Opinion
NO: 4:19CV27-M-P
05-07-2020
Frank K. JOYNER, individually and in his capacity as Administrator of the estate of Ryan Taylor Joyner, and on behalf of the wrongful death beneficiaries of Ryan Taylor Joyner; Beverly Buonviri, individually; and Drew Joyner, individually, Plaintiffs v. GRENADA COUNTY, MISSISSIPPI, et al., Defendants
George B. Ready, George B. Ready, Attorney, Hernando, MS, Ronald W. Lewis, Ronald W. Lewis, Attorney, Oxford, MS, for Plaintiffs. Robert J. Dambrino, III, Gore Kilpatrick & Dambrino, Grenada, MS, for Defendants.
George B. Ready, George B. Ready, Attorney, Hernando, MS, Ronald W. Lewis, Ronald W. Lewis, Attorney, Oxford, MS, for Plaintiffs.
Robert J. Dambrino, III, Gore Kilpatrick & Dambrino, Grenada, MS, for Defendants.
ORDER
Michael P. Mills, UNITED STATES DISTRICT JUDGE This cause comes before the court on the motion of defendant Nurse Petra Crowder Money, LPN for summary judgment, pursuant to Fed. R. Civ. P. 56. Plaintiffs Frank T. Joyner et al. have responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion is well taken and should be granted.
On February 15, 2019, plaintiffs filed this action against Grenada County, Mississippi and four of its employees, arising out of the February 13, 2017 death of Taylor Joyner while in custody at the Grenada County Jail. Joyner had been arrested that night for possession of heroin, and defendant's version of the facts surrounding his death while incarcerated are as follows:
Mr. Joyner was booked at approximately 7:02. a.m. and placed in cell B10, which was a holding cell1. Security checks on cell B10 (personnel looking into the cell to check on the inmates) occurred at 7:32 a.m., 10:05 a.m. and 10:57 a.m. Mr. Joyner exhibited no distress. At 12:00 noon Case Manager (county employee) Linda Evans heard a banging noise. Mr. Joyner had chills and was sweating. She called the jail nurse (Nurse Money) who came and got Mr. Joyner and brought him to the jail infirmary. There she administered tranxene, an alcohol withdrawal medication, at approximately 12:15 p.m. He then went back to his cell. She checked on him at 1:30 p.m. and found him sitting up. She checked again at 1:45 p.m. and again found him sitting up.
At approximately 2:00 p.m. Deputy Warden Tony Adams walked by the cell and observed Mr. Joyner on the floor of the cell with his head under a bench. Adams immediately called the jail nurse who came and attended to Joyner, found him non-responsive but alive, and called for an ambulance. The ambulance arrived approximately 7 minutes later and Mr. Joyner was transported to the University of Mississippi Medical Center-Grenada, where he arrived at 3:06 p.m. and was seen by Dr. Rick Carlton. After arrival Mr. Joyner was intubated and his vital signs began to improve. Nearly immediately, however, Mr. Joyner went into asystole (he coded); vigorous chest compressions, bagging, administration of bicarbonate and epinephrine were ineffective and Joyner was pronounced dead at 3:50 p.m.
[Defendants' brief at 2-3].
Following the filing of a motion for summary judgment by all defendants, plaintiffs have voluntarily dismissed all of their claims except those asserted against Nurse Money in her individual capacity. This court will therefore focus on the portion of plaintiffs' brief which describe the actions of this defendant. As to Nurse Money, plaintiffs allege the following facts regarding Joyner's treatment on the day of his death:
Nurse Crowder Money responded to Linda Evans' alert by taking Taylor into the infirmary cubicle, purportedly at 12:15 p.m. for an unclear span of time during which she noted that he was sweating profusely and had removed most, if not all, of his clothing. He was trembling so violently she could not take his vital signs. His teeth were chattering. He was very agitated, pacing and looking under a table and behind a door in a paranoid way. He said he felt dehydrated and hurting all over. He indicated he could hear voices and asked her if she heard them. She asked him if he had
consumed drugs. At first, he admitted only to using speed. Later he also admitted to using within the prior 24 hours heroin, Xanax, cocaine and THC (marijuana). Later lab blood tests also revealed he had methamphetamine in his system. Nurse Crowder Money gave him a 15 ml dose of Tranxene to help calm him during withdrawal even though she had been unable first to check his vital signs because of his agitation.
It appears that LPN Crowder Money violated Grenada Jail Policy number 17-008, Special Health Care Programs by retaining to herself the decision-making for supervising the detoxification of Taylor. That policy expressly requires that detoxification be supervised by a physician (or nurse practitioner, by implication). Money should have immediately contacted her supervisor, Michelle Rice, for advice, or alternatively, should have requested ambulance transport to the hospital emergency room upon determining that Taylor was in drug withdrawal.
It also appears that LPN Crowder Money violated Grenada Jail Policy number 17-001, which provides, "All matters of medical judgement (sic) are the sole province of the physician, psychiatrist or dentist working for or under contract with the facility". Again, LPN Crowder Money violated jail policy by not consulting with certified nurse practitioner Michelle Rice upon her initial realization that Taylor was in drug withdrawal. Rice, not Crowder Money, should have made the decision on administration of detoxification.
Nurse Crowder Money admitted in her deposition that when she could not take Taylor's vital signs, and after learning of the multiple drugs recently consumed by Taylor and his erratic behavior and extreme physical symptoms, she made a conscious decision to keep Taylor in the jail for observation, rather than to have him sent to the hospital, and that decision was made around 12:15 p.m. and she considered calling her supervisor, nurse practitioner Michelle Rice, but made a conscious decision not to call her for advice.
[Plaintiffs' brief at 6-7].
In asserting § 1983 claims against Nurse Money, plaintiffs allege that she violated Fourteenth Amendment substantive due process principles in providing medical treatment to Joyner. As discussed below, however, this court concludes that the facts, even considered in the light most favorable to plaintiffs, do not support this assertion. Moreover, even if the facts could somehow be interpreted as supporting this argument, plaintiffs have failed to rebut Nurse Money's asserted qualified immunity defense with precedent establishing that her actions in this case violated "clearly established" federal law. This court discusses each of these conclusions below.
This court does agree with plaintiffs that the Fourteenth Amendment's Due Process Clause, rather than the Eighth Amendment's prohibition against cruel and unusual punishment, controls in cases such as this one, involving a pretrial detainee who had not been convicted. Plaintiffs are also correct in asserting that, in Kingsley v. Hendrickson , 576 U.S. 389, 135 S. Ct. 2466, 2473, 192 L. Ed. 2d 416 (2015), the U.S. Supreme Court clarified that "the appropriate standard for a pretrial detainee's excessive force claim [under the Fourteenth Amendment] is solely an objective one." [Plaintiffs' brief at 15]. This objective deliberate indifference standard is a less stringent one (for the plaintiff) than the subjective deliberate indifference standard traditionally applied by the Fifth Circuit in Fourteenth Amendment claims brought by pretrial detainees, see Hare v. City of Corinth , 74 F.3d 633, 650 (5th Cir. 1996), and it is thus unsurprising that plaintiffs would wish to apply it in this case.
In arguing that Kingsley 's objective standard should apply here, however, plaintiffs fail to acknowledge that this is not an excessive force case, but, rather, a so-called "failure to protect" case in which they allege deliberate indifference in the provision of medical treatment to Joyner. Clearly, a case in which a jailer is alleged to have deliberately used excessive force against an inmate is quite different from one in which she is alleged to have provided inadequate medical treatment, and it does not necessarily follow from Kingsley 's holding that the Supreme Court would also apply an objective deliberate indifference standard in failure to protect cases. Indeed, the Fifth Circuit has, as discussed below, thus far declined to apply Kingsley in this context.
In their brief, plaintiffs acknowledge that the Fifth Circuit has continued to apply its subjective deliberate indifference standard in Fourteenth Amendment cases brought by pretrial detainees outside the excessive force context, and they chide the Fifth Circuit for "ignoring" Kingsley , and for failing to overrule the subjective deliberate indifference standard set forth in Hare and similar cases. Specifically, plaintiffs write in their brief that:
Undersigned counsel's review of post-Kingsley Fifth Circuit decisions appears to confirm that the Fifth Circuit continues to ignore Kingsley. Since the Fifth Circuit has not in any reported decision tried to distinguish Kingsley on the legal standard it announced, Kingsley should trump those Fifth Circuit decisions, most of which are unreported, such as the 2018 appeal of Leal v. Wiles , which still insists that pretrial detainees must prove subjective deliberate indifference in a Fourteenth Amendment case.
[Plaintiffs' brief at 15]. In criticizing the Fifth Circuit for "ignoring" Kingsley , however, plaintiffs themselves ignore the fact that this is not an excessive force case, and their own (accurate) description of Kingsley 's holding is that it established an objective deliberate indifference standard only in such excessive force cases. [Brief at 15]. It is thus clear that the Fifth Circuit has not chosen to "ignore" Kingsley by declining to expand that opinion's holding to other types of Fourteenth Amendment claims.
If there were any doubt regarding what standard applies in Fourteenth Amendment claims brought in this circuit outside the excessive force context, the Fifth Circuit recently reiterated, in a published decision, that:
Pretrial detainees are protected by the Due Process Clause of the Fourteenth Amendment. Cupit v. Jones , 835 F.2d 82, 84–85 (5th Cir. 1987). To succeed in a § 1983 action based on "episodic acts or omissions" in violation of Fourteenth Amendment rights, a pretrial detainee must show subjective deliberate indifference by the defendants. Hare v. City of Corinth , 74 F.3d 633, 643 (5th Cir. 1996) (en banc). That is, the plaintiff must show that the official knew of and disregarded a substantial risk of serious harm. Domino v. Tex. Dep't of Criminal Justice , 239 F.3d 752, 755 (5th Cir. 2001). "Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference." Alton v. Tex. A & M Univ. , 168 F.3d 196, 201 (5th Cir. 1999). To reach the level of deliberate indifference, official conduct must be "wanton," which is defined to mean "reckless." Johnson v. Treen , 759 F.2d 1236, 1238 (5th Cir. 1985).
Alderson v. Concordia Par. Corr. Facility , 848 F.3d 415, 419–20 (5th Cir. 2017). In their brief, plaintiffs note that Judge Graves wrote a concurrence in Alderson in which he argued that Kingsley 's objective deliberate indifference standard should, in fact, apply in the failure-to-protect context, but, crucially, none of the other Fifth Circuit judges on the panel joined his concurrence. The fact that Judge Graves raised the issue in a concurrence makes it clear that the Fifth Circuit is well aware of the argument that Kingsley 's analysis should apply in the failure-to-protect context, but it is likewise clear that an insufficient number of Fifth Circuit judges have been persuaded by that argument. In the court's view, the Fifth Circuit was well within its authority in interpreting the law in this manner, since, once again, Kingsley 's actual holding only applies in the excessive force context, as plaintiffs themselves acknowledge. As a district court, this court is, of course, bound by the Fifth Circuit's published precedent, and Alderson makes it clear that, in cases such as this one, a subjective deliberate indifference standard applies and that the "plaintiff must show that the official knew of and disregarded a substantial risk of serious harm." Alderson , 848 F.3d at 419.
In spite of Alderson 's clear holding that a subjective deliberate indifference standard applies in the failure-to-protect context, plaintiffs essentially ignore that standard in their brief and instead frame their arguments only in terms of the objective deliberate indifference standard which Judge Graves unsuccessfully sought to persuade his fellow judges to adopt. Specifically, plaintiffs write in their brief that:
The family of Taylor Joyner need only create a jury issue that Nurse Crowder Money exhibited objective deliberate indifference to his serious medical needs and that as a result he suffered. She ignored the clear mandate of two jail policies which require the doctor (or nurse practitioner) to supervise detox procedures. She failed to do a crucial test of his vital signs, which would have provided information about his condition, but proceeded to take full responsibility for him without the input of her supervisor, or alternatively she should have sent him to the hospital where the vital signs could be taken.
[Plaintiff's brief at 19].
It is thus apparent that plaintiffs' entire argument as to Nurse Money's liability is based upon an incorrect legal premise, and this court is reluctant to even address factual arguments which are based upon an incorrect legal standard. Nevertheless, this court notes parenthetically that, in the event that an objective deliberate indifference standard were somehow applicable, it would still conclude that the allegations against Nurse Mooney do not rise above the level of simple negligence, which is insufficient to support liability even under the less stringent Kingsley standard. See Davidson v. Cannon , 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986) (simple negligence insufficient to give rise to liability in Fourteenth Amendment due process cases). Indeed, the summary judgment evidence is clear that Nurse Mooney responded quickly to Joyner's distress, and there is no indication that she did anything other than try her best to treat his symptoms of withdrawal. In the court's view, the allegations that Nurse Money improperly failed to properly check Joyner's vital signs or to enlist the help of her supervisor is consistent with simple negligence, and not deliberate indifference. This court declines to conduct a more extensive analysis of the facts under an inapplicable legal standard, however, since plaintiffs tacitly concede that they are unable to meet the subjective deliberate indifference standard which, Alderson makes clear, remains applicable in this circuit. While it is thus apparent that plaintiffs are unable to establish a constitutional violation on the part of Nurse Money under the correct legal standard, there is, ultimately, a basis for summary judgment in this case which is even clearer, namely that of qualified immunity. Nurse Money raises a qualified immunity defense in her brief, and, in the court's view, plaintiffs do not even come close to rebutting it. To rebut a qualified immunity defense, the plaintiff must show: (1) that he has alleged a violation of a clearly established constitutional right, and (2) that the defendant's conduct was objectively unreasonable in light of clearly established law at the time of the incident. Waltman v. Payne , 535 F.3d 342, 346 (5th Cir. 2008). It is well established that a defendant who "pleads qualified immunity and shows he is a governmental official whose position involves the exercise of discretion" thereby places the burden on the plaintiff to "rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law." Pierce v. Smith , 117 F.3d 866, 871-72 (5th Cir. 1997). "The plaintiff bears the burden of negating the defense and cannot rest on conclusory assertions, but must demonstrate genuine issues of material fact regarding the reasonableness of the official's conduct." Gatson v. Winston County, Miss. , 2014 WL 585810, at *5 (N.D. Miss. 2014) (internal citations omitted). Therefore, it is the plaintiff, rather than the defendant, who must do most of the "heavy lifting" in the qualified immunity context. Young v. Bd. of Supervisors of Humphreys Cty., Mississippi , 2018 WL 632024, at *1 (N.D. Miss. Jan. 30, 2018).
With the foregoing standards in mind, this court will quote the entirety of plaintiffs' briefing on the qualified immunity issue:
Section 7. Nurse Petra Crowder Money is not immune from liability to Plaintiffs under the doctrine of Qualified Immunity.
Plaintiffs have agreed to dismiss all Defendants except Nurse Petra Crowder Money in her individual capacity. Plaintiffs agree with the recitation at the top of page 14 of the defense brief which sets out what the Plaintiffs must prove. The Plaintiffs easily meet those requirements.
The duty under the Fourteenth Amendment to care for a pretrial detainee's serious medical needs was well-established in February, 2017. Crowder Money's failure to seek advice from her supervisor immediately upon learning that Taylor needed detox violated two jail policies referenced above. Also, when she could not take Taylor's vital signs because of his agitation, she should have sought help or should have sent him to the hospital. As nurse practitioner Michelle Rice testified, a nurse takes the vital signs to learn the patient's condition. This is an elementary, but extremely important first step. Crowder Money has been an LPN and has worked in institutional confinement facilities for years. Her failure promptly to confer with her supervisor upon learning of his drug consumption and viewing his symptoms led to a two-hour delay in diagnosing and treating him. Plaintiffs submit that Crowder Money acted with objective deliberate indifference toward the medical care of Taylor Joyner by ignoring jail policies and procedures requiring that she contact her supervising nurse practitioner, Michelle Rice, immediately upon learning that Taylor had consumed several different drugs within the past 24 hours and was already showing serious symptoms of withdrawal. Any reasonable nurse would know that.
Rice has testified that she would have recommended that the LPN send Taylor to the emergency room, particularly in
light of the fact that Crowder Money had been unable to take his vital signs because of his extreme agitation. The two-hour delay foreclosed his chance of survival. Plaintiffs' expert, Dr. Carlton, who also was the emergency room doctor who tried to save Taylor's life, pinpointed the immediate cause of death. Dr. Carlton said that the immediate cause of death was benzodiazepine withdrawal. He eliminated opiates as causes by administering two shots of Narcan without effect. He stated that if the true cause of Taylor's agony had been determined earlier, he would have had a very good chance of recovery. Failure to diagnose and treat the condition can lead to death. See his statement, Plaintiffs' Exh. 12.
[Brief at 21-22].
In the court's view, plaintiffs' argument contains two crucial defects, each of which would be sufficient to sustain Money's qualified immunity defense. First, plaintiffs persist, in the qualified immunity section of their brief, in applying an objective deliberate indifference standard, even though Alderson made it clear that a subjective deliberate indifference standard continues to apply in failure-to-protect cases in the Fifth Circuit. Thus, plaintiffs fail to demonstrate a constitutional violation under the first prong of the qualified immunity standard.
