Donald James v. Nicole Agee

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 23, 2020
• Docket: 18-14548
• Status: Unpublished

Opinion

Case: 18-14548 Date Filed: 01/23/2020 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-14548 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-01381-ELR

DONALD JAMES, individually as administrator of the estate of Jennifer James,

Plaintiff - Appellant,

versus

BARTOW COUNTY, GEORGIA, et. al.,

Defendants,

NICOLE AGEE, CORRECTHEALTH BARTOW, L.L.C.,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(January 23, 2020) Case: 18-14548 Date Filed: 01/23/2020 Page: 2 of 9

Before MARTIN, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM:

Donald James, individually and as administrator for the estate of his wife,

Jennifer James,1 appeals two decisions of the district court in the § 1983 action he

brought arising out of a fatal drug overdose his wife Jennifer suffered while she was

incarcerated: (1) the district court’s order granting a motion to dismiss to defendants

Clark Millsap, Gary Dover, Derek Cochran, Tina Pallone, Dallas Watson, “Causey,”

Joy Stanley, Andrea Crutchfield, Ariel Hendricks, and Jeremy Gazerro (collectively,

the “County Defendants”); and (2) the district court’s order granting summary

judgment to defendants CorrectHealth Bartow, LLC and Nicole Agee (collectively,

the “Medical Defendants”). He argues that he adequately alleged, and that the record

reveals genuine disputes of material fact as to, defendants’ deliberate indifference to

his wife’s serious medical needs during the drug overdose that resulted in her death,

in violation of the Eighth Amendment. After thorough review, we affirm.

We review both the grant of the motion to dismiss and the grant of summary

judgment de novo. See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1288 (11th

Cir. 2010) (motion to dismiss); Baker v. Birmingham Bd. Of Educ., 531 F.3d 1336,

1337 (11th Cir. 2008) (summary judgment). A motion to dismiss is due to be granted

1 The decedent’s first name appears variously in the record and the captions of this case as “Jennifer” and “Jenifer.” For consistency’s sake, we will use “Jennifer.” 2 Case: 18-14548 Date Filed: 01/23/2020 Page: 3 of 9

where, taking the factual allegations in the complaint as true, the plaintiff has not

stated a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009). “Determining whether a complaint states a plausible claim for

relief [is] . . . a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal, 556 U.S. at 679. A party is entitled

to summary judgment if “there is no genuine issue as to any material fact and the

movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). To

determine whether a factual dispute is genuine, we consider whether “the evidence

is such that a reasonable jury could return a verdict for the nonmoving party.”

Peppers v. Cobb County, 835 F.3d 1289, 1295 (11th Cir. 2016) (quotations omitted).

The relevant background -- based on the allegations in the complaint and the

undisputed record on summary judgment -- are these. On April 20, 2014, Jennifer

James, an inmate at Bartow County Jail, apparently consumed a large amount of

methamphetamine that another inmate had smuggled into the facility. After she had

been ill for several hours, she had a seizure, and other inmates pushed the panic

button in her cell to call for help. The inmates told the officer on the other end of

the line that Jennifer “wasn’t breathing,” and the officer responded to the effect that

“medical basically will get there when they get there.”

Shortly thereafter, nurse Nicole Agee arrived with a coterie of officers, now

the County Defendants, and began attempting to treat Jennifer. The written records

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do not tell us precisely how much time elapsed between the panic button call and

Agee’s arrival. Inmate witnesses testified that it took “five to ten minutes,” and “I

want to say it feel like it took at least 15 minutes,” respectively. Nurse Agee swore

she received the call at about 11:36 p.m., according to her watch, and must have

arrived at Jennifer’s cell before 911 records show an ambulance was called at 11:42

p.m. Agee testified in an affidavit that Jennifer resisted her help and denied having

taken drugs, but was cool to the touch, had shallow breathing, and developed

cyanosis. Agee first called for a stretcher from the medical unit in the prison, and

while waiting for the stretcher, she directed an officer to call 911 for an ambulance.

After the 911 call was received at 11:42 p.m., an ambulance was en route at

11:44 p.m., and it arrived at 11:48 p.m. Jennifer was admitted to the ICU at

Cartersville Hospital. She died several days later when her family removed her from

life support. She tested positive for a lethal dose of methamphetamine. Nurse Agee

testified that there is no reversal agent for a lethal dose of methamphetamine.

Donald James filed this action in the United States District Court for the

Northern District of Georgia against the County Defendants, the Medical

Defendants, and the County itself, asserting five claims. Three were violations of

42 U.S.C. § 1983, for failure to protect, deprivation of the right of due process, and

inadequate medical care. Two were state law claims. The district court granted the

County Defendants’ motion to dismiss and granted summary judgment to the

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Medical Defendants. The parties stipulated to the dismissal of any claims against

the County. James’s brief before us only appeals from the district court’s holding

that the County and Medical Defendants were not deliberately indifferent to

Jennifer’s medical emergency. The brief does not make any arguments concerning

the plaintiff’s claims based on a failure to protect, due process, or state law. As a

result, they have been abandoned for purposes of this appeal. See Sapuppo v.

Allstate v. Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (collecting cases).

The Eighth Amendment prohibits the infliction of “cruel and unusual

punishments.” U.S. Const. amend. VIII. This prohibition is violated where prison

officials act or fail to act with “deliberate indifference to serious medical needs” of

prisoners. Estelle v. Gamble, 429 U.S. 97, 106 (1976). To establish deliberate

indifference, a plaintiff must show: “(1) a serious medical need; (2) the defendants’

deliberate indifference to that need; and (3) causation between that indifference and

the plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir.

2009). Delayed medical treatment can rise to the level of deliberate indifference

when: (1) “it is apparent that delay would detrimentally exacerbate the medical

problem”; (2) the delay actually seriously exacerbates the problem; and (3) “the

delay is medically unjustified.” Taylor v. Adams, 221 F.3d 1254, 1259–60 (11th

Cir. 2000) (quotations omitted). A prisoner must provide “verif[ied] medical

evidence . . . to establish the detrimental effect of delay in medical treatment.” Hill

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v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994), overruled on

other grounds by Hope v. Pelzer, 536 U.S. 730, 739 n.9 (2002).

As for the County Defendants, James makes two sets of allegations. Each is

inadequate to state a claim for deliberate indifference. First, he alleges that the

defendants had intimidated the other inmates in the cell with Jennifer from pushing

the panic button earlier than they did by having generally, over a long period of time,

threatened retaliation “if you press [the] button for bullshit,” or used it in a non-life

or death situation. But this was a life or death situation, as the plaintiff

acknowledged by alleging that Jennifer was “obviously dying,” and upon realizing

this, the inmates pushed the panic button for help. Thus, even assuming the threats

were made, they did not prevent the inmates from pushing the panic button in the

situation at issue here, and the plaintiff has not alleged how much sooner the inmates

could or should have pressed the panic button, nor has he alleged that inmates were

categorically discouraged from using the panic button in all circumstances.

Second, James alleges that when the officers arrived at the scene, “they were

more interested in questioning the inmates about contraband than getting Jennifer

James to medical.” But according to James’s complaint, Nurse Agee was already

present and attempting to treat Jennifer when this occurred. By that time, Jennifer

was already receiving medical help, and the officers were entitled, consistent with

the Eighth Amendment, to defer to Agee’s professional judgments about Jennifer’s

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condition. See Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1050 (11th Cir. 2014)

(holding that prison officials were entitled to defer to the professional judgments of

mental health experts). Therefore, James has failed to plausibly allege that the

County Defendants were deliberately indifferent to her serious medical needs for

purposes of the Eighth Amendment, and the district court did not err in dismissing

the complaint against them as failing to state a claim.

As for the claims against Nurse Agee, the record reveals no genuine disputes

of material fact concerning whether Agee’s treatment of Jennifer violated the Eighth

Amendment, and the district court was correct to grant summary judgment to her.

Agee testified that she received the call about Jennifer’s emergency at 11:36 p.m. If

true, the time she could have taken in reaching Jennifer’s cell could have been no

more than six minutes, when the 911 records show an ambulance was called. The

only evidence James offers in rebuttal is the testimony of one witness who said that

it took “five to ten minutes” and another who said “I want to say it feel like it took

at least 15 minutes” for Nurse Agee to arrive. But the first witness’s testimony is

consistent with Agee’s account, and the second witness admitted in her deposition

that she was under stress at the time and the delay may have felt longer than it was.

In any event, even assuming that it did take fifteen minutes for Nurse Agee to arrive,

we’ve said before that a fifteen-minute delay is not actionable under the Eighth

Amendment. See Dang ex rel. Dang v. Sheriff, Seminole Cty., Fla., 871 F.3d 1272,

7 Case: 18-14548 Date Filed: 01/23/2020 Page: 8 of 9

1283 (11th Cir. 2017) (holding that there was no constitutional violation where

“there was about a 15-minute delay” in medical treatment).

Moreover, the record reveals no genuine disputes of material fact as to the

quality of Nurse Agee’s treatment. She testified that upon her arrival, she began

attempting to treat Jennifer immediately, and this fact is not controverted by the

testimony of the witnesses. She then directed an officer to call for an ambulance,

and the 911 report clearly shows that the ambulance was called at 11:42 p.m. and

had arrived by 11:48 p.m. In addition, Nurse Agee testified that there is no reversal

agent for methamphetamine toxicity. On this undisputed record, we can’t say that a

delay in treatment caused Jennifer’s death under Taylor. This is especially true in

the absence of any evidence, much less “verif[ied] medical evidence,” Hill, 40 F.3d

at 1188, that a quicker response time could have saved her. Thus, the district court

did not err in granting summary judgment to defendant Nicole Agee.

One defendant remains: CorrectHealth Bartow, LLC, the medical provider in

the jail. In his brief before us, James makes no arguments specific to CorrectHealth

and has abandoned the claims against it. Even if they were not abandoned, James

could only show a constitutional violation on the part of CorrectHealth under the

standard applicable to constitutional violations committed by municipalities. See

Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997) (“When a private entity . . .

contracts with a county to provide medical services to inmates . . . it becomes the

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functional equivalent of the municipality.”). Municipalities can be liable for the

constitutional violations of their employees only where “the action that is alleged to

be unconstitutional implements or executes a policy statement, ordinance,

regulation, or decision officially adopted and promulgated by that body’s officers.”

Monell v. Dep’t of Soc. Servs. of N.Y. City, 436 U.S. 658, 690 (1978). Plaintiff can

point to no evidence in the record, nor did he even allege, that CorrectHealth’s

policies include deliberately indifferent delays in providing healthcare.

Accordingly, the district court did not err in granting summary judgment to

CorrectHealth.

AFFIRMED.