Case 6:06-cv-003be-DCR Document 1 Filed 08/16/2006 Page 1 of 11

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
LONDON DIVISION [FILED ELECTRONICALLy]

LESTER NAPIER, Individually

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and on behalf of all others similarly

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situated,

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PLAINTIFF

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v.

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LAUREL COUNTY, KENTUCKY

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SERVE: County Judgel

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Executive

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Lawrence Kuhl

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204 Courthouse

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101 S. Main Street

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London, KY 40741

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-AND-

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JACK SIZEMORE, Individually and

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in his official capacity as the

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Laurel County Jailer

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206 West 4th Street

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London, KY 40741

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-AND-

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JOHN and JANE DOES, Nos. 1, 2 and 3, )

Individually and in their official capacity )

as medical professionals, officers and

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employees of the Laurel County

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Detention Center,

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DEFENDANTS.

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CIVIL ACTION NO. _ _ __

CLASS ACTION COMPLAINT

I. Introduction

1. Plaintiff Lester Napier files this action in his individual capacity and on behalf of all

persons who, while incarcerated at the Laurel County Detention Center ("the Jail"), (a) have

acquired infectious diseases, and (b) have been denied appropriate and necessary medication and

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medical attention for their serious medical needs, all as a consequence of Defendants' neglect and deliberate indifference.
2. On information and belief, numerous inmates ofthe Jail (a) have been infected with methicillin-resistant staphylococcus aureus ("MRSA") as a consequence of Defendants' failure to protect such inmates from such infections, and (b) have been denied appropriate and necessary medication and medical attention as a consequence of Defendants' neglect of and deliberate indifference to such inmates' medical needs. There are questions of law and fact in this case that are common to all affected present and former inmates at the Jail. Plaintiff s claims are typical of those of the respective classes, and he will fairly and adequately protect the interests of the classes.
II. Jurisdiction and Venue 3. Plaintiff, and all others similarly situated, seek recovery of actual and punitive damages from Defendants under the Civil Rights Act of 1871, 42 U.S.c. §1983, for gross and unconscionable violations of the rights, privileges and immunities guaranteed them by the Eighth and Fourteenth Amendments to the Constitution of the United States. Accordingly, this Court has jurisdiction of this case pursuant to the provisions of28 U.S.C. §1331 and §1343. Plaintiff and the other members of his classes also seek declaratory and injunctive relief, as well as damages under the pendent jurisdiction of this Court, for negligence, gross negligence and intentional infliction of emotional distress. As Laurel County, Kentucky is the residence of all Defendants to this action and the location of all acts pertinent to this suit, venue is proper in this Court.
III. Class Action 4. Plaintiff brings this action as a class action pursuant to Rules 23(b)(1), (2) and (3) of the Federal Rules of Civil Procedure. The classes consist of all persons who, while incarcerated at the Jail (a) have acquired infectious diseases as a consequence of Defendants' failure to protect such
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inmates from such infections, and (b) have been denied appropriate and necessary medical attention and medication as a consequence of Defendants' neglect of and deliberate indifference to their medical needs.
5. Plaintiff will fairly and adequately protect the interests of all class members. He is a member of the classes and his claims are typical of the claims of all class members. Plaintiff will aggressively pursue the interests of the entirety of the classes. Plaintiff s interest in obtaining injunctive relief and actual and punitive damages for the violations of his constitutional rights and privileges are consistent with and not antagonistic of those of any other person within his classes.
6. Given the circumstances of his incarceration, as detailed below, Plaintiff alleges that Defendants have a policy, custom and/or practice of:
(a) failing to prevent and protect inmates from conditions that foster and persons that have infectious diseases such as MRSA, incarcerating inmates with infected persons without such inmates' knowledge, failing to train Jail employees or inmates or establish or require adherence to policies, customs and practices to prevent conditions that foster the growth and spread of the disease and to prevent inmates from contracting the disease; and
(b) denying inmates appropriate and necessary medication and medical attention as a consequence of Defendants' deliberate indifference to such inmates' medical needs.
7. Such conduct violates such inmates' rights under the Eighth and Fourteenth Amendments to the Constitution of the United States, and 42 U.S.C. §1983. The only question that remains to be resolved is whether Plaintiff and the members of the classes are entitled to declaratory and injunctive relief, or to an award of compensatory and punitive damages and, if so, the extent of such an award.
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8. A class action is superior to other available methods for the fair and efficient adjudication of this controversy because:
a. A multiplicity of suits with consequent burden on the courts and Defendants should be avoided.
b. It may be virtually impossible for all class members to intervene as parties-plaintiff in this action.
c. Upon adjudication of Defendants' liability, claims of the class members can be determined by this Court. IV. Parties
9. Plaintiff is a resident of Whitley County, Kentucky. 10. Defendant, Laurel County, at all times mentioned herein, was responsible (a) for the conditions in the Laurel County Detention Center, (b) for the establishment of policies either formally or by custom and practice for, and for the employment, training, supervision and conduct of, the officers and employees of the Laurel County Detention Center. 11. Defendant, Jack Sizemore, Jailer of Laurel County, was responsible (a) for the conditions in the Laurel County Detention Center, (b) for the establishment of policies either formally or by custom and practice for, and for the employment, training, supervision and conduct of, the officers and employees of the Laurel County Detention Center. In addition, Defendant Sizemore may also have participated in the mistreatment of Plaintiff described below individually and/or in his official capacity. 12. Defendants John and Jane Does Nos. 1,2 and 3, identities presently unknown, were at all times mentioned herein medical professionals, officers and/or employees of the Jail (a) directly responsible for (i) the medical care and custody of Plaintiff, (ii) the conditions of the Jail, and (iii) the policies, customs and practices pertaining thereto, and (b) who participated in the mistreatment of Plaintiff described below individually and/or in their official capacities.
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V. Nature of Defendants' Conduct 13. Defendants, individually and in conspiracy with one another, engaged in the conduct described below under color of the law of the Commonwealth of Kentucky and Laurel County. The offenses described below resulted from the failure of Defendants to employ qualified persons for positions of authority, and/or to properly or conscientiously train and supervise the conduct of such persons after their employment, and/or to properly fund ongoing Jail operations to provide conditions and medical care that meet constitutional standards, and/or to promulgate appropriate operating policies and procedures either formally or by custom and practice to protect the constitutional rights of the citizens of the Commonwealth of Kentucky. Defendants' conduct was intentional or grossly negligent, and was indicative not only of deliberate indifference to, but active malice and a total and reckless disregard for the constitutional and common law rights of Plaintiff and the classes, justifying an award of punitive damages in addition to the actual damages which Plaintiff and the classes are entitled to recover.
VI. Facts 14. Originally built to house 264 inmates, the Laurel County Detention Center in the fiscal year ending June 30, 2005 imprisoned, on a daily average, 414 people, 157% of its designed capacity. The excess was composed primarily of state inmates, for which Laurel County was paid a per diem of $30.51 per day per inmate by the Commonwealth of Kentucky. 15. In addition, in the same fiscal year, the Laurel County Detention Center ranked near the bottom among Kentucky jails in its inmate cost per day (excluding debt service). While inmate cost per day among Kentucky jails generally averaged $31.47, the inmate cost per day at the Laurel County Detention Center was only $18.34 -- well below the per diem Laurel County was paid for state inmates.
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16. Medical costs per inmate day in the Laurel County Detention Center were just $1.25, just a little more than one-half the state average of $2.33. Its payroll costs were comparable to -- and in some instances less than -- jails having significantly smaller inmate populations.
17. Based on the information above and belief, the Laurel County Detention Center is habitually overcrowded, understaffed, and underfunded. The consequent and entirely too predictable result is the policy, custom and practice of Defendants of ignoring adverse jail conditions and the serious medical needs of the Jail's inmate population. Plaintiff Lester Napier, a citizen of this Commonwealth, entered this environment on August 22,2005.
18. Plaintiff is in poor health and was uniquely susceptible to all the ills present in the Jail. His intake sheet shows that he suffers from, among other things, heart and lung problems and high blood pressure, and is prescribed a variety of medications by his treating physicians to address his various maladies.
19. After entering the Jail, Plaintiff was totally deprived for days of heart medication lawfully prescribed by his treating physician. Others incarcerated with Plaintiff were deprived of prescription medications, as well. At present, no reasonable estimation can be made of the number of persons incarcerated at the Jail who have been denied lawful medications prescribed by treating physicians to address serious mental and physical illnesses as a result of Defendants' conduct.
20. In addition, as a consequence of his incarceration in the Jail, Plaintiff acquired MRSA, a flesh-eating, penicillin-resistant bacteria. MRSA is contagious and can be painful and disfiguring. Once acquired, it can become chronic, and can be transmitted to loved ones, fellow employees, customers and other persons with whom an infected individual is in close contact unless serious precautions are taken. MRSA can have an extremely damaging impact upon an individual's health, employability, insurability and relations with loved ones. Other inmates who were
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incarcerated with Plaintiff acquired MRSA, as well. At present, no reasonable estimation can be made of the number of persons incarcerated at the Jail who have become infected with MRSA as a result of Defendants' conduct.
21. After Plaintiff was infected with MRSA, his condition was ignored by Defendants for so long that when he was finally taken to the hospital, the infected area of his body was gangrenous and had to be excised.
22. Defendants have failed to institute policies, customs or practices, or to employ qualified persons, or to properly train Jail employees:
(a) to prevent or alleviate conditions in the Jail that foster and propogate infectious diseases;
(b) to acquire and properly dispense to inmates medications lawfully prescribed by treating physicians to address serious mental and physical illnesses;
(c) to diagnose MRSA or other infectious diseases, to deal with infected inmates, or to protect other inmates from contracting such diseases; and
(d) to attend to the medical needs of inmates at the Jail. 23. Defendants, as a consequence oftheir deliberate indifference to the health and welfare of Plaintiff and the classes, not to mention their Eighth and Fourteenth Amendment rights, failed to protect Plaintiff and the classes from infectious diseases, deprived Plaintiff and the classes of lawfully prescribed and necessary medications, exposed them to MRSA and other infectious diseases, and were deliberately indifferent to their serious medical needs, all in violation of clearlyestablished constitutional rights. It was unconscionable and outrageous for Defendants to, among other things, deprive Plaintiff of his lawfully prescribed and necessary heart medication, to fail to protect Plaintiff from infectious diseases in the Jail, to incarcerate Plaintiff in conditions and with
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inmates infected with MRSA, to not provide Plaintiff with any warning or training in steps necessary to avoid acquiring MRSA, and to deny Plaintiff obviously needed medical treatment until a MRSAinfected area of his body had become gangrenous.
VIT. Causes of Action A. CountI
24. Paragraphs 1-23 above are incorporated herein by reference and made this Paragraph 24.
25. Plaintiffs and the classes' treatment at the Jail, and the Jail's conditions, described above, were the result of a continuing pattern of misconduct and is the result of policies, procedures, customs and practices of Laurel County, either written or unwritten, that are systematically applied to the Laurel County Detention Center and whenever an individual is incarcerated at the Jail, including but not limited to the persistent practice of overcrowding, underfunding, undertraining, undermaintaining, and understaffing the Jail. Such practices constitute an arbitrary use of government power, and evince a total, intentional and unreasonable disregard for and deliberate indifference to the health, well-being and constitutional and common law rights of persons incarcerated at the Jail, including Plaintiff and the members of the class, and the wholesale violations of those rights likely to result from the systematic pursuit of such policies, customs and practices.
26. As a result of the foregoing, Plaintiff and his classes, through Defendants' failure to protect, and their deliberate indifference and intentional or grossly negligent conduct, were deprived without due process of law of their right not to be subjected to cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution in violation of the Civil Rights Act of 1871, 42 U.S.C. §1983.
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27. Moreover, given the pre-existing law that clearly prohibited Defendants' conduct, Defendants' treatment of Plaintiff and the members of his classes were intentional, wanton and malicious, and were indicative of Defendants' total and reckless disregard of and deliberate indifference to the rights of, and harm to, Plaintiff and the other members of the classes.
B. CountIl 28. Paragraphs 1-27 above are incorporated herein by reference and made this Paragraph 28. 29. By virtue of the foregoing, Defendants, without justification, negligently or intentionally inflicted upon Plaintiff and the classes severe mental and emotional distress.
C. Count III 30. Paragraphs 1-29 above are incorporated herein by reference and made this Paragraph 30. 31. By virtue of the foregoing, Defendants were negligent and grossly negligent, and violated the standards applicable to their professions, all to the damage of the Plaintiff and the classes.
VIII. Damages 32. Paragraphs 1-31 above are incorporated herein by reference and made this Paragraph 32. 33. As a consequence of Defendants' wrongful conduct, Plaintiff and the members of the classes: (a) have been infected with diseases that will have a substantial and deleterious impact on their health, their employment, their insurability, and their relations with their loved ones; and
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(b) have been denied necessary and appropriate medication and medical care for serious medical needs.
34. As a result of the foregoing, Plaintiff and the members of the classes have sustained medical expenses and lost wages, past and future, experienced unnecessary pain, suffering and disfigurement and severe and unjustified mental and emotional distress, and are entitled to recover actual damages. Furthermore, Defendants' violations ofthe constitutional and common law rights of the Plaintiff and the class were knowing, intentional, cruel, malicious and evinced a total and reckless disregard for the rights of Plaintiff and the classes entitling them to recover punitive damages from Defendants in order to deter such conduct in the future.
IX. Declaratory .Judgment and Permanent Injunction 35. Paragraphs 1-34 above are incorporated herein by reference and made this Paragraph 35. 36. In addition to the foregoing, Plaintiff and the classes request that this Court issue a declaratory judgment deeming unconstitutional any and all ordinances, regulations, policies, procedures, customs or practices which resulted in their incarceration under conditions in which they could acquire infectious diseases or their medical needs could be ignored, and further request that this Court permanently order Defendants to refrain from following or enforcing such ordinances, regulations, policies, procedures, customs or usages, and to alleviate all jail conditions that contributed to the damages sustained by Plaintiff and the classes. WHEREFORE, Plaintiff and the classes he represents request (a) that this action proceed as a class action under Fed. R. Civ. P. 23 and (b) a trial by jury, and further request that he and all members ofthe classes (c) be awarded actual and punitive damages, (d) be granted the declaratory
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and injunctive relief requested herein, and (e) be awarded all costs, attorney fees, pre- and postjudgment interest and all other relief to which they are entitled.
Respectfully submitted, DINSMORE & SHOHL LLP /s/ Gregory A. Belzley Gregory A. Belzley 1400 PNC Plaza 500 West Jefferson Street Louisville, Kentucky 40202 (502) 540-2300 Telephone (502) 585-2207 Facsimile Counsel for Plaintiff
106096vl
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION (at London)

LESTER NAPIER,

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Plaintiff,

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V.

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LAUREL COUNTY, KENTUCKY, et al., )

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Defendants.

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Civil Action No. 6 :06-368-DCR
MEMORANDUM OPINION AND ORDER

*** *** *** *** This matter is pending for consideration of Plaintiff Lester Napier’s (“Napier”) motion for class certification. Napier asserts that a class of plaintiffs should be certified under Federal Rule 23(b)(2) for injunctive and declaratory relief and under Rule 23(b)(1) and (3) for recovery of actual or punitive damages. The classes Napierseeks to represent are: (a) an “overcrowding” class composed of all person who have been orwill be confined at the Laurel County Detention Center (“LCDC”) on or after August 16, 2005, and(b) a “MRSA” class composed of all persons who first exhibited sym ptoms of m ethicillin-resistant staphylococcus aureus after being incarcerated at least ten days at the jail on or after August 16, 2005. A hearing was held on the Plaintiff’s motion on February 4, 2008. After reviewing the record, the parties’ arguments, and relevant authorities, the Court concludes that Napier has not stated classes proper for certification and cannot meet the requirements of Rule 23. Therefore, he has failed to meet his burden and his motion for class certification will be denied.

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I. BACKGROUND This action was filed on August 16, 2006, by Na pier, a former inmate of the LCDC. Napier was confined at the LCDC from August 22, 2005, until he was transferred to a medical facility for treatment related to MRSA in Ja nuary 2006. In his Am ended Complaint, Napier alleges that, due to overcrowding in the LCDCand the Defendants’ failure to adopt and follow appropriate procedures, he was denied lawfully-prescribed heart medication for several days and was exposed to MRSA. Additionally, Napier claims that after he was infected with MRSA, he did not receive proper treatment and eventually developed a gangreous infection of his scrotum that necessitated an emergency scrotectomy in January 2006. The main allegation of Napier’s amended complaint is that Laurel County violated his constitutional rights (and those of others sim ilarly situated) by detaining him in overcrowded cells, failing to distribute lawfully-prescribed medications, and failing to adequately remedy the inmates’ exposure to MRSA. Napier specifi cally asserts claims under 42 U.S.C. § 1983 and Kentucky law for constitutional and statutory violations. The particular classethsat Napier seeks to represent are as follows: (a) an “overcrowding” class composed of all persons who, since August 16, 2005, have been, are or will be confined at the Laurel County Detention Center (“the Jail”) and (b) a “MRSA” class composed of all persons who, since August 16, 2005, first exhibited symptoms of methicillin-resistant staphylococcus aureus after being incarcerated at least ten (10) days at the Jail. [See Record No. 41, p.10]
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In connection with his m otion for class certification, Napier has subm itted numerous exhibits and made factual allegations regardingthe alleged “overcrowding” and “MRSA” at the LCDC. In particular, he relies on s everal Inspection Reports from the Departm ent of Corrections, dating from Feburary 27, 2002, through June 12, 2006 [ Id., Att. 3-10, 12-24] ; depositions of supervisory officials at the LCDC, including Betty McKnight and Jack Sizemore [Id., Att. 25, 28-30] ; protocols, policies, and reports on the m anagement of MRSA from the Kentucky Department of Corrections and Federal Bureau of PrisonsId[ ., Att. 35-39, 48]; his own medical reports [Id., Att. 2, 50]; form declarations from approximately 10 inmates who claim to have been exposed to overcrowding and MRSA at the LCDC [ Id., Att. 26, filed under seal] ; medical reports relating to certain inmates from the LCDC who exhibited alleged signs of MRSA [Id., Att. 51-56]and; numerous newspaper and magazine articles discussing MRSA [Id., Att. 4047]. In addition to these materials, the Plaintiff has submitted several letters in connection with this litigation and in connection wi th the Laur el County officials’ attem pts to rem edy and alleviate problems at the LCDC. [Id., Att. 11, 31-33] Finally, the Plaintiff directs the Court’s attention to one unpublished decision from the Eastern District of Pennsylvania in which that court granted class certification based on allegations of cruel and unusual punishment under the Eighth and Fourteenth Amendments, including allegations of MRSA.See Inmates of the Bucks County Correctional Facility v. Bucks County , 2004 U.S. Dist. LEXIS 30547 (Dec. 20, 2004 E.D. Pa.).
In summary, Napier makes several allegations concerning the requested classes and the conditions at the LCDC. With regard to the calimed “overcrowding,” Napier asserts that LCDC
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was originally built to house only 229 inmates, but has exceeded its capacity by as much as 157 percent since it was first cited for overcrowdi ng in the Inspection Report dated February 27, 2002. The records show that over 40 inmates were found sleeping on the floor on more than one occasion in 2003, and, in 2004, the stat e inspectors began to cite the LCDC for lack of cleanliness. Then, in June 2005, the jail reacheda daily average of 414 people, while it was still only designed to hold 229 inmates. Additionally, in December 2005, the jail still reported a daily average of 365 inmates, with as many as 420 inmates confined on a single date. At that point, the Plaintiff alleges that the jail petitioned to riase its permitted capacity to 267 inmates, but only based on a reduced square footage pre inmate – not an increase in the jail’s size. According to Napier, LCDC sought to reduce the per inmate square foot allotment from 50 feet to 40 feet to allow the increased capacity. By June 2006, the LCDC’s average nightly population dropped to 325, but still reached as many as 361 inmates on a given occasion.
Napier also directs the Court’s attention to the complaints and allegations of numerous inmates who claim to have witnessed and to have been exposed to overcrowding and MRSA at the LCDC. For example, Inmate 69 states that he was placed in an overcrowded cell, did not have MRSA when he entered the jail, and was event ually hospitalized due to his exposure to MRSA at the LCDC. Similarly, Inmate 18 claims that she was placed in a cell with only five beds and at least thirteen other inmates, requiring her to sleep on an “unsanitary floor with many others.” [Record No. 41, p. 14] She claim s to have devel oped MRSA as a result of her incarceration in these conditions at the LCDC. Inmate No. 8 also claims that he was forced to sleep on the floor in a cell with only eight bedsand twenty-two inmates, and that he developed
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knots around his armpits from the unsanitary conditions. Inmates 7, 12, 57, 38, and 15 all make similar claims concerning the overcrowding, the lack of any MRSA symptoms prior to entering the LCDC, and the development of MRSA symptoms more than ten days after entering the jail.
With respect to the proposed MRSA class, Napier alleges that MRSA is “an antibioticresistant bacterium that flourishes in skin and mucus membranes.” [Record No. 41, p. 19] The infection can be chronic, fatal, and is highly infectious. [ Id.] The Plaint iff cites numerous articles and health reports concerning the recent epidemic of MRSA in jails, hospitals, schools and other public facilities. Sym ptoms of MRSA are com monly characterized by the person infected and mis-diagnosed as having infected pimples, insect bites, spider bites, sores and boils.
Napier further alleges that the LCDC and its Jailer, Jack Sizem ore, received a memorandum in 2004 detailing the symptoms and effects of MRSA and indicating what steps should be taken to attempt to alleviate the spreading of the infection in the jail. This document, entitled the “Health Care Services Protocol” contains recommendations concerning maintaining sanitary conditions, including frequent hand washing, general sanitation, and avoiding contact with infected individuals. However, Napier asserts that the LCDC never im plemented these protocols. Jack Sizemore testified at his depos ition that he did not re call directing that these procedures be implements or discussing themwith the LCDC medical department staff. Napier claims that, as a result of the failure to follow these directives, take corrective action, and inform the inmates of the contagious nature of MRSA, num erous inmates have been exposed to t he infection. The LCDC identified 38 i nmates who demonstrated MRSA-like symptoms while housed in the jail between January 2005 and June 2007.
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At the hearing on the Plaintiff’s motion for class certification, Napier’s counsel argued that class certification should be granted to allow supervision and control by the Court, facilitate negotiation, mediation, and settlement, and give the LCDC priority in receiving help from the state. Through his attorneys, Napier clarified that he was seeking certification of two separate classes and that the propos ed class involving overcrowding was not accom panied by any additional allegations of inhuman conditions. Further, with regard to the MRSA class, Napier’s counsel stated that Napier only intended to represent those inm ates who exhibited signs of MRSA more than ten days after entering the jail, due to the incubation period. However, Napier was only able to identify two people exposed to MRSA at the LCDC who were not in dispute regarding whether they contracted the infection before entering the jail and whether they actually had MRSA rather than just an infection, boil, or insect bite.1
In response, the Defendants assert that the Plaintiffs’ proposed class definitions do not contain readily identifiable classes and would require extensive inquiry to determine whether each alleged individual is a m ember of the putative class. More specifically, the Defendants assert that the conditions at the LCDC are i mproving and that there are num erous factual disputes concerning the inmates who allegedly contracted MRSA at the jail. Regarding alleged overcrowding, the Defendants contend that, as evidenced by the Inspection Reports and the allegations in Napier’s m otion, the conditions at the jail have been a nd continue to im prove “dramatically.” In support, they point to the fact that the average, daily population of 414 as of

1

It appears that the only person identified in additi on to the Plaintiff is Mr. Cunnagin, one of the

putative class representatives in another case that is cu rrently pending before United States District Judge

Karen Caldwell, Case No. 6: 07-258. The Court previouslydenied the Plaintiff’s motion to consolidate these

two cases on the grounds of judicial economy and complication of the issues. [See Record No. 38]

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June 30, 2005, declined to 365 by December 31, 2005. This number was further reduced to 325 by June 2006, and to 317 by 2007. In 2007, the number of permanent beds available to inmates was 310, and thus the average daily population onyl exceeded the number of beds by an average of seven inmates, which is greatly reduced from the 2005 statistics.
The Defendant further contends that the LCDCofficials, such as Jailer Jack Sizemore and Nurse Betty McKnight, have actively pursued improving the conditions at the jail, and that their efforts have resulted in the decreased numbers. For example, Sizemore, McKnight, and Deputy Jailer Frank Gibson all appeared before the fiscal court at different times in 2004, 2005, 2006, and 2007 to discus s issues of expansion and overcrowding. Budgeting and possible land purchases have been discussed extensively and are still pending before the fiscal court. According to the Defendants, “[t]his is hardly the picture of a county which shows no interest in corrective action, and certainly not the picture of a county which needs the involveemnt of the federal court, because it is clearly attempting and is dealing with the issue of overcrowding, first by significantly reducing the annual average daily popul ation count, and second, by pursuing long term strategies in anticipation of continued increase in incarceration need.” R[ ecord No. 53, p. 8-9]
Next, the Defendants contend that the put ative MRSA class is im proper for class certification because of distinct, factual issues regarding each proposed class m ember. The Defendants assert that, to date, the Plaintiff’s proposed MRSA class is “zero.” [Record No. 53, p. 23] According to the Defendants, the testimony of Inmates 69, 18, 8, 7, 12, 57, 38, and 15 (all of the specific inmates cited in the Plaintiff’s motion) is contradicted by the medical evidence
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in record. For exam ple, the Defendant alleges that Inm ate 69 – who claim s to have come to LCDC without MRSA – was treated for an infection related to his tattoo at his previous facility. Further, after he was examined by the nurse at the LCDC, he received treatment and follow-up care for the infection.
Regarding Inmate 18, the Defendants note that this individual complained of a boil on her buttocks only 6 days after be ing admitted to the LCDC, and thus would not fall into the Plaintiff’s proposed class. Further, Inmates 7 and 38 were never jailed for more than ten days, and Inmate 7 was released on the same day as his incarceration.
The Defendants also note that, contrary to Napier’s allegations, the pol icies and procedures of the state and federal authorities were implemented in the most practical manner possible. And they contend that Napier’s cons truction of the facts is “misleading” at best. Although Jailer Jack Sizemore may not have recalled the procedures, Nurse McKnight testified that she took themto the LCDC’s treating physician, Dr. Rastogi, on the date she received the.m According to the Defendants, Dr. Rastogi immediately incorporated the polices and continues to use them. Nurse McKnight also stated that she reports MRSA infections to the Department of Corrections and takes appropriate sanitation measures.
In short, the Defendants contend that the Court need not reach the proposed classes under Rule 23, as “[t]he in-depth individual inquiries into the facts and circumstances of the claims of each potential class member necessary to establish membership and ultimately damages in the present case would create an adm inistrative nightmare which far outweighs the econom ies of class litigation.” [Record No. 53, p.18] According to the Defendants,
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[t]his case is not and will not be appropriate for class treatm ent. It does not contain a readily-identifiable class, the putative class definitions identify distinct questions of fact that would need to be answered by every named pl aintiff and putative class member prior to ascertaining whether such individual is even a member of the class, and the merits of each putative class member’s claim are so intermingled with proper consideration of issues germane to certification that class certification in improper. [Id., p. 13] Additionally, the Defendants note that the particular status of each proposed class member (i.e., whether they are currently incarcerated, on release, and whether each defendant has pursued administrative remedies), defeats the typicality requirement of Rule 23(a). Finally, the Defendants assert that the Plaintiffs cannot meet the numerosity, commonality, or adequacy of representation requirements of Rule 23(a) or any of the requirements under Rule 23(b). II. LEGAL STANDARD Rule 23 of the F ederal Rules of Civil Pr ocedure sets forth the requirem ents for maintaining a class action. For the Court to certify a class, the Plaintiffs proposed class m ust satisfy all four of the threshold requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. If each of these four prereq uisites is established, then the Plaintiffs must show that the class may be maintained under one of the theories available under Rule 23(b). A party seeking to certify a class bears the burden of establishing that certification is proper. In re American Medical Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). A class action may not be approved simply “by virtue of itsdesignation as such in the pleadings.”Id. Nor may prospective class representatives sim ply rely upon “mere repetition of the language of Rule 23(a)” to support their motion. Id. Instead, an adequate basis foreach prerequisite must be pled
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and supported by the facts. Weathers v. Peters Realty Corp. , 499 F.2d 1197, 1200 (6th Cir. 1974). Additionally, the court must engage in a “rigorous analysis” to determine whether the prerequisites of Rule 23 are satisfied. American Medical, 75 F.3d at 1078-79 (citing General Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982)).
“Before engaging in the ‘ri gorous analysis’ required by Rule 23, the Court m ust first consider whether a precisely defined class existsand whether the named plaintiffs are members of the proposed class.” See Chaz Concrete Co., LLC v. Codell, 2006 WL 2453302 (E.D. Ky. August 23, 2006) (cit ing Bentley v. Honeywell Int’l, Inc. , 223 F.R.D. 471, 477 (S.D. Ohio 2004)). Although Rule 23 does not xeplicitly identify these requirements, one necessary element is that there must be a “class.” 7A Charles AlanWright & Arthur R. Miller, Federal Practice and Procedure §1760 (3rd ed. 2006). Important elements of defining a class include: (1) specifying a particular group that was harmed during a particular time frame, in a particular location, in a particular way; and (2) facilitating a court’s ability to ascertain its membership in some objective manner. Id.
While the identities of the class members do no need to be specified for certification, the proposed class must be sufficiently definite to dem onstrate that a clas s actually exists. “The class definition identifies the persons who are entitled to relief, bound by final judgment, and entitled to notice under Rule 23(b)(3).” Id. (citing Rodriguez v. Gates, 2002 WL 1162675, at *9 (C.D. Cal. May 30, 2002)). Where extensive factual inquires are required to determ ine whether individuals are members of a proposed class, class certification is most likely improper. Snow v. Atofina Chemicals, Inc. , 2006 WL 1008002, at *8-9 (E.D. M ich. March 31, 2006).
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Moreover, “[a] proposed class my be deemed overly broad if it ‘would include members who have not suffered harm at the hands of the Defendant and are not at risk to suffer such harm.’” Chaz, at *6 (citing McGee v. East Ohio Gas Co., 200 F.R.D. 382, 388 (S.D. Ohio 2001)).
III. ANALYSIS A. Defining the Proposed Class
Here, Napier seeks to identify two classes: (1) an “overcrowding” class composed of all persons who have been are, or will be confined at LCDC since August 16, 2005, and (2) a “MRSA” class composed of all persons who fi rst exhibited symptoms of MRSA after being incarcerated at least ten days at the jail since August 16, 2005. The main case cited in support of the Plaintiff’s motion for certification is Inmates of the Bucks County Correctional Facility v. Bucks County, 2004 U.S. Dist. LEXIS 30547 (Dec. 20, 2004 E.D. Pa.).
In Bucks County, the district court granted class certification to representatives of the inmates of Bucks County Correctional Facility i n connection with allegations of cruel and unusual punishment resulting fromthe “physical conditions, inappropriate sanitation, and denial of necessary medical treatment” at the facility. Id. at *12. After considering the plaintiffs’ allegations and the defendants’ objections to a ll four requirements for class certification, the court summarily granted the motion. Although that court considered each element, it offered little analysis and did not consider whether a “p recisely defined class” existed or whether it would be possible to determine the extent of membership in any objective manner. See id. at *317.
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This Court is not persuaded by the analysis and conclusion regarding class certification in the Bucks County case. Unlike the sum mary analysis p resented by that court, this Court believes that it is required to engage in a “rigoor us analysis” of the requirements of Rule 23 and its prerequisites as dictated by decisions of th e United States Court of Appeals for the Sixth Circuit. American Medical, 75 F.3d at 1078-79 (citing General Tel. Co., 457 U.S. at 161). Notably, a class should not be cert ified where extensive factual inquires are required to determine whether individuals are m embers of a proposed class, and where a plaintiff could prove his own claim , but, in doing so, “not necessarily have proved anybody else’s claim .” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (citingSprague v. GMC, 133 F.3d 388, 399 (6th Cir. 1998)); Snow v. Atofina Chemicals, Inc., 2006 WL 1008002, at *8-9 (E.D. Mich. March 31, 2006).
In the present case, numerous factual disputes concerning the proposed class members and the overbroad class definitions would result in subjective mini-trials of each putative class member and thus make certification improper. As the “facts” outlined above demonstrate, the proposed class definitions fail to provide specifci ity and an objective manner of determining the members of the proposed cl ass. Although inm ates may allege that they were subjected to overcrowding and MRSA, each inmate’s time of incarceration and symptoms would have to be evaluated independently. For exam ple, how could the Court objectively determ ine whether Inmate 7 was subjected to overcrowding or MRSA, when he was released from the jail on the same day as his admission? This Court whole-heartedly agrees with the Defendants’ assertion
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that, other than the putative class representative, Napier has failed to identify a single member who would fit the proposed class definitions at this point in the litigation.2
Napier has also failed to establish that an“overcrowding class” should be certified by the Court. The Supreme Court has held that overcrowding in a prison setting is not itself a violation of the constitution. See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981); see also Owens v. Campbell, 198 F.3d 246 (6th Cir. 1999). While overcrowded conditions can be restrictive and even harsh, such conditions do not necessarily violate the Eighth Am endment unless they deprive the inmate of the minimal civilized measure of life’s necessities. See Rhodes, 452 U.S. at 348; Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). To allege a constitutional violation, each class member must allege and present evidence that he was denied basic human needs such as food, warmth, or sanitation, or was otherwise subjected to cruel and unusual punishment by virtue of the alleged overcrowded conditions to justify monetary relief. See Wilson v. Seiter, 501 U .S. 294, 298 (1991); Rhodes, 452 U.S. at 348. Moreover, “[n]ot every unpleasant experience

2

The Court again notes that, other thanMr. Cunnigan, the Plaintiff has not identified another proposed

member who allegedly fits the class definition. However, Mr. Cunnagin is presently litigating his claims in

another action pending before Judge Caldwell.

The Court also notes that, since the tim e of the hearing on the m otion for class certification, the Plaintiff has filed numerous motions to supplement with the names and declarations of other inmates who allegedly were exposed to overcrowding and/or MRSA at the LCDC. [See Record Nos. 70, 71, 72, and 73] The Plaintiff filed the attachm ents containing the nam es of these alleged inm ates in the public record, in violation of the Court’s previous orderwhich was entered at the Plaintiff’s request. [See Record No. 25] The appropriate manner of submitting such documents would be to fi le a motion and submit the documents directly to the Clerk’s office under seal. However, inasmuch as these motions require a ruling, they will be denied. The Court declines to consider these supplemental documents because the Defendants have not been afforded an opportunityto respond tothe particular claims and because the Plaintiff wasgranted a substantial extension in preparing his motion for class certification. The Plaintiff was also afforded the opportunity to provide any relevant information at the hearing, but was unable to do so in response to the Court’ s direct question. Therefore, the motions will be denied and the attachments will be stricken to com ply with the Court’s previous privacy order.

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a prisoner might endure while incarcerated constitutes cruel and unusual punishment within the meaning of the Eight h Amendment.” Ivey, 832 F.2d at 954. For exam ple, “[s]hort term deprivations of toilet paper, towels, sheets, balnkets, mattresses toothpaste, toothbrushes and the like do not rise to the level of a constitutional violation.” Ramos v. Lamm, 639 F.2d 559, 685.
The Plaintiff’s purported “overcrowding” class includes all present inmates incarcerated within one year of the statute of limitations and all future inmates detained in the Laurel County Detention Center. The Plaintiff has notpresented any evidence, however, thatall of the putative class members of this class have suffered any specific harm other than overcrowding. In fact, at the hearing, the Plaintiff’s attorney specifically stated that he was not alleging a class based on overcrowding and some other distinctive factor, such as the failure to provide m edication alleged in the Complaint. Therefore, if the Court were to certify a class based on the Plaintiff’s proposed class definition, it would be required to analyze the circumstances surrounding each Plaintiff’s claim to determine if the potential class member was subjected to unconstitutional overcrowding conditions. In other words, this Court would have to determine: (1) whether each class member was actually in a cell that was overcrowded; and (2) whether each class member was subjected to deprivations of essential food, medical care, or sanitation or other intolerable conditions as a result of the overcrowding. See e.g., Rhodes, 452 U.S. at 348.
Similarly, the Plaintiff’s “MRSA” class consists of all person who, since August 15, 2005, have exhibited signs of MRSA after being de tained in the LCDC for at least ten days. However, the Defendants point out that most of the inmates who are alleged as members of this class do not even m eet the proposed class specifications, as m any exhibited signs of M RSA
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immediately upon their intake at LCDC. S[ee Record No. 53, pp. 3-7, 16-18.]Regardless of the parties’ assertions regarding thetruth of the allegations, it is celar that the Defendants are correct in their argument that each member of the class would need to be subject to extensive inquiry to determine whether he or she fits within the proposed class.
The difficulties inherent in identifying m embership in the Plaintiff’s proposed classes present serious administrative burdens that are inconsistent with the efficiencies expected in a class action. Many of the benefits that are the hallmark of a proper class action would be lost if this Court were required to make individual factual inquires in order to determine the members of the proposed cl ass. See Sanneman v. Chrysler Corp. , 191 F.R.D. 441 (E.D. Pa. 2000) (certification denied where determining class membership “would essentially require a m inihearing on the merits” of each proposed class m ember’s case); Luedke v. Delta Airlines , 155 B.R. 327, 332 (S.D.N.Y. 1993) (certification denied because it would require “an unamnageable number of individualized, somewhat subjective determinations of the validity” of the potential claims).
Where, as here, a named plaintiff fails to define the class adequately, the court need not proceed with a full Rule 23 analysis. See Edwards v. McCormick, 196 F.R.D. 487 (S.D. Ohio 2000). The Plaintiffs’ failure to establish anadequately-defined class alone is a basis on which this Court may deny certification. Nevertheless, the Court will proceed to examine application of Rule 23(a) to determine if there is any merit to Napier’s class allegations.
B. Rule 23(a) Requirements
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Rule 23(a) outlines the prerequisites for certifying a class action. Specifically, the rule provides:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the cl ass is so numerous that joinder of all m embers is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representativ e parties are typical of the claim s or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Each of these elements will be examined in turn.
1. Numerosity Rule 23(a)(1) requires that the proposed class be “so numerous that joinder all members is impracticable.” Fed. R. Civ. P. 23(a)(1). This is often referred to as the num erosity requirement. 7A Charles Alan Wright & Art hus R. Miller, Federal P ractice and Procedure §1762 (3d. ed. 2006). A proposed class meets the numerosity requirement by demonstrating the impracticality, not the impossibility, of joinder. Fox v. Massey-Ferguson, Inc., 172 F.R.D. 653, 660 (E.D. Mich. 1995). “Impracticability” depends upon all the circumstances of the case. Cash v. Swifton Land Corp., 434 F.2d 569, 571 (6th Cir. 1970). No specific mi nimum number of alleged class members is necessary. Instead, theappropriate inquiry is whether the plaintiff has sufficiently demonstrated the existence of the num bers of persons he purports to represent. Young v. Trailwood Lakes, Inc., 61 F.R.D. 666 (E.D. Ky. 1974); Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). In m aking this determ ination, the C ourt may consider “reasonable inferences drawn from facts before it.” Senter v. General Motors Corp., 532 F.2d 511, 523 (6th Cir. 1976), cert. denied, 429 U.S. 870 (1976). In reviewing this issue, the Court cannot rely on speculation or conclusory allegations of the proposed representatives. Instead,
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the Plaintiffs m ust “show som e evidence of or reas onably estimate the num ber of class members.” Schwartz v. Upper Deck Co., 183 F.R.D. 672 (S.D. Ca. 1999);Sims v. Parke Davis & Co., 334 F. Supp. 774, 781 (E.D. Mich. 1971) (“Speculation cannot be used to establish that a prospective class is so numerous as to make joinder impracticable.”)
Here, Napier has failed to meet his burden of demonstrating the number of persons he seeks to represent. All the inmates cited in his motion for certification are disputed members of the proposed class, and Napier was unable to identify any relevant members at the hearing on the motion other himself. As previously discussed, one of the problems with the classes as defined by Napier is that they require the Courto make individual factual inquiries to determine the members of the proposed class.
In attempting to meet the numerosity requirement, Napier states in his brief that the LCDC has held as m any as 325 inm ates and that the Defendants have provided inform ation concerning 38 inm ates who reported MRSA-like sym ptoms. However, with respect to the overcrowding class, the numerosity requirement has not been met because Napier has failed to alleged anything in addition to overcrowding, which, by itself, is not a constitutional violation. See Rhodes, 452 U.S. at 348; Ivey, 832 F.2d at 954. Conversely, a plaintiff m ust provide evidence of the number of inmates that have beendenied basic necessities, such as food, warmth and sanitation. And because Napier has failed to do so, the Court would be forced to engage in an individual, subjective analysis of each putativ e plaintiff to determine whether he or she is entitled to relief.
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Similarly, Napier’s allegations concerningthe 38 inmates who allegedly reported MRSAlike symptoms are insufficient to satisfy the numerosity requirement. First, the reported persons do not fit the definition of the Plaintiff’s proposedclass, which seeks to certify all those who first exhibited symptoms of MRSA after being incarcerated at least ten days at the jail. Second, the exhibition of MRSA-like symptoms does not necessarily mean that the person had MRSA. The Court has already noted that it agrees with the Defendants’ assertion that the Plaintiff has failed to identify a single member who would actually fall into this category, and it is clear that the Court would have to consider each individual clami ant before certifying themas a class member. As the Court noted in Sims v. Parke Davis & Co. , 334 F. Supp. 774, 781 (E.D. Mich. 1971), “[s]peculation cannot be used to establish that a prospective class is so numerous as to make joinder impracticable.” For these reasons, the Court finds that Napier has failed to m eet the numerosity requirement with regard to the proposed classes.
2. Commonality Rule 23(a)(2) provides that, in order for a class to be certified, there must be “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This is because, where there are common questions of law or fact, “the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155 (1982) (citation omitted). The Sixth Circuit has held that in order to satisfy the commonality requirement “there need only be a single issue common to all members of the class.” American Medical, 75 F.3d at
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1080. However, the existence ofany common question is insufficient because “at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. What is necessary is a com mon issue the resolution of which will advance the litigation.” Sprague v. General Motors, 133 F.3d 388, 397 (6th Cir. 1998).
Napier alleges that the com monality requirement is satisfied here because there are several common questions raised by his claim s. More speci fically, he contends that the following common questions exist: (a) whether the Jail is so chronically overcrowded as to violate inmates’ constitutional ri ghts; (b) whether the Jail failed to properly screen, isolate, educate, or treat its inmates in violation of the very policies the Jail had adopted to protect inmates from MRSA; (c) whether the MRSA problem at the Jail was caused or contributed to by overcrowding, understaffing, underfunding, or a lackof training, education or supervision of the Jail’s employees; (d) whether injunctive relie f is necessary to protect current and future inmates at the Jail, and the Laurel County community; and (e) whether the Defendants are liable for the actual damages sustained by inmates as a consequence of overcrowding and infection. [Record No. 41, p. 43-44]
However, this Court believes that Napier ’s claims of “com monality” highlight the insurmountable problems with the proposed class definitions. F irst, as noted previously, an allegation of overcrowding, by itself, does not necessarily constitute a constitutional violation and the Plaintiff has failed to allege any inhum an treatment in connection with overcrowding class that would otherwise warrant relief. Second, the alleged common questions of “violations of policies” and administrative failures on the part of the LCDC are in sharp dispute and require
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subjective analysis to determ ined whether a put ative class m ember was exposed to such treatment and conditions. Further, the common question of “actual damages” appears to be the most absurd assertion, as each proposed class member’s alleged damages would vary greatly. The proposed c lass representative, Lester Napier, is m ost demonstrative of this f act, as his alleged case of MRSA is, by far, the m ost egregious claim presented and, if proven, coul d require a substantial variance in actual damages from that of the other proposed members.
It is also notable that the proposed class does not further the purpose of the commonality requirement in providing a m eans for saving re sources for both Court and t he parties and in resolving issues in an economical fashion. See American Medical Sys. Inc., 75 F.3d at 1080. The Defendants assert that American Medical Systems, 75 F.33 at 1080-82, is highly instructive on this point. In that case, the Court found that a class of plai ntiffs seeking dam ages in connection with penile prosthetic devices could notestablish a class because they did not all use the same model, and the injuries were different with each plaintiff. Here, Napier will be unable to establish a single set of facts that establish liability on the part of the Defendants or a single proximate cause of the proposed plaintiffs’ injuries. Rather, individual exam ination and determination would be required in connectionwith the actual conditions of confinement faced by each proposed class member, the medical treatment received, and whether those conditions constitute cruel and unusual punishment. And if claims are proven, the different circumstances of each prospective plaintiff m ight warrant different damages or different outcom es. Accordingly, the Court finds that Napier has fialed to meet the commonality requirement of Rule 23(b).
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3. Typicality Subsection (a)(3) of Rule 23 requires that the claims of the representatives be typical of the claims of the class. Fed. R. Civ. Pro. 23(a)(3); 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1764 (3d. ed. 2006) . In conducting this analysis, the Court must determine “whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Newberg and Conte, § 3.13, at 3-75, 76. “The prem ise of the typicality requirement is simply stated: as goe s the claims of the name d plaintiff, so go the claims of the class.” Sprague, 133 F.3d at 399. The representatives’ interests must be aligned with those of the putative class and the pursuit oftheir claims must also advance the interest of the class. American Medical, 75 F.3d at 1082. The Sixth Circuit describes the purpose of the typicality requirement as follows: Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct . . . Thus a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives ris e to the claims of other class members, and if his or her claims are based on the same legal theory. American Medical, 75 F.3d at 1082. Typicality is requiredso that the class representative may “advance the interest of the ent ire class.” “Under the com monality prong, a court m ust ask whether there are sufficient factual or legal questions in com mon among the class members’ claims to make class certification economical and otherwise appropriate. In contrast, under the typicality prong, a court must ask whether, despite the presence of common questions, each class member’s claim involves so many distinct factual or legal questions as to make class certification
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inappropriate.” In other words, commonality focuses on similarities, while typicality focuses on differences. See Marquis v. Tecumseh Products Co., 206 F.R.D. 132, 158, 59 (E.D. Mich. 2002) (citing Fuller v. Fruehauf Trailer Corp., 168 F.R.D. 588, 597-98 (E.D. Mich. 1996).
In the present case, the typicality requirement fails for reasons similar to those discussed with respect to the commonality requirement. That is, the near certainty that important factual difference will arise between various class members prevents this Court from concluding that Napier’s claims are typical of those of the proposed class. With regard to typicality, Napier is the only member of the putative class who has everrequired medical treatment at a facility other than a local facility in connection with MRSA. If his allegations are true, his case is admittedly extreme. Additionally, the putative class is com posed of past, present, and future inm ates of LCDC, all of whom are subject to the exhaustion of administrative remedy requirements. This analysis would require substantial inquiry into each defendant’s situation alone. However, typicality is also defeated by the range of alleged injuries and potential damages. As the Sixth Circuit recently noted in Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007), “the typicality requirement is not satisfied when a plaintiff can prove his own claim but not ‘necessarily have proved anybody else’s claim.’” Id. (citing Sprague v. GMC, 133 F.3d 388, 399 (6th Cir. 1998)). Here, Napier has failed to identify a single member other than himself who would be entitled to relief under the proposed class dfeinitions. Thus, he has failed to satisfy that the typicality requirement has been met.
4. Adequacy of Representation
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Subsection (a)(4) permits a class to be maintained only if “the representative parties will fairly and adequately protect the interests of the class.” The Sixth Circuit has adopted a two-part analysis in addressing this requirement. Senter v. General Motors Corp., 532 F.2d 511, 524-25 (6th Cir. 1976) (citing Gonzales v. Cassidy, 474 F.2d 67, 73 (6th Cir. 1973). This test requires that the representatives: (1) have common interests with unnamed members of the class; and (2) will vigorously prosecute the interests of the class though qualified counsel . See Senter, 532 F.2d at 524-35; see also Cross v. National Trust Life Ins. Co. , 553 F.2d 1026 (6th Cir. 1977) (The rule tests “whether there is any antagonismbetween the interests of the plaintiffs and other members of the class they seek to represent” and “the experience of the counsel for the plaintiffs.”) Additionally, the second elem ent requires that attorneys for the class m ust be qualified to conduct the proposed litigation.” See Cross, 553 F.2d at 1031. These determinations are questions of fact and are dependent upon the circum stances of each case. Further, the party seeking certification has the burden of proof on these issues. See Wright and Miller, § 1765.
The first part of this requirement (i.e., that the named plaintiffs have common interests with other unnamed plaintiffs) has been addressed in the previous section of this memorandum opinion. As discussed above, the Court concludes that Napier does not meet this requirement. And while the Court would normally engage in a thorough and exhaustive analysis of the second element, having already concluded that plaintfif does not qualify for class certification, the Court need not parse whether Plaintiff’s counsel have sufficient experience.
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IV. CONCLUSION As discussed herein, Napier has failed to adqeuately define the proposed classes he seeks to represent. In addition, he has not met his burden of establishing the inherent elements and the subsection (a) prerequisites of a class action under Rule 23 of the Federal Rules of Civil Procedure. Given this failure, i t is unnecessary to engage in an analysis under Rule 23(b). Accordingly, for the reasons discussed herein, it is ORDERED as follows: 1. The Plaintiff’s Motion to Certify Class [Record No. 41] is DENIED. 2. The Plaintiff’s Motions for Leave to File Supplem ental Reference Lists and Declarations [Record No. 70, 71, 72, and 73] are DENIED. The Clerk is DIRECTED to STRIKE the attached exhibits entitled “Inmate References Lists” from the record. Plaintiff’s counsel is also DIRECTED to ensure that all future m otions and exhibits com ply with the Court’s Amended Scheduling Order regarding privacy. (See Record No. 25.) This 26th day of February, 2008.
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 Case: 6:06-cv-00368-ART-REW Doc #: 113 Filed: 04/07/09 Page: 1 of 23 - Page ID#: 1725

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON
CIVIL ACTION NO. 0:06 CV 368-DCR

LESTER NAPIER, Individually and on behalf of all others similarly situated

PLAINTIFF

v.

MEMORANDUM IN SUPPORT OF

MOTION FOR SUMMARY JUDGMENT

LAUREL COUNTY, KENTUCKY; JACK SIZEMORE, Individually and in his official capacity as the Laurel County Jailor, and JOHN and JANE DOES, Nos 1, 2, and 3

DEFENDANTS

* * * * *

Come now the Defendants, Laurel Count y, Kentucky, and Jack Sizemore,

Individually and in his official capacit y, by and through counsel, and in support of their

motion for summary judgment, states as follows:

FACTUAL SUMMARY

Lester Napier (hereinafter “Napier”) is a resident of Whitley County. He resides with

his daughter, Christine Clark. (Ex. A - Napier Dep., p.10). 1 Napier testified that he is

disabled and receives Social Security/Disability. He was last employed in 1985. Napier

underwent back surgery in 1974 and applied for and secured Social Security/Disability

based upon continued numbness in hisleg. In addition to Napier’s back problems, he has

medical conditions involving his heart and breathing. His medical conditions necessitate

that he take multiple medications.

1All pages of Lester Napier’s Deposition which are referenced herein are collectively attached as Exhibit A.

Case: 6:06-cv-00368-ART-REW Doc #: 113 Filed: 04/07/09 Page: 2 of 23 - Page ID#: 1726

Napier was first incarcerated in Laurel County Detention Center (hereinafter “LCDC”)

in 1993 when he was convicted ofaiding and abetting, (or at least knowing) that there was

marijuana on federal property. Napier remained at LCDC for four t o six months before

being transferred to the Scott County Detention Center for two to threeweeks. Napier was

ultimately transferred to the federal prison in Manchester, Kentucky. Upon his release,

Napier resided in Whitley County with hi s daughter from 1995 through 2005. Napier

testified that he did not workbut “piddled around”. During thatperiod, Napier attempted to

secure black lung benefits and conitnued medical treatment for hgi h cholesterol, back pain,

breathing problems and high blood pressure. As a result of these problems Napier uses

a Continuous Positive Airway Pressure (C-Pap) machine and takes breathing treatments

three times daily.

In February 2005, Napier was convictedof being a felon in possession of a handgun

and served approximately three to of ur months at LCDC. As tothis period of incarceration,

Napier testified that whileincarcerated he filledout a medical questionnaire and the jail staff

contacted his physician and got his necessary medication. At some point during this stay

he was moved to the medical watch cell (hereinafter “med-watch”) due to lung problems.

Napier testified that he was placed in med-watch so that the jail staff could “keep an eye

on him”. He had his breathing machine with him in med-watch. He testified that he “did

not like [med-watch] because there was no t.v.”in med-watch. Heremained in med-watch,

under observation, until his br eathing was under control. Napier was subsequently

released from LCDC on April 12, 2005. Id., p. 33.

Napier was

arrested again in August 2005, in Whitley County based upon his indictment by the Clay

County grand jury. Napier was initially tak en to the Clay County Jail. Napier was

Case: 6:06-cv-00368-ART-REW Doc #: 113 Filed: 04/07/09 Page: 3 of 23 - Page ID#: 1727
transferred to LCDC on August 22, 2005. Mr. Napier’s medications were not turned over to LCDC at the time of his transfer from the Clay County Jai2l. His daughter brought his CPap machine, the nebulizer, Albuterol and Iprator prium Bromide to LCDC. (Ex. B-1, Bates 368-N-D26-0096)3. On 8/27/05 she brought his blood pressure and cholesterol medication. (Ex. B-2, Bates 368-N-D26-0103) He testif ied that his daughter could not bring his medication to LCDC because the Clay County Jail officials had the medications. (Ex. A Napier Dep., pp.39-40). Napier testified that the LCDC st aff called the Clay County Jail numerous times inquiring as to the location of the medicine. Id. This is corroborated by the LCDC records. (Ex. B-3, Bates 368-N-D 26-0105). When the medicatio n could not be located, the LCDC medical st aff made Napier an appointment with LCDC physician, Dr. Rastogi, to get prescriptions for his medications. Id., p.38.
He acknowledged that his incarceration at LCDC lasted from August 22, 2005 through January 24, 2006. Napiertestified that he was housed inthe cell 145, next to Jailer Jack Sizemore, in what he referred to as the “t.v. room” during this incarceration. Napier testified that during this time he had his C-Pap machine, sleep apnea machine and, after the original confusion with the lost medication, he alwayshad all of his medications. Id., pp. 40-41. Napier testified that spoke to the med-staff every day, two to three times per day. He confirmed that he had no di fficulties or additional medical problems during this time period. Id.
2Mr. Napier seems to believe the Whitley County Sheriff kept his medicines. Napier Dep., Pg. 36-37
3All medical records will be filed collectively under seal as Ex. B-1-14 ; the Bates Numbers reflect previous production of documents to counsel in this case.

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To corroborate Napier’s testimony, his LCDC medical r ecords indicate that he completed thirty-five (35) Medical Request Forms4 during his August 2005-January 2006 incarceration. In August and September, 2005 he requested that his blood pressure be taken on four occasions. (Ex. B-4, Bates Nos. 368-N-D26-0104, 368-N-D26-0106, 368-ND26-0107, 368-N-D26-0112). The records refl ect medical requests on 9/11 and 9/ 14 regarding complaints of chest pain, back and leg pain, toothache, and earache. (Ex. B-5, Bates No. 368-N-D26-0110, 368-N-D26-0108, 368-N-D26-0111, 368-N-D26-0113). He was transported to and from the dentist, t he oral surgeon and Dr. Rastogi, the LCDC physician, in September and October, 2005. On October 6, 2005 he had a urinalysis, and comprehensive laboratory blood work pursuant to odr ers from Dr. Rastogi. (Ex. B-6, Bates No. 368-N-D26-0114). In fact, he saw Dr. Rastogi twice (10/6 and 10/10) in October, and received a number of prescription medications at Dr. Rastogi’s direction. (Ex. B-7, Bates 368-N-D26-0116, 368-N-D26-0115 thru0118). In November, 2005 he was taken to Dr. Rastogi twice, taken to the lab for lab work once, and to the oral surgeon twice. (Ex B-8, Bates Nos. 368-N-D26-0121 thru 368-N-D26-0132).
On January 1, 2006 he filled out a medical request indicating th e nature of the complaint was “tooth severe pain.” (Ex. B-9, Bates No. 368-N-D26–0135). The first medical request indicating any concern with a knot or other swelling in his groin, testicle or other private area is Januar y 10, 2006 (Ex. B-10, Bates No. 368-N-D26-0139). He was
4Medical Request Forms document all medical complaints and medical requests made by the inmate while incarcerated, all medical treatment provided to the inmate while incarcerated. The Medical Request Form catalogs the inmate’s name, cell number, date and time of the request and any necessary comments. The form is completed and acknowledged by the responding med-staff personnel.

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taken to Dr. Rastogi that day regarding this issue. (Ex. B-11, Bates No. 368-N-D26-141). The doctor prescribed Cephalexin, which was administered. On the evening of January 12, 2006 Napier repor ted to medical staff that his scrotum was swollen; he allowed the nurse to check him. The next morning he was taken back to Dr. Rastogi. Dr. Rastogi referred Mr. Napier on to Mary Mount Hospital for admission (Ex. B-12, Bates No. 368-ND26-0143 through 368-N-D26-0145.) The hospital called and asked the LCDC to bring Mr. Napier’s C-Pap machine to him, and the mach ine was taken to the hospital for Napier ’s benefit. (Ex. B-13, Bates No. 368-N-D26-0146). Mary MountHospital referred Mr. Napier on to the University of Kentucky Medical Center, where he was hospitalized, surgery was performed, and he was dischargedon January 20, 2006,with prescriptions for bactrim and pain medication. (Ex. B-14, Bates No. 368-N-D26-0149 through 368-N-D26-0152.)
Lester Napier’s testimony regarding the sequence of events as to his medical care is somewhat less clear t han the medical reco rds. His deposition testimony, taken as a whole, suggests that he had some kind of a rash in October, 2005 for whic h he saw Dr. Rastogi and which cleared. (Ex. A, Napier Dep., pgs. 42, 47, 51). He thinks he told the nurses when it was getting “real bad” in January, 2005. (Ex. A, Napier Dep., pgs. 52-53) He can not recall whom he first told but conc edes that the day he told the Jailer of his complaint is the day he was taken to Dr. Rastogi. (Ex. A, Napier Dep., pg. 61) Mr. Napier also testified that he spoke with someone on the medical staff daily. (Ex. A, Napier Dep., pg. 41).
The Discharge Summary from the University ofKentucky reflects that as of the date of admission on 1/14/2006 Napier gave a history that he had scrotal redness and itching over the past 3-4- weeks and that he had been on Keflex for one week. (As Keflex was

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prescribed on January 10, 2005, he could not have been on Keflex for more than f our days, not one week). However,taking that history prepared in 2006 as relatively accurate, Napier then had been experiencing redness and itching for a few weeks. Interestingly, he filled out a medical request on January 01, 2006 regarding severe tooth pain but did not make any reference to his scrotal redness or itching on that form. (See Ex. B-9, Bates No. 368-N-D26–0135).
After discharge from UK, he was returned to the LCDC, following there for a few days, then discharged on home health. He admist that Betty McKnight, the medical nurse at LCDC, coordinated the home heatlh care with his daughter. (Ex.A, Napier Dep., pg. 66, 67).
There is no contention in the rec ord that Mr. Napier has required any follow-up medical care since 2005 for this condition, that he has incurred any econom ic detriment due to this condition, or that he has had any pain and suffering due to this condition since 2005. A formal grievance policy has been in place at the Laurel County Detention Center from at least 1997 for ward. A copy of t he August 17, 2005 Inmate Orientation Manual, provided to Mr. Napier upon his admission to the facility, contained information regarding obtaining medical attention and set forth the “Written Inmate Grievance Procedure That Is Available To All Inmates”. (Ex.C, Bates No. 368-N-000638, 368-N-000645-000647). Mr. Napier did not file any grievance regarding his conditions ortreatment at the Laurel County Detention Center. (Ex. A, Napier Dep. Pg 56). Confirming this testimony, Deputy Jailer Todd Prince has checked the grievance log athe LCDC and determinedthat it was started on 1/4/2004 to continuously log all grievances , including grievances regarding medical care, received from inmates. Lester Napier did not use thisadministrative process to seek

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access to medical care, grieve about lack of access to medical care, orcomplain about the medical care afforded him. (Ex. D, Aff. of Todd Prince).
LEGAL ANALYSIS A. Summary Judgment Standard Per Fed. R. Civ. P. 56, summary judgment is proper if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that no genuine issue as to any materi al fact exists, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56. The party who files a motion for summary judgment bears the initial burden to show that no genuine issues of material facts exist. Celotex v. Katterit, 477 U.S. 317, 322 (1986) ; Yeschick v. Mineta, 521 F.3d 498, 520 (6th Cir. 2008). This burden may be satisfied by “pointing out . . . an absence of evidence to support the non-moving party’s case.” Celotex, supra at 325: Cincinnati Newspaper Guild v. Cincinnati Enquirer, 863 F.2d 439, 443-44 (6th Cir. 1988). Once the moving party has met this burden, the non-movant, may not rest on its pleadings to defeat the motion, but instead must identify specific material facts upon which a reasonable juror could return a verdic t for the non-movant on the challenged claim or claims. Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). In this manner, the inquiry upon a motion fo r summary judgment is similar to the directed verdict inquiry - whether the evidenec presents a suffci ient disagreement to require submission to a jury or whetheror it is so one-sided that oneparty must prevail as a matter of law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-250 (1986); McKee v. Cutter Lab. Inc., 866 F.2d 219-226 (6th Cir. 1989). The proffer of a mere“scintilla of evidence” by the non-movant will not be sufficient to def eat an otherwise proper motion for summar y

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judgment. Id. The trilogy of Celotex, Matushita and Anderson have ushered in a new era in summary judgment jurisprudence under which the federal courts have enhanced discretion to grant summary uj dgment. The courts no longerneed to independently search the record merely to deny a motion for smu mary judgment based upon some “metaphysical doubts as to the material facts.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-81 (6th Cir. 1989). Summary Judgment is appropriate on a given claim when the facts, viewed most favorably to the non-movant, would not permit a reasonable juror to return a verdict in the non-movant’s favor.
B. Napier’s Claims must be di smissed as h e failed to exhaust administrative remedies pursuant to the Prison Litigation Reform Act.
The Prison Litigation Reform Act (PLRA) provides that no action under 42 U.S.C.A. §1983 can be brought, with respect to prison condtiions, by a prisoner confined in any jail, prison or other correctional facility until suchadministrative remedies as are available have been exhausted. 42 U.S.C.A. §1997; see also Woodford v. Ngo 126 S.Ct. 2378 (2006). (“Under the Prison Litigation Reform Act, ex haustion of the available administrat ive remedies is required for any suit challengi ng prison conditions, not just for suits under §1983"). The PLRA was intended to reducehte quantity and improve the quality of prison’s suits. W oodford supra. The PLRA attempts to eliminate unwarranted federal court interference with the administration of jails, prisons and other correctional facilities, and thus seeks to afford corrections offici als time and opportunit y to address complaints internally before allowing the in itiation of a federal case. Id . In addition, exhaustion of administrative remedies, pursuant to the PLRA , is required for all prisoner suits seek ing redress for prison circumstances or occurr ences, regardless of whether they involve

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general circumstances of incarceration or particular episodes and whether they allege Eighth Amendment violations based on use of ex cessive force, or some other relative wrong. Porter v. Nussle, 122 S.Ct. 983 (2002). As is apparenftrom the Inmate Orientation Manual and the testimony of Todd Prince, LCDC has a grievance policy in place for use by its inmates and this system is in fact used bythe inmates. Napier’s testimony indicates that he did not file a grievance while incarcerated at LCDC. (Ex. A - Napier dep., pg. 56). Thus, Napier’s failure to initiate and exhaust his administrative remedies precludes all his claims against these Defendants. Terrill v. Belcher , 22 Fed. Appx. 485 (6 th Cir. 2001). (“State prisoners failure to exhaust availabl e administrative remedies and his deliberate indifference claim against prison medical staff precluded a §1983 action regardless of whether or not the administr ative process could pr ovide the prisoner monetary relief.”) Dean v. Odom, 19 Fed. Appx. 327 (6th Cir. 2001)(State inmate was required to exhaust his remedies regarding prison officials alleged denialof his prescription medication before filing a §1983 suit against officials). Therefore, Napier’s claims against these Defendants must fail as a matter of law.
C. Defendant’s are entitled to summa ry judgment as to Plaintiff’s 42 U.S.C. §1983 claim I. Eighth Amendment To state a claim under §1983, Plaintiff must allege a viol ation of a r ight
secured by the Constitution and laws of the United States and must show that the alleged deprivation was committed by aperson acting under color of state law. West v. Adkins, 47 U.S. 42 (1988). The 8th Amendment to the U.S. Constitution provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

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inflicted.” U.S. Constitution, Am. 8. Thus, the 8th Amendment requires detention facilities to provide the basic human needsof their prisoners. Id. at 33. A plaintiff can only establish a violation of the 8 th Amendment when he proves t wo elements. First, the alleged deprivation must be objectively, sufficiently serious. Specifically, “a prison official’s act or omission must result in the denial of a ‘the minimal civilized measure of life’s necessities’”. Farmer v. B rennen 511 U.S. 28 (1994) Secondly, only the unnecessary and wanton infliction of pain implicates the 8th Amendment. Id. at 834. Thus, to establish a violation, one must inquire into the state of mind of the responsible parties, the jail’s officials. Helen v. McKinney 509 U.S. 25 (1993). Such inquiry must establish that the prison officials acted with “deliberate indifference to seriousmedical needs of prisoners”. Farmer,ssupra at 835. Specifically, the plaintiff must establish that the defendant’s conduct, with respect to the plaintiff, demonstrated “deliberateness tantamount to an intent to punish.” Molten v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988).
The Supreme Court equates deliberate i ndifference with criminal r ecklessness. Farmers supra at 837. Therefore, a defendant must know of and disregard a substantial risk of serious har m. I d. This portion of the analysis is subjective. The proof of the violation requires that “the official must bot h be aware of facts from which the inference could be drawn that a substantial risk of se rious harm exists and he must also draw the inference.” Id. A plaintiff’s allegation t hat there existed a danger that an officer should have been aware of is not sufficient. Id. at 838. Deliberate indifference is something far more than negligence. Id.at 835. Thus, “prison officials who actually knew of a substantial risk to inmate health or safety may be foundfree from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844.

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Lester Napier has sued Laurel Count y, Kentucky and Jack Sizemore, as an individual and as the Laurel County Jailer. Plaintiff’ Complaint at Page 1. However, there is absolutely no evidence thatany of these defendants violatedthe plaintiff’s constitutional rights. The crux of Napier’s claim is that the jail officials failed to properly treat him for or protect him from contracting MRSA, thus denying him appropriate medical care and violating the Constitution. However, neitherof these claims are supported by the facts and relevant law regarding this matter.
Napier’s testimony indicates that he was incarcerated at LCDC from August 2005 through January 2006. During that time he completed 35 medical request forms and was treated by jail staff and jail physicians relative toevery such medial complaint. Specifically, in August and September 2005, he requested t hat his blood pressur e be taken on four occasions. (Ex. B-1). His records indicate that he was taken to the dentist, oral surgeon and Dr. Rastogi in September and October 2005. On October 6, 2005 he had urinalysis and comprehensive blood work pursuant to Dr. Rastogi’s orders. Specifically, he saw Dr. Rastogi twice in October and received a number of prescriptions from him. In November 2005 he was seen by Dr. Rastogi twice, taken tothe lab for lab work once, and taken to the oral surgeon twice. In fact, Napier testified that he spoke to medical staff every day, two to three times per day. (Ex. A, Napier dep. pgs. 40-41.) As he testified,
Q: Okay. Did y ou ever go longer than three d ays without personally talking to somebody on the medical staff at Laurel County Detention Center?
A: Oh, no, I talked to somebody every day. In the context of this litigation, Napier has testified that he first became aware that

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he was having a problem in the scrotal area in October or November 2005. During this time he made numerous medical requests and had several trips to medical facilities. He testified that this “condition”, for which he did see Dr. Rastogi, celared. (Ex. A, Napier Dep., pgs. 42, 47, 51) His memory was relatively unclear and somewhat inconsistent as to the sequence of symptoms, complaints, and attention provided by themedical staff. What the records do establish, however, is that w hen Napier had a medical complaint , it was promptly addressed and he received treatmen t. (Ex. B, Bates No. 368-N-D-26-0135). Napier did complete a medical request form on January 1, 2006 which made no mention of the scrotal problem. The first jail medical request indicating any concern with a knot or other swelling in his scrotalarea was made on January 10, 2006.(Ex. B, Bates No. 368-ND-26-0136). As Napier was well-aware of the medical complaint and request process at LCDC and had utilized the procedure on many previous occasions, it seems most likely that he would have included the scrotal condition on the January 1st form if in fact that had been a matter which he desired to bring to the attention of the jail staff.
The date Napier informed LCDC officials andspecifically Jack Sizemore, that he had a problem in his scrotal area, was when he complained to Jack Sizemore on January 10, 2006. That complaint was catalogued in a medcial request form. (Ex. B, Bates No. 368-ND-26-0136). Napier was taken to the docto r that day, January 10, 2006, regarding his complaint of scrotal pain. (Ex. B, Bates No. 368-N-D-26-0141). The doctor prescribed Cephalexin and administered it to Napier. When Napier complained of increased scrotal pain and swelling to the medical jail staff onthe evening of January 12, 2006, he was taken the next morning to see Dr. Rastogi. Dr. Rastogi referred him to Mary mount Hospital for admission and Mary mount referred him to the Uinversity of Kentucky Medical Center. (Ex.

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B, Bates No. 368-N-D-26-0143 through 0146, 368-N-D-0152). TheUniversity of Kentucky

hospitalized Napier, performed surgery, and discharged him on January 26, 2006 with

prescriptions for Bactrim and pain medication.(Ex. Bates No. 368-N-D-26-0149 through

0152). Thus, the proof indicates that the first notice that LCDC and Jack Sizemore had of

Napier’s scrotal issue was on January 10, 2006 and was addressed that day and

consistently monitored thereafter.

The Supreme Court has opined that a difference of opinion regarding the Plaintiff’s

diagnosis and treatment does not establish a constitutional claim. Estelle v. Gamble, 29

U.S. 97, 107 (1976); see also, Westlake v. Lucas , 537 F.2d 857, 860 ( 6th Cir. 1976).

Further, the 6th Circuit has held that [t]he “requirement that the official had subjectively

perceived a risk of harm and then disregar

ded it is meant to prevent the

constitutionalization of medical malpractice claims; thus, a plaint iff alleging deliberate

indifference must show more than negligence or the misdiagnosis of an ailment.”

Comstock v. McCrary, 273 F.3d 693, 703 (6 th Cir. 2001). Thus, “[w]hen a prison doctor

provides treatment, albeit carelessly or ineffectually, to a prisoner, he has not displayed a

deliberate indifference to theprisoner’s needs, but merely adegree of incompetence which

does not rise to the level of aconstitutional violation.” Id.; see also Johnson v. Karnes, 398

F.3d 868, 870 (6th Cir. 2005). In contrast, to Comstock and Johnson, these defendants

assert they acted immediately and appropriately to secure andprovide Napier medical care

after he reported the scrotal issue. Clear ly, Napier believes that the jail officials should

have provided and/or arranged for different or better treatment. However, this argument

by Napier does not satisfy the legal standard and unquestionably fails to state a §1983

claim against Laurel County, Kentucky and Jack Sizemore. Thus, these defendants are

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entitled to summary judgment as a matter of law. In addition, even if Napier could prove that either Laurel County or Jack Sizemore
was deliberately indifferent to his serious medical need, he still cannot prove that their actions or inactions caused his infections. Pr isons and/or their officials are not the guarantors of a prisoner’s health. Specific ally, a prison and its officials are not constitutionally responsible for insuring that inmates do not get sick while incarcerated. Additionally, the prison and its officials are not responsible for insuring that MRSA is not contracted at their facility anymore than hospi tals or schools are burdened with such a possibility. These Defendants are required not to ac t with deliberate indifference to the Plaintiff’s serious medical needs. The record establishes that Napier has not proven with a reasonable degree of medical probability that these defendants knew and were deliberately indifferent to the fact any seri ous medical need of Les ter Napier’s. To the contrary, the record is replete that Les ter Napier was afforded regular visits with a physician, dentist, and oral surgeon, medications for chronic and acute conditions, including necessary pain medications, and that he was closely monitored in the med-watch cell where his nebulizer and C-Pap machines were available to support his chronic medical conditions. After his discharge from the LC DC, Betty McKnight, the medical director worked with his daughter to arrange for his fo llow-up home health care. (Ex. A., Napier Dep., pp. 42 ) Assuming arguendo that Napier was exposed to MRSA at LCDC, there is no proof that the Defendants subjectively knew of Napier’s medical needs, and that they, with this knowledge, ignored that need. Ther efore, Napier has failed to satisfy the necessary requirement for establishing an 8 th Amendment violation and deliberate indifference.

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ii. Fourteenth Amendment Under the Fourteenth Amendmentdue process clause, “.. . pretrial detani ees have a right to adequate medical treatment t hat is analogous to the Eighth Amendment rights of prisoners.” Watkins v. City of Battle Creek, 273 F.3d 686, 685 (6th Cir. 2001). As Plaintiff was not a pre-trial detainee at t he time he was incarcerated at LCDC, the Fourteenth Amendment is not applicable and the claim must be dismissed. D. In the alternative, Defendant’s are entitled to qualified immunity of the Plaintiff’s §1983 Claim. “Government officials performing discreti onary functions are entitled to qualified immunity from civil suits for damages arising out of the performance of their official duties ‘as long as their actions could reasonably haev been thought consistentwith the rights they are alleged of violating.’” Watkins v. City of Southville, 221 F.3d 883, 887 (6th Cir. 2000). “The key inquiry in analyzing a claim of qualified immunity is whether the defendan ts alleged conduct violated clearly established statut ory or constitutional rights of which a reasonable person would have known.” Id. “Thus, a government employee will be shielded from liability so long as theemployee acted under the objectively reasonable belief that his or her actions were lawf ul.” Ahlers v. Schebil , 188 F.3d 365, 372-73 (6 th Cir. 1999). Therefore, “[a] s uccessful §1983 claimant must establish that the defendant acted knowingly or intentionally to violate c onstitutional right such that mere negligence or recklessness is insufficient.” Id. Assuming arguendo, this court finds that thes e defendants violated plaintif f’s constitutional rights, which these defendants specifically deny, they are nevertheless entitled to qualified immunity. There is no evidence of record to indicate that Jack

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Sizemore acted “knowingly” or “intentionally” to violate plaintiff’s constitutional rights. In addition, there is no evidence that Sizemore intentionally or knowingly exposed Plaintiff to MRSA or failed to secure medical treatment for him.
E. Plaintiff’s claims against the Defe ndants in their official capacity and the defendant in his official capacity, and against Laurel County, must be dismissed, as Plaintiff cannot prove municipal liability.
Plaintiff has brought suit against the i ndividual defendant, Jack Sizemore, in his individual and official capacities. An official capacity suit is a suit directly against the local government unit. Thus, it is another me thod of pleading an action against an ent ity of which an officer is an agent. Kentucky v. Graham , 43 U.S. 159 (1985). As suming arguendo, that the plaintiff could prove thatSizemore and the defendants violated Napier’s constitutional rights, which these defendants specifically deny, in order to recover against Sizemore in his individual and official capacity,as well as Laurel Counyt , Plaintiff must also prove that the actions of these defendants were pursuant to a “policy or custom” attributable to Laurel County. Monell v.New York Depart. of Social Services, 436 U.S. 658 (1978).
Plaintiff has provided absolutely no evidence of a policy or custom that caused his constitutional rights to be violated, if in f act they were, it is well established that an municipality’s liability in §1983 claims is limited to allegedly unconstitutional conduct which implements or executes a policy statement, ordinance, regulation or decision or officially adopted and promulgated by municipal officers or which results from a c ustom fairly attributable to the municipality. Id. “A governmental entityis liable under §1983 only when the entity itself is the ‘moving force’ behind the deprivation . . . Thus, in an official capacity suit, the entity’s internal ‘policy or custom’ must have played a part in the violation of the

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federal law.” Kentucky, supra at 166. A singel instant of misconduct can not form the basis for imposing liability on the county. Oklahoma City v. Tuttle, 471 U.S. 808 (1985).
A “custom” for the purposes of Monell liability must be “so permanent and wellsettled as to constitute a custom or usage with the force of law.” Id. Thus, the force of law must include “[d]eeply embedded traditional ways of carrying out state policy.” Nashville, Chattanooga and St. Louis Ry. Co. v. Browning, 310 U.S. 362, 369 (1940). There must be a course of action deliberately chosen from among various alternatives. Oklahoma City , supra at 823. Thus, a “custom” is a “legal institution” not memorialized by written law. Feliciana v. City of Cleveland, 988 F.2d 649 (6th Cir. 1995).
Napier clearly cannot meet hsi burden in this regard. There is no evidence of record of a policy or custom of exposing inmates to MRSA, nor is there a policy or custom of denying or delaying medical treatment to inmates. To the contrary, it appears that Laurel County, Kentucky, Sizemore and LCDC’s cust om and policy is of providing reasonably immediate care to inmates. Regardless, Napier’s testimony and records indicate that he was knowledgeable of the medical report system at LCDC, usedthat system regularly and received reasonably immediate care for his comp laints. Despite this fact, even if there were such evidence, there isno evidence that Laurel County ando/ r its officials knew about any alleged incidents and tacitly approved them. Inaddition, there is no evidence of record that the Defendants’ alleged actionsor inactions were caused bycustom or policy. Absent this proof, Plaintiff’s §1983 claim against the county and the official capacity claims must be dismissed. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).

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F. The Defendants are entitled to summary judgment as to the Plaintiff’s State court claims.
Napier has alleged that the Defendants commtited the state law torts of negligence, gross negligence and intentional infliction of emotional distress. Defendants are also entitled to judgment as a matter of law regarding these claims.
I. Negligence To establish a negligence claim, a claimant must prove four elements. First, he must establish a duty of careowed by the Defendant. Second,he must establish conduct of the Defendants which would breach the standard of care bywhich the duty is measured. Third, he must have sustained an injury whic h results in actual los s or damage to his person or pr operty. Fourth, the plaintiff must establish legal causation between the inadequate conduct of the defendant and injury tohte plaintiff. David J. Liebson, Kentucky Practice. Vol. 13, Tort Law Sec. 10.2 (Wes t 1995 and Supp.). If any of these are not established, the defendants prevails. Id . The evidence of record indicates that these Defendants provided timely medical care to the Palintiff. In this matter, Plaintiff has brought forth no evidence to indicate that Jack Sizemore or Laurel County breached their duty to Plaintiff. As a result, Plaintiff’s negligence claim must be dismissed.
ii. Gross Negligence Gross negligence has been defined as “a wanotn or reckless disregard for the safety of other persons, such that the offending conduct is so outrageous that m alice could be implied from the facts of the situation.” Estate of Presley v. CCS of Conway , 2004 U.S. Dist. (LEXIS 9583, at *11 (W.D. Ky. May 18,2004)(quoting Phelps v. Louisville Water Co. 103 S.W.3d 46, 52 (Ky. 2003)). As explained pr eviously, there is no evidence that the

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Defendants breached a duty owed to Plaintif f. Furthermore, it certainly has not been established that any of thedefendants had a wanton or recklessdisregard for his safety or health, such that their conduct would be so outrageous that malice could be implied. The only evidence of record establishes that once Defendants were informed of Napier’s concerns, they immediately secured his medi cal treatment. As such, Plaintiff’s gross negligence claim must be dismissed as a matter of law.
iii. Intentional Infliction of Emotional Distress Kentucky courts have recognized a cause of action for Intentional Infliction of Emotional Distress, but thiscause of action has been applied onyl sparingly. Kraft v. Rice, 671 F.2d 247, 250 (Ky. 1984). In fact, it is measured by a high standard which few meet. In Kraft, Kentucky made it tortious for “one w ho, by extreme and out rageous conduct, intentionally or recklessly causes severe emotional distress to another.” However, in Kentucky IIED is a “gap-filler”. Thus, where an actor’s conduct amounts to commission of one of the traditional torts such as assault or negligence, for which recovery for emotional distress is allowed, and this conduct was noitntended to cause extreme emotional distress in the victim, the tort of outrage will not lie. Recovery for emotional distress in those instances must be had with t he appropriate traditional common law action. Rigazio v. Archdiocese of Louisville, 53 S.W.2d 295, 298-299 (Ky. App. 1993). Napier has alleged the tort of negligence for which recovery for emotional distress is allowed, as a result, IIED as a cause of action is not available to Napeir as the traditional tort of negligence has been pled. Even if this were nothe case, which these Defendants specifically deny, Plaintiff has produced no evidence supporting an allegation that Defendants’ conduct was specifically intended to cause extreme emotional distress. Certainly a facility that provides timely

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medical treatment upon awareness of a cl aim can not be deemed an attempt to cause

extreme emotional distress. Therefore, Napier’s cause of action for IIED m ust be

dismissed as a matter of law.

iv. Or, in the alternative, the individual Defendant is entitled to the defense of qualified official imm unity as to the Plaintiff’s State law claims.