Furthermore, plaintiffs concede that a number of unpublished Fifth Circuit decisions have continued to apply the subjective deliberate indifference standard post-Kingsley. [Plaintiffs' brief at 16, citing e.g. Leal v. Wiles , 734 F. App'x 905, 909 (5th Cir. 2018) ].
Plaintiffs' failure on the second prong of the qualified immunity standard is, if anything, even clearer, since they do not cite a single case suggesting that Nurse Money violated "clearly established" federal law in this case. Indeed, the qualified immunity section of their brief contains no legal citations whatsoever. While other portions of plaintiffs' brief do contain vague references and citations to the legal duty to "provide ... pretrial detainees ... with basic human needs, including medical care" See Hare v. City of Corinth , 74 F.3d 633, 650 (5th Cir. 1996), it is well established that such vague standards are insufficient in the qualified immunity context. Indeed, the Fifth Circuit has written that:
[A]n official does not lose qualified immunity merely because a certain right is clearly established in the abstract. It is clearly established that the government may not deny due process or inflict cruel and unusual punishments, for example, but those abstract rules give officials little practical guidance as to the legality of particular conduct. Qualified immunity should not be denied unless the law is clear in the more particularized sense that reasonable officials should be "on notice that their conduct is unlawful."
Kinney v. Weaver , 367 F.3d 337, 350 (5th Cir. 2004).
Clearly, the general legal requirement to provide Joyner with "medical care" gave Nurse Money no specific guidance regarding the specific treatment required by federal law, and it may therefore not be regarded as relevant precedent in the context of the second prong of the qualified immunity standard. Plaintiffs have thus failed to even make a serious effort to meet what is generally regarded as the most difficult part of the qualified immunity standard, and this constitutes a separate, and clear, basis for dismissal of their claims.
In Plumhoff v. Rickard , the Supreme Court upheld a qualified immunity defense on the basis of the "clearly established" prong, emphasizing that:
An official sued under § 1983 is entitled to qualified immunity unless it is shown that the official violated a statutory or constitutional right that was " ‘clearly established’ " at the time of the challenged conduct. Ashcroft v. al–Kidd , 563 U.S. [731], 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011). And a defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. Id. , at 2083–2084. In other words, "existing precedent must have placed the statutory or constitutional question" confronted by the official "beyond debate."
Plumhoff , 572 U.S. 765, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014).
Making plaintiffs' burden in this context even more difficult, the Supreme Court wrote in City and County of San Francisco v. Sheehan , 575 U.S. 600, 135 S.Ct. 1765, 1778, 191 L.Ed.2d 856 (2015) that, to establish that any supportive precedent was "clearly established," the plaintiff must be able to cite either a decision from that Court or a "robust consensus of cases of persuasive authority in the Courts of Appeals." It should thus be apparent that establishing a violation of "clearly established" federal appellate law is a tall order even for those plaintiffs who actually attempt to do so, and the plaintiffs here have made no serious efforts in this regard. Plaintiffs do make reference to "jail policies and procedures" which Nurse Money allegedly disregarded, but, as noted in Sheehan , the "clearly established" prong of the qualified immunity standard requires "robust" citations to federal appellate authority, not procedures adopted by county jails.
Ultimately, this court regards the second prong of the qualified immunity standard as representing the clearest basis for dismissing plaintiffs' claim against Nurse Money. This is because, while plaintiffs might at least conceivably persuade the Fifth Circuit to overrule Hare and Alderson and adopt Judge Graves' view of the law in this context, the second prong of the qualified immunity standard arises from firmly established Supreme Court precedent, and this court can discern no valid argument that they have met that prong in this case. This court thus concludes that plaintiffs have failed to meet either of the two prongs of the qualified immunity standard, and their claims against Nurse Money are therefore due to be dismissed. Plaintiffs have, once again, conceded their prior claims against the remaining defendants, and defendants' motion for summary judgment is therefore due to be granted in its entirety.
Of course, plaintiffs would, in this scenario, be required to establish genuine fact issues that Nurse Money committed more than simple negligence in this case, and, as noted previously, this court does not believe that they would be able to do so here.
--------
It is therefore ordered that defendants' motion for summary judgment is granted.
A separate judgment will be entered this date, pursuant to Fed. R. Civ. P. 58.
So ordered, this the 7th day of May, 2020.