# FILED

May 11, 1999

Cecil Crowson, Jr.

Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

______________________________________________

CHARLES BELK,

Appellant,

Obion Circuit No. 7-527

Vs. C.A. No. 02A01-9807-CV-00189

OBION COUNTY, TENNESSEE

SHERIFF EWELL BAKER,

Appellees.

________________

___________________________________________________________ _

FROM THE OBION COUN TY CIRCUIT COURT

THE HONORABLE WILLIAM B. ACREE, JR., JUDGE

Charles Belk, Pro Se

James I. Pentecost; Waldrop & Hall of Jackson

For Appellees

REVERSED IN PART, AFFIRMED IN PART AND REMANDED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

ALAN E. HIGHERS, JUDGE

DAVID R. FARMER,

JUDGE

Plaintiff, Charles Belk (Belk ), filed suit

against defenda

nts, Sheriff Ewell Baker

(Baker),

in his offi ci al capacity as Sheriff of Obion County, and Obion County, Tennessee, claiming

deprivation of his constitutional rights under 42 U.S.C. § 19 83, as well as violations of the2

Tennessee Governmental Tort Liability Act (GTLA). Belk alleged that Baker violated his

civil

rights by delaying medical aid while he was a prisoner in the Obion County jail . Belk appeals

the trial court’s grant of summary judgment in favor of Baker and Obion County.

On March 25, 1996, Belk was an inmate at the Obion County jail in Union City,

Tennessee. At approximately m idnight, Belk tied his

bed sheets

together and climbed through

a second floor window in an attempt to escape. The bed sheets tore in

the attempt, and he

fell

to the pavement below suffering a compoun d fracture to his lo wer leg. Prison of

ficials

immediately discovered Belk’s escape attempt, notified Baker, and called an ambulance.

Baker arrived within mi

nutes o f the notification , and an ambulanc

e arrived shortl

y

thereafter at 12:08 a.m. It is

disputed whether Baker left orders with the prison guards that the

medical personnel w

ere not t o assist or move Belk without prior appr

oval. However, i

t is

undisputed that Belk laid in a po ol of rainwater w

ithout medical assi

stance until

12:27 a.m. when

medical personnel were

allowed to administ

er treatment. Af

ter being stabiliz

ed and placed in

the ambulance, Be

lk arrived at the

hospital at 12:30 a. m.

The events after Belk’s fall and injury are disputed. According to Baker, Belk told him

that another prisoner had pushed him from the roof of the jail. Knowing that the other prisoner

named by Belk was housed in a prison block opposi

te the incident,

Baker states in his

affidavit

that he assumed a major prison breakout had occurred. In order to secure the area, Baker refused

to allow Belk to be moved until he had investigated the situation. Baker, however , denies in his

affidavit that he instructed medical personnel not to treat Belk.

Belk disputes Baker

’s assertions. Specifically, he states in his affidavit that a sheet he

was using to climb down tore, causing him to fall. He also states that deputies said that Baker

instructed them no

t to allow medical p

ersonnel to trea

t him.

On March 24, 1997, Belk brought this action against Baker and Obion County alleging

that the medical personnel were present shortly after the fall, but they were not allowed to attend

to his injuries or move him as a di rect result of Baker’s orders. He further avers that he was

deprivedof his rights and pr iv ileges as afforded him under the Fourth, Fifth, Eighth, and

Fourteenth

amendments

to the United States Constitution and in contravention of 42 U.S.C. §§

1983 and 1988 and the laws of the state of Tennessee in that Baker and the County acted

negligently

and in a willful, wan ton, and deliberate disregard for his well being, and that the3

defendants acted under color of state law in their official capacity.

Baker and the County

moved for summary judgment in accordance with Tenn. R. Civ.

P. 56. After a hearing, the trial judge granted the defendants’ motion and rendered judgment in

favor of Baker and

the County. Belk filed a timely appeal and the issue for review is whether

the trial court erred in granting the defendants’ motion for summary judgment.

