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Lindley v. Taylor

United States District Court, N.D. Alabama, Southern Division

March 23, 2015

NURSE FREDIA L. TAYLOR, in her professional and official capacity as an employee of the City of Birmingham, and as a Nurse at the Birmingham City Jail; CORRECTIONAL OFFICER TANGERY THOMAS, in her individual and official capacity; CORRECTIONAL OFFICER BERNADINE HARPER, in her individual and official capacity; JOSSLYN A. TARVER, in her individual and official capacity; SERGEANT VERLYNE MOTEN, in her individual and official capacity, Defendants.



This case is before the court on Defendants' Motion for Summary Judgment, (Doc. 120)[1], and defendants' Motion to Strike Plaintiff's Evidentiary Submissions, (Doc. 129). Plaintiff Gerald Neal[2] Lindley has alleged various federal and state law claims against defendants related to his nine-day confinement in the Birmingham City Jail, during which he allegedly developed an infection in his leg that required surgery upon his transfer to another facility. Upon consideration of the Motion, the supporting and opposing memoranda, arguments of counsel and the relevant law, the court finds, for the reasons stated below, that Defendants' Motion for Summary Judgment is due to be denied in part and granted in part, and defendants' Motion to Strike is due to be denied. Since the disposition of the Motion to Strike affects which factual claims will have sufficient evidentiary basis to be included in the statement of facts for summary judgment analysis, the court addresses the Motion to Strike first.

I. Motion to Strike

The Motion to Strike attacks the admissibility of portions of plaintiff's personal affidavit, (Doc. 125-2), the entirety of the records from Shelby County Jail, (Doc. 125-7), the entirety of the medical and billing records, (Doc. 125-8), the Photos (Docs. 28-15, 28-16, 28-17, 28-18, 28-19), [3] and the Notice of Claim, (Doc. 125-12).

Defendants assert that "Evidence submitted in opposition to a Motion to Summary Judgment must be admissible." (Doc. 129 at 2.) In fact, when objecting that "a fact is not supported by admissible evidence, " the objecting party must show that the "fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2). Therefore, all of defendants' objections that certain documents are inadmissible because they have not had a proper foundation laid for their admission, or have not been authenticated, without merit. And defendants' other claim, that the submissions are "double hearsay and/or triple hearsay, " is too generalized to do much good. The documents are not inadmissible hearsay in their entirety because they can be presented as records of a regularly conducted activity. F.R.E. 803(6). Defendants are correct that plaintiff is not a medical expert and his testimony that he had staph cannot stand alone as evidence that he in fact had a staph infection. (See Doc. 129 at 2-3.) However, the fact that he had a staph infection is supported by other admissible evidence, (see Doc. 125-8 at 4, 7), [4] and what plaintiff's complaint is really all about, the "extensive infection" in his knee, ( id. at 11), or "very serious fasciitis of his leg, " ( id. at 13), that required immediate hospitalization, is not debatable.

As to defendants' remaining concern, about the relevance of certain evidence, (specifically, plaintiff's evidentiary submission, Exhibit J, Notice of Claim), it is sufficient to say that if the court finds that the evidence is not relevant, the court will not consider the evidence in determining whether summary judgment is due to be granted.

Defendants' Motion to Strike will be denied.

II. Motion for Summary Judgment


Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of showing no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("[I]t is never enough simply to state that the non-moving party cannot meet its burden at trial.").

In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. As the Supreme Court has recently reaffirmed, "[t]he evidence of the nonmovant[s] is to be believed, and all justifiable inferences are to be drawn in [their] favor." Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (emphasis added). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).


Detainees ordinarily have no reason to be especially grateful when released from one jail directly into the care of the next, but in this case, it might have saved plaintiff's life or limb. The Shelby County Sheriff's Department picked plaintiff up from the Birmingham City Jail the morning of February 2, 2008, took him to the Shelby County Jail, processed him, looked at the infected sore on his leg, gave him a shower and dressed him, and took him immediately to a nearby hospital. He underwent surgery three days later. (Doc. 125-8 at 3, 11.)

Plaintiff was arrested and booked into the City of Birmingham Jail on the night of January 23-24, 2008.[6] (Affadavit of Gerald Neal Lindley, Doc. 125-2 at 2-3.) Plaintiff first noticed the sore on his right knee on or about January 27, 2008 (a Sunday), and within twelve hours it was "highly inflamed, swollen, " and, it seemed to him, "obviously infected." (Doc. 125-9 at 1.) "Starting January 28, 2008, [plaintiff] began to request that someone look at [his] right knee and the sore... and continued to fill out the forms [requesting to see the doctor] at each nurse call [(four times per day)] until the day [he] was released to Shelby County." (Doc. 125-2 at 3.) The infection became "steadily worse." ( Id. at 4.) At least five different nurses visited him, and each time he showed them the sore, but he received no treatment. (Doc. 125-9 at 2.) Plaintiff "showed [his] knee to both nurse Taylor and nurse Brown, " and when he "showed the nurses [his] leg, [his] entire knee area was clearly swollen, red, and very warm to the touch." (Doc. 125-2 at 3-4.)[7]

Defendant Fredia Taylor is a licensed practical nurse (LPN), (Doc. 125-18 (Taylor Depo. at 8)), who worked the 3:00 p.m. to 11:00 p.m. shift at the Birmingham City Jail, ( id. at 9). Two nurses worked the day shift (7:00 a.m. to 3:00 p.m.), two nurses worked the evening shift (3:00 p.m. to 11:00 p.m.), and one nurse worked the 11:00 p.m. to 7:00 a.m. shift. ( Id. ) Taylor testified that she worked on the J-1 floor of the jail and "wouldn't go up [to J-2-D]."[8] ( Id. at 14-15.) According to Kathy Davis, the Chief Jail Administrator, area J-1-A is a "medical block." (Doc. 125-13 (Davis Depo. at 104).)

