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applying the modified standard to a claim of deliberate indifference to medical needs brought by pretrial detainee
Summary of this case from Elder v. Pulaski Cnty.Opinion
No. 7:20-CV-20-REW-MAS
2023-05-09
Alicia Ann BOND, individually and as Administratrix of the Estate of Barry R. Kinney, II, Deceased, et al., Plaintiffs, v. Elizabeth MOORE, Nicole Deskins, Kerriana Cornette, and Southern Health Partners, Inc., Defendants.
Brent L. Caldwell, Caldwell Law Firm, PLLC, Lexington, KY, Noel Embry Caldwell, Noel Caldwell, Attorney at Law PLLC, Lexington, KY, for Plaintiffs. Margaret Jane Brannon, Robert Franklin Duncan, Jackson Kelly PLLC, Lexington, KY, for Defendants Southern Health Partners, Inc., Elizabeth Moore, Kellianna, Nicole Deskins. Jonathan C. Shaw, Porter, Banks, Baldwin & Shaw, PLLC, Paintsville, KY, Counsel for Defendants Pike County, Kentucky; Brian Morris, Individually; Donald Estep, Individually; and Dona Keith Johnson, Individually.
Brent L. Caldwell, Caldwell Law Firm, PLLC, Lexington, KY, Noel Embry Caldwell, Noel Caldwell, Attorney at Law PLLC, Lexington, KY, for Plaintiffs. Margaret Jane Brannon, Robert Franklin Duncan, Jackson Kelly PLLC, Lexington, KY, for Defendants Southern Health Partners, Inc., Elizabeth Moore, Kellianna, Nicole Deskins. Jonathan C. Shaw, Porter, Banks, Baldwin & Shaw, PLLC, Paintsville, KY, Counsel for Defendants Pike County, Kentucky; Brian Morris, Individually; Donald Estep, Individually; and Dona Keith Johnson, Individually. ORDER Robert E. Wier, United States District Judge
I. Introduction
Following Barry Kinney's death on February 17, 2019, Alicia Bond, his mother and administratrix of his estate, filed a complaint naming as Defendants 1) Pike County and various employees at Pike County Detention Center (collectively Pike County Defendants), as well as 2) Southern Health Partners, Inc. (SHP), a contract healthcare provider at Pike County Detention Center, and individual SHP employees, including Nurse Practitioner Elizabeth Moore, Nurse Nicole Deskins, and Nurse Kerriana Cornette (collectively SHP Defendants). See DE 1 (Compl.).
Ms. Cornette's name is listed as "Kelliana" in some places on the docket. However, according to the SHP Defendants' Motion for Summary Judgment (DE 92) and Ms. Cornette's deposition testimony (DE 87), her name is "Kerriana."
Defendant Nurse Practitioner Moore is purportedly an independent contractor for SHP, and, at the time of this incident, she was "on call 24/7" at Pike County Detention Center (PCDC). See DE 84 (Moore Dep.) at 4:18-25, 5:1-2, 6:2-3. She was in a supervisory role over the other nurses at the facility. See DE 83 (Deskins Dep.) at 10:13-18. However, Moore usually only worked on site at the facility twice monthly, see DE 84 at 6:2-10, and she did not have any direct contact with Kinney, see id. at 8:6-8. Defendants Nicole Deskins and Kerriana Cornette were employed by SHP as licensed practical nurses (LPNs) at PCDC at the time of the incident. See DE 83 at 13:10-23; DE 87 (Cornette Dep.) at 8:5-25. Deskins served as the Medical Team Administrator (MTA) and was responsible for on-site nursing supervision at PCDC. See DE 83 at 14:18-24, 15:20-22.
Bond brings 1) deliberate indifference claims under 42 U.S.C. § 1983 against all Defendants, 2) Monell claims under § 1983 against Defendants in training or supervisory positions (including Defendant Moore), 3) negligence claims against all individual Defendants, and 4) medical negligence claims against SHP Defendants. See generally DE 1. The Pike County Defendants and SHP Defendants each filed summary judgment motions. DE 90 (Pike County's Motion); DE 92 (SHP's Motion). Plaintiffs' claims against the Pike County Defendants have since been dismissed. See DE 100 (Agreed Order of Dismissal). Bond filed a response to the SHP Defendants' summary judgment motion, DE 99, and SHP Defendants filed a reply, DE 101. The matter is ripe for review.
II. Factual Background
Barry Kinney was brought to PCDC at around 10:50 a.m. on February 14, 2019, for booking on a parole violation warrant. DE 1 ¶ 23. Upon entry, Kinney indicated to Deputy Jailer Matthew Lester that he had Type II diabetes, a fact that was transcribed onto a Standard Medical Question Form. See DE 92-2. The jail's policy requires the booking officer—here, Lester—to fill out the questionnaire, then to put the form in a cubby or slot to be picked up by the medical staff on the next morning shift. See DE 83 (Deskins Dep.) at 32:3-19, 78:4-8; DE 85 (Morris Dep.) at 12:4-8. In addition, the booking officer normally, though inconsistently, would advise the medical staff on duty that a diabetic has come into the jail. See DE 83 at 34:21-23, 42:13-25, 43:1-4. However, on the day Kinney was admitted to PCDC, it is undisputed that Lester did not advise the nurse on duty, Defendant Nurse Nicole Deskins, that a diabetic had entered the jail. See DE 83 at 39:9-10; DE 99 (Plaintiffs' Response) at 3. As a result, though Deskins knew that Kinney was diabetic because he had been housed at PCDC a year prior, she did not know that he was at the facility until she picked up his booking form from the medical cubby at the start of her 5:30 a.m. shift the next day. See DE 83 at 28:5-19; 37:10-21. No one from the medical staff became aware of Kinney's presence at the jail, and, therefore, Kinney received no insulin on February 14. See id. at 39:15-22; DE 1 ¶ 25. Deskins was upset that she was not informed during her February 14 shift of Kinney's presence at the jail given the time-sensitive nature of diabetes. See DE 83 at 37:18-25, 38:1-3.
All events giving rise to this case occurred during 2019. Therefore, the Court will omit the year when referencing dates throughout the remainder of this Order. The Court takes the allegations from the record, viewed in Plaintiffs' favor per the Rule 56 prism.
Kinney also noted having high blood pressure, asthma, and heart problems on this form. In response to questions on another booking form, see DE 1-3, Kinney stated that he had mental health problems for which he had been prescribed medicine, and he reported Suboxone use and withdrawals.
Deskins first gave Kinney medical attention at 8:30 a.m. on February 15 when she saw him in the medical office to complete a Medical Staff Screening Form. See DE 92-3; DE 92-4 (Progress Notes). Deskins tested Kinney's blood sugar, which returned a result of "437," see DE 92-4; DE 83 at 43:22-25, 44:5-7, a much higher-than-normal level, see DE 83 at 44:19-24 (stating that 80-110 is the normal range); DE 84 (Moore Dep.) at 11:9-14 (stating that 437 is a high reading and that 80-120 is a normal level); DE 87 (Cornette Dep.) at 25:21-23 (stating that 70-100 is a normal range); see also DE 92-6 (Blood Sugar Flow Sheet) ("Blood Sugar tests less than 110 is [sic] considered in the normal range."). Following the blood sugar reading, Deskins contacted her supervisor, Defendant Nurse Practitioner Elizabeth Moore. See DE 83 at 46:3-12. Moore instructed Deskins to administer 12 units of insulin to Kinney. See id. at 47:7-9; DE 92-4. Nurse Practitioner Moore also placed Kinney on a "sliding scale" insulin regimen and ordered that his blood sugar be checked twice daily. See DE 92-5 (Physician Orders); DE 83 at 51:6-17 (explaining that "BID" on Blood Sugar Flow Sheet means twice daily). Next, Deskins requested and received Kinney's medical and pharmacy records. See DE 92-4; DE 83 at 43:20-25, 47:10-16. Before the end of her shift, she ordered his medications from an outside pharmaceutical vendor. See DE 83 at 85:1-9.
Capillary blood glucose measurement is a standard monitoring metric in diabetes management.
Defendant Nurse Kerriana Cornett, whose shift followed Deskins's, saw Kinney at 5:00 p.m. on February 15 for the routine second daily blood sugar check. See DE 87 (Cornette Dep.) at 24:3-17. His blood sugar test read "374," see id. at 24:25, 25:1; DE 92-6, again, far higher than what Cornette believe to be a normal result, see DE 87 at 25:21-23. Cornette administered 10 units of insulin pursuant to the physician's sliding-scale orders in Kinney's medical records, see id. at 26:5-14, which she recorded on an SHP "Blood Sugar Flow Sheet," see DE 92-6. The Blood Sugar Flow Sheet contained the following instruction: "If insulin is given due to high numbers . . . , then recheck BS [blood sugar] within 30 minutes and document appropriately." Id. However, Cornette did not recheck Kinney's blood sugar again on the evening of February 15. See DE 87 at 31:15-25, 32:1-6. After the first two days of incarceration, according to Plaintiffs' expert, Dr. Eilerman, Kinney's total insulin deficit was 163 units. DE 99-11 (Eilerman Report) at 4.
Cornette returned to work the following morning on February 16 at around 5:30 a.m. and began conducting blood sugar tests on the inmates the officers brought to the medical unit. See DE 87 at 27:17-25, 28:1-6, 30:12-17. A jail officer informed Cornette that Kinney had refused a blood sugar check, see id. at 31:2-5, which she indicated on the Blood Sugar Flow Sheet, see DE 92-6. Cornette does not recall whether SHP has a protocol for checking on an inmate that refuses a blood sugar test, see DE 87 at 29:11-25, 30:1. Deskins indicates that "[n]ormally there's supposed to be a refusal signed by the inmate." See DE 83 at 48:12-25. However, on the day in question, Cornette did not check on Kinney or alert anyone else to his refusal. See id. at 28:13-15. She did nothing to follow up.
Later, at around 10:40 a.m. on February 16, Deputy Johnson was conducting the hourly "watch tour" (walking into each pod to check on the inmates) when Kinney approached Johnson and told him that he (Kinney) was not feeling good and was having trouble breathing. See DE 86 (Johnson Dep.) at 13:19-25, 14:9-17; DE 99-6 (Johnson 10:40 Incident Report). Johnson reported that Kinney appeared jittery and sweaty. See DE 86 at 15:7-9. Johnson radioed for the medical staff to come attend to Kinney, see id. at 14:21-25, 15:2-3, and Cornette reported to Kinney's pod, see DE 87 at 34:19-24; DE 92-4 (Progress Notes). Kinney told Cornette he "was feeling bad" without providing additional detail. See DE 87 at 36:3-12. When Cornette tested Kinney's blood sugar, the testing instrument read "HI," indicating that his blood sugar was at a higher level than the instrument could register. See id. at 37:1-6; DE 92-4. Cornette, after trying and failing to reach Nurse Practitioner Moore for instructions, administered 15 units of insulin. See DE 87 at 37:15-22, 39:5-14; DE 92-4. Cornette did not return within 30 minutes of the "HI" reading to recheck Kinney's blood sugar, despite the instruction on the Blood Sugar Flow Sheet, despite writing "will recheck" beside the 10:45 a.m. entry on the Progress Notes, and despite telling Johnson that she would be back to recheck Kinney within 30 minutes. See DE 87 at 40:21-25, 41:1; DE 92-6; DE 92-4; DE 99-6. Cornette did not check Kinney's vital signs at this point, see DE 87 at 40:4-11, nor did Cornette test Kinney's urine for ketones, see DE 83 (Deskins Dep.) at 56:16-20 (stating that, to the best of Deskins's knowledge, SHP's policy when the instrument reads "HI" is to "contact the doctor and get a UA [urine analysis] to check for ketones and . . . sugar in the urine").
At around 12:40 p.m., when Johnson and Deputy Pinion (but not Cornette) returned to check on Kinney, they discovered he was still having difficulty breathing. See DE 99-7 (Johnson 12:40 Incident Report). Johnson described Kinney as looking "white and clammy" throughout this episode. See DE 86 at 24:9-14. Cornette, again, was radioed to Kinney's pod to check his blood sugar. See id. at 22:19-25, 23:1-2; DE 87 at 41:17-23. Kinney's blood sugar, again, returned a "HI" result. See 92-4 (Progress Notes); DE 87 at 41:24-25, 42:1-3. The sliding-scale regimen allows a nurse to administer up to twelve additional units, but any additional doses beyond that limit would require authorization from Moore. See DE 84 (Moore Dep.) at 24:7-12; DE 83 (Deskins Dep.) at 54:10-25. Cornette claims that she attempted to contact Moore to authorize a 25-unit dosage and, when Moore did not answer, left a voicemail message explaining the situation. See DE 87 at 41:24-25, 42:1-3, 43:1-12. Without hearing back from Moore, Cornette administered 25 units of insulin to Kinney. See id. at 43:13-22.
Nurse Cornette claims that she administered both the 15-unit dose and the 25-unit dose in accordance with the amounts prescribed by the sliding scale. See DE 87 at 59:5-10, 65:6-14. Plaintiffs' expert claims that a 25-unit dosage would not be in line with any sliding scale he has ever seen. See DE 88 at 76:2-9. However, neither party has produced the sliding scale used by the SHP defendants in February 2019. See DE 87 at 64:18-25, 65:1-5. SHP, the Court presumes, would have custody over or a record of the policy its own people followed, but the record does not feature the policy. This is troubling, given the course of events and outcome of Kinney's detainment.
Kinney was moved to booking for closer monitoring. See DE 92-4; DE 87 at 41:24-25, 42:1-3. Cornette asked him further questions about his physical state, to which he, again, replied only that he felt "bad." See DE 87 at 42:4-15. Cornette took Kinney's vital signs, which she indicated were stable except for the elevated blood sugar. See id. at 42:22-25, 46:14-16. Defendant Moore noted in her deposition that Kinney's heart rate, which was 105, also would have "thrown up a red flag for [her]." See DE 84 at 32:9-19. Next, Kinney allegedly informed Cornette that he was going to detox from Suboxone. See DE 92-4. Without having read the Medical Staff Screening Form where Kinney earlier noted that he used Suboxone daily, see DE 92-3; DE 87 at 49:8-14, Cornette instructed Kinney to take a urine test, which confirmed he was taking Suboxone, see DE 87 at 49:15-19.
Shortly after Cornette retrieved the urine sample from Kinney, Cornette and Johnson heard Kinney fall to the ground. See 92-4 (Progress Notes); DE 87 at 50:10-16; DE 86 at 28:10-24. They, along with other deputies, ran in to check on Kinney. See DE 87 at 52:4-8; DE 86 at 29:8-11. Both Cornette and Johnson reported that Kinney had red, blood-shot eyes. See 92-4 (Progress Notes); 99-8 (Jonson 13:00 Incident Report). The officers laid Kinney on his back at Cornette's instruction then turned him on his side after he began vomiting. See DE 87 at 52:19-22, 56:11-15. Johnson called 911 at around 1:05 p.m., and another deputy began performing chest compressions. See 99-8; 92-4 (Progress Notes). EMS arrived about ten minutes later, at which point Cornette explained Kinney's condition to the responders, and Kinney was taken to the hospital. See 99-8; 92-4; DE 87 at 57:1-9.
