Petition for Writ of Certiorari — Shelby County Sheriff v. Leach

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\1)89+1507 | Supreme Court, U.S.

FILED

No. MAR 26 1990

JOSEPH F. SAPNIOL, JR.

In The CLERK

Supreme Court of the United States

October Term, 1989

SHELBY COUNTY SHERIFF AND

MAYOR OF SHELBY COUNTY,

TENNESSEE,

Petitioners,

LARRY LEACH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Peter M. BRown

Attorney for Petitioners

Suite 414

5384 Poplar Ave.

Memphis, TN 38119

(901) 682-3775

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether a municipality, in an official capacity suit

under 42 U.S.C. 1983, can be held liable for deliberate

indifference to the medica' needs of a prisoner when it

should have known of an unconstitutional custom or

policy without any governmental officials having actual

or constructive knowledge of the abuse.

Whether a municipality, in an official capacity suit

under 42 U.S.C. 1983, can be held liable for its failure to

investigate and punish, and hence ratify, an unconstitu-

tional policy or custom when its officials had no actual or

constructive knowledge of the acts that comprised the

policy or custom, and when those acts were done by

persons not under the control of, or employed by the

municipality.

TABLE OF CONTENTS

Page

CIR Pere POOL TOD oo nes ceassseccscavusenun i

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CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED

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TABLE OF AUTHORITIES

Page

Cases

genes v. 5.71. Kress, 396 US. 144 (1970)............. 8

Brandon v. Allen, 516 F.Supp. 1355 (W.D. Tenn.

1981), aff'd in part, rev’d in part, 719 F.2d 151

(6th Cir. 1983), rev’d on other grounds sub nom,

Brandon v. Holt, 469 U.S. 464 (1985)........ ivi 7, 10

City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985) ...6, 7

Daniels v. Williams, 106 S.Ct. 662 (1986) .............. 7

Jones v. City of Chicago, 787 F.2d 200 (7th Cir. 1986) ..... 6

Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977)............ 7

Leach v. Shelby County Sheriff, 891 F.2d 1241 (6th

EE Sr ae ee ee 0

Marchese v. Lucas, 758 F.2d 181 (6th Cir.), cert.

nr Seat We CEO). ....... 2... ... 2. 10

Monell v. Dept. of Social Services, 436 U.S. 658

I 6, 8

Pembaur v. City of Cincinnati, 465 U.S. 469 (1986)..... 7

Polk County v. Dodson, 454 U.S. 312 (1981)............ 6

mezzo ©. Geome, 425 US. 362 (1976) ................... 7

Spell v. McDaniel, 824 F.2d 1380 (4th Cir.), cert.

denied sub nom, City of Fayetteville v. Spell, 108

I SU vase ees ssce ets ee esses 8, 9

uae we een, @ey LS. 42 (1988) ................... 11

Willis v. Barksdale, 625 F.Supp. 411 (W.D. Tenn.

EEE 1]

Zanghi v. Village of Old Brookville, 752 F.2d 42 (2nd

Cir. 1985)

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND OTHER AUTHORITIES

(Se eer eee | ere cnt REM ESS Le 2

Se Aas reac esc er kc Cee ees y ao

United States Constitution,

PP I eas code cece cb wkiihdns a teebicl: 2

Restatement, Agency Second,

Fi. SOR eR a Mee ALCO OCR Sous Ae yl mV REN SA, Jy 10

Section 94

No.

In The

Supreme Court of the United States

October Term, 1989

SHELBY COUNTY SHERIFF AND

MAYOR OF SHELBY COUNTY,

TENNESSEE,

Petitioners,

LARRY LEACH,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners, the Shelby County Sheriff and the Mayor

of Shelby County, Tennessee, respectfully pray that a Writ

of Certiorari issue to review the Decision and Opinion of

the United States Court of Appeals for the Sixth Circuit

filed on December 20, 1989.

Ly.

OPINIONS BELOW

The decision of the United States District Court for

the Western District of Tennessee, Western Division, is

not reported. It was filed on September 23, 1987. The

Memorandum and Order Granting Judgment to Plaintiff

appears at Appendix A. The decision of the United States

Court of Appeals for the Sixth Circuit was entered on

December 20, 1989. It is reported at 891 F.2d 1241 (6th Cir.

1989), and appears at Appendix B. An Order Denying a

Rehearing En Banc was filed on February 8, 1990. This

Order has not been reported. It appears at Appendix C.

JURISDICTION

The judgment of the Court of Appeals sought to be

reviewed was entered on December 20, 1989. An order

denying a rehearing en banc was entered on February 8,

1990. The jurisdiction of this Court is invoked under 28

U.S.C. 12540 |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment to the Constitution of the

United States provides:

“Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.”

42 U.S.C. 1983 provides, in pertinent part:

“Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage, of

any State or Territory or the District of Colum-

bia, subjects, or causes to be subjected, any citi-

zen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or other immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for re-

dress... .”

STATEMENT OF THE CASE

In 1982, Larry Leach was shot by his victim while

committing a rape. He was rendered paralyzed from the

chest down. On July 30, 1983, he was found guilty of

aggravated rape and kidnapping, and immediately taken

to the Shelby County, Tennessee, jail to await sentencing.

Infra, at la-2a. A complaint under 42 U.S.C. 1983, was

filed in the United States District Court for the Western

District of Tennessee complaining that Leach’s treatment

while in the She'by County ‘ail violated his ig. th

Amendment right to be free fiom cruei and unusual

punishment. The Shelby County Sheriff and the Mayor of

Shelby County were named as defendants, in their official

capacities only. The matter was tried before the Honor-

able Odell Horton, Chief Judge, without a jury.

The trial court found that Leach’s treatment during

his first ten days in the jail was deplorable. During that

time, his mother contacted the Tennessee Department of

Human Services to complain about her son’s treatment.

Infra, at 4a, 9a. William Sellari, an employee of the De-

partment, made an investigation, including an on site

inspection with interviews. He found and prepared a

report finding that Leach and the other inmates in his

living area had been recently bathed, that the living area

was Clean, that Leach had no bed sores or ulcers on his

body, and that Leach had not complained of any mistreat-

ment. Infra, at 24a. After this visit, Leach received

humane treatment. When oe the jail some weeks later,

however, there was evidence that he had sores on his

ankles and buttocks. Infra, at 44A.

The treatment of prisoners in the jai’ was_.rdertaken

by the medical staff. These persons were not er ployed by

or under the control of the Shelby County Sheriff or

Mayor. They were there as a result of a contractual ar-

rangement with a local hospital to provide medical care

and treatment for prisoners in the jail. Leach’s own ac-

count involved only the jail medical staff, not the jail

security staff under the control of the Sheriff. Infra, at

16A-20A.

There was no evidence that the Sheriff or Mayor

knew about Leach’s treatment or in any way supported

the medical staff’s treatment of him. Infra, at 12B-13B.

The District Court found that “there was evidence of

numerous instances of abuse of paraplegic or physically

infirm inmates . . . (A medical corpsman) testified that the

same type of treatment provided (Leach) . . . was pro-

vided to at least 14 other paraplegics since the new jail

was opened.” Infra, at 51A. The facts do not support this

finding. The medical corpsmen indicated that up to sixty

paraplegic and quadraplegic prisoners had been in the

jail and none had filed any complaints. No proof of any

other complaints was presented. See testimony of medical

corpsmen Infra, at 13A-15A, 23A, 25A-27A.

The District Court found that there was deliberate

indifference to Leach’s serious medical needs and ruled

his Eighth Amendment right to be free from cruel and

unusual punishment had been violated. Deliberate indif-

ference was found because the medical corpsmen did not

carry out the orders of a doctor for Leach’s care. Infra, at

49A. He was awarded $10,000.00 damages. Infra, at 53A.

The Court made no specific finding that a custom or

policy of the Mayor or Sheriff was responsible for Leach’s

treatment. Infra, at 10B. Rather, the Court based liability

on the reasoning set out in the District Court’s opinion in

Brandon v. Allen, 516 F.Supp. 1355, 1361 (W.D. Tenn. 1981),

aff’d in part and rev'd in part, 719 F.2d 151 (6th Cir. 1983),

rev'd on other grounds sub nom, Brandon v. Holt, 469 U.S.

464 (1985). It held that “a supervisor employee, such as

the Sheriff, can be liable for the actions of a subordinate

when the supervisor knew, or should have known, of the

danger of a subordinate depriving an individual of a

constitutional right.” (Emphasis added) Infra, at 50A.

The Sixth Circuit affirmed. Leach v. Shelby County

Sheriff, 891 F.2d 1241 (6th Cir. 1989). It held that in an

official capacity suit, a suit against local government offi-

cials was actually an action against the local government.

Plaintiff must prove some “policy or custom so attributa-

ble to the municipality as to render it responsible for

payment of the damages found.” The Court first held that

the Sheriff should have known of the widespread viola-

tions involving treatment of paraplegics, even though he

had no actual knowledge of their treatment. The 14 ap-

parent incidents of paraplegic mistreatment were held

sufficient to create a custom or policy, and hence liability.

Next, the Court held that the failure of the Sheriff to

investigate and punish any wrongdoers amounted to a

“ratification of the illegal acts.” Finally, the Court held

that the contracting out of medical services did not re-

lieve the Sheriff of liability for the medical treatment of

prisoners in his jail.

REASONS FOR GRANTING THE PETITION

Beginning with Monell v. Dept. of Social Services, 436

U.S. 658 (1978), this Court has defined the modern pa-

rameters of municipal liability under 42 U.S.C. 1983. Tak-

ing the express langauge of 1983, Monell held could be no

municipal liability on the basis of respondeat superior, but

rather only for a constitutional deprivation pursuant to

governmental policy or custom.

. a local government may not be sued

under 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when execu-

tion of a government’s policy or custom, wheth-

er made by its lawmakers or by those whose

edicts or acts may fairly be said to represent

official policy, inflicts the injury that the govern-

ment as an entity is responsible under 1983.”

Id. at 694. Not only must a custom or policy be shown,

there must be an affirmative link between them and the

constitutional deprivation, City of Oklahoma City v. Tuttle,

471 U.S. 808, 823 (1985), such that they are the “moving

force” of the deprivation. Polk County v. Dodson, 454 U.S.

312, 326 (1981).

The affirmative link requirement in Tuttle, implies

that the municipality have some knowledge of the offend-

ing custom or policy and its consequences. Only then

could the municipality be shown to have acquiesced in or

implicitly approved the custom. Jones v. City of Chicago,

787 F.2d 200, 204 (7th Cir. 1986). The instant case held a

municipality liable without knowledge of the offending

policy or custom. This holding clearly goes beyond previ-

ous rulings on municipal liability and flies in the face of

reason.

Proof of a single incident is not sufficient to show a

custom. Tuttle, supra, at 821. If however, the single viola-

tion is the product of an unconstitutional custom or poli-

cy, liability may be shown. Pembaur v. City of Cincinnati,

465 U.S. 469, 480-81 (1986). Proof of fault must be proved

beyond mere negligence. See, Daniels v. Williams, 106 S.Ct.

662 (1986). The instant case showed only how Leach was

treated. While reference was made to 14 other para-

plegics, no proof of complaints by any of those persons

was presented; hence, there was proof of only one inci-

dent.

This Court has never addressed the specific issue of

whether a policy or custom can be shown based on the

inaction of the government when it should have known

of widespread unconstitutional conduct, without a show-

ing of actual or constructive knowledge of the abuse. See,

Brandon v. Holt, 469 U.S. at 473, fn. 25; Rizzo v. Goode, 423

U.S. 362 (1976). Such a standard bespeaks negligence, not

a constitutional deprivation.

The Court’s holding is more typical of negligent re-

tention of an employee in an action against supervisory

personnel in their individual capacities. See, i.e., Kostka v.

Hogg, 560 F.2d 37 (1st Cir. 1977). “Mere negligence in

permitting the continued employment of personnel, how-

ever, does not rise to the level of ‘action pursuant to

official municipal policy of some nature (which) caused a

constitutional tort.’ ” (Citations omitted) Zanghi v. Village

of Old Brookville, 752 F.2d 42, 45 (2nd Cir. 1985).

“There is no evidence that the Sheriff actu-

ally knew or supported the corpsmen’s actions

toward leach. Therefore, this is a situation

where the Sheriff should have known and acted.

Such a requirement implies an affirmative duty

to know and act.” (Emphasis added)

Leach v. Sheriff, supra, at 1247.

A custom or policy can be proved if it can be shown

that the unconstitutional practices were widespread and

persistent. Monell, supra, at 691; Adickes v. S.H. Kress, 398

U.S. 144, 167-68 (1970). This implies more than merely

showing the existence of a series of events; knowledge on

the part of the municipality must also be shown. The

Sixth Circuit failed to find that the Sheriff had any knowl-

edge of Leach’s treatment or of past alleged mistreatment

of paraplegics. Absent such a finding, the Court imposed

an onerous burden on the municipality and one that was

beyond previous holdings of this court.

The Leach court stated,

“The policy involved here is one of deliber-

ate indifference to the medical needs of para-

plegics and physically incapacitated prisoners in

the Shelby County Jail. The manifestation of this

policy here has two aspects: first, the Sheriff

failed to supervise his employees adequately

when he knew or should have known of the

danger that inmates such as Leach were likely to

receive inadequate care and second, the Sheriff

failed to investigate this incident and punish

those responsible, in effect ratifying their ac-

tions.”

Leach, supra, at 1247. The distinction between these two

“policies” was noted in Spell v. McDaniel, 824 F.2d 1380,

1389 (4th Cir.), cert. denied sub nom, City of Fayetteville v.

Spell, 108 S.Ct. 725 (1987). As to the first, the Court said,

..., the specific deficiency or deficiencies

must be such as to make the specific violation

‘almost bound to happen, sooner or later,’ rather

than merely ‘likely to happen in the long run.’ ”

(citations omitted).

824 F.2d at 1390. As to the second policy, the Court stated,

“Municipal fault for allowing such a devel-

oped ‘custom or usage’ to continue requires (1)

actual or constructive knowledge of its existence by

responsible policymakers, and (2) their failure, as a

matter of specific intent or deliberate indif-

ference, thereafter to correct or stop the prac-

tices. Constructive knowledge may be inferred

from the widespread extent of the practice, gen-

eral knowledge of their existence, manifest op-

portunities and official duty of responsible

policymakers to be informed, or combinations of

these .

“A sufficiently close causal link between

such a known but uncorrected custom or usage and

a specific violation is established if occurrence

of the specific violation was made reasonably

probable by permitted continuation of the cus-

tom.” (Emphasis added)

Id. at 1391.

In Leach, the Sixth Circuit found a policy and custom

based upon both these theories, but without making a

finding that the Sheriff had actual knowledge of the

wrong. While a corpsman may have testified about 14

other incidents of mistreatment of paraplegics, Leach, su-

pra, at 1247, there was no evidence that any of those

persons filed complaints or otherwise set in motion a

series of events that would lead to a finding that the

Sheriff had constructive notice of paraplegic mistreat-

ment. In effect, the Sixth Circuit held the Sheriff, and

hence the County, liable for failing to supervise and

condoning actions about which he had no actual or con-

structive knowledge. Not even the event complained of

was shown to have been known by the Sheriff. If the

Sheriff had received any indication of Leach’s treatment,

it would have come from the Department of Human

Services investigator, who gave Leach a clean bill of

health and reported no complaints of mistreatment by

Leach or his cellmates.

There is no question but that the Sixth Circuit’s deci-

sion was based on prior knowledge. The District Court

decision in Brandon v. Allen, supra, was based on prior

complaints received by the police and testimony of the

general reputation of the police officer. On the ratification

issue, the court relied upon Marchese v. Lucas, 758 F.2d 181

(6th Cir.), cert denied, 480 U.S. 916 (1987). Knowledge of

a wrong, and a failure to act in face of that knowledge,

was the basis of Marchese. A judge ordered the Sheriff to

investigate complaints a prisoner made that he was beat-

en up. Condonation was implied when the Sheriff, in face

of the court’s order, failed to act or take corrective or

disciplinary action.

No finding of prior knowledge under either theory is

present in this case. The “should have known” standard

adopted by the Sixth Circuit is clearly a negligence stan-

dard, not a constitutional one.

Ratification is a concept under the law of agency. It is

an affirmation of a previous act by one acting on behalf of

a principal. There cannot be an affirmation, if the princi-

pal is ignorant of the facts involved in the original trans-

action. If one is unaware of the facts, he cannot affirm.

Restatement, Agency 2d, Sec. 91. While it is possible to

eR Oia Saati tre

affirm without acting. See, Restatement, Agency 2d, Sec.

94, comment a., when inaction acts a ratification, (here

must be some knowledge on the part of the principal of

the wrong, and a manifestation of approval through a

failure to act.

The Sixth Circuit found the Sheriff liable even though

the treatment of Leach was by the jail medical staff, who

were not employed by or under the control of the Sheriff.

Leach, supra, at 1248-50. Under Tennessee law, See, Willis

v. Barksdale, 625 F.Supp. 411 (W.D. Tenn. 1985), and under

this Court’s recent decision in West v. Atkins, 487 U.S. 42

(1988), it was held that contracting out the medical func-

tion did not relieve the Sheriff of his obligation to provide

at least minimal constitutional standards. The constitu-

tional infirmity was the deliberate indifference to Leach’s

medical needs. The proof was that Leach should have

been cared for by the medical staff, as per the doctor’s

orders. The Sheriff had no knowledge of his treatment,

nor was it shown that he had knowledge of other defi-

ciencies in the care of paraplegics generally. The perpetra-

tors of the wrongs were the medical staff, who were not

under the control of or employed by the Sheriff. The

proof is therefore totally devoid any causal connection

between the medics’ actions or inactions, and how the

Sheriff was the “moving force” of this “policy.” Supra, at

—_

CONCLUSION

This Court should grant the petition because the

Court of Appeals has decided an important issue that

goes beyond the holdings of this Court and is in conflict

with decisions of other federal appeals courts. Munici-

palities require a clear statement of the basis of their

liability so they can be guided in the management of their

affairs.

Respectfully submitted,

Peter M. Brown

Attorney for Shelby County Sheriff

and Mayor of Shelby County,

Petitioners.

Suite 414

5384 Poplar Ave.

Memphis, TN 38119

(901) 682-3775

» tat ieemntiehinetintanehietin stead ee oe

TABLE OF CONTENTS

APPENDIX A -—- Decision in the United States

Court for the Western District of Tennessee....... 1A

APPENDIX B —- Decision in the United States

Court of Appeals for the Sixth Circuit............ 1B

APPENDIX C - Order Denying Petition for Re-

hearing in the United States Court of Appeals

Ee 1C

errr

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

Sheriff of Shelby County,

and BILL MORRIS, as Mayor

of Shelby County,

LARRY M. LEACH 7

Plaintiff, :

V. 5

* CASE NO.

EUGENE BARKSDALE, as 7 83-2745 H

Defendants.

MEMORANDUM AND ORDER

GRANTING JUDGMENT TO PLAINTIFF

(Filed Sep 23, 1987)

This lawsuit is one in which a state prisoner, Larry.

M. Leach, plaintiff, charges officials in the Shelby County

Jail, Memphis, Tennessee, were deliberately indifferent to

his serious medical needs while he was confined in that

jail from July 30, 1983, to September 11, 1983.

Larry Leach was convicted in the Criminal Court of

Shelby County, Tennessee, of the offenses of aggravated

kidnapping and aggravated rape. He was shot by his

female rape victim resulting in the paralysis he has suf-

fered since October 21, 1982. He is serving an eighty-

three (83) year sentence in the prison hospital at the State

Penitentiary in Nashville, Tennessee. In addition to the

kidnapping and rape convictions, he has also been con-

victed of the offense of attempt to commit a felony. It is

therefore obvious Mr. Leach has been convicted of despi-

cable and deplorable crimes.

Evidence presented to the Court during the trial

shows that Mr. Leach is a paraplegic who is paralyzed

from the nipples of his body down. He has severe mo-

bility problems. His knees stiffen or “freeze up” on him.

Without proper care, he is prone to decubitus ulcers

which are commonly called bed sores. He is unable to

handle many of his basic body functions.

Contentions of Plaintiff:

In general, plaintiff contends that while incarcerated

in the Shelby County Jail, his serious medical needs were

not met. Due to the gross negligence and deliberate indif-

ference of the defendants, Leach claims he was deprived

of the right to due process of law under the Fourteenth

Amendment and suffered cruel and unusual punishment

in violation of the Eighth Amendment to the Constitution

of the United States.

Larry M. Leach claims officials at the Shelby County

Jail were deliberately indifferent to his serious medical

needs during the time he was housed in that facility from

July 30, 1983, to September 11, 1983. He claims he was

denied basic essentials to provide for his serious medical

needs. Mr. Leach is a paraplegic. He is paralyzed from the

nipples of his body down. He has the use of his arms. He

has severe mobility problems. His knees stiffen or “freeze

up” on him. He is unable to handle many basic bodily

functions. |

eee

He is extremely prone to life threatening bed sores or

decubitus ulcers as he is unable to move his body at

various pressure points. All medical care in the Shelby

County Jail is under the direction of Mr. John Bunso, who

is not a physician or nurse, but an ably trained Emergen-

cy Medical Technician. Mr. Leach saw a physician only on

one occasion during his confinement and that was when

he arrived at the jail. At no other time did he see a

physician while he was incarcerated in the Shelby County

Jail. |

When he was carried to the jail, he was placed in a

cell on a cot about two feet high. The cot did not have a

proper mattress. Because he must turn in bed to prevent

bed sores, an appropriate bed is a hospital or king or

queen size bed. A jail cot was not an appropriate bed for

a paraplegic. Leach must make transfers back and forth

from bed to chair. It is very difficult going back and forth

from a wheel chair to a bed.

While in jail, Mr. Leach was assisted by inmates. The

first ten days he was in jail, Leach was on a mattress

about 1'/2" thick. Its vinyl covering caused pressure prob-

lems which lead to bed sores.

Mr. Leach did not receive a bath until he had been in

the jail nine or ten days. This lack of a bath aids the

breakdown of skin and causes bed sores. Mr. Leach could

not use the tub in his cell. Mr. Leach must evacuate his

bowels every two days. He could not get on a commode.

Though he had bowel training, he did not have supposi-

tories. He had problems with catheters. He was constant-

ly wet in his own urine during his stay in the jail. There

was another prisoner in his cell who had to lie in his own

body excretions unattended in the jail.

After Mr. Leach had been in the jail about ten days,

everything changed. This change in his level of care

occurred because a complaint had been made by his

parents to the Tennessee Department of Human Services.

After about ten days, the personal care of Mr. Leach

became the responsibility of Howard McClatcher, an in-

mate, who provided care as well as he could. Leaci

developed bed sores on his ankles, heel, and sacul area.

He had undergone surgery twice for bed sores.

The attitude in the jail was that jail personnel did not

want him in the jail. He was ignored and the overall

conduct of jail personnel responsible for his medical care

was shocking.

Contentions of Defendants

In general, the defendants contend Leach was pro-

vided adequate and sufficient medical care while incar-

cerated in the Shelby County Jail and deny that his

constitutional rights were violated. Defendants contend

the Shelby County Jail is only a pretrial detention center

and Leach was moved out of that jail as quickly as he was

sentenced.

Defendants contend deliberate indifference to serious

medical needs is a relative term. Mr. Leach was not an

acutely ill person. He was disabled as a result of a gun

shot wound. He did not have daily needs and did not

require extensive or intensive treatment. Leach went

through a program of rehabilitation and achieved a high

level of independence. He could take care of many of his

own needs. He chose not to do so. He was given the level

of medical care his condition required.

Issue Before the Court:

The issue before the Court is whether the defendants

were deliberately indifferent to the serious medical needs

of Larry Leach, a convicted rapist and paraplegic, while

he was confined in the Shelby County Jail from July 30,

1983, to September 11, 1983. In the pretrial order, the

parties stated the issue in a slightly different way:

Whether the actions of the defendants were

gross negligence or deliberate indifference to

the serious medical needs of plaintiff.

If the Court so finds, then:

What was the nature and extent of damages

to the plaintiff caused by the actions of the

defendants.

Larry Leach claims the defendants were grossly negligent

and deliberately indifferent to his serious medical needs.

The defendants deny they were grossly negligent and

deliberately indifferent to the serious medical needs of

Leach.

The plaintiff and defendants agreed to the following

stipulations.

1. That plaintiff suffered a gunshot wound on

October 21, 1982, which transected his spinal

cord at the level of T-3.

2. That plaintiff since October 21, 1982, has

been a paraplegic from the nipple level of his

chest down.

3. That since October 21, 1982, plaintiff has had

no sensory or motor function in his body below

about nipple level of his chest.

4. That during plaintiff’s hospital stays prior to

incarceration in the Shelby County Correctional

Center (sic), plaintiff developed a severe scar-

odecubitus ulcer.

5. That plaintiff was incarcerated at the Mem-

phis, Shelby County Correctional Center (sic)

from July 30, 1983, to September 11, 1983.

Pid

6. That plaintiff's family presented medical

supplies for plaintiff's use to jail authorities on

July 31, 1983.

7. That plaintiff was denied the use of a “trans-

fer board” from July 30, 1983, to September 11,

1983.

The overwhelming preponderance of the evidence

leads the Court to find and conclude that during the first

ten or eleven days of Leach’s confinement in the Shelby

County Jail, officials in that jail charged with providing

medical care to Leach were grossly negligent and deliber-

ately indifferent to Leach’s serious medical needs. The

Supreme Court of the United States has ruled that a

person convicted of a crime is not “wholly stripped of

constitutional protections when he is imprisoned for

crime. There is no iron curtain drawn between the Consti-

tution and the prisons of this country.” Wolff v. McDon-

935 (1974); Mechum v. Fano, 427 U.S. 215, 224-225, 96S. Ct.

2532, 2538, 49 L.Ed.2d 451 (1975). Borrowing the words of

Justice Frankfurter, from another context, the conduct of

jail officials toward the paraplegic, Larry Leach,

. more than offended some fastidious squeamishness

or private sentimentalism ... ” “This is conduct that

a ye ee

shocks the conscience.” Rochin v. California, 342 U.S. 165,

172 (1951). The Court will enter an appropriate judgment

in favor of plaintiff Leach and against the defendants

based upon the Court’s finding that the preponderance of

the evidence shows the defendants were, during the first

ten days of Leach’s confinement, deliberately indifferent

to his obviously serious medical needs.

Frances Leach, mother of Larry Leach, testified her son

is a paraplegic. He entered Baptist Memorial Hospital

Rehabilitation Center, Memphis, Tennessee, in March,

1983, where he remained several months for treatment.

During that time, she visited him regularly, at least five

times weekly and observed his treatment. She read books

pertaining to his treatment which were provided to her

by the Center.

He underwent surgery at St. Francis Hospital, Mem-

phis, Tennessee, for a decubitus ulcer located at the base

of his spine. After the surgery, he was moved to her home

where he remained until about May 25, 1983. At that

time, he was admitted to Baptist Hospital in Memphis,

Tennessee, for a second surgery to treat the reoccurrence

of the decubitus ulcer. From March of 1983 until May of

1983, he had a decubitus ulcer at the base of his spine that

would not heal. Rehabilitation center personnel taught

Mrs. Leach how to treat that type of ulcer. At the same

time, Leach’s hips and knees were getting stiffer. Reha-

bilitation personnel showed her how to prevent that from

happening.

Leach underwent the second surgery on or about

May 25, 1983, and was discharged from Baptist Hospital

to her home on June 6, 1983. The surgery was, she said,

fine, though he was weak. He could sit up about twenty

minutes at a time. She said they used a transfer board, a

highly polished board which allows a paraplegic to be

moved about by sliding. She said Leach was on his stom-

ach a lot. He had to turn often to prevent bed sores. As he

gained strength, he could sit up about two hours at a

time.

From June 6, 1983, until he entered the jail on July 30,

1983, she assisted her son with bladder and bowel train-

ing and in the use of the transfer board. Bowel assistance

required his being turned on his left side, placing two

pads under him and one on top of him. He was given five

or six rubber gloves, lubricant ointment and supposito-

ries. He put on a glove and used his hands to evacuate

his bowels. After this process was completed, which re-

quired about forty-five minutes, he was bathed and dried

by Mrs. Leach. This procedure was followed every other

night from June 6, 1983, to July 30, 1983.

Bladder protocol required the use of a catheter which

was inserted into the bladder. This required the use of a

tray, lubricant jelly, forceps and rubber tube. Leach clean-

ed himself with a sterile pad and after following a pro-

cedure, inserted the catheter, with tube attached into his

bladder. Urine flowed through the tube into a plastic tray.

From June 6, 1983, to July 30, 1983, this procedure was

followed twice daily. Leach wore a catheter during the

day and urine flowed into a bag attached to his leg. At

night, a larger bag, called a bed bag, was attached to his

bed.

For bathing, Leach used a portable hand-held show-

er. He shaved his upper body. His father washed his back

and lower extremities. He was able to dress himself from

the top, such as put ona shirt. He could not reach his feet

and thus could not dress at that level.

When he entered the Shelby County Jail, on July 30,

1983, he had no bed sores. The surgical scar was visible.

Mr. and Mrs. Leach checked their son at night for bed

sores, for pressure points and for spots indicating pres-

sure. When such spots were seen, they were massaged

and Leach was turned.

To aid sleeping, pillows were used at night under

various pressure points, two at the head, one at the chest,

the hips, the knees, and one under and one between his

feet.

When the time approached for Leach to enter the

Shelby County Jail, Mrs. Leach talked with a man at the

jail by phone identified as Ronald Hester. She said this

person told her she could bring the various supplies to

the jail needed by Leach. She said he told her they did not

have those supplies in the jail and those she brought

would be used until supplies could be obtained. On Au-

gust 8 or 9, 1983, she complained to the Tennessee De-

partment of Human Services about the lack of care her

son was receiving in the Shelby County Jail.

Alvin E. Leach, father of Larry Leach, testified, that

from March of 1983, to July 30, 1983, his son, Larry Leach,

lived in the family home. He is a paraplegic. He assisted

with the care of his son in his home. He obtained special

medical chairs for his son’s use as he could not get in and

out of the bath tub otherwise. One chair fit into the tub

and had suction caps on the legs to hold it in place. He

also had a commode chair which was placed over the

10A

commode. With the use of the transfer board, Leach could

be moved into the shower chair and could use a hand

shower. He washed his lower back and lower extremities.

