The opinion of the court was delivered by: Chief Magistrate Judge Lenihan
Presently before the Court are Defendants' Motions for Summary Judgment at ECF Nos. 32 & 35. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 claiming violations of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The Court's careful review of the record reveals numerous disputed issues of material fact. Consequently, the Primecare Defendants' Motion for Summary Judgment at ECF No. 32 will be denied in its entirety, and the Motion for Summary Judgment at ECF No. 35 filed by Fayette County Defendants Medlock, O'Neil, DelVerme, Locke, Skiles, and Vanmeter Arison will be denied except as it relates to Defendants O'Neil and Vanmeter Arison.
The following facts are undisputed unless otherwise indicated.
Plaintiff's Decedent, Terry Johnson, ("Johnson") was housed in the Fayette County Prison*fn1 (hereinafter "Jail") on February 22 through February 24, 2007, as a pretrial detainee for the alleged violation of a temporary restraining order. His wife, Plaintiff Lorraine Johnson, had secured a temporary PFA against her husband which was to remain in effect until February 27, 2007, or until modified by the court.
Johnson died sometime before 9:00 p.m. in his cell on February 24, 2007. Dr. Cyril Wecht performed an autopsy on Johnson the next morning and concluded that he had died of peritonitis, an infection of the abdominal wall, wherein Johnson sustained a spontaneous perforation of the ileum and necrosis and gangrene of the small bowel. Dr. Wecht also noted a large, post-operative ventral hernia. The Coroner's Certificate of Death reflected the same and listed Johnson's cardiovascular disease, gastric bypass surgical procedure, and cocaine use, as significant conditions contributing to death but not resulting in the underlying cause of death.
Defendants PrimeCare Medical, Inc., and PrimeCare Medical Associates, Inc. (collectively "PrimeCare") entered into a Comprehensive Health Services Agreement with Fayette County to provide health care services to the inmates and detainee population at the Jail. (Comprehensive Health Services Agreement, ECF No. 50-1.) PrimeCare points to the medical records generated while Johnson was at the Jail to illustrate that by 10:15 a.m. on February 23, the medical intake procedure that began the night before was completed, and Johnson appeared to be in good health and voiced no complaints. PrimeCare states that at 2:45 p.m. on February 23, Johnson was brought to the medical unit complaining of chest pains, and that he was anxious about moving to the general population. At this time, his vital signs were taken and he was examined. An EKG was performed, and Inderal was administered. A representative of PrimeCare ordered that Johnson be left in isolation on the "B-range" section of the jail instead of putting him in the general population in order to relieve his anxiety. PrimeCare further indicates that Mr. Johnson was examined by one of its nurses at 9:00 p.m. on February 23; the nurse also checked his vital signs which were reported in the normal range. At 10:15 p.m., Mr. Johnson was sleeping in his cell with slow and easy respirations with no sign of distress. PrimeCare again points to its records indicating that at 4:15 p.m. the following day, February 24, less than 5 hours before his death, Johnson's vital signs were again in the normal range. PrimeCare states that at this time, Johnson did not indicate that he was in any pain, and never indicated that he needed or wanted to see a doctor; likewise, PrimeCare indicates that at no point did Johnson ever ask to see a doctor or be taken to a hospital. At 8:15 p.m., PrimeCare provided medications to Johnson during a medication pass. At that time, according to PrimeCare, Johnson had no complaints of chest pain. Another of PrimeCare's nurses indicated that she did speak with Johnson in detail on February 23 and 24, and he did not voice complaints to her, and he did not appear to be in pain, distress or discomfort.
Plaintiffs vehemently dispute PrimeCare's version of the facts and circumstances surrounding Johnson's death. Plaintiffs rely on the undisputed fact that Johnson died of peritonitis, and that "it is medically and factually impossible that Terry Johnson, who was dying of peritonitis, would have vital signs in the normal ranges." (Plaintiffs' Responsive Concise Statement to Prime Medical, ECF No. 47 at ¶¶ 13, 26, 27, 29, 30, 31.) Likewise, Plaintiffs state that "it is medically impossible that Terry Johnson, who was dying of peritonitis, would have appeared fine, not communicated distress, and not been in visible and audible distress." (Plaintiffs' Responsive Concise Statement to Prime Medical, ECF No. 47 at ¶¶ 32, 33, 34, 37.) In support of their version of the facts, Plaintiffs rely on their expert, Leo Frangipane, M.D., who, in light of the undisputed cause of death, describes as follows:
The timeline for such an event is well documented. It takes at least 12 to 24 hours for a piece of trapped bowel to lose its blood supply and die, eventuating in rupture and fecal spillage into the peritoneal cavity causing massive infection and death. The salient signs and symptoms of such an event from its onset invariably cause unrelenting pain generally at the hernia site. In this case it would be the upper abdomen or lower chest. The pain is not usually episodic but steady, intense and inexorably worsening. It is usually accompanied by nausea and vomiting and sense of "impending doom." The former takes place because of the bowel obstruction that invariably accompanies this process. The latter occurs because of the patient's awareness of a new, intense and previously unexperienced set of symptoms that are related to adrenalin effect. These include, [sic] restlessness, rapid heart rate, increase in blood pressure and high anxiety.
The process of this illness is excruciating. While all pain is subjective, most alert and oriented patients complain of pain at an 8-10 range out of 10 when medical personnel try to quantify it. Once peritonitis and gangrene ensue these patients are in extremis, with excruciating pain that causes extreme restlessness, agitation and heightened vocalization of their condition.
It is unlikely to the extreme that five hours prior to his death, Mr. Johnson's vital signs taken by a nurse employed by PrimeCare would have been normal. It is virtually impossible to record normal temperature of 98.4F with regular pulse rate of 84 and respirations of 18. In addition, a BP of 138/84 also seems highly unlikely. The acidosis and septic products of massive infection cause blood vessel muscular dysfunction that are revealed in rapid and thread pulse rate, dropping and faint Blood Pressure and rapidity of respirations, known as Tachypnea. All of these are signs of shock. Temperature can be in the hypothermic or hyperthermic range but rarely in these cases is it seen to be normal.
It is impossible for someone dying of peritonitis to have appeared so symptom-free or to have been so silent. Johnson would have been very vocal in expressing his state of extremis. It is highly unlikely that Johnson, forty minutes before his death, appeared "fine[,]" sat up, took his medicine and expressed no distress.
(Expert Report of Leo G. Frangipane, Jr. M.D., F.A.C.S., ECF No. 49-1 at pp.1-3.) Instead, Plaintiffs suggest that either Johnson's vital signs were not taken, or they were taken and inaccurately recorded. Similarly, Plaintiffs suggest that in light of their expert's description of the progress of peritonitis, the PrimeCare Defendants ignored and/or omitted Johnson's true complaints in the medical records.
Fayette County Defendants Larry Medlock ("Medlock"), Geary O'Neil ("O'Neil"), Anthony DelVerme ("DelVerme"), Kevin Locke ("Locke"), David Skiles ("Skiles") and Jacqueline Vanmeter Arison ("Vanmeter Arison") (collectively "County Defendants") give an account similar to PrimeCare's. The County Defendants state that Johnson was housed on "B" range in cell B-3, which is a camera equipped cell that is also used for suicide watches. It is a locked unit where new commitments and inmates with disciplinary problems are housed. "B" range consists of eleven (11) cells all facing in the same direction. The cells have masonry walls on three sides, and bars on the front wall. A common area is situated in front of the row of cells. The common area is rectangular in shape and is bordered on three sides by bars. The fourth side of the range consists of the barred walls to the cells. Beyond the barred border of the range is a walkway, known in the Jail as the "catwalk." Correctional officers can make their rounds in this catwalk, and are able to view the range and the cells from the catwalk. The cells of "B" range are organized as follows: As one faces the row of cells, the rightmost cell is cell B-1. The cells then continue in numeric order moving leftward, with the shower in the "B" range at the extreme right of cell B-1. As a locked unit, the inmates on "B" range are not free to roam around the range, but are confined to their cells. The video camera in cell B-3 is connected to a monitor on the desk of the officer assigned to "B" range. The desk is located outside of "B" range on the side closest to the shower and cell B-1. The desk is situated in a hallway that leads to the "B" range catwalk. The video monitor on the officer's desk allows the officer assigned to "B" range to view the inmate in cell B-3 via the video camera in that cell. The video camera and the monitor on the officer's desk were functioning during Johnson's incarceration. From the monitor, the officer could see Johnson in cell B-3. It is disputed whether the video from the cell was recorded. The County Defendants state that the video was not recorded, because the recording system was broken, although the County Defendants state that after Johnson's death, new equipment with recording capabilities was purchased and installed at the Jail. Conversely, Plaintiffs contend that correctional officers testified that to the best of their information, knowledge and belief, the recording feature of the video surveillance system was working on the night of Johnson's death.
The County Defendants state that Defendant Skiles (nick named "Gunny"), was the correctional officer on duty on "B" range during the 3:30 p.m. to 11:30 p.m. shift on February 23, 2007. Skiles indicated that he was informed that Johnson had an EKG, and that "he's all right." At a point between four (4) and six (6) o'clock p.m., Johnson complained of chest pain. Skiles indicated that he called a nurse from PrimeCare who told Skiles that Johnson had an EKG before he came on shift at 3:30 p.m. The nurse told Skiles to have Johnson lie down and relax. At the end of his shift, Skiles wrote in the log book*fn2 that Johnson complained of heart and arm pain, that he needed Motrin, and the nurse checked him "and said O.K." Inmate Derrick Bradley filed an "Event Report/Statement" with the Jail dated February 28, 2007 reporting on an incident from February 24, 2007, wherein he indicated that he was on "B" range in cell B-6 when Johnson was telling Correctional Officer Skiles ("Gunie") that he needed to see a nurse and Skiles would not call her. In addition, inmate Erik Hamm testified in deposition that he heard "Gunie" tell Johnson "Shut the fuck up. You don't need your meds." (Hamm Dep. at 9, ECF No. 49-6 at 3.)
The County Defendants state that Correctional Officer Michael Hicks
worked the next shift on the "B" range from 11:30 p.m. to 7:30 a.m.
Hicks' notes in the log book reflect that at 12:45 a.m., inmate Joseph
Pullem joined the "B" range, and was placed in cell B-9; at 3:10 a.m.,
inmate Erik Hamm joined the "B" range, and was placed in cell B-8; and
at 4:30 a.m., inmate Michael Strejcek joined "B" range and was placed
in cell B-10. Hicks indicated that at approximately 4:30 a.m., on
Saturday, February 24, 2007, Johnson told him he was in pain and going
through drug withdrawals. Johnson said his midsection hurt, and asked
for OxyContin, Maalox and ginger ale. Hicks told Johnson that he could
not give him those items. The County Defendants state that Johnson
asked Hicks whether he had to do something to hurt himself to get
these items. The County Defendants state that when Hicks saw Johnson
put a piece of eyeglass to his neck, Hicks called an emergency code
and Johnson was eventually placed on suicide watch.*fn3
The County Defendants state that a suicide watch log was
prepared for Johnson that contains entries from 4:30 a.m. until the
watch was discontinued after Johnson's death. Plaintiffs dispute
whether the guards actually observed Johnson every fifteen (15)
minutes as required and whether the content of the entries is truthful and accurate.
Plaintiffs point to the testimony of Inmate Joseph J. Pullem, Jr. who
indicated the following:
You sort of get tired of hearing the same guy moaning and groaning so I'm-I bitched to the security C.O.s, to "Hey, do something. Quiet that guy down. Do something." That happened earlier in the evening before breakfast about 5:00 o'clock when the lights come on. This is while the lights are off the guy --I said, "Do something with that guy. Shut him up."
(Pullem Dep. at 10, ECF No. 49-6 at 6.)
At 7:30 a.m. on February 24, Correctional Officer Hicks' shift concluded and Defendant DelVerme's shift began. At approximately 8:15-8:30 a.m., Johnson told DelVerme that he had an accident in his pants and needed a shower. DelVerme received approval from the shift commander for Johnson to take a shower. DelVerme opened Johnson's cell, Johnson walked to the shower, and DelVerme got Johnson a clean set of clothes. Inmate Erik Hamm testified that, at some point, he overheard DelVerme tell Johnson the following: "You know, you need to shut the fuck up. We'll tell your wife you went quickly[.]" (Hamm Dep. at 9, ECF No. 49-6 at 3.) Inmate Hamm further testified that Johnson "really wasn't talking to the other inmates. I mean, he was just crying out all day to the C.O.s: ‗Please help me. Call my wife. I need my meds. Will you take me to the hospital?' This was all day." (Hamm Dep. at 10, ECF No. 49-6 at 2.) Finally, inmate Hamm indicated the following:
Q. (By Mr. Geary) In addition to what Terry Johnson was saying, was he making any sounds from his cell other than A. He was crying, I mean literally crying for help.
Q. And when you say "literally crying," what do you mean, literally crying?
A. Crying. I mean I could hear him crying. "Please . . . ." (Hamm Dep. at 10, ECF No. 49-6 at 2.) Yet, in his deposition, DelVerme testified that Johnson did not say anything to him or communicate in any way to DelVerme that ...