“Official immunity is imm unity for tort liability afforded to public officers and

employees for acts performed in the exercise of their discretionary functions.” Yanero v.

Davis, 65 S.W.3d 510, 521 (2001). “[W]hen sued in their individual capacities, public

officers and employees enjoy qualified offici al immunity which affords protection from

damages and liability for good faith judgment

calls made in a legally uncertain

environment.” Id. at 522.

Qualified official immunity applies to negigl ent performance by a public officer employee of (1)discretionary acts or functions, i.e. those involving the exercsi e of discretion and judgment, or deliberation, decision, and judgment; (2) in good faith; and (3) within the scope of the employee’s authority. Id.

This Defendant is clearly entitled to qualified official immunity if there is no evidence

that his actions with respect to Napier, which were unquestionably discretionary, were not

in good faith. Consequently, he is entitled to the defense of qualified official immunity as

to Napier’s state law claims.

v. The State law claims against Laurel County , and the official capacity claim must be dismissed p ursuant to the doctrine of sovereign immunity.

The suit against the Defendant in his official capacity and against Laurel County is

barred by the doctrine of sovereign immunity. The issue of sovereign immunity has long

been settled in Kentucky. A county is a political subdivision of the Commonwealth and is,

Case: 6:06-cv-00368-ART-REW Doc #: 113 Filed: 04/07/09 Page: 21 of 23 - Page ID#: 1745
as such, an arm of the state government. The county is clothed wit h the sovereign immunity of the Commonwealth. Fr anklin County v. Malone, 957 S.W.2d 195, 203 (Ky. 1997); Cullinan v. Jefferson County, 418 S.W.2d 407, 408 (Ky. 1967).
In addition, an official capacity suit is the suit directly against the local government unit. Thus, it is another way of pleading an action against the entity of which the officer is an agent. Kentucky supra at 165-166. Because a claim against an individual in his official capacity is merely a claim against t he county, the official capacity claims against the Defendants must be dismissed pursuant tothe defense of sovereign immunity. See Salyer v. Patrick, 874 F.2d 374 (6th Cir. 1989). For these reasons, the state law claims against Laurel County and individual defendant in his offi cial capacity must be dismissed as a matter of law.
CONCLUSION Defendants are clearly entitl ed to judgment as a matter of law as there is no evidence of a constitutional violation and, at a very minimum, the individual Defendant, Sizemore, is entitled to the defense of qualified immunity. Laurel County must be dismissed as Plaintiff has failed to establish municipal liability. Finally, it is clear that the Defendants are entitled to judgment as a matter of law with respect to Napier’s tort claims. WHEREFORE, Defendants hereby respectfu lly request that t heir Motion for Summary Judgment be GRANTED.

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Respectfully Submitted,
LESLIE PATTERSON VOSE PIERCE W. HAMBLIN BRADLEY C. HOOKS STEPHANIE B. CHADWELL LANDRUM & SHOUSE LLP 106 West Vine Street, Suite 800 P.O. Box 951 Lexington, KY 40588-0951 Telephone: (859) 255-2424
By: /s/ Leslie P. Vose ATTORNEYS FOR DEFENDANTS

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

LESTER NAPIER, Plaintiff,
v. LAUREL COUNTY, KENTUCKY, et al.,
Defendants.

)

)

)

Civil Action No.06-368-ART

)

)

)

AMENDED JUDGMENT

)

)

)

)

)

*** *** *** ***

In accordance with the Order entered this date and pursuant to Rule 58 and 60(a) of the

Federal Rules of Civil Procedure, it is ORDERED and ADJUDGED as follows:

(1) JUDGMENT is entered in favor of the Defendants with respect to all claims asserted

again them except the state law negligence and gross negligence claims asserted

against Defendant Jack Sizemore in his individual capacity, which are DISMISSED

WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3).

(2) This matter is DISMISSED WITHOUT PREJUDICE, all scheduled hearings are

CANCELLED, and this matter is STRICKEN from the Court’s active docket.

(3) This is a FINAL and APPEALABLE judgment, and there is no just cause for delay.

This 8th Day of October, 2009.

 
 U.S. District Court Eastern District of Kentucky (London) CIVIL DOCKET FOR CASE #: 6:06−cv−00368−ART−REW

CLOSED

Napier v. Laurel County, Kentucky et al Assigned to: Judge Amul R. Thapar Referred to: Magistrate Judge Robert E. Wier Case in other court: Sixth Circuit Court of Appeals, 09−06239 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 08/16/2006 Date Terminated: 07/29/2009 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Lester Napier Individually and on behalf of all others similarly situated

represented by Colleen M. Hegge Noyes, McMain &Heggee PLLC 8667 Highway 42 #300 Union, KY 41091 859−384−4300 Fax: 859−384−5392 Email: chegge@statmanharris.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gregory Allen Belzley P.O. Box 278 Prospect, KY 40059 502−292−2452 Email: gbelzley@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey C. Shipp Wallace &Boggs, PLLC 300 Buttermilk Pike Suite 100 Ft. Mitchell, KY 41017 859−578−5410 Fax: 859−331−5337 Email: jshipp@wallaceboggs.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew J. Horne Anderson &Horne, PLLC 517 W Ormsby Avenue The Carriage House Louisville, KY 40203 502−637−3335 Fax: 502−637−2774 Email: Andrew@HorneLawKy.com ATTORNEY TO BE NOTICED

V. Defendant Laurel County, Kentucky

represented by Bradley C. Hooks Landrum &Shouse LLP − LEXINGTON 106 W. Vine Street Suite 800 P.O. Box 951 Lexington, KY 40588−951 859−255−2424

Fax: 859−233−0308 Email: bhooks@landrumshouse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dinah Townsend Bevington Landrum &Shouse LLP − LEXINGTON 106 W. Vine Street Suite 800 P.O. Box 951 Lexington, KY 40588−951 859−255−2424 Fax: 859−233−0308 Email: dbevington@landrumshouse.com TERMINATED: 01/25/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Estill D. Banks , II Landrum &Shouse LLP − LEXINGTON 106 W. Vine Street Suite 800 P.O. Box 951 Lexington, KY 40588−951 859−514−7252 Fax: 859−233−0308 Email: ebanks@landrumshouse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Patterson Vose Landrum &Shouse LLP − LEXINGTON 106 W. Vine Street Suite 800 P.O. Box 951 Lexington, KY 40588−951 859−255−2424 Fax: 859−233−0308 Email: lvose@landrumshouse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pierce W. Hamblin Landrum &Shouse LLP − LEXINGTON 106 W. Vine Street Suite 800 P.O. Box 951 Lexington, KY 40588−951 859−255−2424 Fax: 859−233−0308 Email: phamblin@landrumshouse.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chacey R. Ford Fultz, Maddox, Hovious &Dickens, PLC 101 S. Fifth Street 2700 National City Tower Louisville, KY 40202 502−588−2022 Fax: 502−588−2020 Email: cford@fmhd.com TERMINATED: 01/25/2008 ATTORNEY TO BE NOTICED

Defendant Jack Sizemore Individually
Defendant John and Jane Does Individually

represented by Bradley C. Hooks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dinah Townsend Bevington (See above for address) TERMINATED: 01/25/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Estill D. Banks , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Patterson Vose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pierce W. Hamblin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chacey R. Ford (See above for address) TERMINATED: 01/25/2008 ATTORNEY TO BE NOTICED
represented by Bradley C. Hooks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dinah Townsend Bevington (See above for address) TERMINATED: 01/25/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Estill D. Banks , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Patterson Vose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pierce W. Hamblin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chacey R. Ford (See above for address) TERMINATED: 01/25/2008 ATTORNEY TO BE NOTICED

Official Defendant Jack Sizemore In his official capacity as the Laurel County Jailer
Official Defendant John and Jane Does In their official capacity as medical professionals, officers and employees of the Laurel County Detention Center

represented by Bradley C. Hooks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dinah Townsend Bevington (See above for address) TERMINATED: 01/25/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Estill D. Banks , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Patterson Vose (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pierce W. Hamblin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chacey R. Ford (See above for address) TERMINATED: 01/25/2008 ATTORNEY TO BE NOTICED
represented by Bradley C. Hooks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dinah Townsend Bevington (See above for address) TERMINATED: 01/25/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Estill D. Banks , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Pierce W. Hamblin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Chacey R. Ford (See above for address) TERMINATED: 01/25/2008 ATTORNEY TO BE NOTICED
Leslie Patterson Vose (See above for address) ATTORNEY TO BE NOTICED

Movant Larry Cunnigan
Movant Courtney Perl McQueen
Movant James Mounts
Movant Phyllis Mounts

represented by Keith A. McMain Noyes, McMain &Heggee PLLC 8667 Highway 42 #300 Union, KY 41091 859−384−4300 Fax: 859−384−5392 Email: nmhlaw@fuse.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen M. Hegge (See above for address) ATTORNEY TO BE NOTICED
Jeffrey C. Shipp (See above for address) ATTORNEY TO BE NOTICED
represented by Keith A. McMain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen M. Hegge (See above for address) ATTORNEY TO BE NOTICED
Jeffrey C. Shipp (See above for address) ATTORNEY TO BE NOTICED
represented by Keith A. McMain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen M. Hegge (See above for address) ATTORNEY TO BE NOTICED
Jeffrey C. Shipp (See above for address) ATTORNEY TO BE NOTICED
represented by Keith A. McMain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen M. Hegge (See above for address) ATTORNEY TO BE NOTICED
Jeffrey C. Shipp (See above for address) ATTORNEY TO BE NOTICED

Movant Evelyn Rose
Date Filed 08/16/2006 08/16/2006 08/17/2006 08/24/2006 08/24/2006 09/11/2006 09/11/2006 09/12/2006
09/13/2006 10/09/2006 10/26/2006 10/31/2006 11/01/2006 11/09/2006

represented by Keith A. McMain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colleen M. Hegge (See above for address) ATTORNEY TO BE NOTICED
Jeffrey C. Shipp (See above for address) ATTORNEY TO BE NOTICED
# Docket Text
1 COMPLAINT ( Filing fee $350; receipt number 789973), filed by Lester Napier. (Attachments: # 1 Civil Cover Sheet and Case Assignment# 2 Summons)(JMB) (Entered: 08/16/2006)
2 Summons Issued as to Laurel County, Kentucky, Jack Sizemore; issued summons returned to counsel via US MAIL (JMB) (Entered: 08/16/2006)
3 AMENDED COMPLAINT against all defendants, filed by Lester Napier.(Belzley, Gregory) (Entered: 08/17/2006)
4 SUMMONS Returned Executed by Lester Napier via certified mail to Laurel County, Kentucky served on 8/21/2006, answer due 9/11/2006. (Belzley, Gregory) (Entered: 08/24/2006)
5 SUMMONS Returned Executed by Lester Napier via certified mail to Jack Sizemore served on 8/21/2006, answer due 9/11/2006; Jack Sizemore served on 8/21/2006, answer due 9/11/2006. (Belzley, Gregory) (Entered: 08/24/2006)
6 ANSWER to Complaint with JURY DEMAND by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3.(Vose, Leslie) (Entered: 09/11/2006)
7 ANSWER to Amended Complaint by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3.(Vose, Leslie) (Entered: 09/11/2006)
8 ORDER FOR MEETING AND REPORT: 1) no later than 30 days from DOE and service of this order, counsel shall conduct meeting; 2) @ mtg, counsel shall exchange disclosures; 3) NLT 10 days after meeting, counsel shall file a written joint report outlining proposed discovery plan. Signed by Judge Danny C. Reeves. Rule 26 Meeting Report due by 10/12/2006. (Attachments: # 1 Consent Form)(RBB)cc: COR (Entered: 09/12/2006)
9 NOTICE OF APPEARANCEAndrew J. Horne Plaintiffs' Co−Counsel by Lester Napier.(Horne, Andrew) (Entered: 09/13/2006)
10 FIRST DISCLOSURES pursuant to Rule 26 by Lester Napier.(Belzley, Gregory) (Entered: 10/09/2006)
11 JOINT REPORT of Rule 26(f) Planning Meeting. (Belzley, Gregory) (Entered: 10/26/2006)
12 DISCLOSURES by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore.(Vose, Leslie) (Entered: 10/31/2006)
13 ORDER: Scheduling Conference set for 11/14/2006 03:00 PM in LEXINGTON before Danny C. Reeves.. Signed by Judge Danny C. Reeves. (JMB)cc: COR, Lexington Ct Diary (Entered: 11/01/2006)
14 JOINT MOTION to Continue by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane

11/13/2006 11/13/2006
11/22/2006
11/27/2006
01/10/2007 03/20/2007 04/04/2007 04/04/2007 04/05/2007 04/05/2007

Does, Nos. 1, 2 and 3 Scheduling Conference (Vose, Leslie) (Entered: 11/09/2006)
***MOTION SUBMITTED TO CHAMBERS of Danny C. Reeves for review: 14 JOINT MOTION to Continue Scheduling Conference by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 (JMB) (Entered: 11/13/2006)
15 ORDER re 14 JOINT MOTION to Continue Scheduling Conference by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 filed by Lester Napier,, Jack Sizemore,, Laurel County, Kentucky,, John and Jane Does, Nos. 1, 2 and 3: Joint motion is GRANTED. Scheduling Conference shall be held on November 22, 2006 at 1:30 PM in London, KY. Motions terminated: 14 JOINT MOTION to Continue by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 filed by Lester Napier,, Jack Sizemore,, Laurel County, Kentucky,, John and Jane Does, Nos. 1, 2 and 3,. Scheduling Conference set for 11/22/2006 01:30 PM in London before Danny C. Reeves.. Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 11/13/2006)
16 MINUTE ENTRY FOR SCHEDULING CONFERENCE held on 11/22/2006 before Judge Danny C. Reeves : 1) Parties shall have until 5/22/2007 to complete limited discovery on issues outlined in open court. Separate Order shall be entered identifying specific issues; 2) Plff shall have until June 22, 2007 to file brief on issue of class certification. Dfts shall have time permitted by local rules to file reply brief; and 3) Plff also permitted to conduct discovery to identify John and Jane Doe dfts. Discovery due by 5/22/2007. (COURT REPORTER: CINDY OAKES) (JMB)cc: COR (Entered: 11/22/2006)
17 SCHEDULING ORDER: 1) Parties shall have until May 22, 2007 to complete limited discovery on issues listed (see Order); and (2) NLT June 22, 2007, Plff shall file memorandum on issue of class certification. Parties shall have time permitted by local rules to file any responses and replies. . Signed by Judge Danny C. Reeves. (JMB)cc: COR THIS SCHEDULING ORDER IS AMENDED BY ORDER 25 ENTERED ON 6/4/2007 Modified on 6/4/2007 (Brock, Jacqueline). (Entered: 11/27/2006)
18 AMENDED DISCLOSURES Plaintiff's Amended Rule 26(e)(1) Disclosures by Lester Napier.(Belzley, Gregory) (Entered: 01/10/2007)
19 RESPONSE to Discovery Request by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore.(Vose, Leslie) (Entered: 03/20/2007)
20 JOINT MOTION for Extension of Time by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 to Extend Deadlines (Vose, Leslie) Additional attachment(s) added on 4/5/2007 (Brock, Jacqueline). (Entered: 04/04/2007)
21 NOTICE OF FILING by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 re 20 JOINT MOTION for Extension of Time by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 (Attachments: # 1 Proposed Order)(Vose, Leslie) (Entered: 04/04/2007)
***MOTION SUBMITTED TO CHAMBERS of Danny C. Reeves for review: 20 JOINT MOTION for Extension of Time by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 (JMB) (Entered: 04/05/2007)
22 AMENDED SCHEDULING ORDER: 1) Parties shall have until July 25, 2007, in which to complete limited discovery as outlined in this Court's Scheduling Order of 11/27/2006; and 2) NLT August 27, 2007, Plff shall file memorandum on issue of class certification. Parties shall have time permitted by local rules to file any responses and replies. Motions terminated: 20 JOINT MOTION for Extension of Time by Lester Napier, Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 filed by

05/10/2007 05/15/2007 06/04/2007 06/04/2007
07/13/2007 07/16/2007
07/20/2007 07/23/2007 07/24/2007

Lester Napier,, Jack Sizemore,, Laurel County, Kentucky,, John and Jane Does, Nos. 1, 2 and 3,. Discovery due by 7/25/2007. Dispositive Motions due by 8/27/2007.. Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 04/05/2007)
23 RESPONSE to Discovery Request by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore.(Vose, Leslie) (Entered: 05/10/2007)
24 MOTION to Amend/Correct 17 Scheduling Order, by Lester Napier (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 05/15/2007)
***MOTION SUBMITTED TO CHAMBERS of Danny C. Reeves for review: 24 MOTION to Amend/Correct 17 Scheduling Order, by Lester Napier (JMB) (Entered: 06/04/2007)
25 ORDER re 24 MOTION to Amend/Correct 17 Scheduling Order, by Lester Napier filed by Lester Napier: Plff's motion 24 is GRANTED. Scheduling Order entered 11/27/2006, is amended as follows: 1) Dft shall provide to Plff the names and last known addresses and telephone numbers of inmates at LCDC who requested medical treatment or filed grievances related to MSRA, spider bites or boils on or after 8/16/2005; 2) The info provided pursuant to paragraph 1 shall be disclosed only to Plff's counsel and only to those employees who assist Plff's counsel in litigation of this case; 3) Any person given access to this confidential info is directed not to disclose such info to any person other than those described in paragraph 2; 4) The info provided pursuant to paragraph 1 may not be incorporated or attached to a pldg or other doc that is filed unsealed w/ the Court; or disclosed in argument or offered into evidence in any in−court proceeding or this Court until and unless the Ct approves the incorporation, attachment, disclosure or offer in advance; 5) Plff is prohibited from using or disclosing such info for any purpose other than this litigation, and shall return to Dfts or destroy such info at end of this litigation; 6) This Order shall survive final termination of this action, to extent that such info is not or does not become generally known to the public, and the Court shall retain jurisdiction to resolve any dispute concerning the use of info disclosed hereunder; and 7) This Order shall apply to any and all copies, writings, and notes made from or derived from docs produced hereunder. Motions terminated: 24 MOTION to Amend/Correct 17 Scheduling Order, by Lester Napier filed by Lester Napier,.. Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 06/04/2007)
26 MOTION for Extension of Time to Complete Discovery and to File Motion for Class Certification by Lester Napier (Attachments: # 1 Proposed Order)(Belzley, Gregory) Modified on 7/16/2007 to add "and to File Motion for Class Certification" (Brock, Jacqueline). (Entered: 07/13/2007)
27 ORDER re 26 MOTION for Extension of Time to Complete Discovery and to File Motion for Class Certification by Lester Napier filed by Lester Napier: Plff's Motion 26 is GRANTED, in part. Parties shall have until August 27, 2007, in which to complete limited discovery as outlined in this Ct's Scheduling Order of 11/27/2006. Additionally, Plff shall have until September 27, 2007, in which to file memo on issue of class certification. Parties shall have time permitted by local rules to file any responses and replies. Motions terminated: 26 MOTION for Extension of Time to Complete Discovery by Lester Napier filed by Lester Napier. Discovery due by 8/27/2007.. Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 07/16/2007)
28 NOTICE to Take Deposition of Lester Napier on August 23, 2007 at 10:00 a.m. by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore.(Vose, Leslie) (Entered: 07/20/2007)
29 Proposed Agreed Order/Stipulation re Videotape of Jail by Lester Napier. (Belzley, Gregory) (Entered: 07/23/2007)
30 AGREED ORDER: Plff having inspected and videotaped portions of LCDC, and such videotape showing faces of persons incarcerated in Jail at that time, it is ORDERED that such videotape and all copies thereof shall be considered "confidential information" to which this Court's protective order entered 6/4/2007, shall apply. . Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 07/24/2007)

08/07/2007 08/10/2007 08/13/2007
08/13/2007
08/14/2007
08/16/2007 08/16/2007 08/16/2007 08/16/2007 08/17/2007
09/27/2007 09/27/2007 09/27/2007

31 RESPONSE to Discovery Request by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore.(Vose, Leslie) (Entered: 08/07/2007)
32 MOTION to Consolidate Cases by Larry Cunnigan, Courtney Perl McQueen, James Mounts, Phyllis Mounts, Evelyn Rose (Shipp, Jeffrey) Additional attachment(s) added on 8/14/2007 (Brock, Jacqueline). (Entered: 08/10/2007)
NOTICE OF DEFICIENCY TO Jeffrey Shipp re 32 MOTION to Consolidate Cases by Larry Cunnigan, Courtney Perl McQueen, James Mounts, Phyllis Mounts, Evelyn Rose ; Attorney has failed to submit a proposed order as an electronic attachment to the motion; Entry by attorney; Attorney shall file document entitled a Notice of Filing with a certificate of service as the main pleading with the proposed order as an attachment to the Notice of Filing within 3 business dayscc: COR (JMB) (Entered: 08/13/2007)
33 NOTICE OF FILING by Larry Cunnigan, Courtney Perl McQueen, James Mounts, Phyllis Mounts, Evelyn Rose re 32 MOTION to Consolidate Cases by Larry Cunnigan, Courtney Perl McQueen, James Mounts, Phyllis Mounts, Evelyn Rose (Attachments: # 1 Proposed Order Granting Motion to Consolidate)(Shipp, Jeffrey) (Entered: 08/13/2007)
34 RESPONSE to Motion re 32 MOTION to Consolidate Cases by Larry Cunnigan, Courtney Perl McQueen, James Mounts, Phyllis Mounts, Evelyn Rose filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Proposed Order)(Vose, Leslie) (Entered: 08/14/2007)
35 NOTICE OF APPEARANCE by Larry Cunnigan, Courtney Perl McQueen, James Mounts, Phyllis Mounts, Evelyn Rose.(Hegge, Colleen) (Entered: 08/16/2007)
36 MOTION for Hearing by Lester Napier (Attachments: # 1 Proposed Order)(Horne, Andrew) (Entered: 08/16/2007)
37 RESPONSE to Motion re 36 MOTION for Hearing by Lester Napier filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore. (Vose, Leslie) (Entered: 08/16/2007)
***Attorney Keith A. McMain for Larry Cunnigan and Courtney Perl McQueen added. (JMB) (Entered: 08/17/2007)
38 ORDER: 1) Plf's Mt to Consolidate Case No. 6:06−368 DCR with Case No. 6:07−258−KKC 32 is DENIED; 2) Plf's Mt for an Expedited Hrg on issues related to the proposed consolidation 36 is DENIED as moot. Motions terminated: 36 MOTION for Hearing by Lester Napier filed by Lester Napier,, 32 MOTION to Consolidate Cases by Larry Cunnigan, Courtney Perl McQueen, James Mounts, Phyllis Mounts, Evelyn Rose filed by Courtney Perl McQueen,, Larry Cunnigan,, Evelyn Rose,, James Mounts,, Phyllis Mounts,. Signed by Judge Danny C. Reeves. (RBB)cc: COR (Entered: 08/17/2007)
39 MOTION for Leave to File Excess Pages by Lester Napier (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 09/27/2007)
40 RESPONSE to Motion re 39 MOTION for Leave to File Excess Pages by Lester Napier filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Vose, Leslie) (Entered: 09/27/2007)
41 MOTION to Certify Class by Lester Napier (Attachments: # 1 Memorandum in Support # 2 Exhibit 1, Lester Napier Medical Records# 3 Exhibit 2, Part 1, 2−13−02 Inspection Report# 4 Exhibit 2, Part 2, 2−13−02 Inspection Report# 5 Exhibit 3, Part 3, 2−13−02 Inspection Report# 6 Errata 2, Part 4, 2−13−02 Inspection Report# 7 Exhibit 3, Part 1, 5−14−03 Inspection Report# 8 Exhibit 3, Part 2, 5−14−03 Inspection Report# 9 Exhibit 3, Part 3, 5−14−03 Inspection Report# 10 Exhibit 3, Part 4, 5−14−03 Inspection Report# 11 Exhibit 4, Dec. 19 2003 Ltr# 12 Errata 5, Part 1, 5−20−04 Inspection Report# 13 Exhibit 5, Part 2, 5−24−04 Inspection Report# 14 Exhibit 5, Part 3, 5−24−04 Inspection Report# 15 Exhibit 5, Part 4, 5−24−04 Inspection Report# 16 Exhibit 6, Part 1, 6−21−05 Inspection Report# 17 Exhibit 6, Part 2, 6−21−05 Inspection Report# 18 Exhibit 6,

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Part 3, 6−21−05 Inspection Report# 19 Exhibit 6, Part 4, 6−21−05 Inspection Report# 20 Exhibit 7, 12−02−05 Ltr# 21 Exhibit 8, Part 1, 5−22−06 Inspection Report# 22 Exhibit 8, Part 2, 5−22−06 Inspection Report# 23 Exhibit 8, Part 3, 5−22−06 Inspection Report# 24 Exhibit 8, Part 4, 5−22−06 Inspection Report# 25 Exhibit 9, Betty McKnight Deposition# 26 Exhibit 10, Filed Under Seal# 27 Exhibit 11, Filed Under Seal# 28 Index of Restricted Exhibits 12, Part 1, Jack Sizemore Deposition# 29 Exhibit 12, Part 2, Jack Sizemore Deposition# 30 Exhibit 12, Part 3, Jack Sizemore Deposition# 31 Exhibit 13, 9−25−07 Letter# 32 Exhibit 14, 9−08−05 Letter# 33 Exhibit 15, 8−04−06 Letter# 34 Exhibit 16, News Articles# 35 Exhibit 17, Part 1, Management of MRSA# 36 Exhibit 17, Part 2, Management of MRSA# 37 Exhibit 17, Part 3, Management of MRSA# 38 Exhibit 17, Part 4, Management of MRSA# 39 Exhibit 17, Part 5, Management of MRSA# 40 Exhibit 18, Cosgrove Article# 41 Exhibit 19, Devesh Tiwary Article# 42 Exhibit 20, Part 1, Nicola Zetola Article# 43 Exhibit 20, Part 2, Nicola Zetola Article# 44 Exhibit 21, Bala Hota Article# 45 Exhibit 22, Bala Hota Article# 46 Exhibit 23, David Hartley Article# 47 Exhibit 24, County of Los Angeles Report# 48 Exhibit 25, Ky. Corrections Protocol# 49 Exhibit 26, 1−22−07 Letter# 50 Exhibit 27, Lester Napier Discharge Summary# 51 Exhibit 28, Laurel County Medical Report Form# 52 Exhibit 29, Laurel County Medical Report Form# 53 Exhibit 30, Part 1, Laurel County Medical Report Form# 54 Exhibit 30, Part 2, Laurel County Medical Report Form# 55 Exhibit 31, Laurel County Medical Report Form# 56 Exhibit 31, Part 2, Laurel County Medical Report Form# 57 Index of Restricted Exhibits 32, Laurel County Medical Report Form# 58 Exhibit 33, John Clark Report# 59 Exhibit 34, Inmates of Bucks County# 60 Proposed Order)(Belzley, Gregory) **NOTE: SUPPLEMENTAL EXHIBIT 10 FILED UNDER SEAL AT DOCKET ENTRY 66 PURSUANT TO ORDER 65 **Modified on 1/29/2008 (JMB). (Entered: 09/27/2007)
42 **SEALED** MOTION for Leave to File Under Seal Reference List and Exhibits to Memo in Support of Motion for Class Certification by Lester Napier (JMB) (Entered: 09/28/2007)
43 ORDER re 39 MOTION for Leave to File Excess Pages by Lester Napier filed by Lester Napier: Plff's motion 39 is GRANTED. In addition, Dfts may file an opposing memo of equal length w/o leave of court. Motions terminated: 39 MOTION for Leave to File Excess Pages by Lester Napier filed by Lester Napier.. Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 09/28/2007)
44 ORDER re 42 MOTION for Leave by Lester Napier filed by Lester Napier: Plff's motion 42 is GRANTED. Plff may file under seal his tendered reference list and questionnaires, affidavits/declarations and DVD attached as an exhibit to his supporting memo. Motions terminated: 42 MOTION for Leave by Lester Napier filed by Lester Napier,.. Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 10/01/2007)
Clerk's Note: re 41 MOTION to Certify Class by Lester Napier. Exhibits 10 and 11 filed UNDER SEAL pursuant to Order 44 and placed in paper file to be maintained in Clerk's Office. (JMB) (Entered: 10/01/2007)
45 **INCORRECTLY FILED−See DE 46 for correct entry** MOTION to Strike 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore Exh. #13, #33, &all exhibits filed under seal, but not LCDC inspection DVD (Attachments: # 1 Proposed Order # 2 Exhibit)(Vose, Leslie) Modified on 10/16/2007 (Brock, Jacqueline). (Entered: 10/12/2007)
46 MOTION to Strike 41 MOTION to Certify Class Exhibits #13, #33, &all exhibits filed under seal, but not LCDC inspection DVD by Lester Napier by Laurel County, Kentucky, Jack Sizemore, MOTION for Extension of Time to File Response as to 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore (Attachments: # 1 Exhibit A − 8/22/2007 Letter# 2 Proposed Order)(JMB)(FILED PURSUANT TO QC re 45 ) (Entered: 10/16/2007)
NOTICE OF DOCKET MODIFICATION TO Leslie Vose re 45 MOTION to Strike 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore ; Error: This motion requests 2 forms of relief. The attorney only filed the pleading as one motion; Entry by attorney; Correction: Clerk

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has re−filed the pleading choosing both forms of relief requested at 46 . In the future, when filing a motion with multiple reliefs, attorney should hold down the ctrl key on the keyboard and click on each relief requested in the motion so each motion appears on the motion report; No further action required by counsel cc: COR (JMB) (Entered: 10/16/2007)
47 RESPONSE to Discovery Request by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore.(Vose, Leslie) (Entered: 10/17/2007)
Update Attorney. Attorney Estill D. Banks, II for Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3 added. (MRS) (Entered: 10/18/2007)
48 RESPONSE in Opposition re 46 MOTION to Strike 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore MOTION for Extension of Time to File Response/Reply as to 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore MOTION to Strike 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore MOTION for Extension of Time to File Response/Reply as to 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore filed by Lester Napier. (Attachments: # 1 Exhibit CDC Report# 2 Exhibit NY Times article# 3 Exhibit CA−MRSA Virulence# 4 Proposed Order)(Belzley, Gregory) (Entered: 10/22/2007)
49 ORDER re 46 MOTION to Strike re 41 MOTION to Certify Class,, MOTION for Extension of Time to File Response/Reply as to 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore: Dfts' motion to strike certain exhibits attached to the Plffs' mt for class certificateion is DENIED. However, Dfts' mt for extension of time to reply to Plff's mt is GRANTED 46 . Dft shall have until Wednesday, January 16, 2008 to file a response to Plff's mt for class certification. Plffs shall then have time permitted by local rules to file any reply. Motions terminated: 46 MOTION to Strike re 41 MOTION to Certify Class,,MOTION for Extension of Time to File Response/Reply as to 41 MOTION to Certify Class by Lester Napier by Laurel County, Kentucky, Jack Sizemore Responses due by 1/16/2008. Signed by Judge Danny C. Reeves. (JMB)cc: COR (Entered: 11/16/2007)
50 *SEALED* MOTION for Leave to File Under Seal Supplemental Reference List and Supplement to Exhibit 10 to Memo in Support of Motion for Class Certification by Lester Napier (JMB) (Entered: 01/15/2008)
51 MOTION for Leave to File by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 (Attachments: # 1 Proposed Order Order granting Leave to File under Seal)(Vose, Leslie) (Entered: 01/15/2008)
52 ORDER granting 51 Motion for Leave to File exhibits under seal. Signed by Judge Danny C. Reeves on 1/16/2008. (JMB)cc: COR (Entered: 01/16/2008)
53 RESPONSE in Opposition re 41 MOTION to Certify Class by Lester Napier filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Exhibit Ex. 1 − 2007 Daily Popluation Count, # 2 Exhibit Ex. 2 − 2007 Bed Count, # 3 Exhibit Ex. 3−10 − Filed under Seal, # 4 Exhibit Ex. 11 − 2007 KY. DOC Inspection documents, # 5 Exhibit Ex. 12 − 2007 Work Release Monitoring, # 6 Exhibit Ex. 13 − 10/17/07 Correspondence, KY Jail Specialist, # 7 Exhibit Ex. 14 − Minutes, Laurel County Fiscal Court, 3/25/04, # 8 Exhibit Ex. 15 − Minutes, Laurel County Fiscal Court, 5/26/05, # 9 Exhibit Ex. 16 − Ex. 15 − Minutes, Laurel County Fiscal Court, 6/23/05, # 10 Exhibit Ex. 17 − Ex. 15 − Minutes, Laurel County Fiscal Court, 6/22/065, # 11 Exhibit Ex. 18 − Ex. 15 − Minutes, Laurel County Fiscal Court, 7/27/06 &1/23/07, # 12 Exhibit Ex. 19 − Ex. 15 − Minutes, Laurel County Fiscal Court, 3/07/075, # 13 Exhibit Ex. 20 − Ex. 15 − Minutes, Laurel County Fiscal Court, 5/18/07, # 14 Exhibit Ex. 21 − Ex. 15 − Minutes, Laurel County Fiscal Court, 8/14/07, # 15 Exhibit Ex. 22 − Jail Feasibility Study, September 2007, # 16 Exhibit Ex. A − McKnight Deposition, # 17 Exhibit Ex. 23 − Physicians Standing Orders, # 18 Exhibit Ex. 24 − Physician Credentials, # 19 Exhibit Ex. 25 − Affidavit of Kamran Mahmood, M.D., # 20 Exhibit Ex. 26 − Sample Cell Cleaning Records, # 21 Exhibit Ex. B − Sizemore Deposition, # 22 Exhibit Ex. 27

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− Signage and Handouts, LCDC, # 23 Exhibit Ex. 28 − Puritan Janitorial Inspection Records, # 24 Exhibit Ex. 29 − Medical News Today, "No Reliable Risk Factor Found for CA−MRSA", 2/09/07, # 25 Exhibit Ex. 30 − Sentinel News Echo articel re: MRSA in Laurel County &Williamsburg News Journal article, 9/2006, # 26 Exhibit Ex. 31 − CDC, "Community−Acquired MRSA Information for the Public", 2/03/05, # 27 Exhibit Ex. 32 − ABC News, "That's No Spider Bite: Antibiotic Resistant Staph Infections Now Very Common", 8/16/06, # 28 Errata Ex. C − Napier Deposition)(Vose, Leslie) (Additional attachment(s) added on 1/17/2008: # 29 **CORRECT* Ex. 11−2007 KY DOC Inspection Documents, part 1, # 30 *CORRECT* Ex. 11−2007 KY DOC Inspection Documents, part 2, # 31 *CORRECT* Ex. 22−Jail Feasibility Study, Sept. 2007, part 1, # 32 *CORRECT* Ex. 22−Jail Feasibility Study, Sept. 2007, part 2, # 33 Proposed Order) (JMB). (Entered: 01/16/2008)
54 NOTICE OF FILING by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 re 53 Response in Opposition to Motion,,,,,,,, Tendered Order Overruling Motion for Class Certification (Vose, Leslie) (Entered: 01/16/2008)
55 NOTICE OF FILING by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 re 53 Response in Opposition to Motion,,,,,,,, of Sealed Exhibits 3−10 (Vose, Leslie) (Entered: 01/17/2008)
56 MOTION for Extension of Time to File Response/Reply by Lester Napier (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 01/17/2008)
57 MOTION for Hearing by Lester Napier (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 01/17/2008)
NOTICE OF DOCKET MODIFICATION TO Leslie Vose re 53 Response in Opposition to Motion; Error: Exhibits 11 and 22 exceed the 2MB size limit; Entry by attorney; Correction: Clerk has separated each of the PDF images into 2 segments, each less than 2MB. Counsel is reminded that large documents may not upload properly into ECF or download within a reasonable amount of time; therefore, documents over 2MB must be broken down into 2MB or less segments. Attorney is further advised to review p. 5 of the ECF User Manual for proper scanner settings. No further action required by counsel; cc: COR (JMB) (Entered: 01/17/2008)
58 ORDER re 57 MOTION for Hearing by Lester Napier filed by Lester Napier, 56 MOTION for Extension of Time to File Response/Reply by Lester Napier filed by Lester Napier: Plff's mt for ext of time to file reply to Dft's response to Plff's mt for class certificateion 56 is DENIED. However, Plff's mt for a hearing on the mt for class certification 57 is GRANTED. A hrg shall be held on Monday, February 4, 2008 at 1:30 PM, in London, Ky. Motions terminated: 56 MOTION for Extension of Time to File Response/Reply by Lester Napier filed by Lester Napier, 57 MOTION for Hearing by Lester Napier filed by Lester Napier.Hearing on Motion for Class Certification set for 2/4/2008 01:30 PM in London before Judge Danny C. Reeves. Signed by Judge Danny C. Reeves on 1/17/2008.(JMB)cc: COR (Entered: 01/17/2008)
59 SEALED EXHIBITS 3 THRU 10 re Defendants' 53 Response in Opposition to Motion, 55 Notice of Filing by Laurel County, Kentucky, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3 (JMB) (Entered: 01/18/2008)
60 MOTION to Withdraw by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 Dinah T. Bevington and Chacey R. Ford as Counsel of Record (Attachments: # 1 Proposed Order)(Vose, Leslie) (Entered: 01/25/2008)
61 ORDER granting 60 Motion to Withdraw by Laurel County, Kentucky, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3 Dinah T. Bevington and Chacey R. Ford as Counsel of Record. Clk of Ct and opposing counsel may remove these attys' names from the service list w/ respect to future filings.. Signed by Judge Danny C. Reeves on 1/25/2008. (JMB)cc: COR (Entered: 01/25/2008)

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Attorney Update. Attorney Dinah Townsend Bevington and Chacey R. Ford terminated. (JMB) (Entered: 01/25/2008)
62 RESPONSE to Discovery Request by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Affidavit)(Vose, Leslie) (Entered: 01/25/2008)
63 MOTION for Leave to File Excess Pages by Lester Napier (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 01/28/2008)
64 **STRICKEN PURSUANT TO Order 65 ** Modified on 1/29/2008 (JMB). (Entered: 01/28/2008)
65 ORDER re 63 MOTION for Leave to File Excess Pages by Lester Napier filed by Lester Napier, 50 MOTION for Leave by Lester Napier filed by Lester Napier: 1) Plff's mt for leave to file brief in excess of 15 pgs 63 is DENIED. Clk of Ct is DIRECTED to STRIKE the Plff's reply brief 64 from the record; and 2) Plff's mt for leave to file certain supplemental docs under seal 50 is GRANTED. Clk of Ct is DIRECTED to file previously−tendered exhibits under seal. Motions terminated: 63 MOTION for Leave to File Excess Pages by Lester Napier filed by Lester Napier, 50 MOTION for Leave by Lester Napier filed by Lester Napier.. Signed by Judge Danny C. Reeves on 1/29/2008.(JMB)cc: COR (Entered: 01/29/2008)
66 SEALED DOCUMENT (Supplemental Exhibit 10) by Lester Napier re 41 MOTION to Certify Class by Lester Napier (JMB) (Entered: 01/29/2008)
67 SEALED DOCUMENT (Exhibits A−B Filed Under Seal) by Lester Napier re 64 Reply to Response to Motion re 41 Motion for Class Certification **NOTE: Plff's Reply in Support of Motion for Class Certification was stricken from the record by Order 65 entered on 1/29/2008** (JMB) (Entered: 01/31/2008)
68 MINUTE ENTRY ORDER FOR DOCKET CALL held on 2/4/2008 before Judge Danny C. Reeves: 1) Plff's mt for class certification 41 is taken under advisement; and 2) The DVD's containing inmate medical records tendered by dfts for the Ct's review shall be filed in the record UNDER SEAL. (Court Reporter CINDY OAKES.) (JMB)cc: COR (Entered: 02/05/2008)
Motions Taken Under Advisement: 41 MOTION to Certify Class by Lester Napier (JMB) (Entered: 02/05/2008)
69 SEALED DOCUMENT (DVD's w/ inmate medical records) by Laurel County, Kentucky, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3 re 41 MOTION to Certify Class by Lester Napier (FILED UNDER SEAL PURSUANT TO 68 Minute Entry Order for Docket Call held on 2/4/2008) (JMB) (Entered: 02/05/2008)
70 MOTION for Leave to File by Lester Napier (Attachments: # 1 Proposed Order granting leave to file supp. exhibits, # 2STRICKEN Pursuant to Order 79 )(Shipp, Jeffrey) Modified on 2/22/2008 (JMB). SEE DOCKET ENTRY 74 FOR SEALED EXHIBIT Modified on 2/26/2008 (JMB). (Entered: 02/13/2008)
71 FOURTH MOTION for Leave by Lester Napier to file under seal supplemental reference and exhibits (Attachments: # 1 Proposed Order, # 2 STRICKEN Pursuant to Order 79 )(Shipp, Jeffrey) Modified on 2/22/2008 (JMB).SEE DOCKET ENTRY 75 FOR SEALED EXHIBIT Modified on 2/26/2008 (JMB). (Entered: 02/19/2008)
NOTICE OF DOCKET MODIFICATION TO Jeffrey Shipp re 71 FOURTH MOTION for Leave by Lester Napier to file under seal supplemental reference and exhibits ; Error: Attachment was insufficiently described as "Exhibit"; Entry by attorney; Correction: the Clerk has renamed the attachment. It is necessary that all attachments are adequately described. ex: Exhibit A (incorrect); Exhibit A−Affidavit of John Doe (correct); No further action required by counsel cc: COR (JMB) (Entered: 02/20/2008)
72 FIFTH MOTION for Leave by Lester Napier to file under seal supplemental reference list and exhibits (Attachments: # 1 Proposed Order, # 2 STRICKEN Pursuant to Order 79 )(Shipp, Jeffrey) Modified on 2/22/2008 (JMB). SEE

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DOCKET ENTRY 77 FOR SEALED EXHIBIT Modified on 2/26/2008 (JMB). (Entered: 02/20/2008)
73 SIXTH MOTION for Leave by Lester Napier for leave to file supplemental reference list and exhibits (Attachments: # 1 Proposed Order, # 2 STRICKEN Pursuant to Order 79 )(Shipp, Jeffrey) Modified on 2/26/2008 (JMB). SEE DOCKET ENTRY 78 FOR SEALED EXHIBIT Modified on 2/26/2008 (JMB). (Entered: 02/21/2008)
74 SEALED DOCUMENT (Supplemental Exhibit Under Seal of Inmate Reference List) by Lester Napier re 70 MOTION for Leave to File by Lester Napier (JMB) (Entered: 02/22/2008)
75 SEALED DOCUMENT (Supplemental Exhibit Under Seal of Inmate Reference List) by Lester Napier re 71 FOURTH MOTION for Leave by Lester Napier to file under seal supplemental reference and exhibits (JMB) (Entered: 02/22/2008)
76 RESPONSE in Opposition re 73 SIXTH MOTION for Leave by Lester Napier for leave to file supplemental reference list and exhibits, 70 MOTION for Leave to File by Lester Napier, 71 FOURTH MOTION for Leave by Lester Napier to file under seal supplemental reference and exhibits, 72 FIFTH MOTION for Leave by Lester Napier to file under seal supplemental reference list and exhibits filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Proposed Order)(Vose, Leslie) (Entered: 02/22/2008)
77 SEALED DOCUMENT (Supplemental Exhibit Under Seal of Inmate Reference List) by Lester Napier re 72 FIFTH MOTION for Leave by Lester Napier to file under seal supplemental reference list and exhibits (JMB) (Entered: 02/22/2008)
78 SEALED DOCUMENT (Supplemental Exhibit Under Seal of Inmate Reference List) by Lester Napier re 73 SIXTH MOTION for Leave by Lester Napier for leave to file supplemental reference list and exhibits (JMB) (Entered: 02/26/2008)
79 MEMORANDUM OPINION &ORDER: 1) Plff's Motion to Certify Class 41 is DENIED; 2) Plff's Motions for Leave to File Supplemental Reference Lists and Declarations 70 , 71 , 72 and 73 are DENIED. Clerk is DIRECTED to STRIKE the attached exhibits entitled "Inmate Reference Lists" from the record. Plff's counsel is also DIRECTED to ensure that all future motions and exhibits comply w/ the Court's Amended Scheduling Order re privacy. See record no. 25 Motions terminated: 73 SIXTH MOTION for Leave by Lester Napier for leave to file supplemental reference list and exhibits filed by Lester Napier, 71 FOURTH MOTION for Leave by Lester Napier to file under seal supplemental reference and exhibits filed by Lester Napier, 70 MOTION for Leave to File by Lester Napier filed by Lester Napier, 41 MOTION to Certify Class by Lester Napier filed by Lester Napier, 72 FIFTH MOTION for Leave by Lester Napier to file under seal supplemental reference list and exhibits filed by Lester Napier.. Signed by Judge Danny C. Reeves on 2/26/2008.(JMB)cc: COR (Entered: 02/26/2008)
80 TRANSCRIPT of Official Proceedings: SCHEDULING CONFERENCE held on 11/22/2006 before Judge Danny C. Reeves. Court Reporter: CINDY OAKES. (JMB) (Entered: 02/28/2008)
81 TRANSCRIPT of Official Proceedings: HEARING ON MOTION FOR CLASS CERTIFICATION held on 2/4/2008 before Judge Danny C. Reeves. Court Reporter: CINDY OAKES. (JMB) (Entered: 02/28/2008)
82 ORDER REASSIGNING CASE. Case reassigned to Judge Amul R. Thapar for all further proceedings. Judge Danny C. Reeves no longer assigned to case. Signed by Judge Danny C. Reeves on 3/3/2008.(JMB)cc: COR (Entered: 03/03/2008)
83 MOTION to Stay by Lester Napier (Attachments: # 1 Proposed Order proposed order)(Hegge, Colleen) (Entered: 03/03/2008)
84 ORDER: (1) A telephonic conference among counsel and the undersigned is scheduled for Wednesday, March 12, 2008, at the hour of 4:00 p.m.(2) The undersigneds chambers shall initiate the conference call, and lead counsel for each party shall be prepared to discuss the pending motion.(3) A court reporter is needed

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to transcribe the proceedings., ( Telephone Conference set for 3/12/2008 04:00 PM in Pikeville before Judge Amul R. Thapar.) Signed by Judge Amul R. Thapar on 3/12/08.(MRS)cc: COR, Court Diary (Entered: 03/12/2008)
85 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 3/12/2008: 1) By agreement of parties, plff's motion for stay is TEMPORARLY GRANTED pending the Court's ruling. 2) Plff. shall file a memorandum in support of its motion to stay 83 attaching its petition for permission to appeal by 3/19/08. Defts shall file a response by 4/1/08 and plff.s may file a reply by 4/5/08. 3) Oral Argument Hearing set for 4/14/2008 02:00 PM in Covington before Judge Amul R. Thapar. ( Responses due by 4/1/2008, Replies due by 4/5/2008.). before Judge Amul R. Thapar: (Court Reporter Kelly Smith.) (SWA)cc: COR (Entered: 03/13/2008)
86 PRETRIAL MEMORANDUM by Lester Napier in Support of Previously Filed Motion for Stay. (Attachments: # 1 Exhibit Rule 23(f) Petition, # 2 Exhibit Memorandum Opinion and Order Denying Class Certification)(Belzley, Gregory) (Entered: 03/19/2008)
87 RESPONSE in Opposition re 83 MOTION to Stay by Lester Napier filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Proposed Order)(Vose, Leslie) (Additional attachment(s) added on 4/11/2008: # 2 Response to Petitioner's Petition for Permission to Appeal) (RBB). (Entered: 04/01/2008)
88 REPLY to Response to Motion re 83 MOTION to Stay by Lester Napier filed by Lester Napier. (Horne, Andrew) (Entered: 04/04/2008)
***MOTION SUBMITTED TO CHAMBERS of Amul R. Thapar for review: 83 MOTION to Stay by Lester Napier (RBB) (Entered: 04/07/2008)
89 NOTICE OF FILING by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 re 87 Response in Opposition to Motion, (Attachments: # 1 Exhibit 1 − Response to Petitioner's Petition for Permission to Appeal)(Vose, Leslie) (Entered: 04/10/2008)
90 MINUTE ENTRY ORDER FOR ORAL ARGUMENT HEARING held on 4/14/2008 before Judge Amul R. Thapar: 1) Plff's Mt to Stay 83 is TEMPORARILY GRANTED until the 6CCA rules on Plff's Rule 23(f) Petition for Permission to Appeal; 2) Matter set for status conference on Monday, July 14, 2008 at 2:00 PM in Lexington, Ky; and 3) If Ct of Appeals rules on Plff's petition prior to July 14, 2008, the parties are DIRECTED to notify the undersigned's chambers. (Status Conference set for 7/14/2008 02:00 PM in LEXINGTON before Judge Amul R. Thapar) Motions terminated: 83 MOTION to Stay by Lester Napier filed by Lester Napier ; Case stayed.. (Court Reporter JOAN AVERDICK.) (JMB)cc: COR, Clk of 6CCA, Lexington Ct Diary (Entered: 04/15/2008)
91 MINUTE ENTRY ORDER FOR STATUS CONFERENCE held on 7/15/08 before Judge Amul R. Thapar: (1) Upon agreement of the parties, Napier v. Laurel County, Kentucky, et al. (Civil Action No. 06−368−ART) and McQueen, et al. v. Laurel County, Kentucky, et al. (Civil Action No. 07−258−ART) shall remain stayed, pending a decision by the Sixth Circuit Court of Appeals; (2) The parties shall notify the Court upon receipt of a decision from the Sixth Circuit Court of Appeals; (3) The parties shall notify the Court should a telephone conference be necessary. (Court Reporter PEGGY WEBER.) (MRS)cc: COR (Entered: 07/15/2008)
92 APPEAL ORDER In Re: LESTER NAPIER (6CCA 08−0502) re 79 Memorandum Opinion &Order; plaintiff's Rule 23(f) petition is DENIED. Signed by 6CCA Clerk, Leonard Green on 7/28/2008. (Attachments: # 1 Cover Letter)(RBB)cc: COR (Entered: 07/29/2008)
93 ORDER: in light of the Sixth Circuit Court of Appeals' July 28, 2008, order denying the Plaintiff's Fed. R. Civ. P. 23(f) petition. 92 ; ORDERED as follows: (1) A telephonic conference among counsel and the undersigned is scheduled for Tuesday, August 26, 2008, at the hour of 9:30 a.m.; (2) The undersigned's

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chambers shall initiate the conference call, and lead counsel foreach party shall be prepared to discuss the status of this matter; (3) A court reporter is needed to transcribe the proceedings and shall be provided by theCourt. (Telephone Conference set for 8/26/2008 09:30 AM in London before Judge Amul R. Thapar.). Signed by Judge Amul R. Thapar on 8/1/2008.(RBB)cc: COR (Entered: 08/01/2008)
94 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 8/26/2008. before Judge Amul R. Thapar: court proposed dates and deadlines with counsel; separate scheduling order shall be entered contemporaneously herewith. (Court Reporter RHONDA SANSOM.) (RBB)cc: COR (Entered: 08/26/2008)
95 SCHEDULING ORDER: Signed by Judge Amul R. Thapar: 1) following ddls shall be observed: 1) suppl disclosures w/in 30 days of discovery of new info, but no later than 6/29/2009; b) Rule 26 identification of experts and disclosure of reports are due: i. plf by 12/1/2008, w suppl by 2/20/2009; ii. dft by 1/16/2009, w/ suppl due by 2/20/2009; c) all fact and expert discovery shall be completed by March 2, 2009; 2. parties shall observe directives regarding the filing of discovery material in tis case; 3) Discovery disputes shall be resolved as set forth; Mts: DISPOSITIVE MTS DDL: 4/3/2009; DAUBERT MTS DDL 4/3/2009; PRETRIAL: 1) PTC scheduled for 7/13/2009 @ 1:30 p.m; in LONDON; parties trying case as well as parties themselves to be present; 2) 14 days prior to PTC pretrial filings due; 3) 7 days prior to ptc counsel shall a) submit agreed statement of case; b) submit proposed voir dire questions; c) file written obj to list of witnesses and exhibits; d) file mts in limine; 3) file any mts for ruling upon any objections made in any evidentiary depo; 4) NLT 2 days before FPTC, parties shall file response to mts; 5) @ PTC counsel shall a) display all exhibits intened to be used @ trial; b) advise Court that they have displayed to opposing counsel all exhibits; c) Discuss and make possible stipulations of admissibility or threshold foundation requirements for admissibility of exhibits; d) demonstrate an ability to use the court's visual presentation system for any exh; c) discuss settlement; 6) Court Copies; counsel shall send copy to chambers of witness list, exhibit list, proposed jury instr; proposed voir dire questions; and statements of the case;TRIAAL: JURY TRIAL scheduled for 8/24/2009 @ 9:30 a.m. in LONDON, KY − parties directed to arrive 30 minutes early; anticipated length of trial is 4−5 days; Ext of Time: request to modify dates and ddls shall be submitted upon mt; Referral to Magistrate Judge: matter referred to Magistrate Judge for all non−dispositive pretrial matters other than: 1. Mts to Cont the Dispositive Mt Ddls; 2) Mt to Cont the Trial dates; 3) Mts in limine. Discovery due by 3/2/2009. Dispositive Motions due by 4/3/2009. Final Pretrial Conference set for 7/13/2009 01:30 PM in London before Judge Amul R. Thapar. Jury Trial set for 8/24/2009 09:30 AM in London before Judge Amul R. Thapar.(RBB)cc: COR Modified on 3/2/2009 to correct date on Dispositive Mt DDl from 4/3/2008 to 4/3/2009. (RBB). (Entered: 08/26/2008)
96 ORDER:A telephonic conference, for counsel only, is scheduled for November 4, 2008 commencing at 10:30 a.m. to assess the feasibility of the schedule, progress of discovery, and to evaluate the suitability of conducting a settlement conference. The Court will initiate the conference call. If any party will not be at the telephone number shown on the docket of this action, the party should notify the undersigned of any other telephone number for the Court to use in initiating the call. (Telephone Conference set for 11/4/2008 10:30 AM in London before Robert E. Wier.). Signed by Robert E. Wier on 08/27/2008.(RBB)cc: COR (Entered: 08/27/2008)
97 ORDER : all parties participating in the telephonic conference call set for NOVEMBER 4, 2008 @ 10:30 A.M. are directed to call InterCall Teleconferencing at 1−866−2843, and refer to reservation no. 71483315. Signed by Robert E. Wier on 10/29/2008.(RBB)cc: COR (Entered: 10/29/2008)
98 ORDER FOR TELEPHONE CONFERENCE held on 11/4/2008. before Robert E. Wier: Cnsl stated they do not anticipate any problems in completing discovery. Upon joint motion or request of cnsl, the Court will promptly schedule a settlement conference. (MRS)cc: COR (Entered: 11/04/2008)
99 DISCLOSURES of New Expert Witness by Lester Napier. (Attachments: # 1 Exhibit Expert's report, # 2 Exhibit Expert's CV)(Belzley, Gregory) (Entered:

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11/12/2008)
100 DISCLOSURES of Expert Witness by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Exhibit A − Donald Leach Curriculum Vitae, # 2 Exhibit B − Expert Report, # 3 Exhibit C − Case History)(Hooks, Bradley) (Entered: 01/16/2009)
101 DISCLOSURES of Supplemental Expert Report by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Exhibit Don Leach Supplemental Report)(Vose, Leslie) (Entered: 02/20/2009)
102 INTERROGATORIES Propounded to Plaintiff, Lester Napier by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3.(Vose, Leslie) (Entered: 02/20/2009)
103 NOTICE to Take Deposition of Lester Napier on 02/26/09 at 2:00 p.m. by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3.(Vose, Leslie) (Entered: 02/23/2009)
104 **STRICKEN PURSUANT TO Order 105 ** Modified on 2/26/2009 (JMB). (Entered: 02/25/2009)
105 ORDER re 104 MOTION to Quash by Lester Napier filed by Lester Napier: The mt to quash is STRICKEN from the record for failure to comply w/ the District Court's mandatory mechanisms for resolution of discovery disputes. Ct takes this action w/o prejudice and does note, however, that Rule 30(a)(2)(A)(ii) requires leave of Court for any redposition. Motions terminated: 104 MOTION to Quash by Lester Napier filed by Lester Napier.. Signed by Robert E. Wier on 2/26/2009.(JMB)cc: COR (Entered: 02/26/2009)
106 JOINT MOTION for Extension of Time by Lester Napier, MOTION for Extension of Time to Complete Discovery by Lester Napier Motions referred to Robert E. Wier. (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 02/27/2009)
107 ORDER: On joint motion of the parties 106 and after considering same, it isORDERED that the motion is GRANTED. It is ORDERED that 1(c) of the SchedulingOrder 95 is amended to April 30, 2009. All other deadlines of said Scheduling Order remain unaltered. Motions terminated: 106 JOINT MOTION for Extension of Time by Lester Napier; MOTION for Extension of Time to Complete Discovery by Lester Napier filed by Lester Napier. SCHEDULING ORDER AMENDED RE:(Discovery due by 4/30/2009.) Signed by Robert E. Wier on 2/27/2009.(RBB)cc: COR (Entered: 02/27/2009)
NOTICE OF DOCKET MODIFICATION TO ALL COUNSEL OF RECORD re 95 Scheduling Order; Error: incorrect dispositive motion deadline entered; Entry by docket clerk; Correction: dispositive motion deadline has been changed from 4/3/2008 to 4/3/2009; No steps need to be taken by counsel cc: COR (RBB) (Entered: 03/02/2009)
108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore (Attachments: # 1 Memorandum in Support, # 2 Exhibit Exhibits to Memorandum in Support of Motion for Summary Judgment, # 3 Proposed Order Proposed Order)(Vose, Leslie) Modified on 4/8/2009 (JMB). SEALED EXHIBITS B−1 THROUGH B−14 received by the Clerk and filed at docket entry 114 (Entered: 04/03/2009)
109 MOTION to Seal Document by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore Motions referred to Robert E. Wier. (Attachments: # 1 Proposed Order)(Vose, Leslie) (Entered: 04/06/2009)
110 MOTION to Strike by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore Motions referred to Robert E. Wier. (Vose, Leslie) (Entered: 04/06/2009)
111 VIRTUAL ORDER: The Clerk shall strike Exhibits A through D, attached to the Defendant's Memorandum in Support of Summary Judgment, R. 108, from the record. granting 110 Motion to Strike by Laurel County, Kentucky, Jack Sizemore,

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Jack Sizemore. Signed by Judge Amul R. Thapar on 4/6/09.(Attachments to Memo in Support Exhibits A−D have been restricted pursuant to Order) (MRS)cc: COR (Entered: 04/07/2009)
112 VIRTUAL ORDER: Defendants have moved to file certain attachments to their Motion for Summary Judgment, R. 108, under seal. For the reasons provided in their motion to seal, those attachments, B−1 through B−14, shall be filed under seal. Signed by Judge Amul R. Thapar on 4/6/09. (MRS)cc: COR (Entered: 04/07/2009)
113 MEMORANDUM in Support of 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore (Attachments: # 1 Exhibit A − Pages from Lester Napier Depo., # 2 Exhibit B − Documents Filed UNDER SEAL, # 3 Exhibit C − Inmate Grievance Procedure, # 4 Exhibit D − Affidavit of Todd Prince)(Vose, Leslie) Modified on 4/8/2009 (Brock, Jacqueline). SEALED EXHIBITS B−1 THROUGH B−14 received by the Clerk and filed at docket entry 114 (Entered: 04/07/2009)
114 SEALED EXHIBITS B−1 through B−14 to 108 Motion for Summary Judgment and 113 Memorandum in Support of Motion for Summary Judgment by Laurel County, Kentucky, Jack Sizemore.(JMB) (Entered: 04/08/2009)
115 Proposed Agreed Order/Stipulation by Lester Napier. (Belzley, Gregory) (Entered: 04/09/2009)
***FILE SUBMITTED TO CHAMBERS of Amul R. Thapar for review: 115 Proposed Agreed Order/Stipulation (JMB) (Entered: 04/10/2009)
116 ORDER: Pla shall have through &including May 15, 2009, to file his response to Dfts' motion for summary judgment. (Responses due by 5/15/2009). Signed by Judge Amul R. Thapar on 4/10/2009.(EHM)cc: COR (Entered: 04/10/2009)
Clerk's Note: Clerk deleted previous deadline &reset appropriate deadline. (EHM) (Entered: 04/29/2009)
117 MOTION for Leave by Lester Napier to File Exhibits Under Seal Motions referred to Robert E. Wier. (Attachments: # 1 Proposed Order)(Belzley, Gregory) (Entered: 05/15/2009)
118 RESPONSE in Opposition re 113 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore filed by Lester Napier. (Attachments: # 1 Exhibit A, Lester Napier Depo Excerpts, # 2 Exhibit B, Laurel County Inmate Daily Population Analysis, # 3 Exhibit C, Jack Sizemore Depo Excerpts, # 4 Exhibit D, Part 1, Laurel County Feb. 13, 2002 Jail Inspection Report, # 5 Exhibit D, Part 2, Feb. 13, 2002 Laurel County Jail Inspection Report, # 6 Exhibit E, Part 1, May 14, 2003 Laurel County Jail Inspection Report, # 7 Exhibit E, Part 2, May 14, 2003 Laurel County Jail Inspection Report, # 8 Exhibit F, DOC Dec. 19, 2003 Ltr to Judge Executive, # 9 Exhibit G, Part 1, May 20, 2004 Laurel County Jail Inspection Report, # 10 Exhibit G, Part 2, May 24, 2004 Laurel County Jail Inspection Report, # 11 Exhibit H, DVD of Jail Inspection Filed Under Seal, # 12 Exhibit I, Expert Gordon Kamka Report, # 13 Exhibit J, Expert Eugene Miller Report, # 14 Exhibit K, Centers for Disease Control MRSA Information, # 15 Exhibit L, Part 1, Management of MRSA by Federal Bureau of Prisons, # 16 Exhibit L, Part 2, Management of MRSA by Federal Bureau of Prisons, # 17 Exhibit M, KDOC MRSA Protocol, # 18 Exhibit N, Laurel County Isolation Policy, # 19 Exhibit O, Dr. John Clark Expert Report, # 20 Exhibit P, List of Inmates With Symptoms of MRSA Filed Under Seal, # 21 Exhibit Q, Declarations of Inmates Filed Under Seal, # 22 Exhibit R, Sabrina Patterson Depo Excerpts, # 23 Exhibit S, Angela Buttrey Depo Excerpts, # 24 Exhibit T, Deborah George Depo Excerpts, # 25 Exhibit U, Todd Prince Depo Excerpts, # 26 Exhibit V, Dennis Burkhardt Depo Excerpts, # 27 Exhibit W, Harvey Kuhl Depo Excerpts, # 28 Proposed Order)(Belzley, Gregory) (Entered: 05/15/2009)
119 VIRTUAL ORDER: Plaintiff hereby moves the Court for leave to file the under seal Exhibits H, P and Q to Plaintiff's Response to Defendants Motion for Summary Judgment in order to comply with the Courts prior confidentiality orders on this issue. The motion 117 is hereby Granted. Exhibits H, P, and Q shall be filed

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under seal. Signed by Judge Amul R. Thapar on 5/15/09. (MRS)cc: COR (Entered: 05/15/2009)
120 SEALED EXHIBITS H, P AND Q re 118 plf's response in opposition to Motion 113 for summary judgment by Lester Napier. (Filed under seal pursuant to Virtual Order 119 ). (RBB) (Entered: 05/18/2009)
121 MOTION for Extension of Time to File Response/Reply by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore Motions referred to Robert E. Wier. (Attachments: # 1 Proposed Order for Extension of Time to File a Reply)(Vose, Leslie) (Entered: 05/22/2009)
122 ORDER re 121 MOTION for Extension of Time to File Response/Reply by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore filed by Laurel County, Kentucky, Jack Sizemore: This motion is GRANTED. The defendants shall have through and including June 9, 2009 in which to file a reply to the plaintiffs response to the defendants motion for summary judgment. ( Replies due by 6/9/2009.), Motions terminated: 121 MOTION for Extension of Time to File Response/Reply by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore filed by Laurel County, Kentucky, Jack Sizemore.. Signed by Judge Amul R. Thapar on 5/26/2009.(JMB)cc: COR (Entered: 05/26/2009)
123 INCORRECTLY FILED REPLY to Response to Motion re 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Vose, Leslie) Modified on 6/10/2009 (JMB). SEE DOCKET ENTRY 124 for the CORRECT ENTRY (Entered: 06/09/2009)
124 REPLY to Response to Motion re 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Attachments: # 1 Exhibit Affidavit of Kendra Gaines)(Vose, Leslie) (Entered: 06/09/2009)
***MOTION SUBMITTED TO CHAMBERS of Amul R. Thapar for review: re 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore (JMB) (Entered: 06/10/2009)
125 MOTION for Hearing re 124 Reply to Response to Motion, 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, 118 Response in Opposition to Motion,,,,,,, Motion Submitted by Lester Napier Motions referred to Robert E. Wier. (Attachments: # 1 Proposed Order)(Horne, Andrew) (Entered: 06/10/2009)
126 ORDER: Before the Court is the plas' "Motion for Hearing and/or Oral Argument on Dft's Motions for Summary Judgment," 125 . It is hereby ORDERED that this motion is GRANTED. By agreement of the parties, the Court will hear oral argument on the pending motion for summary judgment on Thursday, July 9, 2009 at the hour of 1:00 p.m. at U.S. Courthouse in Lexington, Kentucky. The Court further ORDERS that the pretrial conference previously scheduled for July 13, 2009 is RESCHEDULED FOR MONDAY, AUGUST 10, 2009 at the hour of 11:30 A.M. at the U.S. Courthouse in London, Kentucky. Accordingly, the deadlines for the pretrial filings, which are established in the Scheduling Order, 95 at 3−8, shall now be calculated from the date of the rescheduled pretrial conference. (Oral Argument Hearing set for 7/9/2009 01:00 PM in LEXINGTON before Judge Amul R. Thapar; Pretrial Conference set for 8/10/2009 11:30 AM in LONDON before Judge Amul R. Thapar). Signed by Judge Amul R. Thapar on 6/15/2009.(EHM)cc: COR. Modified text to correct date of PTC on 7/14/2009 (EHM). (Entered: 06/15/2009)
Set/Reset Hearings: Pretrial Conference set for 8/10/2009 11:30 AM in LONDON before Judge Amul R. Thapar. (EHM) (Entered: 07/14/2009)
NOTICE OF DOCKET MODIFICATION TO ALL COUNSEL OF RECORD re 126 Order; Error: wrong pretrial date entered; Entry by docket clerk; Correction: date of pretrial changed from 8/19/09 to 8/10/09; no steps need be taken by

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counsel. cc: COR (EHM) (Entered: 07/14/2009)
127 ORDER: 1: Telephone Conference set for 7/2/2009 11:00 AM before Judge Amul R. Thapar; 2) Undersigned's chambers shall initiate the call and lead counsel for each party shall be prepared to discuss the pending motion 108 and the issues that will be discussed at the hrg; and 3) Court reporter is needed.. Signed by Judge Amul R. Thapar on 7/1/2009.(JMB)cc: COR (Entered: 07/01/2009)
128 MINUTE ENTRY ORDER FOR TELEPHONE CONFERENCE held on 7/2/2009, before Judge Amul R. Thapar: 1) The parties may file supplemental briefing regarding the Prison Litigation Reform Act exhaustion issue. Any briefing must be submitted no later than Tuesday, July 7, 2009 at 9:00 a.m.; 2) This matter remains set for a hearing on Thursday July 9, 2009 at 1:00 p.m. at the United States Courthouse in Lexington, Kentucky to discuss the pending motion for summary judgment, R. 108 . The parties should be prepared to address the topics stated on the record. (Court Reporter JOAN AVERDICK.) Signed by AMUL R. THAPAR. (JMB)cc: COR (Entered: 07/06/2009)
129 MEMORANDUM in Support of Motion re 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore Supplemental Briefing Regarding PLRA Exhaustion Issue filed by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3. (Vose, Leslie) (Entered: 07/07/2009)
130 RESPONSE in Opposition re 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, 125 MOTION for Hearing re 124 Reply to Response to Motion, 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, 118 Response in Opposition to Motion,,,,,,, Motion Submitted by Lester Napier MOTION for Hearing re 124 Reply to Response to Motion, 108 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, 118 Response in Opposition to Motion,,,,,,, Motion Submitted by Lester Napier, 113 MOTION for Summary Judgment by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore PLRA SUPPLEMENTAL BRIEF filed by Lester Napier. (Attachments: # 1 Exhibit EXHIBIT A, # 2 Exhibit EXHIBIT B)(Horne, Andrew) (Additional attachment(s) added on 7/8/2009: # 3 Exhibit C − Report to the House of Delegates, # 4 Exhibit D − Human Rights Watch Article) (RBB). (Entered: 07/07/2009)
131 NOTICE OF FILING by Lester Napier re 130 Response in Opposition to Motion,,, OMITTED EXHIBITS (Attachments: # 1 Exhibit EXHIBIT C, # 2 Exhibit EXHIBIT D)(Horne, Andrew) (Entered: 07/07/2009)
NOTICE OF DOCKET MODIFICATION TO Andrew Horne re 130 Response in Opposition to Motion, 131 Notice of Filing; Error: attachments were insufficiently described; Entry by attorney; Correction: the Clerk renamed the attachments. Attachments must be adequately described. Example: Exhibit A (incorrect); Exhibit A Affidavit of John Doe (correct.) No further action required by counsel. cc: COR (RBB) (Entered: 07/08/2009)
132 MINUTE ENTRY ORDER FOR ORAL ARGUMENT held on 7/09/2009 before Judge Amul R. Thapar: 1) Dft's mt for s/j 108 is GRANTED IN PART and DENIED IN PART; 2) Mt will be GRANTED w/respect to: 1) the state law claims against the defendants in their official capacities, and 2) the claims of intentional infliction of emotional distress. The motion will be DENIED with respect to the claims made under 42 U.S.C. § 1983 and the state law negligence and gross negligence claims. 3) Further, the issue of whether the plaintiffs federal law claims are barred by the PLRA is TAKEN UNDER ADVISEMENT. (Court Reporter Ann Banta.) Signed by Amul R. Thapar. (RBB) cc: COR (Entered: 07/10/2009)
133 MOTION for Leave to File by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 Supplemental Exhibits to Motion for Summary Judgment Motions referred to Robert E. Wier. (Attachments: # 1 Exhibit 1 − Envelope, # 2 Exhibit 2 − Handwritten Inmate Grievance Form, # 3 Exhibit 3 − George Clark Statement, # 4 Exhibit 4 − George Clark Affidavit, # 5 Proposed Order)(Vose, Leslie) (Entered: 07/16/2009)

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134 RESPONSE in Opposition re 133 MOTION for Leave to File by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 Supplemental Exhibits to Motion for Summary Judgment filed by Lester Napier. (Attachments: # 1 Proposed Order, # 2 Exhibit INMATE HANDBOOK PAGES, # 3 Exhibit SIZEMORE DEPOSITION, # 4 Exhibit RANCHER V FRANKLIN COUNTY, # 5 Exhibit CARTER V KLAUS, # 6 Exhibit RILEY V HAWAII, # 7 Exhibit WILSON V BUDGEON, # 8 Exhibit JACKSON V CCA)(Horne, Andrew) (Entered: 07/21/2009)
135 ORDER: Because the Court continues to consider the PLRA exhaustion issue, it is hereby ORDERED that the parties need not file their pre−trial disclosures or any other pre−trial filings until Monday, August 3, 2009. Signed by Judge Amul R. Thapar on 7/24/2009.(EHM)cc: COR (Entered: 07/24/2009)
136 MEMORANDUM OPINION &ORDER: 1) The dfts' "Motion to File Supplemental Exhibits Regarding Prison Litigation Reform Act Exhaustion Issue," 133 is GRANTED; 2) The dfts' Motion for Summary Judgment 108 is GRANTED in favor of dfts w/respect to federal claims asserted against them; 3) The remaining state law negligence and gross negligence claims are DISMISSED W/O PREJUDICE pursuant to 28 USC 1367(c)(3); 4) This case shall be STRICKEN form the active docket, and all other pending motions shall be DENIED AS MOOT. Signed by Judge Amul R. Thapar on 7/29/2009.(EHM)cc: COR (Entered: 07/29/2009)
137 JUDGMENT: 1) JUDGMENT is entered in favor of Dfts w/respect to all claims asserted against them except the state law negligence and gross negligence against Dft Jack Sizemore in his individual capacity, which are DISMISSED W/O PREJUDICE pursuant to 28 USC 1367(c)(3); 2) This matter is DISMISSED, all scheduled hearings are CANCELLED, and this matter is STRICKEN from the Court's active docket; 3) This is a FINAL &APPEALABLE judgment, and there is no just cause for delay. Signed by Judge Amul R. Thapar on 7/29/2009.(EHM)cc: COR (Entered: 07/29/2009)
138 MONTHLY MOTION for Reconsideration re 137 Judgment, by Lester Napier; (Attachments: # 1 Exhibit A, Blakey v. Beckstrom, # 2 Exhibit B, Jackson v. Walker, et al., # 3 Exhibit C, Ray v. Hogg, et al., # 4 Exhibit D, Affidavit of Jeffrey Shipp, # 5 Exhibit E, Lopez v. McGill, et al., # 6 Exhibit F, Chapman v. Johnson, et al., # 7 Exhibit G, Avent v. Perlman, et al., # 8 Proposed Order)(Belzley, Gregory) Modified on 8/13/2009 to remove referral language(RBB). (Entered: 08/12/2009)
Motions No Longer Referred: 138 MONTHLY MOTION for Reconsideration re 137 Judgment, by Lester Napier (RBB) (Entered: 08/13/2009)
139 MOTION to Withdraw by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 Motions referred to Robert E. Wier. (Attachments: # 1 Proposed Order Motion to Withdraw)(Vose, Leslie) (Entered: 08/14/2009)
140 VIRTUAL ORDER: Defense counsel Stephanie B. Chadwell has filed a motion to withdraw as counsel of record because she is no longer working for the firm representing the Defendants. Accordingly, her motion is hereby GRANTED. Signed by Judge Amul R. Thapar on 8/14/09. (MRS)cc: COR (Entered: 08/14/2009)
141 TRANSCRIPT of Proceedings: Oral Argument held on 07/09/2009 before Judge Amul R. Thapar. Court Reporter: K. Ann Banta, Telephone number 502 545−1090. Transcript ordered by: Joyce Jenkins. IMPORTANT NOTICE − REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the transcript, a party must follow the Court's policy regarding the Redaction Responsibility of Counsel and Parties. The policy governing the redaction of personal information is located on the court website at www.kyed.uscourts.gov. Read this policy carefully. Sample forms, i.e., a Notice of Intent to Redact, may be found on the court website by clicking on Local Forms. If there are no redactions requested, the court will assume redaction of personal identifiers is not necessary and the transcript will be made available via PACER 90 days from today's date. The Transcript may be viewed at the court public terminal or purchased through the Court Reporter before

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the deadline for Release of Transcript Restriction. Redaction Request due 9/8/2009. Redacted Transcript Deadline set for 9/18/2009. Release of Transcript Restriction set for 11/16/2009. (RBB) (Entered: 08/18/2009)
142 STIPULATION re 136 Memorandum Opinion &Order; 138 MONTHLY MOTION for Reconsideration and 137 Judgment by Lester Napier, Larry Cunnigan, Laurel Co, KY, Courtney Perel McQueen, James Mounts, Phyllis Mounts, Lester Napier, Evelyn Rose, and Jack Sizemore, MOTION TO ALTER/AMEND/VACATE by Lester Napier. (Horne, Andrew) Modified on 8/27/2009 to add additional filers. (RBB). (Entered: 08/26/2009)
NOTICE OF DOCKET MODIFICATION TO Andrew Horne re 142 Stipulation; Error: the correct filers were not selected; Entry by attorney; Correction: the clerk added the defendants as filers to the doccument. In the future, hold the ctrl key on the keyboard and click on each party filing the pleading. No further action required by counsel. cc: COR (RBB) (Entered: 08/27/2009)
***FILE SUBMITTED TO CHAMBERS of Amul R. Thapar for review: 142 Stipulation. (RBB) (Entered: 08/27/2009)
143 RESPONSE in Opposition re 138 MONTHLY MOTION for Reconsideration re 137 Judgment, by Lester (Attachments: # 1 SEALED Exhibit A − Authorization for Release of Records, # 2 Exhibit Exhibit B − Brock v. Kenton County, # 3 Proposed Order Order)(Vose, Leslie) Modified on 8/28/2009 to clean up text. (RBB). (Additional attachment(s) added on 8/28/2009: # 4 Exhibit A − REDACTED Authorization for Release of Records) (RBB). Modified on 8/28/2009 to add following text: "Exhibit A SEALED pursuant to 145 ORDER and Redacted Exhibit A ordered filed into the record." (RBB). (Entered: 08/27/2009)
144 MOTION to Seal Document 143 Response in Opposition to Motion,, by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3, MOTION for Leave by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 Motions referred to Robert E. Wier. (Attachments: # 1 Proposed Order, # 2 Exhibit Exhibit A − Response to Plaintiff's Motion to Reconsider − REDACTED Authorization for Release of Records)(Vose, Leslie) (Entered: 08/27/2009)
***MOTION SUBMITTED TO CHAMBERS of Amul R. Thapar for review: re 144 MOTION to Seal Document 143 Response in Opposition to Motion,, by Laurel County, Kentucky, Jack Sizemore, Jack Sizemore, John and Jane Does, Nos. 1, 2 and 3, John and Jane Does, Nos. 1, 2 and 3 (RBB) (Entered: 08/28/2009)
145 ORDER re 144 MOTION to Seal Document re Exhibit A to 143 Response in Opposition to Motion; Before the Court is the defendants' motion to seal Exhibit A of their response to the plf's motion to reconsider. R. 144 . It is hereby ORDERED that this motion is granted. It is further ORDERED that the defendants are granted leave to file the redacted copy of Exhibit A thatthey have submitted to the Court. Signed by Judge Amul R. Thapar on 08/28/2009.(RBB)cc: COR (Entered: 08/28/2009)
146 REPLY to Response to Motion re 138 MONTHLY MOTION for Reconsideration re 137 Judgment by Lester Napier filed by Lester Napier. (Horne, Andrew) Modified on 9/9/2009 to "clean up" text. (RBB). (Entered: 09/08/2009)
***MOTION SUBMITTED TO CHAMBERS of Amul R. Thapar for review: re 138 MONTHLY MOTION for Reconsideration re 137 Judgment, by Lester Napier (RBB) (Entered: 09/09/2009)
147 ORDER: For the foregoing reasons, it is hereby ORDERED that the plaintiffs motion to reconsider, R. 138 , is DENIED. An Amended Judgment will be filed contemporaneously with this Memorandum Opinion and Order. Motions terminated: 138 MOTION for Reconsideration re 137 Judgment, by Lester. Signed by Judge Amul R. Thapar on 10/08/2009. (RBB) cc: COR (Entered: 10/08/2009)
148 AMENDED JUDGMENT: ORDERED (1) JUDGMENT is entered in favor of the Defendants with respect to all claims asserted again them except the state law

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03/24/2011

negligence and gross negligence claims asserted against Defendant Jack Sizemore in his individual capacity, which are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3). (2) This matter is DISMISSED WITHOUT PREJUDICE, all scheduled hearings are CANCELLED, and this matter is STRICKEN from the Courts active docket. (3) This is a FINAL and APPEALABLE judgment, and there is no just cause for delay. Signed by Judge Amul R. Thapar on 10/08/2009. (RBB)cc: COR (Entered: 10/08/2009)
149 NOTICE OF APPEAL as to 136 Memorandum Opinion &Order; 147 Order, 148 Judgment, by Lester Napier. Filing fee $ 455, receipt number 1597816. (Belzley, Gregory) Modified on 10/14/2009 to clean up text. (RBB). (Entered: 10/13/2009)
USCA Case Number 09−6239 Case Manager Audrey Crockett for 149 Notice of Appeal filed by Lester Napier. (RBB) (Entered: 01/06/2010)
150 Supplemental Record on Appeal transmitted to US Court of Appeals re 149 Notice of Appeal; transmitted to 6CCA via US Mailfor 6CCA case number 09−06239 (RBB) (Entered: 09/14/2010)
151 CERTIFIED MAIL RECEIPT to USM re 150 Supplemental ROA Sent to USCA. (RBB) (Entered: 09/17/2010)
152 ACKNOWLEDGMENT OF SEALED DOCUMENT #114 Received by 6CCA 149 Notice of Appeal (RBB) (Entered: 09/20/2010)
153 INFORMATION COPY OF ORDER/JUDGMENT of USCA as to 149 Notice of Appeal filed by Lester Napier Appellant is still free to pursue his state law claims, We AFFIRM the district court's dismissal of appellant's federal claim. (Attachments: # 1 Judgment, # 2 Cover Letter−Mandate to Issue)(RC) Modified text to add "Mandate to Issue" following attachment #2 Cover Letter on 2/9/2011 (RC). (Entered: 02/09/2011)
154 MANDATE of USCA as to 149 Notice of Appeal filed by Lester Napier (Attachments: # 1 6CCA cover letter)(RBB) (Entered: 03/24/2011)