Jason Graham v. Cobb County, Georgia

FOURTH DIVISION

DOYLE, P. J.,

ANDREWS and BOGGS, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

(Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

http://www.gaappeals.us/rules/

July 11, 2012

In the Court of Appeals of Georgia

A12A0352. GRAHAM et. al. v. COBB COUNTY et. al. DO-016

DOYLE , Presiding Judge.

This case arises from the death of an inmate, Justin Graham, in the Cobb

County Jail. The decedent’s family, led by his twin brother, Jason Graham, filed

claims against several defendants, including Cobb County, Cobb County Sheriff Neil

Warren in his official and individual capacities, and Sandra Brocker, the medical

contract compliance administrator at the Cobb County Adult Detention Center, in her

official and individual capacities, Quest Medical, LLC, and WellStar Health Systems,

Inc. (“WellStar”). The trial court denied Graham’s motion to compel and granted in

part summary judgment against Graham, who now appeals.1 For the reasons that

follow, we affirm.

Summary judgment is proper when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law.

OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal

from a grant of summary judgment, and we view the evidence, and all

reasonable conclusions and inferences drawn from it, in the light most

favorable to the nonmovant.2

So viewed, the record establishes that the Cobb County Sheriff’s Office

(“CCSO”) contracted with WellStar to provide medical care to detainees at the Cobb

County Jail. The contract explicitly stated that “there [were] no third[-]party

beneficiaries to th[e] Agreement,” and CCSO did not intend to exercise control over

clinical decisions made by WellStar’s physicians, although WellStar was required to

follow policies set forth by CCSO. Brocker’s role was to manage and oversee the

medical facility at the jail.

1

The trial court denied summary judgment to various defendants who are not

parties to this appeal.

2

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684)

(1997).

2

On May 18, 2006, at 2:22 a.m., Justin was arrested for driving under the

influence of alcohol after registering blood alcohol levels of .274 and .283 on a breath

test. He was transported to the jail, and after being checked at the infirmary, he was

sent to general population.

Later that day, at about 5:05 p.m., Graham suffered a seizure as he was being

escorted by guards, who called a “Code Blue” and had him transported to the

infirmary. Justin spent the night in the infirmary, where he was treated with alcohol

detoxification and anti-seizure medications and found to have a high bilirubin level

of 3.9 mg.3 After a few days of treatment, Dr. Clarence Hendrix, a doctor in the

infirmary, deemed Justin’s treatment for alcohol withdrawal successful and sent him

back to the general population on May 22, with instructions to continue medication

and follow up in two weeks.

On May 23, Justin complained of back pain and constipation, and an infimary

nurse observed him to have a yellow tinge in his eyes and upper torso. Infirmary

doctors ordered blood work and a hepatitis panel. This lab work evinced a bilirubin

level of 17.0 mg, which could indicate liver damage and impending liver failure.

3

The reference interval for normal bilirubin levels is 0.1 to 1.2 mg.

3

On May 25, Justin made another request for medical treatment. Later that day,

guards called another “Code Blue” on him after he fainted, and he was taken by

wheelchair to the infirmary. During this visit, a nurse examined Justin but did not

contact a physician. On May 28, Justin showed some improvement, but his bilirubin

level was still elevated at 16.5 mg, he was still jaundiced, and he still had an elevated

pulse rate and other elevated lab values. Nevertheless, Justin was returned to general

population. Over the following three days, he continued to complain of constipation,

was given medication and vitamins, and had more blood tests scheduled.

On June 2, Graham had another blood test done, which returned a bilirubin

level of 27.5 mg, indicating progressing liver disease and possible failure. By June

5, doctors observed that Justin was yellow and his abdomen was swollen, and Dr.

Hendrix ordered him to be transported to the WellStar Cobb Hospital emergency

room. Justin was diagnosed at the hospital with end stage liver disease, and he was

placed on life support nine days later and, thereafter, died on July 7, 2006, at age 25

of complications from liver failure, including renal failure and myocardial infarction.

After hearings on various motions, the trial court granted summary judgment

as to Cobb County, Sheriff Warren, Brocker, and Quest Medical and denied Graham’s

motion to compel. This appeal followed.

4

1. Graham argues that the trial court erred by granting summary judgment to

Cobb County, Sheriff Warren, and Brocker. We disagree.

(a) Federal claims.

Graham’s complaint alleged that the above-listed defendants failed to provide

Justin with adequate medical care, thereby leading to his death in violation of the

Eighth Amendment of the U.S. Constitution.

Under 42 USC § 1983, civil liability is imposed upon one “who, under color

of any statute, ordinance, regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws. . . .”4 The first inquiry in any § 1983

suit, therefore, is whether the plaintiff has been deprived of a right “secured by the

Constitution and laws.”5

To state an Eighth Amendment violation for inadequate medical care, a

plaintiff must show that his medical treatment was “so grossly incompetent,

4

(Punctuation and emphasis omitted.) Baker v. McCollan, 443 U. S. 137, 140

(99 SC 2689, 61 LE2d 433) (1979).

5

Id.

5

inadequate, or excessive as to shock the conscience or be intolerable to fundamental

fairness or [that] the medical care is so inappropriate as to evidence intentional

maltreatment or a refusal to provide essential care.”6 Conduct that does not purport

to be punishment at all, such as medical care, must involve more than lack of due care

in order to be cruel and unusual punishment; it requires obduracy and wantonness,

not inadvertence or error in good faith, to violate the prohibitions of the Cruel and

Unusual Punishments Clause.7 Deliberate indifference to serious medical needs of

prisoners constitutes an Eighth Amendment violation, while an inadvertent failure to

provide adequate medical care does not.8 Moreover, this Court has stated that to show

an Eighth Amendment claim, “an inmate must show not only the infliction of cruel

and unusual punishment[,] but also must show a culpable state of mind on the part of

prison officials.” 9

6

Merritt v. Athens Clarke County, 233 Ga. App. 203, 204-205 (1) (504 SE2d

41) (1998), citing Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986).

7

See Alford v. Osei-Kwasi, 203 Ga. App. 716, 718-719 (2) (418 SE2d 79)

(1992), citing Whitley v. Albers, 475 U. S. 312, 319 (106 SC 1078, 89 LE2d 251)

(1986).

8

See Estelle v. Gamble, 429 U. S. 97 (97 SC 285, 50 LE2d 251) (1976).

9

(Punctuation and emphasis omitted.) Merritt, 233 Ga. App. at 208 (3).

6

Even if all of Graham’s allegations are taken to be true, they do not show that

Sheriff Warren and Brocker wantonly denied Justin medical care. Graham points to

several facts that could show a difference of opinion with the defendants concerning

the propriety of medical treatment rendered to Justin, such as a failure to send him to

the hospital when his bilirubin levels failed to stabilize. Nevertheless, nothing in

Graham’s allegations or in the record shows wantonness, deliberate indifference, or

a culpable state of mind on the part of Warren or Brocker.10 Indeed, in their brief,

Graham repeatedly complains of inadequate medical care; this Court has previously

stated that such a claim sounds in medical malpractice and is inadequate to maintain

a § 1983 action.11

In Epps, this Court required a showing of a denial or refusal of treatment in

order to show deliberate indifference.12 In granting summary judgment to the

10

Compare with Howard v. City of Columbus, 239 Ga. App. 399, 408 (1) (a)

(iii) (521 SE2d 51) (1999) (physical precedent only) (“The fact that ten to thirteen

inmates have died from diabetes while in custody between 1980 and 1992 is some

evidence of deliberate indifference to providing appropriate medical care and

treatment for diabetics.”).

11

See Epps v. Gwinnett County, 231 Ga. App. 664, 666, 668 (3) (499 SE2d

657) (1998).

12

See id. at 667 (3).

7

defendants, this Court noted that “the record shows that [the decedent] did in fact

receive medical care every time he completed a medical request form.”13 Likewise,

Graham concedes that Justin was diagnosed and treated, and the record further

indicates that he was treated and given medication whenever he fainted or complained

of back pain or constipation. . Consequently, the evidence does not support a finding

of deliberate indifference on the part of Sheriff Warren or Brocker.14

Furthermore, Graham’s contention that Sheriff Warren or Brocker breached his

duty by delegating supervisory authority to WellStar is incorrect. In Epps, this Court

recognized that a local government contracting with a third party to provide medical

care at a detention center “does not amount to an intentionally corrupt or

impermissible policy which would violate any citizen’s Eighth Amendment rights.” 15

Accordingly, the trial court properly granted summary judgment to Cobb

County, Sheriff Warren, and Brocker on the § 1983 claims.

(b) State law claims.

13

Id.

14

Compare with Howard, 239 Ga. App. at 406-407 (1) (a) (ii) (policy in jail

that doctors and nurses failed to provide sufficient care for budget reasons was

sufficient evidence to support §1983 claim against sheriff).

15

Epps, 231 Ga. App. at 669 (7) (a).

8

Graham also argues that the trial court erred by finding that defendants Cobb

County, Sheriff Warren, and Brocker are immune from his asserted state law tort and

contract claims. We disagree.