He said Leach’s decubitus ulcer had healed, even though

it was tender. There was only the surgical scar.

He saw his son on Saturday, July 30, 1983, about 4:30

p-m., when he entered the Shelby County Jail. He had a

transfer board. He saw his son the following day, July 31,

1983, when he carried medical supplies to the jail, includ-

ing medications, catheter materials, rubber gloves, urine

bags, petroleum jelly and other items. To his surprise, the

officer on duty permitted him to visit with his son.

On August 1, 1983, he carried various items of

clothing to the jail for the use of his son, such as under-

shirts, shorts and socks. He next saw his son at the jail on

August 6, 1983. He said he looked like he was feeling all

right. He did not look sick but he did not look too clean.

His clothing was not fresh. A yellow stain was on his

socks, which appeared to him to be urine. He did not

appear to have had a bath.

Beverly Lewellen Burress, sister of Larry Leach, testi-

fied she visited her parent’s home almost daily. Before

Leach entered the jail on July 30, 1983, he was basically in

good health. He had recovered from surgery. He was

having some difficulty with stiffness in his joints. He was

clean.

Mrs. Burress said she visited Leach in the jail on July

31, 1983, and weekly thereafter. She said he seemed to be

okay. Later, when she visited him, he did not appear to

have had a bath. His hair was greasy, dirty looking. He

was wearing socks that had a golden looking stain on

11A

them. His pants were wet in the area of the fly. During

later visits, he appeared to be cleaner. On one visit, she

noticed his foot had a bandage on it. He told her his leg

jerked during the night and his foot hit his wheelchair

injuring his foot.

Howard McClatcher, forty-five, an inmate trusty at the

Shelby County Jail, testified he had been convicted of

rape and third degree burglary in 1967 and aggravated

rape in 1982. He said he was a trusty at the jail from mid

1982 to 1983. His duties included helping care for para-

plegic inmates, cleaning offices, cleaning the jail medical

clinic, and run errands and other chores. He said “Dr.

Bunso”! was in charge of the jail medical clinic along

with others identified as corpsmen. He said there were

nurses assigned to the jail but they treated female, not

male, inmates.

He said he saw Leach once on Leach’s fifth day in the

jail, which was after Leach’s family brought supplies to

him at the jail. He said Leach was ina cell which contain-

ed iron bunks with a mattress about three inches thick.

He said the bunk was lower than Leach’s wheelchair,

perhaps about ten to twelve inches lower. He said Leach

had trouble getting in and out of the bunk and into and

out of the wheelchair.

He said Leach requested something to support him

for getting out of the bunk into his wheelchair; but, he

said, Leach did not receive it. He said he had to help

Leach get on and off the steel commode. It was very

difficult for Leach to do. He said after Leach had been in

1 Mr. McClatcher referred to Mr. Bunson as Dr. Bunso.

12A

the jail about ten to twelve days, he asked “Dr. Bunso” if

he could use one of the jail’s hospital beds and “Dr.

Bunso” said it would be okay to do so.

When he first saw Leach in the jail, Leach was on his

jail bunk. His clothes were wet. His bag was wet. A man

called “John Doe” was in the cell at the time along with

an old man who was in bad shape and could not walk. He

said no one knew the old man and no one cared about

him.

He said he saw Leach again about the tenth day that

Leach had been in the jail. At that time he was assigned

to care for him constantly, which he did until he left the

jail. Mr. McClatcher said some “pretty strong” people

came by and Leach was provided with bedding, pillows,

and things relating to Leach’s care began to change. The

first time he bathed Leach his clothes were in real bad

shape from being soiled. His socks were soiled. He help-

ed him with bowel training. Some catheters were too

small and there was urine overflow. He said he told a Mr.

Joe and Dr. Bunso. Mr. McClatcher said he saw sores on

Leach’s lower back and a bruise in his “right cheek.” He

also saw a sore on his right ankle.

McClatcher said once he talked with Dr. Bunso and

asked him if he could take care of Leach. Dr. Bunso gave

him permission to do so. However, once he said Dr.

Bunso responded to a request for Leach by saying:

He’s getting everything he wants. What else

does he want. He put himself in this shape.

Mr. McClacher [sic] said he saw Leach on the fifth

day Leach had been in the jail and he smelled the odor of

urine. He said he asked Dr. Bunso if he could place a

13A

mattress from a hospital bed on Leach’s cot and was

given permission to do so. He said he told Dr. Bunso the

cell was filthy and needed cleaning. He said Dr. Bunso

responded “rock men” did that and it was not his respon-

sibility.

Willie C. Matthews, thirty-three, testified he was con-

fined in the Shelby County Jail in 1983 in L Pod for three

or four days and was known as “John Doe.” He suffered,

at the time, a leg injury and wore a leg brace, though he

did not wear the brace in jail as he then had an infected

foot. He said he met Larry Leach in the jail and did not

know him before that time.

He said he helped Leach out of the wheelchair into

bed. Leach complained of wrong size catheters, wet his

clothing and constantly complained of his physical condi-

tion while he was in the cell. Leach was unable to do

anything for himself. He said he did not see any medical

corpsmen assist Leach. He said he assisted Leach. During

the time he was in the cell, Leach was not taken out of L

Pod. He admitted he has been convicted of burglary,

attempted burglary and stolen mail offenses.

Robert Lee Alvoid, Medical Corpsman and trained

Emergency Medical Technician, testified he was employ-

ed in the Shelby County Jail during 1983. His duties were

to provide medical care to jail inmates under supervision

of a physician. He said he recalled Larry Leach who was a

paraplegic. He said the corpsman staff met to decide

what Leach’s needs were and discussed his care and

physical well being. He said a history was made and

Leach was physically observed for injuries and rashes.

His medications were discussed. He said Leach had no

14A

complaints about headaches or other pain. He said Leach

had no need to see a physician, and there was no reason

to take him to a hospital. He said he saw Leach twice

daily while working his 8:00 a.m. to 4:00 p.m. shift. He

said he saw Leach anytime he wanted, as well as during

his regular jail rounds. Mr. Alvoid further stated able-

bodied men were placed in the cell with Leach in case he

needed help.

He said Leach was in a special cell, L Pod. The cell

was clean. He never saw it dirty. He said there were no

pillows. No one in jail had pillows. Leach was given extra

blankets. He said a hospital mattress was supplied Leach

on or about the third day he was in the jail.

He said he was responsible for bathing Leach and

bathed him about four times during his first few days in

the jail. Later he stated he bathed Leach the first time

during Leach’s third day in the jail. After the first ten

days, Leach was bathed by Howard McClatcher, an in-

mate. He said Leach was taken to the medical area for

baths.

An extra supply of clothing and medical supplies

were available to Leach as well as additional clothing and

supplies for his cell use. He said he checked Leach’s

catheter for leaks and never saw or found him wet.

Discussing entries on the jail medical record, Mr.

Alvoid verified the following entries:

August 2, 1983, Leach given his meds and 9:00

am, given urine bag.

August 3, 1983, Two entries - given meds, and

one entry by Mr. Bunso

15A

August 4, 1983, given meds this a.m.

August 8, 1983, meds given this a.m.

August 9, 1983, meds given this a.m.

August 10, 1983, meds given this a.m., voiced no

complaints.

August 11, 1983, no complaints.

August 12, 1983, given bath.

August 15, 1983, given bath, enema, bowel train-

ing, no medical complaints, clean clothing, etc.

August 16, 1987, no medical complaints.

August 17, 1983, no medica! complaints

Mr. Alvoid admitted the record shows nothing but

meds the first ten days Leach was in the jail and that a big

improvement started on August 11, 1983. He said he did

not always put an entry into the records on everything,

but this procedure was out of line with his normal pro-

cedure. These entries in Leach’s jail medical record show

that Leach was given a bath on August 12, 1983, and a

bath, bowel training, and clean clothing on August 15,

1983. The Court does not find the testimony of Mr. Alvoid

relating to the care of Mr. Leach to be credible.

He said Leach had a bed bag but that Leach was a

very uncooperative person. He said it seemed like Leach

really did not appreciate the job they were doing for him

in the jail with what they had to work with. He said that

given the constraints they worked under, Leach was pro-

vided for adequately. At the time, he said the jail housed

about one thousand inmates. He said he spent about six

minutes with Leach in his cell each morning and that was

a long visit usually visits were shorter than six minutes.

16A

Larry M. Leach testified he is confined in the State

Prison Hospital, Nashville, Tennessee, and has been con-

fined there for three and one-half years. He is serving an

eighty-three year sentence following convictions for the

offenses of aggravated kidnapping and aggravated rape.

He was shot by his rape victim and has been paralyzed

since October 21, 1982. He said he has been hospitalized

twice for surgery to care for a decubitus ulcer condition,

first, at St. Francis Hospital for six to eight weeks and

thereafter at Baptist Hospital East because the first sur-

gery was not completely successful. He was also hospi-

talized in the Baptist Hospital Rehabilitation Center for

about eight weeks. There he was trained to care for

himself to the extent possible, including training in bowel

training, getting in and out of a wheelchair, catheterizing

himself, sterile procedures, physical/occupational thera-

py, and training in lifting weights and other exercise.

He said he is paralyzed from the chest down, has no

feeling in his legs, the trunk of his body or the hip area.

He suffers invoiuntary muscle spasms. He can do his own

bowel training with some assistance on the transfer board

and someone making sure he does not fall. Help is re-

quired to get pads under his body, get rubber gloves, K-y

jelly and suppositories. Afterwards, he needs help in

getting the pads from under him and in cleaning this area

of his body.

He can shower his upper body with a flexible shower

apparatus, shampoo his hair, but cannot shower his lower

extremities. The joints of his body stiffen and this causes

him considerable problems. He said his joints freeze. He

cannot dress his lower extremities but has been trained to

17A

use a dressing stick,, which is about three feet long. It

helps him put on a belt, pants and socks to some extent.

After his trial, he entered the Shelby County Jail. He

had some clothing in case he suffered an accident. He had

a transfer board which is used to siide his body from one

area to another. That board was taken away from him

when he entered the jail. He saw it again when he was

transferred to Nashville, Tennessee, where he does have a

transfer board for his use.

When he entered the jail, he saw a person he believed

to be a physician who interviewed him and asked him

about his physical condition. Leach said he explained

what he thought his needs would be. He said he told the

physician about his clothing, bowel movements, medica-

tions and his physical limitations. The physician took his

blood pressure, temperature and talked with him in gen-

eral and he was then sent upstairs. When he arrived

upstairs, he was “dressed out.” That is, his street clothing

was taken and he was issued color coded jail clothing. He

was then assigned to L Pod on the second floor of the jail

where he remained during his confinement in that jail.

Leach said the cell in which he was confined had two

steel bunks with about a one and one-half inch to two

inch fiber filled mattress on it. He had his wheelchair in

the cell. He said it was very difficult to get out of and

onto the cell bunk from his wheelchair. He said there was

about a twelve inch height difference between the two.

He was afraid to try the transfer because of the difficulty

and because of his two surgical procedures. He said these

efforts caused his feet and ankles to bang around quite a

bit. He said it would take him ten to fifteen minutes to

18A

get from bed to chair. He attracted attention by banging

on his cell door. He said the jail bunk was not suitable to

his needs as it was not adequate for rolling or turning. He

said he complained time and time again to jail personnel

about his situation. Their response, he said, was they did

not have items for his needs. Leach testified this was not

correct as there was a hospital section in the medical area

of the jail with an appropriate bed and adjustable tables

and other items. At the Shelby County Jail, Leach said he

specifically complained to Dr. Bunso and a corpsman

named Joe. He said “Dr. Bunso” told him that was all

they had. He said when he received medication, he com-

plained about his hygiene problems. The response he

received were usually along this line:

We will have you see the doctor tomorrow.

Wait until later.

We don’t know what to do about that.

He said Dr. Bunso was not cooperative at all and seemed

not to care whether he had any help. He said the bath tub

was too high and he could not get into it. The commode

was too low and had no padding on it. He said he had

soap. He tore off part of a towel and used it for a wash

cloth. He said he could not wash his legs and “rear end.”

He said another inmate in the cell named John L.

Johnson was in bad shape and jail personnel would not

care for him. He was lying on the floor, sick at the

stomach, moaning and groaning and lying in his own

excrement which Leach called debris and urine.

Leach said he got to see a “real doctor” on or about

his fourth day in the jail. He talked with the physician in

the office and Mr. Bunso was in another office. Leach said

19A

he told the doctor he was a T-5 complete invalid. The

physician put him on an every other day bowel training

schedule in bed as there were no facilities for commode

accommodation. He said the doctor told Dr. Bunso to let

him have bowel movements using suppositories. He said

Dr. Bunso told him, Leach, they did not have supposito-

ries and he could use an enema. Finally, he said Dr. Bunso

told him to hell with the procedure, sent him back with

the promise to take care of it later. He said he had a bowel

movement the first time on his fifth day in the jail and

again five days later.

Leach said he had problems with his use of the

catheter. He wore a leg bag when he was out of bed and

had the use of a bed bag when in bed. He said he had

problems with wet clothing as the catheter he had was

too large and he did not have skin bond cement. He said

he repeatedly complained about leg bag/bed bag prob-

lems and wetness. He said Mr. Bunso told him you will

have to do what you have to do.

He said his mattress was changed after he had been

in the jail about ten days. He said he received a bath

about the ninth or tenth day in the jail. He said he was

filthy from having lain in his own urine and feces. He

said he suffered muscle spasms and once injured his foot

due to a muscle spasm causing his foot to hit his wheel-

chair. He said he did not receive any range of motion

exercises while he was in the Shelby County Jail.

He said he could not take his socks off. His family

washed his socks and inmates washed his underclothing

He said there was a call button on the w all behind

the commode in his cell but he could not reach it. He did

————eee™”™~™”—”—s—s-Sst (

20A

have telephone privileges. He called his family and tried

to reach his attorney to tell them he was miserable and

feared a reoccurrence of bed sores and the decubitus

ulcer.

After he had been in the jail about ten days, a crew of

inmates entered his cell with mops, buckets, cleaning

materials and cleaned the place from top to bottom. He

was given clean clothing. There had been no such clean-

ing before. Then, he said a man from the Tennessee

Department of Human Services or the Health Department

visited his cell after complaints made by his mother.

After the visit of that official, his treatment in the jail

“turned around one hundred percent.” They brought a

mattress in. He was given clean sheets and extra clothing.

He had a bath for the first time and bowel training which

was supposed to be every two days. It got better but

never reached the medically prescribed schedule He was

taken to the hospital side of the jail for services. After

about two weeks, when the inmate who agreed to help

him was transferred, his treatment reverted back to about

like it was at first, such as missed medications, baths and

bowel training.

The first ten days he was in the jail, his lack of

treatment was a mental strain upon him and he said it

took a lot out of him physically. He said he experienced

frequent headaches and a burning pain sensation 1n his

tail bone area.

On cross examination, Leach admitted he was shot by

the victim of the rape he committed and has, in addition

to his present conviction for aggravated kidnapping and

aggravated rape, been convicted of attempt to commit a

21A

felony. During cross examination, he testified to the fol-

lowing chronology of events.

1) From May - 1983 to June 6, 1983, he under-

went surgery at Baptist Hospital East for surgi-

cal treatment of a decubitus ulcer which had not

completely healed from a previous surgery.

2) From June 6, 1983, until July 30, 1983, when

he entered the Shelby County Jail, he was at the

home of his parents in Memphis, Tennessee.

3) After he left the Baptist Hospital Rehabilita-

tion Unit from on or about March 25, 1983, to

May 25, 1983, he was in the home of his parents.

4) He entered the jail July 30, 1983, and re-

mained in the jail for about forty-one days -

until September 12, 1983, when he was trans-

ferred to the State Penitentiary in Nashville

Tennessee. He is confined in the penitentiary’s

hospital and has been there three and a halt

years

Captain A. Guasco, Detention Officer, testified the jail

Operates a computerized tracking system which records

the movements of prisoners within the jail. His testimony

related to movements of Larry Mason Leach within the

jail from July 30, 1983, to September 12, 1983. While the

records showed Leach was returned to his cell on thirty-

six movements, there could have been more. Those re-

cords show that from July 30, 1983 to August 12, 1983,

Leach visited the medical clinic four times, On August 1,

1983, August 2, 1983, August 3, 1983, and August 12,

1983. He said the hospital facility within the jail had

never been opened, even though some inmates spend as

long as a year in that jail

22A

Dr. Albert M. Jones, M.D., testified he was employed

by the mayor of Shelby County and assigned to the jail

part time from July, 1983, until August, 1983. He left his’

employment with the jail by resigning on August 6, 1983.

He said on July 1, 1983 the Shelby County Health Depart-

ment turned the jail over to the county and the mayor

employed him.

He saw Larry Leach the first time on August 1, 1983.

He noticed Leach was a paraplegic, spastic with no sensa-

tion from the nipple down and posteriorly from the scap-

ula down. His general physical condition was good and

he was in no acute distress. He observed no tenderness.

There was a surgical scar from treatment of a decubitus

ulcer. The skin was intact and he did not need acute

medical care. His symptoms related to his paralysis. He

noted that on July 31, 1983, Leach was seen by a jail

corpsman. He was on a stool softener and a urinary

antiseptic. He was not on any medication for pain. He

said Mr. Bunso is a corpsman with a very good academic

record and may have been first in his class. He was

impressed by his ability to handle inmate patients.

He said Leach was not facing any life threatening

ailment. He has observed the care of paraplegic patients.

They need to be kept clean. An ordinary mattress is

insufficient. He did not visit Leach’s cell. He saw Leach

only once and that was on August 1, 1983

Dr. Jones said his orders for Leach were for Leach to:

1) Return to the clinic daily.

2) Receive saline enema in clinic every third

day.

3) Flush leg bag in dispensary

23A

Dr. Jones said he never observed these things being done.

Dr. Jones said it is very bad for skin to be wet with urine.

He said moist feces on skin will cause skin problems

depending upon how wet or dry the skin is, and the

amount of feces. He said at Oakville Hospital in Mem-

phis, Tennessee, when he was on the staff, paraplegics

were bathed daily.

Joseph Charles Bukewicz, Corpsman at the jail, testified

he served as a U. S. Navy Corpsman First Class for

fourteen years. His assignment at the jail was to perform

reguldr medical services to its inmates. He said he saw

Leach a few times and talked with him and was familiar

with his case and his treatment. He said he did not havea

great deal of contact with Leach and was not responsible

for his care. He said he did not really treat Leach except

once when he put a bandage on his foot and ordered

supplies for him.

He said Leach was taken to the infirmary about twice

during his first ten days in the jail. He said Leach really

did not complain too much. He did not hear him com-

plain about any pain. He testified the first time Leach had

a bath was on August 9, 1983. He is not sure he saw

Leach during his first ten days of confinement in the jail.

He said Leach had been in isolation where there are two

to four hospital beds with bath tubs and sinks. He said at

the time Leach told him he did not want an enema. He

said Leach always had assistance when he bathed. He

said “there were always a few people back there.” He

said when hands-on treatment is provided an inmate, an

entry should be made in that inmate’s medical record

24A

William Sellari, Supervisor, Department of Human

Services, State of Tennessee, testified he was assigned to

investigate the complaint about Leach’s treatment in the

Shelby County Jail. He said the complaint was received

on August 9, 1983. He said the complaint reported that

Leach was a paraplegic, that he was not receiving ade-

quate care in the jail, had not received a bath in about

eleven days and had trouble with internal and external

catheter, and was on a plastic covered mattress. The

complaint also indicated the physician’s orders were ap-

propriate but not carried out. At that point, he said

Leach’s care had cost the state approximately $122,401.00.

Mr. Sellari said he went to the jail and saw Leach on

August 11, 1983. He said he called the sheriff's office on

August 11, 1983. He said his call was referred to an

Inspector Battle who was reluctant to discuss the circum-

stances concerning Leach’s confinement. He said he con-

tacted Corpsman Bunso who was somewhat irritated. He

said he went to the jail, talked with Leach but did not

find any evidence of neglect. He said Leach’s clothing

were clean, the sink in the room was clean, Leach had

been recently bathed. There was no odor or visible evi-

dence of feces or urine. There was no condition of de-

cubitus ulcer or bed sores on Leach. Two men in the cell

said both received plenty of food to eat. He noted there

was air conditioning and a color television in the cell. He

said Mr. Bunso gave information that Leach was receiving

adequate medical care. He said Leach was concerned

about his bowel training, getting that training started,

and he wanted more bowel training and medical atten-

tion.

25A

John Joseph Bunso, Jr., Chief Hospital Corpsman, testi-

fied he has been with the Shelby County Jail since Sep-

tember 16, 1969. He has had extensive training as a

corpsman and Emergency Medica: Technician. He has

served in various U. S. Navy hospitals and medical facili-

ties. He said his duties in the jail relate to anything that

has to do with medical treatment. He said the Shelby

County Jail has an infirmary and a hospital area in the

rear of the infirmary. He said the hospital area for mone-

tary reasons has never been used. He said the cell pod

Leach was in is different from other cells. It is designed

especially for paraplegics. It has two bunks about fifteen

inches from the floor, commode with bars, an emergency

bell within arms reach and the tub is equipped with bars.

He said there were no pillows in the jail, but when and

where pillows were needed, blankets were substituted.

He said he first saw Leach on August 1, 1983, when

Leach was seen by Dr. Albert M. Jones. He said Leach

was taken to baths in the hospital isolation area. He said

he was bathed at least twice in his first ten days in jail.

He was also taken to that area for enemas. He said Leach

received a hospital mattress within his first three or four

days in jail after he complained about his mattress. He

said Leach’s wheelchair came to the top of his, Bunso’s

knee cap — about twenty-two to twenty-four inches.

He said Leach always had access to his external

catheters and rubber gloves. His father did bring items to

the jail for Leach’s use. He said Leach used eighty-seven

catheters in forty-tour days. He was given four blankets

to use as pillows. He had a linen drawer which had

twelve sheets, six towels and four or five sets of clothing

He said Leach was in the infirmary August 1, twice

26A

August 3, August 4, August 5, August 8, August 10,

August 18, 1983. He saw him in the infirmary every time

he was there. He was there almost daily to use the tele-

phone. Leach was provided refreshments and allowed to

use the phone as long as he desired. His clothing was in

fair shape a majority of the time. It is possible he was wet

at times with urine. It happens to everyone who wears a

bag. He said Leach needed close attention w hen he enter-

ed the jail as he appeared depressed. After seven or eight

days, he assigned inmate trusty Howard McClatcher to

help him. Before this medical staff assisted Leach.

Mr. Bunso said he could not recall if Leach asked for

a transfer board but stated he did not need it anyway

Bunso stated sixty to eighty paraplegics formerly housed

in the jail never needed a transfer board Thus, he ques-

tioned, why should one be needed by Leach

Mr. Bunso said Leach hardly ever complained. The

only complaints came from his parents which was just

about every day. They thought he should be ina hospital

Leach was thankful for the treatment he received. It

Leach needed to go to the hospital, he would have been

sent. He did not need hospital care. He had no tempera-

ture, drowsiness or headaches. There was always some-

one assigned to L Pod with Leach

On cross examination, it was established that the

tracking system does not show Leach was 1n the infirm-

ary on the days Bunso claims.

Mr. Bunso admits he became agitated by Mr. Leach’s

father calling him and complaining he (Bunso) was not

doing his job.

27A

Danny McCain testified he served as a corpsman in

the Army for three years, in the Air Force for eight years

and at the Shelby County Penal Farm for three years. He

is a trained Emergency Medical Technician and has been

on the job at the Shelby County Jail for five years. He said

he worked the 4:00 p.m. to 12:00 midnight shift at the jail

in July/August, 1983. He became acquainted with Leach

because he was a paraplegic. He saw Leach at least one

time on every shift he worked when Leach was in the jail.

To obtain his services, Leach only had to summon a guard

on the floor and he would see him immediately. He

entered L Pod nightly. It was a cell with two beds. The

cell was kept clean. He would check to see if Leach was

clean. He did not see Leach in an unclean condition. He

gave Leach medications. Leach had no complaints about

his condition. On one occasion Leach told him he needed

a bowel movement and he took him to the infirmary for

that purpose. He said Leach was given a hospital mat-

tress the second or third day he was in the jail. The jail

has pillows which are of a regular size. He did not recall

if Leach had any extra blankets. He said Leach never

complained to him about pain in his lower back area. He

said he gave Leach a bath on September 1, 1983 and his

catheter was changed. He checked Leach’s bed bag at

night to guard against leaks. He said Leach would not

permit them to give him an enema. He preferred the

digital procedure. He only saw Leach at night during

Leach’s first ten days in the jail. He said Leach was one of

the most independent of paraplegics

Testifying as a rebuttal witness, inmate trusty How-

ard McClatcher said he placed the mattress in Leach’s cell

with the consent of Dr Bunso. He said he asked Dr

cai ‘

28A

Bunso about it who said it was a good suggestion. That

was after Leach had been in the jail about ten days.

Testifying about the cell button, Mr. McClaicher said

there was a call box on the wall but he never knew it to

work. He said Leach got assistance by banging on the

door of his cell. McClatcher said he never knew of any-

one who obtained medical assistance by using the wall

call button.

Leach produced several letters which he testified

were written by him during the relevant times under

consideration in this case. He was permitted to read these

letters to refresh his recollection and testify to events

thereby refreshed in his mind. One of the letters is dated

August 2, 1983, and post marked August 3, 1983. In this

testimony, in rebuttal, Leach said he had contact with Mr.

Bunso on August 2, 1983, about his need for an enema.

He said Mr. Bunso said it was getting late, to take him

back to his cell, they were not going to do it that day.

Leach said it appeared to him Mr. Bunso was obstructing

his medical needs.

He wrote a letter to a person named Rheinback on

August 10, 1983. He testified he had been in the jail eight

or nine days without a bath. He said he cleaned himself

to the best of his ability. He said that by August 8, 1983,

he had gone five days without bowel training. He felt

bad, suffered headaches, things were just not going well

for him. He had a bowel training about August 3 or 5,

1983.

He said that on August 9, 1983, he wrote a letter to

his mother and had a real surprise for her. He said he

finally had a bath and bowel training that day.

29A

As the Court stated earlier in this memorandum, the

overwhelming preponderance of the evidence leads the

Court to conclude that during at least the first ten days of

Leach’s confinement in the Shelby County Jail, jail per-

sonnel responsible for his care were deliberately indif-

ferent to his serious medical needs. Leach, a paraplegic,

entered the jail July 30, 1983. On about August 9, 1983,

Mrs. Leach complained to the Department of Human

Services about her son’s condition in the jail. When a

representative of that department contacted the jail to

inquire about Leach’s condition, that contact set in mo-

tion a series of events. A crew of jail inmates cleaned the

jail cell in which Leach was confined. Leach was bathed

and provided with clean clothing. His medical care dra-

matically improved. Apparently, there was a delay before

Mr. Sellari, the department representative, was allowed to

visit Leach. It was during this delay time when it appears

the cell cleaning and bathing of Leach occurred. Mr.

Alvoid’s testimony that he bathed Leach about four times

during Leach’s first few days in jail does not comport

with the evidence. While there is conflicting testimony,

the jail medical record shows Leach received a bath Au-

gust 12, 1983. These jail medical record entries corrobo-

rate the testimony of Frances Leach, Alvin Leach, Beverly

Lewellen Burress, Willie C. Matthews and Howard Mc-

Clatcher that jail personnel were deliberately indifferent

to Leach’s serious medical needs. The Court detected an

underlying attitude of hostility by Mr. Bunso and Mr.

Alvoid toward Mr. Leach. They did not carry out the

orders of Dr. Jones for Leach’s care. Mr. Alvoid said

Leach was a very uncooperative person and, it seemed to

him, Leach did not really appreciate the job they were

30A

doing for him with what they had to work with. Mr.

Bunso admitted he was agitated by Mr. Leach’s father’s

complaints.

This Court can understand that Leach presented jail

medical personnel with a distressing situation. The de-

mands upon their time and resources by a paraplegic can

be distressing to a small medical staff in a jail having over

1,000 inmates. The Court can understand why jail person-

nel may be unsympathetic with a paraplegic convicted of

aggravated kidnapping and aggravated rape. The Court

can understand why Mr. Bunso may have said that Leach

put himself in the shape he was in. Federal law, however,

requires that those who are responsible for an inmates

medical care cannot be deliberately indifferent to that

inmate’s serious medical needs. The deposition testimony

of physicians show the level of minimum care for a

paraplegic was not provided Leach. Failure to provide

that care was deliberate and indifferent. This deliberate

indifference violated Leach’s constitutional rights guar-

anteed by the Eighth and Fourteenth Amendments to the

Constitution of the United States.

Having made its own independent findings and

reached independent conclusions in this case, based upon

a preponderance of the evidence, the Court adopts the

following findings and fact and conclusions of law pre-

sented by plaintiff:

Larry M. Leach’s Medical Condition and Needs

Plaintiff Larry M. Leach, presently a prisoner at Cen-

tral State Penitentiary in Nashville, Tennessee, was shot

on April 20, 1982. The gunshot wound transected his

31A

spinal cord at the level of his spine, T-3 and rendered him

paralyzed from the nipple-level of his chest down. (Stipu-

lations, Nos. 1 and 2, Pre-Trial Order). As a paraplegic,

Mr. Leach has no feeling or muscle control in his legs,

hips, or trunk. (Toomes, Dep. 8-9). After being shot,

Plaintiff was treated for several months in various local

hospitals. During Plaintiff’s hospitalization prior to his

incarceration at Shelby County Jail, Plaintiff developed a

severe sacrodecubitus ulcer. In May of 1983, this ulcer

was repaired by surgical procedures performed at Baptist

Hospital East by Dr. Thad Ferrell.

On July 30, 1983, Plaintiff was found guilty of aggra-

vated rape and kidnapping. He was immediately heid to

the custody of the Tennessee Department of Corrections

and incarcerated at the Shelby County Jail to await sen-

tencing. Plaintiff was incarcerated at the jail from July 30,

1983, until September 11, 1983, at which time he was

transferred to the Central State Penitentiary at Nashville.

Plaintiff’s treatment during his incarceration at the Coun-

ty Jail is the subject matter of this litigation.

Prior to entering Shelby County Jail, Plaintiff re-

ceived rehabilitation at the Spinal Cord Injury Center of

the Baptist Hospital Lamar Unit. At the Center, Plaintiff

received physical therapy, occupational therapy, bowel

and urine training, and mobility training.

Upon discharge from the Spinal Cord Injury Center,

Plaintiff could perform his own catheterization (urine

removal) and “bowel training”; he could get in and out of

his wheel chair with the assistance of a slide board; and,

he could dress himself except for his lower extremities.

32A

“Bowel training” is the only means whereby Plaintiff

can evacuate his bowels and it requires the use of suppos-

itories and “bowel training” pads in a clean and hygienic

surrounding. Bowel training is brought about through

digital stimulation. (Requests for Admission, No. 9). Fur-

ther, during the period of July 30, 1983, to September 11,

1983, Plaintiff’s condition required, consistent with sound

medical treatment, that he be permitted to perform “bow-

el training” every other day with the aid of suppositories.

(Requests for Admissions, No. 10).

After discharge from the Spinal Cord Center in

March, 1983, “bowel training” was performed by Plaintiff

with the assistance of his mother. Plaintiff would lie

down on the bed with sterile pads underneath and, with

the assistance of surgical gloves, K and Y gel and a

suppository, was able to manually evacuate his bowels.

Mrs. Frances Leach, his mother, would wash and clean

him and assure that no feces remained on his body.

Additionally, Mrs. Leach would take the pads and dis-

pose of them. Mrs. Leach testified that the bedsore for

which Plaintiff had received surgery was right at the

lower tail bone and could easily get feces in it.

Plaintiff also had to undergo manual bladder train-

ing. This procedure consisted of two functions. First, he

would insert a tube into his uretha and drain his bladder

into a container provided by Mrs. Leach. It was extremely

important that the instruments and tubes be sterile in

order to reduce the possibility of infection. Additionally,

Plaintiff had to wear a type of catheter known as a

tactecsus catheter which fit on the outside of the penis

and was held to the body with a type of epoxy glue to

prevent leakage. It was very important that this catheter

33A

be attached to a bag which had to be emptied ona regular

basis. At night, the catheter was attached to what was

called a night bed bag. This bag was necessarily larger so

as to insure there was enough room to contain all of the

urine and thus avoid the possiblity {sic] of urine running

back up into his body. It was also very important that

these bags be clean and sterile so as to avoid the possi-

bility of infection.

Plaintiff was unable to get in and out of a bathtub;

however, with the assistance of his father and the use of a

slide board, Plaintiff was able to get into a shower. In the

shower with a flexible hose, Plaintiff was able to wash his

hair and parts of his body. He could not wash his legs or

feet. The shower had a specially equiped [sic] padded

chair to prevent further ulcers.

Larry Leach needed to have special assistance with

sleeping. Specifically, it was very important for him to

have pillows under various parts of his body so as to

assure that he would not put pressure on any part of his

body which might cause a pressure sore to develop.

Plaintiff was unable to touch his feet and legs, change

socks, or move the lower part of his extremities due to

what he characterized as “freezing up” of his hip and leg

joints. This stiffness of joints in his hips and legs was

noticed at the Baptist Rehabilitation Center on May 12,

1983. (Toomes, Dep. 18-19). The condition worsened prior

to admission to the Shelby County Jail.

After his ulcer was repaired in May of 1983, it was

difficult for Plaintiff to move about even with the aid of a

transfer board. Plaintiff was weak and it was almost

impossible for him to move about without the aid of the

34A

transfer board. Mrs. Leach stated that she would often

have to move his legs and body to keep him from knock-

ing or hurting his skin. She also testified that since her

son was unable to bend down or to reach around to his

backside and that she had to assist him in cleaning his

pressure sores and cleaning the scars left by the pressure

sores. She also had to put on his socks and clean his feet.

After his shower, she assisted in drying and dressing her

son.

During his trial in Shelby County Criminal Court,

Plaintiff was permitted by the judge to have a portable

cot in the courtroom. Plaintiff was able to lie on the cot

when necessary.

The medical evidence was clear as to the type of care

and treatment required for Larry M. Leach. Mr. Leach

needed adequate bedding such as a standard hospital bed

the same height as his wheelchair seat so that he would

be able to get in and out of his wheelchair. The mattress

should be firm and the bed sufficiently wide so as to

allow him to turn around in the bed. (Toomes, Dep. 14,

24-26). Dr. Toomes noted that a standard jail cot would be

unacceptable. (Toomes, Dep. 14). Dr. Toomes further

noted that the use of a slide board would be necessary if

there was a significant difference between the relative

heights of the bed and wheelchair. (Toomes, Dep. 25). A

slide or transfer board is often used to assist paraplegics

in making transfers to and from the wheelchair. It con-

sists of a piece of smoothly sanded wood or a piece of

plastic about 8" to 10” wide and a couple of feet long. It

permits an individual to slide on a slippery board in and

out of the wheelchair. (Toomes, Dep. 27-28).

35A

When Mr. Leach was discharged from the Spinal

Cord Unit, he was informed to do an exercise program

which involved range of motion of the joints. This range

of motion exercise would be done in bed with the assist-

ance of another individual who would move his legs.

(Toomes, Dep. 21). The exercise motion’s purpose was to

enable Plaintiff to dress his lower extremities.

The doctors are in agreement that a paraplegic such

as Mr. Leach should have particular attention paid to his

cleanliness. Further, Plaintiff’s reasonable medical needs

included frequent movement to avoid breakdown in tis-

sues surrounding his bedsores and clean, dry linen to

avoid the danger of infection. (Requests for Admission,

No. 18). Further, consistent with sound medical practice,

Plaintiff was required to frequently move or turn about in

his bed and chair in order to avoid further breakdown of

his skin and the development of another ulcer (Request

for Admission, No. 6).

Dr. Albert Jones, Defendant's trial expert stated that

clean living quarters with adequate padding was essen-

tial for the care of Mr. Leach. He further stated that daily

bathing of a paraplegic was necessary.

Dr. Barbara Snell was one of the Plaintiff's physicians

at the Tennessee State Penitentiary. She stated that the

key to preventing the development of ulcers was to keep

pressure off certain points by the use of cushions, pads,

and turning. She also stated that certain measures regard-

ing health and hygiene were needed to assist paraplegics.

(Snell, Dep. 11-12). This treatment includes special atten-

tion to cleanliness.

36A

Exposure to urine or feces could cause breakdown in

the skin and development of bedsores. (Toomes, Dep. 28).

Damp clothing or linen would make the condition worse.

Dr. Toomes also indicated that bathing would be neces-

sary at least once a day. (Toomes, Dep. 36). All the doc-

tors indicated that decubitus ulcers can be life

threatening. (Toomes, Dep. 37).

Concerning bowel training, Dr. Toomes indicated that

it should occur every other day and that catheterization

should occur every four to eight hours. (Toomes, Dep.

39).

Having a well-padded mattress and avoiding hard or

bumpy beds is also necessary. (Toomes, Dep. 40). Dr

Toomes also agreed that frequent turning over in bed

would help prevent bedsores. (Toomes, Dep. 40)

Treatment at Shelby County Jail

On July 30, 1983, Plaintiff was placed in the custody

of the Sheriff in the Criminal Justice Complex and incar-

cerated at Shelby County Jail. At the time of his incarcera-

tion, Plaintiff had in his possession external catheters and

a slide board. The slide board was taken away from

Plaintiff, and he was not allowed to have the board while

incarcerated. (Pre-Trial Stipulations). The board was re-

turned to him when he was transferred to Nashville.

Plaintiff has possessed the slide board while in the state

prison and uses it to get in and out of his wheelchair.

On July 30, 1983, Mrs. Leach bathed her son and

examined his body. Mrs. Leach testified that the pressure

sore which had been corrected by surgery was healed and

37A

that he did not have any pressure sores on any part of his

body. Both Mr. and Mrs. Leach testified that they person-

ally examined their son’s body on July 30, 1983, and that

it was in good condition.

When admitted to the jail, Plaintiff was seen by

Ronald Hester. Plaintiff informed Hester about his medi-

cal condition and need for bowel training, catheters, his

mobility problems, his medication needs, and his numer-

ous physical limitations. (See Jail Medical Charts). Plain-

tiff was then dressed in a prison uniform and taken to the

second floor at L-Pod, where he remained throughout his

Stay.

pee Pre ne

On the night of July 30, 1983, Mrs. Leach phoned the

Criminal Justice Complex and spoke to Ronald Hester.

Mrs. Leach also told Hester that her son was a paraplegic

and that he needed catheter supplies, clean clothes, medi-

cation, and ointment in order to manually evacuate his

bladder and bowels and to insure that pressure sores did

not develop on his body. She gathered her son’s medical

supplies and medications and her husband then deliv-

ered them to the Criminal Justice Complex on July 31,

1983.

In L-Pod, there are two steel cots. On top of each cot

is a two-inch, vinyl-covered, fiber-filled mattress. One of

the cots was Plaintiff's bed during his incarceration

Plaintiff's wheelchair was higher than the cot, which

made it difficult for him to get out of his chair into the

bed, and nearly impossible to get into the chair from the

cot. Plaintiff generally got out of bed with help from

other inmates. On one occasion, Plaintiff did manage to

get into his chair from the bed, after much struggling and

38A

pain, in order to obtain assistance for John Johnson, an

inmate who had been lying in his own feces for hours.

The cot was very narrow, making it difficult for

Plaintiff to roll over. The bed was also not sufficiently

padded.

From the first day, Plaintiff repeatedly told the jail

personnel and the medical corpsmen that the bed was

inadequate for his condition. He explained that the bed

would break down his skin and create bedsores. He told

Corpsman Bunso, the medical director, and other corps-

men that the bed was inadequate. Bunso’s response to his

request was that the jail did not have any other beds.

However, hospital beds were in the jail hospital.

The Defendant's witnesses denied that Plaintiff com-

plained about the cot. Both Howard McLatcher and Willie

Matthews heard Plaintiff complain. Further, a hospital

mattress was later moved to the cot which indicates that

the cot was inadequate. Based upon the testimony as a

whole and the demeanor of the witnesses, the Court finds

that the cot was inadequate for Plaintiff’s needs and that

Plaintiff repeatedly complained about this inadequacy.

Yet, the Defendant's employees deliberately ignored

Plaintiff’s legitimate needs and requests.

The Court further notes that Plaintiff has remained in

the hospital ward of the State Penitentiary since his arriv-

al at that facility. He sleeps in a standard size hospital bed

with a pull bar near a nurses station.

In L-Pod at the County Jail, Plaintiff had woefully

inadequate facilities for cleaning. He was given a torn up

towel to use as a washcloth. In the corner there was a

39A

small sink which could not be stopped up to retain water.

Due to his mobility problems and the inadequate wash-

ing facilities, it was impossible for Plaintiff to remain

clean.

While there was a stainless steel bathtub, it was

totally unsuitable for Plaintiff. He could not sit on the

stainless steel, nor could he get into or out of the tub.

Likewise, there was a stainless steel toilet which was

inadequate for his condition.

During the Plaintiff’s first eleven days in the jail,

from July 30, through August 9, 1983, his treatment was

deplorable. Plaintiff did not have a bed bag for his cathe-

ter and as a result woke up every morning wet with

urine. Further, Plaintiff was given the wrong size catheter

during part of his stay which also caused wetness. De-

spite his complaints to Mr. Bunso and other corpsmen,

Plaintiff received no relief. Plaintiff would often stay wet

in his own urine for several hours at a time. He devel-

oped skin irritation and constantly smelled of urine.

Plaintiff repeatedly complained about this to jail officials

and corpsmen. He was informed by Mr. Bunso that they

did not have smaller catheters .ad that he could “get his

mother to bring him some.”

During the first eleven days, Plaintiff only had one

bowel evacuation and that was with the assistance of a

jail trustee, Howard “Sonny” McLatcher. Plaintiff stated

that during the first ten days he did not receive a bath

and described his condition prior to the bath as filthy

with skin irritation, bruises and sores on his legs.

Plaintiff was examined by Dr. Ablert Jones on August

1, 1983. Dr. Jores’s notes indicate that Plaintiff had no

40A

bedsores, only scars on the buttocks where a decubitis

ulcer had been. He prescribed the following treatment for

Mr. Leach: (1) continue medication, (2) maintenance of

three No. 16 catheters for his use in his cell, (3) return

here (clinic) daily for catheters and change of external

catheters about 9:00 a.m. daily, (4) saline enema (1 tsp salt

to each quart of water) every third day, (5) regular diet,

and (6) flush bed bag daily with benedine. (Emphasis

added). (See Jail Medical Charts). Dr. Jones testified that

Mr. Leach should have returned to the infirmary daily for

some of his treatment.

According to Plaintiff, Dr. Jones told Corpsman Bun-

so about the need for bowel training. Later that day,

Bunso indicated “to hell with it (taking care of the bowel

training)” and instead instructed that Plaintiff be taken

back to his cell and that the bowel training would be

taken care of later. Plaintiff did not receive any bowel

training until several days later.

On the tenth or eleventh day of his incarceration at

the jail, Plaintiff was bathed for the first time by Sonny

McLatcher. Prior to this bath, his socks had not been

removed or cleaned. His body was dirty. His feet were

dirty and the skin on his feet and heels had sores. Plain-

tiff had been begging for a bath. The testimony concern-

ing Mr. Leach’s condition was substantiated by Beverly

Burress and Howard McLatcher. Ms. Burress described

his condition as unkept, dirty, and his feet appeared to be

covered with urine-covered socks.

Defendant denies that Plaintiff was not bathed for

ten days. Mr. Bunso testified that he was aware that

Leach was bathed at least twice during the first ten days

41A

Robert Alvoid and Danny McCain stated that they were

aware that Leach was bathed during the first ten days

However, neither could recall or identify the day he was

bathed.

On the other hand, Willie Matthews and Howard

“Sonny” McLatcher indicated that Plaintiff was not

bathed during the first ten days. McLatcher stated that on

about the tenth day he was instructed by Mr. Bunso to

bathe Plaintiff and to assist him in his bowel training. He

stated that this was the first bath Leach received. When

McLatcher bathed Plaintiff, he observed that his clothing,

especially his socks, were soiled and that his skin was

irritated and that he had a foul odor. The Court credits

the testimony of Mr. McLatcher

Other evidence corroborates Plaintiff's testimony

concerning bathing. [he jail maintains an elaborate com

puterized movement system. According to Captain A

Guasco, Director of Detention, in order to move from

L-Pod to the medical infirmary where Leach was bathed

he would have to pass various points and a computer

would record the time of his arrival and departure from

each point. Captain Guasco identified two computer

printouts on Leach’s movement while in the jail. (Exhibits

2 and 3). It is clear from the printouts that Leach was only

seen in the medical infirmary on three occasions during

the first 11 days of his stay More importantly, the medical

records of the jail indicate that Leach received his first

bath on August 9 - 11 days after he was incarcerated.

This documentation is consistent with the testimony of

Leach, McLatcher, and Burress. Based upon all the evi-

dence, including the demeanor of the parties, the Court

concludes that Larry Leach was not bathed for several

42A

days despite his great medical need for cleanliness and

his repeated requests for a bath. Further, the Court finds

that he was forced to remain for long periods of time in

his own urine which further risked irritation and break-

down of his skin. Despite Plaintiff’s repeated requests for

a bath and assistance, the Defendant’s employees, partic-

ularly the medical director, Mr. Bunso, deliberately de-

nied his legitimate requests.

Likewise, the Court finds that Plaintiff was denied

the range-of-motion exercises while at the jail. Plaintiff

mentioned to several employees at the jail, including

medical personnel, that he needed to perform these exer-

cises. He asked corpsmen, including Mr. Bunso for assist-

ance. Despite these requests, he was never given range-

of-motion exercises while in the jail.

On the day Plaintiff was first bathed, a crew of in-

mates came into L-Pod with mops, buckets, disinfectants,

and cleaning supplies. They completely cleaned the cell

and gave Plaintiff clean clothing. The pod had not been

cleaned before that date. About an hour after the pod was

cleaned, a man came to the pod and asked about Plain-

tiff’s problem. Plaintiff believed this individual to be

from the Health Department. After the visit from this

man, Plaintiff’s treatment radically changed for the bet-

ter.

It is obvious, and the Court so finds, that Mr. Leach’s

treatment changed only because of a complaint filed by

his mother with the Tennessee Department of Human

Services. Mrs. Leach had lodged a complaint with the

Department of Human Services about the lack of care that

her son was receiving at the Shelby County Jail. The

emote

43A

Department of Human Services received the complaint on

August 9. On that day, William Sellari, an employee of the

Department of Human Services, contacted Defendant

Barksdale who referred Mr. Sellari to Inspector Ballard,

the Chief Jailer. On August 11, Sellari visited with Ballard

who was reluctant to permit an investigation. Sellari was

then referred by Ballard to Corpsman Bunso who, accord-

ing to Sellari, was ‘

tually, a time was set up for Sellari to visit Leach at the

jail. After examining and talking to Leach, Sellari con-

cluded that Leach and the other inmate had been recently

bathed, were not in their own urine or feces, and that

‘agitated” about the complaint. Even-

there did not appear to be any abuse. Sellari could not

state what kind of condition Leach was in at the time the

complaint was first lodged.

Howard “Sonny” McLatcher testified that Mr

Leach’s treatment changed shortly before Sellari arriv:

on the scene. Based upon the testimony as a whole

the demeanor of the witnesses, the Court finds that Mr

Leach’s treatment was absolutely deplorable prior to

complaint being lodged with the Department of Human

Services. After the Sheriff was notified of the complaint

then, and only then, did conditions change and Plaintif!

begin to receive humane treatment.

After the tenth day, Plaintiff's treatment was left

Sonny McClatcher. McClatcher often took Plaintiff t

hospital area, assisted in bowel training, bathed him

change (sic) his clothes, and would often give him orange

juice and other items to drink.

During the first ten days, Plaintiff developed sores on

his heels and ankle where he hit the iron frame of the cot

44A

Plaintiff, like other paraplegics, is prone to have muscle

spasms which cause his feet to move involuntarily. Dur-

ing muscle spasms he hit his legs on the iron cot. Sonny

McClatcher often wrapped Plaintiff's legs to prevent fur-

ther injury.

The Court finds that prior to entering the jail, Plain-

tiff’s skin was in good condition with no sores on his

body. Upon leaving, Plaintiff had sores on his ankles and

buttocks. Dr. Barbara Snell was one of the doctors at the

Tennessee State Penitentiary when Larry Leach was ad-

mitted to that facility in September of 1983. According to

Dr. Snell, Leach’s condition on September 13, 1983, when

he entered the prison hospital, consisted of a decubitis

ulcer on his buttocks and a small ulcer on his right ankle.

(Snell, Dep. 26). He was given medicine for an infection,

in the form of ampicillin, in September and again in

October. (Snell, Dep. 29-30). The Court finds that Plaintiff

developed these new ulcers because of the deliberate and

deplorable treatment he received at the Shelby County

Jail.

The treatment afforded Plaintiff at the Shelby County

Jail caused him great distress. He did not know when his

essential bodily needs would be cared for. He developed

a burning sensation on the lower part of his back and

frequent headaches, conditions which had not existed

prior to his incarceration.

Plaintiff was not the only disabled person treated in

this shocking manner. Plaintiff and Sonny McLatcher de-

scribed the condition and deplorable treatment of other

inmates including John Johnson. Johnson, who was

Leach’s cellmate, had recently been transferred to the Jail

Ao release Tinroh drm etial nt

}

;

45A

from the Regional Medical Center. Johnson had problems

moving and walking. Johnson often remained in his own

feces and urine on the floor for hours without any assis-

tance.

Plaintiff stated that Corpsman Bunso had a bad atti-

tude and was very hostile toward him. Bunso refused to

permit bowel training of Plaintiff or anyone to assist

Plaintiff. On one occasion Bunso told Plaintiff to “get the

hell out” of his office. On another occasion, Bunso tciu

Plaintiff that if he needed catheters, he should have his

mother get them for him. Mr. McLatcher also observed

that Bunso had a negative attitude about Leach.

McLatcher stated, “He gets everything, I didn’t bring him

here. He put himself in this predicament.” McLatcher also

heard Bunso make negative statements about Leach’s

cellmate.

Howard McLatcher observed sores on the top part of

Leach’s buttocks. He had occasion to see the sores when

he washed Leach. He also discovered sores on Leach’s

right ankle.

John Bunso was the medical director of the Shelby

County Jail infirmary on July 30, 1983. He was in charge

of the medical treatment of inmates at the jail, including

Larry Leach.

The jail routine was to have a sick call for all inmates

two or three times a day when medication was adminis-

tered. Further, if an inmate wanted to see a physician, the

inmate would complete a medical request form and Bun-

so would determine whether to allow the individual see a

physician.

46A

All the medical care of male inmates was adminis-

tered by the corpsmen, and the care of female inmates by

a registered nurse. The registered nurse was prohibited

from treating any males and the corpsmen were prohib-

ited from treating females.

Mr. Bunso denied any mistreatment of Leach. He

stated that during the first ten days, Leach was seen in

the infirmary almost daily and that he saw Leach almost

daily. He stated that it took one or two hours per day

when Leach was in the infirmary and that he was givena

bath whenever he requested it. The Jail medical records

and the printout on Leach’s movements seriously dis-

credits this testimony. The Court, therefore, discounts this

testimony of Bunso as incredible and self serving.

Bunso also stated that Leach hardly ever complained

and did not complain about his care. He stated that Leach

was thankful. (See also, Bunso Affidavit, 410). He stated

that Leach never complained about headaches or pain.

When asked if he had said that Leach was the most

arrogant paraplegic he ever treated, Bunso stated that he

did not make such a statement and, if anyone said that he

did, that person would be lying. dowever, Bunso’s own

deposition reveals that he said that Leach was “the most

arrogant paraplegic” and that he had “calmed him

down.” Bunso also stated at trial that if Leach had been

the most arrogant paraplegic, Bunso would never have

given him cigarettes and food.

Incredibly, Bunso stated that his affidavit of February

16, 1984, at Paragraph 9, where he stated that Leach had

come to the jail with a severe sacrodecubitus ulcer and

;

47A

that during his incarceration the ulcer was completely

healed, was a mistake.

Also, in his deposition, Bunso denied ever talking to

William Sellari, the investigator for the Department of

Human Services. He indicated on two separate occasions.

in the deposition that he did not talk to Sellari. However,

he admitted at trial that he did indeed talk to Sellari

before Sellari visited Leach. |

Danny McCain was a corpsman assigned to the 4:00

to 12:00 shift in July through September, 1983. He was the

only corpsman on duty during that shift and would ad-

minister medication. He stated that he saw Leach during

the first ten days of his stay and never found Leach to be

dirty. He stated that Leach had a bath during the first ten

days. However, McCain’s name does not appear any-

where in the medical charts as providing any treatment

for Leach during the first eleven days of his stay at the

jail. It is noteworthy that nearly every day after William

Sellari’s visit, an entry was made by McCain concerning

Mr. Leach’s treatment. McCain’s testimony is simply not

credible in light of the glaring lack of any entries in

Leach’s medical chart prior to Sellari’s visit.

Robert Alvoid was a corpsman at the jail during

Leach’s stay. He stated that he reported to Bunso for his

instructions. At a regular time in the morning, beginning

at about 8:15, he administered medication among the

nearly 300 inmates to those who needed it. He stated that

he gave Leach two blankets for his care and that he

bathed Leach approximately four times. He further stated

that Sonny McLatcher often bathed Leach. He stated that

Leach did have some sores on his body. He also stated

48A

that Leach needed assistance when transferring to and

from his bed and on one occasion he assisted him. He

stated that they got a mattress for Leach in order for them

to make it easier for him to get on and off the cot.

Alvoid admitted medical entries were very important

to determine what type of care was rendered and what

type of treatment should be prescribed. He admitted that

Leach’s medical records for the first ten days indicate that

Alvoid only gave medication to Leach. The records indi-

cate that the first time Alvoid gave Leach a bath was on

August 15, 1983. Alvoid stated that he was not sure when

the first day was that he bathed Leach. He indicated that

there was no way for him to now determine when he first

bathed Leach.

CONCLUSIONS OF LAW

The parties have stipulated in the Pre-Trial Order

that the Court has jurisdiction to hear this action pur-

suant to 28 U.S.C. § 1343. Plaintiff initiated this civil

rights action under 42 U.S.C. § 1983. This cause of action

is clearly cognizable under Section 1983. Estelle v. Gamble,

429 U.S. 97, 50 L.Ed. 2d 251, 97 S.Ct. 285 (1976); Westlake

v. Lucas, 537 F.2d 857 (6th Cir. 1976); Parrish v. Johnson, 800

F.2d 600 (6th Cir. 1986).

In Estelle v. Gamble the Supreme Court recognized

that “[rjegardless of how evidenced, deliberate indif-

ference to a prisoner’s serious illness or injury states a

cause of action under § 1983.” 429 U.S. at 105. The Court

noted that deliberate indifference to the serious medical

49A

needs of. a prisoner constitutes an unnecessary and wan-

ton infliction of pain proscribed by the Eighth Amend-

ment to the United States Constitution. There is a

violation whether the indifference is manifested by a

doctor in response to a prisoner’s need, by prison guards

intentionally denying or. delaying access to medical care,

or by “intentionally interfering with treatment once pre-

scribed.” Id. at 104. It is clearly established by a prepon-

derance of the evidence that jail corpsmen, especially Mr.

Bunso, did intentionally interfere with the prescribed

treatment of Larry M. Leach, and, therefore, their actions

constitute deliberate indifference to the serious injury

and medical needs of Mr. Leach.

The Court of Appeals for the Sixth Circuit has also

recognized that deliberate indifference, no matter how

evidenced, constitutes a violation of the Eighth Amend-

ment. Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1971); Par-

rish v. Johnson, 800 F.2d 600 (6th Cir. 1986). In Parrish, the

Court of Appeals had to determine whether facts very

similar to those in the present case constituted cruel and

unusual punishment under the Eighth Amendment. Two

male paraplegics were incarcerated and both men exhib-

ited diminished control over their bladder and bowel

functions. They frequently soiled themselves. Assistance

in cleaning was often slow and Parrish, on a regular

basis, was forced to sit in his own feces. Neither man had

adequate facilities for cleaning. The Court of Appeals

found that these deplorable conditions constituted cruel

and unusual punishment for which damages should be

awarded.

In Parrish, the Court extensively examined the type of

damages available for Eighth Amendment violations, and

50A

held that, while general damages are not to be presumed,

neither must actual damages always be shown. Rather,

the Court adopted a case-by-case analysis in which each

act comprising an Eighth Amendment violation should be

considered on its own merits. The Plaintiff is not required

to show lasting and severe injury to establish a claim for

damages under the Eighth Amendment. The Court con-

cluded that a paraplegic prisoner could recover damages

for any injury caused by deliberate failure to provide

medical care, including recovery for concomitant pain,

suffering and mental distress. 800 F.2d 610-611.

In Tennessee, the Sheriff has the “custody and

charge” of the County Jail and all prisoners committed

thereto. Tenn. Code Ann. § 41-4-101. In addition, the jail

is used as “a prison for convicts sentenced to imprison-

ment in a penitentiary, until they are removed thereto.”

Tenn. Code Ann. § 41-4-103. Mr. Leach had been found

guilty of a felony and remanded into the custody of the

Tennessee Department of Corrections on July 30, 1983

During his stay in the Shelby County Jail, Leach was a

convicted prisoner waiting to be sentenced and moved to

a state facility. Mr. Leach was nota pre-trial detainee. The

Sheriff had an obligation under state law to provide him

with adequate care. Further, the Sheriff had a constitu-

tionally imposed duty to provide Mr. Leach with ade-

quate medical care.

A supervisor employee, such as the Sheriff, can be

liable for the actions of a subordinate when the super-

visor knew, or should have known, of the danger of a

subordinate depriving an individual of a constitutional

right. Brandon v. Allen, 516 FSupp. 1355, 1361 (W.D. Tenn.

1981) aff'd in part and rev’d in part; 719 F.2d 151 (6th Cir.

——o

51A

1983) rev’d on other grounds sub nom; Brandon v. Holt,

469 U.S. 464 (1985).

In the present case, during the Defendant Sheriff's

tenure, a new jail was constructed which included a

hospital ward. That ward was fully equipped with hospi-

tal beds, tubs, and equipment needed for the care of

patients such as Plaintiff. Defendant Sheriff has refused

to open the hospital facility. Accordingly, paraplegics

such as Plaintiff were kept in substandard facilities with

inadequate beds and cleaning facilities. Notably, since

Plaintiff’s transfer to the State Penitentiary, he has been

maintained in a hospital bed, in a ward with adequate

facilities and personnel including registered nurses

It is clear that the Defendant Sheriff Barksdale left

the medical treatment and care to the discretion of Mr.

Bunso. Defendant Barksdale clearly had a duty under

state law to supervise the medical care and treatment of

inmates. Further, Sheriff Barksdale was advised by Mr

Sellari of the Leach complaint. The record reflects that

Sheriff Barksdale took no action to correct the situation

nor to discipline Mr. Bunso for the mistreatment. Finally,

there was evidence of numerous Instances of abuse of

paraplegic or physically infirm inmates. Both John John-

son and Willie Matthews were provided inadequate care

and substandard treatment. Mr. Bunso testified that the

same type of treatment provided Plaintiff in L-Pod was

provided to at least 14 other paraplegics since the new jail

was opened. From these facts it is clear that the Sheriff

knew, or should have known, about the inferior and

52A

substandard treatment of paraplegics and of the substan-

tial likelihood of a constitutional deprivation. Accord-

ingly, the Court finds that the Sheriff is responsible in his

official capacity for the injuries suffered by Plaintiff.

The evidence is overwhelming that the Defendant

was indifferent to the serious injury and medical needs of

Plaintiff. It is clear that Plaintiff was deliberately and

unnecessarily inflicted with wanton pain in much the

Same manner as the plaintiffs in Parrish v. Johnson. Mr.

