Abdiasiis v. Lewis

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SADE ABDIASIIS,

Plaintiff, Case No. 2:20–cv–3315

Judge Edmund A. Sargus, Jr.

v. Magistrate Judge Elizabeth Preston Deavers

SHEILA LEWIS, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants Cynthia Cameron, JaNina Davis, Elizabeth

Givens, Sheila Lewis, and NaphCare, Inc.’s (collectively, “Defendants”) Motion for Summary

Judgment (ECF No. 73) and Plaintiff Sade Abdiasiis’ Motion to Strike Reply (ECF No. 84). For

the following reasons, the Court GRANTS in part and DENIES in part the Defendants’ Motion

for Summary Judgment and DENIES Plaintiff’s Motion to Strike.

I. STATEMENT OF FACTS

This case concerns the alleged negligence and deliberate indifference of NaphCare medical

staff at Franklin County Correctional Center II (“FCCC”) towards Plaintiff Sade Abdiasiis from

September 8, 2019, to September 11, 2019. NaphCare, a private corporation, provides medical

services to FCCC inmates. Abdiasiis began serving a 74-day sentence at FCCC on August 12,

2019. (Alvarez Dep. at 185, ECF No. 68.) He was placed on a detox assessment for opiate

withdrawal on August 15, 2019. (Horton Dep. at 10–11, Ex. 12, ECF No. 70-1.) He was also placed

on GERD/Indigestion protocol for nausea on August 23, 2019, and treated for heartburn for seven

days. (Alvarez Dep. at 1, Ex. 2; Horton Dep. at 18–19, Ex. 15.)

A. Abdiasiis Reports Symptoms to Nurse Lewis

On September 8, 2019, Abdiasiis allegedly began suffering from severe nausea, vomiting,

sharp lower back pain, chest pain, and difficulty breathing. (Abdiasiis Dep. at 82, ECF No. 68.)

Other inmates allegedly noticed that he “did not look right,” looked dehydrated, and his pupils

were dilated. (Id. at 98.)

That night at 8:25 p.m., Defendant Sheila Lewis, a licensed practical nurse (LPN) and

NaphCare employee, walked around FCCC to administer medications and allow inmates to report

urgent medical concerns, a routine called “med pass.” (Id. at 98–101; Lewis Dep. at 7, 122, ECF

No. 67.) During med pass, Abdiasiis reported his symptoms and pain to Nurse Lewis and submitted

a written sick call request to see a doctor. (Id.; Sick Call Request, ECF No. 57-1.) Abdiasiis alleges

that Nurse Lewis did not perform a physical evaluation or place him on the sick call list to see a

doctor. (Lewis Dep. at 124–25.) Nurse Lewis does not remember if she provided treatment or any

other further action. (Lewis Dep. at 39–42, 87.)

B. Abdiasiis Reports Symptoms to Nurse Lewis a Second Time

Later that night, during the 3:00 a.m. med pass, Abdiasiis complained again to Nurse Lewis

about his symptoms. He told her that he had been vomiting all day, was experiencing stomach

pain, and asked to go to the hospital. (Lewis Dep. at 41–42.) Nurse Lewis took his vitals and found

that his blood pressure was within a normal range but his pulse was elevated. (Med Pass Notes,

ECF No. 57-1 at 8, 11.) Lewis alleges that Abdiasiis did not show symptoms of vomiting, he did

not look pale, and he was not guarding his stomach. (Lewis Dep. at 52–53.) She gave him fluids.

(Id. at 45–46.) She allegedly told him that medications were not available and to stop faking the

pain. (Aden Dep. at 36, ECF No. 61.) Lewis did not put Abdiasiis on the sick call list at that time.

(Sick Call Log, ECF No. 57-1 at 5.) At the end of the visit, Abdiasiis stood in the doorway and

refused to move until they took him to the hospital. (Lewis Dep. at 44, 48.) FCCC deputies ordered

him to step aside and then turned off all the televisions in the section as punishment for Abdiasiis’

“back-talking.” (Med Pass Notes at 8, ECF No. 57-1.)

C. Abdiasiis Fakes a Seizure and is Evaluated by Nurses Lewis and Bennington

At 4:00 a.m., an hour later, Plaintiff admittedly faked a seizure to receive medical attention.

(Abdiasiis Dep. at 99.) FCCC staff, including Nurse Lewis, found him unresponsive on the floor

and woke him with an ammonia inhalant. (Lewis Dep. at 64.) They put him in a wheelchair and

took him for further evaluation with a NaphCare Charge Nurse, Astacia Bennington, LPN. (Id. at

66; McClain Dep. at 43, ECF No. 64.) The nurses took Abdiasiis’ vitals, which were allegedly

normal, and returned him to his cell. (Lewis Dep. at 14, 16.) Abdiasiis alleges that they sent him

back with Gatorade and did not conduct any examination. (Abdiasiis Dep. at 95.) Nurse Lewis

alleges that she never believed Plaintiff’s condition was urgent and she only took him to see the

Charge Nurse to make sure she had not overlooked anything. (Lewis Dep. at 80.) Nurse

Bennington put Abdiasiis on the sick call list and listed the request as “routine” rather than

“priority” or “needs to be seen immediately.” (Sick Call Log at 5, ECF No. 57-1.) “Routine”

requests are usually addressed in 48 to 72 hours from the time of request. (Alvarez Dep. at 39–41.)

D. Abdiasiis Reports Symptoms to Nurse Davis

The next morning, on September 9, 2019, Abdiasiis still felt sick in his bed and continued

to vomit. (Abdiasiis Dep. at 102.) He reported his symptoms to Defendant Nurse JaNina Davis,

LPN, during a med pass and gave her a sick call card. (Id. at 162.) Nurse Davis gave him Ibuprofen

at 8:39 a.m. but does not remember if she examined him or gave further treatment. (Abdiasiis Dep.

at 97; Davis Dep. at 7, Ex. 8, ECF No 62-1.) Abdiasiis avers that Nurse Davis did not examine or

treat him for his symptoms.

E. Abdiasiis’ Mother Calls Nurse Cameron and Nurse Givens at NaphCare

Abdiasiis’ cellmate reached out to Abdiasiis’ mother, Sagal Aden, mid-day on September

9, 2019, and told her that Abdiasiis was very sick, he was vomiting and his pain was so severe that

he could not stand. (Aden Dep. at 32, ECF No. 61.) Ms. Aden spoke with that Plaintiff’s cellmate

on the phone multiple times. (Id. at 33.) Aden then called NaphCare and spoke to Nurse Cynthia

Cameron, RN, the supervising nurse at the time. (Aden Notes, ECF No. 79-2.) Nurse Cameron

told her a nurse would go check on Abdiasiis but no nurse went to check on him. An hour and a

half later, Aden called again and spoke to Defendant Nurse Givens, LPN, who also told her that a

nurse would go check on him. (Id.; Givens Dep. at 146, ECF No. 59.) Nurse Givens told Cynthia

Cameron, RN, about Aden’s calls but no nurse went to check on him.

Over the course of the afternoon, Aden called fifteen times and was told that NaphCare

could not divulge any details of her son’s treatment because of patient confidentiality under

HIPPA. (Givens Dep. at 59; Lewis Dep. at 11.) Eventually, Aden and Abdiasiis or his cellmate

made a three-way call with NaphCare to ask for medical treatment. Such calls violate jail policy.

(Cameron Dep. at 8, ECF No 57-1; Abdiasiis Dep. at 128–30.) Aden and Abdiasiis briefly spoke

to Nurse Cameron before she hung up the phone. (Id.) Nurse Cameron alleges that she reviewed

Abdiasiis’ chart and saw that no abdominal exam had been performed and that he had not been

seen by an RN or advanced practitioner yet. (Cameron Dep. at 127.) She informed FCCC deputies

that Plaintiff had made a three-way call with NaphCare against jail policy. Four corrections officers

threatened to put Abdiasiis in isolation and charge him with harassment if he called again.

(Progress Notes, ECF No. 57-1 at 8; Aden Dep. at 24–25.)

F. Abdiasiis Reports Symptoms to Nurse Simon

NaphCare LPN Gabrielle Simon was responsible for the night shift on September 9th and

10th. (Alvarez Dep. at 157.) Abdiasiis complained to Nurse Simon that he had severe nausea,

vomiting, and bad stomach cramps. (Sick Call Request at 4, ECF No. 57-1.) There is no

documentation that Nurse Simon took Abdiasiis’ vitals or performed an examination. (See ECF

Nos. 67-1, 68-1, 57-1.) Nurse Simon entered Abdiasiis’ request on the sick call list but later

canceled it as duplicative of the first sick call entry made by Nurse Bennington. (Sick Call Log,

ECF No. 57-1 at 5; Simon Dep. at 41, ECF No. 66.)

G. Nurse Davis Gives Abdiasiis Medication

On September 10, 2019, at 8:30 a.m., Nurse Davis gave Abdiasiis Ibuprofen during the

morning med pass. (Davis Dep. Exs. 8, 20.) She alleges that she does not remember whether

Abdiasiis made any verbal complaints to her. (Id. at 209, 228.)

Later that night, Abdiasiis submitted an additional sick call request to Nurse Davis, stating,

“I am suffering severe nausea, keep vomiting, having very bad stomach cramps, need some type

of electrolytes, very dehydrated. Please help. Keep putting in call card.” (Davis Dep. Ex. 4, ECF

No. 62-1.) NaphCare records show that a nurse visited him at 9:29 p.m. but there are no details of

that visit. (Id.)

H. Abdiasiis Sent to Emergency Room and Diagnosed with Pancreatitis

On September 11, 2019, Carolyn Horton, PA, evaluated Abdiasiis at 10:52 a.m. and

immediately sent him to the emergency room. (ER Referral, ECF No. 57-1 at 11.) PA Horton

found that Abdiasiis’ abdomen was distended and tender to palpation and the situation was

“urgent” and “alarming.” (Horton Dep. at 173, 174, ECF No. 70; Progress Notes, ECF No. 57-1

at 7–8.) His vital signs showed that his pulse was elevated. (Vital Signs, ECF No. 67-1.) PA Horton

believed that Abdiasiis could be suffering from pancreatitis, appendicitis, or peritonitis. (Id. at

183–84.)

At the hospital, Abdiasiis had an elevated pulse and high blood pressure. (ECF No. 79-1 at

6.) He was diagnosed with necrotizing pancreatitis, sepsis, hyperglycemia, partial renal failure,

systematic inflammatory response syndrome (SIRS), venous thrombosis, severe diabetes, and

infected fluid collections. (ECF No. 79-3 at 11.) Abdiasiis was treated in the hospital for 41 days.

He was released on October 22, 2019, but readmitted on October 28, 2019, for additional

complications. Abdiasiis developed insulin-dependent diabetes and continues to require regular

medication. (Abdiasiis Dep. at 118–199, 133.)

I. Procedural History

On June 30, 2020, Abdiasiis filed a Complaint in this Court against four nurses who treated

him at FCCC: Defendants Sheila Lewis, LPN, Janina Davis, LPN, Elizabeth Givens, LPN, Cynthia

Cameron, RN, (hereinafter, the “Individual Defendants”). He also filed suit against the Individual

Defendants’ employer, NaphCare, Inc. Plaintiff asserts that Defendants’ inadequate and delayed

medical treatment deviated from the standard of care, and their actions subjected him to extreme

pain and suffering and increased the severity of his health complications. (See Complaint, ECF

No. 1.)

Defendants filed the instant motion for summary judgment on May 2, 2022 (ECF No. 73).

Plaintiff responded (ECF No. 79) and Defendants replied (ECF No. 80). Plaintiff and Defendants

thereafter filed several additional responses (ECF No. 81–85) including a motion to strike one of

the responses (ECF No. 84). The motions are ripe for review.

II. STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine issue as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The Court may therefore grant a motion for summary judgment if the nonmoving party who has

the burden of proof at trial fails to make a showing sufficient to establish the existence of an

element that is essential to that party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The “party seeking summary judgment always bears the initial responsibility of informing

the district court of the basis for its motion and identifying those portions” of the record which

demonstrate “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The burden

then shifts to the nonmoving party who “must 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(e)). “The evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–

59 (1970)). A genuine issue of material fact exists “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id. at 248; see also Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (The requirement that a dispute be “genuine”

means that there must be more than “some metaphysical doubt as to the material facts.”).

Consequently, the central issue is “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.” Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234–35 (6th Cir. 2003) (quoting

Anderson, 477 U.S. at 251–52).

IV. SUMMARY JUDGMENT ANALYSIS

A. Plaintiff’s Claims Against Individual Defendants Lewis, Davis, Givens, and Cameron

1. Eighth Amendment Claim

A convicted person’s claim for inadequate medical care arises out of the Eighth

Amendment, which “forbids 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 Cty., 390 F.3d 890, 895 (6th Cir. 2004), quoting Estelle v. Gamble, 429

U.S. 97, 104 (1976). To prevail on an Eighth Amendment claim, plaintiffs must prove both

objective and subjective culpability. Linden v. Washtenaw Cnty., 167 F. App’x 415 (6th Cir. 2006).

The objective component requires the plaintiff to show that “the medical need is sufficiently

serious.” Id. (internal citations omitted). The subjective component requires the plaintiff to show

that the prison official was deliberately indifferent to inmate health or safety. Id. at 415–16, citing

Estate of Novack v. Cnty. of Wood, 226 F.3d 525, 529 (7th Cir. 2000) (quotations & citation

omitted).

a. Medical Need Was Sufficiently Serious

Defendants argue that Abdiasiis did not have an obviously serious medical condition

because Nurse Lewis thought he looked ill, Abdiasiis never showed proof that he was vomiting,

and his vitals were within a normal range from September 8th to 11th. (Def.’s Mot. at 24–26.)

Abdiasiis argues that the seriousness of his medical need was evident by his repeated complaints

of severe pain, nausea, and vomiting, and his multiple attempts to see a doctor or go to the hospital.

He also asserts that his vitals were abnormal. (Pl.’s Mot. at 26.)

There is a genuine issue of fact as to whether Abdiasiis had a medical need that was

sufficiently serious. Plaintiff’s experts opine that his vitals throughout the three days show an

elevated pulse and tachycardia, symptoms of a serious medical issue. Plaintiff reported orally and

in writing to the nurses that he suffered from stomach pain, nausea, vomiting, and dehydration. He

repeatedly asked to see a doctor or to go to the hospital. See Blackmore, 390 F.3d at 899 (finding

repeated complaints of “sharp” and “severe” stomach pains for several days and vomiting indicated

a serious medical need). Despite his reported symptoms, PA Horton was the first medical

professional to perform an abdominal exam. She immediately sent Abdiasiis to the emergency

room. See Meador v. Growse, No. 12-cv-120, 2014 WL 970105, at *4 (E.D. Ky. March 12, 2014)

(collecting cases finding that pancreatitis is a serious medical condition).

Furthermore, a plaintiff has a serious need for medical care if it is “so obvious that even a

layperson would easily recognize the necessity for a doctor’s attention.” Id. (citing Gaudreault v.

Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990)). Abdiasiis’ cellmate called his mother

multiple times after he allegedly could not stand up, his pupils were dilated, and he “did not look

right.” From this, a reasonable juror could find that the medical need was serious because his

cellmate, a layperson, recognized his need for medical attention. Plaintiff meets the objective

component.

b. Deliberate Indifference

To establish the subjective component, deliberate indifference, a plaintiff must show

sufficient evidence that “the official being sued perceived facts from which to infer substantial risk

to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk.”

Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001); see Farmer, 511 U.S. at 837. The

Supreme Court has defined deliberate indifference as “lying somewhere between the poles of

negligence at one end and purpose or knowledge at the other” and it is “routinely equated ... with

recklessness.” Farmer, 511 U.S. at 836. “In other words, a plaintiff ‘does not need to show that

the [defendant] acted with the very purpose of causing harm or with knowledge that harm will

result.’” Bonner–Turner v. City of Ecorse, 627 F. App’x 400, 407 (6th Cir. 2015) (quoting Farmer,

511 U.S. at 835). Additionally, “a factfinder may conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.” Rouster v. Cnty. of Saginaw, 749

F.3d 437, 447 (6th Cir. 2014) (quoting Farmer, 511 U.S. at 842).

i. Defendant Sheila Lewis, LPN

Defendants argue that Plaintiff cannot establish that Nurse Lewis was deliberately

indifferent to his serious medical needs because 1) there is no evidence to demonstrate Nurse Lewis

had a sufficiently culpable state of mind in denying medical care to Plaintiff, 2) Nurse Lewis

actually provided care for Plaintiff based upon his presenting symptoms, and 3) she conducted

care pursuant to her professional and clinical judgment as well as her training. (Def.’s Mot. at 32.)

Nurse Lewis’ first interaction with Abdiasiis occurred during med pass on September 8th,

around 8:30 to 9:00 p.m. She reviewed and signed his sick call request, which reported severe

nausea, muscle aches, back pain, chest pain, difficulty breathing, and vomiting every hour. Nurse

Lewis gave him Ibuprofen.

Nurse Lewis’s second interaction with Abdiasiis occurred during the 3:00 a.m. med pass

on September 9, 2019. She testified that he complained of stomach pains and vomiting, asked for

medication, and requested to go to the hospital. Nurse Lewis testifies that Abdiasiis did not produce

proof of vomiting, he did not guard his stomach, he did not look pale or in pain. Without evidence

of vomiting, she believed he may have been lying about his symptoms. Nurse Lewis took

Plaintiff’s vitals and claims they were within overall normal range and not concerning. Plaintiff’s

expert, however, opines that the vitals indicate that his pulse was high and he was tachycardic.

(Ex. 3, Cohen Report at 3.) Nurse Lewis gave him Gatorade and told him he was on the list to see

a doctor. She did not perform a physical examination of Plaintiff’s abdomen. After she refused to

send him to the hospital or to see a doctor, Abdiasiis stood in the doorway and would not let the

corrections officers close the door.

Nurse Lewis’s third interaction with Abdiasiis was in response to a Code Blue at or around

4:00 a.m. on the morning of September 9, 2019, after deputies had found Plaintiff lying on the

floor, suffering from an apparent seizure. She sent Abdiasiis to another LPN, the supervising

Charge Nurse, for a secondary assessment. Nurse Lewis asserts that she took Plaintiff’s vitals again

and they were within normal ranges. Plaintiff contends that she copied his earlier vitals instead of

taking new vitals and still failed to perform an examination of his abdomen.

Viewing the evidence in a light most favorable to Plaintiff, there is a genuine issue of

material fact as to whether Nurse Lewis was deliberately indifferent to his medical needs. Despite

Plaintiff complaining three times that he had severe abdominal pain, nausea, and vomiting, Nurse

Lewis did not add him to the sick call list to see a doctor immediately. She believed he was faking

his symptoms. See Adkins v. Morgan Cnty., Tenn., 798 F. App’x 858, 862 (6th Cir. 2020) (when a

defendant is “directly informed” of a patient’s symptoms but disregards the risk based on a belief

that the patient was “faking,” that is sufficient to satisfy the subjective component); Jones v.

Muskegon Cnty., 625 F.3d 935 (6th Cir. 2010) (failure to respond to request for medication

treatment or call for consultation or examination because symptoms dismissed as “faking it” was

deliberately indifferent).

Furthermore, there is conflicting testimony as to whether Nurse Lewis accurately read

Plaintiff’s vitals as normal, and whether she took his vitals a second time after he faked a seizure

or whether she simply copied the first vital readings. If true, a reasonable juror could find her

actions of giving him Gatorade and Ibuprofen was woefully inadequate treatment in light of

Plaintiff’s symptoms and complaints as to amount to no treatment at all. As the Sixth Circuit has

stated,

[P]rison officials may not entirely insulate themselves from liability under §

1983 simply by providing some measure of treatment. Indeed, deliberate

indifference may be established in cases where it can be shown that a defendant

rendered “grossly inadequate care” or made a “decision to take an easier but less

efficacious course of treatment.”

McCarthy v. Place, 313 F. App’x 810, 814 (6th Cir. 2008) (quoting Terrance v. Northville Reg'l

Psychiatric Hosp., 286 F.3d 834, 843 (6th Cir. 2002)). Viewing the facts in a favorable light to

Abdiasiis, a reasonable juror could determine that Nurse Lewis took an “easier but less efficacious

course of treatment” if she copied Plaintiff’s earlier vitals rather than taking new vitals and failed

to examine Plaintiff because she believed he was faking his symptoms. Nurse Lewis is not entitled

to summary judgment on the Eighth Amendment claim.

ii. Defendant JaNina Davis, LPN

Defendants argue that Plaintiff cannot establish that Nurse Davis was deliberately

indifferent to his serious medical needs because she did not have a culpable state of mind in

denying medical care and she actually provided care for Plaintiff based upon his presenting

symptoms on September 9th and 10th by giving him Ibuprofen. (Def.’s Mot. at 35–37.)

Plaintiff argues there is a genuine issue as to whether Nurse Davis was deliberately

indifferent because she failed to put him on the sick call list, examine him, provide any treatment,

and ensure he was seen by the medical provider. (Pl.’s Resp. at 36.) Plaintiff claims the Ibuprofen

was prescribed for withdrawal and not as a response to his complaints of abdominal pain. In

Davis’s deposition, she testified that abdominal symptoms such as vomiting can be very serious.

(Davis Dep. II at 156–158, ECF No. 62.) Defendant Davis testified to not remembering whether

Plaintiff gave her verbal or written complaints or whether she examined Plaintiff. She only

remembers issuing Ibuprofen.

Taking these facts in a light most favorable to Abdiasiis, a reasonable juror could find that

Nurse Davis heard his complaints of severe abdominal symptoms, inferred that they presented a

serious risk to him, yet did not provide medical treatment or an examination. A reasonable juror

could find that the Ibuprofen administered for Abdiasiis’ withdrawal and not for his abdominal

symptoms was woefully inadequate treatment in light of his complaints. Therefore, Abdiasiis’ and

Davis’ testimony creates a genuine issue of material fact as to whether Davis perceived a serious

medical risk but disregarded it and thus was deliberately indifferent. Nurse Davis is not entitled to

summary judgment on this claim.

iii. Defendant Cynthia Cameron, RN

Defendants claim there is insufficient evidence that Nurse Cameron was deliberately

indifferent to Plaintiff’s medical needs because her only interactions with Plaintiff were processing

his transfer to Grant Medical Center on September 11th and briefly speaking to Abdiasiis and his

mother (through his cellmate) during a three-way call on September 9th. (Def.’s Mot. at 38.)

On September 9th, Nurse Cameron was the Charge Nurse supervising other nurses. She

spoke to Plaintiff’s mother on the phone and found out that he was vomiting. Later, she was

involved in a 3-way call with Plaintiff’s mother and Plaintiff or his cellmate. The parties dispute

whether Cameron spoke directly with Abdiasiis or only with his cellmate. Cameron chastised

Plaintiff or his cellmate for making a 3-way call against jail policy and hung up the phone. Nurse

Cameron then reviewed Plaintiff’s chart and documented the call. She saw that a sick call referral

to a NP/PA evaluation was in the system. Nurse Cameron notified four corrections officers that

Plaintiff had made a 3-way call. The officers threatened to put Plaintiff in isolation and charge him

with harassment if he called again.

Plaintiff contends there is a genuine issue of fact as to whether Nurse Cameron was

deliberately indifferent to his medical needs because she was aware of his symptoms and that he

had not yet been seen by a nurse or advanced practitioner but she did not check on Abdiasiis herself

or send another nurse to check on him again. (Pl.’s Resp. at 39.)

In reviewing his patient chart, Nurse Cameron would have seen Plaintiff’s multiple sick

call requests, his symptoms of severe nausea, hourly vomiting, abdominal pain, chest pain, and

back pain. She would have seen that two LPNs (neither of whom are registered nurses or advanced

medical practitioners) heard his symptoms and took sick call requests from him. She also was

aware that his mother called fifteen times. Yet it is undisputed that Cameron did not check on

Plaintiff herself or send another nurse to see him. Under the circumstances, a reasonable juror

could find that her inaction was “patently unreasonable.” See Cairelli v. Vakilian, 80 F. App’x

979, 984 (6th Cir. 2003). Therefore, the Court finds a genuine issue of fact as to whether Nurse

Cameron recklessly disregarded the serious medical risk to Plaintiff. Nurse Cameron is not entitled

to summary judgment on the Eighth Amendment claim.

iv. Defendant Elizabeth Givens, LPN

Nurse Givens spoke on the phone with Plaintiff’s mother at least twice and knew that

Plaintiff’s mother called fifteen times, concerned about her son’s condition. Plaintiff’s mother told

Nurse Givens that her son had a panic attack and asked what NaphCare was doing to treat him.

Nurse Givens told her she could not divulge Plaintiff’s medical information for privacy reasons

but that a nurse would check on him. She reported Plaintiff’s mother’s calls to Nurse Cameron,

the supervising Charge Nurse. Unlike the other three Individual Defendants, the record is devoid

of evidence that Nurse Givens spoke to Abdiasiis or saw his chart. She was aware of limited

information from Plaintiff’s mother and reported the calls to her supervisor. From these facts, no

reasonable juror could find that she was deliberately indifferent to Abdiasiis’ medical needs.

Defendant Nurse Givens is entitled to summary judgment on Plaintiff’s Eighth Amendment claim.

2. Ohio Law Medical Negligence Claim

In addition to the Eight Amendment claim for inadequate medical care, Plaintiff brings a

negligence claim against the four Individual Defendants. Under Ohio law, a negligence claim

requires proof of (1) a duty requiring the defendant to conform to a certain standard of conduct,

(2) breach of that duty, (3) a causal connection between the breach and injury, and (4) damages.

See Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). The

elements are the same for medical negligence. Loudin v. Radiology & Imaging Servs., Inc., 128

Ohio St.3d 555, 2011- Ohio-1817, 948 N.E.2d 944, ¶ 13. Medical professionals have a duty to

exercise the degree of care that a medical professional of ordinary skill, care, and diligence would

exercise under similar circumstances. Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio

St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 29, (citing Bruni v. Tatsumi, 46 Ohio St.2d 127, 346

N.E.2d 673 (1976)) (syllabus). This is called the standard of care. Id. In a negligence action

involving the professional skill and judgment of a nurse, expert testimony must be presented to

establish the prevailing standard of care, a breach of that standard, and, that the defendant’s

negligence was the proximate cause of the patient’s injury. Ramage v. Cent. Ohio Emergency

Serv., Inc., 64 Ohio St.3d 97, 592 N.E.2d 828 (1992).

In this case, there is a genuine issue of fact as to whether the Defendants Lewis, Davis, and

Cameron were negligent in diagnosing and treating Abdiasiis. Plaintiff’s correctional medicine

expert, Dr. Lawrence H. Mendel, opines that an “[a]bdominal exam is an essential component of

the evaluation of any patient reporting severe abdominal pain and persistent vomiting” and that

“[m]ore likely than not, such an exam and evaluation on September 8, 2019, or at any point in time

prior to PA Horton’s examination and evaluation on September 11, 2019, by a properly trained

medical professional or consultation with a licensed clinician, at a minimum would have identified

the need to obtain urgent blood tests that would have identified Abdiasiis’ condition within hours.”

(Mendel Report at 14–15, ECF No. 79-1). However, as detailed above, Defendants Lewis, Davis,

and Cameron did not perform an abdominal examination despite Abdiasiis’ repeated complaints

of severe abdominal pain, vomiting, nausea, and chest and back pain. They marked his condition

as “routine” rather than “priority,” did not treat him for persistent vomiting, and did not bring him

to an advanced practitioner for three days. (Id. at 15.) According to Mendel, these actions “failed

to meet applicable standards of care” for nurses. (Id. at 16–23.) This expert testimony creates a

genuine issue of fact as to whether Defendants Lewis, Davis, and Cameron breached their duty of

care towards Abdiasiis by failing to act as a medical professional of ordinary skill, care, and

diligence would act under similar circumstances. Thus, the first two elements—duty and breach—

are met for summary judgment purposes.

Contrary to Defendants’ assertion (Def.’s Mot. at 47), Plaintiff provides sufficient evidence

of causation and injury through his expert gastroenterologist, Dr. Jonathan Cohen. Dr. Cohen

opines that the Individual Defendants’ delay in care “resulted [in Abdiasiis] having severe

necrotizing pancreatitis and a course complicated by sepsis, SIRS, venous thrombosis, severe

diabetes due to loss of viable pancreas, infected fluid collections with pus requiring long term

drains, subsequent hospitalizations, and lifelong medical disability.” (Cohen Report at 11, ECF

No. 79-3.) This is sufficient to create a genuine issue as to whether the Individual Defendants’

actions or lack thereof caused Abdiasiis to suffer more complications from pancreatitis and a worse

case of pancreatitis than he otherwise would have suffered. Individual Defendants Lewis, Davis,

and Cameron are not entitled to summary judgment on Plaintiff’s medical negligence claim.

Defendant Givens, on the other hand, is entitled to summary judgment on this claim

because there is insufficient evidence that she breached her duty of care to Abdiasiis. Upon

receiving calls from Aden, Abdiasiis’ mother, she immediately reported them to her supervisor,

Nurse Cameron. Cameron is an RN rather than an LPN and is therefore qualified to assess patients,

unlike Given, an LPN. The Court finds Givens took reasonable actions that are consistent with

what an ordinary LPN nurse would do under the circumstances.

B. Plaintiff’s Claims Against NaphCare

1. Section 1983 Eighth Amendment Claim

To prevail on a cause of action under § 1983, a plaintiff must prove “(1) the deprivation of

a right secured by the Constitution or laws of the United States (2) caused by a person acting under

the color of state law.” Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th Cir. 2010) (internal

quotation marks omitted). As to the first element, Plaintiff asserts that NaphCare violated his

constitutional right under the Eighth Amendment to be free from cruel and unusual punishment by

unnecessarily and wantonly inflicting pain through deliberate indifference to his serious medical

needs. See Shreve v. Franklin Cnty., 743 F.3d 126, 133 (6th Cir. 2014). As to the second element,

it is well-established 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. Rouster, 749 F.3d at 453.

For a corporation such as NaphCare to be held liable under § 1983, Abdiasiis must show

that NaphCare itself caused the constitutional violation at issue. See City of Canton, Ohio v. Harris,

489 U.S. 378, 385 (1989) (internal citation omitted) (respondeat superior or vicarious liability does

not attach under § 1983). To do so, the Plaintiff must show NaphCare’s customs, practices, or

policies led to the constitutional deprivation alleged. Monell v. New York City Dept. of Social Svs.,

436 U.S. 658, 694 (1978). Customs or policies can take the form of (1) an official policy or

legislative enactment, (2) decisions or ratifications of final decision makers, (3) inadequate training

or supervision, or (4) a custom of acquiescence to or tolerance of rights deprivations. Burgess v.

Fischer, 735 F.3d 462, 478 (6th Cir. 2013). Plaintiff proceeds under the first and third forms—

official policies and practices and inadequate training or supervision.

a. Official Policy of LPNs Assessing Inmates

Defendants argue that Plaintiff has not established any facts indicating that a NaphCare

policy, custom, or procedure led to the alleged denial of medical care. The Individual Defendants’

actions were a result of NaphCare’s proper polices. (Def.’s Mot. at 44.) Plaintiff responds that the

NaphCare system and its practices and unwritten policies “placed excessive and improper reliance

on LPNs” and “permitted nurses to make determinations and diagnoses outside the limits of their

licenses.” (Pl.’s Resp. at 46.)

As Dr. Jeffery Alvarez, NaphCare’s Chief Medical Director, states

LPNs tend to be more focused on medication pass, so delivering medications,

administering medications, usually twice a day on a med pass through the housing

unit, that’s their main focus, it’s quite a heavy load so it usually takes up the bulk

of their days to do that. LPNs can general assist an RN with some wound care, some

general collection of data, and usually that’s about the limit of their, you know, they

have to have an RN to be able to do any kind of assessments or more complex

assessments.

[LPNs can] collect sick calls, it’s a health care request, they would collect them

during med pass. So the LPNs would do the face to face, just in general collection,

and making sure for the prioritization of the health care requests.

(Alvarez Dep. at 35, ECF No. 68 at 36.)

But when asked whether the LPNs assess patients to determine whether there is an

emergency situation, Dr. Alvarez states: “When [LPNs are] collecting the health care requests then

they need to visualize the person and make sure there’s no emergency situation going on.” (Id.)

LPNs decide whether to call a code or pass the information “along to usually an RN to go ahead

and do the scheduling and full assessment.” (Id. at 35.) Dr. Alvarez further states that it is up to

the LPN conducting the face-to-face assessment to “determine the time frame for if there’s urgency

[and] say it needs to be a priority or is this more of a routine follow-up.” (Id. at 37–38.) NaphCare

has boxes for routine care, priority care, and immediate RN nursing care. Routine sick call follow-

ups are usually seen within 48 to 72 hours. Priority follow-ups are usually seen within 24 hours.

(Id. at 40–41.) Nurse Lewis herself believes her duties as an LPN included passing medications to

inmates, taking sick call requests, administering treatment, assessing health status of inmates,

carrying out doctor orders, charting, and triage. (Lewis Dep. at PageID# 4433–37) (emphasis

added).

From Alvarez’s and Lewis’ testimony, the Court finds that a reasonable jury could

conclude NaphCare policy permits LPNs to assess patients and determine whether they should be

seen immediately, prioritized above others, or not prioritized and only seen for a routine problem,

despite the fact that LPNs are not qualified to assess patients.

In this case, Abdiasiis complained orally and submitted many sick call requests to LPNs

Lewis and Davis during med passes. Because of NaphCare’s protocols, LPNs Lewis and Davis

were permitted to assess Plaintiff and designate his medical issue as routine without oversight from

a medical provider licensed to assess a patient. Because of NaphCare’s protocols, no RN, PA, MD

or other medical professional who was licensed to assess a patient visited Abdiasiis for three days.

Because he was not seen by a medical provider licensed to assess him three days, Plaintiff’s

condition worsened and allegedly caused him additional medical complications. The Court finds

sufficient evidence to create a genuine issue as to whether NaphCare’s policies led to inadequate

assessments and treatments causing him injury.

b. Inadequate Training and Supervision

To proceed under the inadequate training and supervision Monell theory, a plaintiff must

show “(1) the training or supervision was inadequate for the tasks performed, (2) the inadequacy

was the result of the municipality’s deliberate indifference, and (3) the inadequacy was closely

related to or actually caused the injury.” Regets v. City of Plymouth, 568 F. App’x 380, 394 (6th

Cir. 2014). Abdiasiis must prove that NaphCare’s training program and supervision were

inadequate for the tasks the nurses were required to perform, the inadequacy resulted from

NaphCare’s deliberate indifference, and the inadequacy actually caused, or is closely related to,

Abdiasiis’ injury. See Plinton v. Cnty. of Summit, 540 F.3d 459, 464 (6th Cir. 2008); Russo v. City

of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992); City of Canton, 489 U.S. at 388.

“A pattern of similar constitutional violations by untrained employees is ‘ordinarily

necessary’ to demonstrate deliberate indifference for purposes of failure to train.” Connick v.

Thompson, 563 U.S. at 61 (citing Bryan Cnty., 520 U.S. at 409). Alternatively, Plaintiff can

establish “a single violation of federal rights” if he shows that NaphCare “has failed to train its

employees to handle recurring situations presenting an obvious potential” for a constitutional

violation. Bryan Cnty., 520 U.S. at 409. This second mode of proof is available “in a narrow range

of circumstances” where a federal rights violation “may be a highly predictable consequence of a

failure to equip [employees] with specific tools to handle recurring situations.” Id.

In Shadrick v. Hopkins, the Sixth Circuit found a genuine issue of fact as to whether a

prison medical care provider “was deliberately indifferent to the need to train and supervise its

LPN nurses to provide adequate medical care to inmates, especially in view of the obvious risk

that the Constitution could be violated without such training and supervision.” 805 F.3d at 741. In

that case, the medical care provider did not implement an ongoing training program for its LPN

nurses, there was no proof of training designed to “guide LPN nurses in assessing and documenting

medical conditions of inmates, obtaining physician orders, providing ordered treatments to

inmates, monitoring patient progress, or providing necessary emergency care to inmates within the

jail environment in order to avoid constitutional violations.” Id. at 740. Instead, the nurses

“received a level of medical training” and “obtained a Kentucky license” to practice with a limited

set of medical skills. Id. The Court noted that the nurses in Shadwick could not identify or discuss

the medical provider’s policies and could not give specific responses as to the content of their

training. Furthermore, the LPN nurses had discretion in following protocol. Id.

This case is similar to Shadwick. Dr. Jeffery Alvarez, NaphCare’s Chief Medical Director,

states that new NaphCare nurses go through an orientation and a shadowing period in which

NaphCare ensures the nurses learn its protocols and policies. (Alvarez Dep. at 203–04.) There is

no further indication of training in the record and Court infers that there is no additional training

outside of the training reported by Dr. Alvarez. Plaintiff’s experts opine that NaphCare failed to

train its nurses to know that they cannot diagnose or withhold evaluation or care based on

determinations that the patient was “faking” or “lying,” failed to train and supervise its nurses “in

relation to when and how to appropriately prioritize patients for sick call lists or to make immediate

referrals,” to “use and/or reference nursing protocols,” “concerning when and whose responsibility

it is to consult with advanced practitioners,” “concerning whether nurses must obtain vitals signs

in relation to sick call requests,” and failed to train and supervise its nurses “with response to

prioritizing and re-prioritizing patients who are placed on sick call lists.” (Pl.’s Resp. at 49.) There

is an obvious potential for LPNs to encounter inmates with medical issues they are not qualified

to assess and to encounter inmates who may not be faking symptoms. See Bryan Cnty., 520 U.S.

at 409. Viewing this in a light most favorable to Plaintiff and drawing all reasonable inferences in

his favor, a reasonable juror could find that NaphCare inadequately trained and supervised its LPN

nurses.

Plaintiff also provides sufficient evidence of deliberate indifference. As the Court stated in

Shadrick, “[i]t is predictable that placing an LPN nurse lacking the specific tools to handle the

situations she will inevitably confront in the jail setting will lead to violation of the constitutional

rights of inmates.” Shadrick, 805 F.3d at 740. This lack of training led to LPN nurses assessing

patients’ medical conditions, which is outside their scope of permitted practice. (See State of Ohio

Board of Nursing Scopes of Practice: RNs and LPNs, Doc. 57-1, PageID#3148.)

Finally, there is sufficient evidence that the lack of training actually caused or is closely

related to Abdiasiis’ injuries because Plaintiff’s experts contend that if an RN or PA assessed

Plaintiff instead of an LPN, they would have known his condition was serious and he would have

been treated sooner. Defendant NaphCare is not entitled to summary judgment on Plaintiff’s

Eighth Amendment claims. See Shadrick, 805 F.3d at 743–44.

2. Negligent Training and Supervision under Ohio Law

Under Ohio law, negligent training and supervision claims require proof of five elements:

(1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the

employer’s actual or constructive knowledge of such incompetence; (4) the employee’s act or

omission causing plaintiff’s injuries; and (5) the employer’s negligence in training or supervising

the employee was the proximate cause of the plaintiff’s injuries.” Watson v. City of Cleveland, 202

F. App’x 844 (6th Cir. 2006) (citing Linder v. Am. Nat'l Ins. Co., 155 Ohio App.3d 30, 2003 Ohio

5394, 798 N.E.2d 1190 (2003)).

Defendants argue that they are entitled to summary judgment on this claim because there

is no evidence that the Individual Defendants were incompetent or that NaphCare knew they were

incompetent. (Def.’s Mot. at 48.) Plaintiff asserts that the Individual Defendants’ incompetence is

obvious because they failed to reference, follow, or initiate the NaphCare nursing protocols, and

because they were not trained how to triage medical requests, a duty they were expected to perform

during every med pass. (Pl.’s Resp. at 43–44.) The Court agrees. For the same reasons that

NaphCare is liable for failing to train and supervise its employees under §1983, the Court finds a

genuine issue of fact as to whether NaphCare is liable for negligently training and supervising its

employees under Ohio law.

3. Punitive Damages

Defendant contends that Plaintiff is not entitled to punitive damages because there is no

evidence of actual malice. (Def.’s Mot. at 49.) To impose punitive damages in regard to Plaintiff’s

Ohio negligence claims, he must demonstrate that Defendants Lewis, Davis, Cameron, and Givens

either acted with “(1) that state of mind under which a person’s conduct is characterized by hatred,

ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons

that has a great probability of causing substantial harm.” Preston v. Murty, 32 Ohio St. 3d 334,

336, 512 N.E.2d 1174 (1987) (holding that “malice” is required for an award of punitive damages

under Ohio law). “[A]ctual malice can be inferred from conduct and surrounding circumstances

which may be characterized as reckless, wanton, willful or gross.” Villella v. Waikem Motors, 45

Ohio St.3d 36, 37, 543 N.E.2d 464 (1989). Similarly, deliberate indifference is defined as

“subjective recklessness.” Farmer, 511 U.S. at 839. This Court already found sufficient evidence

of recklessness and deliberate indifference. See supra III.B.1. Of course, the Plaintiff must provide

a certain quantum of proof before a jury will decide punitive damages. Therefore, for the same

reasons that Defendants are not entitled to summary judgment on their deliberate indifference

claims above, it is not entitled to summary judgment on Plaintiff’s request for punitive damages.

V. MOTION TO STRIKE

The Federal Rules of Civil Procedure do not provide for a motion to strike documents or

portions of documents other than pleadings. See Fed. R. Civ. P. 12(f) (limited to striking pleadings

or portions of pleadings). Instead, trial courts make use of their inherent power to control their

dockets, Anthony v. BTR Auto. Sealing Sys., 339 F.3d 506, 516 (6th Cir. 2003), when determining

whether to strike documents or portions of documents. See also Link v. Wabash R. Co., 370 U.S.

626, 630–31 (1962).

Plaintiff’s Exhibit 2, Sagal Aden’s Contemporaneous Notes, is a document of notes taken

by Ms. Aden while her son, Plaintiff Sade Abdiasiis, was incarcerated at Jackson Pike and then

hospitalized. (Aden Notes, ECF No. 79-2.) Defendants object to this exhibit, arguing that it is

inadmissible hearsay and cannot be considered in resolving their Motion for Summary Judgment.

(Def.’s Obj., ECF No. 81.) Plaintiffs responded that the content of the notes could be considered

for summary judgment, even if it comes in an inadmissible form, because Ms. Aden will be able

to testify to everything in her notes and her testimony of such is admissible at trial. (Pl.’s Resp. to

Def.’s Obj., ECF No. 82.) In Defendants’ reply, they argued that the content below from Ms.

Aden’s notes is not admissible at trial because it is hearsay:

• He was told stop faking the pain.

• @ 12:40pm I called again they said that someone will check on him.

• I asked pls update the number and nurse refused to do that. She said only Sade can

change that.

• It was difficult to get it accepted but Keith asked judge to call jail and Sheriff

department. It was all fixed and I was informed to go see my son at the hospital. I

went at the waiting are and waited for the nurse to get me. A nurse came and said

that there is no family allowed so asked to let officer came and talk to me.

• The officer come out and talk to me and I explained to him the order changes he

said wait and let me check with my supervisor. While waiting at the waiting are

there comes four officers asking me to leave the hospital. I was escorted out the

hospital and called Keith.

(Aden Notes, ECF 79-2.) Thereafter, Plaintiff’s filed a Motion to Strike Defendants’ Reply on the

basis that it identified specific statements from the Notes as hearsay for the first time and therefore

addressed new arguments not set forth in the original objection. (Plaintiff’s Mot. to Strike, ECF

No. 84.)

The Court finds that Defendants’ identification of specific statements within Ms. Aden’s

notes is not a new argument. Defendants are highlighting several notes within the document they

already argued were hearsay. Plaintiffs’ motion to strike (ECF No. 84) is DENIED.

VI. CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendants’

Motion for Summary Judgment (ECF No. 73) and DENIES Plaintiff’s Motion to Strike (ECF No.

84). Defendant Elizabeth Givens is dismissed from the case. This case remains open.

IT IS SO ORDERED.

7/18/2022 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE