Howell v. NaphCare, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KARLA HOWELL,

Plaintiff,

Case No. 1:19-cv-373

v. JUDGE DOUGLAS R. COLE

NAPHCARE, INC., et al.,

Defendants.

OPINION AND ORDER

This cause comes before the Court on a Motion for Relief from Judgment (the

“Motion,” Doc. 112), filed by Plaintiff Karla Howell, on behalf of the estate of

Cornelius Pierre Howell (hereafter “Howell’s estate”). Howell’s estate argues that,

based on a Sixth Circuit decision issued after briefing was complete, but before the

Court issued its Order, the Court applied the wrong legal standard to the pending

claims for deliberate indifference to serious medical need. The Court agrees. But

because the Court would have reached the same result under the new standard, the

Court nonetheless DENIES the Motion (Doc 112).

FACTUAL BACKGROUND1

On December 2, 2018, Cornelius Pierre Howell (“Howell”) was arrested and

detained at the Hamilton County Justice Center (the “Jail”). (Guy Decl., Doc. 72,

#868). Howell completed a medical intake with NaphCare, Inc. (“NaphCare”), the

1 This summary reproduces and abbreviates the Court’s recounting of the facts of this case in

its previous Opinion (Doc. 105) granting Defendants’ Motions for Summary Judgment (Docs.

84, 85).

Jail’s contracted medical provider, at which he disclosed that he had sickle cell

disease. (Perdikakis Decl., Doc. 79-1, #1290). Howell received a medical screening on

December 3, 2018, from a Licensed Practical Nurse employed by NaphCare who

charted Howell’s sickle cell disease and ADHD diagnosis. (Id. at #1282, 1290). Howell

then had a chronic care visit with a nurse practitioner employed by NaphCare on

December 7, 2018. (Id. at #1266–73). That practitioner noted that Howell reported

taking Oxycodone for his sickle cell pain, which had worsened since his incarceration.

(Id. at #1267).

On December 9, 2018, around 5:00 p.m., Howell had a fight with another

inmate2 housed at the Jail. (Hunt Dep., Doc. 69-8, #547). Guards brought Howell to

the medical unit in a wheelchair. (Guy Decl., Doc. 72, #873). Howell was yelling that

he was in pain and at one point fell out of his wheelchair and rolled around on the

floor. (Roettker Dep., Doc. 69-13, #720). Nurse Christina Jordan evaluated Howell.

(Jordan Dep., Doc. 69-9, Ex. 33, #583). Jordan took several of Howell’s vital signs but

was unable to obtain his temperature. (Id.). Jordan was unconcerned by Howell’s vital

signs, which were generally within normal ranges. (Id. at #562). Jordan knew Howell

had sickle cell disease from reviewing his electronic medical record. (Id. at #556).

Howell also said so when Jordan examined him. (Id. at #583). Howell complained that

he could not feel his legs. (Guy Decl., Doc. 72, #873). Jordan observed Howell rolling

on the floor yelling with his eyes very wide open. (Jordan Dep., Doc. 69-9, #556).

2 This Opinion uses the term “inmate” generically to refer to all persons housed at the facility,

the term “detainee” to refer to those inmates who are held in pretrial detention, and the term

“prisoner” to refer inmates who have been convicted and are serving sentences.

Howell refused hydration and spit out a glucose tablet a nurse attempted to give him.

(Compare NaphCare Proposed Undisputed Facts, Doc. 85-1, #1583, with Resp. to

Proposed Undisputed Facts, Doc. 96-1, #1919). Howell also refused to provide a urine

sample. (Jordan Dep., Doc. 69-9, #558, 568).

Nurse Jordan thought that Howell was likely having a psychiatric episode. (Id.

at #557; see also Resp. to Proposed Undisputed Facts, Doc. 96-1, #1919). Based on

that determination, she suggested that the Jail officers transport Howell to the

psychiatric department. (Jordan Dep., Doc. 69-9, #569). Officers put Howell into a

restraint chair around 5:40 p.m. (Hunt Dep., Doc. 69-8, #547). Howell did not resist

placement in the chair. (Pierani Dep., Doc. 69-12, #652). Once he was in the chair,

officers took Howell to the mental health unit.

Around 6:06 p.m., Licensed Practical Nurse Pierette Arthur, another

NaphCare employee, observed Howell. (Surveillance Video G-21 #1 JC 265 5:45–6:45

p.m., Barth Dep., Ex. 12, Doc. 69-2, #288). Howell was yelling, and Arthur decided to

walk away to allow Howell to calm down. (Arthur Dep., Doc. 78, #1196). Arthur later

spoke to Jordan about Arthur’s observations regarding Howell’s condition before

leaving work for the day, around 7:30 p.m. (Id. at #1200; see also NaphCare Proposed

Undisputed Facts, NaphCare Mot. for Summ. J. Ex. 1, Doc. 85-1, #1586).

Officers Matthew Collini and Daniel Erwin were responsible for observing

Howell during his time in the restraint chair. (Roettker Dep., Doc. 69-13, #714). Jail

policy is that staff are normally expected to check on inmates in restraint chairs every

ten minutes. (Neil Dep., Doc. 69-11, #621–22). Jail staff must also log the status of

inmates in a restraint chair each time they check on the inmate. (Buchanan Dep.,

Doc. 69-3, #299). Inmates in restraint chairs are placed in one of two cells in the

mental health department. (Hunt Dep., Doc. 69-8, #515). Inmates are positioned so

they face a small window, which allows officers to see them from outside the cell. (Id.).

Officer Justin Hunt filled out the first two entries on the log concerning

Howell’s time in the restraint chair. (Id. at #524–25). Then, Collini and Erwin filled

out numerous log entries for checks they purportedly conducted on Howell. Taken

together, these entries showed that a check occurred approximately every ten

minutes. (Roettker Dep., Ex. 6, Doc. 69-13, #714). It is now undisputed, however, that

Erwin and Collini made false entries in the log; in fact, they conducted fewer than

half of the checks they recorded. (Collini Dep., Doc. 69-4, #349; Erwin Am. Disc. Resp.,

Doc. 71-2, #862). That being said, Collini testified he saw Howell alive and seated in

the chair at 7:24 p.m. (Collini Dep., Doc. 69-4, #346).

At about 9:45 p.m., Hunt and another officer discovered Howell dead in the

restraint chair when they arrived to evaluate him for release. (Guy Decl., Doc. 72,

#874). The parties dispute the cause of Howell’s death. The NaphCare Defendants

say that Howell died of a sudden cardiac arrest, which they claim resulted, at least

in part, from a prior chest stab wound that had required open heart surgery

approximately a year earlier. (NaphCare Proposed Undisputed Facts, Doc. 85-1,

#1587; Evans Decl., Doc. 79-2, #1305; Kiss Decl, Doc. 79-3, #1314–15). Howell’s estate

argues, by contrast, that, over the course of the roughly four hours he spent in the

restraint chair, Howell died of rhabdomyolysis, a complication from sickle cell

disease, and that this complication was triggered by Howell’s fight with the other

inmate. (Steinberg Expert Report, Doc. 87-3, #1693).

PROCEDURAL BACKGROUND

Howell’s estate filed this suit on May 20, 2019. (Compl., Doc. 1). As relevant

here, the Complaint alleges that Officers Erwin, Collini, and Hunt, and Hamilton

County Sheriff Jim Neil (the “Hamilton County Defendants”), as well as Nurse

Jordan, Nurse Arthur, and NaphCare (the “NaphCare Defendants”), violated the

Fourteenth Amendment through deliberate indifference to Howell’s serious medical

need. (Id. at #10).

On March 15, 2021, both the Hamilton County Defendants and the NaphCare

Defendants separately moved for summary judgment on all of Howell’s estate’s

claims. (Docs. 84, 85). As relevant here, all Defendants argued that Howell’s estate

created no genuine dispute as to whether any of them consciously disregarded

Howell’s serious medical need. (Hamilton Cnty. Mot. for Summ. J., Doc. 84, #1524,

1532). Briefing on those motions was completed on April 26, 2021. The Court heard

oral argument on October 14, 2021.

The Court issued an Opinion (Doc. 105) on November 2, 2021. The Court

granted summary judgment to all Defendants on all of Howell’s estate’s federal

claims, including its deliberate indifference claims. But the Court’s Opinion failed to

consider the Sixth Circuit’s then-recent decision in Brawner v. Scott County,

Tennessee, 14 F.4th 585 (6th Cir. 2021), which stated that it was changing the legal

standard that applies to deliberate indifference claims by pretrial detainees like

Howell.3 Under the pre-Brawner standard, which the Court applied in its Opinion,

the Fourteenth Amendment standard for deliberate indifference claims by pretrial

detainees was the same as the Eighth Amendment standard that applies when a

postconviction prisoner advances a deliberate indifference claim. See Brawner, 14

F.4th at 591. Under that standard, such claims included a subjective component. That

subjective component required the plaintiff to show that a defendant actually knew

of a serious medical risk to the plaintiff and then consciously disregarded that risk.

Id. In its previous Opinion, the Court’s conclusion—that, as a matter of law, the

Defendants were not indifferent to Howell’s serious medical need—relied on the

absence of a genuine dispute as to the subjective component thus understood. (See

Op., Doc. 105, #2008).

In Brawner, though, the Sixth Circuit opined that courts should apply a lower

standard to Fourteenth Amendment deliberate indifference claims by pretrial

detainees than the standard that applies to Eighth Amendment claims by

postconviction inmates. See Brawner, 14 F.4th at 596. In particular, under Brawner,

the Sixth Circuit abrogated (see id. at 594), or at least modified (see id. at 596; see

also Hyman v. Lewis, No. 21-2607, 2022 WL 682543, at *2 (6th Cir. Mar. 8, 2022)

(“under the modified second prong”)), the subjective component that previously had

applied to such claims. According to Brawner, a pretrial detainee need only show that

a defendant “acted … recklessly in the face of an unjustifiably high risk of harm that

3 No party brought the case to the Court’s attention, despite the fact that argument occurred

in this case some three weeks after the Sixth Circuit decided Brawner.

is either known or so obvious that it should be known.” Brawner, 14 F.4th at 596.

(citation and internal quotation marks omitted).

On January 18, 2022, Howell’s estate filed the instant Motion (Doc. 112),

bringing Brawner to the Court’s attention and asking the Court to set aside the

judgment in favor of Defendants only as to Howell’s estate’s deliberate indifference

claims. Both sets of Defendants opposed (Docs. 115, 116) Howell’s estate’s Motion

(Doc. 112). Defendants argue, among other things, that the result in this case would

be the same even under Brawner’s new, purportedly lower, recklessness standard.

(See Hamilton Cnty. Resp. in Opp’n to Mot. (“Hamilton Cnty. Opp’n”), Doc. 115,

#2189; NaphCare Resp. in Opp’n to Mot. (“NaphCare Opp’n”), Doc. 116, #2201).

Howell’s estate replied in support (Doc. 118) of its Motion (Doc. 112) on February 22,

2022. The matter is now fully briefed and before the Court.

LEGAL STANDARD

Howell’s estate moves for relief from judgment pursuant to Federal Rule of

Civil Procedure 60(b)(6), a catch-all provision following an enumerated series of

grounds for relief from judgment that permits a district court to set aside a judgment

for “any other reason that justifies relief.” According to the Sixth Circuit, Rule 60(b)(6)

“vests courts with a deep reservoir of equitable power to vacate judgments ‘to achieve

substantial justice’ in the most ‘unusual and extreme situations.’” Zagorski v. Mays,

907 F.3d 901, 904 (6th Cir. 2018) (quoting Stokes v. Williams, 475 F.3d 732, 735 (6th

Cir. 2007)). A court presented with a Rule 60(b)(6) motion should “intensively balance

numerous factors, including the competing policies of the finality of judgments and

the incessant command of the court’s conscience that justice be done in light of all the

facts.” Id. (quoting McGuire v. Warden, 738 F.3d 741, 750 (6th Cir. 2013) (internal

quotation marks omitted)).

Because the judgment Howell’s estate seeks to set aside was entered pursuant

to the Court’s Opinion (Doc. 105) regarding Defendants’ Motions for Summary

Judgment (Docs. 84, 85), the legal standard for a motion for summary judgment is

also relevant. Summary judgment is proper “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). The burden is on the moving party to conclusively

show that no genuine issue of material fact exists. Lansing Dairy, Inc. v. Espy, 39

F.3d 1339, 1347 (6th Cir. 1994). Once the movant presents evidence to meet its

burden, the nonmoving party may not rest on its pleadings, but must come forward

with significant probative evidence to support its claim. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986); Lansing Dairy, 39 F.3d at 1347.

Granting summary judgment depends upon “whether the evidence presents a

sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Amway Distribs. Benefits Ass’n v.

Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251–52 (1986)). In sum, the nonmoving party, at this stage,

must present some “sufficient disagreement” that would necessitate submission to a

jury. See Moore v. Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting

Anderson, 477 U.S. at 251–52). In making that determination, though, this Court

must view the evidence in the light most favorable to the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Cox v.

Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving at a resolution, the

court must afford all reasonable inferences, and construe the evidence in the light

most favorable to the nonmoving party.”).

LAW AND ANALYSIS

In Brawner, the Sixth Circuit stated it was adopting a new standard for

deliberate indifference claims involving pretrial detainees. Rather than meeting the

subjective component that applies to an Eighth Amendment deliberate indifference

claim, a detainee need only show that a defendant “acted deliberately (not

accidentally), [and] recklessly in the face of an unjustifiably high risk of harm that is

either known or so obvious that it should be known.” Brawner, 14 F.4th at 596. To be

sure, “[m]ere negligence is insufficient.” Id. But a pretrial detainee need not prove

“subjective intent,” but rather “something akin to reckless disregard.” Id. (citations

and internal quotation marks omitted).

Howell says that this standard is different from the one that the Court applied

to his claim, and that the different standard requires a different result on summary

judgment in his case. As to the former, though, the Court is not convinced that

Brawner actually changed things much. But more importantly, as to the latter, the

Court is convinced that the new Brawner standard (to the extent that it is new) does

not change the appropriate outcome here.

To be sure, Brawner suggests that it changed the standard so that the test that

applies to detainees’ deliberate indifference claims is now solely objective. But the

test for recklessness that the Brawner court adopted—failure to act in the face of an

unjustifiably high risk of harm that is known or so obvious that it should have been

known—still seems to include what amounts to a subjective component. That is, the

first way to meet the test (i.e., showing that the risk was “known”) is, of course, a

subjective question, and the latter path (i.e., the obviousness of the risk) had been

deemed, even pre-Brawner, as one way to inferentially prove actual knowledge, as

the dissent in Brawner noted. See Brawner, 14 F.4th at 604 (Readler, J., dissenting)

(citing cases). Thus, Brawner’s recklessness standard, whether labeled a “subjective

component” or not, still seems to require a showing similar to what had been required

under the subjective component of the pre-Brawner test for deliberate indifference

claims, as the Brawner dissent also noted. See id. at 610 (“in terms of the proof

necessary to make out such a claim, it is not entirely clear how this objective

reasonableness standard differs from our traditional subjective indifference

standard”).

Perhaps not surprisingly then, even under this reformulated test, the Court

still concludes that Howell’s claim fails as a matter of law. To see why, start with

Brawner itself. The facts there certainly provide no help to Howell here. In Brawner,

jail officials prevented a detainee from taking her prescribed anti-seizure medications

for her known epilepsy over a period of almost a week despite her experiencing at

least a dozen seizures. Id. at 589–90. Nothing like that happened here.

And given Brawner’s recency, only three subsequent Sixth Circuit decisions

have applied its civil recklessness standard. None of those cases helps Howell either.

First, in Greene v. Crawford, 22 F.4th 593 (6th Cir. 2022), the Sixth Circuit

held that some jail officials were deliberately indifferent when they failed to provide

medical care during a period of about four days in which a pretrial detainee

experienced severe symptoms of alcohol withdrawal, including two days where he

displayed symptoms of delirium tremens such as hallucinations, extremely erratic

behavior, and sleeplessness. Greene, 22 F.4th at 601–04. The detainee had a very high

blood alcohol content at the time of booking, and the officials expected him to

experience alcohol withdrawal and correctly interpreted his symptoms as manifesting

that condition. Id. But even though the officials understood that he was going through

alcohol withdrawal, they neither sent him for outside medical care, nor provided him

any medical attention within the jail, until about four days after he began

experiencing symptoms of alcohol withdrawal, and two days after he began

experiencing delirium tremens. Id. at 601. Instead, jail officials sought only a mental

health evaluation of the detainee, on the basis of which they concluded that he did

not need medical care because he was having a mental episode. Id. at 603. As a result,

the jail officials did not seek any medical attention for the detainee until after he

experienced acute respiratory failure, whereupon they transported him to the

hospital. Id. at 603–04. The detainee died four days later. Id.

In the second case, Britt v. Hamilton County, Case No. 21-3424, 2022 WL

405847 (6th Cir. Feb. 10, 2022), a divided Sixth Circuit panel concluded in an

unpublished opinion that the defendants (who included both Hamilton County and

NaphCare) were entitled to summary judgment on claims that they were deliberately

indifferent to a pretrial detainee’s serious medical need. In Britt, the detainee initially

exhibited normal vital signs and disclosed to NaphCare nurses that he was a heroin

user who had last used the previous day. Id. at *1. For the next several days, the

detainee continued to exhibit normal vital signs, but also began to display symptoms

consistent with heroin withdrawal, such as nausea, vomiting, and diarrhea. Id. A few

days later, however, he was found unconscious. Id. at *2. After rousing the detainee

back to consciousness, the nurses determined that he did not need outside medical

care because his vital signs continued to be within a normal range, he appeared alert,

and he told the nurses he was feeling better. Id. Two days later, officers found the

detainee acting lethargic with vomit and urine on the floor, abnormal coloration, and

an extremely elevated pulse. Id. At that point, he was transported to the emergency

room and eventually diagnosed with endocarditis, an infection in the lining of the

heart. Id. He died about three weeks later. Id.

Finally, in Hyman, a united panel affirmed a grant of summary judgment to

an officer and municipal defendants on the deliberate indifference claims of a

detainee’s estate. Hyman, 2022 WL682543, at *1. Police arrested a detainee on a

felony warrant and took him to the Detroit Detention Center. Id. Officers searched

the detainee for contraband. Id. They also asked the detainee whether he was under

the influence of any drugs or alcohol, and he said he was not. Id. About an hour after

the detainee’s arrest, officers put the detainee in a “video-arraignment room,” a room

with transparent, glass walls designed to hold multiple detainees awaiting

arraignment. Id. A police officer responsible for making rounds that night looked at

the detainees through the glass but did not physically enter the room to check on the

detainees, although jail policy required such physical entry. Id. About two hours after

his arrest, the detainee slid onto the floor of the room, where he remained motionless

for several hours during the night. Id. When a jail employee found the detainee

unresponsive several hours after that, the detainee was transported to the hospital,

which discovered narcotics concealed in the detainee’s rectum. Id. The detainee had

died of an accidental drug overdose. Id.

Greene, Britt, and Hyman provide substantial guidance as to issues pertinent

to resolution at the summary judgment stage of Howell’s estate’s claims under the

post-Brawner civil recklessness standard. First, Greene shows that at least one pre-

Brawner rule—that jail staff who are not medical personnel may rely on the medical

opinions of professionals—remains good law in the Sixth Circuit. See Greene, 22 F.4th

at 608 (quoting McGaw v. Sevier Cnty., Tenn., 715 F. App’x 495, 498–99 (6th Cir.

2017) (when “an officer responds to a substantial risk of serious harm by asking for

and following the advice of a professional the officer believes to be capable of assessing

and addressing that risk, then the officer commits no act of deliberate indifference in

adhering to that advice”)). Greene did not suggest that Brawner changed anything

about this general principle, which Greene cited approvingly. Instead, the problem in

Greene was that jail officials apparently relied on a mental health counselor, who was

not a medical professional, to conclude that a detainee did not need medical care. Id.

Again, nothing like Greene’s facts occurred here. Rather, in this case, the

Hamilton County Defendants relied on the conclusion from trained NaphCare nurses

that Howell did not need immediate medical care. (See Op., Doc. 105, #2004). For the

reasons explained at length in the Court’s previous Opinion (id.), the “general

principle that an officer may rely on the judgments of medical personnel concerning

a detainee’s need for medical care”—a principle that apparently remains valid under

Brawner’s civil recklessness standard—entitles the individual Hamilton County

Defendants to summary judgment. The Hamilton County Defendants did not act

recklessly in relying on the NaphCare Defendants’ determination that Howell was

having a psychiatric episode. At the very least, they are entitled to qualified

immunity, because it was not clearly established that following the recommendation

of medical personnel could have amounted to deliberate indifference under such

circumstances. Cf. Greene, 22 F.4th at 615.

Second, Hyman illustrates that Brawner’s recklessness standard should not

change the Court’s conclusion that the individual Hamilton County Defendants are

entitled to summary judgment even though they failed to check on Howell as

frequently as jail policy required while Howell was in the restraint chair. See Hyman,

2022 WL 682543, at *3 (quoting Winkler v. Madison Cnty., 893 F.3d 877, 891 (6th

Cir. 2018) (“‘failure to follow internal policies, without more,’ does not equal

deliberate indifference”)). As the Court noted, on the record before it, “serious medical

risk to an inmate in a restraint chair is very much the exception rather than the

norm.” (Op., Doc. 105, #2006). Thus, “a jury could not reasonably infer that

[placement in a restraint chair] created an objective risk of serious harm.” (Id.). For

the same reason, a reasonable jury could not conclude that it was reckless to fail to

check on Howell more frequently during the at most four hours that Howell was alive

in the restraint chair. And given the NaphCare Defendants’ determination that

Howell was not experiencing a physiological medical episode that required outside

care, a reasonable jury could not conclude that any medical risk to Howell was “so

obvious that it should be known” to the Hamilton County Defendants during the time

after Howell’s placement in the restraint chair. Brawner, 14 F.4th at 596; (see also

Op., Doc. 105, #2001–02 (“to the extent that Erwin and Collini may ever have become

aware of any serious medical need on Howell’s part, they did not consciously

disregard that need, but rather sought medical attention for Howell in the

sallyport”)).

Third, Britt reaffirmed the validity of yet another principle on which the Court

relied in granting summary judgment to the individual NaphCare Defendants. As

this Court put it in the previous decision, “when nursing staff did not know that [an

individual] suffered from a serious medical ailment, and they instead interpreted his

symptoms as indicating a different condition, for which they provided appropriate

treatment, they were not deliberately indifferent to his serious medical needs.” (Op.,

Doc. 105, #2021–22 (quoting Rouster v. Cnty. of Saginaw, 749 F.3d 437, 453 (6th Cir.

2014) (internal quotation marks omitted))). Britt used almost identical language in

affirming a grant of summary judgment under the post-Brawner standard: “[the

nurse’s] care could have risen to deliberate indifference only if [the detainee’s]

symptoms had been clearly inconsistent with heroin withdrawal and she had failed

to confirm that his symptoms were not indicative of a different and more serious

condition.” Britt, 2022 WL 405847, at *3 (citing Rouster, 749 F.3d at 451) (internal

quotation marks and modification omitted). In other words, Brawner’s civil

recklessness standard does not require nurses to correctly diagnose a pretrial

detainee’s condition. To the contrary, a mistaken diagnosis will not amount to

deliberate indifference unless it is both “clearly inconsistent” with the detainee’s

symptoms and reflective of a failure to rule out other explanations. See Britt, 2022

WL 405847, at *3.

For example, in Britt, the nurses operated on the belief that the detainee was

not experiencing any condition more serious than heroin withdrawal. See Britt, 2022

WL 405847, at *3. That belief was ultimately mistaken, but it was not “clearly

inconsistent” with the symptoms the nurses perceived at the time. Id. By contrast,

the jail officials in Greene understood from the beginning that the detainee was

experiencing alcohol withdrawal, a condition of which delirium tremens is a well-

known life-threatening complication. See Greene, 22 F.4th at 598, 601. Given that

awareness, their failure to secure any medical attention at all for the detainee over a

period of four days could have constituted recklessness. Id. at 609. Importantly, the

jail officials did not mistakenly diagnose the detainee in Greene; they could not have

diagnosed him at all, mistakenly or otherwise, because they were not medical

professionals. Instead, the jail officials sought no medical attention for the detainee,

even though they were aware that he was experiencing alcohol withdrawal and severe

symptoms including hallucinations.

For the reasons explained at length in the Court’s Opinion (Doc. 105, #2022–

32), the principle that nurses are not deliberately indifferent when they provide

treatment pursuant to a diagnosis consistent with the detainee’s symptoms, even if

that diagnosis is ultimately mistaken, entitles the individual NaphCare Defendants

to summary judgment as to Howell’s estate’s deliberate indifference claims. Howell’s

symptoms were not “clearly inconsistent” with a psychiatric episode. Britt, 2022 WL

405847, at *3. Moreover, the individual NaphCare Defendants took steps to “confirm

that [Howell’s] symptoms were not indicative of a different and more serious

condition,” including checking Howell’s vital signs, which were normal, and offering

him hydration, a glucose tablet, and a urine test, all of which he refused. Id. The fact

that the NaphCare Defendants may have ultimately been incorrect about Howell’s

condition is insufficient to establish recklessness. Instead, the NaphCare Defendants

are entitled to summary judgment because they understood Howell to be experiencing

a psychiatric episode on the basis of symptoms not “clearly inconsistent” with that

diagnosis, and because of their efforts to rule out “a different and more serious

condition.” See Britt, 2022 WL 405847, at *3.

Fourth, and relatedly, an expert’s opinion that a nurse’s care was “grossly

negligent” and fell “below the standard of care,” while undoubtedly relevant to

medical malpractice claims, is insufficient to create a genuine dispute as to

recklessness for purposes of a constitutional deliberate indifference claim. See Britt,

2022 WL 405847, at *3. Instead, the fact that a detainee’s symptoms were “consistent”

with a nurse’s ultimately erroneous diagnosis defeats a claim for deliberate

indifference, as discussed above. So do the nurses’ efforts to “confirm that [the

detainee’s] symptoms were not indicative of a different and more serious condition.”

Id. Accordingly, and for the reasons discussed in the Court’s Opinion (Doc. 105,

#2025–26), Howell’s estate’s expert evidence does not create a genuine dispute as to

the individual NaphCare Defendants’ deliberate indifference to Howell’s medical

need.

Finally, Greene, Britt, and Hyman all illustrate that it matters how long a

detainee goes without receiving medical attention, both initially and as his condition

worsens. In Greene, the detainee did not receive any medical attention during four

days of confinement despite displaying symptoms of delirium tremens for two of those

four days and of alcohol withdrawal during the entire period. See Greene, 22 F.4th at

601, 607. In Britt, by contrast, even though the nurses found the detainee unconscious

a few days before they ultimately sent him to the hospital, and thus arguably did not

recognize and react to the seriousness of his condition as promptly as they could have,

the nurses still examined the detainee at least once per day. See Britt, 2022 WL

405847, at *1, 3. In Hyman, the detainee was dead at most seven hours after his

arrest, and nothing about his observable condition at the time of booking suggested

that he was likely to need urgent medical attention within the next several hours.

See Hyman, 2022 WL 682543, at *1. In the instant case, Howell received medical

attention almost immediately after his fight with the other inmate, and he died about

four hours after receiving that medical attention. The relatively short duration of

time that Howell went without receiving medical care, combined with the absence of

symptoms or other circumstances that would have made a need for urgent medical

care apparent, does not support a finding of deliberate indifference.

Indeed, as this Court noted in reference to the district court’s opinion in Britt

(see Op., Doc. 105, #2030–31 (citing Britt v. Hamilton Cnty., 531 F. Supp. 3d 1309

(S.D. Ohio 2021))), the case for deliberate indifference here is substantially weaker

than on the facts of Britt. Howell experienced symptoms for, at most, a few hours,

rather than days, and those symptoms would have appeared much less extreme to

the Defendants here than those exhibited by the detainee in Britt. The Court

acknowledges that Britt is an unpublished decision with a dissent, but still considers

the case to be the most closely applicable guidance from the Sixth Circuit regarding

application of Brawner’s new civil recklessness standard to the facts of this case.

Moreover, Britt’s reasoning relies on, and is consistent with, other established

principles in the Sixth Circuit regarding deliberate indifference to serious medical

need, principles on which the Court also relied in its previous Opinion (Doc. 105).

Under those principles, the Court concludes that its disposition of this case should

not change under Brawner’s recklessness standard. Assuming that the post-Brawner

standard is in fact substantively different from the pre-Brawner standard, rather

than essentially the same test applied under a different label, there may be cases

where the precise contours of that difference could be outcome determinative, but, as

Greene, Britt, and Hyman aptly illustrate, this case is not one of them.

CONCLUSION

Howell’s death was a tragedy. But on the facts here, it does not give rise to a

viable deliberate indifference claim, even under Brawner. Accordingly, for the

reasons set forth above, the Court DENIES Howell’s estate’s Motion for Relief from

Judgment (Doc. 112).

SO ORDERED.

March 11, 2022

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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