A motion for summary judgment should be granted when the movant demonstrates that

there are no genuine issues of material fact and that the moving party is entitled to a judgment

as a matter of

law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the

burden of demonstrating that no genuine issue of material fact exists. Bain v. Wells , 936 S.W.2d

618, 622 (Tenn. 1997). On a motion for summar y judgment, the cou

rt must take the stronges

t

legitimate view of the evidence in favor of the nonmoving party, allow all reasonable inferences

in favor of that

party, and discard all countervailing evidence. Id. In Byrd v. Hall , 847 S.W.2d

208 (Tenn. 1993), our Supreme Court stated:

O nce it is shown by the moving party that there is no genuine

issue of material fact, the nonmoving party must then

demonstrate, by affidavits or discovery materials, that the re i s a

genuine, material fact di

sp ute to warrant a trial. In this regard,

Rule 56.05 provides that the nonmoving party cannot simpl y rely

upon his pleadings but must set forth specific facts showing that

there is a genuine

issue of material

fact for trial.

Id. at 211 (citations omitted) (emphasis in original).

Summary judgment is only appropriate when the facts and the legal conclusions drawn

from the facts reasonably permit only one conclusion. Carvell v. Bottoms

, 900 S.W.2d 23, 26

(Tenn. 1995). Since only questions of law are involv ed, there is no pre

sumption of corre

ctness

regarding a trial court's grant of summary judgment. Bain , 936 S.W.2d at 622. Therefore, our

review of the trial court’s grant of summary judgment is de novo on the record be fore this Court.

Warren v. Estate of Ki

rk , 954 S.W.2d 722, 723 (Tenn. 1997).

We first examine Belk’s 42 U.S.C. § 1983 claim a gainst the county for Baker’s acts allegedly violating right s

under the Fourth, Fif

th, a nd Fourteenth Amendments. Baker and the County assert that Belk’s claim is not actionabl e

because no policy or custom was shown as required under § 1983, or in the alternative, if delibe rate indifference is th

e

correct standard, Belk does not meet it because Baker acted to secure the prison.

42 U.S.C. § 1983 (1994

) provides, in per

tinent part:

Every p erson who, under color of any statute, ordin ance, regulation, custom, o

r1 The Pembaur Court noted an exa

mple rele vant t o the case before this Court. They

stated in pertinen

t part:

Thus, for example, the County Sheriff may have discretion to hire

and fire employees w

ithout being the cou

nty official resp

onsible

for establishing any county employment policy. If this were the

case

, the Sheriff’s decisions respecting employment would no t

give rise to m unicipal liability, although similar de

cisions with

respect to law enforcement practices, over which the Sheriff is the

official policy maker, would give rise to municipal liability.

Pembaur , 106 S.Ct. at 1300, n.12.

4

usage, of a ny Stat e or Territory or the District of Columbia, subjects, or causes t o

be subjected, any citizen of the United States or othe r person within th e

jurisdiction thereof to the d

eprivation of any rights, privileges, or immunitie s

secured by the Constitution and laws, shall be liable to the party injured in a n

action at law, suit in equity, or other proper proceeding for redress.

The County c

hallenges Belk’s claim on the basis that a single instance of unc onstitutional activity cannot giv

e

rise to a § 1983 acti

on. While it is true, as the defendants assert, that liability under § 1983 is limited to deprivation s

of federally protected rights caused by action taken “pursuant to official muni cipal policy of some nat

ure.

. ., ” Monel

l

v. New York City Dept. of Soc. Serv.

, 436 U.S. 658, 98 S. Ct. 2018, 56 L.E.2 d 611 (1978), a decision b y

municipal policy makers on a single occasio n may satisfy this requir

ement. Pembaur v. City of Cincinnati

, 10 6

S. Ct. 1292, 1294 (1986).

The United States Supreme Court in Pembaur stated in pertinen

t part:

But the power to establish policy is no mor e the exclusive province of th e

legislature at the local level t han at the state or national level. Monell’ s

languag e makes clear that it expressly envisioned other officials “whose acts o r

edicts may fairly be said to represent official policy,” Monell

, supra, 436 U.S.

,

at 694, 98 S.Ct. at 2037-2038, and whose decisio ns therefore may give rise t

o

municipal liability under § 1983.

* * *

[A] government frequently chooses a course of action tailore d to a pa rticula r

situation and not intended to control deci sions in later situations. If the decisio n

to adopt that particular course of action is properly m ade by th at government’ s

authorized decision makers, it surely repr esents an act of official governmen t

“policy” as that term is commonly understood. Mor e importa ntly, where actio

n

is directed by those wh

o establish government

al policy, the municipality i s

equally re sponsible whether that action is to be taken only once or to be take n

repeatedly. To deny compensation to the victim would therefore b e contrary t o

the fundamental purpose of § 1983.

* * *

Municipal liability attaches only where the d ecision-maker possesses fina l

authority to esta

blish municipal policy with respect to the ac tion ordered.

. . . Th

e

offici al must also be responsible f or establishing final governmental polic y

respecting such activity befor

e the mun icipality can be held liable. 1 Authority t o2 Appe llees’ own brief submitte d in this appeal sta

tes, “[t]hus, the

Sheriff is a polic y

maker, for purposes of Tennessee law. . . .”

5

make municipal policy may be granted directly by a leg islative enactment or ma

y

be d elegated by an official who possesses such authority, and of course, whethe r

an official had final policy making authority is a question of state law.

Pembaur , 106 S. Ct. at 1298-1300.

We must determine whether Baker was a “poli cy maker” as define

d by Pembaur

. The Tennessee statut

e

which defines the

powers and duties

of county sheriff

s states in pertine

nt part:

8-8-201. Duties of office. -- It is the sheriff’s duty to:

* * *

(3) Take charge and custody of the jail of the sherif f’s county, and of the prisoner

s

therein; receive those lawful

ly committed, and keep them persona lly, or b y

deputies or jailer, until discharged by law; . . . .

T.C.A. § 8-8-201(3) (Supp. 1998).

After examining the above statute, we believe that Baker has final decisio n making a uthority concerning th

e

county prison and is a “po

licy maker” as defined by the U nited States Supreme Court in Pembaur

. 2 Therefore, on

e

instance of unconstitutional activity by Baker states a cause of action under § 1983.

Next, we must det

e rmine the correct standard for determining a violation of a prisoners right to medical care

.

The United States Supreme Court articulate d the standard for determining wh ether a prisoner’s constitutional right t o

medical care under th

e Eighth Amendment of the U.S. Constitution has been violated in Estelle v. Gamble

, 429 U. S

.

97, 104-05, 97 S. Ct. 2 85, 291, 50 L. Ed.2d 2 51 (1976). The Supr

eme Court stated in

pertinent part:

We therefore conclude that deliberate indifference to serious m edica l

needs of prisoners constitutes the “unnecessary an d wanton inf

liction of pain, ”

proscribed by the Ei

ghth Amendment. This is true whether the indifference i s

manifested by prison doctors in their response to t he prisoner’s needs or by priso

n

gu ards in intentionally denying or delaying access to medi cal care or intentionall

y

interfering with the treatment once prescri bed. Regardless of how evidenced

, deliberate indifference to a pr

isoner’s serious illness or injury stat es a cause o f

action under § 1983.

Estelle , 429 U.S. at 104-05, 97 S. Ct. at 291 (citation omitted).

As noted by the Sixth Circuit, the E stelle standard consists of two components, one objective and on e

subjective: “(1) a sufficiently grave deprivation, such as medical needs; and (2) a sufficiently culpable state of mind. ”

Berryman v. Rieger, et al

, 150 F.3d 56 1, 566 (6th Cir. 1998). When a prisoner suffers pain needlessly and relie f

is read ily available, they have a cause of action against those whose deliberate indifference is the cause of the suffering

.

