UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
[Filed Electronically]

BILLY JOSEPH FRENCH, Individually and )

on behalf of all others similarly situated, )

)

PLAINTIFF

)

v.

)

)

DAVIESS COUNTY, KENTUCKY,

)

DAVID OSBORNE, JOHN and JANE

)

DOES NOS. 1, 2 and 3,

)

)

and

)

)

CAROL BYRD, ARNP

)

Serve:

)

Carol Byrd, ARNP

)

543 Willow Oak Drive

)

Bowling Green, KY 42103

)

)

and

)

)

WILLIAM SCOTT CHAPMAN, MD

)

Serve:

)

William Scott Chapman, MD

)

1000 Breckenridge Street

)

Suite 303

)

Owensboro, KY 42303

)

)

DEFENDANTS.

)

C. A. NO. 4:07-CV-00105 (M)

SECOND AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF
I. Introduction
1. Plaintiff Billy Joseph French files this action in his individual capacity and on
behalf of all persons who, while incarcerated at the Daviess County Detention Center (“the

Jail”), have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities, all as a consequence of Defendants' neglect and deliberate indifference.
2. On information and belief, numerous inmates of the Jail have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities 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 class, and he will fairly and adequately protect the interests of the class.
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 of 28 U.S.C. §1331 and §1343. Plaintiff and the other members of his class 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 Daviess County, Kentucky is the location of all acts pertinent to this suit, venue is proper in this Court.
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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 class consists of all persons who, while incarcerated at the Jail have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities as a consequence of Defendants' neglect and deliberate indifference. 5. Plaintiff will fairly and adequately protect the interests of all class members. He is a member of the class and his claims are typical of the claims of all class members. Plaintiff will aggressively pursue the interests of the entirety of the class. 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 class. 6. Given the circumstances of his incarceration, as detailed below, Plaintiff alleges that Defendants have a policy, custom and/or practice of denying inmates medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities 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, 42 U.S.C. §1983, and 501 KAR 3:090 (20). The only question that remains to be resolved is whether Plaintiff and the members of the classes are entitled to declaratory and injunctive relief, and 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 3. Plaintiff is a resident of Daviess County, Kentucky. 4. Defendant Daviess County, at all times mentioned herein, employed, and was responsible for the establishment of policies, customs and practices governing the employment, training, supervision and conduct of, the officers and employees of the Jail. 5. Defendant David Osborne was at all times mentioned herein acting individually and/or in his official capacity as Jailer of Daviess County, and as such established policies either formally or by custom and practice for, and was responsible for the employment, training, supervision and conduct of, the officers and employees of the Jail. 6. Defendants John and Jane Does Nos. 1, 2 and 3, identities presently unknown, were at all times mentioned herein officers and employees of the Jail, and participated in the mistreatment of Plaintiff and the class, described below, individually and/or in their official capacities. 7. Defendant Carol Byrd, ARNP, was, at the time of the events described below, the medical professional responsible for attending to the medical needs of inmates of the
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Daviess County Detention Center, and as such established policies either formally or by custom and practice for, and was responsible for the employment, training, supervision and conduct of, persons responsible for medical care of inmates at the Jail, and participated in the mistreatment of Plaintiff as described below.
8. William Scott Chapman, MD, was, at the time of the events described below, the medical professional responsible for attending to the psychiatric needs of inmates of the Daviess County Detention Center, and as such established policies either formally or by custom and practice for, and was responsible for the employment, training, supervision and conduct of, persons responsible for psychiatric care of inmates at the Jail, and participated in the mistreatment of Plaintiff as described below.
V. Nature of Defendants’ Conduct 9. 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 Daviess 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 class,
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justifying an award of punitive damages in addition to the actual damages which Plaintiff and the class are entitled to recover.
VI. Facts 10. Plaintiff Billy Joseph French was an inmate at the Daviess County Detention Center. He has been lawfully prescribed by recognized medical authorities (a) Lorcet, a narcotic pain medication, for chronic, excruciating back pain, and (b) Xanax, for anxiety. 11. On admission to the Jail last May, Plaintiff was denied his Lorcet because Defendant Byrd, to whom Daviess County and Jailer Osborne had delegated their responsibility for attending to inmates' medical needs, had a policy, custom and practice of blanketly denying all inmates any type of narcotic medication regardless of their needs and whether such medication had been lawfully prescribed by recognized medical authorities. As a consequence, after his admission to the Jail, Plaintiff was in constant, excruciating pain. 12. Plaintiff, after his admission to the Jail, was also denied his Xanax because Defendants Byrd and/or Chapman, to whom Daviess County and Jailer Osborne had delegated their responsibility for attending to inmates' psychiatric and medical needs, had a policy, custom and practice of blanketly denying all inmates psychotropics such as Xanax regardless of their needs and whether such medication had been lawfully prescribed by recognized medical authorities. As a consequence, Plaintiff experienced numerous seizures, some of which required emergency runs to the local hospital, despite the fact that such seizures are a recognized risk of depriving an individual of Xanax "cold turkey." In addition, Plaintiff suffered terribly from the anxiety the Xanax had been prescribed to
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alleviate, a condition only exacerbated by his incarceration under the conditions and circumstances described herein.
13. In addition to the above, Plaintiff suffered the effects of withdrawal after being deprived of his medication.
14. As a consequence of the above, Plaintiff became suicidal, and spent considerable time on suicide watch dressed in nothing other than a padded suicide smock held together by strips of Velcro.
VII. Causes of Action A. Count I
15. Paragraphs 1-14 above are incorporated herein by reference and made this Paragraph 15.
16. Plaintiff's and the class’ treatment at the Jail were the result of a continuing pattern of misconduct and is the result of policies, procedures, customs and practices of Daviess County, either written or unwritten, that are systematically applied at the Daviess County Detention Center whenever an individual is incarcerated at the Jail, including but not limited to the persistent practice of denying inmates medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities. 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.
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17. As a result of the foregoing, Plaintiff and his class, through Defendants’ 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.
18. Moreover, given the pre-existing law that clearly prohibited Defendants’ conduct, Defendants’ treatment of Plaintiff and the members of his class 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 class.
B. Count II 19. Paragraphs 1-18 above are incorporated herein by reference and made this Paragraph 19. 20. By virtue of the foregoing, Defendants have knowingly and intentionally violated 501 KAR 3:090 (20).
C. Count III 21. Paragraphs 1-20 above are incorporated herein by reference and made this Paragraph 21. 22. By virtue of the foregoing, Defendants, without justification, negligently or intentionally inflicted upon Plaintiff and the class severe mental and emotional distress.
D. Count IV 23. Paragraphs 1-22 above are incorporated herein by reference and made this Paragraph 23.
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24. 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 class.
VIII. Damages 25. Paragraphs 1-24 above are incorporated herein by reference and made this Paragraph 25. 26. As a consequence of Defendants’ wrongful conduct, Plaintiff and the members of the class have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities. 27. As a result of the foregoing, Plaintiff and the members of the class have experienced unnecessary pain and suffering and severe and unjustified mental and emotional distress, and are entitled to recover actual damages. Furthermore, Defendants’ violations of the 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 class entitling them to recover punitive damages from Defendants in order to deter such conduct in the future.
IX. Declaratory Judgment and Permanent Injunction 28. Paragraphs 1-27 above are incorporated herein by reference and made this Paragraph 28. 29. In addition to the foregoing, Plaintiff and the class 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 were denied medical attention for their serious medical needs and
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appropriate and necessary medication prescribed by recognized medical authorities, 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 class.
WHEREFORE, Plaintiff and the class 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 of the class (c) be awarded actual and punitive damages, (d) be granted the declaratory and injunctive relief requested herein, and (e) be awarded all costs, attorney fees, pre- and post-judgment interest and all other relief to which they are entitled.
Respectfully submitted, /s/ Gregory A. Belzley Gregory A. Belzley DINSMORE & SHOHL LLP 1400 PNC Plaza 500 West Jefferson Street Louisville, KY 40202 (502) 540-2300 (Telephone) (502) 585-2207 (Facsimile) Counsel for Plaintiff
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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served this 24th day of April, 2008 via CM/ECF, to: Marvin P. Nunley, Esq. 111 East Third Street P.O. Box 925 Owensboro, KY 42302-0925
s/ Gregory A. Belzley_______________ Gregory A. Belzley Counsel for Plaintiff
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 Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 1 of 9 PageID #: 65

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
[FILED ELECTRONICALLY]

BILLY JOSEPH FRENCH, Individually and )

on behalf of all others similarly situated, )

)

PLAINTIFF

)

v.

)

)

DAVIESS COUNTY, KENTUCKY, et al.,

)

)

DEFENDANTS.

)

C. A. NO. 4:07-CV-00105 (M)

FIRST AMENDED CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF I. Introduction
1. Plaintiff Billy Joseph French files this action in his individual capacity and on behalf of all persons who, while incarcerated at the Daviess County Detention Center (“the Jail”), have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities, all as a consequence of Defendants' neglect and deliberate indifference.
2. On information and belief, numerous inmates of the Jail have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities 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 class, and he will fairly and adequately protect the interests of the class.

Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 2 of 9 PageID #: 66
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 of 28 U.S.C. §1331 and §1343. Plaintiff and the other members of his class 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 Daviess 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 class consists of all persons who, while incarcerated at the Jail have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities as a consequence of Defendants' neglect of and deliberate indifference. 5. Plaintiff will fairly and adequately protect the interests of all class members. He is a member of the class and his claims are typical of the claims of all class members. Plaintiff will aggressively pursue the interests of the entirety of the class. 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 class.
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Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 3 of 9 PageID #: 67
6. Given the circumstances of his incarceration, as detailed below, Plaintiff alleges that Defendants have a policy, custom and/or practice of denying inmates medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities 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, 42 U.S.C. §1983, and 501 KAR 3:090 (20). The only question that remains to be resolved is whether Plaintiff and the members of the classes are entitled to declaratory and injunctive relief, and to an award of compensatory and punitive damages and, if so, the extent of such an award.
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
3. Plaintiff is presently incarcerated in the Daviess County Detention Center. 4. Defendant Daviess County, at all times mentioned herein, employed, and was responsible for the establishment of policies, customs and practices governing the employment, training, supervision and conduct of, the officers and employees of the Jail. 5. Defendant David Osborne was at all times mentioned herein acting individually and/or in his official capacity as Jailer of Daviess County, and as such
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Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 4 of 9 PageID #: 68
established policies either formally or by custom and practice for, and was responsible for the employment, training, supervision and conduct of, the officers and employees of the Jail.
6. Defendants John and Jane Does Nos. 1, 2 and 3, identities presently unknown, were at all times mentioned herein officers and employees of the Jail, and participated in the mistreatment of Plaintiff and the class, described below, individually and/or in their official capacities.
V. Nature of Defendants’ Conduct 7. 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 Daviess 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 class, justifying an award of punitive damages in addition to the actual damages which Plaintiff and the class are entitled to recover.
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Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 5 of 9 PageID #: 69
VI. Facts 8. Plaintiff Billy Joseph French is an inmate at the Daviess County Detention Center. He has been lawfully prescribed by recognized medical authorities (a) Lorcet, a narcotic pain medication, for chronic, excruciating back pain, and (b) Xanax, for anxiety. 9. On admission to the Jail last May, Plaintiff was denied his Lorcet because the Jail is a "no-narcotics" facility that regularly and by policy, custom and practice blanketly denies all inmates any type of narcotic medication regardless of their needs and whether such medication has been lawfully prescribed by recognized medical authorities. As a consequence, since his admission to the Jail, Plaintiff has been in constant, excruciating pain. 10. Plaintiff, since his admission to the Jail, has also been denied his Xanax. As a consequence, Plaintiff has experienced numerous seizures, some of which have required emergency runs to the local hospital. Nevertheless, despite the fact that such seizures are a recognized risk of depriving an individual of Xanax "cold turkey," the Jail still has not given Plaintiff his Xanax. In addition, Plaintiff has suffered terribly from the anxiety the Xanax had been prescribed to alleviate, a condition only exacerbated by his incarceration under the conditions and circumstances described herein. 11. In addition to the above, Plaintiff suffered the effects of withdrawal after being deprived of his medication. 12. As a consequence of the above, Plaintiff is suicidal, and is now on suicide watch and is dressed in nothing other than a padded suicide smock held together by strips of Velcro.
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Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 6 of 9 PageID #: 70
VII. Causes of Action A. Count I
13. Paragraphs 1-12 above are incorporated herein by reference and made this Paragraph 13.
14. Plaintiff's and the class’ treatment at the Jail were the result of a continuing pattern of misconduct and is the result of policies, procedures, customs and practices of Daviess County, either written or unwritten, that are systematically applied at the Daviess County Detention Center whenever an individual is incarcerated at the Jail, including but not limited to the persistent practice of denying inmates medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities. 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.
15. As a result of the foregoing, Plaintiff and his class, through Defendants’ 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.
16. Moreover, given the pre-existing law that clearly prohibited Defendants’ conduct, Defendants’ treatment of Plaintiff and the members of his class were intentional, wanton and malicious, and were indicative of Defendants’ total and reckless disregard of
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Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 7 of 9 PageID #: 71
and deliberate indifference to the rights of, and harm to, Plaintiff and the other members of the class.
B. Count II 17. Paragraphs 1-16 above are incorporated herein by reference and made this Paragraph 17. 18. By virtue of the foregoing, Defendants have knowingly and intentionally violated 501 KAR 3:090 (20).
C. Count III 19. Paragraphs 1-18 above are incorporated herein by reference and made this Paragraph 19. 20. By virtue of the foregoing, Defendants, without justification, negligently or intentionally inflicted upon Plaintiff and the class severe mental and emotional distress.
D. Count IV 21. Paragraphs 1-20 above are incorporated herein by reference and made this Paragraph 21. 22. 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 class.
VIII. Damages 23. Paragraphs 1-22 above are incorporated herein by reference and made this Paragraph 23.
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Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 8 of 9 PageID #: 72
24. As a consequence of Defendants’ wrongful conduct, Plaintiff and the members of the class have been denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities.
25. As a result of the foregoing, Plaintiff and the members of the class have experienced unnecessary pain and suffering and severe and unjustified mental and emotional distress, and are entitled to recover actual damages. Furthermore, Defendants’ violations of the 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 class entitling them to recover punitive damages from Defendants in order to deter such conduct in the future.
IX. Declaratory Judgment and Permanent Injunction 26. Paragraphs 1-25 above are incorporated herein by reference and made this Paragraph 26. 27. In addition to the foregoing, Plaintiff and the class 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 were denied medical attention for their serious medical needs and appropriate and necessary medication prescribed by recognized medical authorities, 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 class.
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Case 4:07-cv-00105-JHM-ERG Document 16 Filed 01/11/08 Page 9 of 9 PageID #: 73
WHEREFORE, Plaintiff and the class 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 of the class (c) be awarded actual and punitive damages, (d) be granted the declaratory and injunctive relief requested herein, and (e) be awarded all costs, attorney fees, pre- and post-judgment interest and all other relief to which they are entitled.
Respectfully submitted, /s/ Gregory A. Belzley Gregory A. Belzley DINSMORE & SHOHL LLP 1400 PNC Plaza 500 West Jefferson Street Louisville, KY 40202 (502) 540-2300 (Telephone) (502) 585-2207 (Facsimile) Counsel for Plaintiff
CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served this 28th day of November, 2007 via CM/ECF, to: Marvin P. Nunley, Esq. 111 East Third Street P.O. Box 925 Owensboro, KY 42302-0925
s/ Gregory A. Belzley_______________ Gregory A. Belzley Counsel for Plaintiff
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 Case 4:07-cv-00105-JHM-ERG Document 54 Filed 07/24/08 Page 1 of 2 PageID #: 261

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION CIVIL ACTION NO. 4:07CV-00105-JHM

BILLY JOSEPH FRENCH, Individually and On Behalf Of All Others Similarly Situated
VS.
DAVIESS COUNTY, KENTUCKY, ET AL.

PLAINTIFF DEFENDANTS

ORDER Before the Court is a motion, pursuant to Fed.R.Civ.P. 12(e), for a more definitive statement filed by Def endant, William Scott Chapm an, M.D. (“Dr. Chapm an”) (DN 43). Dr. Chapman argues he cannot reasonably prepare a response to the second aemnded complaint because it fails to set forth the dates he treated Plaintiff, Billy Joseph French (“French”), it fails to identify when he al legedly breached the applicable standa rd of care, and it fails to specify when the subsequent injury occurred (DN 43). In response, French argues that paragraph 12 of his second amended complaint fully compor ts with Fed.R.C iv.P. 8(a)(2) because it specifies the alleged negligence and the subsequent injury (DN 47). Additionally, French asserts the federal rules do not require details such as dates of treatment be pled (DN 47). In pertinent part, Rule 8 requires that a pelading set forth “a short and plain statement of the claim showing that the pleader is entitled to relief...” Fed.R.Civ.P. 8(a)( 2). Thus, all the complaint need do is give a defendant “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957) (abrogated on other grounds, see Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007)); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). “This simplified notice pleading standard relies on liberal discovery rules

Case 4:07-cv-00105-JHM-ERG Document 54 Filed 07/24/08 Page 2 of 2 PageID #: 262
and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz Soreman N.A., 534 U.S. 506, 512 (2002) (citing Conley, 355 U.S. at 47-48 and Leatherman v. Tarrant County Narcotics Intelligence and Coordination Uni,t507 U.S. 163, 168169 (1993)). After reviewing paragraph 12 in the second am ended complaint (DN 33), the undersigned concludes that French has satisfi ed his obligations under Fed.R.Civ.P. 8( a)(2). Moreover, much of what Dr. Chapman seeks is available through discovery. Thus, Dr. Chapman’s motion is without merit.
IT IS H EREBY ORDERED that Dr. Chapm an’s motion for a m ore definitive statement is DENIED.
ENTERED this July 23, 2008

Copies:

Counsel of Record

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 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO: 4:07CV-105-M
BILLY JOSEPH FRENCH
v.
DAVIESS COUNTY, KENTUCKY, et al

PLAINTIFF DEFENDANTS

MEMORANDUM OPINION AND ORDER This matter is before the Court upon mot ions for summary judgment by the defendants Daviess County, Kentucky (“Daviess County”) and David Osborne (“Osborne”) in his individual and official capacities [DN 78], Carol Byrd, ARNP(“Byrd”) [DN 75], and William Scott Chapman, M.D. (“Chapman”) [DN 74]. Also before the Court is a motion by the plaintiff, Billy Joseph French (“French”), for a hearing [DN 90]. Fully briefed, these motions are ripe for decision.
I. SUMMARY JUDGMENT STANDARD In order to grant a motion for summary judgment, the Court must find that the pleadings, together with the depositions, interrogatories and affidavits, establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The m oving party bears the initial burden of specifying the basis f or its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). Once the m oving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party is required to do more than simply show there is some “metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Co., 475 U.S. 574, 586 (1986). The Rule requires the non-m oving party to present “specific facts showi ng there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). “The m ere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find forthe [non-moving party].” Anderson, 477 U.S. at 252. It is against this standard that the Court reviews the following facts.
II. BACKGROUND The facts of this case are relatively straightforward rendering a hearing unnecessary. On May 5, 2007, French was incarcerated at the Davei ss County Detention Center upon being charged with driving under the influence. (Frenc h Dep. 75:25-76:7, Nov. 10, 2008.) At the tim e of his incarceration, French contends that he was taking narcotic medications to treat various ailments. Specifically, French testified that he was taking narcotic Xanax to treat anxiety and narcotic Lorcet to treat chronic pain caused by five prior back s urgeries. (Id. 30:18-21.) On his inm ate medical form, completed at the time of incarceration, French indicated that he was taking these medications and that his “girlfriend will bring either a list of meds or bring the meds to the facility tomorrow (5/6/07).” (DN 84, Ex. 10.) The inm ate medical form did not list the reasons French was taking these medications. (Id.) On May 6, 2007, a nurse a t the jail, Nurse Bartlett, placed French on a Valium detoxification protocol pursuant to a verbal order by Chapm an. (DN 84, Ex. 4 at 1.) Because there is no testimony in the record fromNurse Bartlett, it is unclear as to the circumstances under which French was placed on this protocol. French relies upon the testimony of another nurse at the jail, Nurse Isom , to speculat e as t o the reason French was placed on this protocol. She testified that an inmate would be placed on a detoxfiication protocol if an inmate could establish that
2

he had been prescribed Xanax or if the inmate was showing signs and symptoms of withdrawal from Xanax. (Isom Dep. 83:18-84:17, Jan. 16, 2008.) Xanax is a highly addictive narcotic medication which can cause serious withdrawal symptoms if the medication is discontinued abruptly. (Troost Dep. 16:24-17:8, Nov. 11, 2008.) These withdrawal symptoms can include seizures and symptoms of delirium which can go on for days or even weeks. (Allen Dep. 13:4-21, Feb. 17, 2009.)
The same day that French was placed on a Va lium detoxification protocol he suffered a suspected seizure and was t aken to a local emergency room. (Troost Dep. 13:5-8.) After being returned to the jail, he had another suspected seizure on May 7 and was treated by Dr. Neil Troost in the emergency room. French informed Dr. Troost that the jail was not prescribing Lorcet and Xanax for him. (Id. 22:1-3.) When Dr. Troost released French back into the jail’s custody, he did not prescribe any pain medications and ordered the jail to continue administering the detoxification protocol. (Id. 17:5-8; 28:10-16.) Ac cording to French, he suffered no less than seven seizures between May 6 and May 8 each requiring him to be transported to the emergency room. French contends that, although he had been prescribedXanax and Lorcet by his primary care physician, the jail never provided these narcotic medicines to French during his eight-month incarceration.
French initially brought this action pursuant to 42 U.S.C. § 1983 on behalf of himself and others similarly situated and against Daviess County and Osborne alleging that Osborne enacted and administered a policy or custom of “no narcotic s” at the Daviess County Detention Center. He alleged that a “no narcotics” policy violates the 8th and 14th Am endments to the United States Constitution because such a policy is deliberately indfiferent to the serious medical needs of inmates at the jail. On April 25, 2008, French sought leaveto file a second amended complaint to add Byrd and Chapman as party defendants. In his second am ended complaint, French all eges that
3

policymaking authority for the jail was delegated to Byrd and Chapman. Byrd is alleged to have created or enforced a policy that prohibited jailpersonnel from dispensing narcotic pain medication despite a valid prescription. Similarly, Chapman is alleged to have created or enforced a policy that prohibited jail personnel from dispensing narcotic Xanax. Each of these policies or custom s was alleged to have been deliberately indiffere nt to the serious medical needs of inmates at the jail. French alleges that he was injured by these unconstitutional policies or customs because he suffered from increased pain due to the lack of narcotic pain m edication and suffered from withdrawal symptoms because he was taken off Xanax cold tureky. Leave to file the second amended complaint was granted on May 29. The second amended complaint was docketed and the summonses were issued on May 30.
III. DISCUSSION French brought claims against Daviess County,Osborne, Byrd and Chapman in their official capacities based upon policies or custom s enacted or enforced during the tim e French was incarcerated at the jail. Daviess County contends that these claims should be dismissed because there is no evidence ofan unconstitutional policy orcustom or that such policy was not the “moving force” behind French’s alleged injuries. French also makes similar allegations against Osborne, Byrd, and Chapman in their individual capacities. Obsorne and Byrd contend that the claims against them should be dismissed because there is no evidence in the record to suggest that either of them made an unconstitutional policy or custom nor that either of them was deliberately indifferent to French’s serious medical needs. Byrd and Chapman also contend that French’s claims against them individually are barred by the applicable one-year statute of limitations. The Court will address these arguments in turn.
4

A. STATUTE OF LIMITATIONS There is no dispute that the applicable limitations period is one year. The dispute between the parties concerns the date upon which the action against Byrd a nd Chapman was commenced. French does not dispute that his cause of action accrued on May 5, 2007 as argued by Byrd and Chapman. This is the date upon which French entered the jail and was not provided Xanax or Lorcet. It follows then, that to be timely filed, French was required to commence this action against Byrd and Chapm an prior to May 5, 2008. Therefore, the question is when this act ion was “commenced.” Was this action “commenced” on April 25, 2008 when French sought leave to file an amended complaint, or was this action not “com menced” until May 30, 2008, the date upon which the second amended complaint was docketed and the summonses issued?
1. Federal Claims The Court must first determine if Kentucky or federal law controls when French’s § 1983 action was commenced. As this m atter is sitting in federal court and French’s § 1983 claim is a claim arising under the laws of the United Staets, it would appear that Fed. R. Civ. P. 31 controls the commencement of this action pursuant to Erie R.R. Co. v. Tom pkins, 304 U.S. 64, 78 (1938) (“Except in matters governed by the Federal Constitution or by Acts of Congress , the law to be applied in any case is the law of the state.”) (emphasis added). However, in actions commenced under § 1983, the rule is not so clear because federlacourts “borrow” the personal injury limitations period from the forum state.2 Wilson v. Garcia, 471 U.S. 261, 280 (1985). In a typical diversity

1

Rule 3 provides that “[a] civil action is commenced by filing a complaint with the

court.” Fed. R. Civ. P. 3.

2

An action is commenced under Kentucky law “on the date of the first summons or

process issued in good faith from the court having jurisdiction of the caus e of action.” KRS

5

action, where the Court applies the forumstate’s statute of limitations to state law claims, the Court also applies the forum state’s laws to determine when the action is commenced for purposes of the statute of limitations. Eades v. Clark Distrib. Co. , 70 F.3d 441, 443 (6th Cir. 1995) (finding that Kentucky law determines when an action is commenced for claims arising under Kentucky law). This is so because a state law that determines when an action is com menced for purposes of the state’s statute of limitations does not directly conflict with Fed. R. Civ. P. 3. Id. “‘[I]n diversity actions Rule 3 governs the date fromwhich various timing requirements of the Federal Rules begin to run, but does not affect statestatutes of limitations.’” Id. (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 751 (1980)). It does not neces sarily follow, however, that in non-diversity actions where a federal law “borrows” a state’s lim itations period, that the federal law also borr ows the state’s law regarding commencement of actions. “Only the length of the lim itations period, and closely related questions of tolling and application, are to be governed by state law.” Wilson, 471 U.S. at 268 (footnote omitted). The Supreme Court, although not addressing this specific issue, has recognized that federal courts have been “forced tograpple with questions such as whether federal or state law govern[s] when an action [is] ‘com menced,’ or when service of process ha[s] t o be effectuated.” Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 379 (2004) (citing Sentry Corp. v. Harris, 802 F.2d 229 (7th Cir. 1986)).
Both parties contend that the Sixth Circuit also has not addressed this issue. However, in Mohler v. Miller, 235 F.2d 153 (6th Cir. 1956), the Sixth Circuit directly addressed this question in the § 1983 context. There, the plaintiff a lleged that police officers arrested him and searched his home in violation of the Constitution. Mohler, 235 F.2d at 154. The plaintiff filed his complaint
413.250. 6

prior to the running of the limitations period, but the summons was not issued and lodged with the marshal for service until after the running of the statute of lim itations. Id. at 155. The question before the Court, therefore, was whether the filni g of the complaint in accordance with Fed. R. Civ. P. 3 tolled the limitations period. Id. The Court answered the question in the affirmative by looking to federal, not state law:
While state law controls the time within which an action must be begun, the manner in which an action is commenced and when it is deemed to have begun, are governed by the law of the forum. These matters are procedural and not substantive. Id. (citing Bomar v. Keyes, 162 F.2d 136, 140 (2d Cir. 1947) (for§ 1983 claims, “we now hold that it is the filing of the com plaint which tolls the statute.”)). Although Mohler is a pre-Wilson and Walker decision, t he Sixth Circuit has continued to adhere to its reasoning in post-W ilson and Walker cases. See, e.g., Macon v. ITT Cont’l Baking Co. , 779 F.2d 1166, 1172 (6 th Cir. 1985) (“Therefore, even if a state statute of limitations is borrowed and that state’s rules also provide that service, not filing, tolls the statute of limitations, the prevailing rule am ong the federal courts of appeals is that Rule 3 of the Federal Rules of Civil Procedure governs the time of commencement of the action in cases where a federal matter or cause of action is involved.”) (internal quotation and markings omitted). This position is consistent with at least five other Circuits that have addressed the issue. E.g., Sain v. City of Bend, 309 F.3d 1134 (9th Cir. 2002); McIntosh v. Antonino, 71 F.3d 29 (1st Cir. 1995); Moore v. State of Indiana, 999 F.2d 1125 (7th Cir. 1993); Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991); Martin v. Demma, 831 F.2d 69 (5th Cir. 1987). The only issue that remains then, is whetherunder federal law, French’s § 1983 claimagainst Byrd and Chapman commenced upon seeking leave to file a second amended complaint. Under facts similar to those here, the Sixth Circuit considered whether equitable tolling should permit an
7

otherwise time-barred claim. Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 187-88 (6th Cir. 2008). In Hughes , a § 1983 plaintiff sought leave to am end her complaint to add an additional cause of action prior to the running of the limitations period. Id. at 188. The motion was denied without prejudice on procedural gr ounds, but was later granted after the running of the limitations period. Id. The Sixth Circuit considered a list of five factors to determ ine whether equitable tolling applied: “(1) the petitioner’s lack of notice of the f iling requirement; (2) the petitioner’s lack of constructiveknowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirem ent for filing his claim.” Id. at 187 (quotation omitted). “‘These five factors are not comprehensive, nor is each factor relevant in all cases.’” Id. at 187-88 (quoting Solomon v. United States, 467 F.3d 928, 933 (6th Cir. 2006)). Applying some but not all of these factors, the Sixth Circuit found that there would be noprejudice to the defendants because they had notice of the additional allegations whenthe plaintiff sought leave to amend her complaint. Id. at 188-89. The Sixth Circuit also found that the plaintiff was diligent in pursuing her rights by attempting to amend her complaint within the lim itations period. Id. at 189. The Sixth Ci rcuit concluded that the day on whichthe plaintiff sought leave to amend her complaint was the day upon which her new cause of action timely commenced. Id.
Although Byrd and Chapman, unlike the defendants in Hughes, did not have notice of the claims against them until after t he limitations period had run, the Court finds, after carefully considering the Hughesfactors, that equitable tolling shouldnonetheless apply. The Court finds that Byrd and Chapm an were not pre judiced by the Court’s delay in granting leave to am end the complaint. Under federal law, a plaintiff generally has 120 days to serve a com plaint upon a
8

defendant. Fed. R. Civ. P. 4(m). If a plaintiff files his complaint on the last day of the limitations period, the defendant may not have notice of thepending claims until the end of this 120-day “grace period.” Here, Byrd and Chapman were served well within 120 days fromthe end of the limitations period and therefore cannot contend that they wereprejudiced by the delay in notice. Furthermore, French displayed reasonable dilig ence in pursuing his rights as he “attempted to am end h[is] complaint within the limitations period.” Id. Therefore, based on the doctrine of equitable tolling, French’s § 1983 a ction was timely commenced upon his filing a m otion for leave to am end his complaint to add Byrd and Chapman as defendants.
2. State Claims Byrd and Chapman argue that French’s state law claims are barred by the applicable statute of limitations. Kentucky law provides that [a]n action shall be deemed to commence on the date of the first summons or process issued in good faithfrom the court having jurisdiction of the cause of action.” KRS 413.250. The summonses against Byrd and Chapman were not issued until May 30, 2008, approximately 25 days after the running of tehlimitations period. Apparently recognizing this defect, French argues that the Court should look to Fed. R. Civ. P. 3 to determine when this action was commenced. French acknowledges that the Court would apply Kentucky’s com mencement rules if the basis of the Court’s jurisdiction over his state law claims was diversity of citizenship. French reasons, however, that Fed. R. Civ. P. 3 should apply because the basis of the Court’s jurisdiction over the state law cla ims is not di versity of citizenship jurisdiction, but rather, supplemental jurisdiction. Because his federal claims are timely, French contends that his state law claims should be deemed timely as well. French’s argument that the commencement of his state law claims is controlled by federal
9

law is unpersuasive. Regardless of the ba sis of the Court’s jurisdiction over a party’s state law claims, the limitation of such claim s is contro lled by s tate law. Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. at 530, 532 (1949). This distinction was explored by the Seventh Circuit in Century Corp. There, the plaintiffs brought federal escurities fraud claims against the defendants and also asserted pendant state law securities claim s. Centry Corp. , 802 F.2d at 230. Because federal law did not provide a limitations period for the implied cause of action under Rule 10b-5, the limitations period was “borrowed” from the most analogous state statute. Id. at 230-31. The state law, however, provided that an action wasnot “commenced” for purposes of that statute until the defendant was served witha copy of the complaint. Id. at 231. The plaintiff filed the complaint with the federal district court prior to the running of the limitations period, but the defendant was not served with the complaint until after the running of the limitations period. Id. at 230-31. The Seventh Circuit concluded that the commencement of the federal securities claims was governed by federal law. Id.at 245-46. Pursuant to Rule 3, those claims were timely. Id. However, the Seventh Circuit held that the commencement of the pendent state law claims, subject to the same statute of limitations, was governed by state law and therefore untimely. Id. at 246. Similar results have been reached by other courts. See U.S. ex rel Conner v. Salina Reg’l Health Ctr., 543 F.3d 1211, 1225 (10th Cir. 2008) (finding that the commencement of a supplemental state law claim was governed by state law); Pollock v. City of Astoria, No. CV06-845-AS, 2007 WL 54804, at *2 (D. Or. Jan. 4, 2007) (finding that a § 1983 claimwas timely, but that a supplemental state law claimwas untimely pursuant to the same limitations statute); Tillman v. Georgia, 466 F. Supp. 2d 1311, 1317 (S.D. Ga. 2006) (rejecting the same argument asserted by theplaintiff and applying state commencement rules to determine if supplemental jurisdiction claims were timely). Forthese reasons, the commencement
10

of French’s state law claims is governed by state law. Whether French’s state law claims are timely will therefore depend upon whether the statute of lim itations is tolled under Kentucky law upon filing a motion for leave to amend the complaint. The parties have not briefed this issue and it does not appear that Kentucky courts have answered this question. The Court finds it appropriate to reserve ruling upon the state law c laims until the Court determines whether the federal claim s survive summary judgment. If no federal claim survives, then the Court would likely decline to exercise jurisdiction over French’s state law claim s leaving it t o Kentucky courts to determ ine whether the policies of the state warrant tollingof the limitations period under these circumstances.
B. FEDERAL CLAIMS French’s federal claimfor damages arises under 42 U.S.C. § 1983 which provides in part that [e]very person who, under color of any stat ute, ordinance, regulation, cust om, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . 42 U.S.C. § 1983. French, who at pertinent t imes was a pretrial detainee, contends that the defendants violated his due process rights under the Fourteenth Amendment. To state a claimunder § 1983, a plaintiff m ust establish “both that 1) []he wa s deprived of a right secured by the Constitution or laws of the United States and 2t)he deprivation was caused by a person acting under color of state law.” Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001) (citation omitted). A pretrial detainee’s constitutional rights are violated when a state actor is deliberately indifferent to the serious medical needs of the detainee. Ford v. County of Grand Traverse, 535 F.3d 483, 494-95 (6th Cir. 2008).
1. Individual Capacity Claims To establish that a prison official, in his individual capacity, was deliberately indifferent to
11

an inmate’s serious medical needs, the plaintiff m ust establish two elem ents. See Com stock v. McCrary, 273 F.3d 693, 702-03 (6th Cir. 2001). The first element is an objective element, which requires a plaintiff to show that the inmate’s medical needs were “sufficiently serious.” Id. (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The second element is a subjective element, which is satisfied if “the official knows of and disregardsan excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “Complaints of malpractice or allegations of negligence are insufficient to entitle a plaintiff to relief.” Lewis v. McClennan, 7 F. App’ x 373, 375 (6th Cir. 2001) (citing Estelle v. Gam ble, 429 U.S. 97, 106 (1976)). Furthermore, “[a] prisoner’s difference ofopinion regarding treatment does not rise to the level of an Eighth Amendment violation, . . . and, where the pr isoner has received some medical attention and now disputes the adequacy of that treatment, the federal courts are reluctant to second-guess prison officials’ medical judgments and to constitutionalize claims which sound in state tort law.” Id. (citing Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976)) (internal citation omitted). However, “a prisoner who is needlessly allowed to suf fer pain when relief is readily available does have a cause of action aganist those whose deliberate indifference is the cause of his suffering.” Westlake, 537 F.2d at 860.
Generally speaking, only those that are personallyinvolved in the medical care of an inmate can be deliberately indifferent to the inmate’s serious medical needs. See, e.g., Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (“liability under§ 1983 must be based on active unconstitutional behavior and cannot be based upon ‘a mere failure to act.’”) (quoting Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)). Under certaincircumstances, however, one who directs others
12

to act in an unconstitutional manner or who supervises those who act in an unconstitutional manner can be held liable under § 1983 based on a theory of supervisory liability. Miller v. Bock , 55 F. App’x 310, 311 (6th Cir. 2003). “[S]imple awareness of employees’ misconduct does not lead to supervisor liability.” Leary v. Daeschner, 349 F.3d 888, 903 (6th Cir. 2003) (citation omitted). Nor does the mere failure to intervene upon becoming aware of alleged deficiencies in medical treatment create liability under § 1983. Davis v. Sapp, 21 F.3d 1268 (table), 2000 WL 572067, at *2 (6th Cir. 2000). Instead, a supervisor can only be held responsible for the acts of a subordinate under § 1983 if the supervisor “either encouraged the specific incident of m isconduct or in som e other way directly participated in it. At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending officers.” Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982) (citation omitted).
A plaintiff can establish the requisite authorization by showing that the supervisor enforced or adopted a plan or policy authorizing such conduct. See id. at 873. “When the plaintiff alleges supervisory liability . . . based on creation ofa policy or custom, the plaintiff must show that . . . the policy or custom itself amounts to deliberate indifference on the part of the supervisory officials.” Ronayne v. Ficano, 173 F.3d 856 (table), 1999 W L 183479, at *1 (6th Cir. 1999) (citing Ci ty of Canton v. Harris, 489 U.S. 378, 388 (1989)). This requires proof that the supervisor “disregarded a known or obvious consequence of his action.” Id.at *3. In addition to establishing a policy that is deliberately indifferent, a plaintiff must also show “‘[a]n affirmative link between the occurrence of the . . . m isconduct and the adoption of any pl an or policy-express or otherwise-showing [the supervisor's] authorization or approval of such misconduct.’” Bock, 55 F. App’x at 311 (quoting Rizzo v. Goode, 423 U.S. 362, 371 (1976)); see also Miller v. Calhoun County, 408 F.3d 803, 815
13

(6th Cir. 2005) (the plaintiff m ust prove that the pol icies and practices “directly caused the constitutional violation.”) (citation omitted).
a. Byrd Direct Medical Care Byrd was a part-time medical health provider at the Daviess County Detention Center from December 28, 2006 until August 7, 2007. (Carol Byrd Dep. 14:11-15, Aug. 22, 2008.) She normally visited the jail once a week to treat inm ates who filled out medical request forms. (Id. 28:24-30:4.) She testifi ed that as far as she was aware, she never m et French while he was incarcerated at the jail. (Id. 38:8-12.) She also testified that she never treated French for pain because, as far as she was aware, French never filled out a medical request form complaining that he was in pain. (Id.63:5-16.) She testified that the only way that she would see an inmate to assess his condition is if the inmate put in a medical request to be seen. (Id. 93:9-16.) And the only way for an inmate to get a medication is to request it: “[i]f they never asked for it, then how would we know to order it?” (Id. 93:22-25.) The only direct involvement that Byrd had in the care of French appears to be various voice orders directing the nurses at the jail to administer various medications to French. (DN 84, Ex. 4.) Apparently French does not contend that Byrd’s direct involvement in his care was deliberately indifferent. As pr eviously noted, jail officials can only be deliberately indifferent to the serious m edical needs of an inmate if “the official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Here, the undisputed evidence establishes that Byrd did not know of the pain being suffered by French. If Byrd was not aware of the risk to French’s health, then she can not be deliberately indifferent to his medical needs.
14

Pain Medication Policy Notwithstanding the lack of direct involvem ent that Byrd had in French’s m edical care, French contends that Byrd is nonetheless indivdi ually liable because of her alleged “policy, custom or practice that perm itted nurses to blanketly deny inm ates narcotic pain m edication and psychotropics lawfully prescribed by duly-licensed physicians.” (Pl.’s Resp. at 4.) According to French, Byrd had a standing order prohibiting the nurses at the jail fromadministering narcotic pain medications.3 Lacking from the record, however, is any evidence that such a policy caused French to be denied his pain medication. In Nurse Isom’s deposition she was asked whether French ever complained of being in pain or whether he was ever denied any pain medication: Q. Did Mr. French ever make any specific complaints to you about medical care
or treatment or medications? A. Not that I’m aware of. Q. Did Mr. French ever – do you ever remember Mr. French specifically asking
you for any type of medications or specific medications? A. No, I don’t remember. Q. Do you remember Mr. French every complaining to you that he was in any
type of pain? A. I don’t remember Q. I know there are progress notes at the jail. If a prisoner, such as Mr. French,
would make specific complaints to you about a medical condition, would you record those complaints or your observations in progress notes? A. Yes.
* * * * *

3

The Court assumes, for purposes of this Memorandum Opinion only, that Byrd in fact

had such a policy.

15

Q. Do you remember at all having any medications for Mr. French that you refused to give him for any reason?
A. No, sir. (Isom Dep. 15:23-16:14; 24:23-25:1, Nov. 11, 2008.) There is nothing in t he progress notes submitted as part ofthe record, which reflect a request by French for any particular pain medication, that French complained of being in pain, or that jail personnel ever denied him pain medication.
The jail also had a procedure whereby inm ates could formally request medical assistance using a medical request form. French was asked whether he ever “wr[ote] down on any of these medical request forms that you specifically needed pain medication, or Xanax medication . . . .” (French Dep. 36:21-24.) French responded that he “didn’t write it on that form but they have it on their record, their intake sheet, that that is what I take when I went in there.” (Id. 36:25-37:2.) However, Nurse Isom testified that the only m edication dropped off by French’s fam ily was his blood pressure m edication, and only after jail personnel called and requested that his fami ly members drop them off. (Isom Dep. 29:22-30:3; 30:10-20.) The record also reflects that ja il personnel contacted Dr. Rightmyer, French’s physician. Apparently, the only orders received from Dr. Rightmyer were related to a blood-th inning condition suffered by French. ( Id. 30:21-31:5.) When Nurse Isom was asked whether there were “any other references in the progress notes, either for this day or for any subsequent day, where Dr. Rightmyer put in an order or put in information on any other medications, other than [blood-thinning medication],” she responded, “No.” (Id.31:813.) French references a July 26, 2006, le tter written by Dr. Rightm yer indicating that French suffered from chronic back pain and that Lorcet was necessary to treat his pa in. (DN 84, Ex. 8.) However, that letter was written almost a year before French’s May 5, 2007, incarceration and there
16

is no evidence if and when that letter was placed in French’s medical file at the jail or if any jail personnel was aware of the letter. This letter is insufficient to put jail personnel on notice about French’s medical condition as it existed in May 2007.
When French was admitted to the emergency room on May 7 due to suspected seizures, he complained that he was in pain and that jail presonnel were not providing him with Lorcet or Xanax. (Troost Dep. 22:1-3.) Dr. Troost, the emergency room doctor, performed a consultation and workup of French and reviewed the history of French’s visits to the emergency room which showed a long history of drug and alcohol abuse. (Id. 13:5-14:25.) Dr. Troost also testified that if he thought it medically necessary, he could have prescribed narcotic pain medication to French:
Q. On any of those two visits that Mr. French made to your emergency room, if you felt it medically necessary, could you have prescribed narcotic pain medications to him, if you believed that the situation warranted it?
A. Yes. Q. Does your record reflect that you did, in fact, pr escribe any type of pain
medications or narcotic pain medications to Mr. French when you saw him on those two occasions, on the – May the 7th and May the 8th of 2007? A. I will triple check, but I did not. I did not. (Id. 28:4-16.) Instead, D r. Troost sent French back to the jail w ith orders f or him to take Depakote–an anti-seizure medication–and to continue the Valium detoxification protocol. (Id. 1729:1.) It appears that the jail followed these orders. Byrd prescribed the Depakote as ordered on May 7, and, apparently because Chapman was not available, Byrd put in an additional voice order for Valium detoxification on May 9. (DN 84, Ex. 4.) Based on this evidence in the record, and when viewing the evidence in the light m ost favorable to the plaintiff, the Court finds that there is simply insufficient evidence to show that jail
17

personnel deprived French of a right secur ed by the Constitution, i.e. that any jail personnel was deliberately indifferent to French’s serious medical needs or that their deliberate indifference was the result of the policy enacted orenforced by Byrd. Although French indicated on his intake form that he was taking Lorcet and Xanax, there is no evidence that he ever told jail personnel the reason he needed that m edication. In addition, jail personnel apparently took steps to veri fy the medications he was taking. During the term of his incarceration, jail personnel requested that French’s family bring in any medication he was taking. They even contacted French’s doctor who was apparently aware of Fre nch’s need for Lorcet and Xanax, but the doctor apparently never relayed that infor mation to jail personnel. Furtherm ore, there is no docum entary evidence suggesting that French ever told jail personnel that hewas in pain. This is not a case, as suggested by French, where an inmate has been completely denied medical care. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Nor is it a case where jail personnel “deliberately ignore[d] the express orders of a prisoner’s prior physician for reasons unrelated to the medical needs of the prisoner.” Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992). In situations “‘[w]here a prisoner has received some medical attention and the dispute isover the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that sound in state tort law.’” Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004) (quoting Westlake, 537 F.2d at 860 n.5). Because French has failed to show an underlying constitutional violation, he also has failed to show an affirm ative link between the occurrence of misconduct and the adoption of Byrd’s policy.
18

Xanax Policy French also argues that Byrd is liable under§ 1983 because she had a policy to take inmates off of Xanax, an anti-anxiety m edication, and put them on a Val ium detoxification protocol. According to French, Nurse Bartlett failed to administer Xanax to French because of this policy, and as a result French suffered withdrawal sym ptoms including seizures and delirium . As asserted against Byrd, this claim fails becau se there is no evidence that Nurse Bartlett carried out this procedure because of Byrd’s “no-narcotics” policy. Byrd, for example, testified that issues related to Xanax, a psychotropic medication, were the responsibility of the jail psychologist, Chapman. (Byrd Dep. 50:1-4.): Q. All right. Now Xanax isn’t in there? A. The psychiatric needs were seen by Dr. Chapman. Q. Okay. A. I did not see anyone for psychiatric medications.
* * * * * Q. And what would happen if it was confirm ed that they had been prescribed
Xanax and were currently taking Xanax? A. I’m not sure what Dr. Chapman would do with that. Q. Okay. That’s just totally out of your field? A. Right.
* * * * * Q. So, if I’m understanding your testimony correctly, your understanding of the
way things worked was if som ebody came in on nar – ps ychotropic like Xanax, that was Chapman’s – A. Yes.
19

Q. – bailiwick . . . . (Id. 50:21-51:1; 53:13-19; 59:7-12.) Nurse Isom also testified that the detoxification protocol was pursuant to the orders of Cha pman, not Byrd. (Isom Dep. 83:6-11.) The docum entary evidence verifies this testimony. For example, Nurse Bartlett initially carried out the Valium detoxification protocol pursuant to a voice order from Chapman. (DN 84, Ex. 4.) There is sim ply insufficient evidence to establish that Byrd enacted a policy to place inmates that had been prescribed Xanax onto a detoxification protocol.
Even if French were able to establish thathe was placed on a Valiumdetoxification protocol pursuant to a policy enacted by Bydr, his claimwould still fail because there is no evidence that such a policy directs jail personnel to act in an unconstitutional m anner or that the policy itself is unconstitutional. The record is beretf of any evidence from an expert opining that the circumstances underlying French being placed on a Valium detoxification protocol was im proper. In fact, the evidence tends to suggest otherwise. Dr. Troost, for example, testified that Valium, the medicine that is part of the jail’s detoxification protocol, is equivalent to Xanax. (Troost Dep. 22:1-3.) He also testified that the jail’s detoxification protocol was appropriate and he wished that to continue. (Id. 17:5-8.) And although French correctly points out that Dr. Troostnever testified that he agreed with the initial decision to place French on the detoxification protocol, (id. 23:2-6,) neither did he disagree nor order that the jail st art administering Xanax to French. Similarly, when French was admitted to KCPC, a psychologist atthe facility, Dr. Allen, indicatedthat he saw “no need for habit forming sedatives such as Xanax in this individual . . . .” (DN 87, Ex. 5.) And although Dr. Allen never testified that he agreed with the jail’s cour se of treatm ent, neither did he testif y that he disagreed with it. French’s own experts have not concluded that a Valium detoxification protocol
20

is improper. Although they have concluded that taking a patient off Xanax cold turkey would be improper because it could lead to withdrawal symptoms, at least one of French’s experts testified that a better policy would be “forthe local jails in Kentucky to taper of these medicines if a patient has been on them on a long-term basis to avoid unnecessary pain and suffering or life-threatening events.” (DN 25, Ex.3.) That appears to be what happened here. According to Dr. Troost, Valium is the equivalent of Xa nax. (Troost Dep. 22:1-3.) He also testified that the jail’s detoxif ication protocol should have taken care of any withdarwal symptoms being suffered by French. (Id.20:1825.) Whether a Valium detoxification protocol is improper is “a factual question outside the lay understanding of jurors.” Rigney v. Marcum, No. 06-187-REW, 2007 WL 2979931, at *10 (E.D. Ky. Oct. 11, 2007). Under such circum stances, which extends to the § 1983 context, “the law requires expert testimony.” Id. (citing Alberson v. Norris, 458 F.3d 762, 765-66 (8th Cir. 2006)). Here there is none to establish that the jail’s dteoxification protocol was improper. Because French has failed to show that the Valium detoxification protocol was unreasonable nor tha t Byrd disregarded a known or obvious consequence of enacting this protocol, Byrd could not have been deliberately indifferent even if she had enacted thispolicy. This conclusion is consistent with other court’s that have addressed jail detoxification protocols. See id. at *14; Burdette v. Butte County, 121 F. App’x 701, 702-03 (9th Cir. 2005) (finding that a decision to taper inmate of Xanax was not deliberately indifferent); Chatham v. Adcock, No. 3:05-CV-0127-JTC, 2007 WL 2904117, at **1920 (N.D. Ga. Sept. 28, 2007); McNamara v. Lantz, No.3:06-CV-93 (PCD) , 2008 WL 4277790, at **13-14 (D. Conn. Sept. 16, 2008) (concluding that a jail’s methadone detoxification program was not unconstitutional). The decision to place Frenchon a Valium detoxification protocol appears at most to be a disagreem ent over the proper cours e of m edical treatment. Such allegations are
21

insufficient to state a c laim under § 1983. In so concluding, the Court m akes no opinion as to

whether, under other circumstances, a plaintiff could establish that a Valiumdetoxification protocol

is unconstitutional. Based on the facts of this case, however, th ere is insuf ficient evidence to

establish that the protocol, as applied to French, was unconstitutional and therefore summary

judgment is warranted.

b. Osborne

Osborne is not liable in his individual or supervisory capacity for sim

ilar reasons.

Specifically, French has failed to show an underlying constitutional deprivation as it relates both to

his treatment for pain and the Valium detoxification protocol. Even if the re were an underlying

constitutional deprivation, French has failed to show how Osborne, in his individual capac ity, is

responsible for that deprivation where there is no evidence that he created or enforced these alleged

policies or that he knowingly acqui esced in the enforcem ent of the policies. In his deposition,

Osborne was asked:

Q. Let me back you up. You said something there that I didn’t quite understand. You would agree with the no narcotics policy or you couldn’t?

A. No. I meant if a doctor established an absolutely no narcotic policy, I would expect to be consulted first and him to ask me if I did or did not approve.

Q. Have you ever been consulted on something like that?

A. I have never had a doctor come to me and say, can we be all non-narcotic, no.

Q. Have you ever had any nurses in the jail come to you or indicate to you that they were operating pursuant to what they understood to be a no narcoti cs policy?

A. No. All the nurses were very clear that narcotics were acceptable if they were absolutely required.

(Osborne Dep. 26:19-27:12, Mar . 20, 2008.) Osborne also testified that he leaves the details of

22

treatment “pretty much to the nursing staff and to the doctor at the jail.” (Id.30:7-10.) He testified
that “I’m aware of what is suppose to take pl ace, but as far as doing the job, obviously with 700
inmates there’s no way in the wo rld I could go back there and personally do it. I do leave it to
them.” (Id. 30:10-13.) Osborne’s testimony is consistent with the testimony of current and prior
medical professionals at the jail. For exam ple, Dr. Byrd, who was the jail’s doctor from 2003 to
2006, was asked about whether the jail directed him to deny narcotic medicines to inmates:
Q. Your practice with regard to narcotics was already, before you started with the jail, it was already in writing and was at the jail; is that correct?
A. I don’t know. I don’t know if it was in writing or not. In other words, the protocols that I saw made no m ention of how you would treat certain conditions. As far as I know, there wasno policy pertaining to or that would state no narcotics in the jail.
Q. There was no policy of that nature that you’re aware of?
A. None that I was aware of.
Q. Am I correct then that in terms of how the jail would deal with narcotics within inmates, that was your decision and your choice?
A. For the patients I saw, yes, sir.
(Dr. Byrd Dep. 11:14-12:5.) Defendant Byrd likewise testified that Osborne never told her about
any jail policies, procedures, customs, or practices. (Carol Byrd Dep. 24:22-24.) Additionally,
Chapman testified:
Q. Have you ever heard anybody s ay that inmates were not supposed to get narcotic medication in the jail?
A. No.
Q. Did you ever have any discussions with Jailer Osborne or any other member of the jail staff as to what medications you could or could not prescribe to inmates?
23

A. No. Q. They left that totally to you? A. Yes. (Chapman Dep. 13:1-11.) French has failed to present any evidence to the contrary. Here, there is no evidence that Osborne “par ticipated either directly or indirectly in the particular decision” that allegedly caused a constitutional injury to French. To impose liability on Osborne under such circum stances would be to do so “solely by virtue of his supervisor status, which is not permitted under § 1983.” Turner v. City of Taylor, 412 F.3d 629, 646 (6th Cir. 2005) (citing Bellamy v. Bradley, 721 F.2d 416, 421 (6th Cir. 1984)). It appears that Osborne delegated medical decisions to medical professionals. In the Sxi th Circuit, at least, “[s]upervisory officials are entitled to rely on medical judgments made by medical professionals responsible for prisoner care.” Ronayne v. Ficano, 173 F.3d 856 (table), 1999 WL 183479, at *3(6th Cir. 1999); Grahamv. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004). Therefore, sum mary judgment in fa vor of Osborne, in his individual capacity, is appropriate.
2. Municipal and Official Capacity Claims French has also brought § 1983 claim against Daviess County and against Osborne, Byrd, and Chapman in their official capacities. A § 1983claim against a local government official in his or her official capacity is actually a claim against the local government itself. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing W ill v. Mich. Dept. of State Police , 491 U.S. 58, 68 (1989)). Therefore, the Court will treat each of th ese official capacity cla ims as claims against Daviess County. To determine whether a municipality is liable for a § 1983 violation, the Court must analyze two distinct issues: “(1) whethe r plaintiff’s harm was caused by a constitutional
24

violation, and (2) if so, whether the city is responsible for that violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992) (citation om itted). Under § 1983, a m unicipality is not vicariously liable for the unconstitutional acts of its agents. Id. at 122. Nor can a municipality be liable if an employee applies an otherwise constitutional custom or policy in an unconstitutional manner. City of Canton, Ohio v. Harri,s489 U.S. 378, 387 (1989). Insetad, a municipality can only be “liable when it can be fairly said that the city itself is the wrongdoer.” Id. Only when the injury inflicted is caused by the “execution of a governm ent's policy or custom , whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy,” will a municipal entity be considered a wrongdoerunder § 1983. Monell v. Dept. of Soc. Servs,.436 U.S. 658, 694 (1978).
French’s claim against Daviess County fails because, as discussed above, French has failed to show that a state actor violated French’s constitutional rights. Unl ess there is an underlying constitutional deprivation, a m unicipality cannot be liable even if it has a policy of deliberate indifference. See Claybrook v. Birchwell, 199 F.3d 350, 361 (6th Cir. 2000) (unless a state actor inflicts a constitutional deprivation upon the plain tiff, a municipality cannot be liable even if a county policy authorized unconstitutional conduct)(quoting City of Los Angeles v. Helle,r475 U.S. 796, 799 (1986) (“‘If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departm ental regulations might have authorized the use of unconstitutionally excessive f orce is quite beside the point.’”). Furtherm ore, a m unicipality, pursuant to Monell , can only be lia ble if its policy or custom was the m oving force behind a plaintiff’s constitutional injury. Searcy v. City ofDayton, 38 F.3d 282, 287 (6th Cir. 1994). “‘[T]o satisfy the Monell requirements a plaintiff must ‘identify the policy, connect the policy to the city
25

itself and show that the particular injury was incurredbecause of the execution of that policy.’” Id. (emphasis added) (quoting Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993)). Here, French has failed to show that any jail personnel deprived French of narcotic pa in medication because of an alleged no-narcotics policy. Furthermore, French has failed to show that placing him on a Valium detoxification protocol was the result of deliberate indifference on the par t of jail personnel. Accordingly, summary judgment in favor of Daviess County is appropriate.
IV. CONCLUSION Chapman, in his individual capacity, has notmoved for summary judgment on the merits of French’s § 1983 claim against him. Because the Court expects such a motion to follow, the Court will reserve ruling upon the defendants’ motions for summary judgment as to French’s state law claims until that time. Accordingly, IT IS HEREBY ORDERED as follows: 1. The motion by defendants, Daviess Count y, Kentucky and David Osborne in hi s individual and offi cial capacities, for sum mary judgment [DN 78] is GRANTED in part and RESERVED in part. 2. The motion by the defendant, Carol Byrd, ARNP, for summary judgment [DN 75] is GRANTED in part and RESERVED in part. 3. The motion by the defendant, William Scott Chapman, M.D., for summary judgment [DN 74] is DENIED in part and RESERVED in part. 4. The motion by the plaintiff, Billy Joseph French, for a hearing [DN 90] is DENIED.

cc: Counsel of Record 26

June 16, 2009

 
 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION

CIVIL ACTION NO: 4:07CV-105-M

BILLY JOSEPH FRENCH

PLAINTIFF

v.

DAVIESS COUNTY, KENTUCKY, et al

DEFENDANTS

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon a renewed m otion by the defendant, W illiam Scott

Chapman, M.D. (“Chapman”), for partial summary judgment [DN 109]. Also before the Court are

motions by the plaintiff, Billy Joseph French (“Frecnh”), for reconsideration [DN 110] and to certify

class [DN 79]. In a prior Memorandum Opinion [DN 108], the Court reserved ruling, in part, upon

the defendants’ motions for summary judgment [DN 74, 75, and 78]. These matters are now ripe

for decision.

I. INTRODUCTION

French’s claims arise out of allegations that the defendants were deliberately indifferent to

his serious medical needs while incarcerated at the Daviess County Detention Center. He contends

that nurses at the facility failed to dispense lawfully prescribed Lorcet and Xanax pursuant to a no-

narcotics policy. He argues that these policies were created by Byrd and Chapm an, and that

Osborne and Daviess County knowingly acquiesced in the enforcement of the policy. In its prior

order, this Court found that French failed to show that he was deprived of a right secured by the

constitution–an essential element to a claim arising under 42 U.S.C. § 1983. Summary judgment

upon French’s § 1983 claim was entered in favor of Byrd, Osborne, and Daviess County.1 Relying upon this finding, Chapman has moved for partial summary judgment. In response, French requests that the Court reconsider its prior order. Unle ss the Court grants French’s m otion to reconsider, summary judgment in favor of Chapman is appropriate. See Hayden v. Rhode Island, 13 F. App’x 301, 302 (6th Cir. 2001) (except in extraordinary circumstances, “findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation.”).
II. RECONSIDERATION The Sixth Circuit recognizes that a districtcourt may reconsider an interlocutory order2 both under the common law and Federal Rule of Civil Procedure 54(b). Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. Feb. 6, 2004). “Traditionally, courts will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) aneed to correct a clear error or prevent manifest injustice.” Id.(citing Reich v. Hall Holding Co,.990 F. Supp. 955, 965 (N.D. Ohio 1998)). See also United States v. Lexington-Fayette Urban County Gov’t, No. 06-386-KSF, 2008 WL 4490200, at *1 (E.D. Ky. Oct. 2, 2008); Edmonds, 2008 WL 3820432, at *2. Applying this standard, the Court finds no reason toreconsider its prior order. French raises many of the same arguments he did in response to the defendants’ motions for summary judgment and each of the concerns raised by French in his motion were addressed by t he Court in its

1

The Court reserved ruling upon theplaintiff’s state law claims pending Chapman’s renewed

motion for summary judgment.

2

There is some confusion between the parties as to the Rule under which the plaintiff brings

his motion to reconsider. As there has been no judgm ent in this matter, i.e. “a decree [or] any order from

which an appeal lies[,]” Fed. R. Civ. P. 54(a), therelief the plaintiff seeks is only available under Rule 54(b),

see Edmonds v. Rees, No. 3:06-CV-P301-H, 2008 WL 3820432, at *2 (W.D. Ky. Aug. 13, 2008) (“both Rule

59 and Rule 60 are only applicable to final orders or judgments.”) (citation omitted).

2

Memorandum Opinion. In that Memorandum Opinion, the Court found no evidence to establish that the nurses, in failing to administer narcotic pain medication to French, deliberately ignored orders of French’s physician or did so pursuant to Byrd’s no-narcotic policy. To the contrary, the nurses at the jail took steps to verify French’s medication. When the nurses contacted and requested that French’s family bring his medication to the jail,the family only brought blood pressure medication. And when the nurs es contacted French’s prim ary care physician, the physician only gave instructions regarding French’s blood thinning condition. Moreover, the Court concluded that the plaintiff failed to establish that using a Valiumdetoxification protocol to taper French off Xanax was inappropriate.3 These findings hold true even in light of the evidence presented by the plaintiff in his motion to reconsider. And although t he plaintiff disagrees with these findings, it is m ore appropriate for him to challenge those findings by way of appeal rather than by rehashing the same arguments in a motion to reconsider. See Davison v. Roadway Express, Inc,. 562 F. Supp. 2d 971, 985 (N.D. Ohio 2008) (a m otion to reconsider “is not designed to give an unhappy liti gant an opportunity to relitigate matters already decided; nor is it a substitute for appeal.”). Accordingly, the Court will deny French’s m otion to reconsider and will grant Chapm an’s motion for partial summary judgment.4

3

Under the plaintiff’s interpretation of thesummary judgment standard, the Court shouldnot

consider any testimony of the defendants or the defendants’ employees. But the Court must consider that

testimony in order to determine whether the defendants have met their burden “of identifying that portion of

the record which demonstrates the absence of a genuine issue of material fact.” See Celotex Corp. v. Catret,t

477 U.S. 317, 322 (1986). See alsoSanford v. Shea, 103 F. App’x 878, 879 n.1 (6th Cir. 2004) (“Moreover,

summary judgment would never be proper under Plaintiffs' proposed reading of Rule 56 because the district

court would always disregard all the movant’s evidence. Such a reading renders the entire rule superfluous

and we, of course, decline to adopt such a reading.”)

4

Having dispensed with the claims over which the Court has original jurisdiction, it declines

to exercise supplemental jurisdiction over the plaintiff’s additional state law claims. 28 U.S.C. § 1367(c)(3);

see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).

3

III. CONCLUSION For the reasons set forth above, IT IS HEREBY ORDERED as follows: 1. The motion by the plaintiff, Billy Joseph French, for reconsideration [DN 110] is DENIED. 2. The motion by the defendant, William Scott Chapman, for partial summary judgment [DN 109] is GRANTED. 3. The reserved portions of the defendanst’ motions for summary judgment [DN 74, 75, and 78] are GRANTED. 4. The plaintiff’s motion to certify class [DN 79] is DENIED as moot. A judgment will be entered consistent with this Memorandum Opinion and Order.

cc: Counsel of Record

August 18, 2009

4

 
 Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 1 of 8 PageID #: 1263

NOT RECOMMENDED FOR PUBLICATION File Name: 10a0276n.06
No. 09-5983
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
May 05, 2010
LEONARD GREEN, Clerk

BILLY JOSEPH FRENCH,

)

)

Plaintiff-Appellant,

)

)

v.

)

)

DAVIESS COUNTY, KENTUCKY; DAVID )

OSBORNE, Individually, and in his official )

capacity as the Daviess County Jailer; JOHN )

AND JANE DOES, NOS. 1, 2, AND 3, )

Individually and in their official capacity as )

officers and employees of the Daviess County )

Detention Center; CAROL BYRD, ARNP; )

WILLIAM SCOT CHAPMAN, MD,

)

)

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY

BEFORE: MERRITT, COLE, and COOK, Circuit Judges
MERRITT, Circuit Judge. This is a prison medical malpractice case in which the prisoner, Billy French, claims under 42 U.S.C. § 1983 that the defendants violated the Eighth Amendment Cruel and Unusual Punishment standard; namely, that the defendants were “deliberately indifferent to his serious medical needs” by purposely disregarding a known risk of harm while he was incarcerated at the Daviess County Detention Center. See Estelle v. Gamble, 429 U.S. 97, 104 (1976)(“deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’”) for the standard of care required for this Constitutional tort. More
2

Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 2 of 8 PageID #: 1264
No. 09-5983 French v. Daviess County, Kentucky, et al. specifically, he claims that the defendants, all staff of the detention center, were deliberately indifferent by placing him on a Valium detoxification protocol instead of providing him with his prescription Xanax and by denying him prescription Lorcet pills for chronic back pain. We affirm the District Court’s grant of summary judgment which we review de novo. See Hamby v. Neel, 368 F.3d 549, 556 (6th Cir. 2004). Taking the material facts in the prisoner’s favor, the primary issues are (1) whether French even had a serious medical need for the Lorcet prescription, and (2) whether the substitution of the Valium detoxification protocol for the Xanax prescription amounted to a “wanton infliction of pain.” After carefully reviewing the entire record, we find that French’s Eighth Amendment rights were not violated.
The Cruel and Unusual Punishment Clause of the Eighth Amendment guarantees federal inmates the right to adequate medical care, and the Fourteenth Amendment extends this right to inmates incarcerated by the states. Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Like all intentional torts, a claim for prison medical malpractice has two distinct elements: injury to the prisoner’s objective interest – in this case, his “serious medical needs” – and the subjective intent of jail officials, defined in this case as the “wanton infliction of pain.” To satisfy the subjective intent element, we have said that a prisoner in French’s situation must allege facts that show that the state actor “subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded the risk.” Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001).
French did not have a serious medical need for narcotic pain medication; and, consequently, we need not discuss whether the denial of Lorcet was a “wanton infliction of pain.” At no time did
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3

Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 3 of 8 PageID #: 1265
No. 09-5983 French v. Daviess County, Kentucky, et al. a physician “mandate” narcotic pain medication, such as Lorcet, for French’s treatment, and French’s need for Lorcet was not obvious to jail officials. While French had a prescription for Lorcet at the time of his incarceration, when jail nurses contacted French’s primary physician to confirm the prescription, the doctor’s office only informed the nurses as to French’s blood thinning medication. Further, the emergency room doctor who treated French for alleged seizures did not prescribe narcotic pain medication for French, despite stating that he would have if medically necessary. Likewise, Dr. Allen, a physician at the psychiatric center French was later transferred to, did not prescribe narcotic pain medication, though he stated that he would have if medically necessary. As to the obviousness of the need for Lorcet, French never completed a medical request form complaining of back pain. (District Ct. R. 110, Exhibit 8.) He did not provide jail officials at the time of his incarceration with a prescription or any other verifying documents to support his claim that he needed or had a prescription for narcotic pain medication, and he did not allege on the intake form that he was experiencing back pain. (District Ct. R. 84, Exhibit 10.) French has failed to show that he had a serious medical need for narcotic pain medication at the time of his May 2007 incarceration; and, therefore, jail officials did not deliberately disregard a known risk.
With regard to French’s claim for Xanax, French may have had a serious medical need for Xanax, or something like it, but jail officials did not wantonly inflict pain on French by placing him on a Valium detoxification protocol to wean him off of Xanax. Xanax is a highly addictive medication, which can cause serious withdrawal symptoms like seizures and delirium if discontinued abruptly. French v. Daviess County, Ky., No. 4:07CV-105-M, 2009 WL 1766928, at * 3 (W.D. Ky. June 23, 2009). French alleges that the detoxification protocol caused him to have no fewer than
-3-
4

Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 4 of 8 PageID #: 1266
No. 09-5983 French v. Daviess County, Kentucky, et al. seven seizures, although the nature, duration, or effect of the seizures is not alleged. (French Br. at 7). Courts have found withdrawal symptoms to qualify as a serious medical need. See, e.g., Mayo v. County of Albany, No. 09-1745-cv, 2009 WL 4854022, at *2 (2d Cir. Dec. 17, 2009) (heroin and alcohol withdrawal); Sylvester v. City of Newark, 120 F. App’x 419, 423 (3d Cir. 2005) (acute drug withdrawal); Foelker v. Outagamie County, 394 F.3d 510, 513 (7th Cir. 2005) (methadone withdrawal). Consequently, we will assume that French had a serious medical condition arising out of his apparently strong addiction to Xanax.
Despite French’s serious medical need for Xanax, jail officials did not have a sufficiently culpable state of mind when deciding to place him on a detoxification protocol. French’s experts have stated that removing him from Xanax “cold turkey” could have serious consequences, but no “cold turkey” action was taken here. (District Ct. R. 25, Exhibit 4.) Instead, Valium was used to gradually wean French from Xanax. Valium and Xanax are both benzodiazepines. (Chapman Br. at 7.) Courts have found Xanax detoxification protocols, using such substitutes, to be constitutional. See Chatham v. Adcock, 334 F. App’x 281, 288-89 (11th Cir. 2009); Burdette v. Butte County, 121 Fed. App’x 701, 702 (9th Cir. 2005) (prison doctor’s decision to taper an inmate off of Xanax does not qualify as deliberate indifference to a serious medical need); see also Thomas v. Webb, 39 F. App’x 255, 256 (6th Cir. 2002) (finding that jail official’s refusal to provide Xanax was not deliberately indifferent when inmate had history of substance abuse).
Further, Dr. Troost, the emergency room doctor who treated French for his seizures, stated that Valium is the equivalent of Xanax and that the jail’s detoxification program should have remedied any withdrawal symptoms. (Troost Dep. at 20); see also Burdette, 121 F. App’x at 702 (9th
-4-
5

Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 5 of 8 PageID #: 1267
No. 09-5983 French v. Daviess County, Kentucky, et al. Cir. 2005) (noting that similar tapering-off program presented only a slight statistical risk of serious side effects). Where the question is one of administering a highly addictive drug on a continuing basis in the prison setting, the prison staff should have some discretion; and we do not think that the Valium substitute meets the standard of an “unnecessary and wanton infliction of pain” under Estelle v. Gamble. “Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims that sound in state tort law.” Graham ex rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 385 (6th Cir. 2004).
In addition to claiming that jail officials were deliberately indifferent in their direct care, French has also stated a claim against them in their supervisory individual capacities for the “nonarcotics” and “no-Xanax” policies that they allegedly adopted. At least one lower court has held that summary judgment for a jail was inappropriate when the jail utilized a written, blanket policy forbidding prescribed narcotics, Estate of Clutters v. Sexton, No.1:05cv223, 2007 WL 3244437 at *10 (S.D. Ohio Nov. 2, 2007). But it is undisputed that here there is no written policy forbidding the dispensing of narcotic pain medication. French acknowledges that the jail dispensed narcotic pain medication to inmates on at least two occasions, which belies his assertion of a blanket policy. (French Br. at 4) In sum, the record indicates that French was denied his pain medication based on a reasoned, individualized medical determination.
French also alleges the existence of a “no Xanax” policy at the jail. Even if such a policy exists, French has failed to show that such a policy was unconstitutional as applied to him. The emergency room doctor who treated French following his seizures stated that French’s medical
-5-
6

Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 6 of 8 PageID #: 1268
No. 09-5983 French v. Daviess County, Kentucky, et al. records back to 2005 supported the inference of a “very abusive relationship” with drugs, specifically, benzodiazepines (e.g., Xanax). While under other circumstances a prisoner might establish that this Valium detoxification protocol is unconstitutional, the facts of this case do not support such a claim because the protocol as applied to French – given his history of drug abuse – did not give rise to a rise to a “wanton infliction of pain.” The material facts indicate that the doctors and prison staff were attempting to act in the best interests of the prisoner and did not disregard his well-being or make any significant mistake by disregarding a known risk of injury.
Finally, French brings a § 1983 claim against Daviess County and against Osborne, Byrd and Chapman in their official capacities. The claims against Osborne, Byrd and Chapman in their official capacities are equivalent to claims against Daviess County itself. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). This Court must determine under § 1983 “(1) whether plaintiff’s harm was caused by a constitutional violation, and (2) if so, whether the city is responsible for that violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). Because French did not suffer a constitutional violation, the County cannot be found liable under § 1983. Further, there is no evidence that the County was the moving force behind the alleged policies or decisions of its medical employees.
In conclusion, jail officials were not able to obtain reliable information that French needed narcotic pain medication or Xanax. Officials instead made reasoned, individualized determinations as to French’s care, such as placing him on a detoxification protocol and transporting him to the hospital. Consequently, jail officials were not deliberately indifferent to French’s serious medical needs.
-6-
7

Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 7 of 8 PageID #: 1269 No. 09-5983 French v. Daviess County, Kentucky, et al. Accordingly, the judgment of the District Court is affirmed.
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Case 4:07-cv-00105-JHM-ERG Document 126 Filed 06/01/10 Page 8 of 8 PageID #: 1270

Leonard Green Clerk
Mr. Gregory A. Belzley Law Office P.O. Box 278 Prospect, KY 40059

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988
Filed: May 05, 2010

Tel. (513) 564-7000 www.ca6.uscourts.gov

Mr. Max Steven Hartz Sr. Mr. Michael Trent Lee McCarroll, Nunley, Hartz & Lee P.O. Box 925 Owensboro, KY 42302

Mr. Joseph Charles Klausing O'Bryan, Brown & Toner 455 S. Fourth Street Suite 1500 Starks Building Louisville, KY 40202

Mr. Jeffrey D. Thompson Whonsetler & Johnson 6011 Brownsboro Park Boulevard Suite E Louisville, KY 40207

Re: Case No. 09-5983 , Billy French v. Daviess County, Kentucky, et al Originating Case No. : 07-00105

Dear Counsel: The Court issued the enclosed (Order/Opinion) today in this case.

Sincerely yours,

cc: Mr. Jeffrey A. Apperson Enclosure Mandate to issue

s/Patricia J. Elder Senior Case Manager Direct Dial No. 513-564-7034 Fax No. 513-564-7094

9

 
 Case: 4:07-cv-00105-JHM-ERG As of: 09/13/2012 01:59 PM EDT 1 of 11
CASREF,PROTOR
U.S. District Court Western District of Kentucky (Owensboro) CIVIL DOCKET FOR CASE #: 4:07−cv−00105−JHM−ERG

French v. Daviess County, Kentucky et al Assigned to: Chief Judge Joseph H. McKinley, Jr Referred to: Magistrate Judge E. Robert Goebel Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/20/2007 Date Terminated: 08/19/2009 Jury Demand: Both Nature of Suit: 555 Civil Rights (Prison Condition) Jurisdiction: Federal Question

Billy Joseph French Individually and on behalf of all others similarly situated

represented by Gregory A. Belzley P.O. Box 278 Prospect, KY 40059 502−292−2452 Fax: 502−494−6186 Email: gbelzley@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Samuel B. Carl Sam Carl, PSC 616 S. Fifth Street Louisville, KY 40202 502−583−3898 Fax: 502−589−3004 Email: sambcarl@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Daviess County, Kentucky
Defendant David Osborne Individually, and in his official capacity as the Daviess County Jailer Defendant John and Jane Does Nos. 1, 2, and 3 Individually and in their official capacity as officers and employees of the Daviess County Detention Center Defendant Carol Byrd ARNP

represented by Marvin P. Nunley McCarroll, Nunley, Hartz &Lee 115 E. Second Street Suite 300 P.O. Box 925 Owensboro, KY 42302−0925 270−683−3535 Fax: 270−926−6056 Email: kywd_ecf_deadletter@kywd.uscourts.gov ATTORNEY TO BE NOTICED
represented by Marvin P. Nunley (See above for address) ATTORNEY TO BE NOTICED
represented by Marvin P. Nunley (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey D. Thompson Whonsetler &Johnson, PLLC

Case: 4:07-cv-00105-JHM-ERG As of: 09/13/2012 01:59 PM EDT 2 of 11

11901 Brinley Avenue Louisville, KY 40243 502−895−2297 x112 Fax: 502−895−8764 Email: jthompson@whonsetler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marvin P. Nunley (See above for address) TERMINATED: 07/03/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott P. Whonsetler Whonsetler &Johnson, PLLC 11901 Brinley Avenue Louisville, KY 40243 502−895−2297 x111 Fax: 502−895−8764 Email: whonsetler@whonsetler.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
William Scott Chapman MD

represented by Joseph Charles Klausing O'Bryan, Brown &Toner PLLC 455 S. Fourth Street, Suite 1500 Louisville, KY 40202 502−585−4700 Fax: 502−585−4703 Email: klausingj@obtlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brent T. Asseff O'Bryan, Brown &Toner PLLC 455 S. Fourth Street, Suite 1500 Louisville, KY 40202 502−585−4700 Fax: 502−585−4703 Email: asseffb@obtlaw.com ATTORNEY TO BE NOTICED

Date Filed 08/20/2007
08/20/2007 08/20/2007 08/21/2007 08/24/2007

# Docket Text
1 CLASS ACTION COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF against Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3 Filing fee $ 350, receipt number 583830., filed by Billy Joseph French. (Attachments: # 1 Cover Sheet # 2 Summons to Daviess Co KY# 3 Summons To David Osborne) (PRM) (Entered: 08/21/2007)
2 Case Assignment (Random Selection): Case Assigned to Joseph H. McKinley, Jr.. (PRM) (Entered: 08/21/2007)
4 Summons Issued as to Daviess County, Kentucky, David Osborne. (JBM) (Entered: 08/21/2007)
3 ORDER [eboc] by Joseph H. McKinley Jr. on 8/21/07; Referring Case to Magistrate Judge E. Robert Goebel for determination of nondispositive matters. cc:Counsel (PRM) (Entered: 08/21/2007)
5 SUMMONS Returned Executed by Billy Joseph French. David Osborne served on 8/22/2007, answer due 9/11/2007. (Belzley, Gregory) (Entered: 08/24/2007)

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08/24/2007 09/13/2007 09/25/2007 10/02/2007 10/03/2007 10/11/2007 10/23/2007
11/13/2007
11/28/2007 01/11/2008 01/11/2008 01/17/2008 02/18/2008 02/26/2008
02/28/2008

6 SUMMONS Returned Executed by Billy Joseph French. Daviess County, Kentucky served on 8/22/2007, answer due 9/11/2007. (Belzley, Gregory) (Entered: 08/24/2007)
7 ANSWER to Complaint by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 09/13/2007)
8 ORDER by Judge Joseph H. McKinley Jr.(EBOC) on 09/24/2007; Scheduling Conference set for 11/6/2007 11:00 AM in Teleconference before Magistrate Judge E. Robert Goebel. Rule 26 Meeting Report due by 10/30/2007. cc:Counsel, Case Mgr−Secy ERG (CSD) (Entered: 09/25/2007)
9 REPORT of Rule 26(f) Planning Meeting by Billy Joseph French, Daviess County, Kentucky, David Osborne. (Belzley, Gregory) (Entered: 10/02/2007)
10 ORDER by Magistrate Judge E. Robert Goebel on 10/3/07; Telephonic Scheduling Conference reset for 11/7/2007 at 11:00 AM before Magistrate Judge E. Robert Goebel. cc:Counsel, KL, PH (JBM) (Entered: 10/03/2007)
11 Proposed Agreed Order/Stipulation for Production of KCPC Records. by Billy Joseph French and Daviess County, Kentucky. (Belzley, Gregory) (Entered: 10/11/2007)
12 AGREED ORDER by Magistrate Judge E. Robert Goebel on 10/21/2007; ORDERED that Kentucky Correctional Psychiatric Center release to counsel for Plaintiff, Gregory A. Belzley, a complete copy of all documents in its files concerning Plaintiff, Billy Joseph French. cc: Counsel (CDF) (Entered: 10/23/2007)
13 SCHEDULING ORDER for proceedings held before Magistrate Judge E. Robert Goebel: Telephonic Scheduling Conference held on 11/13/2007. Motions to Amend Pleadings due by 3/3/2008; Daubert Motion due by 6/2/2008; Discovery due by 5/1/2008; Dispositive Motions due by 6/2/2008; Expert Witness (Defendant) due by 4/1/2008; Expert Witness (Plaintiff) due by 3/3/2008; Motions to Join Additional Parties due by 3/3/2008; Telephone Conference set for 5/6/2008 at 10:30 AM before Magistrate Judge E. Robert Goebel. cc:Counsel, PH, KL (JBM) (Entered: 11/13/2007)
14 MOTION for Leave to File First Amended Complaint by Plaintiff Billy Joseph French Responses due by 12/17/2007 (Attachments: # 1 Exhibit First Amended Complaint, # 2 Proposed Order) (Belzley, Gregory) (Entered: 11/28/2007)
15 ORDER granting 14 Motion for Leave to File Amended Complaint. Signed by Magistrate Judge E. Robert Goebel on 1/10/08. cc:counsel, PH (JBM) (Entered: 01/11/2008)
16 AMENDED COMPLAINT with Jury Demand against Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3, filed by Billy Joseph French. (JBM) (Entered: 01/11/2008)
17 ANSWER to 16 Amended Complaint by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 01/17/2008)
18 Proposed Agreed Order/Stipulation for Extension of Pre−Trial Deadlines by Billy Joseph French. (Belzley, Gregory) (Entered: 02/18/2008)
19 AGREED ORDER by Magistrate Judge E. Robert Goebel on 2/26/08; Motions to Amend Pleadings due by 4/1/2008. Expert Witness (Plaintiff) due by 4/1/2008. Motions to Join Additional Parties due by 4/1/2008. Expert Witness (Defendant) due by 5/1/2008. Discovery due by 6/2/2008. Dispositive Motions due by 6/2/2008. Telephone Conference reset for 6/6/2008 at 9:00 AM before Magistrate Judge E. Robert Goebel.cc:counsel, KL, PH (JBM) (Entered: 02/26/2008)
20 ORDER by Magistrate Judge E. Robert Goebel on 2/27/08; Telephone Conference reset for 6/30/2008 at 10:30 AM before Magistrate Judge E. Robert Goebel.cc:counsel, PH, KL (JBM) (Entered: 02/28/2008)

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03/24/2008 03/26/2008
04/25/2008
04/25/2008 04/29/2008
05/02/2008
05/09/2008 05/09/2008 05/13/2008 05/23/2008
05/29/2008 05/30/2008 05/30/2008
06/02/2008 06/02/2008 06/02/2008
06/02/2008

21 Proposed Agreed Order/Stipulation Extending Deadlines for Experts and Setting Deadline for Motion for Class Certification by the parties. (Belzley, Gregory) Modified filers on 3/24/2008 (JBM). (Entered: 03/24/2008)
22 AGREED ORDER by Magistrate Judge E. Robert Goebel on 3/25/08; Motions to Amend Pleadings due by 5/1/2008. Expert Witness (Plaintiff) due by 5/1/2008. Motions to Join Additional Parties due by 5/1/2008. Expert Witness (Defendant) due by 6/2/2008. Plaintiff shall file motion for class certification by 7/1/2008, if warranted.cc:counsel, PH (JBM) (Entered: 03/26/2008)
23 MOTION for Leave to File Second Amended Complaint by Plaintiff Billy Joseph French Responses due by 5/13/2008 (Attachments: # 1 Exhibit Second Amended Complaint, # 2 Summons for Carol Byrd, # 3 Summons for William Scott Chapman, M.D., # 4 Proposed Order) (Belzley, Gregory) (Entered: 04/25/2008)
24 Proposed Agreed Order/Stipulation by the parties. (Belzley, Gregory) (Entered: 04/25/2008)
25 Expert Witness Disclosure by Billy Joseph French. (Attachments: # 1 Exhibit 1, Eugene Miller Report, # 2 Exhibit 2, Part 1, John Clark Report, # 3 Exhibit 2, John Clark Curriculum Vitae, # 4 Exhibit 3, Gerald Rightmyer Report, # 5 Exhibit 4, John Gergen Report) (Belzley, Gregory) (Entered: 04/29/2008)
26 AGREED ORDER by Magistrate Judge E. Robert Goebel on 5/2/08; Pretrial deadlines for discovery and dispositive motions are abated pending ruling on Plaintiff's anticipated motion for class certification.cc:counsel, PH (JBM) (Entered: 05/02/2008)
27 Proposed Agreed Order/Stipulation extending defendants' expert disclosure deadlline by Billy Joseph French, Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 05/09/2008)
28 MOTION to Compel Production of Inmate Documents by Plaintiff Billy Joseph French Responses due by 5/27/2008 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 05/09/2008)
29 AGREED ORDER by Magistrate Judge E. Robert Goebel on 5/12/08; Expert Witness (Defendant) due by 8/1/2008.cc:counsel, PH (JBM) (Entered: 05/13/2008)
30 RESPONSE to Motion re 28 MOTION to Compel Production of Inmate Documents filed by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. Replies due by 6/6/2008. (Attachments: # 1 Exhibit Affidavit of Joni Clark, # 2 Exhibit Transcript of Dr. Robert Byrd, # 3 Proposed Order) (Nunley, Marvin) (Entered: 05/23/2008)
31 REPLY to Response to Motion re 28 MOTION to Compel Production of Inmate Documents filed by Billy Joseph French. (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 05/29/2008)
32 ORDER signed by Magistrate Judge E. Robert Goebel on 5/29/2008 granting 23 Motion for Leave to file Second Amended Complaint. cc: Counsel, Secretary to ERG (CDF) (Entered: 05/30/2008)
33 SECOND AMENDED COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF against Daviess County, Kentucky; David Osborne; John and Jane Does, Nos. 1, 2, and 3; Carol Byrd, ARNP; William Scott Chapman, MD, filed by Billy Joseph French. (CDF) (Entered: 05/30/2008)
34 Summons Issued as to William Scott Chapman. (JBM) (Entered: 06/02/2008)
35 Summons Issued as to Carol Byrd. (JBM) (Entered: 06/02/2008)
36 ORDER by Magistrate Judge E. Robert Goebel on 5/30/08;Defendant's shall submit a supplemental memorandum responding to Plaintiff's proposal to further limit the scope of the document request. Supplemental memorandum due by 6/10/2008.cc:counsel, PH (JBM) (Entered: 06/02/2008)
37 ORDER by Magistrate Judge E. Robert Goebel on 6/2/08; Defendant's shall submit a supplemental memorandum responding to plaintiff's proposal to further limit the

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06/06/2008 06/06/2008 06/09/2008 06/11/2008 06/13/2008
06/19/2008 06/24/2008 06/24/2008 06/24/2008 06/30/2008 07/01/2008 07/01/2008 07/02/2008
07/02/2008
07/03/2008

scope of the document request. Supplemental memorandum due by 6/17/2008.cc:counsel, PH (JBM) (Entered: 06/02/2008)
38 SUMMONS Returned Executed by Billy Joseph French. Carol Byrd served on 6/5/2008, answer due 6/25/2008. (Belzley, Gregory) (Entered: 06/06/2008)
39 SUMMONS Returned Executed by Billy Joseph French. William Scott Chapman served on 6/4/2008, answer due 6/24/2008. (Belzley, Gregory) (Entered: 06/06/2008)
40 NOTICE of Appearance by Joseph Charles Klausing on behalf of William Scott Chapman (Klausing, Joseph) (Entered: 06/09/2008)
41 ANSWER to 33 Amended Complaint (Second) by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 06/11/2008)
42 RESPONSE to Motion re 28 MOTION to Compel Production of Inmate Documents (supplemental requested by Judge Goebel) filed by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. Replies due by 6/27/2008. (Attachments: # 1 Exhibit French's DCDC inmate medical form) (Nunley, Marvin) (Entered: 06/13/2008)
43 MOTION for More Definite Statement by Defendant William Scott Chapman Responses due by 7/7/2008 (Attachments: # 1 Proposed Order) (Klausing, Joseph) (Entered: 06/19/2008)
44 ANSWER to 33 Amended Complaint (Second) by Carol Byrd. (Nunley, Marvin) (Entered: 06/24/2008)
45 MOTION to Vacate Deadline for Motion for Class Certification by Plaintiff Billy Joseph French Responses due by 7/14/2008 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 06/24/2008)
46 Amended ANSWER to 33 Amended Complaint (Second) by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 06/24/2008)
47 RESPONSE to Motion re 43 MOTION for More Definite Statement filed by Billy Joseph French. Replies due by 7/14/2008. (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 06/30/2008)
48 NOTICE of Appearance by Scott P. Whonsetler and Jeffrey D. Thompson on behalf of Carol Byrd (Whonsetler, Scott) Modified text on 7/2/2008 (CDF). (Entered: 07/01/2008)
49 MOTION to Withdraw as Attorney by Defendant Carol Byrd Responses due by 7/21/2008 (Attachments: # 1 Proposed Order) (Nunley, Marvin) (Entered: 07/01/2008)
50 ORDER by Magistrate Judge E. Robert Goebel on 6/30/2008 granting 45 Motion to Vacate deadline for motion for class certification; the 7/1/08 deadline for plaintiff to file motion for class certification is remanded from court's docket; telephonic status conference shall be rescheduled in the order ruling upon plaintiff's motion to compel production of inmate documents. cc:counsel, Pat Harralson (TLB) (Entered: 07/02/2008)
51 ORDER by Magistrate Judge E. Robert Goebel on 7/1/2008 denying as moot 28 Motion to Compel production of inmate documents. IT IS FURTHER ORDERED that counsel for the parties shall confer for the purpose of setting a date and time for Plaintiff to review the inmate files that fall within the scope of Plaintiff's modified document requests. Telephonic Status Conference set for 8/4/2008 11:00 AM CDT before Magistrate Judge E. Robert Goebel. cc: Counsel, Secretary to ERG (CDF) (Entered: 07/02/2008)
52 ORDER by Magistrate Judge E. Robert Goebel on 7/3/2008 granting 49 Motion to Withdraw as Attorney. IT IS HEREBY ORDERED that Marvin P. Nunley be permitted to withdraw as counsel for Carol Byrd, ARNP. cc: Counsel, Secretary to ERG (CDF) (Entered: 07/03/2008)

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07/16/2008 07/24/2008 07/31/2008 08/04/2008
08/05/2008
08/05/2008 08/29/2008 09/05/2008 09/09/2008
09/30/2008 09/30/2008 10/08/2008 10/08/2008 10/17/2008 11/14/2008 11/14/2008 11/17/2008
12/12/2008

53 ORDER by Magistrate Judge E. Robert Goebel on 7/16/08; Telephone Conference reset for 8/4/2008 at 10:00 AM before Magistrate Judge E. Robert Goebel.cc:counsel, KL, PH (JBM) (Entered: 07/16/2008)
54 ORDER denying 43 Motion for More Definite Statement. Signed by Magistrate Judge E. Robert Goebel on 7/23/08. cc:counsel, PH (JBM) (Entered: 07/24/2008)
55 ANSWER to 33 Amended Complaint (Second Amended Class Action Complaint) by William Scott Chapman. (Klausing, Joseph) (Entered: 07/31/2008)
56 Proposed Agreed Order/Stipulation regarding production of inmate records by Carol Byrd, William Scott Chapman, Billy Joseph French, Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 08/04/2008)
57 ORDER for proceedings held before Magistrate Judge E. Robert Goebel: Telephone Conference held on 8/4/2008. Rule 26 Meeting Report due by 8/29/2008. Telephonic Scheduling Conference set for 9/5/2008 at 10:30 AM before Magistrate Judge E. Robert Goebel. cc:counsel, KL, PH (JBM) (Entered: 08/05/2008)
58 AGREED PROTECTIVE ORDER by Magistrate Judge E. Robert Goebel on 8/4/08 cc:counsel, PH (JBM) (Entered: 08/05/2008)
59 REPORT of Rule 26(f) Planning Meeting by Carol Byrd. (Whonsetler, Scott) (Entered: 08/29/2008)
60 ORDER by Magistrate Judge E. Robert Goebel on 9/4/08; Telephonic Scheduling Conference reset for 9/8/2008 at 1:15 PM before Magistrate Judge E. Robert Goebel.cc:counsel, PH, KL (JBM) (Entered: 09/05/2008)
61 ORDER for proceedings held before Magistrate Judge E. Robert Goebel: Telephonic Scheduling Conference held on 9/8/2008. Discovery due by 12/31/2008. Rule 26(a)(1) Disclosure due by 9/30/2008; Plaintiff's shall file motions or other documents with the Court on the issue of Class Certification by 2/2/09; Telephone Conference set for 1/6/2009 at 9:00 AM before Magistrate Judge E. Robert Goebel. cc:counsel, KL, PH (JBM) (Entered: 09/09/2008)
62 RULE 26 INITIAL DISCLOSURE STATEMENT by Carol Byrd. (Attachments: # 1 Exhibit Declaration Page) (Whonsetler, Scott) (Entered: 09/30/2008)
63 RULE 26 INITIAL DISCLOSURE STATEMENT by William Scott Chapman. (Klausing, Joseph) (Entered: 09/30/2008)
64 NOTICE to Take Deposition of Billy Joe French by Carol Byrd. (Whonsetler, Scott) (Entered: 10/08/2008)
65 NOTICE to Take Deposition of Nurse Vicki Isom by Carol Byrd. (Whonsetler, Scott) (Entered: 10/08/2008)
66 NOTICE to Take Deposition of Nurse Vicki Isom by Carol Byrd. (Whonsetler, Scott) (Entered: 10/17/2008)
67 MOTION to Amend/Correct Answer by Defendant Carol Byrd Responses due by 12/2/2008 (Attachments: # 1 Proposed Order Granting Amended Answer) (Whonsetler, Scott) (Entered: 11/14/2008)
68 Amended ANSWER to 33 Amended Complaint by Carol Byrd. (Whonsetler, Scott) (Entered: 11/14/2008)
69 MOTION to Amend/Correct Answer to Complaint by Defendant Carol Byrd Responses due by 12/5/2008 (Attachments: # 1 Proposed Order granting motion to amend answer to complaint, # 2 Exhibit Amended Answer to Complaint) (Whonsetler, Scott) (Entered: 11/17/2008)
70 RESPONSE to Discovery Request from plaintiff by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 12/12/2008)

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12/29/2008 12/29/2008 01/07/2009 01/21/2009 01/23/2009 02/02/2009 02/04/2009 02/06/2009
02/09/2009
02/09/2009 02/09/2009
02/09/2009

71 ORDER by Magistrate Judge E. Robert Goebel on 12/24/2008 granting 67 69 Carol Byrd's Motions to Amend Answer. cc: Counsel, PH (CDF) (Entered: 12/29/2008)
72 AMENDED ANSWER to 33 Amended Complaint by Carol Byrd. (CDF) (Entered: 12/29/2008)
73 REPORT for proceedings held before Magistrate Judge E. Robert Goebel: Telephonic Status Conference held on 1/6/2009. The Courtroom deputy will monitor Judge McKinley's ruling on the motion for class certification and schedule this matter for a status conference thereafter. cc:counsel, PH (JBM) (Entered: 01/07/2009)
74 MOTION for Summary Judgment by Defendant William Scott Chapman Responses due by 2/9/2009 (Attachments: # 1 Proposed Order, # 2 Memorandum in Support, # 3 Exhibit A, # 4 Exhibit B) (Klausing, Joseph) (Entered: 01/21/2009)
75 MOTION for Summary Judgment by Defendant Carol Byrd Responses due by 2/10/2009 (Attachments: # 1 Memorandum in Support of Motion for Summary Judgment, # 2 Proposed Order granting Summary Judgment) (Thompson, Jeffrey) (Additional attachment(s) added on 3/24/2009: # 3 Carol Byrd Depo, # 4 Billy French Depo 11/10/08, # 5 Billy French Depo 1/16/08, # 6 Dr. Neil Troost Depo, # 7 Vicki Osom Depo, # 8 David Osborne Depo) (KJS). (Entered: 01/23/2009)
76 Proposed Agreed Order/Stipulation by Carol Byrd, William Scott Chapman, Billy Joseph French, Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Belzley, Gregory) (Entered: 02/02/2009)
77 AGREED ORDER by Magistrate Judge E. Robert Goebel on 2/3/09 re: 75 Defendant's MOTION for Summary Judgment, 74 Defendant's MOTION for Summary Judgment: Plaintiff's Response time extended to 2/16/2009; Deadline for Plaintiff's motion for class certification is extended to 2/9/2009. cc:counsel, PH (JBM) (Entered: 02/04/2009)
78 MOTION for Summary Judgment by Defendants Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3 Responses due by 2/24/2009 (Attachments: # 1 Memorandum in Support, # 2 Exhibit A − David Osborne deposition testimony, # 3 Exhibit B − Dr. Robert Byrd deposition testimony, # 4 Exhibit C − Carol Byrd deposition testimony, # 5 Exhibit D − Dr. William Scott Chapman deposition testimony, # 6 Exhibit E − Dr. Neil Troost deposition testimony, # 7 Exhibit F − Vicki Isom 1/16/08 deposition testimony, # 8 Proposed Order) (Nunley, Marvin) (Entered: 02/06/2009)
79 MOTION to Certify Class by Plaintiff Billy Joseph French Responses due by 2/27/2009 (Attachments: # 1 Proposed Order, # 2 Memorandum in Support, # 3 Exhibit A, Vicki Isom 1/16/08 Depo Excerpts, # 4 Exhibit B, Carol Byrd Depo Excerpts, # 5 Exhibit C, Valium Protocol, # 6 Exhibit D, Vicki Isom 11/11/08 Depo Excerpts, # 7 Exhibit E, William Chapman Depo Excerpts, # 8 Exhibit F, Billy French Intake Sheet, # 9 Exhibit G, Inmate Medical Form, # 10 Exhibit H, Billy French Depo Excerpts, # 11 Exhibit I, Inmate Prescription History, # 12 Exhibit J, Physician's Orders, # 13 Exhibit K, Inmate Incident History, # 14 Exhibit L, Progress Notes, # 15 Exhibit N, Memorandum Opinion and Order) (Belzley, Gregory) (Entered: 02/09/2009)
80 MOTION to Seal Document 79 MOTION to Certify Class by Plaintiff Billy Joseph French Responses due by 2/27/2009 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 02/09/2009)
81 MOTION for Leave to File Exhibits to Motion for Summary Judgment by Defendant Carol Byrd Responses due by 2/27/2009 (Attachments: # 1 Exhibit Carol Byrd Depo, # 2 Exhibit Billy French 11−10−08 Depo, # 3 Exhibit Billy French 1−16−08 Depo, # 4 Exhibit Dr Neil Troost Depo, # 5 Exhibit Vicki Osom Depo, # 6 Exhibit David Osborne Depo, # 7 Proposed Order For leave to file exhibits to Motion for Summary Judgment) (Thompson, Jeffrey) (Entered: 02/09/2009)
82 RESPONSE to Motion re 74 MOTION for Summary Judgment by Defendant Chapman filed by Billy Joseph French. Replies due by 2/23/2009. (Attachments: #

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02/10/2009 02/11/2009
02/11/2009 02/13/2009 02/18/2009 02/18/2009 02/20/2009
02/20/2009 02/20/2009

1 Exhibit Skinner v. Beemer, # 2 Proposed Order) (Belzley, Gregory) (Entered: 02/09/2009)
83 Sealed Document re 80 Motion to Seal Document, 79 Motion to Certify Class. NOTICE: The original paper document will be shredded 60 days after the filed date. Filed by Billy Joseph French. (JBMS) (Entered: 02/11/2009)
84 RESPONSE to Motion re 75 MOTION for Summary Judgment filed by Billy Joseph French. Replies due by 2/25/2009. (Attachments: # 1 Exhibit 1, Skinner v. Beemer, # 2 Exhibit 2, Vicki Isom Jan. 16, 2008 Depo Excerpts, # 3 Exhibit 3, Vicki Isom Nov. 11, 2008 Depo Excerpts, # 4 Exhibit 4, Physicians Orders, # 5 Exhibit 5, Carol Byrd Depo Excerpts, # 6 Exhibit 6, Dr. Knight Note, # 7 Exhibit 7, Dr. Knight Depo Excerpts, # 8 Exhibit 8, Dr. Rightmyer Ltr, # 9 Exhibit 9, Billy French Depo Excerpts, # 10 Exhibit 10, Inmate Intake Form, # 11 Exhibit 11, Inmate Prescription History, # 12 Exhibit 12, Dr. Gergen Ltr, # 13 Exhibit 13, Record of Seizures, # 14 Exhibit Exh. 14, Progress Notes, # 15 Exhibit 15, Dr. Troost Depo Excerpts, # 16 Exhibit 16, KCPC Records, # 17 Proposed Order) (Belzley, Gregory) (Entered: 02/11/2009)
85 MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Certify Class by Defendants Carol Byrd, William Scott Chapman, Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3 Responses due by 2/23/2009 (Attachments: # 1 Proposed Order) (Nunley, Marvin) (Entered: 02/11/2009)
86 RESPONSE to Motion re 85 MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Certify Class MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Certify Class, 79 MOTION to Certify Class filed by Billy Joseph French. Replies due by 2/27/2009. (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 02/13/2009)
87 REPLY TO RESPONSE TO MOTION re 75 motion for summary judgment filed by Carol Byrd. (Attachments: # 1 Exhibit Vicki Isom depo − Jan 2008, # 2 Exhibit Vicki Isom Depo − Nov. 2008, # 3 Exhibit Carol Byrd Depo, # 4 Exhibit Dr Neil Troost Depo, # 5 Exhibit Admitting Report, KCPC, # 6 Exhibit Dr Robert Byrd depo, # 7 Exhibit Plaintiff's Discovery Response, # 8 Exhibit Billy French Depo − Nov. 2008, # 9 Exhibit Dr Robert Knight Depo, # 10 Exhibit David Osborne Depo) (Thompson, Jeffrey) Modified text/link on 2/18/2009 (Mayfield, Jason). (Entered: 02/18/2009)
88 REPLY to Response to Motion re 85 MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Certify Class MOTION for Extension of Time to File Response/Reply as to 79 MOTION to Certify Class filed by Carol Byrd, William Scott Chapman, Daviess County, Kentucky, David Osborne. (Thompson, Jeffrey) (Entered: 02/18/2009)
89 RESPONSE to Motion re 78 MOTION for Summary Judgment filed by Billy Joseph French. Replies due by 3/6/2009. (Attachments: # 1 Exhibit 1, Vicki Isom Jan. 16, 2008 Depo, # 2 Exhibit 2, Vicki Isom Nov. 11, 2008 Depo, # 3 Exhibit 3, Physicians Orders, # 4 Exhibit 4, Carol Byrd's Depo, # 5 Exhibit 5, Victor Stephens Depo, # 6 Exhibit 6, Dr. Chapman Depo, # 7 Exhibit 7, Dr. Knight Note, # 8 Exhibit 8, Dr. Knight Depo, # 9 Exhibit 9, Dr. Rightmyer Ltr, # 10 Exhibit 10, Billy French Depo, # 11 Exhibit 11, Billy French Inmate Medical Form, # 12 Exhibit 12, Billy French Inmate Prescription History, # 13 Exhibit 13, Dr. Gergen Ltr, # 14 Exhibit 14, Billy French Inmate Incident History, # 15 Exhibit 15, Billy French Progress Notes, # 16 Exhibit 16, Dr. Troost Depo, # 17 Exhibit 17, Louis Haire Depo, # 18 Exhibit 18, David Osborne Depo, # 19 Proposed Order) (Belzley, Gregory) (Entered: 02/20/2009)
90 MOTION for Hearing by Plaintiff Billy Joseph French Responses due by 3/10/2009 (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 02/20/2009)
91 RESPONSE to Motion re 90 MOTION for Hearing filed by Daviess County, Kentucky, David Osborne. Replies due by 3/6/2009. (Attachments: # 1 Proposed Order) (Nunley, Marvin) (Entered: 02/20/2009)

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02/20/2009
02/23/2009 02/25/2009
02/27/2009 03/02/2009 03/05/2009
03/11/2009
03/12/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009 03/24/2009

92 ORDER granting in part and denying in part 85 Motion for Extension of Time to File Response to Plaintiff's motion for class certification. If the Court denies the Defendant's motion for summary judgment then the Defendant shall have 30 days from the entry of that ruling to file a response to Plaintiff's motion for class certification. Signed by Magistrate Judge E. Robert Goebel on 2/20/09. cc:counsel, PH (JBM) (Entered: 02/20/2009)
93 REPLY to Response to Motion re 74 MOTION for Summary Judgment filed by William Scott Chapman. (Klausing, Joseph) (Entered: 02/23/2009)
94 MOTION for Leave to File Supplemental Response to County Defendants' Motion for Summary Judgment by Plaintiff Billy Joseph French Responses due by 3/16/2009 (Attachments: # 1 Exhibit Supplemental Response, # 2 Exhibit Exhibit 1 to Supplemental Response, # 3 Proposed Order) (Belzley, Gregory) (Entered: 02/25/2009)
95 RESPONSE to Motion re 90 MOTION for Hearing Oral Argument filed by Carol Byrd. Replies due by 3/13/2009. (Attachments: # 1 Proposed Order regarding oral argument hearing) (Thompson, Jeffrey) (Entered: 02/27/2009)
96 MOTION for Leave to File Surreply to Defendant Chapman's Motion for Summary Judgment by Plaintiff Billy Joseph French Responses due by 3/20/2009 (Attachments: # 1 Exhibit Surreply, # 2 Proposed Order) (Belzley, Gregory) (Entered: 03/02/2009)
97 REPLY to Response to Motion re 78 MOTION for Summary Judgment filed by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Attachments: # 1 Appendix Neil Troost, M.D. deposition testimony, # 2 Appendix Timothy S. Allen, M.D. deposition testimony, # 3 Appendix Billy Joseph French 1/16/08 deposition testimony, # 4 Appendix David Osborne deposition testimony, # 5 Proposed Order) (Nunley, Marvin) (Entered: 03/05/2009)
98 MOTION for Leave to File Surreply to Defendants' Motion for Summary Judgment by Plaintiff Billy Joseph French Responses due by 3/30/2009 (Attachments: # 1 Exhibit Plaintiff's Surreply to County Defendants' Motion for Summary Judgment, # 2 Exhibit 1 to Surreply, Dr. Neil Troost Depo Excerpts, # 3 Exhibit 2 to Surreply, Dr. Timothy Allen Depo Excerpts, # 4 Exhibit 3 to Surreply, Dr. John Gergen Ltr, # 5 Proposed Order) (Belzley, Gregory) (Entered: 03/11/2009)
99 REPLY to Response to Motion re 78 MOTION for Summary Judgment, 94 MOTION for Leave to File Supplemental Response to County Defendants' Motion for Summary Judgment filed by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. (Nunley, Marvin) (Entered: 03/12/2009)
100 ORDER granting 80 Motion to Seal Document. Signed by Magistrate Judge E. Robert Goebel on 3/23/09. cc:counsel (KJS) (Entered: 03/24/2009)
101 ORDER granting 81 Motion for Leave to Depo Excerpts. Signed by Judge Joseph H. McKinley, Jr on 3/24/09. cc:counsel (KJS) (Entered: 03/24/2009)
102 ORDER granting 94 Motion for Leave to file supplemental response. Signed by Judge Joseph H. McKinley, Jr on 3/24/09. cc:counsel (KJS) (Entered: 03/24/2009)
103 SUPPLEMENTAL RESPONSE to re 78 MOTION for Summary Judgment filed by Billy Joseph French. (Attachments: # 1 Exhibit 1 − Westlaw) (KJS) (Entered: 03/24/2009)
104 ORDER granting 96 Motion for Leave to file Surreply. Signed by Judge Joseph H. McKinley, Jr on 3/24/09. cc:counsel (KJS) (Entered: 03/24/2009)
105 SUR−REPLY re 74 MOTION for Summary Judgment filed by Billy Joseph French. (KJS) (Entered: 03/24/2009)
106 ORDER granting 98 Motion for Leave to file Surreply. Signed by Judge Joseph H. McKinley, Jr on 3/24/09. cc:counsel (KJS) (Entered: 03/24/2009)
107 SUR−REPLY re 78 MOTION for Summary Judgment filed by Billy Joseph French. (Attachments: # 1 Exhibit 1 − Dr. Neil Troost Depo Excerpts, # 2 Exhibit 2 − Dr. Timothy Allen Depo Excerpts, # 3 Exhibit 3 − Dr. John Gergen Letter) (KJS)

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06/23/2009 06/30/2009 07/07/2009
07/07/2009 07/21/2009
07/21/2009 07/21/2009 07/22/2009 07/22/2009 07/24/2009 08/03/2009 08/04/2009 08/04/2009

(Entered: 03/24/2009)
108 MEMORANDUM OPINION AND ORDER granting in part and reserving in part 74 Motion for Summary Judgment; granting in part and reserving in part 75 Motion for Summary Judgment; granting in part and reserving in part 78 Motion for Summary Judgment; denying 90 Motion for Hearing. Signed by Judge Joseph H. McKinley, Jr on 6/16/09. cc:counsel (JBM) (Entered: 06/23/2009)
109 MOTION for Partial Summary Judgment by Defendant William Scott Chapman Responses due by 7/20/2009 (Attachments: # 1 Memorandum in Support, # 2 Proposed Order) (Klausing, Joseph) (Entered: 06/30/2009)
110 MOTION for Reconsideration by Plaintiff Billy Joseph French Responses due by 7/27/2009 (Attachments: # 1 Exhibit Inmate medical form, # 2 Exhibit Deposition of Billy French 11−10−08, # 3 Exhibit Deposition of Billy French 1−16−08, # 4 Exhibit Handwritten note of Dr. Knight, # 5 Exhibit Deposition of Dr. Knight 4−9−08, # 6 Exhibit Inmate incident history, # 7 Exhibit Progress notes, # 8 Exhibit Medical Request Forms, # 9 Exhibit Dr. Rightmyer note, # 10 Exhibit Deposition of Carol Byrd 8−22−08, # 11 Exhibit Deposition of Dr. Chapman 11−10−08, # 12 Exhibit Deposition of Dr. Allen 2−17−09, # 13 Exhibit Deposition of Vicki Isom 1−16−08, # 14 Exhibit Physicians Orders, # 15 Exhibit Deposition of Dr. Troost 11−11−08, # 16 Exhibit Deposition of Louis Haire 4−4−08, # 17 Exhibit Deposition of Jailer Osborne 3−20−08, # 18 Proposed Order) (Belzley, Gregory) (Entered: 07/07/2009)
111 RESPONSE to Motion re 109 MOTION for Partial Summary Judgment by Defendant William Scott Chapman filed by Billy Joseph French. Replies due by 7/21/2009. (Attachments: # 1 Proposed Order) (Belzley, Gregory) (Entered: 07/07/2009)
112 RESPONSE TO MOTION re 110 MOTION for Reconsideration filed by Carol Byrd. (Attachments: # 1 Exhibit 1 − Carol Byrd Depo, # 2 Exhibit 2 − Billy Joseph French depo, # 3 Exhibit 3 − Neil Troost, M.D. Depo, # 4 Exhibit 4 − Owensboro Med Health System Records, # 5 Exhibit 5 − Timothy Allen, M.D. Depo, # 6 Exhibit 6 − Vicki Osom depo) (Thompson, Jeffrey) Modified text on 7/22/2009. E−filer had used the event "reply." (JBM). (Additional attachment(s) added on 7/23/2009: # 7 Proposed Order) (JBM). (Entered: 07/21/2009)
113 REPLY re 111 Response to Motion, 109 MOTION for Partial Summary Judgment filed by William Scott Chapman. (Klausing, Joseph) (Entered: 07/21/2009)
RESPONSE to Motion re 110 MOTION for Reconsideration filed by Carol Byrd. Replies due by 8/4/2009. (NO PDF ATTACHED− E−filer had incorrectly filed this as a reply. The clerk has refiled this as a response to motion. Please see 112 for viewing.) (JBM) (Entered: 07/22/2009)
114 Proposed Order denying motion for reconsideration re 112 Reply, by Carol Byrd. (Thompson, Jeffrey) (Entered: 07/22/2009)
115 RESPONSE to Motion re 110 MOTION for Reconsideration filed by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. Replies due by 8/5/2009. (Attachments: # 1 Proposed Order) (Nunley, Marvin) (Entered: 07/22/2009)
116 RESPONSE to Motion re 110 MOTION for Reconsideration filed by William Scott Chapman. Replies due by 8/7/2009. (Attachments: # 1 Proposed Order) (Klausing, Joseph) (Entered: 07/24/2009)
117 REPLY to Response to Motion re 110 MOTION for Reconsideration filed by Billy Joseph French. (Belzley, Gregory) (Entered: 08/03/2009)
118 MOTION for Leave to File Document Under Seal by Plaintiff Billy Joseph French. Responses due by 8/24/2009 (Attachments: # 1 Proposed Order) (JBM) (Entered: 08/04/2009)
119 Sealed Document (Attachments: # 1 Part 2 of 3, # 2 part 3 of 3) (JBMS) (Entered: 08/04/2009)

Case: 4:07-cv-00105-JHM-ERG As of: 09/13/2012 01:59 PM EDT 11 of 11

08/07/2009 08/07/2009 08/07/2009 08/19/2009
08/19/2009 08/19/2009 06/01/2010 06/01/2010

120 RESPONSE to Motion re 118 MOTION for Leave to filed by Carol Byrd. Replies due by 8/21/2009. (Attachments: # 1 Proposed Order Denying Motion to File Excel Spreadsheets) (Thompson, Jeffrey) (Entered: 08/07/2009)
121 RESPONSE to Motion re 118 MOTION for Leave to file under seal Excel spreadsheet filed by Daviess County, Kentucky, David Osborne, John and Jane Does, Nos. 1, 2, and 3. Replies due by 8/21/2009. (Attachments: # 1 Proposed Order) (Nunley, Marvin) (Entered: 08/07/2009)
122 ORDER granting 118 Motion for Leave to file Excel Spreadsheet under seal.. Signed by Judge Joseph H. McKinley, Jr on 8/6/09. cc:counsel (JBM) (Entered: 08/07/2009)
123 MEMORANDUM OPINION AND ORDER by Judge Joseph H. McKinley, Jr on 8/18/09; Plaintiff's motion for reconsideration 110 is DENIED; Defendant's motion 109 for partial summary judgment is GRANTED; Reserved portions of defendant's motions for summary judgment 74 , 75 and 78 are GRANTED; Plaintiff's motion to certify class 79 is DENIED as moot. A Judgment will be entered consistent with this Memorandum Opinion and Order.cc:counsel (JBM) (Entered: 08/19/2009)
124 JUDGMENT in favor of Defendants. Plaintiff's complaint is DISMISSED with prejudice, except for any state law claims which are dismissed without prejudice.cc:counsel (JBM) (Entered: 08/19/2009)
125 NOTICE OF APPEAL as to 123 Memorandum &Opinion,, Order, 124 Judgment, 108 Order on Motion for Summary Judgment,,,,,, Order on Motion for Hearing, by Billy Joseph French. Filing fee $ 455, receipt number 06440000000000923441. (Belzley, Gregory) (Entered: 08/19/2009)
126 ORDER of USCA as to 125 Notice of Appeal: Judgment of the District Court is AFFIRMED. (JBM) (Entered: 06/01/2010)
127 MANDATE of USCA as to 125 Notice of Appeal: District Court judgment is AFFIRMED. (JBM) (Entered: 06/01/2010)