United States District Court, W.D. Louisiana, Shreveport Division
JOANNE GRAFTON, ET AL.
KEN BAILEY, ET AL.
HORNSBY MAGISTRATE JUDGE.
MAURICE HICKS, JR., CHIEF JUDGE
the Court is Defendants Claiborne Sheriff Ken Bailey
(“Sheriff Bailey”) and Deputy Lashenda Tate's
(“Deputy Tate”) (collectively the
“Defendants”) “Motion for Summary
Judgment” (Record Document 35) pursuant to Rule 56 of
the Federal Rules of Civil Procedure seeking to dismiss
Plaintiffs Joanne and Billy Grafton's
(“Plaintiffs”) Eighth Amendment and Louisiana
state law claims. For the reasons discussed herein,
Defendants' motion is hereby GRANTED.
AND PROCEDURAL BACKGROUND
are the parents of Shelly Grafton (“Grafton”), a
convicted felon, who was first jailed in Ruston, La., at the
Lincoln Parish Detention Center. See Record Document
35-4. While there, Dr. Pamela Hearn (“Dr. Hearn”)
examined Grafton and prescribed several medications for her.
See Record Document 35-10. Dr. Hearn is a physician
who works for the La. Dept. of Corrections and LaSalle
Management Co. at several detention centers in various
parishes. Dr. Hearn provides medical treatment for inmates in
Claiborne Parish at David Wade Correctional Center, Claiborne
Parish Detention Center, and the Claiborne Parish Women's
Jail (the “Jail”). See Record Document
February 21, 2012, Grafton was transferred from Lincoln
Parish to the Jail. See Record Document 35-12. She
was given an initial Medical Screening during booking.
See id. The next day, Grafton was taken to
see Dr. Hearn and her nurse at the Claiborne Parish Detention
Center for a thorough Medical Intake Screening by a
physician. See Record Document 35-13. Dr. Hearn
continued the medications which she had recently prescribed
for Grafton while in Lincoln Parish. See id.
1, 2012, Grafton showed a jailer a boil that she had under
her arm. See Record Document 35-14. On July 3,
Grafton was taken to see Dr. Hearn at the Detention Center.
See Record Document 35-15 at 2. Dr. Hearn prescribed
antibiotics and an ointment. See Record Document
35-16 at 4. The boil under Grafton's arm healed without
any complications. See id. at 10. On November 12,
2012, Grafton submitted a Request for Medical Treatment.
See Record Document 35-17. She complained of
diarrhea, chronic back and knee pain, and wanted to see Dr.
Hearn about her prescription medications. See id. On
November 19, Grafton was taken to see Dr. Hearn. See
Record Document 35-18 at 2. Dr. Hearn noted Grafton's
medical history and problems, and (re)prescribed several
medications. See Record Document 35-19 at 4.
December 11, 2012, Grafton submitted a Request for Medical
Treatment. She complained about a boil on her stomach.
See Record Document 35-20. Although Plaintiffs state
Grafton was not treated for this infection, Nurse Edwards was
notified of her condition on December 14, 2012, and did not
think her condition warranted a trip to the hospital.
See Record Document 35-21 at 7. Instead, Nurse
Edwards prescribed Grafton an antibiotic and warm compresses
per Dr. Hearn's orders. See id. at 2. In the
following week, Grafton's health deteriorated. On
Saturday evening, December 15, 2012, Grafton was reportedly
found unconscious on the floor of her jail cell. See
Record Document 35-22. Emergency medical personnel were
called, and Grafton was transported to the Homer Hospital
Emergency Room by ambulance. See Record Document
35-23 at 9. At the hospital, medical personnel examined
Grafton, ran tests, and diagnosed her with an abscess or boil
(possibly due to staph) on her stomach. See Record
Document 35-24 at 2. Grafton was treated with intravenous
antibiotics, prescribed oral antibiotics, and instructed on
how to care for the boil. See id. Later that night,
the Hospital discharged Grafton and sent her back to the
Jail, with instructions for her follow-up care. See
id. at 5. Grafton's cellmate, Christina Bowen
(“Bowen”), claims the hospital told Grafton she
was septic, although there is no evidence in the record to
support such a claim. See Record Document 38-3 at
21-22. The discharge instructions and Hospital records were
provided or available to Nurse Edwards and Dr. Hearn, who
provided Grafton's follow-up treatment. See
Record Document 35-24; Record Document 35-35 at 4; Record
Document 35-30 at 10.
Monday through Friday, December 17-21, 2012, Nurse Edwards
came to the jail on a daily basis to treat Grafton's boil
according to the Hospital's discharge instructions.
See Record Document 35-26 at 2-5; Record Document
35-27. Although Grafton's prescription medications were
made available to her, it appears she stopped taking them.
