The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT EARL COUNCIL,
Plaintiff,
v. Case No. 2:22-cv-08-CLM-HNJ
WEXFORD HEALTH SERVICES,
INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Robert Earl Council sues Defendant Wexford Health Services,
Inc. for deliberate indifference to his serious medical needs in violation of the
Eighth Amendment. The magistrate judge has entered a report (doc. 77),
recommending the court deny Wexford’s motion for summary judgment (doc.
69). Wexford objects to the magistrate judge’s report and recommendation.
(Doc. 78). For the reasons stated within, the court OVERRULES Wexford’s
objections (doc. 78).
A. The magistrate judge correctly viewed the evidence in the
light most favorable to Council.
Wexford first asserts that the magistrate judge erred in crediting
Council’s version of events over Wexford’s because, according to Wexford,
Council’s testimony is blatantly contradicted by his medical records. (Doc. 78,
pp. 2–9). The court disagrees. At summary judgment, the court must view the
evidence and draw all reasonable inferences in the light most favorable to the
non-movant. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th
Cir. 2013). Council, who was the non-moving party, presented sworn, specific
facts supporting his version of events. See id. at 1253 (stating specific facts
consist of “non-conclusory descriptions of specific, discrete facts of the who,
what, when, and where variety[,]” “describe the external world as [the non-
movant] observed it at the time[,]” and “are based on [the non-movant’s] first-
hand personal knowledge, not [the non-movant’s] subjective beliefs”). For
example, Council testified that nurses told him several times that they
couldn’t give him any pain medications because the doctor hadn’t prescribed
any pain medications for him. (Doc. 71-1, pp. 18–20). Council also said that
the only medication he received during his first 21 days at Kilby was
ibuprofen from Nurse Fuller who gave it to him for 3 to 4 days even though
“she wasn’t supposed to.” (Id., pp. 19–20).
“[C]ourts routinely and properly deny summary judgment on the basis
of a party’s sworn testimony.” Sears v. Roberts, 922 F.3d 1199, 1207 (11th
Cir. 2019). And though Wexford relies on the “blatantly contradicts the
record” exception of Scott v. Harris, 550 U.S. 372 (2007), the court finds that
this exception doesn’t apply here. “[T]here’s a big difference between the
record evidence presented in Scott and” the medical records “proffered here.”
Sears, 922 F.3d at 1208. As the Eleventh Circuit has explained, documentary
evidence, including medical records, that contradict a plaintiff’s testimony
just pit correctional officials’ word against the plaintiff’s word. See id. “That is
different from Scott where a videotape of the incident definitively established
what happened and what did not.” Id.; see also Sears v. Warden Okeechobee
Corr. Inst., 762 F. App’x 910, 916–17 (11th Cir. 2019) (“[T]he medical records
here are not the same as ‘incontrovertible’ video evidence that courts must
accept over contradictory sworn statements, since those records involve
people and all their attendant mental infirmities, biases, and limitations-in
their creation.”). So the magistrate judge properly applied the normal
summary judgment standard in evaluating Council’s claims.
A reasonable juror could also agree with Council’s assertion that his
medical records were inaccurate. (See Doc. 71-1, p. 21). Council reported
10/10 pain to nurses twice on February 1, 2021. (Doc. 69-3, pp. 21–22). It is
undisputed that Council received no pain medication until 6:48 pm on
February 2, 2021. (Doc. 69-1, p. 11). Despite not receiving any pain
medication, Council reportedly told Dr. Wilcotte Rahming at 11:32 am on
February 2, 2021, that his pain was only 3/10. (Doc. 69-3, pp. 28–30). A
reasonable juror could find it implausible that Council had such a reduced
pain level without receiving any medication to address his pain. As a result, a
juror could believe Council’s testimony over Council’s medical records.
Under Council’s version of events, Dr. Rahming refused to prescribe
Council with any pain medication from February 1, 2021 to February 22,
2022. As the magistrate judge reasoned, a jury could find that Dr. Rahming’s
failure to provide Council with any pain medication after he was discharged
from the hospital for life threatening injuries suffered during an assault
amounted to deliberate indifference. (Doc. 77, pp. 42–43). Plus, the
magistrate judge correctly explained that even if the court were to accept Dr.
Rahming’s version of events as true, a reasonable juror could still find
deliberate indifference. (See id., pp. 39–42). As the magistrate judge recounts
in his report, Council arrived at Kilby with a swollen-shut left eye, sideways
swelling on the back of his head, cracked collarbone, cracked ribs, and
extreme pain accompanied by damage to his vision. (Id., p. 36). But Dr.
Rahming admits that he did not prescribe Council with any pain medication
until he prescribed him 325 mg of Tylenol at 6:48 pm on February 2, which
was more than 24 hours after Council received his last dose of pain
medication at UAB. (Doc. 69-1, p. 11). “[A]n unexplained delay of hours in
treating a serious injury states a prima facie case of deliberate indifference.”
Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir. 1990). So even if a jury
credits Dr. Rahming’s version of events, it could find that his delay in
treating Council’s complaints of pain constituted deliberate indifference.
B. The magistrate judge applied the correct legal standards
for final policymaker liability.
Wexford next asserts that even if Dr. Rahming were deliberately
indifferent to Council’s serious medical needs, the magistrate judge erred in
recommending that the court find that Wexford could be held liable for Dr.
Rahming’s actions. “When a private entity . . . contracts with a county to
provide medical services to inmates, it performs a function traditionally
within the exclusive prerogative of the state.” Buckner v. Toro, 116 F.3d 450,
452 (11th Cir. 1997). So “the requirement of a municipal policy or custom” is
“an essential element of a § 1983 claim” against private contractors, like
Wexford. See id. at 453. A plaintiff can establish municipal liability in three
ways: (1) an express policy; (2) a widespread practice so permanent and well-
settled that it counts as a custom; or (3) the act or decision of an official with
final policy-making authority. Chabad Chayil, Inc. v. Sch. Bd. of Miami-Dade
Cnty., 48 F.4th 1222, 1229 (11th Cir. 2022).
1. Legal standard: Council does not contend that Wexford has an
official policy or a widespread practice of constitutional violations. Instead,
Council asserts that Dr. Rahming’s single decision to deny Council medical
treatment gives rise to municipal liability because Dr. Rahming had final
policymaking authority over medical decisions at Kilby. The determination
over whether an official has final policy-making authority “is a question of
law to be resolved by the trial court judge.” Mandel v. Doe, 888 F.2d 783, 793
(11th Cir. 1989). These principles guide the court’s analysis:
• Municipalities have section 1983 liability only for acts officially
sanctioned or ordered by the municipality.
• Only those municipal officials who have final policymaking
authority may subject the municipality to section 1983 liability
for their actions.
• The determination of whether or not a particular official has final
policymaking authority is governed by state law, including valid
local ordinances and regulations.
• The challenged action must have been taken pursuant to a policy
adopted by the official or officials responsible for making policy in
that particular area of the city’s business, as determined by state
law.
Chabad Chayil, Inc., 48 F.4th at 1229.
When the party at issue is a corporation contracting with the state, the
relevant state law for policymaking determinations are the contracts between
the corporation, the state, and the corporation’s employees. Howell v. Evans,
922 F.2d 712, 724 (11th Cir. 1991). And “a municipal official does not have
final policymaking authority over a particular subject matter when that
official’s decisions are subject to meaningful administrative review.” Morro v.
City of Birmingham, 117 F.3d 508, 514 (11th Cir. 1997) (collecting cases).
Applying these principles, the Eleventh Circuit has held that the
physician’s assistant at a county road prison whose medical decisions were
subject to no supervision or review was a final policymaker whose actions
could subject the County to municipal liability. See Mandel, 888 F.2d at 794.
In Mandel, the County argued that the district court erred in finding
that the County could be liable for an isolated incident of its physician
assistant’s refusal to x-ray or provide treatment for a prisoner’s injured leg.
Id. at 791. The Eleventh Circuit disagreed pointing out that “municipal
liability may attach to a single decision made by a municipal official if that
municipal official is the final policymaker for the municipality with respect to
the subject matter in question.” Id. at 793. And because the physician
assistant’s “medical decisions were subject to no supervision or review, except
to the extent that [the physician’s assistant] himself, in his sole and
unsupervised discretion, deemed appropriate,” the court found that the
district court correctly held that the physician’s assistant was “the sole and
final policymaker with respect to medical affairs at the road prison.” Id. at
794. As a result, the circuit court held that the County could be held liable for
the deliberate indifference of the physician’s assistant. See id. at 794–95.
2. Application: The record does not include the relevant contracts
between Wexford, the Alabama Department of Corrections, and Dr. Rahming.
But during his deposition, Kenneth Dover, the Vice-President of Operations
at Wexford, testified that Dr. Rahming “was the ultimate authority, health
care authority for patient care” at Kilby. (Doc. 69-4, p. 7). Dover also said that
Dr. Rahming had ultimate oversight over the nurse practitioners and that
how medical care was conducted at Kilby was at Dr. Rahming’s prerogative.
(Id., pp. 7–8).
In its objections, Wexford states that Dr. Rahming is not a final official
policymaker. (Doc. 78, p. 16). But Wexford cites no evidence that contradicts
Dover’s deposition testimony or supports this conclusory assertion. Although
inmates can apparently file grievances asserting that they are not receiving
appropriate medical care, the record includes no evidence about the policies
or procedures surrounding these grievances and who reviews them. (Doc. 77,
pp. 31–32, n.29). So based on Dover’s deposition testimony and the record
before the court, the court agrees with the magistrate judge that Dr.
Rahming had unfettered discretion over medical decisions at Kilby. Under
Mandel, that makes Dr. Rahming the official with final policymaking
authority.
Wexford, however, insists that Council cannot establish municipal
liability based on a single incident of allegedly unconstitutional activity even
if the constitutional deprivation were allegedly caused by a final policymaker.
As explained above, the Eleventh Circuit has squarely rejected this
argument. And in recent years, the circuit court has continued to state that
one way to establish municipal liability is to show that a single decision by an
official policymaker violated the plaintiffs constitutional rights. Chabad
Chayil, Inc., 48 F.4th at 1229. None of the cases Wexford cites says anything
to the contrary. Instead, these cases establish only that a plaintiff cannot rely
on his experience alone to show that a municipality had a widespread
practice so permanent and well-settled that it counts as a custom. See, e.g.,
Craig v. Floyd Cnty., 643 F.3d 1306, 1310-12 (11th Cir. 2011). “The instant
case, however, concerns altogether different methods of proving custom or
policy: the delegation of final policymaking authority from one official to
another.” Mandel, 888 F.2d at 791. Because the record before the court
establishes that Dr. Rahming had final policymaking authority over medical
decisions at Kilby, Wexford can be held liable for his alleged deliberate
indifference. See id. at 794.
In sum, having considered the record, the magistrate judge’s report,
and Wexford’s objections, the court ADOPTS the magistrate judge’s report
and ACCEPTS the recommendation. Consistent with that recommendation,
the court DENIES Wexford’s motion for summary judgment (doc. 69). The
court will enter a separate order setting this case for trial.
Done and Ordered on September 10, 2024.
nt MAZE
UNITED STATES DISTRICT JUDGE