(i) Sovereign Immunity

A governmental unit having custody of an inmate has the responsibility to

furnish any needed medical and hospital attention.16 Nevertheless, “[a] county is not

liable to suit . . . unless made so by statute.”17 While OCGA § 42-5-2 (a) imposes

upon the county the duty and cost of medical care for inmates in its custody, it does

not waive sovereign immunity of the county or its agents or employees.18 Thus, the

trial court correctly determined that the state law claims made against Cobb County

and against Sheriff Warren and Brocker in their official capacities are barred.

(ii) Official Immunity

Under the doctrine of official, or qualified, immunity, law

enforcement officers may be personally liable for negligent actions

taken in the performance of ministerial functions, but are immune from

16

See OCGA § 42-5-2 (a).

17

OCGA § 36-1-4.

18

See Gish v. Thomas, 302 Ga. App. 854, 862-863 (4) (691 SE2d 900) (2010);

Howard, 239 Ga. App. at 410 (2) (a).

9

personal liability for discretionary acts taken within the scope of their

official authority and performed without wilfulness, malice, or

corruption. Stated succinctly, a public officer or employee may be

personally liable only for ministerial acts negligently performed or acts

performed with malice or an intent to injure. The rationale for this

immunity is to preserve the public employee’s independence of action

without fear of lawsuits and to prevent a review of his or her judgment

in hindsight.19

“A ministerial act is commonly one that is simple, absolute, and definite . . . and

requiring merely the execution of a specific duty. A discretionary act calls for the

exercise of personal deliberation and judgment . . . .”20 “The provision of adequate

medical attention is a ministerial act by the sheriff and his deputies and is not subject

to . . . official immunity. In contrast, the determination of what medical treatment to

provide is an act of discretion subject to official immunity.”21 Because the

19

(Punctuation and citation omitted.) Gish, 302 Ga. App. at 857 (1).

20

(Punctuation omitted.) Id. at 858 (1).

21

(Emphasis in original.) Howard, 239 Ga. App. at 411 (2) (b). See also

Murphy v. Bajjani, 282 Ga. 197, 198-200 (1) (647 SE2d 54) (2007) (explaining that

the statute at issue in that case (which statute, similar to this case, imposed a duty

upon certain county actors) was “a textbook example of the difference between

statutorily-mandated action and a ministerial act, as it clearly requires that action be

taken and sets forth parameters for the action to be taken, but the action required is

not simple, absolute, and definite, arising under conditions admitted or proved to

10

determination of how to provide adequate medical care to the prisoners at the jail

involved the use of discretion by Sheriff Warren and Brocker, and because Graham

has failed to allege any facts that establish that either party acted with wilfulness,

malice, or corruption, the trial court correctly determined that they are shielded from

personal liability by official immunity.

2. Further, Graham claims that the trial court erred by finding that Justin was

not a third-party beneficiary to the contract between the Cobb County Sheriff’s Office

and WellStar and consequently denying his breach of contract claims. We disagree.

“The beneficiary of a contract made between other parties for his benefit may

maintain an action against the promisor on the contract.”22 “In order for a third party

to have standing to enforce a contract[,] . . . it must clearly appear from the contract

that it was intended for his benefit. The mere fact that he would benefit from

performance of the agreement is not alone sufficient.” 23

exist, and requiring merely the execution of a specific duty that is the hallmark of a

ministerial duty”) (punctuation omitted).

22

OCGA § 9-2-20 (b).

23

(Punctuation and emphasis omitted.) Walls, Inc. v. Atlantic Realty Co., 186

Ga. App. 389, 391 (1) (367 SE2d 278) (1988) (holding that because the express terms

of a contract explicitly limited beneficiaries of the contract to the signatory parties,

the plaintiff could not allege contract claim as a third-party beneficiary).

11

Here, under the express terms of the contract, there are no third-party

beneficiaries to the agreement.24 . Accordingly, this enumeration is without merit.

3. Graham next argues that the trial court erred by granting summary judgment

as to his punitive damages claim for the alleged Eighth Amendment violations. Based

on our conclusions that the trial court correctly granted summary judgment to Cobb

County, Sheriff Warren, and Brocker in Divisions 1 and 2, this enumeration is

without merit.25

4. Finally, Graham argues that the trial court erred by denying his motion to

compel discovery. Nevertheless, because he has failed to establish through his

argument on appeal that the trial court abused its discretion by denying the motion,

we will not disturb this ruling.26

Judgment affirmed. Andrews and Boggs, JJ., concur.

24

See id. at 392 (1).

25

See Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 819 (3) (708

SE2d 672) (2011).

26

See Medical Staffing Network, Inc. v. Connors, 313 Ga. App. 645, 650 (2)

(722 SE2d 370) (2010).

12