Greenway v. Leveck

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

JASON GREENWAY, )

as Administrator ad Litem for the Estate of )

George Dwayne Greenway )

) NO. 3:20-cv-00058

Plaintiff, ) JUDGE RICHARDSON

)

v. )

)

TERRENCE LEVECK, and TRULENER )

WALTER, )

)

Defendants. )

MEMORANDUM OPINION1

Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. No. 45,

“Motion”), which is supported by a memorandum of law. (Doc. No. 46). Plaintiff filed a Response

in Opposition (Doc. No. 59, “Response"), and Defendants filed a Reply in Support of their Motion.

(Doc. No. 62). The matter is ripe for review. For the reasons discussed herein, the Motion will be

granted in part and denied in part.

BACKGROUND2

George Dwayne Greenway (“Decedent”) was, at all relevant times, an inmate at Trousdale

Turner Correctional Center (“TTCC”) in Hartsville, Tennessee. (Doc. No. 24 at 1). Defendant

1 The Court notes that many of the documents in this case were filed, and remain, under seal. The sealing

of any such document shall be deemed lifted by virtue of this memorandum opinion only to the extent that

particular information in the document has been referred to herein.

2 The facts in this section are taken from the Amended Complaint (Doc. No. 24) and Plaintiff’s “Additional

Statement of Material Facts.” (Doc. No. 61 at 8-15). The facts taken from the Amended Complaint are also

included in the Factual Background of Defendants’ Memorandum in Support of the Motion for Summary

Trulener Walter was a nurse practitioner at TTCC, and Defendant Terrence Leveck was a doctor

at TTCC. (Id. at 1-2).

Decedent first became incarcerated at TTCC in April 2018. (Id. at 2). On May 4, 2018,

after complaining of neck pain, Defendant Walter prescribed nortriptyline3 for Decedent in a

dosage of 200 milligrams (mg) a day. (Doc. No. 61 at 8). In July 2018, Decedent began

complaining of seizures, but no immediate action was taken. (Id. at 9). At this point, Decedent was

suffering from Hepatitis C and liver disease, as well as a seizure disorder. (Id. at 9-10). He was

also taking Dilantin for his seizure disorder (Doc. No. 24 at 3), which he had been prescribed in

April 2018 upon his incarceration at TTCC. (Doc. No. 46 at 3).

On October 29, 2018, Dr. Leveck referred Decedent for emergency outside medical care

at Nashville General Hospital, where he was found to have Dilantin toxicity and urinary retention.4

(Doc. No. 61 at 10). In response, Keppra was substituted for Dilantin as treatment for Decedent’s

seizures. (Id.). On January 25, 2019, Decedent complained that he had not received his prescribed

Keppra for five (5) days and had suffered a seizure that day. (Id. at 11). The same day, Decedent

was evaluated by Defendant Walter who counseled him on “pseudo seizures” but also ordered a

doubled dose of Keppra, but without checking to ensure it was available. (Id.). Decedent remained

at TTCC for two more hours until he had another seizure that lasted 45 minutes. (Id.). At that point,

Decedent was transported via emergency medical personnel to Sumner Regional Medical Center

where he had an additional two seizures. (Id. at 12). Decedent returned to TTCC on January 28,

Judgment (Doc. No. 46 at 2-8), so they do not appear to be disputed. Moreover, Defendants did not respond

to Plaintiff’s “Additional Statement of Material Facts”; thus, pursuant to Local Rule 56.01(f), the Court will

take those facts as undisputed.

3 Nortriptyline is a tricyclic antidepressant; it also has a secondary use for neurological pain. (Doc. No. 61

at 8).

4 Urinary retention can be a sign of nortriptyline toxicity. (Doc. No. 61 at 10).

2019 after resuming Keppra. (Id.). Sumner Regional Hospital staff also lowered Decedent’s

nortriptyline dosage to 100mg a day, instead of 200mg. (Id.). Defendants ignored this change and

resumed 200mg a day upon Decedent’s return to TTCC. (Id.). On February 17, 2019, Decedent

suffered another seizure and was found unresponsive in his cell. (Id.). He was treated with Narcan,

and life-saving measures were taken, but he was pronounced dead after being transported to

Trousdale Medical Center. (Id. at 12-13). Decedent’s autopsy noted his cause of death as “acute

combined drug toxicity” caused by nortriptyline, venlafaxine, and methadone. (Id. at 13). In his

system, nortriptyline was found at a toxic level of 1,200ng/ml, venlafaxine at an “elevated” level

of 490 ng/ml; and methadone at 88 ng/ml.5 (Id.).

Plaintiff, appointed the Administrator ad Litem of the Estate of Decedent on January 13,

2020, filed the present action on January 21, 2020, and thereafter filed an Amended Complaint.

(Doc. No. 24). Though the Amended Complaint is not exceedingly clear as to what claims Plaintiff

intends to assert, the Court is confident (after reviewing Defendants’ Motion for Summary

Judgment and Plaintiff’s Response) that Plaintiff is bringing two claims, each under 42 U.S.C.

§ 1983, based on Defendants’ alleged deliberate indifference (to Decedent’s medical

circumstances) in violation of the Eighth Amendment. (Id. at 6). The first claim appears to be

based on Defendants’ failure to provide the Decedent with the seizure medication Keppra and for

failing to provide treatment when Decedent began having seizures after not having access to

Keppra for five days. The second claim is based on Defendants’ prescription and provision of

nortriptyline to Decedent and his ultimate death from “acute drug toxicity.” (Doc. No. 61 at 13).

5 Ng/ml refers to nanograms per milliliter.

STANDARD

Summary judgment is appropriate where 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(c). “By its very terms,

this standard provides that the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary

under applicable law is of no value in defeating a motion for summary judgment. See id. at 248.

On the other hand, “summary judgment will not lie if the dispute about a material fact is

‘genuine[.]’” Id.

A fact is “material” within the meaning of Rule 56(c) “if its proof or disproof might affect

the outcome of the suit under the governing substantive law.” Anderson, 477 U.S. at 248. A

genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a

verdict for the non-moving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).

The party bringing the summary judgment motion has the initial burden of identifying

portions of the record that demonstrate the absence of a genuine dispute over material facts.

Pittman v. Experian Information Solutions, Inc., 901 F.3d 619, 627-28 (6th Cir. 2018). If the

summary judgment movant meets that burden, then in response the non-moving party must set

forth specific facts showing that there is a genuine issue for trial. Id. at 628.

A party asserting that a fact cannot be or genuinely is disputed—i.e., a party seeking

summary judgment and a party opposing summary judgment, respectively—must support the

assertion by citing to materials in the record, including, but not limited to, depositions, documents,

affidavits, or declarations. Fed. R. Civ. P. 56(c)(1)(A). In reviewing a motion for summary

judgment, this court must view the evidence in the light most favorable to the non-moving party.

Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020) (quoting Anderson, 477 U.S. at 248).

Likewise, the court should view the facts and draw all reasonable inferences in favor of the non-

moving party. Pittman, 901 F.3d at 628. Credibility judgments and weighing of evidence are

improper. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above,

where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id.

The court determines whether sufficient evidence has been presented to make the issue of fact a

proper jury question. Id. The mere existence of a scintilla of evidence in support of the non-moving

party’s position will be insufficient to survive summary judgment; rather, there must be evidence

upon which the jury could reasonably find for the non-moving party. Rodgers v. Banks, 344 F.3d

587, 595 (6th Cir. 2003).

On a motion for summary judgment, a party may object that the supporting materials

specified by its opponent “cannot be presented in a form that would be admissible in evidence.”

Fed. R. Civ. P. 56(c)(2). Upon such an objection, the proponent of the supporting material must

show that the material is admissible as presented or explain how it could be presented in a form

that would be admissible. Thomas v. Haslam, 303 F. Supp. 3d 585, 624 (M.D. Tenn. 2018);

Mangum v. Repp, No. 15-4292, 2017 WL 57792 at *5 (6th Cir. Jan. 5, 2017) (citing Fed. R. Civ.

P. 56(c) advisory committee’s note to 2010 amendment).

DISCUSSION

Defendants seek summary judgment on both of Plaintiff’s claims. As indicated above, each

claim is brought under 42 U.S.C. § 1983 based on particular circumstances (different for each

count) allegedly reflecting injuries to Decedent resulting from Defendants’ deliberate indifference

in violation of the Eighth Amendment.6 “To state a civil rights claim under 42 U.S.C. § 1983, a

plaintiff must allege (1) the violation of a right secured by the U.S. Constitution or federal law;

and (2) that the right was violated by a person acting under color of state law.” Jebril v. Webber,

No. 08-10151, 2009 WL 2447551, at *2 (E.D. Mich. Aug. 7, 2009) (citing West v. Atkins, 487 U.S.

42, 48 (1988)). As noted, Plaintiff is alleging a violation of the Eighth Amendment, which

“protects an inmate from cruel and unusual punishments, [and] includes a right to be free from

deliberate indifference to an inmate's serious medical needs.” Brawner v. Scott Cnty, Tenn., 14

F.4th 585, 591 (6th Cir. 2021) (citing Richmond v. Huq, 885 F.3d 928, 937 (6th Cir. 2018)).7

To state a cognizable claim for deliberate indifference under the Eighth Amendment, “a

prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to

serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). “It is only such indifference that

can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. (quoting Trop

v. Dulles, 356 U.S. 86, 101 (1958) (noting that the criteria for cruel and unusual punishment under the

6 If the law of the forum state so allows, a “decedent's civil rights claim, a personal cause of action, may be

pursued in the name of the decedent's personal representative.” Jaco v. Bloechle, 739 F.2d. 239, 245 (6th

Cir. 1984). “Tennessee law provides that the survival of action passes to the ‘person's surviving spouse and,

in case there is no surviving spouse, to the person's children or next of kin; to the person's personal

representative, for the benefit of the person's surviving spouse or next of kin.’” Davis v. Memphis Police

Dep't, No. 13-2497-JDT-DKV, 2013 WL 4446240, at *5 (W.D. Tenn. Aug. 15, 2013) (quoting Tenn. Code.

Ann. § 20-5-106). Here, Decedent’s rights passed to Plaintiff as Administrator ad Litem of Decedent’s

estate. (Doc. No. 24 at 1).

7 The Eighth Amendment protects inmates serving sentences of imprisonment after conviction, as Decedent

was. See Richmond, 885 F.3d at 937 (“The Eighth Amendment provides an inmate the right to be free from

cruel and unusual punishment.”). In the case of state actors like Defendants, Eighth Amendment protections

are applicable (when they are applicable) specifically by way of the Fourteenth Amendment. See Crawford

v. Tilley, 15 F.4th 752, 760 (6th Cir. 2021). In these situations, courts generally speak in terms of “Eighth

Amendment” protection without any reference (beyond an initial reference) to the Fourteenth Amendment.

Eighth Amendment protection is applicable in the instant case.

By contrast, the Due Process Clause of the Fourteenth Amendment provides the same kind (though

not always identical) protection to pretrial detainees. Richmond, 885 F.3d at 937 (“The Due Process Clause

of the Fourteenth Amendment provides the same protections to pretrial detainees.”). Such protection is

generally referred to by courts as “Fourteenth Amendment” protection without any reference (beyond an

initial reference) to the Due Process Clause. Fourteenth Amendment protection is inapplicable here.

Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the

progress of a maturing society.”)). Additionally, the Sixth Circuit distinguishes “between cases where

the complaint alleges a complete denial of medical care and those cases where the claim is that a

prisoner received inadequate medical treatment.” Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir.

1976). Generally, “[w]hen a prison doctor provides treatment, albeit carelessly or inefficaciously, to a

prisoner, he has not displayed a deliberate indifference to the prisoner's needs, but merely a degree of

incompetence which does not rise to the level of a constitutional violation.” Comstock v. McCrary, 273

F.3d 693, 703 (6th Cir. 2001).

As this Court has previously noted

A claim of deliberate indifference to a prisoner's medical needs under the Eighth

Amendment has both an objective and subjective component. Rouster v. Cnty. of

Saginaw, 749 F.3d 437, 446 (6th Cir. 2014). A plaintiff satisfies the objective

component by alleging that the prisoner had a medical need that was “sufficiently

serious.” Id. (quoting Farmer, 511 U.S. at 834). A plaintiff satisfies the subjective

component “by alleging facts which, if true, would show that the official being sued

subjectively 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.” Id.

Hill v. Wilkins, No. 3:19-cv-00785, 2019 WL 4644235, at *2 (M.D. Tenn. Sept. 24, 2019). Accord

Brawner, 14 F.4th at 591.8 The subjective component “requires an inmate to show that prison officials

have ‘a sufficiently culpable state of mind in denying medical care.’” Blackmore v. Kalamazoo Cty.,

390 F.3d 890, 895 (6th Cir. 2004) (quoting Brown v. Bargery, 207 F.3d 863, 867 (6th Cir. 2000)). This

8 It is worth noting, albeit as an aside, that a claim of deliberate indifference under the Fourteenth

Amendment now has, in the Sixth Circuit at least, a different test for the subjective component. Without

unnecessarily getting into the details here, suffice it to say that, since late 2021, “the second prong of the

deliberate indifference test [the subjective component] applied to pretrial detainees . . . require[s] only

recklessness.” See Greene v. Crawford Cty., Mich., No. 20-1715, 2022 WL 34785, at *8 (6th Cir. Jan. 4,

2022) (citing Brawner, 14 F.4th at 597). As Greene explains, the recognition of this change in the law was

some time in the making, and recent scholarship has noted presciently the potential and need for this kind

of revisiting of whether any (and, if so, what) subjective component, in addition to an objective component,

should be required for Fourteenth Amendment claims. See Kate Lambroza, Pretrial Detainees and the

Objective Standard After Kingsley v. Hendrickson, 58 AM. CRIM. L. REV. 429 (2021).

means “a mental state ‘equivalent to criminal recklessness.’” Rhinehart v. Scutt, 894 F.3d 721, 738

(6th Cir. 2018) (quoting Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir. 2013)).

I. Plaintiff’s Eighth Amendment Claim Related to the Non-Provision of Keppra

Defendants move for summary judgment on the basis that Defendants are “not responsible

for providing or for facilitating the provision of Keppra” to Decedent. (Doc. No. 46 at 8).

Defendants’ entire argument rests on two items of evidence: a statement from Defendant Leveck’s

declaration and a statement from Defendant Walter’s declaration. Defendant Leveck’s declaration

states in pertinent part:

I was not responsible for any failure to stock Keppra. I was not responsible for

ordering medications for the facility pharmacy, making sure that medications were

stocked in the facility pharmacy, or giving medications from the facility pharmacy

to the inmates. I did not oversee or supervise others who were responsible for these

tasks at Trousdale. And, I had not been made aware that the facility pharmacy ran

out of Keppra and thus could not possibly have known that Greenway went without

the medication.

(Doc. No. 49 ¶ 6). And the statement from Defendant Walter’s declaration says,

I was not responsible for any failure to stock Keppra. I was not responsible for

ordering medications for the facility pharmacy, making sure that medications were

stocked in the facility pharmacy, or giving medications from the facility pharmacy

to the inmates. I did not oversee or supervise others who were responsible for these

tasks at Trousdale. And, I had not been made aware that the facility pharmacy ran

out of Keppra and thus could not possibly have known that Greenway went without

the medication. Once Greenway told me that he had been without his Keppra, I

ordered the medication and then ordered his immediate transport to an offsite

hospital.

(Doc. No. 52 ¶ 4).

Defendants appear to be challenging Plaintiff’s ability to prove the subjective component

of a claim for deliberate indifference by arguing that neither Defendant had any responsibility in

regard to Decedent’s access to Keppra.9 Responsibility for the conduct at issue is not an explicit

element of an Eighth Amendment deliberate-indifference claim in the Sixth Circuit, but the case

law suggests it is nonetheless a requirement. See Lewis v. Phillips, No. 20-5432, 2020 WL

6277422, at *3 (6th Cir. Oct. 19, 2020) (holding a plaintiff failed to plead deliberate indifference

when he pleaded no facts to show that defendant “was personally responsible for his treatment or

that she knew or should have known her staff was not following his treatment plan”); Richmond

v. Huq, 885 F.3d 928, 941 (6th Cir. 2018) (finding that a doctor was not liable for deliberate

indifference when he had no responsibility to implement a course of treatment on an incarcerated

plaintiff, nor was there evidence that he was ever aware said treatment was not being

implemented); Edmonds v. Rees, No. 3:06-CV-P301-H, 2008 WL 3820428, at *4 (W.D. Ky. Aug.

13, 2008) (“As such, [defendant’s] actions or inactions are not responsible for Plaintiff's alleged

Eighth Amendment violation . . . [t]he Court therefore finds that [defendant] is entitled to summary

judgment in her favor . . . ”); Washington v. Reed, No. 05-CV-72433, 2007 WL 2029503, at *2

(E.D. Mich. July 9, 2007) (“Plaintiff has failed to provide any Supreme Court or Sixth Circuit

authority that supports the proposition that deliberate-indifference claims can be brought against

defendants who are not responsible for the conditions of Plaintiff's confinement or for Plaintiff's

health and safety while incarcerated.”). In the cases where the responsibility (or lack thereof) of

defendants is discussed, the requirement appears to be evaluated in connection with the subjective

9 Defendants’ Motion does not challenge the objective component of Plaintiff’s deliberate-indifference

claim. Such a challenge would likely have been unsuccessful, as the case law in the Sixth Circuit is clear

that a seizure disorder is a serious medical concern. See Parsons v. Caruso, 491 F. App’x. 597, 601 (6th

Cir. 2012) (“The defendants do not contest that Parsons had a sufficiently serious medical need-he suffered

from a seizure disorder.”).

component of deliberate indifference.10 Because Defendants are challenging whether there is

sufficient evidence to allow a jury to find that they had a responsibility to ensure that Decedent

had access to Keppra, they are thus challenging the subjective component of deliberate

indifference and asking whether there is sufficient evidence to prove that Defendants knew of and

disregarded “an excessive risk” to Decedent’s health and safety when he lost access to Keppra and

they failed to take action. Brawner, 14 F.4th at 591 (quotations omitted).

First, the Court must determine whether Defendants identified portions of the record that

demonstrate (preliminarily) an absence of a genuine dispute as to material facts, and thus shifted

the burden to Plaintiff. See Pittman, 901 F.3d at 627. The Court concludes that Defendants

successfully did so. Defendants point to their own declarations, whereby they attest to having no

responsibility to monitor the stock of Keppra in the TTCC pharmacy and no responsibility related

to the TTCC pharmacy’s provision of medications to inmates.11 If Defendants indeed had no

10 For an example of this, see Richmond, 885 F. 3d at 939, where prior to discussing the responsibilities of

certain defendants toward plaintiff’s medical care, the Sixth Circuit writes “[w]ith these standards in mind,

we turn to the subjective culpability of the Jail Defendants who were responsible for treating Richmond

during her confinement.” See also Walker v. Eyke, 417 F. App’x 461, 464 (6th Cir. 2011) (finding that a

plaintiff could not prove the subjective component of deliberate indifference in regard to a psychologist for

failing to prescribe medication because the psychologist had “no authority to prescribe the [] drugs

requested.”); Bradley v. City of Ferndale, 148 F. App'x 499, 510 (6th Cir. 2005) (noting that “[b]ecause the

plaintiff has failed to produce any evidence suggesting that [defendant] was responsible for checking on

[plaintiff], it cannot be said that his failure to do so constituted a conscious disregard of [plaintiff’s] suicidal

tendencies.”).

11 The Court concludes that the term “responsibility” in Defendants’ declarations is fairly construed to mean

something like “job responsibility” or “employer-assigned duty,” which can be treated as a factual

assertion. In particular, it can be treated as an assertion that as a factual matter, the respective Defendants’

job responsibilities—employer-assigned duties—did not encompass the specific activities implicated by

Plaintiff’s first claim. This is important because the Court construes the case law, when indicating that a

defendant is not liable unless the defendant had “responsibility,” as referring to the defendant having job

responsibilities or employer-assigned duties with respect to the activity at issue.

Were Defendants to be referencing their “responsibility” in the moral or legal sense of the word,

the Court likely would have had to find Defendants’ assertion of a lack of “responsibility” too conclusory—

and perhaps not even relevant to the precise relevant factual question at issue here—and thus insufficient

to indicate a lack of genuine dispute as to material facts concerning whether they can be held individually

liable under the law.

responsibility related to the Decedent’s access to Keppra, then that would suggest an absence of a

genuine dispute as to whether Defendants were aware of a risk to Decedent related to his access to

Keppra and then deliberately ignored that risk. So the question is whether Plaintiff meets his

resulting burden.

In response, Plaintiff argues that it was Defendants’ responsibility to monitor Decedent’s

“anti-seizure medication . . . to ensure he was receiving his prescribed medication so as to prevent

seizures.” (Doc No. 59 at 12). To illustrate this argument as to Defendant Leveck, Plaintiff points

both to an acknowledgement by Defendant Leveck that individuals in jail are reliant on medical

staff to provide for their needs (Doc. No. 60-9 at 26), and to the fact that Defendant Leveck was

the medical director of TTCC, and his duties included managing the infirmary and monitoring

medication levels in patients. (Id. at 2-3).

As to Defendant Walter, Plaintiff notes that she knew Keppra was an important drug.

Plaintiff points to Walter’s deposition where she said “[y]ou’ve got to be very careful with

[Keppra]” to ensure that it is in the therapeutic range. (Doc. No. 60-10 at 11). Defendant Walter

also knew that Decedent had been without Keppra for five days and that he had suffered a seizure

that day (January 25, 2019). (Doc. No. 61 at 11). Nonetheless, Decedent remained at TTCC

without Keppra until he suffered an additional seizure. (Doc. No. 60-20 at 4). Plaintiff notes that

TTCC has an on-site pharmacy and that there are two off-site pharmacies accessible to TTCC staff

if certain medications are not available in the on-site pharmacy. (Doc. No. 60-9 at 6-8). ). Finally,

Plaintiff argues that Defendant Walter had the authority to transport Decedent to an outside facility

immediately after she found out he had not had Keppra and had experienced a seizure but did not

do so until Decedent suffered another seizure. To support this argument, Plaintiff cites to the

Decedent’s medical paperwork from January 25, 2019, which shows Walter’s signature under a

note for “start Keppra” around 2:40 p.m. that day, as well as her signature under another note

around 4:30 p.m. sending Decedent off-site for an evaluation. (Doc. No. 60-6 at 4).

To satisfy the subjective component of deliberate indifference, Plaintiff must show that

Defendants were aware that a substantial risk of serious harm existed and failed to act. See

Blackmore, 390 F.3d at 896. As discussed above, Plaintiff must also show that Defendants were

responsible, in some capacity, for the circumstances and events leading to his Eighth Amendment

claim. One Sixth Circuit case is particularly helpful in evaluating how the requirement of

responsibility interrelates with the subjective component of deliberate indifference. In Richmond,

the Sixth Circuit considered which nurses could be found to be responsible for a burn on an inmate

not properly healing. 885 F.3d 928. The court determined that two nurses could not be considered

deliberately indifferent for ignoring wound cleaning because they acted within “their limited role

of preparing [plaintiff] for her scheduled examinations with the responsible medical party.” Id. at

945 (emphasis added). On the other hand, the court in Richmond found that two other nurses could,

in fact, be found liable because evidence existed to suggest (1) the nurses knew plaintiff needed

daily wound dressing changes to ensure proper healing of her burn, (2) they knew the dressing

changes were not being consistently provided to plaintiff, (3) it was within their employment

responsibilities to provide dressing changes to plaintiff, and (4) they still did nothing. Id. The Sixth

Circuit held that the failure to act constituted a conscious disregard of a serious risk by the latter

two nurses. Id. In another case with a similar factual background to the present action, the Sixth Circuit

held that a nurse conducting intake of inmates could be found liable for a deliberate-indifference claim

when she noted that an incoming inmate had not received his anti-seizure medication, and could have

taken action to provide him with such medication, but instead made “a conscious choice to let

[plaintiff] linger yet longer without his anti-seizure medication.” Parsons v. Caruso, 491 F. App’x.

597, 604-5 (6th Cir. 2012) (“Viewing the facts and drawing all reasonable inferences in favor of

[plaintiff], [defendant’s] failure to administer Dilantin, even if she lacked intent or knowledge that

harm would actually result, would exceed negligence and rise to the level of “recklessness” as required

under the deliberate indifference standard.”).

In the present action, Plaintiff has not pointed to sufficient facts to show there is a genuine

dispute as to whether Defendant Leveck was deliberately indifferent with respect to Decedent’s

Keppra prescription. Plaintiff pointed to no facts to establish Defendant Leveck’s responsibility in

regard to Decedent’s access to Keppra. While Plaintiff noted that Defendant Leveck was the

medical director of TTCC and generally had a duty to monitor some specific medications in

inmates (Doc. No. 60-9 at 2-3), this is not sufficient to show a responsibility to monitor Keppra

levels in Decedent. See Richmond, 885 F.3d at 941 (finding summary judgment appropriate when

it was not the doctor’s “role to implement the course of treatment, and there are no facts in the

record to suggest that [the doctor] was ever aware that the treatment was not being implemented

as he prescribed.”).

The Court grants that perhaps Defendant Leveck (especially considering the relatively

high-ranking position he occupied) would have become responsible for this issue if Decedent’s

lack of access to Keppra had been brought to his attention sooner than it was (in which case his

job duties well might have encompassed ensuring that the someone did something about the

problem). But whether he would have become responsible under such circumstances is immaterial

here because Plaintiff has shown no evidence to suggest that Defendant Leveck was aware that

Decedent had gone without Keppra for five days or that Decedent had suffered the initial seizure

on January 25, 2019. In fact, Plaintiff himself points to Defendant Leveck’s testimony that suggests

a distinct lack of knowledge. In the cited testimony, Defendant Leveck states he was called after

Decedent had a second seizure and at that time was informed that there was no Keppra on-site.

(Doc. No. 60-9 at 18). Defendant Leveck also notes that he was not aware of how long the

pharmacy had been out of Keppra by that point. (Id.). These are not sufficient facts to show a

genuine dispute as to whether Defendant Leveck “subjectively perceived facts from which to infer

substantial risk to the [Decedent], that he did in fact draw the inference, and that he then disregarded

that risk.” Rouster, 749 F.3d at 446 (quoting Comstack, 273 F.3d at 703).

On the other hand, the Court finds that Plaintiff has raised a genuine dispute of material fact

regarding Defendant Walter’s subjective state of mind. To begin with, the Court notes that Defendants’

attack on the subjective component as it relates to Defendant Walter is limited to a challenge to the

notion that Defendant Walter had responsibility here. It is undisputed that on January 25, 2019,

Decedent told Defendant Walter he had not been receiving Keppra and had experienced a seizure.

(Doc. Nos. 46 at 3 and 61 at 11). Plaintiff cites evidence showing that Defendant Walter did not acquire

Keppra for Decedent, and that instead Decedent remained at TTCC for two more hours, until he

experienced another seizure. (Doc. No. 60-20 at 4). At that point, Defendant Walter ordered his

transfer to another facility. (Doc. No. 60-6 at 4). Plaintiff notes that during Defendant Walter’s

deposition, she was asked whether Decedent could have been transferred to another facility earlier

in the day where he could have received Keppra, and that Defendant Walter answered that that

decision would have been up to the “person that was assessing him on that day.” (Doc. No. 60-10

at 23). It is unclear whether Defendant Walter was the person “assessing” Decedent on January

25, 2019, but her name and signature are on his medical orders from that day. (Doc. No. 60-6 at

4). These are sufficient facts by which a jury could determine that Defendant Walter in fact had

the necessary responsibility with respect to the activities here at issue (the provision of such

medication to Decedent). This defeats Defendants’ sole argument concerning the claim against

Defendant Walter.

Moreover, even if Defendants had made a broader attack on the subjective component as

it relates to Defendant Walter—i.e., had argued that the subjective component was absent even if

Defendant Walter had the relevant responsibility—the attack would have failed. The undisputed

facts (and evidence related to what may be disputed facts) set forth in the prior paragraph are

sufficient to support a finding that Walter (1) knew there was a substantial risk to Decedent in not

receiving his seizure medication for five days, and (2) did not take steps to ensure Decedent could

quickly receive Keppra, even after he reported experiencing a seizure.

Accordingly, Defendants’ Motion, as it relates to the non-provision of Keppra to Decedent,

will be granted as to Defendant Leveck, but denied as to Defendant Walter.

II. Plaintiff’s Eighth Amendment Claim Related to Defendants’ Prescription of

Nortriptyline

Defendants additionally move for summary judgment on Plaintiff’s other claim, this one

(another) Eighth Amendment deliberate-indifference claim based in Decedent’s nortriptyline

prescription and ultimate death allegedly caused thereby. Defendants argue that Plaintiff cannot

show that Defendants’ daily provision of 200mg nortriptyline to Decedent proximately caused his

death.12 (Doc. No. 46 at 10-11). “Proximate cause is an essential element of a § 1983 claim for

damages.” Horn by Parks v. Madison Cty. Fiscal Ct., 22 F.3d 653, 659 (6th Cir. 1994) (quoting

Doe v. Sullivan County, Tennessee, 956 F.2d 545, 550 (6th Cir. 1992)).

To illustrate there is no genuine dispute as to whether nortriptyline was a proximate cause

of Decedent’s death, Defendants point to a report from their retained expert, Dr. Christopher P.

12 It appears from the memorandum of law in support of the Motion that Defendants are challenging

Plaintiff’s nortriptyline Eighth Amendment deliberate-indifference claim only with respect to proximate

causation. (Doc. No. 46 at 10-15). The Court perceives that the claim conceivably could have been

challenged on the basis that the Amended Complaint alleges facts that seem to suggest inadequate medical

care rather than no medical care. See Comstock, 273 F.3d at 70 (“When a prison doctor provides treatment,

albeit carelessly or inefficaciously, to a prisoner, he has not displayed a deliberate indifference to the

prisoner's needs, but merely a degree of incompetence which does not rise to the level of a constitutional

violation.”). However, the Court will forgo addressing any such basis because Defendants never made any

such challenge and because their memorandum of law references only an alleged lack of proximate

causation as the basis for their challenge to Plaintiff’s second claim.

Holstege, a licensed physician in Charlottesville, Virginia. (Doc. No. 48-1). In his report, Dr.

Holstege notes that the “classic” symptoms of nortriptyline toxicity were not witnessed in the

Decedent during the time he was prescribed nortriptyline. (Id. at 10). Additionally, Dr. Holstege’s

report notes that Decedent’s forensic blood analysis showed “numerous drugs that were prescribed

to him, are potentially deadly, and can interact with his prescribed medications to cause adverse

complications.” (Id. at 12). Finally, Dr. Holstege’s report notes that, “Mr. Greenway’s death was

caused by a number of drugs that were not prescribed to him but found on post-mortem forensic

analysis. His death was not caused by the prescribing physicians.” (Id. at 13). Defendants also cite

to a report by a second retained expert, Dr. Kevin S. McKechnie, who is a licensed physician in

Nashville, Tennessee. (Doc. No. 50-1 at 1). Dr. McKechnie’s report states that Decedent’s

“decision to take Methadone tragically caused his death” and “[b]eing on nortriptyline for over 9

months did not cause Greenway’s death. His choice to use Methadone did.” (Id. at 4, 6).

The Court believes that by pointing to these statements of their experts, Defendants

successfully pointed to evidence suggesting preliminarily that there is no genuine dispute as to

whether the 200mg daily prescription of nortriptyline caused (proximately or otherwise)

Decedent’s death. A lack of evidence supporting proximate causation would be fatal to Plaintiff’s

claims, as proximate causation is a requirement of § 1983 claims for damages, including those

predicated on the Eighth Amendment. See Warrick v. Walker, No. CIV.A. 304-0221, 2006 WL

140720, at *5 (M.D. Tenn. Jan. 17, 2006). “An injury is proximately caused by an act when it

appears from the evidence in the case that the defendant's conduct was a substantial factor in

bringing about the plaintiff's harm, and no rule of law relieves the defendant from liability because

of the manner in which his conduct resulted in the harm.” Id. (quoting Hickerson v. Koepp, Nos.95-

1890, 95-1982, 1997 WL 56961, at *3 (6th Cir. Feb.10, 1997)). Defendants’ expert’s statements

suggest (subject to Plaintiff’s rebuttal, of course) that Plaintiff would be unable to show such

proximate causation.

In response, Plaintiff argues that Decedent was exhibiting signs of nortriptyline toxicity

prior to his death. Plaintiff points to evidence that Decedent’s liver condition worsened over the

eight months he was taking nortriptyline, and that he also exhibited urinary retention, memory

issues, stuttering, and breakthrough seizures, which are known issues with nortriptyline. (Doc. No.

60-12 at 9-10, 17). When Decedent went to the hospital in November of 2018, his discharge

summary lists “retention of urine” and “altered mental status” as symptoms he was experiencing.

(Doc. No. 60-15). Moreover, Plaintiff points to evidence that Decedent was suffering from

Hepatitis C and liver cirrhosis, which can impact the liver’s ability to metabolize nortriptyline.

(Doc. No. 60-11 at 6, 8, 9). And Decedent was prescribed the medications sertraline and

haloperidol, which also inhibit the liver’s metabolization abilities. (Doc. Nos. 60-11 at 6, 60-12 at

5, 9-10).

Plaintiff also argues that the record supports the idea that nortriptyline toxicity was “a

substantial factor in [Decedent’s] death.” (Doc. No. 59 at 19). To support this argument, Plaintiff

cites to Defendant Leveck’s deposition, which notes that the dosage of nortriptyline Decedent was

receiving would have resulted in a blood level of around 300 nanograms per ML (Doc. No. 60-9

at 24), and to the post-mortem toxicology report which states that, “At plasma levels exceeding

200 ng/mL [of nortriptyline], toxic side effects such as hyper- or hypotension, tachycardia, cardiac

arrhythmia, confusion and nausea may be present; severe overdose may result in convulsions,

coma and cardiac irregularities.” (Doc. No. 60-3 at 5-6). Plaintiff also points to the medical

examiner’s report of Decedent’s body, which lists his cause of death as “acute combined drug

toxicity (methadone, nortriptyline and venlafaxine)” and notes that he had “toxic concentrations

of nortriptyline.” (Doc. No. 60-2 at 7). Finally, Plaintiff cites to his own retained expert, Dr.

Timothy Allen, a board-certified psychiatrist.13 (Doc. No. 60-13 at 5). Dr. Allen states in his

deposition

I think the greatest offender and the most likely direct cause [of death] is the

nortriptyline. It was the one with the highest blood level. It was the one that has —

that is well known to cause cardiac arrhythmias in high dosing. It’s the one who’s

— who is — to which he was already having side effects, such as urinary retention

and possible worsening of a seizure disorder. It was the one that was changed by

two hospitals because they were concerned about the toxicity, but then it was

returned by the correctional facility. So it is the most likely offender, the most likely

to be toxic of the group. So I think it’s the most likely single most important drug,

and had it not been in the mix, I do not believe [Decedent] would have died that

day.

(Doc. No. 60-12 at 8).

“An action or inaction need not be the sole cause of an injury to constitute a proximate

cause, as there can be more than one proximate cause of an injury.” Warrick, 2006 WL 140720, at

*5. Thus, to show proximate cause, Plaintiff need establish only that Defendants’ actions were a

“substantial factor in producing” Decedent’s injury and were “at least one of the causes without

which the injury would not have occurred.” Hickerson, Nos.95-1890, 95-1982, at *4.

The Court concludes that Plaintiff has cited to sufficient evidence from which a jury could

find proximate causation as thus delineated. Plaintiff cited to evidence, such as the medical

examiner’s report and Dr. Allen’s testimony, from which a reasonable jury could conclude that

Defendants’ daily provision of 200mg of nortriptyline to Decedent caused toxic levels of the drug

to build up in his body and was ultimately a “substantial factor” in his death. Hickerson, Nos. 95-

13 In their Motion, Defendants argue that Plaintiff’s expert, Dr. Allen, is not a toxicologist and therefore

“does not have experience giving opinions on the causes of death as a result of multi-drug toxicity.” (Doc.

No. 46 at 13). However, this argument necessarily invites the Court to weigh the credibility of Plaintiff’s

expert, Dr. Allen, which is not appropriate on a motion for summary judgment. See Auto. Experts, Inc. v.

Kallberg, No. 3:19-CV-00982, 2021 WL 2260058, at *17 (M.D. Tenn. June 3, 2021) (citing Phillips v.

Cohen, 400 F.3d 388, 399 (6th Cir. 2005)).

1890, 95-1982, at *4. And “[u]nless the evidence is such that a reasonable person could reach only

one conclusion, proximate cause is a question of fact,” which should be left to the jury. Pierce v.

United States, 718 F.2d 825, 829 (6th Cir. 1983); see also Barefield v. Hillman, 475 F. Supp. 3d

794, 814 (M.D. Tenn. 2020) (“Causation is a jury question unless the uncontroverted facts and

inferences to be drawn from them make it so clear that all reasonable persons must agree on the

proper outcome.”), rev'd and remanded on other grounds, No. 20-6002, 2021 WL 3079693 (6th

Cir. July 21, 2021). Thus, Plaintiff's Eighth Amendment claim of deliberate indifference based on

Decedent’s nortriptyline prescription will survive Defendants’ Motion.

CONCLUSION

For the reasons discussed above, Defendants’ Motion for Summary Judgment will be

GRANTED in part and DENIED in part.

Specifically, with respect to Plaintiff's Eighth Amendment Claim based on the non-

provision of Keppra to Decedent, the Motion will be granted as to Defendant Leveck and denied

as to Defendant Walter. As to Plaintiffs other claim, i.e., the Eighth Amendment claim based on

the daily administration of 200mg nortriptyline to Decedent, the Motion will be denied as to both

Defendants.

An appropriate order will be entered.

CLL Rechmrdseorn

ELI RICHARDSON

UNITED STATES DISTRICT JUDGE