Taylor testified that whenever someone turns in a "doctor form, " that person is "going to see a doctor, " although if the person turns in multiple forms, those forms might be noted in the person's chart for the doctor to see once the person is examined. (Taylor Depo. at 22.)[9] Dr. Robinson, the jail's physician at the time, visited on Mondays, Wednesdays, and Fridays. ( Id. at 31; see also 27:13-21, 39:2-7, 39:19-22; see also Davis Depo. at 16.) A psychiatrist also visited occasionally, and there were two "staff nurses, " including Taylor, and a "number of agency nurses" that came in to fill out the staff. ( Id. at 32-34.) That was the medical department at the jail. ( Id. at 33:19-34:4; see also Davis Depo. at 15.) Taylor and Brown were City of Birmingham employees. (Davis Depo. at 70.)

"After being refused medical care for several days, [plaintiff] complained to a correctional officer" and was told to fill out a "grievance form." (Doc. 125-2 at 4.) However, the officer would not provide him the form, and whenever officers would ask what was wrong and he would tell them, "[t]hey would refuse to give [him] a [grievance] form and tell [him] to fill out a medical request form." ( Id. ) According to Davis, the Chief Jail Administrator, [10] when a detainee complains of a medical problem to a correctional officer, the correctional officer is supposed to call the nurse, and "the nurse's responsibility is to call the detainee down to the nurse's station to find out" what is wrong. (Davis Depo. at 19-20.) Defendant Verlyne Moten was "the person responsible for making sure that the grievances were answered in a timely manner, " (Doc. 125-11 (Moten Depo. at 86)), and it was her job to "make sure the detainees get the care they need, " ( id. at 81), but she didn't recall plaintiff having any medical problems while at the jail, ( id. at 84-85).

A "staff [sic] infection" is mentioned three times in what plaintiff has identified as the "Cell Block Post Ledger, " which is a "ledger book kept... in the cell block by the correctional officers." ( See Ex. E, Doc. 125-5; Davis Depo. at 87:18-88:1.) On January 31, 2008, during the 7 a.m. to 3 p.m. shift, Defendant Tangery Thomas wrote, "It was stated J2A-cell 6 has a staff [sic] infection couldn't be verified by nurse." (Doc. 125-5 at 3; see also Doc. 121-3 at 6-7, Thomas's Responses to Plaintiff's Interrogatories.) Thomas explained that she heard a "rumor" that "the occupant of Cell J-2-A cell 6 had a staph infection... [and] noted it on the log and checked with the nurse to see if she had any medical requests or documents reporting or requesting treatment for a staph infection, " but "no medical documentation was received by the nurse to verify anyone having a staph infection." (Doc. 121-3 at 6-7, Thomas's Responses to Plaintiff's Interrogatories.) While at the jail, plaintiff was kept in J-2-A, cell 6. ( See Davis Depo. at 101-102; Doc. 125-3 at 3.) Upon reading this entry on the same shift, Moten spoke with Thomas about it, then "checked with the nurse to confirm if any inmates were being treated for a staph infection.[11] No medical documents were found stating any inmates in the jail were being treated for a staph infection." (Doc. 121-1 at 6-7, Moten's Responses to Plaintiff's Interrogatories.) Moten then wrote, "There is no medical documentation on detainee's having staff [sic] infection." (Doc. 125-5 at 1; Doc. 121-3 at 7.) The entry for the 3:00 p.m. to 11:00 p.m. shift on February 1 states, "Detainee Gerald Lindley w/m [(white male)] has staff [sic] infection to the leg." (Doc. 125-5 at 2.) The entry immediately below that, written by defendant Josslyn Tarver upon starting the February 1, 2008, 11:00 p.m. to 7:00 a.m. shift, states, "Nothing to pass on." ( Id. at 2; see Doc. 125-15 at 6-7.)

By the time Shelby County Officers picked him up at the Birmingham Jail on February 2, 2008, he had to be helped out of his clothes and could not walk on his own.[12] (Doc. 125-2 at 4-5.) While he was being processed into the Shelby County Jail, a nurse examined his knee. ( Id. at 5.) The nurse noted that Lindley was "unable to walk, " that his knee had an abscess with a "blackened center, " and that it was "hot to the touch." (Doc. 125-7 at 1.) Lindley was showered, dressed, and then taken to the hospital. (Doc. 125-2 at 5.) Soon after arriving, he was taken to the emergency room, started on an intravenous ...

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