Wilmer Payne v. Sevier Cty., Tenn.

681 F. App'x 443
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 3, 2017
Docket16-5272
StatusUnpublished
Cited by14 cases

This text of 681 F. App'x 443 (Wilmer Payne v. Sevier Cty., Tenn.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilmer Payne v. Sevier Cty., Tenn., 681 F. App'x 443 (6th Cir. 2017).

Opinions

KETHLEDGE, Circuit Judge.

Wilmer Payne was incarcerated at the Sevier County Jail, where he received medical treatment from First Med, Inc., a County-hired healthcare contractor. In June of 2013, Payne began complaining of tooth pain, headaches, and nosebleeds. First Med suspected he had an infected tooth and treated him with antibiotics. Over the next four months, however, Payne failed to get any better, despite the medication. First Med then sent him for a CT scan, which revealed he had oral can[445]*445cer rather than an infection. Payne thereafter sued the County under 42 U.S.C. § 1983, arguing that First Med’s medical personnel and the County’s correctional officers had been deliberately indifferent to his serious medical needs, and that the County was responsible for that indifference. The district court granted summary judgment to the County. We affirm.

I.

On March 29, 2013, Payne arrived at the Sevier County Jail to serve a 39-week sentence for misdemeanor domestic assault. Three months later, on June 7, Payne filed an Inmate Sick Call Request, complaining of a toothache. Virginia Mason, one of First Med’s licensed practical nurses, responded, informing him that he had been added to the roster of inmates slated to see First Med’s dentist. For the next month and a half, Payne waited without hearing anything about a dental appointment. On July 23, Payne filed a grievance with the prison, demanding that he be seen, immediately because his pain had “intensified unbearably.” The correctional officer who received the grievance, Lieutenant Loveday, sent it to First Med.

The next day, another LPN, Amy Williams, conducted the first of what would be nine examinations of Payne by First Med. She observed that his lower right jaw was “slightly red with [a] yellow raised area.” Williams suspected that Payne had an infected tooth and prescribed penicillin. Payne soon filed another Inmate Sick Call Request, reporting that his gums were red and swollen, and that his nose would not stop bleeding. Another LPN, Susan Peterson, examined Payne; finding no evidence of redness, swelling, or nosebleeds, she denied his request for pain medication. Payne continued to receive antibiotics.

Two days after seeing Peterson, Payne filed a second grievance against First Med, complaining of cranial pressure, blurred vision, and difficulty swallowing. Again, Loveday forwarded the grievance on to First Med. LPN supervisor Jessie Tim-brook responded to Payne in writing, reiterating that Peterson had found nothing unusual during her examination, and promising that Payne would see First Med’s dentist the next time he visited the jail. Payne asked Loveday why Loveday had not responded to Payne’s grievance himself. Loveday replied that he was “overwhelmed” by other responsibilities and therefore “too jausy” to address Payne’s grievance.

Two weeks later, Williams and First Med’s dentist, Dr. Daniel Roberts, each examined Payne. During Williams’s exam, she observed a “raised pocket” on the roof of Payne’s mouth. Roberts did not document what he observed, but he prescribed another cycle of penicillin and three days’ worth of ibuprofen. Two days later, Payne asked to see Roberts again because he was still suffering from tooth pain, headaches, and nosebleeds. The next day, Payne made a request for more pain relievers, which First Med denied.

On September 12, another LPN, Sheri Cable, conducted First Med’s fifth examination of Payne. She observed that his palate was still swollen, and prescribed him a new antibiotic. Six days later, First Med’s physician’s assistant, Tim Thoma-son, examined Payne. He found a lesion on Payne’s palate, switched Payne’s antibiotic a second time, and prescribed him an antiseptic mouth wash. On September 25, Payne visited Roberts a second time. Again, nothing in the record reveals what, if anything, the dentist found. That same day, however, First Med scheduled Payne for a CT scan of his face and neck, to be taken October 7.

[446]*446On October 1, Payne filed his third grievance against First Med, complaining that he had not gotten any better despite the treatment he had received. Loveday again passed the complaint along to First Med. Another LPN, Dan Hartley, saw Payne twice in the next week. During the two visits, Hartley observed the following: a “right next mass,” an “oral lesion,” and “prominent swelling with pockets of what appeared as white flesh or pus” inside Payne’s nasal cavity. Hartley thought Payne might have a tumor, and told Tho-mason and Timbrook what he had found.

Timbrook then responded to Payne’s October 1 grievance, stating that First Med had examined Payne multiple times, prescribed him antibiotics and pain medication, and scheduled him for imaging. Payne responded by filing a fourth grievance, listing his symptoms and accusing First Med of “dragging [its] feet” in treating him.

Payne had his CT scan on October 7. Three days later, First Med received the results, which confirmed that Payne had an “aggressive soft tissue mass” in his nasal cavity that was “indicative of malignancy, possibly squamous cell carcinoma,” a form of cancer. An unidentified First Med employee faxed the results to Thoma-son. Over the next five days, no one at First Med examined Payne or informed him what the scan had revealed. Payne then filed a fifth grievance on October 15, demanding to see the results for himself. That same day, he began experiencing uncontrollable nosebleeds, and First Med sent him to the emergency room. There, an ER doctor told Payne for the first time that, according to the CT scan, he likely had cancer. Payne was released early from prison, and has been receiving cancer treatment ever since.

Payne thereafter brought this suit, under 42 U.S.C, § 1983, claiming that the County, First Med, and individual employees of both entities had violated his Eighth Amendment right to medical care in jail. First Med and its employees reached a settlement agreement with Payne, but the County and its employees did not; instead, they moved for summary judgment. The district court granted the County’s motion, holding that Payne had not identified any County custom or policy that had caused his injuries.

II.

We review the district court’s grant of summary judgment de novo. Smith v. City of Wyoming, 821 F.3d 697, 706 (6th Cir. 2016).

To bring a successful § 1983 suit against the County, Payne needed to prove not only that employees of the County or First Med had been deliberately indifferent to his serious medical needs, but that their indifference was directly caused by a County custom or policy. Baynes v. Cleland, 799 F.3d 600, 620-21 (6th Cir. 2015).

Here, the question is whether Payne has presented evidence creating a genuine issue as to whether a County custom or policy caused First Med’s medical staff to treat him with deliberate indifference. Payne argues that he has identified both a custom and a policy that harmed him.

For § 1983 purposes, a “custom” is a “practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled” as to have the force of law. Cash v. Hamilton Cty. Dep’t of Adult Prob.,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cook v. CoreCivic, Inc.
M.D. Tennessee, 2025
Kuzma v. Flaugher
E.D. Michigan, 2025
Black v. Royal Oak, City of
E.D. Michigan, 2024
Westbrook v. Bonner
W.D. Tennessee, 2024
Ragland v. Shelby County
W.D. Tennessee, 2024
Fairfield v. Waukesha County
E.D. Wisconsin, 2024
Williams 244723 v. Coleman
W.D. Michigan, 2023
Bownes v. Washington
E.D. Michigan, 2023
Cosner v. Thistlethwaite
S.D. West Virginia, 2020
Kevin Lipman v. Armond Budish
974 F.3d 726 (Sixth Circuit, 2020)
Scott Hildreth v. Kim Butler
960 F.3d 420 (Seventh Circuit, 2020)
Rodgers v. Oakland County
E.D. Michigan, 2019

Cite This Page — Counsel Stack

Bluebook (online)
681 F. App'x 443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilmer-payne-v-sevier-cty-tenn-ca6-2017.