Kinney died at the hospital the following morning, February 17. See 99-9 (Kinney Certificate of Death); 99-10 (Medical Examiner Report). The medical examiner stated that Kinney's glucose levels were "reported in the 500s-600s" prior to his death and that his postmortem vitreous glucose was also elevated at "466." See DE 99-10. In the medical examiner's opinion, Kinney's death was "due to complications of diabetes mellitus." Id.
III. Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate if "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). In determining whether a genuine dispute exists, the Court considers all facts and draws all inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Further, the Court may not "weigh the evidence [or] determine the truth of the matter[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. White v. Baxter Healthcare Corp., 533 F.3d 381, 389-90 (6th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). If the moving party satisfies its burden, the burden then shifts to the non-moving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106 S. Ct. at 2553. However, "Rule 56(c) mandates the entry of summary 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." Id. at 2552.
A fact is "material" if the underlying substantive law identifies the fact as critical. See Anderson, 106 S. Ct. at 2510. Then, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. An issue is "genuine" is "there is sufficient evidence favoring the non[-]moving party for a jury to return a verdict for that party." Id. at 2511 (citing First Nat'l Bank of Az. v. Cities Servs. Co., 391 U.S. 253, 88 S. Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). Such evidence must be suitable for admission into evidence at trial. See Salt Lick Bancorp v. FDIC, 187 F. App'x 428, 444-45 (6th Cir. 2006).
IV. Analysis
a. Deliberate Indifference
Count 1 charges all Defendants with deliberate indifference under 42 U.S.C. § 1983. DE 1 ¶¶ 41-50. Plaintiffs may bring a cause of action under 42 U.S.C. § 1983 against "government officials who, while acting under the color of state law, 'deprived the claimant of rights, privileges or immunities secured by the Constitution or laws of the United States.' " Rhinehart v. Scutt, 894 F.3d 721, 735 (6th Cir. 2018) (quoting Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005)). The parties here do not dispute that SHP and the individual SHP Defendants stand in the shoes of the state for purposes of § 1983 liability. See, e.g., Winkler v. Madison Cnty., 893 F.3d 877, 890 (6th Cir. 2018) ("The principle is well settled that private medical professionals who provide healthcare services to inmates at a county jail qualify as government officials acting under the color of state law for the purposes of § 1983."); Shadrick v. Hopkins Cnty., 805 F.3d 724, 736 (6th Cir. 2015) ("Our court has held that private corporations performing traditional state functions, such as the provision of medical services to prison inmates, act under color of state law for purposes of § 1983.").
Government officials whose conduct amounts to deliberate indifference may still claim qualified immunity under § 1983 unless "the unlawfulness of their conduct was clearly established at the time" of the violation. Crawford v. Tilley, 15 F.4th 752, 760 (6th Cir. 2021) (quoting Dist. of Columbia v. Wesby, 583 U.S. 48, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018)). However, as employees of and an independent contractor with SHP, a private medical provider, the "Defendant nurses may not assert a defense of qualified immunity." See Harrison v. Ash, 539 F.3d 510, 521 (6th Cir. 2008); Cook v. Martin, 148 F. App'x 327, 342 (6th Cir. 2005) ("Our examination of the history and purposes of qualified immunity does not reveal anything sufficiently special about the work of private prison medical providers that would warrant providing such providers with governmental immunity."); see also McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir. 2012) (holding that a private doctor working for a government prison is not entitled to qualified immunity).
It is well established that "the government has a constitutional obligation to provide medical care to those whom it detains." Griffith v. Franklin Cnty., 975 F.3d 554, 566 (6th Cir. 2020) (collecting cases). "The Eighth and Fourteenth Amendments are violated 'when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs,' " including "medical care." Id. (quoting DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 109 S. Ct. 998, 1005, 103 L.Ed.2d 249 (1989)); see Trozzi v. Lake Cnty., 29 F.4th 745, 751 (6th Cir. 2022) (citing Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 290-91, 50 L.Ed.2d 251 (1976)) ("A prisoner's liberty deprivation renders him unable to 'care for himself,' thereby 'just[ifying]' an affirmative duty of care for that prisoner."). Specifically, the Eight and Fourteenth Amendments, respectively, forbid "prison officials from unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate indifference toward the inmate's serious medical needs." Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir. 2004) (internal quotation marks omitted) (quoting Gamble, 97 S. Ct. at 291); Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 1877, 60 L.Ed.2d 447 (1979).
"Whether a convicted prisoner or a pretrial detainee, deliberate indifference to one's need for medical attention suffices for a claim under 42 U.S.C. § 1983." Blackmore, 390 F.3d at 895 (citing Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985)). However, a convicted prisoner's deliberate indifference claims are analyzed under the Eighth Amendment and a pretrial detainee's under the Fourteenth Amendment Due Process Clause. See, e.g., id.; Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018).
For many years, courts used the same rubric to decide Eighth Amendment and Fourteenth Amendment deliberate indifference claims. See, e.g., Richko v. Wayne Cnty., 819 F.3d 907, 915-16 (6th Cir. 2016); Huq, 885 F.3d at 937-39. Under this rubric, the plaintiff must first show "that the medical need at issue is 'sufficiently serious,' "; this has been labeled the "objective component" of the test. Huq, 885 F.3d at 938 (quoting Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1977, 128 L.Ed.2d 811 (1994)). Here, all remaining Defendants concede Kinney's diabetic condition qualifies as a sufficiently serious medical need. See DE 92 at 13. Second, the plaintiff typically is required to show "that the 'official knew of and disregarded an excessive risk to inmate health or safety,' " i.e., the subjective prong. Id. at 939 (quoting Farmer, 114 S. Ct. at 1979) (alterations adopted). This rubric is still used to evaluate Eighth Amendment deliberate indifference claims under § 1983. See, e.g., Phillips v. Tangilag, 14 F.4th 524, 534-35 (6th Cir. 2021).
However, following the Supreme Court's ruling in Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 192 L.Ed.2d 416 (2015), the Sixth Circuit altered the second prong of the traditional analysis in Brawner v. Scott County, 14 F.4th 585, 596 (6th Cir. 2021) for pretrial detainees' deliberate indifference claims. In Kingsley, the Court analyzed the standard applicable to detainees' excessive force claims and replaced the traditional subjective state-of-mind prong with an objective inquiry. See Kingsley, 135 S. Ct. at 2472-73. But the Kingsley Court instructed that a court "cannot apply [the objective] standard mechanically" and that "objective reasonableness turns on the 'facts and circumstances of each particular case.' " Id. at 2473 (quoting Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1872, 104 L.Ed.2d 443 (1989)). The Court further instructed that courts "must make this determination from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Id. However, the Court did not extend the Kingsley holding beyond the excessive force context. See id.
In Brawner, the Sixth Circuit extended Kingsley's reasoning to deliberate indifference cases alleging inadequate medical care. See 14 F.4th at 596; Greene v. Crawford Cnty., 22 F.4th 593, 607 (6th Cir. 2022) (establishing that Brawner's extension of Kingsley to deliberate indifference claims was controlling law rather than "mere dictum"). However, Brawner "stopped short of fully eliminating the subjective inquiry" of the second prong of the traditional deliberate indifference test and, instead, modified the inquiry. See Greene, 22 F.4th at 606 (finding that "Brawner modified the second prong of the deliberate indifference test applied to pretrial detainees"). The Brawner court determined that, even under an objective test, "mere negligence is insufficient" to establish deliberate indifference. 14 F.4th at 596. Instead, it imported the civil recklessness standard articulated, but rejected, in Farmer v. Brennan and found that "[a] defendant must have not only acted deliberately (not accidentally), but also recklessly 'in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.' " Id. (quoting Farmer, 114 S. Ct. at 1978). Put differently, to succeed on a deliberate indifference claim, "[a] pretrial detainee must prove more than negligence but less than subjective intent—something akin to reckless disregard." Id. (collecting cases) (internal quotation marks omitted); see Helphenstine v. Lewis Cnty., 60 F.4th 305, 316 (6th Cir. 2023) (overruling the Trozzi court's finding that Brawner requires "consideration of an official's actual knowledge of the relevant circumstances").
i. Pretrial Detainee v. Prisoner
Therefore, to apply the appropriate standard, the Court must determine as a threshold question whether Kinney was a convicted prisoner or pretrial detainee at PCDC at the time of the alleged conduct. Kinney was on probation following 2016 robbery convictions in Virginia state court, and he violated the terms of release when he was convicted for drug offenses in Kentucky state court. See DE 105-2 (Virginia Circuit Court of the County of Wise and the City of Norton Sentencing Order); DE 105-3 (Virginia Department of Corrections Major Violation Report) (stating that drug convictions in Letcher County Circuit Court constituted a probation violation); DE 105-4 (2/15/19 Arrest Warrant) (stating that the probation violation and fugitive status was the reason for 2019 arrest). Kinney's alleged probation violation had itself not yet been adjudicated at the time of his death on February 17, 2019. Indeed, Kinney had not been before the court with adjudication power; thus, the fugitive warrant.
The Sixth Circuit has never explicitly decided whether someone detained for a probation violation is a pretrial detainee or convicted prisoner, and courts across the country have grappled with the difficulty of this question. See Palmer v. Marion Cnty., 327 F.3d 588, 592-93 (7th Cir. 2003) ("The confusion about the constitutional predicate for [the defendant's] claims arises from the uncertainty as to whether a detainee awaiting a hearing on a probation violation can be 'punished' under the Eight Amendment."); Walker v. S. Health Partners, 576 F. Supp. 3d 516, 538-39 (E.D. Ky. 2021) ("Courts have struggled with the question of whether a prisoner detained for a suspected probation violation is a pretrial detainee."); Hill v. Cnty. of Montgomery, No. 9:14-CV-933, 2018 WL 2417839, at *2 (N.D.N.Y. May 29, 2018) (collecting cases) (internal quotation marks omitted) ("Whether to classify an individual detained for a suspected probation violation as a pretrial detainee or a convicted prisoner is an unresolved and difficult question.").
The Court concludes that Kinney was a pretrial detainee during his stay at PCDC. Though Kinney was previously convicted of robbery charges (hence the existence of a probation period), the alleged offense for which he was jailed was the unresolved probation violation. See DE 1 ¶ 23; DE 105-4. At no point between arriving at PCDC and his death was Kinney's violation adjudicated. In Bell v. Wolfish, the Supreme Court held that "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." 99 S. Ct. at 1872. It follows that Kinney should not be treated as a convicted prisoner for an alleged probation violation prior to a guilt determination on that status. See Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (determining that a convict out on parole is not a prisoner in part because he has not been "adjudicated delinquent for[ ] violations of . . . the terms and conditions of parole").
Relevant case law reinforces this logic and determination. Multiple circuits have applied "pretrial detainee" status to prisoners arrested for probation violations. See Russell v. Lumitap, 31 F.4th 729, 733 (9th Cir. 2022) (categorizing as a pretrial detainee a defendant who "was arrested for a probation violation and booked" at the jail); Paugh v. Uintah Cnty., 47 F.4th 1139, 1147-48 (10th Cir. 2022) (categorizing as a pretrial detainee a defendant who was arrested and jailed for probation violation); Crow v. Montgomery, 403 F.3d 598, 600 (8th Cir. 2005) (categorizing as a pretrial detainee a defendant who "surrendered himself to the custody of the [jail] after violating his probation").
Sixth Circuit precedent also supports the Court's conclusion. In Martin v. Warren Cnty., the Sixth Circuit states that the decedent "began his pretrial detention . . . after he was arrested for a parole violation." 799 F. App'x 329, 334 (6th Cir. 2020). The instant case presents a similar circumstance, as Kinney was arrested and brought to PCDC for booking on a fugitive warrant precipitated by a pending probation violation. Further, in Greene, the plaintiff was booked into the Crawford County Jail after his bond was revoked for attending a plea hearing while intoxicated. See 22 F.4th at 598. The court, without explanation, treated him as a pretrial detainee rather than a prisoner. See id. at 605. In Stefan v. Olson, a defendant pleaded guilty to resisting arrest and was placed on probation, violated the terms of that probation, and failed to appear at the probation-violation hearing; the defendant was then arrested for failure to appear. See 497 F. App'x 568, 569 (6th Cir. 2012). The Sixth Circuit categorized him as a pretrial detainee rather than a convicted prisoner following that arrest. Id. These cases, while they do not directly address the question, present examples of the Sixth Circuit classifying persons detained for unadjudicated conduct as pretrial detainees and, therefore, bolster the conclusion that Kinney should be analyzed as such.
Further, the Sixth Circuit routinely treats jailed arrestees as pretrial detainees protected by the Fourteenth Amendment. See, e.g., Griffith, 975 F.3d at 565-66; Richko, 819 F.3d at 915; Winkler, 893 F.3d at 890. This is because "the Eighth Amendment applies only to those individuals who have been tried, convicted, and sentenced." Richko, 819 F.3d at 915. While individuals jailed for unadjudicated probation violations have been "tried, convicted, and sentenced" of the underlying offense giving rise to a probation period, they have not been tried, convicted, or sentenced, that is, not adjudicated, for the conduct giving rise to the violation of the probation period. Therefore, Kinney is properly categorized as a pretrial detainee. This is especially true given the fact that Kinney had not even appeared before the court with jurisdiction to adjudicate his status. He was a fugitive from that court, leading to the Kentucky warrant and arrest.
ii. Prong Two Analysis
Since Defendants concede that diabetes constitutes a sufficiently serious medical need, satisfying prong one, the Court moves to the second inquiry. As to prong two, "to survive summary judgment on a deliberate indifference claim, a plaintiff must 'present evidence from which a reasonable jury could find that . . . the defendant's action (or lack of action) was intentional (not accidental), and she either (a) acted intentionally to ignore the detainee's serious medical need, or (b) recklessly failed to act reasonably to mitigate the risk the serious medical need posed to' the detainee." Greene, 22 F.4th at 607 (quoting Brawner, 14 F.4th at 597) (alterations adopted); Helphenstine, 60 F.4th at 317 (quoting Brawner, 14 F.4th at 596) (internal quotation marks omitted) ("Accordingly, plaintiff must show . . . that each defendant 'acted deliberately (not accidentally), [and] also recklessly in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.' ").
"At the second prong, because we cannot 'impute knowledge from one defendant to another,' we must 'evaluate each defendant individually.' " Greene, 22 F.4th at 607 (quoting Speers v. Cnty. of Berrien, 196 F. App'x 390, 394 (6th Cir. 2006)). Further, the deliberate indifference inquiry is "very fact specific." Hammonds v. Theakston, 833 F. App'x 295, 299 (11th Cir. 2020).
1. Nurse Practitioner Elizabeth Moore
Bond argues that, while Defendant Moore had no contact with Kinney at PCDC, her instructions to place Kinney on a sliding-scale insulin regimen constituted deliberate indifference. Specifically, Bond alleges that Moore "breached the standard of care" by ordering Deskins to place Kinney on a "blanket sliding scale" regimen rather than 1) calling Kinney's pharmacy to determine his home regimen and 2) deferring to Kinney's primary care physician. See DE 99 at 33-34 (citing DE 88 (Eilerman Dep.) at 49:12-25, 51:4-23); see also DE 99-11 (Eilerman Expert Report) at 9.
While Dr. Eilerman's expert opinion that Moore breached the standard of care may create a genuine dispute as to whether Moore was negligent, deliberate indifference requires significantly more. See Brawner, 14 F.4th at 596. To establish deliberate indifference, a plaintiff must show that Moore either deliberately ignored or recklessly failed to act reasonably to mitigate the risk posed by Kinney's diabetic condition. See Brawner, 14 F.4th at 597. Defendant Moore did not deliberately ignore Kinney's medical need; instead, she instructed Nurse Deskins to place him on an insulin regimen and to have his blood sugar checked twice daily. See DE 92-4 (Progress Notes); DE 92-5 (Physician's Orders); DE 83 at 47:7-9, 51:10-13. Plaintiffs have offered no evidence that Moore's instruction to administer the sliding scale rose to the level of deliberate indifference, even if a different course of treatment may have been preferable. See Darrah v. Krisher, 865 F.3d 361, 372 (6th Cir. 2017) (finding that a "disagreement . . . over the proper course of treatment alleges, at most, a medical-malpractice claim, which is not cognizable under § 1983"). Defendant Moore also instructed that Kinney's outside pharmaceutical records and medications be ordered. See DE 84 at 7:14-24; DE 92-4. She directed that the standard meds, including Kinney's basal dose, were to continue when the jail received those medications (though the insulin was not immediately available).
In Hixson v. Moran, the plaintiffs tendered expert testimony that the defendant doctor breached the standard of care by failing to prescribe medicine to a diabetic inmate given the inmate's blood sugar levels. See 1 F.4th 297, 300 (4th Cir. 2021). The Fourth Circuit found that while "[a]t first blush, this might appear to present a classic question of fact to be resolved by a jury," the testimony "at most determined that [the defendant's] actions were negligent," which is "not enough to show deliberate indifference." Id. at 303. The court determined, therefore, that the testimony did not "create an issue of material fact" and affirmed the district court's grant of summary judgment as to the doctor. Id. (emphasis in original); see also Lenning v. Com. Union Ins. Co., 260 F.3d 574, 581 (6th Cir. 2001) (finding that a fact is "material" if its resolution affects the outcome of the case). While Hixson was decided under the traditional rubric using a subjective mental-state prong, the reasoning applies, in this situation at least, under the Brawner standard. See Brawner, 14 F.4th at 596 (holding that "more than negligence" is required to find deliberate indifference). Moore implemented a treatment regimen, and there was little proof she received notice or information of a problem with the execution of the plan.
Dr. Eilerman's criticism of Moore concerns only the adequacy of the treatment she prescribed. "[W]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that sound in state tort law." Graham ex rel. Estate of Graham v. Cnty. of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)). Even viewing all facts and drawing all inferences in the light most favorable to Bond, there is insufficient evidence to create a dispute about whether Moore was deliberately indifferent to Kinney's medical need. Accordingly, the Court grants summary judgment to Defendant Moore as to the deliberate indifference claim.
2. Nurse Nicole Deskins
Bond claims that Defendant Deskins was deliberately indifferent to Kinney's medical need because she failed to check the medical cubby, where the jail staff placed Kinney's booking form, prior to the start of her shift on February 15. See DE 99 at 21-27. There is undisputed evidence that PCDC's inmate booking procedure is for the non-medical jail staff to fill out a Standard Medical Question Form (DE 1-4) and place it in a slot/cubby to be picked up by the medical staff on the next morning shift. See DE 83 (Deskins Dep.) at 32:3-19, 78:4-8; DE 85 (Morris Dep.) at 12:4-8. Though Deskins was working on February 14 during Kinney's morning intake, and though the jailers' typical practice is to inform the medical staff as soon as a diabetic inmate is booked, see DE 83 at 34:21-23, 42:13-25, 43:1-4; DE 85 at 10:6-10, Deskins was not informed that Kinney arrived at PCDC during her February 14 shift. See DE 83 at 39:9-22. Therefore, Kinney's booking form was not retrieved until Deskins began her February 15 shift at 5:30 a.m., see id. at 37:10-21, and Kinney was not given medical attention on February 14, see id. at 39:15-22; DE 1 ¶ 25. This gap created a significant insulin deficit.
Bond lodges a deliberate indifference claim against Deskins based on the extended period between when Kinney was booked on February 14 and when he was first given medical attention on February 15. See DE 99 at 26-27. However, to successfully make out a claim, Bond must show that Deskins "acted intentionally to ignore [Kinney's] serious medical need" or "recklessly failed to act reasonably to mitigate the risk of harm posed" to Kinney by his medical condition. See Greene, 22 F.4th at 607. It cannot be said that Deskins intentionally ignored Kinney's need, because she did not know he had arrived at PCDC. See DE 83 at 39:6-10. While it is true that Deskins knew Kinney was diabetic from his prior stay at PCDC, see DE 83 at 28:5-19, her lack of knowledge about his presence at the jail on February 14 renders her prior knowledge of his diabetic condition irrelevant (at least, until she actually saw him).
Deskins also did not recklessly fail to act reasonably to mitigate the risk posed to Kinney by his diabetic condition. Bond cites Brawner to support the proposition that "a jury could find that a [sic] Defendant Deskins recklessly failed to act reasonably to mitigate the serious medical need posed to Kinney by either (a) checking the medical box and ignoring the fact that Kinney was there or (b) never checking the box on February 14, 2019 when Kinney was booked into the jail." See DE 99 at 26-27. In Brawner, the jail nurse claimed that she never received the plaintiff's booking form, despite evidence in the record that the jail staff's practice was to place a copy in her mailbox. See Brawner, 14 F.4th at 597. The Sixth Circuit found that "[b]ased on this evidence, a reasonable jury could infer that [the nurse] received the form and failed to take the necessary steps to ensure that [plaintiff] received her medications." Id. at 597-98. The instant case is distinct. Deskins did in fact receive the booking form, and there is no incongruity between the time at which she did so (at the beginning of her shift on February 15) and the jail's practice of placing the booking form in the medical cubby to be picked up by the medical personnel working the next morning shift. It does not follow from Brawner that a reasonable jury could infer Deskins received the form, or notice of Kinney's intake, on February 14. Therefore, Bond's reliance on Brawner is misguided.
To be sure, though the jailers at PCDC perhaps typically alert the medical staff when a diabetic inmate was booked (in addition to placing the form in the cubby), it is undisputed that Nurse Deskins was not informed of Kinney's arrival on February 14. See DE 83 at 39:15-22, 42:13-25, 43:1-4; DE 85 at 10:6-10. As Bond notes, Deskins testified that she was angry to find out on February 15 that she had not been informed the prior day when a diabetic inmate was booked. See DE 83 at 37:18-25, 38:1-3; DE 99 at 27. A reasonable jury cannot infer Deskins's knowledge of Kinney's presence at the jail on February 14 based on the jailers' failure to inform her in accordance with their normal practice. This breakdown in process was not known to her.
Dr. Eilerman noted the need for prompt evaluation of diabetic detainees. See DE 99-11 at 5 ("It is important to rapidly identify and evaluate insulin-treated inmates at intake to detect those at highest risk for hypo- and hyperglycemia and diabetic ketoacidosis."). That opinion does not appear reasonably in dispute.
Further, Deskins was not deliberately indifferent to Kinney's medical need at any point after she reviewed his booking form. She immediately attended to his medical needs. Nurse Deskins tested Kinney's blood sugar levels, called her supervisor (Nurse Practitioner Moore) after his first elevated blood sugar reading, requested his medical and pharmaceutical records, and ordered his prescriptions from an outside pharmaceutical vendor before the end of her February 15 shift. DE 92-4 (Progress Notes); DE 83 at 43:22-25, 44:1-7, 46:3-12. Plaintiffs' expert concedes that Deskins appropriately administered care once she became aware of Kinney's presence at PCDC. See DE 88 at 57:8-22, 61:24-25, 62:1-2. Nothing in these facts supports a finding of deliberate indifference. See Winkler, 893 F.3d at 894 (rejecting a deliberate indifference claim, in part, because a nurse "gathered information about [the inmate's] condition, provided it to a medical professional qualified to evaluate him, and followed the directions of that medical professional"). Cf. Sours v. Big Sandy Reg'l Jail Auth., 593 F. App'x 478, 481, 485-86 (6th Cir. 2014) (finding deliberate indifference where a nurse was aware of a diabetic inmate's elevated blood sugar level but "did not administer insulin kept at the jail, did not call [the inmate's] pharmacy, [ ] did not order insulin for his use," and did not inform the supervising physician). At no point in her active care did Deskins deliberately ignore or recklessly fail to act reasonably to mitigate the risk posed by Kinney's diabetes. Accordingly, the Court grants summary judgment to Defendant Deskins on the deliberate indifference claim.
3. Nurse Kerriana Cornette
Bond claims deliberate indifference against Defendant Cornette based on the following: (1) Cornette's failure to recheck Kinney's blood sugar on the evening of February 15; (2) Cornette's failure to check on Kinney after he refused his blood sugar test at around 5:30 a.m. on February 16; (3) Cornette's decision to administer 15 units of insulin to Kinney without authorization from Nurse Practitioner Moore, failure to conduct a urine test for ketones, failure to take Kinney's vital signs, and failure to recheck Kinney's blood sugar after Kinney's blood sugar read test "HI" at around 10:45 a.m. on February 16; (4) Cornette's decision to administer 25 units of insulin to Kinney without authorization after his blood sugar test read "HI" again at around 12:40 p.m. on February 16; and (5) Cornette's failure to call the hospital at any point before Kinney's collapse at around 1:00 p.m. on February 16.
The Court sees a triable issue on the constitutional claim against Nurse Cornette. A jury could find that Cornette "was reckless by failing to act in the face of an obvious, unjustifiably high risk of harm, amounting to deliberate indifference to" Kinney's serious medical need. See Howell v. NaphCare, Inc., Nos. 21-4132/22-3306, 67 F.4th 302, 314 (6th Cir. May 1, 2023).
The conclusion rests on a mosaic of points and circumstances, all of which coalesce, under the proper summary judgment rubric, into a claim that survives dismissal. The following issues matter in the analysis.
First, Cornette was the only medical provider that saw or treated Kinney in the last 21 hours of his time at the jail. She tested him and provided an insulin dose per the sliding scale in the evening of February 15. See DE 87 at 24:3-17, 26:5-14. She, alone, was on site at the jail from 5:30 a.m. until Kinney's collapse and EMS evacuation around 1 p.m. on February 16. At many stages along the way, and viewing the course of treatment as a whole, a jury could rationally view Cornette as acting recklessly relative to the grave and plain risk Kinney faced. Kinney, in the jail from February 14 to 16, was insulin dependent and died of complications from severe hyperglycemia and metabolic acidosis. See DE 99-10 (Medical Examiner's Report).
The sliding scale is oft referenced but never found or produced. This is a concern.
By the time Cornette tested Kinney on February 15, several things were known to her or plainly available to her in the jail records. Kinney was diabetic and had gone without insulin from booking until Deskins administered the first sliding scale dose late in the morning of February 15, a period of over 20 hours. Kinney's prescription/treatment records (secured by Deskins, then recorded in the orders), see DE 92-4, showed that Kinney's provider had prescribed him insulin as part of a specific basal bolus regimen, to include a basal dose of 80 units per day. See DE 99-11 (Expert Report) at 2. The prior jail custodial period reflected a comparable type of regimen. See id. at 8; DE 83 at 28:8-23. Cornette would have known, therefore, that Kinney went without his prescribed (or any insulin) for nearly a full day and then received only 12 units of sliding-scale insulin, after testing at 437, on the morning of February 15. See DE 92-4; DE 83 at 43:22-25, 44:5-7. When Cornette tested him on the evening of February 15, she got another elevated result (at 374) and injected him with 10 units. See DE 87 at 24:25, 25:1, 26:5-14; DE 92-6. Despite this knowledge, and despite SHP requirements of prompt retesting after an elevated result, Cornette did nothing further on February 15.
Dr. Eilerman stated in his deposition that following up within 30 minutes "would not have achieved anything." See DE 88 at 49:8-11. However, this opinion is nuanced and relates to the particular insulin utilized. Dr. Eilerman certainly indicated the need for effective retesting generally when a high blood sugar test is returned, even if 30 minutes was not the proper protocol for the particular medicine. See DE 87 at 47:17-25, 48:1-6.
The morning of February 16 was vital. Cornette was to test Kinney around 5:30 a.m. See DE 87 at 27:17-25, 28:1-6, 30:12-17. He did not appear for testing, and a jail guard informed Cornette that Kinney "refused" to test. Id. at 31:2-5. Cornette, viewing Kinney as having personal agency, accepted this result and took no further action. See id. at 28:13-15. Importantly, she did nothing despite not seeing or hearing from Kinney herself. It is not clear what a "refusal" here signified. There also is nothing, either way, about Kinney's competence, understanding, or sentience in the moment. Did Kinney realize that, by refusing to appear for testing, he also was ensuring he would not receive insulin? See DE 88 at 64:20-25, 65:1-16 (explaining the lack of clarity about the consequences of Kinney's refusal). Cornette knew Kinney's demonstrable current need and insulin dependence; she took as gospel the validity of his hearsay refusal without inquiry or follow-up. A jury could view this as reckless, given all Cornette knew, Kinney's insulin deficit, the prescription status (and fact that the basal dose was unavailable), Deskins's statement that the normal course is to obtain a signed refusal from the inmate, the passage of time, and the risk inherent in unmonitored and uncontrolled diabetes.
Next comes the 10:40 a.m. interaction, prompted by Kinney's own contact with jail staff. See DE 86 at 13:19-25, 14:9-17; DE 99-6. A rational juror might have expected Cornette to be on heightened alert for a problem involving Kinney. She reports that Kinney, without description, simply claimed he was feeling "bad." See DE 87 at 36:3-12. Testing gave a clear reason—his CBG number literally exceeded the upper limit of the testing device at the jail, rendering a "HI" designation. See id. at 37:1-6; DE 92-4. Cornette reacted by unsuccessfully attempting to reach Moore and then, on her own, giving Kinney giving 15 units of insulin. See DE 87 at 37:15-22, 39:5-14; DE 92-4. She did not take his vitals or do an exam. She promised jail staff that she'd return to retest Kinney in 30 minutes, as reflected in jail reports and Cornette's own log ("will recheck"). See DE 92-4; DE 99-6.
A few critical observations here: Cornette knew the testing figure at the time was unknowably high. Deskins put the machine limit at 550-600. See DE 83 at 55:7-12. Cornette associated a number above 400-500 as emergent. See DE 87 at 63:20-25. She knew his last two tests had been 437 and 374, and she knew he had received no insulin whatsoever for 17.5 hours. The "HI" reading was something between 500 and the scientific ceiling. Further, although Cornette claimed to have adhered to the sliding scale protocol, it seems she went beyond Moore's authorization. Moore described that administering more than 12 additional units would require her authorization, see DE 84 at 24:7-12, though, again, the sliding scale has no objective verification in the record. As an example, Deskins had secured permission before giving even two units about the sliding scale requirement of 10. See DE 83 at 46:3-12. Cornette did not have such authorization; she had tried to reach but not reached Moore. Further, given that the first test that day was off the BID protocol and that Cornette encountered an inmate with physical complaints and an immeasurably high testing result, she (to a rational jury) may well have been acting without medical permission or clearance.
The Moore contact issue matters. Moore testified to one contact on the fateful day, in the afternoon after Kinney had collapsed. See DE 84 at 24:19-24. Cornette claimed she reached Moore once, in the afternoon. See DE 87 at 39:1-2. Nothing supports a finding that Cornette actually conferred with Moore at any point prior to Kinney's medical evacuation. Nothing suggests Cornette took any other step (such as calling Deskins, SHP's MTA at the jail, or any other medical source) in the period between 5:30 a.m. and Kinney's collapse on February 16.
She also claimed she left a message about Kinney's status. See id. at 43:5-12. Moore has a vague recollection of such a message. See DE 84 at 9:17-25. No one is clear on that fact or the content supposedly communicated.
There is more and conflicting detail about how Kinney presented at the time. Officer Johnson encountered Kinney throughout February 16 and initiated medical contact at the 10:40 and 12:40 periods. See DE 99-6; DE 99-7. As to the 10:40 situation, Johnson described Kinney as having labored breathing, something Cornette omits. See DE 99-6; DE 86 at 15:14-21.
After the 10:40 interaction, Cornette did not retest Kinney within 30 minutes. Indeed, she did nothing to follow-up of her own volition. Rather, Johnson initiated medical contact again, around 12:40 p.m. See DE 99-7; DE 86 at 22:19-25. Per his telling, he, concerned, initiated removal of Kinney to booking to allow better observation. See DE 86 at 23:4-13. Cornette claims she initiated this, after being called to consult on Kinney again. See DE 87 at 44:11-14. The jury crediting Johnson's version would cut against Cornette's credibility and degree of care.
During the 12:40 interaction, Cornette did re-test Kinney, and the result was, again, an unbounded "HI." See DE 87 at 41:24-25, 42:1-3; DE 92-4. Cornette did not succeed in consulting with Moore. See DE 87 at 41:24-25, 42:1-3, 43:1-12. She did check Kinney's vitals and also gave him 25 units of insulin. See id. at 43:13-22, 42:22-25. That amount, per Moore, was unauthorized; further, any second dose of that type would have required consultation with Moore.
Cornette regarded the vitals as stable or normal. See DE 87 at 46:14-16. Moore, for her part, viewed Kinney's pulse as a "red flag." See DE 84 at 32:15-19. By this stage, Kinney has continued to test off the charts despite the earlier insulin dose. Though Cornette continued to describe Kinney as having nonspecific physical complaints, CO Johnson tells a more nuanced tale. He observed that Kinney persisted with labored breathing. See DE 86 at 22:6-13. Critically, Johnson described Kinney as being very thirsty. See id. at 25:18-19 (describing Kinney as "begging for water").
At her deposition, tellingly perhaps, Cornette was unable to list the symptoms of hyperglycemia. See DE 87 at 55:1-6. She did identify some for diabetic ketoacidosis (DKA), see id. at 70:14-25, 71:1-8. These included both a high CBG number and extreme thirst. If the lay Johnson perceived key medical-risk elements but the supposed expert Cornette missed them, a rational jury might properly see that discrepancy as probative of recklessness.
At this point, Kinney was just minutes from collapse. Rather than focusing on the potential metabolic emergency, Cornette instead pivoted to suspected drug withdrawal, spending time having Kinney submit a urine sample for suboxone. See DE 87 at 49:15-19. In a difficult irony, Deskins said that the SHP protocol, after the "HI" CBG reading, would have been physician consultation plus a urine test for ketones. See DE 83 at 56:16-20. Cornette did not do either of those in response to either HI test. She apparently viewed Kinney's status as consistent with withdrawals but not with insulin deficiency. See DE 87 at 53:20-22. Given the full record, all that Cornette knew, had before her, and failed to address, a jury could view the last misperception as the capping instance of reckless indifference to the imposing risk Kinney faced. By this point, the insulin deficit period, known variance from Kinney's prescribed protocols, unknowably high test results, absence of consultation, and physical symptoms blared for emergent attention. Cornette treated the matter as drug related. A rational jury could view Cornette as having "recklessly acted or recklessly failed to act where a reasonable official in [her] position would have recognized that [Kinney's] serious medical need posed 'an unjustifiably high risk of harm.' " NaphCare, Inc., 67 F.4th at 312 (citing Brawner, 14 F.4th at 596-97).
The remaining course of events is without dispute. Kinney soon collapsed and later died at the hospital. His primary cause of death was complications of diabetes. The autopsy showed severe metabolic acidosis. The jury must determine whether Cornette's care, actions, and inactions deprived him of a constitutional level of medical management while in custody. A rational jury could find something akin to reckless disregard, or as Brawner endorses, reckless failure to act with reasonable care to mitigate a risk that the official knew or should have known posed an excessive risk to the detainee's health.
Accordingly, for the reasons stated herein, the Court denies summary judgment as to Defendant Cornette on the deliberate indifference claim.
4. SHP
"A private entity, such as [SHP], that contracts to provide medical services at a jail can be held liable under § 1983 because it is carrying out a traditional state function." See Winkler, 893 F.3d at 904; Johnson v. Karnes, 398 F.3d 868, 877 (6th Cir. 2005). However, "[l]ike a municipality, [SHP] cannot be held liable on a respondeat superior theory"; instead, a plaintiff must identify "a policy or custom" that caused the constitutional violation. Winkler, 893 F.3d at 904 (quoting Johnson, 398 F.3d at 877); Grose v. Corr. Med. Servs., Inc., 400 F. App'x 986, 989 (6th Cir. 2010).
The Complaint alleges deliberate indifference as to all Defendants. See DE 1 ¶¶ 41-50. However, neither the Complaint nor Plaintiffs' summary judgment response alleges that any SHP policy or custom caused a constitutional violation. In fact, Plaintiffs' summary judgment response fails altogether to argue deliberate indifference as to SHP. See generally DE 99. "In response [to a motion for summary judgment], the non-moving party must present 'significant evidence' to show that 'there is [more than] some metaphysical doubt as to the material facts.' " Hunley v. DuPont Auto., 341 F.3d 491, 496 (6th Cir. 2003) (quoting Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993)). Bond has failed to do so here.
Further, while Plaintiffs' expert is critical of the sliding-scale regimen and SHP/ the jail only keeping Humulin R insulin on hand, see DE 99-11 (Expert Report) at 6, 9 (opining that "delay in timely resumption of home insulin regimens clearly deviates from . . . standards of care"), Bond never cites to the expert report. Even had Bond cited the report, an expert opinion critical of SHP's policy is, by itself, not enough to succeed on a claim for deliberate indifference. See Winkler, 893 F.3d at 904 (finding that an expert opinion alone is insufficient to establish deliberate indifference where the plaintiff "has neither provided evidence of past examples of constitutionally inadequate treatment of inmates by [Defendant's] medical staff nor explained how the training program's alleged weaknesses were so obvious as to put [Defendant] on notice that a constitutional violation was likely"). Therefore, the Court grants summary judgment to SHP under Count 1.
b. Monell Claim Against Defendant Nurse Practitioner Moore
While the Complaint labels this Count a Monell claim, the contents of ¶¶ 51-56 are more consistent with a § 1983 claim based on a supervisory liability theory. See, e.g., Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989) (citing Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 604, 46 L.Ed.2d 561 (1976)). The Court will analyze the claim as such. Further, though the Sixth Circuit recognizes Monell claims against private corporations under § 1983, see, e.g., Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996), Bond alleges Monell liability only as to individual Defendants in training or supervisory positions. See DE 1 ¶¶ 51-56. Therefore, the Court also will not further analyze SHP's liability under a Monell rubric.
Count 2 alleges that Defendant Nurse Practitioner Moore "failed to adequately train, supervise, or discipline [her] employees" and that her failure to do so "amounted to deliberate indifference" and "proximately caused the violation of Kinney's right to treatment for a serious medical need," all in violation of 42 U.S.C. § 1983. DE 1 ¶¶ 53-55. "To succeed on a supervisory liability claim, a plaintiff must show that a supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate." Crawford v. Tilley, 15 F.4th 752 (6th Cir. 2021) (alterations adopted) (quoting Garza v. Lansing Sch. Dist., 972 F.3d 853, 865 (6th Cir. 2020)); see also Gregory v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) ("Plaintiff must show that the supervisor[ ] somehow encouraged or condoned the actions of their inferiors.").
Bond failed to argue this claim at all in her response or offer any other proof that would create a genuine dispute as to a material fact on this issue. See generally DE 99; Hunley, 341 F.3d at 496 ("The non-moving party, however, 'may not rest upon its mere allegations . . . but . . . must set forth specific facts showing that there is a genuine issue for trial."). Bond marshals no evidence that Defendant Moore approved, acquiesced in, or condoned Cornette's actions. In fact, Bond's claims against Cornette are, in large part, based on Cornette's failure to receive authorization from Moore or otherwise adhere to the regimen Moore prescribed. See DE 99 at 30-32. Moore did not know about, much less knowingly acquiesce to, Cornette's constitutional violations. If anything, Moore's unavailability is part of the story, but lack of access does not signal the type of affirmative ratification the supervisory law hooks. Accordingly, the Court grants summary judgment to Defendant Moore as to the supervisory liability claim.
c. State Law Claims
Count 3 alleges negligence, gross negligence, and wrongful death against all Defendants, and Count 4 alleges medical negligence against all SHP Defendants. DE 1 ¶¶ 57-71.
The parties gave comparatively light attention to the state-law theories in the case. The Court believes most of those claims should be tried.
Kentucky imposes a duty of reasonable care to avoid foreseeable injury. See Martin v. Cincinnati Gas and Elec. Co., 561 F.3d 439, 444 (6th Cir. 2009) (quoting Lee v. Farmer's Rural Elec. Coop. Corp., 245 S.W.3d 209, 212 (Ky. Ct. App. 2007), abrogated on other grounds by Reeves v. Walmart, Inc., No. 2020-CA-0679, 2021 WL 2753244 (6th Cir. July 2, 2021)) ("In Kentucky, there is a universal duty of care which requires 'every person . . . to exercise ordinary care in his activities to prevent foreseeable injury.' "). The general standard of care matters here, but also the more particular standard of care in a malpractice setting. See Matthews v. Robinson, 52 F. App'x 808, 809-10 (6th Cir. 2002) (citing Reams v. Stutler, 642 S.W.2d 586, 588 (Ky. 1982)) ("Under Kentucky law, a plaintiff alleging medical malpractice must prove that a medical provider failed to adhere to the standard of care of a reasonably competent practitioner in the same medical field, proximately causing the plaintiff['s] injury.").
The defense argues that Plaintiffs' expert gave the nurses a pass on standard of care or otherwise did not link a breach to any harm. See DE 92-1 at 34. Such a position ignores most of what Dr. Eilerman actually observed or opined.
Cornette, the Court largely has dealt with already. Eilerman reported on a host of breaches by Cornette. See DE 99-11 (Eilerman Report) at 3-9. Likewise, he explained or expanded on those opinions in deposition. See DE 88 at 67, 74, 76, 111, 118-19. Suffice it to say that Eilerman has qualifications to give these opinions and that he a) substantiates breaches of the duty of care by Cornette and b) links the breaches to harm. The case turns on the denial of insulin, the failure to engage in proper medical oversight, and the failure to observe Kinney's emergent and grave problem. Eilerman effectively ties the breaches, causally, to the ultimate result, the death of Kinney.
Moore was the overarching medical supervisor. See DE 83 at 10:13-18. She oversaw the sliding scale. See id. at 45:17-24; DE 92-5; DE 92-4. Further, she understood the medication gap between the outside script and what Kinney would receive in the interim. Obviously, Eilerman had deep criticisms about the propriety of the sliding scale approach. See DE 99-11 at 6-7; DE 88 at 46-49, 94:14-23. His criticisms suffice to establish a triable issue as to Moore on negligence. The Court also has questions about Moore's lack of availability, given that she is contracted to be "on call 24/7" at PCDC. See DE 84 at 6:2-3. There is proof, slim though it is, that Cornette repeatedly tried to reach Moore and may have left her a message about Kinney's status. The record is silent on why Moore had no input into Kinney's care between the 5:30 a.m. testing "refusal" and Kinney's loss of consciousness 7.5 hours later. The on-call supervisor surely must be reasonably available to consult with the dependent subordinate staff.
Deskins is the closest call. It is true that, to the extent she followed Moore's order, she properly stayed in her lane and met her obligations. However, the Court still believes a jury must assess her failure to realize that Kinney was in the jail for 21 hours. Deskins knew the importance of prompt contact with diabetic detainees. See DE 83 at 42:17-25, 43:1-4. She, the morning shift nurse and the medical authority on site, relied on a system that included a) checking a "cubby" once per day to see intake forms and b) depending on jail staff to identify any diabetic upon intake and immediately inform her of the presence of such a person. The system failed here, and Kinney fell through a vital crack. Deskins knew the system was flawed and that jail staff inconsistently gave her the oral alert when an inmate with a need went through booking. See DE 83 at 34:21-23. Per her testimony, "Normally booking officers would tell us . . . but sometimes they do not tell us." Id. This is not a matter of medicine alone, but something a lay jury could assess simply as a matter of reasonable care in managing information. Deskins relied on a notice system she knew had flaws and risked delay. The Court sees a triable issue.
On the punitive damage question, the Court already rejected the notion that Deskins or Moore acted with an equivalent to reckless disregard. The Court will grant summary judgment on those sub-claims. Not so as to Cornette, for reasons already articulated. Plaintiffs do nothing to contest the higher standard for a principal's punitive damage liability, so the Court, seeing no evidence of ratification or authorization, grants the motion there as well.
Plaintiffs also do little to contest the propriety of SHP dropping out relative to Moore's imputed liability as a contractor. Fine, but that does not take SHP off the hook as the master of Deskins and Cornette. SHP stays in the case as the employer of the LPNs and, therefore, there is a triable issue as to vicarious liability. See Patterson v. Blair, 172 S.W.3d 361, 363-64 (Ky. 2005). Further, the derivative consortium claims persist, given the rulings on the primary claims.
For all of these reasons, the Court denies the motion on the state law negligence and malpractice claims against Cornette, Moore, and Deskins. SHP remains subject to potential vicarious liability via the LPNs. The punitive damages claim against Cornette alone survives. The loss of consortium claims persist.
V. Conclusion
For the reasons stated herein, the Court ORDERS as follows:
The Court GRANTS DE 92 as to Count 1, the § 1983 claim, as to Defendant Moore, Defendant Deskins, and SHP;
The Court DENIES DE 92 as to Count 1, the § 1983 claim, as to Defendant Cornette;
The Court GRANTS DE 92 as to Count 2, the supervisor liability claim as to Defendant Moore;
Count 2 is inaptly named a Monell claim in the Complaint. DE 1.
The Court DENIES DE 92 as to Counts 3 and 4, the state law negligence and medical negligence claims, as to Defendant Moore, Defendant Deskins, Defendant Cornette, and SHP in its capacity as Deskins's and Cornette's employer;
The Court GRANTS DE 92 as to the punitive damages claims (against all but Cornette); and
The Court DENIES 92 as to Count 5, the loss of consortium claim.