Hicks v. Frey, Nos. 92-5035

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtLIVELY; RYAN
Citation992 F.2d 1450
PartiesRobert Dale HICKS (92-5105), Plaintiff-Appellee/Cross-Appellant, v. Chief Richard A. FREY (92-5063); Carol Locke (92-5035), Defendants-Appellants, ARA Health Services, Inc., doing business as Correctional Medical Systems, Defendant-Cross-Appellee.
Decision Date01 July 1993
Docket NumberNos. 92-5035,92-5105,92-5063

Page 1450

992 F.2d 1450
Robert Dale HICKS (92-5105), Plaintiff-Appellee/Cross-Appellant,
v.
Chief Richard A. FREY (92-5063); Carol Locke (92-5035),
Defendants-Appellants,
ARA Health Services, Inc., doing business as Correctional
Medical Systems, Defendant-Cross-Appellee.
Nos. 92-5035, 92-5063, 92-5105.
United States Court of Appeals,
Sixth Circuit.
Argued Jan. 28, 1993.
Decided May 13, 1993.
Rehearing and Rehearing En Banc
Denied July 1, 1993.

Page 1451

Theodore H. Amshoff, Jr. (briefed and argued), Amshoff, Amshoff & Searcy, Louisville, KY, for plaintiff-appellant Robert Dale Hicks.

Jeanne R. Clemens (briefed and argued), Gregory J. Bubalo, Ogden, Newell & Welch, R. Allen McCartney (argued), McCartney & Swicegood, Louisville, KY, for defendant-appellee ARA Health Services, Inc.

Before: RYAN and SILER, Circuit Judges; and LIVELY, Senior Circuit Judge.

Page 1452

LIVELY, Senior Circuit Judge.

This is an appeal from a judgment on jury verdicts awarding damages pursuant to 42 U.S.C. § 1983 to a jail inmate who claimed Eighth and Fourteenth Amendment violations by jail officials and by a corporation that provided medical services at the jail, and its employees. The plaintiff, Hicks, charged that the defendants were deliberately indifferent to his serious medical needs while he was an inmate of the Jefferson County, Kentucky, Detention Center (the jail). The complaint, as amended, named nineteen defendants, but the jury returned verdicts against only three. The other defendants were dismissed either on directed verdicts or verdicts of the jury. The district court awarded judgment notwithstanding the verdict (JNOV) to one defendant. The two defendants found liable by the jury, and whose motions for JNOV were denied, appealed and the plaintiff cross-appealed the JNOV in favor of the third defendant. The plaintiff did not appeal the dismissal of the remaining defendants.

I.

Because sufficiency of the evidence is the critical issue in both direct appeals, it is necessary to set out the facts and the disputed claims in some detail.

A.

The defendant Frey was the officer in charge of the jail. The Jefferson County Fiscal Court had contracted with the defendant ARA Health Services, Inc., doing business as Correctional Medical Systems (CMS) to provide medical services to the inmates of the jail. The defendant Locke was the nurse employed by CMS who was in charge of medical services at the jail. The jury returned verdicts in favor of Hicks against Frey for $10,000, against CMS for $60,000, and against Locke for $1,000. The district court refused to disturb the verdicts against Frey and Locke, but set aside the verdict against CMS on its motion for JNOV. Before the trial began the district court dismissed four jail "sergeants," or guards. At the conclusion of all proof, the district court directed verdicts in favor of twelve nurses employed by CMS who worked under the supervision of Locke, and the jury rendered verdicts in favor of four other such nurses.

B.

Hicks entered the jail in early 1987. On August 9, 1987, Hicks attempted to escape by rappelling down the side of the building. The rope broke and Hicks fell to the sidewalk. The fall resulted in serious injuries. Hicks suffered various fractures and a severe spinal injury that resulted in paraplegia. Hicks remained in a local hospital until September 22, 1987, when he returned to the jail. While at the hospital, he had various surgeries and was also placed in a Hoffman device to hold his pelvis together.

When he returned to the jail, Hicks was bedridden and paraplegic. His left leg was still in a cast and the Hoffman device was still in place. The jail had converted the dentist's office in the basement of the jail into a special room designed for Hicks. A Care Plan was also established for Hicks. It was a detailed list of specific actions to be taken that ranged from skin care needs to bowel training. It also provided for frequent turning to prevent development of new bedsores and physical therapy as prescribed by doctors at the hospital. Hicks voiced no complaints about his treatment in this converted cell. In late November of 1987, however, Hicks was moved to the Medical Walk on the sixth floor of the jail. Hicks testified that he was placed in an isolation cell and that the door was shut for twenty-three hours a day. The evidence at trial established that Hicks was placed in this isolation cell as punishment for his August escape attempt. This "lock down" was ordered despite the fact that Hicks could not walk and was bedridden. Hicks claimed his constitutional rights were violated while he was confined in this cell.

Witnesses for the defendants testified that CMS and jail employees followed the Care Plan and that Hicks' medical needs were not neglected. They pointed out that Hicks made a good recovery, considering the seriousness of his injuries, that his bedsores cleared up, and he was able to leave in a wheelchair when transferred to a State reformatory

Page 1453

in February 1988. The evidence for Hicks presented a strikingly different story.

Hicks' evidence at trial included his testimony and that of fellow inmates Odie Swift, James Logsdon, and Tracey Wilson. Swift, Logsdon, and Wilson's testimony corroborated different parts of Hicks' testimony. Hicks testified that the defendants intentionally deprived him of drinking and bathing water, proper physical therapy, proper kidney stone treatment, and proper hygiene by allowing him to lie in his own vomit and feces for hours. The plaintiff and his witnesses also testified that: (1) the jail guards kicked on Hicks' door in the middle of the night and would intentionally withhold his food tray for up to thirty minutes; (2) he could not reach the emergency button in the isolation cell and actually had to bang on the wall to call for help; (3) for over two months the defendants failed to turn Hicks and that he had to get a fellow prisoner who had AIDS, Odie Swift to turn him, which resulted in great pain; (4) he was denied his wheelchair while in the isolation cell; (5) his linens became soiled and were not changed; and (6) he was denied prompt procurement of prescribed prosthetic devices. In addition to the eye witness testimony, a videotape that had been filmed by a local TV station was shown at the trial. This tape showed the towels tied on Hicks' bed that he claimed were used by inmate Swift to turn him.

Hicks' treating physician, Dr. Stephen Henry, also testified. Dr. Henry stated that on November 5, 1987, physical therapy in the form of a gentle range of motion for both lower extremities was recommended to be administered at least three times a week. On that date as well, AFO splints were recommended to be obtained for Hicks. These splints would stabilize Hicks' feet. Dr. Henry stated that "to some degree" these stabilizers were a serious medical need and that they should have been procured within two to three weeks.

Dr. Henry confirmed that on December 10th, physical therapy was still needed. On that date an oyster shell brace was prescribed as well. This brace would permit Hicks to sit in a wheelchair. Dr. Henry testified that it was important to get a paraplegic patient in a wheelchair for various medical reasons. He stated that the reasonable prescription time for the oyster shell brace was also two to three weeks. The splints and the oyster shell brace were provided to Hicks on January 21, 1988.

Dr. Henry could not state whether physical therapy had actually been administered at the jail. He did testify, however, that if physical therapy had been administered it would have reduced the likelihood of the development of the contractures on Hicks' foot. After Hicks was transferred to the reformatory on February 12, 1988, Dr. Henry continued to treat Hicks. The doctor decided in April to operate in order to correct the contractures in his left foot.

Hicks testified, and was supported by other witnesses, that he constantly complained of the deficiencies in his care and that Nurse Locke always promised to take care of the problems. He also testified that he complained to the prison guards about numerous deficiencies. In addition, Hicks testified, and the documentary evidence supports, that he filed seven grievances. At least two of these were seen by Locke. These grievances dealt with his placement in administrative segregation, the lack of water, failure to clean linens, the guards not having the proper keys to his cell, and the passing of medication by another inmate.

II.

CMS, Frey, and Locke all moved to alter or amend the verdicts, for judgment notwithstanding the verdict, or in the alternative, a new trial. The district court granted CMS's motion for judgment notwithstanding the verdict and denied the motions of Locke and Frey. The trial court found that "[t]he record supports Hicks position that Frey and Nurse Locke were personally involved in the unconstitutional conduct. There were questions of fact which allowed the jury to conclude that both defendants were deliberately indifferent to Hicks' serious medical needs." We consider the direct appeals first.

A.

Frey argues on appeal that he was entitled to a directed verdict, or to JNOV, because

Page 1454

there was no evidence that he personally violated any constitutional rights or knowingly acquiesced in such violations. He points to Hicks' testimony that Frey apparently never saw his grievances. No nurse or other employee ever reported to Frey that Hicks was being mistreated or neglected, and when Frey was in the area where Hicks was confined, Frey neither saw nor heard anything to indicate that Hicks' serious medical needs were being neglected. None of the inmates who testified for Hicks identified Frey as being involved in the alleged neglect of Hicks. Finally, Hicks' mother testified that she complained of conditions surrounding her son after a visit, but she did not report these conditions to Frey.

Frey argues that the...

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  • Doe ex rel. Doe v. Warren Consolidated Schools, No. 00-CV-72956-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • February 13, 2003
    ...one for the jury to decide and not for the court at the summary judgment stage." Claiborne County, 103 F.3d at 509 (citing Hicks v. Frey, 992 F.2d 1450, 1456-57 (6th 44. The District does not argue that it is not a federally funded educational program. --------------- ...
  • Risbridger v. Connelly, No. 5:99-CV-130.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 31, 2000
    ...approved an unconstitutional act or procedure that resulted in a specific instance of misconduct by the subordinate. See Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir.1993)(noting that an official may be held liable for failure to supervise and control subordinates even though the official wa......
  • Gonzalez v. Ysleta Independent School Dist., No. 90-8725
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 20, 1993
    ...so long communicated their tacit condonation of his mal feasance"), reh'g, en banc, granted, 987 F.2d 231 (5th Cir.1993); Hicks v. Frey, 992 F.2d 1450, 1457 (6th Cir.1993) ("The jury could have believed that Locke displayed deliberate indifference to Hick's serious medical needs both by fai......
  • Cox ex rel. Dermitt v. Liberty Healthcare Corp., Civil Action No. 3:07-CV-49-KKC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • January 7, 2008
    ...See Flint, 270 F.3d at 351 (housing and security for inmates are "functions typically attributed to the state"); Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993) (providing medical services to prison inmates is a "traditional state function" (citing West, 487 U.S. at 54, 108 S.Ct. In sum, ......
  • Request a trial to view additional results
236 cases
  • Doe ex rel. Doe v. Warren Consolidated Schools, No. 00-CV-72956-DT.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • February 13, 2003
    ...one for the jury to decide and not for the court at the summary judgment stage." Claiborne County, 103 F.3d at 509 (citing Hicks v. Frey, 992 F.2d 1450, 1456-57 (6th 44. The District does not argue that it is not a federally funded educational program. --------------- ...
  • Risbridger v. Connelly, No. 5:99-CV-130.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • October 31, 2000
    ...approved an unconstitutional act or procedure that resulted in a specific instance of misconduct by the subordinate. See Hicks v. Frey, 992 F.2d 1450, 1455 (6th Cir.1993)(noting that an official may be held liable for failure to supervise and control subordinates even though the official wa......
  • Gonzalez v. Ysleta Independent School Dist., No. 90-8725
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 20, 1993
    ...so long communicated their tacit condonation of his mal feasance"), reh'g, en banc, granted, 987 F.2d 231 (5th Cir.1993); Hicks v. Frey, 992 F.2d 1450, 1457 (6th Cir.1993) ("The jury could have believed that Locke displayed deliberate indifference to Hick's serious medical needs both by fai......
  • Cox ex rel. Dermitt v. Liberty Healthcare Corp., Civil Action No. 3:07-CV-49-KKC.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • January 7, 2008
    ...See Flint, 270 F.3d at 351 (housing and security for inmates are "functions typically attributed to the state"); Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993) (providing medical services to prison inmates is a "traditional state function" (citing West, 487 U.S. at 54, 108 S.Ct. In sum, ......
  • Request a trial to view additional results

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