Leach was completely dependent upon the medical

corpsmen for his most basic needs. He was denied an

adequate place to reside. He was prevented from evacuat-

ing his bowels for many days. He was forced to lie in his

Own excrement, risking further suffering and deteriora-

tion of his skin. He was forced to exist in this horrible

state for 10 days without a bath. This type of callous and

degrading treatment is deplorable and had a serious,

adverse effect on Plaintiff. Plaintiff developed new bed-

sores. He developed sores on his ankles and legs because

of the deliberate, unnecessary, and wanton treatment by

the Defendants. Upon his arrival at the State Penitentiary,

Plaintiff had an infected decubitis ulcer on his buttocks

which had obviously developed while at the jail. Finally,

Plaintiff was forced to suffer substantial emotional dis-

tress by not knowing when, if ever, his basic needs would

be addressed. Any reasonable person would suffer sub-

stantial mental anguish knowing that his basic health

needs were in the hands of persons who exhibited such

total disregard for his health. Plaintiff was simply at the

mercy of sadistic people. Therefore, the Court concludes

that the actions of the Defendants constitute cruel and

unusual punishment and that Plaintiff suffered serious

53A

physical and emotional injury as a result of the intention-

al and wanton infliction of this punishment.

Reviewing this case on its individual merits as re-

quired by Parrish v. Johnson, the Court finds that the

injuries suffered by plaintiff are clearly compensable.

Plaintiff was subjected to serve physical injury and the

development of additional decubitis ulcers. Further, he

suffered severe emotional distress as the result of the

defendant's actions. Plaintiff, therefore, is entitled to an

award of compensatory damages for the concomitant

pain, suffering and emotional distress resulting from the

deliberate indifference to his serious medical needs by jail

officials the first ten days Leach was in the Shelby County

Jail. Accordingly, the Court awards Leach the sum of

$10,000. The claim for punitive damages is denied. The

Court is mindful that the cost of Mr. Leach’s on-going

care is substantial.

It is therefore by the Court Ordered that plaintiff,

Larry Leach, is awarded judgment against the Shelby

County Sheriff, in his official capacity, in the sum of

$10,000. In addition, the sheriff, in his official capacity,

shall pay to plaintiff a reasonable amount for attorney

fees and expenses. Plaintiff's counsel is directed to sub-

mit to the Court within thirty (30) days from the date of

this Order affidavits setting forth reasonable attorney fees

and expenses. Defendant sheriff may respond to such

affidavits if he chooses, within twenty (20) days after

receipt of the affidavits. Since this is an official capacity

lawsuit, plaintiff, if he deems it appropriate, may move

the Court to amend the pleadings to name the incumbent

sheriff as defendant.

54A

Ordered this 23 day of September, 1987

/s/ Odell Horton

ODELL HORTON, JUDGE

UNITED STATES

DISTRICT COURT

ko ot ote.

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eighth amendment rights through their deliberate indif-

ference to his serious medical needs while he was incar-

cerated in the Shelby County Jail.

In 1982, Leach, shot by his victim while committing a

rape, was paralyzed from his chest down. He was treated

in various local hospitals for several months afterward,

his treatment including surgical repair of a sacro-

decubitus ulcer in May of 1983. On July 30, 1983, Leach

was found guilty of aggravated rape and kidnapping. He

was immediately incarcerated at the Shelby County Jail to

await sentencing. His treatment while at the Shelby

County Jail is the subject matter of this litigation.

Before entering the Shelby County Jail, Leach had

received rehabilitative care and training. Although able to

perform his own catheterization and bowel training with

some assistance, he was unable to touch his feet, change

his socks or move his lower extremities. To avoid recur-

rence of the ulcer, he required a firm mattress of sufficient

width to permit him to turn around in bed. He also

required particular attention to his cleanliness to avoid

infection.

The evidence clearly shows that during the first ten

days of his incarceration at the Shelby County Jail,

Leach’s treatment was deplorable. He was given a steel

(Continued from previous page)

official capacity suit, the entity that is ultimately liable is the

County. Therefore the omission or addition of the Mayor in his

official capacity is inconsequential here.

cot with an inadequate mattress and it was not until

several days after he had arrived at the jail that it was

) replaced with a hospital mattress. Despite his medical

need for cleanliness, he was not bathed for several days.

He was forced to remain for long periods of time in his

own urine due to inadequate catheter supplies and was

given inadequate aid for his bowel training needs despite

his repeated requests for help.

On August 9, Leach’s mother filed a complaint about

her son’s treatment with the Tennessee Department of

Human services. William Sellari, an employee of the De-

partment, contacted Sheriff Barksdale about the com-

plaint. He was referred to the Chief Jailer and then to

Corpsman Bunso who had personal contact with Leach

Sellari visited Leach on August 11 and concluded that he

and other inmates had been recently bathed, were not in

their own urine or feces and that there did not appeal to

be any abuse. It was not until after the Sheriff was noti-

fied of this complaint, however, that Leach’s treatment

changed and he began to receive humane treatment.

There is evidence that when Leach entered the Shelby

County Jail, his skin was in good condition and he had no

sores on his body. Upon leaving, he had sores on his

ankles and buttocks. He claimed that his treatment at the

jail caused him great distress, that he developed a burn-

ing sensation on the lower part of his back, and that he

was plagued with frequent headaches

Following a bench trial, the district court found that

Leach’s injuries were the result of deliberate indifference

to Leach’s medical needs by the jail personnel, in viola-

tion of the eighth amendment. The court further deter-

mined that there was evidence that other paraplegic or

physically infirm inmates at the Shelby County Jail had

been similarly mistreated and that, at least in this in-

stance, the Sheriff took no action to correct the situation

or to discipline the employees. The court held that the

Sheriff in his official capacity knew, or should have

known, of the inferior and substandard treatment of

paraplegics and that such treatment would deprive an

individual of a constitutional right. Brandon v. Allen, 516

F. Supp. 1355, 1361 (W.D. Tenn. 1981), aff'd in part and

rev'd in part, 719 F.2d 151 (6th Cir. 1983), rev'd on other

v. Holt, 469 U.S. 464 (1985)

Accordingly, the court awarded Leach the sum of $10,000

grounds sub nom., Brandon

against the Shelby County Sheriff in his official capacity.

On appeal the Mayor and Sheriff contend that in the

context of the events involved, there was no evidence of a

policy or custom” that was sufficient to establish their

liability in their official capacities under Monell v. New

York Department of Social Services, 436 U.S. 658 (1978)

Further, they contend that their liability is excused due to

having subcontracted away the medical care of the prison

inmates, in light of the Supreme Court’s recent decision

: ; . . _

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of liability of the Sheriff under section 1983.2 The central

issue is whether the facts here are sufficient to establish

liability of the Sheriff in his official capacity, specifically,

whether the facts sufficiently demonstrate a “custom or

policy” of the County as required for liability under

Monell, supra. A second issue is whether, as the defen-

dants argue, liability under Estelle v. Gamble, 429 U.S. 97

(1976), can be established where the medical care of pris-

on inmates was subcontracted away by the Sheriff. Our

decision on this issue is guided by West v. Atkins, supra

A. Section 1983 Liability

“To state a claim under § 1983, a plaintiff must allege

the violation of a right secured by the Constitution and

laws of the United States, and must show that the alleged

deprivation was committed by a person acting under

color of state law.” West, 108 S.Ct. at 2255 (citations

omitted). Plaintiff Leach claims that his eighth amend-

ment rights were violated by the deliberate indifference

to his serious medical needs during his incarceration at

the Shelby County Jail

> 42 U.S.C. § 1983 states

Every person who, under color of any statute

Ordinance, regulation, custom, or usage of any

State subjects, or causes to be subjected, any

citizen of the United States to the deprivation of

any rights, privileges, Or immunities secured by the

Constitution and laws shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress

The Supreme Court has held that deliberate indif-

ference to a prisoner’s serious medical needs by a prison

doctor or a prison guard is prohibited by the eighth

amendment. Estelle v. Gamble, 429 U.S. at 104-05. The

district court’s findings of fact show that during the first

ten days of his incarceration, Leach’s serious medical

needs arising from his paraplegic condition were deliber-

ately ignored by the Shelby County Jail personnel. These

findings are supported by the evidence and are not clear-

ly erroneous. Thus, Leach has satisfied the first require-

ment of section 1983, that he was deprived of a right

guaranteed by the Constitution

Next, Leach must show that a person acting under

color of state law committed the deprivation of his rights

Although the jail personnel were directly involved,* they

are not named as defendants herein. Rather, Leach sued

the Mayor and the Sheriff in their official capacities. The

question before this court then is whether the Mayor and

Sheriff may be held liable in their official capacities under

section 1983 for Leach’s damages and what that means in

terms of actual responsibility to pay the determined dam-

ages.

In 1978, the Supreme Court overruled Monroe v. Pape

365 U.S. 167 (1961), insofar as Monroe had held that local

governments were not “persons” within the meaning of

section 1983 and thus were wholly immune from suit

under the statute. Monell, 436 U.S. at 690. In Monell, the

> Leach’s claim is therefore unlike the case of Parrish

Johnson, 800 F.2d 600 (6th Cir. 1986), where the jail personne!

themselves were sued tor their mistreatment of paraplegic

inmates

Court determined that a municipality is a “person” with-

in the meaning of section 1983 who can be sued directly if

it causes a constitutional tort through “a policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.” Jd. The Court re-

jected the doctrine of respondeat superior as an infallible

bellwether to establish municipal liability. Instead, it de-

termined that “municipalities could be held liable only

when an injury was inflicted by a government's ‘lawmak-

ers or by those whose edicts or acts may fairly be said to

represent official policy.’ ” City of St. Louis v. Praprotnik,

108 S. Ct. 915, 923 (1988) (quoting Monell, 436 U.S. at 694).

Depending upon the relief sought, a suit under section

1983 normally should be brought against either or both of

two defendants: the local public official in his individual

capacity and the local government which employs or is

sought to be held responsible for the acts of that local

public official.4

A successful suit against an individual acting under

color of law results in personal liability of the individual

to the injured party for the amount of his injuries. In this

individual capacity, the local public official may prevail

on the affirmative defenses of absolute or qualified im-

munity if they are applicable. See Harlow v. Fitzgerald, 457

U.S. 800 (1982). This doctrine and the theories of liability

and immunity applicable thereto are not relevant to suits

directly against a governmental entity.

* The analysis which follows applies only in the context of

“local government units which are not considered part of the

State for Eleventh Amendment purposes.” Monell, 436 U.S. at

690 n.54.

A suit against an individual “in his official capacity”

has been held to be essentially a suit directly against the

local government unit and can result in that unit’s lia-

bility to respond to the injured party for his injuries.

Official capacity suits, ... “generally represent

only another way of pleading an action against

an entity of which an officer is an agent.” ... As

long as the governmental entity receives notice

and an opportunity to respond, an official ca-

pacity suit is, in all respects other than name, to

be treated as a suit against the entity.

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citations

omitted). In such suits, however, the governmental entity

is not entitled to assert the immunity defenses available

to individual actors sued in their individual capacities.

See Owen v. City of Independence, 445 U.S. 622 (1980).

Further, before a local government can be held liable for

injuries under section 1983, whether the suit is pleaded as

an official capacity suit or a suit against the local govern-

ment, a plaintiff must show that his injuries were the

result of some “policy or custom” attributable to the

governmental entity. Monell, 436 U.S. at 690. As the Su-

preme Court stated in Kentucky v. Graham:

On the merits, to establish personal liability

in a § 1983 action, it is enough to show that the

official, acting under color of state law, caused

the deprivation of a federal right. . . . More is

required in an official-capacity action, how ever,

for a governmental entity is liable under § 1983

only when the entity itself is a “moving force”

behind the deprivation, . . . thus, in an official-

capacity suit the entity’s “policy or custom”

must have played a part in the violation of

federal law.

473 U.S. at 166 (citations omitted).

Because a suit under section 1983 against a defendant

“in his official capacity” is equivalent to a suit against the

local government entity, provided that the entity receives

notice and an opportunity to respond, the prudent course

for a plaintiff who seeks to hold a local goverment entity

liable for damages resulting from an allegedly uncon-

stitutional action under 42 U.S.C. § 1983 would be to

name in his pleadings the government entity itself. Al-

though the omission is not fatal in light of Kentucky v.

Graham, supra,> the governmental unit was not named

here. Notwithstanding the language in Kentucky v.

Graham, it is a wise course to name the unit specifically to

ensure the requisite notice and to provide an opportunity

to respond. As Chief Justice Burger noted:

It does not make a fetish out of orderly

procedure to say that if a claimant seeks dam-

ages from a municipality, this should be done by

making it a named defendant; that will assure

the municipality has notice and an opportunity

to respond.

Brandon v. Holt, 469 U.S. at 473 (Burger, C.J. concurring).

Leach’s suit against the Mayor and the Sheriff of

Shelby County in their official capacities is, therefore,

essentially and for all purposes, a suit against the County

itself. The issue, therefore, is whether there was a policy

or custom so attributable to the municipality as to render

it responsible for payment of the damages found

There is no dispute that the County, although not a

named party here, received adequate notice and an oppor-

tunity to respond.

10B

The district court made no explicit finding regarding

the existence of a policy or custom in this case. Rather the

court determined that the Sheriff was liable in his official

capacity because his failure to supervise the jail personnel

indicated his deliberate indifference to the rights of para-

plegic inmates at the Shelby County Jail. The court found

support for the conclusion of deliberate indifference be-

cause the Sheriff knew or should have known that the

maltreatment of paraplegic inmates was occurring and,

by such indifference, failed to prevent it.

1. Supervisory Responsibility

Supervisory liability under section 1983 arises from

the Supreme Court’s opinion in Rizzo v. Goode, 423 US.

362 (1976). In Rizzo, the Court found that the mayor, city

managing director, and police commissioner were not

liable for the constitutional violations by the city’s police

officers because “there was no affirmative link between

the occurrence of the various incidents of police miscon-

duct and the adoption of any plan or policy by [the

defendants] - express or otherwise - showing their au-

thorization or approval of such misconduct.” Id. at 371.

The Court rejected the idea that supervisory liability un-

der section 1983 could attach on the basis of respondeat

superior holding that the mere failure to act was not a

sufficient basis for liability. Instead, officials should be

personally liable in damages only for their own uncon-

stitutional behavior.®

the city was not a party to the lawsuit

eT |

11B

The Supreme Court left open the question of whether

a supervisor could be liable for inaction where he or she

knew or should have known of widespread violations by

subordinates. Our circuit has addressed this issue. “The

law is clear that liability of supervisory personnel must

be based on more than merely the right to control em-

ployees.” Hays v. Jefferson, 668 F.2d 869, 872 (6th Cir.), cert.

denied, 459 U.S. 833 (1982). Further, a claim of failure to

supervise or properly train under section 1983 cannot be

based on simple negligence. Id.; Daniels v. Williams, 474

U.S. 327 (1986).

[A] failure of a supervisory official to supervise,

control, or train the offending individual [em-

ployees] is not actionable absent a showing that

the official either encouraged or in some way

directly participated in it. At a minimum a

plaintiff must show that the official at least im-

plicitly authorized, approved or knowingly ac-

quiesced in the unconstitutional conduct of the

offending [employees].

Hays, 668 F.2d at 874. There is no claim in this case that

the Sheriff directly participated in or encouraged the

alleged deprivations of Leach. There is, however, at least

some evidence that the Sheriff “implicitly authorized,

approved, or knowingly acquiesced” in the action of the

responsible jail personnel as shown by the fact that it was

not isolated or confined to plaintiff Leach and that he

failed subsequently to punish the responsible individuals

Court are not required to ignore the fact of life that

policies can be and often are subtly but effectively pro-

mulgated by seemingly benign conduct.

Thus, we must determine whether supervisory lia-

bility, as discussed in Rizzo, is a necessary component of

\ }

12B

an official capacity suit. We find that an official capacity

suit does not require a showing of supervisory liability.

Since an official capacity suit is, for our purpose here, a

Suit against a governmental entity, the allegedly uncon-

stitutional action need only be based on a policy or

custom of that entity for liability to attach. While the

district court made no explicit finding of a policy or

custom, the court’s crediting of evidence implicitly made

such a finding. While we would not dictate any firm rules

as to when a failure to supervise rises to the level of a

policy or custom of deliberate indifference, we uphold

the finding of such a policy or custom in this case.

Policy or custom

Under the principles articulated in Monell, Leach

must demonstrate that his maltreatment was the result of

a policy or custom of the governmental entity. The policy

involved here is one of deliberate indifference to the

medical needs of paraplegic and physically incapacitated

prisoners in the Shelby County Jail. The manifestation of

this policy here has two aspects: first, the Sheriff failed to

supervise his employees adequately when he knew or

should have known of the danger that inmates such as

Leach were likely to receive inadequate care and second,

the Sheriff failed to investigate this incident and punish

those responsible, in effect ratifying their actions.

The district court determined that the Sheriff knew or

should have known of Leach’s deprivations yet failed to

correct the situation and was, therefore, deliberately in-

different to Leach’s needs. There is no evidence that the

13B

Sheriff actually knew or supported the corpsman’s ac-

tions toward Leach. Therefore, this is a situation where

the Sheriff should have known and acted. Such a require-

ment implies an affirmative duty to know and to act. The

district court found that the Sheriff was under an affirma-

tive obligation toward Leach:

In Tennessee, the Sheriff has the “custody and

charge” of the County Jail and all prisoners

committed thereto. Tenn. Code Ann.

§ 41-4-101. .. . The Sheriff had an obligation

under state law to provide [Leach] with ade-

quate care. Further, the Sheriff had a constitu-

tionally imposed duty to provide Mr. Leach with

adequate medical care.

Further, Tennessee law provides that the Sheriff has a

duty to provide adequate food and bedding, maintain

cleanliness and provide toiletries and showers. Tenn.

Code Ann. §§ 41-4-109, 41-4-111.

Not only was there a duty on the part of the Sheriff to

provide adequate care to Leach, but there had been

enough similar incidents to put the Sheriff, in his official

capacity, on notice that Leach would be subject to consti-

tutional deprivation. The district court found that:

there was evidence of numerous instances of

abuse of paraplegic or physically infirm in-

mates. Both John Johnson and Willie Matthews

were provided inadequate care and substandard

treatment. [A medical corpsman] testified that

the same type of treatment provided

[Leach] .. . was provided to at least 14 other

paraplegics since the new jail was opened.

These findings are adequately supported by the record

here and are not clearly erroneous. Based upon these

findings, we agree with the district court’s conclusion

14B

that the Sheriff was deliberately indifferent to Leach’s

needs while he was incarcerated in the Shelby County

Jail.

The next issue, then, is whether a municipality can be

held liable for damages where the Sheriff's failure to

supervise amounts to deliberate indifference to the rights

of persons incarcerated at the jail. Guiding this deter-

mination is the Supreme Court's recent decision in City of

Canton v. Harris, 109 S. Ct. 1197 (1989). In Canton, the City

appealed a Sixth Circuit decision which held that a mu-

nicipality could be liable for failing adequately to train its

police force where the municipality recklessly, inten-

tionally, or with gross negligence failed to train its offi-

cers under circumstances in which a deprivation of

constitutional rights was substantially certain to result.

The Supreme Court determined that this standard was

too broad and instead held that:

the inadequacy of police training may Serve as

the basis for § 1983 liability only where the

failure to train amounts to deliberate indif-

ference to the rights of persons with whom the

dob: - p

police come into contact.

Id. at 1204. The Court emphasized that municipal liability

was based on the finding of a policy of the municipality

and that therefore the deliberate indifference must

amount to a policy of the municipality. Noting that it

would seem contrary to common sense that a city W ould

have a policy of inadequately training Its police force, the

Court stated:

it may happen that in light of the duties assign-

ed to specific officers or employees the need for

more or different training is so obvious, and the

inadequacy so likely to result in the violation of

15B

constitutional rights, that the policymakers of

the city can reasonably be said to have been

deliberately indifferent to the need. In that

event, the failure to provide proper training

may fairly be said to represent a policy for

which the city may be held liable if it actually

Causes injury.

Id. at 1205. Given the district court’s finding of deliberate

indifference by the Sheriff in that at least 14 other para-

plegics had received similar deplorable treatment, it is

fair to say that tne need for more adequate supervision

was so obvious and the likelihood that the inadequacy

would result in the violation of constitutional rights was

so great that the County as an entity can be held liable

here for the extent of Leach’s determined damages.

Further evidence of a policy of deliberate indif-

ference is found in the Sheriff’s failure to investigate this

incident and punish the responsible parties. It was the

same type of “ratification of the illegal acts” that the Sixth

Circuit found to be a sufficient “official policy” of the

county and sheriff in Marchese v. Lucas, 758 F.2d 181, 188

(6th Cir. 1985), cert. denied, 480 U.S. 916 (1987). In

Marchese, a prisoner who had threatened a police officer

was twice beaten while in the presence and custody of

the police. The fact of the abuse came to the trial court’s

attention and the sheriff was ordered to investigate the

incident. The sheriff failed to investigate the incident or

discipline the officers involved. In a section 1983 action

the Sixth Circuit affirmed a judgment for the prisoner

against both the sheriff in his official capacity and the

County. The court first noted that even though the sheriff

was not present during the beatings, because he was sued

16B

in his official capacity, “in that capacity, he had a duty to

both know and act.” Id.

The court concluded that the official policy of the

sheriff and the County” in that case (1) did not require

appropriate training or discipline of the police officers,

and (2) would not engender either investigation or sanc-

tlons against officers when such an assault occurred. “It is

this latter official policy which we also regard as ratifica-

tion of the illegal acts “ Id. On this basis, the court

found liability on the part of the County and the sheriff.

The similarities to this case are twofold. First, Sheriff

Barksdale is sued here in his official capacity. The district

court determined that under state law he had a duty to

supervise the medical care and treatment of the prison

inmates. Therefore in his capacity as Sheriff, he had a

duty to know and act upon this constitutional depriva-

tion. Second, the district court concluded that “[t]he re-

cord reflects that Sheriff Barksdale took no action to

correct the situation nor to discipline [the employee re-

sponsible] for the mistreatment.” Thus, like Marchese, the

Sheriff here ratified the unconstitutional acts. In March:

such ratification was deemed sufficient to attach liability

to the sheriff and the County. We find it equally sufficient

in this context

Consequently, we find that the policy or custom of

deliberate indifference to the needs of paraplegic prison

ers in the Shelby County Jail is adequately demonstrated

? Note that in Marchese the County was a named defen

dant in contrast to this case. For this reason the court in

Marchese made an explicit finding of a policy or custom

in the findings of the district court and supported by the

record before us. The Sheriff’s failure to supervise and

correct the situation in view of the numerous similar

incidents and his failure subsequently to punish the re-

sponsible individuals is more than sufficient evidence of

a policy or custom to render the County liable for Leach’s

damages in this official Capacity suit.

B. Contracting Out Medical Responsibility

The Sheriff and Mayor contend that they are not

liable for Leach’s injuries because, under Tennessee law,

the medical care of prisoners at the Shelby County Jail is

by contract performed by an outside health care provider

[hev argue that the facts show that only the medical

personnel involved with caring for Leach caused his inju-

ries through deliberate indifference to his needs and be-

cause these personnel were employed by a separate entity

and not the Sheriff, the Sheriff cannot be liable for their

actions.

Che Sheriff relies on Willis v. Barksdale, 625 F Supp

411 (W.D. Tenn. 1985), to assert that Tennessee law does

vot require the Sheriff to address the unique medical

needs of each prisoner but rather is permitted to rely on

the county’s medical personnel in this area. In Willis, the

same district court questioned the sheriff's obligation to

know and act in a section 1983 action involving the same

Sheriff, the same jail, the jail administrator and the Coun-

ty.

18B

In Willis, the court recognized that:

The sheriff is an official popularly elected by

county residents who has the statutory respon-

sibility for safekeeping all prisoners within the

jail. T.C.A. Sections 8-8-201 and 41-4-101.

Id. at 414. The case was brought on behalf of a prisoner

who died of heat stroke during a heat wave. He had been

on medication which made him particularly susceptible

to the heat. The defendants were charged with deliberate

indifference arising from their failure to know of the

deceased's special needs and act upon them. In denying

relief against the chief jailer the court explained that:

Here, defendant Coop, as chief jailer, had a duty

derived from the constitution, from Tennessee

statutory law, and from Tennessee common law,

to maintain reasonably safe conditions. Implicit

in that duty is some responsibility to confront

prisoners’ basic medical needs. Towards that

end, defendant Coop ordered certain measures

to minimize the heat wave’s impact on the pris-

oners’ health. Yet Coop’s duty did not extend to

developing procedures to discover the special

medical needs of individual inmates. Tennessee

by statute specifically delegates to others the

duty to address inmates’ specific medical prob-

lems. Further, health department employees, not

Coop, had direct responsibility for providing

medical care, including administering medica-

tions, to particular inmates. It was their duty to

discover the medical needs of particular inmates

and to advise jail administrators of those needs

Absent evidence to the contrary, defendant

Coop constitutionally could operate on the as-

sumption that those responsible for providing

medical care to particular inmates were dis-

charging that duty properly and that they

would communicate to him their professional

19B

judgment about medical needs of prisoners re-

quiring his action

Id. at 417 (footnotes omitted). Later, in addressing a pen-

dent state claim the court elaborated:

Tennessee common law imposes upon the

sheriff and his chief jailer a duty to treat prison-

ers “kindly and humanely.” Hale v. Johnston, 140

Tenn. 182, 203 S.W. 949 (Tenn. 1918); State ex rel.

Morris v. National Surety Co., 162 Tenn. 547, 39

S.W.2d 581 (1931). Tennessee statutory law im-

poses upon them, in impressive breadth and

detail, a multitude of mandatory duties de-

signed to promote the inmate’s welfare. By con-

trast, Tennessee does not impose upon the

sheriff or his jailer any statutory duties directly

and immediately related to the medical ca.e of

inmates. In fact, Tennessee expressly assigns

those duties to others. For example, T.C.A. Sec-

tion 41-4-115(a) states that “[t]he county legisla-

tive bodies shall alone have the power, and it

shall be their duty, to provide medical atten-

dance upon all prisoners " Furthermore,

T.C.A. Section 41-4-116(c)(2) permits the county

legislative body to appoint jail inspectors whose

“duties” include the making of “rules and regu

lations for the preservation of the health and

decorum of the prisoners “ Finally, T.C.A

Section 41-4-140(a)(1) directs the Tennessee Cor

rections Institute to “establish minimum stan-

dards . for the safekeeping, health and

welfare of inmates

fennessee law, therefore, did not require de

fendants to ferret out and address the unique

medical needs of each individual prisoner. Ten-

1essee law permitted them to rely upon the

county’s medical personnel to treat prisoners

medical problems properly. True, it might have

been wise for the sheriff or his jailer, consistent

with their general common law duty to provide

20B

a relatively safe environment, to establish stan-

dard mechanisms by which the medical person-

nel would communicate effectively with the

regular jail staff. However, it was well within

their discretion how best to accomplish the task

of promoting communication between the jail’s

medical and regular staffs so as to ensure the

physical well-being of inmates with special

medical needs.

Id. at 421 (footnotes omitted). The Sheriff contends that

this excuses him from liability in his official capacity for

his deliberate indifference to Leach’s needs while he was

incarcerated in the Shelby County Jail.

The recent case of West v. Atkins, 108 S. Ct. 2250

(1988), sheds some light on this issue. In West, a doctor

under contract to provide medical services for prison

inmates was charged with a violation of section 1983 for

deliberate indifference to a prisoner’s medical needs in

violation of the eighth amendment. The issue in West was

whether a physician under contract with the State to

provide medical services to prison inmates acts “under

color of state law” within the meaning of section 1983. Id

at 2252. The Court found in the affirmative and also

observed that a contrary decision would diminish a pris-

oner’s eighth amendment right “since few of those with

supervisory and custodial functions are likely to be in

volved directly in patient care.” Id. at 2258 n.12. The

Sheriff here claims that this indicates that he should not

be held liable in this case as a supervisory employee

because the medical care of inmates is the responsibility

of the medical personnel and that only they should bs

liable for the injuries that they cause. Although West may

support an argument that he is not personally liable as a

21B

supervisor, it does not support any argument that the

County should not be liable here. As the court 1 ted in

West:

Contracting out prison medical care does

relieve the State of its co nstitutional duty ¢

provide adequate medical treatment to those

its custody, and it does not deprive the State 5

prisoners of the means to vindicate their F

Amendment rights. The State bore an affirma

tive obligation to provide medical ire t

West

oye

“

—

Id. at 2259 (footnote omitted i nis

to the Sheriff’s contentions. the St

ty) retains responsibility de SI

the medical care of its pris

Sheriff is here in his official] iT

the County involved here), the She:

liability due to having contracted

Finally, the Sheriff's argume

pletely ignores the fa

ever may |

personnel under Will:

Sibility of conforming |

standards in providing and

ding, toiletries and cleanling

tary conditions and bedding were d

medical care was deplorably defi

cy of deliberate indifference |

Leach IS not CXCUSeCOd

ittendant medical staff

22B

policy or custom of deliberate indifference sufficient to

establish the liability of the County.

Ill.

Accordingly, for the reasons stated above, the deci-

sion of the district court awarding plaintiff Leach $10,000

against the Sheriff in his official capacity is AFFIRMED.

arene ————

APPENDIX C

No. 87-6141

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LARRY M. LEACH, )

MD )

Plaintiff-Appellee, ) ORDER

V. ) (Filed

EUGENE BARKSDALE, ETC., ) Feb. 8 1990)

ET AL., )

Defendants-Appellants )

BEFORE: BOGGS, Circuit Judge; ENGEL, Senior Circuit

Judge; and McQUADE”*, U.S. District Judge

The Court having received a petition for rehearing en

banc, and the petition having been circulated not only to

the original panel members but also to all other active

judges of this Court, and no judge of this Court having

requested a vote on the suggestion for rehearing en banc,

the petition for rehearing has been referred to the original

hearing panel.

The panel has further reviewed the petition for re-

hearing and concludes that the issues raised in the peti-

tion were fully considered upon the original submission

and decision of the case. Accordingly, the petition is

denied. |

* Hon. Richard B. McQuade, Jr., sitting by designation

from the Northern District of Ohio, resigned effective October

1, 1989.

ENTERED BY ORDER OF THE

COURT

/s/ Leonard Green

Leonard Green, Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.