FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
July 11, 2012
In the Court of Appeals of Georgia A12A0352. GRAHAM et. al. v. COBB COUNTY et. al. DO-016
DOYLE , Presiding Judge.
This case arises from the death of an inmate, Justin Graham, in the Cobb
County Jail. The decedent’s family, led by his twin brother, Jason Graham, filed
claims against several defendants, including Cobb County, Cobb County Sheriff Neil
Warren in his official and individual capacities, and Sandra Brocker, the medical
contract compliance administrator at the Cobb County Adult Detention Center, in her
official and individual capacities, Quest Medical, LLC, and WellStar Health Systems,
Inc. (“WellStar”). The trial court denied Graham’s motion to compel and granted in part summary judgment against Graham, who now appeals.1 For the reasons that
follow, we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.2
So viewed, the record establishes that the Cobb County Sheriff’s Office
(“CCSO”) contracted with WellStar to provide medical care to detainees at the Cobb
County Jail. The contract explicitly stated that “there [were] no third[-]party
beneficiaries to th[e] Agreement,” and CCSO did not intend to exercise control over
clinical decisions made by WellStar’s physicians, although WellStar was required to
follow policies set forth by CCSO. Brocker’s role was to manage and oversee the
medical facility at the jail.
1 The trial court denied summary judgment to various defendants who are not parties to this appeal. 2 Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
2 On May 18, 2006, at 2:22 a.m., Justin was arrested for driving under the
influence of alcohol after registering blood alcohol levels of .274 and .283 on a breath
test. He was transported to the jail, and after being checked at the infirmary, he was
sent to general population.
Later that day, at about 5:05 p.m., Graham suffered a seizure as he was being
escorted by guards, who called a “Code Blue” and had him transported to the
infirmary. Justin spent the night in the infirmary, where he was treated with alcohol
detoxification and anti-seizure medications and found to have a high bilirubin level
of 3.9 mg.3 After a few days of treatment, Dr. Clarence Hendrix, a doctor in the
infirmary, deemed Justin’s treatment for alcohol withdrawal successful and sent him
back to the general population on May 22, with instructions to continue medication
and follow up in two weeks.
On May 23, Justin complained of back pain and constipation, and an infimary
nurse observed him to have a yellow tinge in his eyes and upper torso. Infirmary
doctors ordered blood work and a hepatitis panel. This lab work evinced a bilirubin
level of 17.0 mg, which could indicate liver damage and impending liver failure.
3 The reference interval for normal bilirubin levels is 0.1 to 1.2 mg.
3 On May 25, Justin made another request for medical treatment. Later that day,
guards called another “Code Blue” on him after he fainted, and he was taken by
wheelchair to the infirmary. During this visit, a nurse examined Justin but did not
contact a physician. On May 28, Justin showed some improvement, but his bilirubin
level was still elevated at 16.5 mg, he was still jaundiced, and he still had an elevated
pulse rate and other elevated lab values. Nevertheless, Justin was returned to general
population. Over the following three days, he continued to complain of constipation,
was given medication and vitamins, and had more blood tests scheduled.
On June 2, Graham had another blood test done, which returned a bilirubin
level of 27.5 mg, indicating progressing liver disease and possible failure. By June
5, doctors observed that Justin was yellow and his abdomen was swollen, and Dr.
Hendrix ordered him to be transported to the WellStar Cobb Hospital emergency
room. Justin was diagnosed at the hospital with end stage liver disease, and he was
placed on life support nine days later and, thereafter, died on July 7, 2006, at age 25
of complications from liver failure, including renal failure and myocardial infarction.
After hearings on various motions, the trial court granted summary judgment
as to Cobb County, Sheriff Warren, Brocker, and Quest Medical and denied Graham’s
motion to compel. This appeal followed.
4 1. Graham argues that the trial court erred by granting summary judgment to
Cobb County, Sheriff Warren, and Brocker. We disagree.
(a) Federal claims.
Graham’s complaint alleged that the above-listed defendants failed to provide
Justin with adequate medical care, thereby leading to his death in violation of the
Eighth Amendment of the U.S. Constitution.
Under 42 USC § 1983, civil liability is imposed upon one “who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws. . . .”4 The first inquiry in any § 1983
suit, therefore, is whether the plaintiff has been deprived of a right “secured by the
Constitution and laws.”5
To state an Eighth Amendment violation for inadequate medical care, a
plaintiff must show that his medical treatment was “so grossly incompetent,
4 (Punctuation and emphasis omitted.) Baker v. McCollan, 443 U. S. 137, 140 (99 SC 2689, 61 LE2d 433) (1979). 5 Id.
5 inadequate, or excessive as to shock the conscience or be intolerable to fundamental
fairness or [that] the medical care is so inappropriate as to evidence intentional
maltreatment or a refusal to provide essential care.”6 Conduct that does not purport
to be punishment at all, such as medical care, must involve more than lack of due care
in order to be cruel and unusual punishment; it requires obduracy and wantonness,
not inadvertence or error in good faith, to violate the prohibitions of the Cruel and
Unusual Punishments Clause.7 Deliberate indifference to serious medical needs of
prisoners constitutes an Eighth Amendment violation, while an inadvertent failure to
provide adequate medical care does not.8 Moreover, this Court has stated that to show
an Eighth Amendment claim, “an inmate must show not only the infliction of cruel
and unusual punishment[,] but also must show a culpable state of mind on the part of
prison officials.” 9
6 Merritt v. Athens Clarke County, 233 Ga. App. 203, 204-205 (1) (504 SE2d 41) (1998), citing Rogers v. Evans, 792 F.2d 1052
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FOURTH DIVISION DOYLE, P. J., ANDREWS and BOGGS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
July 11, 2012
In the Court of Appeals of Georgia A12A0352. GRAHAM et. al. v. COBB COUNTY et. al. DO-016
DOYLE , Presiding Judge.
This case arises from the death of an inmate, Justin Graham, in the Cobb
County Jail. The decedent’s family, led by his twin brother, Jason Graham, filed
claims against several defendants, including Cobb County, Cobb County Sheriff Neil
Warren in his official and individual capacities, and Sandra Brocker, the medical
contract compliance administrator at the Cobb County Adult Detention Center, in her
official and individual capacities, Quest Medical, LLC, and WellStar Health Systems,
Inc. (“WellStar”). The trial court denied Graham’s motion to compel and granted in part summary judgment against Graham, who now appeals.1 For the reasons that
follow, we affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.2
So viewed, the record establishes that the Cobb County Sheriff’s Office
(“CCSO”) contracted with WellStar to provide medical care to detainees at the Cobb
County Jail. The contract explicitly stated that “there [were] no third[-]party
beneficiaries to th[e] Agreement,” and CCSO did not intend to exercise control over
clinical decisions made by WellStar’s physicians, although WellStar was required to
follow policies set forth by CCSO. Brocker’s role was to manage and oversee the
medical facility at the jail.
1 The trial court denied summary judgment to various defendants who are not parties to this appeal. 2 Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
2 On May 18, 2006, at 2:22 a.m., Justin was arrested for driving under the
influence of alcohol after registering blood alcohol levels of .274 and .283 on a breath
test. He was transported to the jail, and after being checked at the infirmary, he was
sent to general population.
Later that day, at about 5:05 p.m., Graham suffered a seizure as he was being
escorted by guards, who called a “Code Blue” and had him transported to the
infirmary. Justin spent the night in the infirmary, where he was treated with alcohol
detoxification and anti-seizure medications and found to have a high bilirubin level
of 3.9 mg.3 After a few days of treatment, Dr. Clarence Hendrix, a doctor in the
infirmary, deemed Justin’s treatment for alcohol withdrawal successful and sent him
back to the general population on May 22, with instructions to continue medication
and follow up in two weeks.
On May 23, Justin complained of back pain and constipation, and an infimary
nurse observed him to have a yellow tinge in his eyes and upper torso. Infirmary
doctors ordered blood work and a hepatitis panel. This lab work evinced a bilirubin
level of 17.0 mg, which could indicate liver damage and impending liver failure.
3 The reference interval for normal bilirubin levels is 0.1 to 1.2 mg.
3 On May 25, Justin made another request for medical treatment. Later that day,
guards called another “Code Blue” on him after he fainted, and he was taken by
wheelchair to the infirmary. During this visit, a nurse examined Justin but did not
contact a physician. On May 28, Justin showed some improvement, but his bilirubin
level was still elevated at 16.5 mg, he was still jaundiced, and he still had an elevated
pulse rate and other elevated lab values. Nevertheless, Justin was returned to general
population. Over the following three days, he continued to complain of constipation,
was given medication and vitamins, and had more blood tests scheduled.
On June 2, Graham had another blood test done, which returned a bilirubin
level of 27.5 mg, indicating progressing liver disease and possible failure. By June
5, doctors observed that Justin was yellow and his abdomen was swollen, and Dr.
Hendrix ordered him to be transported to the WellStar Cobb Hospital emergency
room. Justin was diagnosed at the hospital with end stage liver disease, and he was
placed on life support nine days later and, thereafter, died on July 7, 2006, at age 25
of complications from liver failure, including renal failure and myocardial infarction.
After hearings on various motions, the trial court granted summary judgment
as to Cobb County, Sheriff Warren, Brocker, and Quest Medical and denied Graham’s
motion to compel. This appeal followed.
4 1. Graham argues that the trial court erred by granting summary judgment to
Cobb County, Sheriff Warren, and Brocker. We disagree.
(a) Federal claims.
Graham’s complaint alleged that the above-listed defendants failed to provide
Justin with adequate medical care, thereby leading to his death in violation of the
Eighth Amendment of the U.S. Constitution.
Under 42 USC § 1983, civil liability is imposed upon one “who, under color
of any statute, ordinance, regulation, custom, or usage, of any State or Territory,
subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws. . . .”4 The first inquiry in any § 1983
suit, therefore, is whether the plaintiff has been deprived of a right “secured by the
Constitution and laws.”5
To state an Eighth Amendment violation for inadequate medical care, a
plaintiff must show that his medical treatment was “so grossly incompetent,
4 (Punctuation and emphasis omitted.) Baker v. McCollan, 443 U. S. 137, 140 (99 SC 2689, 61 LE2d 433) (1979). 5 Id.
5 inadequate, or excessive as to shock the conscience or be intolerable to fundamental
fairness or [that] the medical care is so inappropriate as to evidence intentional
maltreatment or a refusal to provide essential care.”6 Conduct that does not purport
to be punishment at all, such as medical care, must involve more than lack of due care
in order to be cruel and unusual punishment; it requires obduracy and wantonness,
not inadvertence or error in good faith, to violate the prohibitions of the Cruel and
Unusual Punishments Clause.7 Deliberate indifference to serious medical needs of
prisoners constitutes an Eighth Amendment violation, while an inadvertent failure to
provide adequate medical care does not.8 Moreover, this Court has stated that to show
an Eighth Amendment claim, “an inmate must show not only the infliction of cruel
and unusual punishment[,] but also must show a culpable state of mind on the part of
prison officials.” 9
6 Merritt v. Athens Clarke County, 233 Ga. App. 203, 204-205 (1) (504 SE2d 41) (1998), citing Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). 7 See Alford v. Osei-Kwasi, 203 Ga. App. 716, 718-719 (2) (418 SE2d 79) (1992), citing Whitley v. Albers, 475 U. S. 312, 319 (106 SC 1078, 89 LE2d 251) (1986). 8 See Estelle v. Gamble, 429 U. S. 97 (97 SC 285, 50 LE2d 251) (1976). 9 (Punctuation and emphasis omitted.) Merritt, 233 Ga. App. at 208 (3).
6 Even if all of Graham’s allegations are taken to be true, they do not show that
Sheriff Warren and Brocker wantonly denied Justin medical care. Graham points to
several facts that could show a difference of opinion with the defendants concerning
the propriety of medical treatment rendered to Justin, such as a failure to send him to
the hospital when his bilirubin levels failed to stabilize. Nevertheless, nothing in
Graham’s allegations or in the record shows wantonness, deliberate indifference, or
a culpable state of mind on the part of Warren or Brocker.10 Indeed, in their brief,
Graham repeatedly complains of inadequate medical care; this Court has previously
stated that such a claim sounds in medical malpractice and is inadequate to maintain
a § 1983 action.11
In Epps, this Court required a showing of a denial or refusal of treatment in
order to show deliberate indifference.12 In granting summary judgment to the
10 Compare with Howard v. City of Columbus, 239 Ga. App. 399, 408 (1) (a) (iii) (521 SE2d 51) (1999) (physical precedent only) (“The fact that ten to thirteen inmates have died from diabetes while in custody between 1980 and 1992 is some evidence of deliberate indifference to providing appropriate medical care and treatment for diabetics.”). 11 See Epps v. Gwinnett County, 231 Ga. App. 664, 666, 668 (3) (499 SE2d 657) (1998). 12 See id. at 667 (3).
7 defendants, this Court noted that “the record shows that [the decedent] did in fact
receive medical care every time he completed a medical request form.”13 Likewise,
Graham concedes that Justin was diagnosed and treated, and the record further
indicates that he was treated and given medication whenever he fainted or complained
of back pain or constipation. . Consequently, the evidence does not support a finding
of deliberate indifference on the part of Sheriff Warren or Brocker.14
Furthermore, Graham’s contention that Sheriff Warren or Brocker breached his
duty by delegating supervisory authority to WellStar is incorrect. In Epps, this Court
recognized that a local government contracting with a third party to provide medical
care at a detention center “does not amount to an intentionally corrupt or
impermissible policy which would violate any citizen’s Eighth Amendment rights.” 15
Accordingly, the trial court properly granted summary judgment to Cobb
County, Sheriff Warren, and Brocker on the § 1983 claims.
(b) State law claims.
13 Id. 14 Compare with Howard, 239 Ga. App. at 406-407 (1) (a) (ii) (policy in jail that doctors and nurses failed to provide sufficient care for budget reasons was sufficient evidence to support §1983 claim against sheriff). 15 Epps, 231 Ga. App. at 669 (7) (a).
8 Graham also argues that the trial court erred by finding that defendants Cobb
County, Sheriff Warren, and Brocker are immune from his asserted state law tort and
contract claims. We disagree.
(i) Sovereign Immunity
A governmental unit having custody of an inmate has the responsibility to
furnish any needed medical and hospital attention.16 Nevertheless, “[a] county is not
liable to suit . . . unless made so by statute.”17 While OCGA § 42-5-2 (a) imposes
upon the county the duty and cost of medical care for inmates in its custody, it does
not waive sovereign immunity of the county or its agents or employees.18 Thus, the
trial court correctly determined that the state law claims made against Cobb County
and against Sheriff Warren and Brocker in their official capacities are barred.
(ii) Official Immunity
Under the doctrine of official, or qualified, immunity, law enforcement officers may be personally liable for negligent actions taken in the performance of ministerial functions, but are immune from
16 See OCGA § 42-5-2 (a). 17 OCGA § 36-1-4. 18 See Gish v. Thomas, 302 Ga. App. 854, 862-863 (4) (691 SE2d 900) (2010); Howard, 239 Ga. App. at 410 (2) (a).
9 personal liability for discretionary acts taken within the scope of their official authority and performed without wilfulness, malice, or corruption. Stated succinctly, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.19
“A ministerial act is commonly one that is simple, absolute, and definite . . . and
requiring merely the execution of a specific duty. A discretionary act calls for the
exercise of personal deliberation and judgment . . . .”20 “The provision of adequate
medical attention is a ministerial act by the sheriff and his deputies and is not subject
to . . . official immunity. In contrast, the determination of what medical treatment to
provide is an act of discretion subject to official immunity.”21 Because the
19 (Punctuation and citation omitted.) Gish, 302 Ga. App. at 857 (1). 20 (Punctuation omitted.) Id. at 858 (1). 21 (Emphasis in original.) Howard, 239 Ga. App. at 411 (2) (b). See also Murphy v. Bajjani, 282 Ga. 197, 198-200 (1) (647 SE2d 54) (2007) (explaining that the statute at issue in that case (which statute, similar to this case, imposed a duty upon certain county actors) was “a textbook example of the difference between statutorily-mandated action and a ministerial act, as it clearly requires that action be taken and sets forth parameters for the action to be taken, but the action required is not simple, absolute, and definite, arising under conditions admitted or proved to
10 determination of how to provide adequate medical care to the prisoners at the jail
involved the use of discretion by Sheriff Warren and Brocker, and because Graham
has failed to allege any facts that establish that either party acted with wilfulness,
malice, or corruption, the trial court correctly determined that they are shielded from
personal liability by official immunity.
2. Further, Graham claims that the trial court erred by finding that Justin was
not a third-party beneficiary to the contract between the Cobb County Sheriff’s Office
and WellStar and consequently denying his breach of contract claims. We disagree.
“The beneficiary of a contract made between other parties for his benefit may
maintain an action against the promisor on the contract.”22 “In order for a third party
to have standing to enforce a contract[,] . . . it must clearly appear from the contract
that it was intended for his benefit. The mere fact that he would benefit from
performance of the agreement is not alone sufficient.” 23
exist, and requiring merely the execution of a specific duty that is the hallmark of a ministerial duty”) (punctuation omitted). 22 OCGA § 9-2-20 (b). 23 (Punctuation and emphasis omitted.) Walls, Inc. v. Atlantic Realty Co., 186 Ga. App. 389, 391 (1) (367 SE2d 278) (1988) (holding that because the express terms of a contract explicitly limited beneficiaries of the contract to the signatory parties, the plaintiff could not allege contract claim as a third-party beneficiary).
11 Here, under the express terms of the contract, there are no third-party
beneficiaries to the agreement.24 . Accordingly, this enumeration is without merit.
3. Graham next argues that the trial court erred by granting summary judgment
as to his punitive damages claim for the alleged Eighth Amendment violations. Based
on our conclusions that the trial court correctly granted summary judgment to Cobb
County, Sheriff Warren, and Brocker in Divisions 1 and 2, this enumeration is
without merit.25
4. Finally, Graham argues that the trial court erred by denying his motion to
compel discovery. Nevertheless, because he has failed to establish through his
argument on appeal that the trial court abused its discretion by denying the motion,
we will not disturb this ruling.26
Judgment affirmed. Andrews and Boggs, JJ., concur.
24 See id. at 392 (1). 25 See Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, 819 (3) (708 SE2d 672) (2011). 26 See Medical Staffing Network, Inc. v. Connors, 313 Ga. App. 645, 650 (2) (722 SE2d 370) (2010).