After Grafton's death, Bowen found a number of pills in
Grafton's things. The pills found were the following:
• Nine (9) Citalopram. This is an antidepressant.
Grafton had a prescription for three (3) per day.
• Two (2) Meloxicam. This is an anti-inflammatory/muscle
relaxant for arthritic pain. Grafton's prescription was
for one (1) per day.
• Two (2) Mapap, or Tylenol. Grafton's prescription:
two (2) per day.
• Two (2) Amlodipine/Benazepri. This is for blood
pressure. Her prescription: two (2) per day.
• One (1) Omeprazole. This is for acid reflux. Her
prescription: two (2) per day.
• Two (2) Clindamycin. This is an antibiotic. Her
prescription: three (3) per day.
• One (1) package of Cholestyramine for diarrhea. Her
prescription: one (1) per day.
Document 35-33 at 5.
Friday morning, December 21, Nurse Edwards came to the jail
at 9:47 a.m. to treat Grafton. See Record Document 35-28 at
2. The boil had improved and appeared to be healing.
See Record Document 35-26 at 14. Nurse Edwards left
the jail at 10:40 a.m. See Record Document 35-28 at
2. At 11:10 a.m., Grafton refused to get out of bed to eat
lunch or to get her prescription medications. See
id. Deputy Tate called Nurse Edwards and told her about
Grafton. See id. at 7. That afternoon at 1:40 p.m.,
Deputy Tate entered Grafton's cell block and found
Grafton lying on the floor beside the bed in her cell.
See id. at 5. Grafton was conscious and responsive,
but said she was not feeling well. See Record
Document 38-6 at 8. Bowen, who was lying on the top bunk, did
not know that Grafton was on the floor or how she got there.
See id. at 8. Deputy Tate called Nurse Edwards and
told her about Grafton and her various complaints.
See Record Document 35-29 at 2. Nurse Edwards did
not see a need to call an ambulance and instructed Deputy
Tate to watch Grafton until she could return. See
id. Grafton was moved to a holding cell and placed in a
bed where she could be constantly monitored by video.
See Record Document 38-6 at 8-9.
addition to monitoring Grafton on the video, Deputy Tate went
to the holding cell several times, checked on Grafton, talked
to her, and made sure she was comfortable. See id.
at 9. When Deputy Tate went to the holding cell at 2:06 p.m.,
Grafton was conscious, responsive, and coherent. See
Record Document 35-29 at 2. Deputy Tate told Grafton that
Nurse Edwards should be there shortly. See id. At
about 2:23 p.m., Deputy Tate called Nurse Edwards again.
Deputy Tate told Nurse Edwards that she was concerned about
Grafton who was complaining about her breathing. See
id. Nurse Edwards did not see any need to send Grafton
to the emergency room. See id. Nurse Edwards told
Deputy Tate that in order to put her mind at ease, she would
call Dr. Hearn and then call her (Deputy Tate) back. See
to 2:35 p.m., Nurse Edwards called Dr. Hearn. Dr. Hearn told
Nurse Edwards to wait until she finished her business at the
Detention Center, then go see Grafton, and to call her back
if there were any changes. See Record Document 35-30
at 2. Nurse Edwards called Deputy Tate back and told her what
Dr. Hearn had ordered, notably that Grafton had already been
to the hospital before, that she was taking her antibiotic,
and “we just didn't take them to the doctor just
because they requested it.” Record Document 38-6 at 13.
Nurse Edwards had just seen Grafton that morning at the Jail,
and Grafton was fine. See Record Document 35-26 at
5. Nurse Edwards was involved in a medical situation at the
Detention Center and planned to come to see Grafton again as
soon as she finished there. See Record Document
35-29 at 11-12.
approximately 2:46 p.m., Grafton did not respond when Deputy
Tate entered the holding cell and called her name.
See Record Document 35-29 at 2. Deputy Tate checked
Grafton's pulse and breathing and tried an ammonia pack
under her nose. See id. at 21. Deputy Tate called
Nurse Edwards again and called for an ambulance at
approximately 2:50 p.m. See Record Document 35-33 at
7. Deputy Tate, who was certified in cardiopulmonary
resuscitation (“CPR”), did not perform CPR on
Grafton. See Record Document 38-6 at 17-20. Deputy
Tate has stated that she looked for something to cover
Grafton's mouth in order to perform CPR, but could not
find anything. See id. At approximately 2:52 p.m.,
six minutes after Deputy Tate originally discovered Grafton
unresponsive, the ambulance arrived. See Record
Document 35-33 at 7. During these six minutes, Deputy Tate
was “trying to call people … checking for the
ambulance, running in and out of the room trying to see is
the ambulance here yet.” Record Document 38-6 at 22.
Nurse Edwards arrived a few minutes later at 2:56 p.m.
See Record Document 35-33 at 7. The ambulance
transported Grafton to Homer Memorial at 3:12 p.m. where she
was pronounced dead at 3:52 p.m. See id.
an autopsy was performed by Dr. Frank Peretti (“Dr.
Peretti”), who found the cause of death to be
“Sepsis due to Abdominal Wall Abscess and
Cellulitis” and listed “Fracture of Thoracic
Spine” as a contributing factor. See Record
Document 35-31 at 3. There was no evidence of criminal
wrongdoing or physical abuse to Grafton. See Record
Document 35-32 at 15. Capt. Kenny Sanders, an expert retained
by Defendants, found the officers' conduct was reasonable
under the circumstances and found no evidence of deliberate
indifference. See Record Document 35-34 at 6. A
Medical Review Panel, consisting of three doctors, found that
Homer Memorial Hospital, its staff, and Dr. Pamela Hearn
failed to comply with the appropriate medical standards of
care in their treatment of Shelly Grafton. See
Record Document 35-35 at 2-3. The substandard care of Homer
Hospital, its staff, and Dr. Hearn were factors in
Grafton's death. See id. Dr. John Giroir
(“Dr. Giroir”), an Emergency Medicine physician
and member of the Medical Review Panel, provided an expert
report for the Plaintiffs, stating “Grafton …
might have survived her infection if more aggressive
treatment would have offered [sic] in a timely
fashion.” Record Document 35-36 at 3.
October 25, 2013, Plaintiffs filed the instant civil rights
lawsuit for violation of Grafton's Eighth Amendment
rights as well as Louisiana state law claims for her wrongful
death and survival action, and for her pain and suffering.
See Record Document 1. Defendants moved for summary
judgment on all of Plaintiffs' claims, under both federal
and state law, on February 2, 2017. See Record
Document 35. Defendants argue there is no evidence of
deliberate indifference and they are entitled to qualified
immunity. See id. Plaintiffs opposed the motion for
summary judgment on February 21, 2017, arguing there is
sufficient evidence to show Defendants acted with deliberate
indifference. See Record Document 38. Defendants
filed their reply on February 28, 2017. See Record
Document 39. Thus, this matter is fully briefed and ripe for
Summary Judgment Standard
of the Federal Rules of Civil Procedure governs summary
judgment. This rule provides that the court “shall
grant summary judgment if the movant shows 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). Also, “a party asserting that a fact cannot be
or is genuinely disputed must support the motion by citing to
particular parts of materials in the record.” Fed R.
Civ. P. 56(c)(1)(A). “If a party fails to properly
support an assertion of fact or fails to properly address
another party's assertion of fact as required by Rule
56(c), the court may ... grant summary judgment.”
summary judgment motion, “a party seeking summary
judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of the pleadings ... [and]
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91
L.Ed.2d 265 (1986) (internal quotations and citations
omitted). If the movant meets this initial burden, then the
non-movant has the burden of going beyond the pleadings and
designating specific facts that prove that a genuine issue of
material fact exists. See id. at 325, 106 S.Ct. at
2554; see Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). A non-movant, however, cannot meet the
burden of proving that a genuine issue of material fact
exists by providing only “some metaphysical doubt as to
the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of
evidence.” Little, 37 F.3d at 1075.
Additionally, in deciding a summary judgment motion, courts
“resolve factual controversies in favor of the
nonmoving party, but only when there is an actual
controversy, that is when both parties have submitted
evidence of contradictory facts.” Id. Courts
“do not, however, in the absence of any proof, assume
that the nonmoving party could or would prove the necessary
states that “a party asserting that a fact ... is
genuinely disputed must support the assertion by citing to
particular materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations, ... admissions, interrogatory
answers, or other materials.” Once the party seeking to
establish that there is a genuine dispute as to a material
fact has cited to such materials, the opposing party
“may object that the material cited to support or
dispute a fact cannot be presented in a form that would be
admissible in evidence.” Fed.R.Civ.P. 56. “At the
summary judgment stage, materials cited to support or dispute
a fact need only be capable of being presented in a form that
would be admissible in evidence.” LSR Consulting,
LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th
Cir. 2016). However, once a party has challenged the
admissibility of the evidence relied upon to demonstrate a
genuine dispute of material fact, the proponent of that
evidence must show that the evidence is capable of being
presented in a form that would be admissible in evidence.
See id. at 534.
Section 1983 Suits: Individual Capacity vs. Official Capacity
1983 authorizes the assertion of a claim for relief against a
person who, acting under the color of state law, allegedly
violated the claimant's rights under federal law.
See 42 U.S.C. § 1983. In Section 1983 suits,
government officials may be sued in either their individual
or official capacities. A claim against a state or municipal
official in his official capacity "generally
represent[s] only another way of pleading an action against
an entity of which an officer is an agent." Kentucky
v. Graham, 473 U.S. 159, 166 (1985). Individual or