Boretti v. Wiscomb , 930 F.2d 1150, 1154-55 (6th Cir. 1991).6 As the Supreme Court noted in F armer v. Bre

nnan

, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed.2d 81 1

(1994), a plaintiff must prove that his medi cal needs ar e serious in order to show deliberate indifference. A “seriou s

medical need” has been defined as “one that has been diagnosed by a physician as mandating treatment or one that i s

so obvious that even a lay pe

rson would easily recognize the necessity for a doctor’s attention.” Laaman v

.

Helgemoe

, 437 F. Supp. 269, 311 (D.N.H. 1977). In considering the seriousness of a med ical need, courts mus

t

determine whether the defenda nt’s act or omission resulted i

n a denial of “the minimal civilized measure of life’ s

nec essities.” Rhod

es v. Chapman

, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed.2d 59 (1981). Neithe r

negligence nor gross negligence will support a § 1983 claim. “In order t o state a cognizable claim, a prisoner mus t

allege acts or omissions sufficiently harmful to evidenc e deliberate indifference to serious medical needs. It is only suc h

indifference that can offend ‘evolving stan dards of decency’ in violation of the Eight h Amendment.” Estelle

, 429 U.S

.

at 105-06, 97 S. Ct. at 292.

In order to determ

ine the appropriatenes

s of summary judgment, we examine three elements: “(1) whether a

factual dispute exists; (2) whether the disputed fact is material to the outcome of the case; and (3) whet her th e

disputed fact cr

eates a genuine issue for trial.” Byrd v. Hall , 847 S.W.2d 208, 214 (Tenn. 1993).

Clearly, the fac

ts in this case are

disputed. Baker’ s affidavit state s in pertinent par

t:

9. While I do not r

ecall making any statement to the effect that the prisoner

, Charles Belk, was not to be moved, any such sta tement which I ma

y have mad e

would have bee

n out of m y concern for the safety and well-being of the prisone r

and would have only meant that the prisone r was no t to be moved until medica

l

technicians from the Obion County Regional Emergency Medical Service s

arrived.

* * *

14

. I neither saw nor spoke with the ambulance driver or other m edical personne

l

at the scene, as I was upstairs in the jail making sure that the jail was secure.

15. I never instructed the ambulan ce driver or other medical attendant not t o

perform any medical services for the prisoner.

16. I never instructed the ambulance driver or the medi cal attendant not to mov

e

the prisoner.

17. Since I was alrea

dy upstairs in the jail when the ambulance arr ived on th e

scene, I neither spoke t

o nor saw either the ambulance drive r or the medica

l

attendant, and therefore it would be impossible f or me to have “instructed th

e

ambulance driver to not perform any services or to move the prisoner until furthe r

instructions were

given” as allege

d in the complaint.

Baker’s assertions in his affidavit are dispu ted by three witnesses at th

e scene. Belk’s affidavit states i n

pertinent part:7 3. The ambulan

ce arrived and the attendants asked the Sheriff’s Deputy if the y

could treat me and was in

formed by the Sheriff’s D

eputy that they could not d

o

anything or move me in any way pending further orde rs from the Sheriff.

. . . Ms

. Doster pleaded wi

th one of the Police Officers guarding me to go into th e

Courthouse and ask the Sheriff if I could be t reated or moved and after a fe

w

minutes p assed the Police Officer came back and stated that the Sheriff said tha t

I could not be moved until further instructions. Finally after what seem ed like a

very long t ime, a Sheriff’s Deputy gave the amb ulance attendant permission t

o

move me. . . .

Linda Doster, who worked across the street from the c ourthouse and came over to see what had happen at the priso n

when Belk fell, pr

ovided the followin

g affidavit.

2. I was in my office on March 25, 1996, when I observed a commotion at th e

Courthouse and I went across the street to the Courthouse to see what was goin g

on. I observed C

harles Belk lying o

n the concrete sidewalk in the rain, lying i n

a puddle of water with his leg broken and the bone protruding fro m

the skin

. The ambulance arrived a few minute s later and the attenda

nts wer e

told by the deputy t

hat Sheriff Baker said no one was to move Mr. Belk. I finall y

got an umbrella and h

eld over Mr. Be

lk as no one else was assisting him o r

protecting him from the elements an d stood there while all of us were waiting fo r

approval from the Sheriff for Mr. Belk to be treated.

3. I recall several persons asking permission to treat an d remov e Mr. Belk an

d

take him to the hospital and remember that the dep uties who responded to thes

e

inquiries related that the She

riff had stated that he did not want Mr. Belk move d

or touched in any way.

* * *

7. Mr. Belk was lying face down in approximately three in ches of water with hi

s

hands handc

uffed behind his back. He had a severely crushed left leg. He wa s

surrounded by police personnel and sheriff’s deputies al l of whom were jus

t

standing around. Noone [sic] was doing anything for Mr. Belk.

(emphasis added).

Further, James Shipley, the paramedic and ambu lance driver that trea

ted Belk, stated in his affidavit that “ I

was informed by a Deputy of the Obion County Sherif f’s Depar tment not to move Charles Belk without the permissio n

of Sheriff Ewell Baker.”

Th ese disputed facts must be material to preclude summary judgment. A disputed fact is material if it mus t

be decided in o

rder to resolve substantive claims or defenses at which the summar y judgment motion is directed. Byrd

,

847 S.W.2d at 215. Deliberate indifference to a prisoners medical need s is determined through a two part test. Firs t

,

the prisoner must show “a sufficiently grave depriva tion, such as medical needs.

. .” Berryman v. R ieger, et al

,

150 F.3d 561, 567 (6th Cir. 1 998). It is undisputed that Belk suffered a compound fracture to the leg, and the bone wa s

clearly visible pr

otruding through the

skin. We believe t

his satisfies the f

irst element.

The second element requires that Baker acted with “sufficiently culpable state of mind.” B erryman

, 15 0

F.3d at 567. Negligence and gross negligence are not enough. “In order t o state a cognizable claim, a prisoner mus t8

allege acts or omissions sufficiently harmf ul to evidence deliberate indif

ference to serious medical needs.” Estell e

v. Gamble

, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (19 76). As noted above, Baker denies tel ling deputies that Belk wa

s

not to be treated. However, Belk claims that Baker acte d in a deliberately indifferent manner. This dispute as to Baker’ s

purpose for leav

ing Belk unattende

d goes directly to Ba

ker’s state of min

d, and is therefor

e material.

[T]he test for a “genuine issue” is whether a reaso nabl e jury could legitimatel

y

resolve tha t fact in favor of o

ne side or the other. If the answer is yes, summar y

judgment is in

appropriate; if the a

nswer is no, summary judgment is prope r

because a trial would be pointless as th ere would be nothing for the jury to do an d

the judge need only apply the law to resolve the case.

Byrd

, 847 S.W.2d at 215. It seems clear that a jury could resolve this dispute in favor of Belk and find that Baker wa s

deliberately indifferent to Belk’s medical ne eds by delaying medical care to him to punish him for his escape attempt

.

Therefore, a genuine issue of a material fact exists in this case and summary judgment was improper.

The final issue we must address concerns Belk’s cl aim under the Tennessee Governmental Tort Liabilit y Ac t

(GTLA), T.C.A. § 29-20-201, et al (1980 & Supp. 1998). The GTLA allow s su it against county and municipa l

governments for negligent acts of its employees; however, neither intentional torts nor violations of civil righ ts ar e

covered under the GTLA. T.C.A. § 29- 20-205(2) (1980); Jenkins v. Loudon County

, 736 S.W.2d 603, 60 8

(Tenn. 1987). Thus, summary judgment was appropriate on this issue.

The order of the trial court granting summary judgment on the § 1983 clai m is reversed, and the order in al l

oth er respects is affirmed. The case is remanded for such other proceedings as may be necessary. Costs of the appea l

are assessed against the appellee.

_________________________________ W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE