the point at which the conduct must lie along the spectrum between intent to harm and mere negligence, both the Eleventh Circuit and the Supreme Court have indicated that conduct amounting to recklessness, defined as the conscious disregard of a substantial risk of harm of which the defendant is aware, satisfies the fourth requirement. Farmer v. Brennan, 511 U.S. 825, 839, 114 S. Ct. 1970, 1980, 128 L. Ed. 2d 811 (1994); Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996).


The defendant, in his reply to the plaintiff's arguments, maintains that the evidence presented by the plaintiff does not show an "intent to punish," which, according to the defendant, is the current incarnation of deliberate indifference case law. The defendant argues that the plaintiff has not sufficiently distinguished Taylor to the point that it can be deemed inapplicable to this case. The defendant contends that, assuming that Officer Whatley told Bennett everything that she [**7] wrote in the incident report, "Bennett was never told that Flowers would go into a coma, only that Flowers told the jailer she would go into a coma by morning without insulin." n2 The defendant suggests that, even if he had been informed that the plaintiff had claimed that she would fall into a coma by the morning without insulin, delaying the provision of insulin was reasonable because, in the context of a jail situation, "those charged with crimes are often given to exaggeration, especially if it means getting out of jail." n3 The defendant also argues that placing the plaintiff on medical watch does not amount to taking no action at all, but instead, constitutes a reasonable decision in light of his knowledge that officer Nichols, who had received some medical training, would be at the jail that night "to take care of problems . . . as they arose." n4 The defendant acknowledges that, in hindsight, he perhaps should have been more wary of allowing the plaintiff to spend the night without insulin. However, he argues that "the qualified immunity doctrine means that government agents are not always required to err on the side of caution," citing Lassiter, 28 F.3d at 1149. [**8] Furthermore, the defendant compares himself to the nurse in Taylor, whom the Eleventh Circuit held to be entitled to qualified immunity from the charges of deliberate indifference because she took some action, even though the action was too little, too late. 221 F.3d at 1259. The defendant concludes by arguing that taking reasonable action, even if more could have been done, does not rise to the level of "denying the minimal civilized measure of life's necessities" and does not demonstrate an "intent to punish."



n2 The court assumes that the defendant is arguing that the prediction of a medical consequence is less reliable when it originates from a non-medical source. However, in Lancaster v. Monroe County, 116 F.3d 1419, 1422 (11th Cir. 1997), the warnings of impending medical consequences for which the Eleventh Circuit held the jailers accountable came from the detainee's wife and father, not from a physician or nurse.

n3 The defendant does not cite to authority for this presumption. The court doubts that it states a legal proposition.

n4 By making this argument, the defendant implies that medical consequences that are probably imminent become "problems" only when they become manifest, even when such medical consequences are preventable.


[**9]

ANALYSIS

In Taylor v. Adams, the Eleventh Circuit reversed the district court's denial of qualified immunity to three fire medics and a nurse sued in their individual capacities for the death of a pretrial detainee. [*1154] 221 F.3d at 1262. In reversing the denial of qualified immunity, the court found that the plaintiff had not alleged the deprivation of a constitutional right. Id. at 1257. n5 To arrive at the conclusion that the plaintiff had not alleged that he was deprived of a constitutional right, the court analyzed the requirements of proving a deliberate indifference claim.



n5 In a qualified immunity analysis, two questions arise: (1) Does the plaintiff allege the deprivation of a constitutional right; and (2) Was the law that the public official is alleged to have violated clearly established at the time of the incident giving rise to the suit. Id. at 1257. If either question is answered in the negative, the defendant is entitled to qualified immunity and summary judgment is proper. Id.


[**10]

First, the court stated that "there must be, objectively speaking, conduct by public officials "sufficiently serious" to constitute . . . 'denying the minimal civilized measure of life's necessities.'" Id. (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324, 115 L. Ed. 2d 271 (1991)). Then, the court imposed a requirement of "subjective intent by the public officials involved to use the sufficiently serious deprivation in order to punish." Id.

However, the court did not stop there. "In the context applicable here, denial of medical care, each of these minima has been more specifically described as encompassing two subsidiary requirements." Id. The court then went on to specify what a plaintiff must prove in order to show a sufficiently serious deprivation made with the subjective intent to punish. 221 F.3d at 1258. "To show an objectively serious deprivation, it is necessary to demonstrate, first, an objectively serious medical need . . . that, if left unattended, 'poses a substantial risk of serious harm,'" Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994)). Next, the [**11] plaintiff must show that "the response made by public officials to that need was poor enough to constitute 'an unnecessary and wanton infliction of pain,' and not merely accidental inadequacy, 'negligence in diagnosis or treatment,' or even 'medical malpractice' actionable under state law." Id. (quoting Estelle v. Gamble, 429 U.S. 97, 105-106, 97 S. Ct. 285, 291-292, 50 L. Ed. 2d 251 (1976)). Next, the court addressed the requirements for a plaintiff to show a subjective intent to punish: "To show the required subjective intent to punish, a plaintiff must demonstrate that the public official acted with an attitude of 'deliberate indifference.'" Id. (quoting Estelle, 429 U.S. at 105, 97 S. Ct. at 291). A plaintiff demonstrates deliberate indifference by showing two things: (1) "awareness of facts from which the inference could be drawn that a substantial risk of serious harm exists" and (2) the "drawing of the inference." Id. (quoting Farmer, 511 U.S. at 837, 114 S. Ct. at 1979). The court summed up the requirements as follows: "Ultimately, there are thus four requirements: an objectively serious need, an objectively insufficient [**12] response to that need, subjective awareness of facts signaling the need, and an actual inference of required action from those facts." Id. In so many words, to demonstrate the deprivation of one of life's necessities with the intent to punish, a plaintiff must show knowledge of a serious medical risk and a disregard of that risk by conduct that is more than mere negligence. Id.; McElligott, 182 F.3d at 1255. This court notes that the language "denial of a measure of life's necessities with the intent to punish" is somewhat ambiguous and could arguably allow for only the most extreme situations; for example, a situation in which an inmate has an appendicitis attack in his cell and notifies the guards only to have them laugh at him and walk away in order to punish him. It seems that the courts [*1155] have developed the four sub-part tests to lend specificity to the kinds of cases that qualify as deliberate indifference, but that fall short of this extreme.

Contrary to the defendant's argument, Taylor does not create a newer, more stringent standard for deliberate indifference. And contrary to the plaintiff's argument, the standard in Taylor and its ancestry applies [**13] across the board to all defendants regardless of whether their job descriptions include medical or non-medical activities. Current Eleventh Circuit precedent does not distinguish between medical and non-medical personnel with regard to application of the deliberate indifference standard. n6



n6 Supreme Court precedent does, however, provide a different standard for Eighth Amendment/Fourteenth Amendment mistreatment claims depending upon the factual context of the claim. For example, claims of prisoner/pretrial detainee mistreatment are analyzed under the deliberate indifference standard when they involve the alleged denial of medical care or the alleged failure to respond to a serious risk to inmate health and safety. Farmer, 511 U.S. at 834, 114 S. Ct. at 1977. A higher standard with a more culpable intent requirement is applied when the claim involves allegations of the use of excessive force. Id. ("that officials used force with 'a knowing willingness that harm occur.'").


Taylor is [**14] consistent with the prior Supreme Court deliberate indifference law upon which it relies, as well as Eleventh Circuit precedent. The Supreme Court has articulated the elements of deliberate indifference as an objective risk of serious harm and a subjective deliberate indifference to that risk with a state of mind "more blameworthy than negligence." Farmer, 511 U.S. at 834, 114 S. Ct. at 1977. In Farmer, the Supreme Court affirmed the existence of a subjective intent element in deliberate indifference cases. Id. at 839; 114 S. Ct. at 1980. The Court specifically adopted, as the test for the subjective element, the standard for criminal recklessness contained in Model Penal Code § 2.02(2)(c): to "'consciously disregard a substantial risk of serious harm.'" Id. As the Court explained later in the opinion, "Under the test we adopt today, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm."

It is significant to note that the Court [**15] adopted a standard that, on its face, does not refer to an intent to punish. In a prior section of the opinion, the Court suggested that the very existence of a subjective element in deliberate indifference recognizes that the Eighth Amendment prohibits "cruel and unusual punishments" instead of "cruel and unusual conditions." Id. at 837-838; 114 S. Ct. at 1979. The Court reasoned that having only an objective standard of the existence of a serious risk "unaccompanied by knowledge . . . might well be something society wishes to discourage . . . but an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. (emphasis added). The addition of the subjective elements of knowledge and reckless disregard, to the Court, "is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases . . . ." Therefore, the conclusion may be drawn that the Court provided for a "knowledge and reckless disregard" requirement to prove "intent to punish" and that, therefore, a showing beyond "knowledge [**16] and reckless disregard" need not be made to hold a prison official liable for the infliction of a punishment.

The Eleventh Circuit has stated that if a plaintiff demonstrates the defendant's subjective [*1156] deliberate indifference to an objectively sufficient risk of serious harm, he has, through that demonstration, shown that the defendant's actions "resulted in the denial of the minimal civilized measure of life's necessities." Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996). Again, it would seem that the proof of the subsidiary elements results in the proof of the whole.

The plaintiff has created genuine issues of material fact about (1) the seriousness of her medical condition and the likelihood that it would be exacerbated by lack of insulin; (2) whether she informed Whatley about her condition and whether Whatley informed Bennett about the existence of the condition and the probable consequences of inaction; and (3) whether Bennet, from the information Whatley provided, was able to draw the inference of the possible existence of a serious medical condition that, unless remedied, would deteriorate. She has thus created genuine issues of fact as to all of [**17] the sub-elements of deliberate indifference. If a jailer knows of the serious medical condition of an inmate, knows that by doing nothing it likely will worsen and, after time to reflect on the situation, decides to do nothing more than wait until it actually worsens before acting, an inference could be made that some sort of punitive intent motivated him. The problem with a subjective intent element is that one never really knows what was going through the defendant's mind. It is not likely that a normal defendant will ever deny medical attention to an inmate and then comment within hearing range, "That will teach him to not break the law."

With regard to the qualified immunity issue, the defendant's comparison of his actions to those of the jail nurse in Taylor, to whom the court held that qualified immunity should have been granted, ignores a key difference. In Taylor, the nurse's first encounter with the decedent occurred when he was lying, already unconscious, in the back of the paddywagon. 221 F.3d at 1256. She promptly ordered that he be taken to the hospital. Id. The court found that, with respect to the nurse, the plaintiff had not alleged a constitutional [**18] violation because a reasonable jury could not find that the nurse's conduct rose above mere negligence. Id. at 1260. The court emphasized the fact that the nurse had acted "under emergency circumstances demanding an immediate decision . . . ." Id. The defendant in the instant case did not act under the pressure of an emergency situation. Rather, the circumstances upon which this action is based could show that the defendant had, not one, but two chances to order that the plaintiff receive insulin (while on the phone with Whatley and Nichols), not to mention additional time with which to arrive, sua sponte, at the conclusion that the plaintiff should be given the prescribed insulin to ensure that she did not fall into a coma. n7



n7 Compare with Lancaster, 116 F.3d at 1427, where the court stated, "Furthermore, a jury could find that [the defendant] did not intend for Lancaster to receive treatment until he had a seizure."


While the defendant argues that Taylor stands [**19] for the broad proposition that "something is not nothing," Taylor's holding actually is much finer. The Eleventh Circuit has acknowledged that "treatment 'so cursory as to amount to no treatment at all'" constitutes deliberate indifference. 221 F.3d at 1259 (quoting Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985)). The court also stated that "so too does the delay of treatment for obviously serious conditions where 'it is apparent that delay would detrimentally exacerbate the medical problem,' the delay [*1157] does seriously exacerbate the medical problem, and the delay is medically unjustified." 221 F.3d at 1260 (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187-1189 (11th Cir. 1994)). n8 According to the court, a defendant's actions assume additional significance when viewed together with the amount of time that was given him to make the challenged decision. Id. ("These principles were, however, developed in contexts involving much longer time frames than the incident at issue here, and with those longer time frames, greater periods for reflection upon a course of action. . . . Determining where to draw the line [**20] between the constitutional and the unconstitutional in a split-second emergency choice between two options of the sort made here is a distinct task."). Therefore, depending upon the circumstances of the choice and the amount of time that the defendant received to make the decision, "something" can still amount to "nothing."



n8 Accord Lancaster, 116 F.3d at 1425: "Thus, if the individual defendants knew that Lancaster had a serious medical need, then they should have known from the clearly established law that a total failure to obtain medical treatment for him amounted to deliberate indifference. In addition, if the individual defendants knew that Lancaster's medical condition was either life-threatening or urgent and would be significantly exacerbated by delaying treatment until after the first seizure, then they should have known that their decision to withhold treatment until he experienced a seizure amounted to deliberate indifference."


CONCLUSION

This court adheres to its decision [**21] that issues of genuine material fact preclude an award of summary judgment, pursuant to the Eleventh Circuit's holdings in Aldridge v. Montgomery, 753 F.2d 970, 972-973 (11th Cir. 1985) (failure to administer physician-prescribed medication to a prisoner demonstrates deliberate indifference), Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir. 1985) (necessary medical treatment delayed for non-medical reasons makes out a case of deliberate indifference), Hill v. DeKalb County Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th Cir. 1994) (finding of deliberate indifference precludes award of qualified immunity), and Lancaster v. Monroe County, 116 F.3d 1419, 1425 (11th Cir. 1997)(case law clearly establishes that official is deliberately indifferent when he intentionally delays access to medical treatment knowing inmate has urgent medical condition that would be exacerbated by delay).

The opinion in Marsh v. Butler County, 225 F.3d 1243 (11th Cir. 2000), cited by this court in the October 17 Memorandum Opinion, was vacated on December 4, 2000, when the Eleventh Circuit granted [**22] an en banc rehearing. Marsh v. Butler County, 234 F.3d 1231, 2000 WL 1772691(11th Cir. 2000). In Marsh, an Eleventh Circuit panel stated that a plaintiff who had properly alleged that the defendant was deliberately indifferent to his serious medical need had, therefore, alleged facts sufficient to overcome the defendant's assertion of qualified immunity. 225 F.3d at 1257. The court stated that "as we noted in Hill, 'a finding of deliberate indifference necessarily precludes a finding of qualified immunity; prison officials who deliberately ignore the serious medical needs of inmates cannot claim that it was not apparent to a reasonable person that such actions violated the law.'" Id. (quoting Hill, 40 F.3d at 1187). The vacation of the September 7, 2000 Marsh opinion is another indication of the uncertainty in the area of qualified immunity.

Although the Marsh opinion has been vacated, the part of the opinion that precludes [*1158] a prison official from asserting qualified immunity if he is found to have been deliberately indifferent to the serious medical needs of an inmate can still be found in Hill, 40 F.3d at 1186 [**23] ("'A finding of deliberate indifference necessarily precludes a finding of qualified immunity; prison officials who deliberately ignore the serious medical needs of inmates cannot claim that it was not apparent to a reasonable person that such actions violated the law.'" (quoting Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir.1992))). Pursuant to Hill, the availability of qualified immunity to a deliberate indifference defendant, as this court noted in its October 17 Memorandum Opinion, involves a question of fact. Because the plaintiff has raised a genuine issue as to whether the defendant was deliberately indifferent, Hill appears to constrain this court from granting qualified immunity.

Even without Hill, there is good reason to believe that "clearly established" authority exists to deny qualified immunity in this case. In Lancaster, the Eleventh Circuit, citing Hill, stated that "the case law had made it clear that an official acts with deliberate indifference when he knows that an inmate is in serious need of medical care, but he fails or refuses to obtain medical treatment for the inmate." 116 F.3d 1419, 1425. The court continued, [**24] finding that "case law also had clearly established before this case arose that an official acts with deliberate indifference when he intentionally delays providing an inmate with access to medical treatment, knowing that the inmate has a life-threatening condition or an urgent medical condition that would be exacerbated by delay." Id. (citing Hill; Harris v. Coweta County, 21 F.3d 388, 394 (11th Cir. 1994) (sheriff not entitled to qualified immunity where he intentionally delayed treatment that he knew had been prescribed for inmate's serious medical need); Thomas v. Town of Davie, 847 F.2d 771, 773 (11th Cir. 1988) (delaying medical treatment for non-medical reasons constitutes deliberate indifference). The court then concluded that "thus, if the individual defendants knew that Lancaster had a serious medical need, then they should have known from the clearly established law that a total failure to obtain medical treatment for him amounted to deliberate indifference." The facts of Lancaster are similar to the facts of the instant case in that both defendants allegedly "waited for a manifest emergency before obtaining medical care." 116 F.3d [**25] at 1426. In Lancaster, the defendants, although they were warned that the detainee would likely begin to have seizures as a result of alcohol withdrawal, waited until the first seizure occurred before taking action. In the instant case, the plaintiff claims that, although the defendant allegedly was warned that she would likely fall into a diabetic coma by morning if she did not receive insulin the night before, he waited until the emergency was manifest before acting.

This court recognizes the apparent circularity of Taylor in holding that deliberate indifference requires subjective intent to punish which may be proved by deliberate indifference. Whether this apparent circularity creates law that is not clearly established is a different question. This court cannot conclude, but for a consideration of the objective language of the sub-tests in Taylor, Farmer, Cottrell, and Estell, that a reasonable jury could find that the defendant actually intended to "punish" the plaintiff. It appears, however, that, pursuant to those cases as well as Hill, the court must allow a jury to consider the totality of the evidence and possibly arrive at such a conclusion.

If it [**26] is not too late, the court invites a qualified immunity denial appeal. If there is such an appeal, perhaps the appellate [*1159] court could advise the parties and this court whether the jury must be instructed that an essential element that the plaintiff must prove is "intent to punish."

This 11th day of December 2000

ROBERT B. PROPST

SENIOR UNITED STATES DISTRICT JUDGE

ORDER

In accordance with a memorandum opinion filed contemporaneously herewith, the defendant's motion filed on October 31, 2000 is Denied.

This 11th day of December 2000

ROBERT B. PROPST

SENIOR UNITED STATES DISTRICT JUDGE

WENDI KYLE FLOWERS, Plaintiff(s), vs. THOMAS EARL BENNETT, et al., Defendant(s).



CV-00-PT-0773-M



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA, MIDDLE DIVISION



123 F. Supp. 2d 595; 2000 U.S. Dist. LEXIS 19518



October 17, 2000, Decided

October 17, 2000, Filed, Entered







DISPOSITION: [**1] All claims against defendant E. Allison Stevens Dismissed, with prejudice. Motion for Summary Judgment filed by defendant Bennett Denied.









COUNSEL: For WENDI KYLE FLOWERS, plaintiff: K Lee Cleveland, CLEVELAND & CLEVELAND PC, Jonathan E Lyerly, Birmingham, AL.


For THOMAS EARL BENNETT, ALLISON STEVENS, defendants: Bart G Harmon, WEBB & ELEY PC, Montgomery, AL.


For THOMAS EARL BENNETT, defendant: Robbie Alexander Hyde, WEBB & ELEY PC, Montgomery, AL.



JUDGES: ROBERT B. PROPST, SENIOR UNITED STATES DISTRICT JUDGE.



OPINIONBY: ROBERT B. PROPST



OPINION: [*596]

MEMORANDUM OPINION

This cause comes to be heard upon the defendants Thomas Earl Bennett (Bennett) and E. Allison Stevens's (Stevens) Motion for Summary Judgment filed on July 31, 2000. n1



n1 The plaintiff has acknowledged at pretrial conference that the claims against Stevens are due to be dismissed.


FACTS

On April 9, 1998, the plaintiff Wendi Flowers ("plaintiff") and her friend Laura Price were apprehended while attempting to leave a small community that had been [**2] destroyed by a recent tornado. A rocking chair was noticeably protruding from the trunk of Price's Mercedes Benz. A local resident had witnessed the plaintiff and Price remove the chair from a storm-damaged funeral home. After law enforcement officers caught the pair, they found marijuana during a consensual search of the Mercedes. The plaintiff and Price were arrested for felony looting and misdemeanor possession of marijuana and were transported and admitted to the St. Clair County Jail in Pell City.

As part of the booking process, Deputy Lance Bell asked the women a series of medical questions. The plaintiff informed him that she had diabetes and would need to take a dose of insulin that night. Bell noted the information on the plaintiff's booking form, as well as the observation that the plaintiff did not exhibit any abnormal or unusual behavior. Bell explained to the plaintiff that the jail nurse on duty was accustomed to caring for diabetic inmates.

As the plaintiff was being escorted to her cell by correctional officer Judy Whatley, she informed Whatley that she was a diabetic and would need to receive insulin that night. Whatley told the plaintiff that the jail nurse was [**3] off duty, but that she would personally do what she could to solve the problem. Whatley recorded the plaintiff's medical condition in an incident report and notified her superior, defendant Jail Captain Tom Bennett, of the plaintiff's condition as well. The content of Whatley's conversation with Bennett is in dispute. n2 Whatley also notified the next shift officer, Lisa Nichols, of the plaintiff's condition.



n2 There is a reasonable inference that Whatley told defendant Bennett what was in the incident report.


Later in the evening, Nichols checked the jail refrigerator for insulin to give to the plaintiff. The insulin that the jail possessed was not the kind that the plaintiff could use. Nichols called Bennett to tell him about the lack of useable insulin. Bennett, in turn, called his supervisor, defendant Chief Jailer E.A. Stevens. Stevens told Bennett to have the jailers put the plaintiff on "medical watch" and to summon professional medical assistance if necessary. Bennett then passed Stevens' instructions [**4] along to the jail staff. The defendants trusted that Nichols, whom they knew was a certified nursing assistant with EMT training and a good reputation for her diligent care of the inmates, would care for the plaintiff. Nichols had previous experience with diabetics and had observed the signs of diabetic ketoacidosis.

The events of the remainder of the evening are largely in dispute. However, it is undisputed that around 5:30 the next morning, Price summoned the correctional officers to the cell because the plaintiff was complaining about dizziness and shortness of breath, indicating that she was having an "attack." The plaintiff was taken to the hospital.

At the hospital, the plaintiff was diagnosed with having developed diabetic ketoacidosis, a life-threatening condition for diabetics. The hospital's records indicate that the plaintiff had told hospital staff that she had not taken insulin in twenty-four [*597] hours n3 and that she had suffered ten attacks of ketoacidosis within the last year. The hospital records also contain medical notes from the hospital's treating physician, Dr. Carl Frosina. The notes state that when the plaintiff's personal physician, Dr. Bell, was consulted about [**5] her condition, he informed Dr. Frosina that the plaintiff had been negligent in taking care of her diabetes and had not been to see him in quite some time. Flowers was administered fluids and insulin intravenously and was released from the hospital to the custody of the jail the next day, Saturday, April 11, at which time she made bond and was released.



n3 At the time that the plaintiff was admitted to the hospital, she had been in jail only 8-9 hours.


The plaintiff reports that, since her release, she is weak and has swollen ankles. Thus far, no medical professional has connected these complications with her experience in the jail. The plaintiff's personal physician has testified that any relationship between the plaintiff's night in jail and her weakness and swollen ankles is psychological, and admits that even this conclusion is based mostly on speculation.

The jail policy regarding inmates with medical conditions was to maintain a nurse during certain hours at the jail. After hours, the jail nurse, or a [**6] nurse at the local hospital would be "on call." In an emergency, the staff was authorized to call the nurse or a rescue squad. While at the jail, an inmate with a medical condition was to be placed on "medical watch," a procedure by which jail staff would observe the inmate frequently to monitor changes in his or her condition. The inmate was allowed to make one or more phone calls as necessary. The jail's medical procedures were originally memorialized in a jail procedure handbook that can no longer be found at the jail. According to the defendants, the handbook disappeared when the prior sheriff left office.

On March 27, 2000, the plaintiff filed a complaint against the defendants under 42 U.S.C. § 1983. Because the complaint was somewhat deficient (the plaintiff had neglected to allege the deprivation of a constitutional right), the plaintiff filed an amendment to the complaint on June 19, 2000, alleging violations of the plaintiff's Fourth, Eighth, and Fourteenth Amendment rights. Specifically, the plaintiff alleged that the defendants had actual knowledge of her condition and behaved with deliberate indifference when they failed to either telephone the [**7] on-call nurse, telephone the plaintiff's parents, or take the plaintiff to the hospital to receive insulin.

DISPUTED FACTS

The first dispute occurs with regard to the conversation between Whatley and Bennett in which Whatley informed Bennett about the plaintiff's medical condition. The substance of their conversation is not well-defined. Bennett claims that Whatley informed him that the plaintiff was a diabetic and needed insulin, but that she had taken a dose at dinnertime, would be fine until morning, and that the jail was following procedure. Whatley herself stated in her deposition that "I explained to [Bennett] that we've got the inmate in, and I was following procedure, which that is the procedure of the jail . . . and explained to him, and he said he would be checking on it as soon as possible." Whatley, depo., p. 25.

After Whatley led the plaintiff to her cell, she filled out an incident report. The report states that as Whatley "padded down (sic)" the plaintiff, the plaintiff informed her that she was a severe diabetic. Defendants' Exhibit 6. Whatley asked when the plaintiff had last taken insulin, and the plaintiff "told [her] she took a shot at supper." The [**8] plaintiff also informed Whatley that "she was on different types of insulin, and if she didn't take another [*598] shot at bedtime and before breakfast in [the morning], she would probably go into a diabetic coma because of the diabetic she was." Id. Whatley then records in the incident report that she called defendant Bennett and informed Lisa Nichols. Id. The plaintiff argues that, taking into account the information that the plaintiff claims she related to Whatley about her condition, a reasonable juror could infer that Whatley's "explanation" of the situation to Bennett included information that the plaintiff needed insulin that very evening or she would go into a diabetic coma.

The next disputed facts relate to Nichols' interaction with the plaintiff the evening that the plaintiff was admitted to the jail. First, Nichols claims that she offered to give the plaintiff the insulin that was in the jail refrigerator, but that the plaintiff had refused, saying that it was the wrong kind of insulin for her type of diabetes. n4 Nichols depo., 21-22, 24, 50. The plaintiff's physician testified that any type of insulin would have been beneficial to the plaintiff. Bell, depo., p. 98. The plaintiff [**9] denies that she was offered any insulin while at the jail. Flowers, depo., p. 187-188.



n4 Although Nichols actually recorded in the jail log that there was no insulin, she explained in her deposition that the notation referred to the fact that the jail had no insulin that Flowers could use.


Next, the plaintiff claims that Nichols refused to let her use the phone to call someone to bring her insulin. Flowers, depo., p. 179-180. The plaintiff claims that she was denied the opportunity to make any phone calls at all. Id. In direct contrast, Nichols stated in her deposition that, according to jail policy, she had offered to let the plaintiff call her parents to bring her insulin, but that the plaintiff had refused, saying that she was too embarrassed. Nichols depo., p. 23-24.

It is undisputed that defendant Bennett called defendant Stevens to inform him that the jail was housing a diabetic inmate. n5 The disputed fact is, again, the amount and specificity of the information that defendant Bennett related [**10] to defendant Stevens. Defendant Bennett claims that he related to defendant Stevens the same information that he claims Whatley gave to him: that the plaintiff was a diabetic, had taken insulin around dinnertime, and would probably be fine until the morning. Bennett, depo., p. 15. Because defendant Stevens cannot remember the conversation's taking place at all, he cannot recall what defendant Bennett said to him. The plaintiff argues that it should be inferred that defendant Bennett told defendant Stevens that the plaintiff would go into a diabetic coma if she did not receive insulin at bedtime, on the grounds that if it can be inferred that Whatley gave Bennett this vital information, it can be inferred that Bennett passed it along to his superior.



n5 Defendant Stevens can no longer "recall" this particular phone call, but he does not dispute defendant Bennett's statement in his deposition that he called Stevens. Stevens, depo., 24-46.


ARGUMENT

The plaintiff is suing defendant Bennett, Captain of the [**11] Pell City Jail, and E.A. Stevens, Chief Jailer over the St. Clair County Jails, for deliberate indifference to serious medical needs. In their motion for summary judgment, the defendants make two arguments: that the plaintiff cannot prove deliberate indifference as a matter of law and that the defendants are, at any rate, entitled to qualified immunity.


Deliberate indifference as a matter of law

The defendants argue that their conduct does not rise to the level of deliberate indifference. In the Eleventh Circuit, in order to establish deliberate indifference, a plaintiff must prove: "(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." McElligott v. Foley, 182 F.3d 1248, 1255 [*599] (11th Cir. 1999). The defendants claim that a defendant must be aware of an excessive risk of serious harm in order to be held liable for deliberate indifference. The defendants argue that they are entitled to summary judgment because the plaintiff cannot show that, at the time that they decided to place the plaintiff on medical watch, they were subjectively aware of an excessive risk of serious harm [**12] if the plaintiff did not receive insulin before the next morning.

The defendants point to their testimony of what they were told by jail staff that night. Defendant Bennett claims to have been told that the plaintiff would probably be fine until morning. The defendants argue that Bennett's testimony is corroborated by the testimony of Whatley, who did not describe in detail what she "explained" to defendant Bennett, but merely testified that she "explained" that procedure was being followed. The defendants also argue that defendant Stevens lacked this subjective knowledge as well, because when defendant Bennett contacted him to notify him of the situation, defendant Bennett was unaware of such a risk.

The plaintiff argues that at this stage in the litigation, all reasonable inferences are to be drawn in her favor. She maintains that it is reasonable to infer that Whatley would have informed defendant Bennett specifically that the plaintiff would go into a diabetic coma if she did not receive insulin at bedtime, because Whatley specifically included this information in the incident report. She also contends that if it is reasonable to infer that defendant Bennett possessed the information [**13] that the defendant would be at risk if she did not receive her insulin, it is reasonable to infer that defendant Bennett shared this information with defendant Stevens. The plaintiff asserts that it is also reasonable to infer that Lisa Nichols told defendant Bennett about the seriousness of the plaintiff's condition during their phone conversation about the unuseable insulin.

The defendants claim that this information is not sufficient to show that the defendants knew that the plaintiff was at risk of serious harm. The defendants add that the evidentiary proof is especially attenuated with regard to defendant Stevens. According to the defendants, they took the appropriate precautions in light of the information that had been given to them. They have cited cases in which the government defendants were exonerated from claims of deliberate indifference because of a lack of knowledge of the asserted serious needs or a lack of knowledge of circumstances that clearly indicated the existence of such needs. The defendants also remind the court that if the evidence does not show that they were deliberately indifferent to the plaintiff's medical needs, even if the evidence shows that a member [**14] of the jail staff was deliberately indifferent, they cannot be held liable for that person's actions. Respondeat superior liability is not available to a plaintiff to hold a government official liable for the actions of one of his subordinates under § 1983. Monell v. Department of Social Servs., 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).


Qualified Immunity

The defendants next argue that they are entitled to qualified immunity because their conduct did not violate a clearly established law. Public officials, including correctional officers, are protected from actions brought against them in their individual capacities by qualified immunity if their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known. Lassiter v. Alabama A&M Univ., 28 F.3d 1146, 1149 (11th Cir. 1994)(en banc). Unless the conduct that forms the basis for the suit violates clearly established federal constitutional rights of which a reasonable person would have known at the time that the alleged actions took place, the official will be protected not only from liability, but also from [**15] the lawsuit [*600] itself. Sanders v. Howze, 177 F.3d 1245, 1249 (11th Cir. 1999). "For a right to be clearly established, previous case law must have developed it in a concrete factual context so as to make it obvious to a reasonable government actor that his actions violate the law." Id., citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987); GJR Investments, Inc. v. County of Escambia, 132 F.3d 1359, 1366 (11th Cir. 1998).

The defendants argue that the plaintiff cannot show that prior case law has sufficiently defined the alleged unconstitutionality of the defendants' actions. The defendants point to Lancaster v. Monroe County, 116 F.3d 1419 (11th Cir. 1997) as an example of a case in which the plaintiff demonstrated that the law was clearly established. In Lancaster, the plaintiff was able to point to cases from both the Eleventh Circuit and the former Fifth Circuit that clearly stated that acute alcohol withdrawal syndrome was a serious medical condition and that refusal to obtain immediate treatment for an inmate with this condition amounted to deliberate indifference when the government [**16] actor knew that the plaintiff was suffering from it. Id. at 1425-1426. Referring to those cases, the Lancaster court noted that they "placed the defendants on notice of the seriousness of acute alcohol withdrawal syndrome and the need to obtain medical treatment for an inmate suffering from that condition." Id. at 1426. The court eventually found that the defendants were not entitled to qualified immunity. Id. at 1427. The defendants assert that, unlike the cases in Lancaster, there existed no materially similar case law on April 9, 1998 that would have placed the defendants "on notice" that diabetes is a "serious medical condition" and that a jail supervisor's failure to provide emergency treatment for a diabetic inmate when an emergency is not manifest demonstrates deliberate indifference.

The plaintiff contends that the law need not be established to the level of clarity that the defendants suggest. According to the plaintiff, instead of damaging her argument against qualified immunity, Lancaster supports it. The plaintiff argues that the Lancaster holding generally states that where the jailer is warned of the [**17] high risk of a medical consequence to the inmate's not receiving medication, but allows the medical consequence to occur by failing to provide the medication, his conduct rises to the level of deliberate indifference. The plaintiff also cites to Aldridge v. Montgomery, 753 F.2d 970, 972-973 (11th Cir. 1985), in which the Eleventh Circuit held that the failure to administer physician-prescribed medication to a prisoner demonstrates deliberate indifference to the prisoner's rights. The plaintiff provides a citation to Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir. 1985), in which the court stated that if necessary medical treatment was delayed for non-medical reasons, "a case of deliberate indifference has been made out." citing Archer v. Dutcher, 733 F.2d 14, 17 (2d Cir. 1984).

The plaintiff argues that case law does not have to clearly establish that the particular illness, in this case, diabetes, is a serious medical need. The plaintiff cites to Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176, 1187 (11th Cir. 1994) for the proposition that the number of serious medical needs is [**18] too large to be cataloged. Instead, the plaintiff claims that Hill holds that a serious medical need for the purposes of deliberate indifference is one for which a physician has diagnosed treatment or one so obvious that even a lay person would recognize the necessity of a physician's attention. Id. at 1187. The plaintiff notes that in Hill, the illness from which the plaintiff suffered was found to be a serious medical concern, even in the absence of prior case law. The plaintiff maintains that Hill, Aldridge, Ancata, and Anderson v. City of Atlanta, 778 F.2d 678 (11th Cir. 1985) clearly establish that a jailer cannot deny an inmate previously prescribed [*601] medical treatment for non-medical reasons. The plaintiff refers the court once again to Lancaster, in which the defendants were stripped of their qualified immunity because they knew that the plaintiff had an urgent medical need that would be exacerbated by delaying the treatment, but delayed the treatment anyway. 116 F.3d at 1427-1428.

ANALYSIS

A motion for summary judgment is to be granted if there is no genuine issue of material fact. United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991). [**19] A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. The evidence of the non-moving party is to be believed, and the court is not to attempt to perform jury functions such as credibility determinations. Id. After considering everything in the record, all permissible inferences are to be drawn in favor of the non-moving party. Clinkscales v. Chevron USA, Inc., 831 F.2d 1565, 1570 (11th Cir. 1987).

When the non-moving party has the burden of proof at trial, it must come forward with sufficient evidence on each element that must be proved. Earley v. Champion International Corp., 907 F.2d 1077, 1080 (11th Cir. 1990). If the evidence is merely colorable or is not significantly probative, summary judgment may be proper. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Summary judgment is appropriate if on any element there would be insufficient evidence to require submission of the case to a jury. Earley, 907 F.2d at 1080. "The plain language of Rule 56(c) mandates the entry of summary [**20] judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such circumstances, there can be 'no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 327 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986).

CONCLUSIONS OF THE COURT

There is no area of the law which is more confusing than qualified immunity, unless it is that of deliberate indifference. Here, we have both.

Viewed from the plaintiff's perspective, Whatley told defendant Bennett the following:

1. Flowers was booked at 9:59 P.M.

2. Flowers told Whatley that she was a severe diabetic, had taken an insulin shot at supper, and needed to take a different type of insulin shot at bedtime and before breakfast the following morning.

3. Flowers said that if she didn't have the shots she would probably go into a diabetic coma.

Apparently, Bennett instructed Nichols to watch the plaintiff and stated that [**21] he would call the nurse early in the morning if needed.

There are two issues here: (1) Did Bennett have a constitutional obligation under the Fourteenth Amendment to ensure that Flowers got appropriate insulin at bedtime and before breakfast? (2) If he had such a duty, was the law "clearly established" that he had the duty?

This court is of the opinion that the case is controlled by Aldridge v. Montgomery, 753 F.2d 970 (11th Cir. 1985); see also Marsh v. Butler County, 225 F.3d 1243, 2000 WL 1269769 (11th Cir. 2000). If someone needs to take different types of insulin, there is certainly a reasonable inference that it would have been prescribed as part of medical treatment. There may be conflicts in the evidence as to what Bennett knew, what action he did or did not take, what Flowers was offered and what she declined. If, however, the facts are that Bennett was told that Flowers was a severe diabetic [*602] who could go into a coma if she didn't receive insulin, he was arguably deliberately indifferent. If the plaintiff was given the opportunity to secure the insulin from her parents and failed to do so, there would likely, in any [**22] event, be no causation. The court concludes that this is one of those cases where there are factual disputes as to both the constitutional deprivation issue and the qualified immunity issue. n6 The motion will be denied as to defendant Bennett.



n6 In some cases, certain factual disputes involving even qualified immunity have to be submitted to the jury.


This 17Th day of October 2000

ROBERT B. PROPST

SENIOR UNITED STATES DISTRICT JUDGE

ORDER

In accordance with a Memorandum Opinion filed contemporaneously herewith, all claims against defendant E. Allison Stevens are Dismissed, with prejudice. The Motion for Summary Judgment filed by defendant Bennett is Denied.

This 17Th day of October 2000

ROBERT B. PROPST

SENIOR UNITED STATES DISTRICT JUDGE