Harrison v. Scott

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DONALD HARRISON,

Plaintiff,

v. Civil Action 2:18-cv-1023

Judge Sarah D. Morrison

Magistrate Judge Elizabeth Preston

ZACH SCOTT, et al., Deavers

Defendants.

OPINION AND ORDER

Plaintiff Donald Harrison was detained at the Franklin County Jail when his

post-operative leg wound became infected, requiring follow-up surgeries and

eventual amputation. Plaintiff brought this action under 42 U.S.C. § 1983, alleging

that Jail medical personnel and the Franklin County Sheriff violated his

constitutional right to adequate medical care and also that Franklin County is

liable for maintaining an unconstitutional policy that limited Plaintiff’s ability to

obtain adequate medical care. Plaintiff has dismissed his claims against Jail nurses,

leaving his claims against Franklin County, the Franklin County Sheriff, three Jail

physicians, and ten Doe Defendants. All remaining named Defendants—Franklin

County Sheriff Zach Scott, Dr. Mendel Reid, Dr. Mohamed Hashi Abib, and Dr. Won

Song—have filed Motions for Summary Judgment. (Defs.’ Mots., ECF Nos. 62–65).

This matter is before the Court for consideration of these Motions, as well as

Plaintiff’s Opposition and Defendants’ Replies. (Pl.’s Opp’n, ECF No. 80; Defs.’

Replies, ECF Nos. 81–84). For the reasons set forth below, the Court GRANTS

summary judgment in favor of Sheriff Scott and Drs. Reid and Abib and DENIES

summary judgment in favor of Dr. Song. In addition, Plaintiff is ORDERED to

SHOW CAUSE WITHIN FOURTEEN DAYS why the Court should not dismiss

the Doe Defendants without prejudice for failure to effect service pursuant to

Federal Rule of Civil Procedure Rule 4(m).

I. STATEMENT OF FACTS

Plaintiff’s leg was broken during his September 15, 2016 arrest. Police

transported Plaintiff to Riverside Hospital for treatment. Following surgery,

Riverside discharged Plaintiff on September 21. Plaintiff entered the Jail in a

wheelchair, with his post-operative leg wound bandaged and splinted.

Riverside transmitted Plaintiff’s medical records and post-surgical care

instructions to the Jail. These instructions included recommendations for

prescription medications, follow-up with a primary-care doctor within two weeks,

referral to an orthopedic clinic for a cast change within two weeks, elevation of his

leg, and continued physical therapy.

Upon Plaintiff’s admission to the Jail, Jail nursing staff assigned him to

medical housing and placed him on the Jail’s wound-care list, meaning that Jail

nurses would monitor Plaintiff’s leg wound daily. Jail nursing staff also

consolidated Riverside’s treatment records with the Jail records into a medical chart

and transmitted this chart to Defendant Dr. Reid.

Dr. Reid then translated the Riverside discharge instructions into medical

orders that could be executed in the Jail environment. Specifically, in addition to

the daily wound-care checks, Dr. Reid ordered prescription medications and that

Plaintiff treat with Defendant Dr. Song, a private orthopedic specialist contracted to

provide bi-weekly medical clinics in the Jail.1

On September 22, the day after Plaintiff arrived at the Jail, he experienced

“massive bleeding” seeping through his wound dressings, prompting Jail medical

staff to transfer him to Grant Medical Center for emergency treatment. (See Song

Dep. 84:11-13, ECF No. 52; Medical Records, ECF No. 79-5, PAGEID# 2982;

Harrison Dep. 28:16-23; 47:2-24, ECF No. 50.) Grant physicians diagnosed Plaintiff

with “pain following surgery;” “bleeding from wound;” and “decubitus ulcer of heel,

stage 1, left.” (Medical Records, ECF No. 79-5, PAGEID# 2972.) Grant physicians

re-dressed and splinted Plaintiff’s leg, noting: “[t]he patient has not been able to

keep the leg elevated as needed [in] jail and the edema is . . . pulling the incision . . .

he also has a stage 1 ulcer developing.” (Medical Records, ECF No. 79-6, PAGEID#

2983.) Grant medical staff issued aftercare instructions, including continuing

medication, elevation and icing, a follow-up appointment with Plaintiff’s surgeon,

and specific instructions directed to Plaintiff advising him to elevate his leg, wear

support stockings, and wash and check his skin for sores daily. Plaintiff was

discharged the next day, on September 23.

Defendant Dr. Abib processed the Grant discharge papers. (Id. at PAGEID#

1The record also contains a September 22 order from Dr. Reid referring

Plaintiff for an off-site follow-up treatment for head trauma, as well as undated

orders from Dr. Reid referring Plaintiff for other follow-up treatment with Riverside

physicians.

2972.) Dr. Abib did not issue any new orders in connection with the Grant aftercare

instructions, but left in place Dr. Reid’s medical orders, and Plaintiff remained on

the Jail’s wound-care list. (See Abib Dep. 141:4-9, ECF No. 51.)

On September 29, six days after Plaintiff’s September 23 re-admission to the

Jail, Plaintiff treated with Dr. Song. The parties dispute what treatment Plaintiff

received during the intervening five days. Plaintiff alleges that with the exception of

medication, his repeated requests for treatment were denied. (See Harrison Dep.

68:12-69:15; 57:17-61:1; 62:14-64:13; 66:5-67:18; 110:7-23; Medical Records, ECF

No. 79-1, PAGEID# 2895-99.) Plaintiff’s wound-care log reflects no treatment on

September 24; that on September 25, Plaintiff’s “dressing [was] not changed, [and

he showed] no bleeding;” and that Plaintiff refused treatment on September 26, 27,

and 28. (Medical Records, ECF No. 79, PAGEID# 2915-16; see also Abib Dep. 160:2-

162:14.) Plaintiff disputes that he refused treatment and testified as follows:

“[n]ever would I deny wound care. And you can ask any inmate there, they wouldn’t

deny getting out of that cell, period.” (Harrison Dep. 68:9-11.)

The parties also dispute what happened during Dr. Song’s September 29

examination of Plaintiff. Dr. Song’s treatment records reflect the following: that Dr.

Song found Plaintiff’s wound to be “benign;” that Plaintiff was “[a]ble to move [his]

toes;” and Dr. Song’s diagnosis of “X-ray status post-op open reduction internal

fixation left distal tibia and fibula.” (Medical Records, ECF No. 79-1, PAGEID#

2933; Song Dep. 63:5-22.) In addition, Dr. Song issued orders for Plaintiff’s sutures

to be removed in a week and that Plaintiff be provided a cast boot, a walker, an x-

ray, and pain medicine. Dr. Song testified that he was sure that he reviewed

Plaintiff’s chart, that he remembered examining Plaintiff’s wound, that he recalled

seeing “a little cellulitis,” that he “put on a lot of padding,” that he changed

Plaintiff’s dressing, and that he applied a cast. (Song Dep. 60:2-5; 53:2-8; 61:4-16;

64:4-20; 115:5-17.) In contrast, Plaintiff testified that Dr. Song reviewed x-rays with

him and that although Plaintiff asked Dr. Song to examine his wound, Dr. Song told

Plaintiff that he “didn’t have time” and that he would instead have somebody else

examine his wound. (Harrison Dep. 104:15-17; 108:10-15.) Dr. Song denies that he

told Plaintiff that he did not have time to examine his wound. (Song Dep. 99:19-

100:15; 102:2-12.) Dr. Song’s September 29 examination was the only time he

treated Plaintiff during the period at issue.

Plaintiff’s wound-care log reflects no treatment on September 30; that

Plaintiff’s wound was wrapped with ACE wrap on October 1; that he refused

treatment on October 2; and no treatment for October 3. Plaintiff testified that

when Jail nursing staff examined his wound on October 4, “it was completely

black.” (Harrison Dep. 67:9-11.) Following this October 4 examination, Jail nursing

staff obtained a nonparty physician’s order for additional treatment of the wound,

and Plaintiff was referred to Dr. Reid for examination. During Dr. Reid’s October 5

examination, he observed “purulent, green drainage,” and consequently, he

immediately transferred Plaintiff to Riverside for emergency treatment and

specialized care. (Medical Records, ECF No. 79-1, PAGEID# 2876, 2884-85, 2932;

Medical Records, ECF No. 79-7, PAGEID# 2984.)

Plaintiff required nearly a month of hospitalization to treat his infected

wound and was discharged on November 1. Two weeks later, Plaintiff was released

from the Jail. In the following months, Plaintiff required additional hospitalizations

to treat the complications arising from his wound infection. On May 1, 2017,

Plaintiff’s leg was amputated below the knee.

II. PROCEDURAL BACKGROUND

Plaintiff commenced this action on September 7, 2018, asserting individual-

capacity medical indifference claims under 42 U.S.C. § 1983 against Drs. Reid, Abib,

and Song, as well as the Franklin County Sheriff. Defendants argue on summary

judgment that Plaintiff’s leg wound did not constitute a sufficiently serious medical

need, that they were not deliberately indifferent to Plaintiff’s serious medical need,

and that they are protected by qualified immunity.

Plaintiff also asserts a claim against Franklin County under Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978), alleging he was injured by a County policy

of not allowing orthopedic Jail patients to treat with physicians other than Dr.

Song. Defendants dispute this policy’s existence and point out that, even if this

policy existed, Plaintiff was, in fact, treated by other physicians at the Jail and at

two different hospitals.

III. STANDARD OF REVIEW

Summary judgment is appropriate when “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 movant has the burden of establishing there are no genuine

issues of material fact, which may be achieved by demonstrating the nonmoving

party lacks evidence to support an essential element of his claim. Celotex Corp. v.

Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,

12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving

party to “set forth specific facts showing that there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P.

56). When evaluating a motion for summary judgment, the Court must view the

evidence in the light most favorable to the non-moving party. Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970).

A genuine issue exists if the nonmoving party presents “significant probative

evidence” to show that “there is [more than] some metaphysical doubt as to the

material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir. 1993). In

other words, “the evidence is such that a reasonable jury could return a verdict for

the non-moving party.” Anderson, 477 U.S. at 248; see also Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (summary judgment is

appropriate when the evidence could not lead the trier of fact to find for the non-

moving party).

IV. DISCUSSION

Defendants move for summary judgment on all remaining claims. The Court

considers Plaintiff’s medical indifference claims before turning to his constitutional

challenge to the alleged Jail policy and his claims against the Doe Defendants.

A. Plaintiff’s Medical Indifference Claims

“[P]retrial detainees have a constitutional right to be free from deliberate

indifference to serious medical needs under the Due Process Clause of the

Fourteenth Amendment.” Greene v. Crawford Cty., Mich., 22 F. 4th 593, 605 (6th

Cir. 2022) (citing Griffith v. Franklin Cty., Ky., 975 F.3d 554, 566 (6th Cir. 2020)).

The Sixth Circuit’s decision in Brawner v. Scott County, Tennessee, 14 F. 4th

585 (6th Cir. 2021), published after the parties’ briefing in this action, resolves their

disagreement over the legal standard applicable to pretrial detainees’ medical

indifference claims. Brawner holds that for a plaintiff’s medical indifference claim to

survive summary judgment, he must “present evidence from which a reasonable

jury could find (1) that [he] had an objectively serious medical need; and (2) that

[the defendant’s] action (or lack of action) was intentional (not accidental) and [the

defendant] either (a) acted intentionally to ignore [the plaintiff’s] serious medical

need, or (b) [the defendant] recklessly failed to act reasonably to mitigate the risk

the serious medical need posed to” him. Brawner,14. F.4th at 597.

With respect to the first prong, an objectively serious medical need is one

“that has been diagnosed by a physician as mandating treatment or one that is so

obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008). With respect to the

second prong, “[a] pretrial detainee must prove ‘more than negligence, but less than

subjective intent—something akin to reckless disregard.’” Brawner, 14 F.4th at 596

(quoting Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (en

banc)).

Applied here, Plaintiff has amply proffered evidence upon which a factfinder

could rely to conclude that his post-operative leg wound constituted a serious

medical need. Significantly, Plaintiff’s post-operative leg wound had been diagnosed

by physicians at both Riverside and Grant as requiring treatment in the form of

post-surgical care, including treatment with medications, follow-up with a primary-

care physician, and referral to a specialist for examination and a cast change. In

addition, Jail nursing staff determined that Plaintiff required placement on the

Jail’s wound-care list, which meant Jail medical staff would monitor Plaintiff’s leg

wound daily. Because Plaintiff has satisfied the first prong, the Court now considers

whether Plaintiff has adduced, for each remaining named Defendant, evidence of a

deliberate act or omission sufficient to satisfy the second prong.

1. Drs. Reid and Abib

Plaintiff has failed to adduce facts upon which a factfinder could rely to

conclude that Dr. Reid intentionally acted or failed to act and either intentionally

ignored Plaintiff’s post-operative leg wound or recklessly failed to act reasonably to

mitigate the risks attendant with Plaintiff’s wound. It is undisputed that Dr. Reid

was not tasked with examining Plaintiff upon his admission to the Jail. Rather, Dr.

Reid’s role was limited to translating Riverside’s discharge instructions into Jail

orders. It is undisputed that Dr. Reid did so, issuing orders for Plaintiff’s post-

surgical care, including ordering prescription medications, treatment with an

orthopedic specialist, and follow-up with Riverside physicians, all in addition to the

daily wound care the Jail nurses had ordered upon Plaintiff’s admission. Moreover,

after Plaintiff’s infection had progressed and he was referred to Dr. Reid for

examination, Dr. Reid ordered Plaintiff immediately transferred to Riverside for

emergency treatment and specialized care when he saw signs of infection. Because

Plaintiff has not proffered evidence reflecting that Dr. Reid acted or failed to act

with reckless disregard, Dr. Reid is entitled to summary judgment.

Dr. Abib is likewise entitled to summary judgment. Like Dr. Reid, Dr. Abib

was not tasked with examining Plaintiff but instead with processing Grant’s

discharge instructions into Jail orders. Dr. Abib processed the Grant discharge

orders. Although he did not issue new orders, Dr. Abib left in place Dr. Reid’s orders

relating to post-surgical care, and Plaintiff remained on the Jail’s wound-care list.

Because Plaintiff has not proffered evidence reflecting that Dr. Abib acted or failed

to act with reckless disregard, Dr. Abib is entitled to judgment as a matter of law.

2. Dr. Song

Disputed material issues of fact preclude entry of summary judgment in Dr.

Song’s favor. Dr. Song treated Plaintiff’s post-operative wound on September 29. Dr.

Song testified that he reviewed Plaintiff’s medical chart, which reflected that

Plaintiff had experienced post-operative wound complications necessitating

hospitalization at Grant six days prior. Plaintiff’s medical chart further reflected

that Plaintiff had not treated with a physician since his release from Grant and that

during the intervening five days, Jail nurses treated Plaintiff only on September 25

and did not change his dressing that day. Viewing the evidence in the light most

favorable to Plaintiff, when Plaintiff asked Dr. Song to examine his wound, Dr.

Song refused on the grounds that he did not have time. Dr. Song proceeded to tell

Plaintiff that he would instead have someone else examine his wound, but the

record contains no evidence reflecting that Dr. Song conducted any such follow up.

Thus, Plaintiff has presented evidence upon which a factfinder could rely to

conclude that Dr. Song acted intentionally to ignore Plaintiff’s serious medical need

for post-operative wound care when he (a) intentionally refused to examine

Plaintiff’s wound or (b) recklessly failed to act reasonably to mitigate the risks

posed by Plaintiff’s leg wound in failing to either examine the wound or ensure that

another physician did so. Dr. Song is therefore not entitled to judgment as a matter

of law.

Dr. Song’s argument that he is entitled to the defense of qualified immunity

is equally unavailing. “When the defendant raises qualified immunity, the plaintiff

bears the burden of proving that the defendant is not entitled to summary

judgment.” Davenport v. Causey, 521 F. 3d 544, 550 (6th Cir. 2008). “Despite this

burden of proof, the facts are still viewed in the light most favorable to the

plaintiff.” Id. An official is entitled to qualified immunity unless he has violated a

“clearly established statutory or constitutional right[] of which a reasonable person

would have known.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015)). The analysis therefore involves two steps: (1)

determine “whether the facts . . . make out a violation of a constitutional right,” and

(2) determine whether that right was clearly established at the time of the alleged

misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court may address

either step first. Id. at 236. Dr. Song concedes that Plaintiff has a clearly

established right to be free from deliberate indifference to a serious medical need.

(See Song Mot. 16, ECF No. 65; Song Reply 6, ECF No. 82). And the foregoing

analysis demonstrates that the facts, when viewed in a light most favorable to

Plaintiff, establish that Dr. Song violated Plaintiff’s constitutional right to adequate

medical care. Dr. Song is therefore not entitled to qualified immunity.

3. Sheriff Scott

Sheriff Scott is entitled to judgment as a matter of law on Plaintiff’s

individual-capacity claim. To plead a cause of action under § 1983, a plaintiff must

plead two elements: “(1) deprivation of a right secured by the Constitution or laws of

the United States” and (2) that the deprivation was “caused by a person acting

under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d

529, 534 (6th Cir. 2008) (citing McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 463

(6th Cir. 2006)). To sufficiently plead the second element, a plaintiff must allege

“personal involvement.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008)

(citation omitted). This is because Ҥ 1983 liability cannot be imposed under a

theory of respondeat superior.” Id. (citation omitted). Applied here, Plaintiff has not

shown that Sheriff Scott personally performed any act or omission that deprived

him of a constitutional right. Rather, Plaintiff alleges only that Sheriff Scott signed

the County’s contracts for medical services within the Jail. (Pl.’s Opp’n 37, ECF No.

80; see also Scott Mot. 7–8, ECF No. 64; Scott Reply 7-8, ECF No. 81.) The

ministerial act of signing these contracts does not rise to the level of personal

involvement required to sustain an individual-capacity medical indifference claim

against Sheriff Scott. See generally Grinter, 532 F.3d at 575.

B. Plaintiff’s Monell Claim Against the County

Plaintiff’s official-capacity claim against Sheriff Scott is a claim against

Franklin County. Monell, 436 U.S. at 658. Because § 1983 does not “incorporate

doctrines of vicarious liability,” Pembaur v. City of Cincinnati, 475 U.S. 469, 479

(1986), “[a] plaintiff raising a municipal liability claim under § 1983 must

demonstrate that the alleged federal violation occurred because of a municipal

policy or custom.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing

Monell, 436 U.S. at 694). “A plaintiff asserting a section 1983 claim on the basis of a

municipal custom or policy must ‘identify the policy, connect the policy to the

[County] itself and show that the particular injury was incurred because of the

execution of that policy.’” Graham v. Cty. of Washtenaw, 358 F.3d 377, 383 (6th Cir.

2004) (quoting Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993), cert.

denied, 510 U.S. 1177 (1994)). “There must be a direct causal link between the

policy and the alleged constitutional violation.” Id. (internal quotation and citation

omitted). In other words, the plaintiff must show that “through its deliberate

conduct, the municipality was the ‘moving force’ behind the injury alleged.” Wright

v. City of Euclid, Ohio, 962 F.3d 852, 879–80 (6th Cir. 2020) (quoting Alman v.

Reed, 703 F.3d 887, 903 (6th Cir. 2013)).

Here, Plaintiff’s Monell claim fails even if the Court assumes that the County

has a policy of precluding detainees with orthopedic medical needs from obtaining

treatment in addition to the treatment Dr. Song provides during his prescheduled,

bi-weekly clinics. This is because Plaintiff cannot show that such a policy was the

moving force behind the injuries he alleges. Specifically fatal to Plaintiff’s claim is

that a non-party Jail physician ordered him transferred to Grant hospital on

September 22, a non-party Jail physician ordered treatment for him on October 4,

and he was examined by Dr. Reid, who immediately transferred him to Riverside

hospital, on October 5. Thus, even if the alleged policy existed, because it was not

applied to Plaintiff, it could not have injured him. Sheriff Scott is therefore entitled

to judgment as a matter of law on Plaintiff’s official-capacity claim.

C. John and Jane Doe Defendants

As noted above, Plaintiff’s Complaint names ten Doe Defendants. Under

Federal Rule of Civil Procedure 4(m):

If a defendant is not served within 90 days after the complaint is filed,

the court—on motion or on its own after notice to the plaintiff—must

dismiss the action without prejudice against that defendant or order

that service be made within a specified time. . . .

Fed. R. Civ. P. 4(m). In addition, Federal Rule of Civil Procedure 10(a) requires a

plaintiff to “name all the parties” in the complaint. Though the naming of

pseudonymous defendants is permissible where the party requires discovery to

identify the true identity of the defendants, the party must subsequently amend the

complaint to reflect the discovered identities and effect service over those named

parties within Rule 4(m)’s 90-day window. See Petty v. Cty. of Franklin, 478 F.3d

341, 345–46 (6th Cir. 2007) (affirming district court’s dismissal of unnamed John

Doe defendants pursuant to Rule 4(m) where the plaintiff failed to substitute the

real names for his John Does and failed to serve them within Rule 4(m) timeframe).

Because Plaintiff has failed to timely substitute in the real names and effect

service over his Doe Defendants, the Court ORDERS Plaintiff to SHOW CAUSE

WITHIN FOURTEEN DAYS why this Court should not dismiss the Doe

Defendants without prejudice for failure to effect service pursuant to Rule 4(m).

V. DISPOSITION

For the reasons set forth above, the Court GRANTS the Summary Judgment

Motions filed by Drs. Reid and Abib and Sheriff Scott. Dr. Song’s Motion for

Summary Judgment is DENIED. Finally, Plaintiff is ORDERED to SHOW

CAUSE WITHIN FOURTEEN DAYS why this Court should not dismiss the Doe

Defendants without prejudice for failure to effect service pursuant to Rule 4(m).

IT IS SO ORDERED.

__/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE