Petty v. County of Franklin, Ohio

• Decision Date: 06 March 2007
• Docket Number: No. 06-3552.,06-3552.
• Citation: 478 F.3d 341
• Parties: Sherman PETTY, Plaintiff-Appellant, v. COUNTY OF FRANKLIN, OHIO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

478 F.3d 341

Sherman PETTY, Plaintiff-Appellant, v. COUNTY OF FRANKLIN, OHIO, et al., Defendants-Appellees.

No. 06-3552.

United States Court of Appeals, Sixth Circuit.

Submitted: February 1, 2007.

Decided and Filed: March 6, 2007.

ON BRIEF:

Byron L. Potts, Eric LaFayette, Byron L. Potts & Company, Columbus, Ohio, for Appellant. Tracie M. Boyd, Franklin County Prosecutor's Office, Columbus, Ohio, for Appellees.

Before: MARTIN, COLE, and GILMAN, Circuit Judges.

AMENDED OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Plaintiff-Appellant Sherman Petty sustained serious injury to his jaw during a fight with other inmates in the Franklin County Correctional Institute. He sued numerous county defendants under 42 U.S.C. § 1983, alleging primarily that they violated his Eighth Amendment rights by failing to protect him and by failing to provide him with adequate medical care. In particular, Petty claimed that the County's delay in allowing him to undergo surgery, and its failure to provide him exclusively with a "soft" diet prior to the surgery, was the direct cause of his suffering further injury. The district court dismissed Petty's claims against some defendants for failure to state a claim, and against others upon their successful motion for summary judgment. Petty now appeals the dismissal of his claims. For the reasons stated below, we AFFIRM the judgment of the district court.

I

On April 5, 2002, Petty was placed in the Franklin County Correctional Institute after being sentenced to serve twenty-four days in jail. He was put in a cell with about twenty other inmates. According to Petty, as he was reading a book and sitting on a bunk bed, two inmates picked a fight with him, punching and kicking him several times. They also struck Petty with his own shoe and with an unidentified object. The entire altercation lasted about five minutes, at which point Petty was finally able to get a guard's attention. The guard realized Petty was seriously injured, because he was bleeding badly from the mouth, and thus let him out of the cell and gave him a towel to soak up the blood.

Petty initially told the guard that he "fell off a bunk," but upon the guard's prodding admitted that "they beat me up." The guard then brought pictures of the inmates to Petty so that he could identify who had beaten him. He positively identified two inmates. Petty was then taken to a doctor at the jail, who recommended that he be transported to the Ohio State Medical Center Emergency Room for treatment.

Petty was initially examined by Drs. Sorabh Khandelwal and Chadwick Miller, who determined that his jaw was broken in two places. One of the fractures did not require surgery. The second fracture did require surgery, but not immediately, and thus Petty was discharged with instructions to take percocet for pain, amoxicillin to prevent infection, and to be kept on a "soft" diet. The attending surgeon who ultimately operated on Petty, Dr. Gayle Gordillo, stated that he was not operated on immediately because the injury occurred late on a Friday night, and she does not perform surgeries on the weekends except in emergencies.

In the early morning hours of Saturday, April 6, Petty was returned to jail and placed in a cell designated for medical care. Petty admits that every day he was given his prescribed medications, but the parties dispute what kind of food he was actually served. Petty claims that he "only got fed a liquid diet three times when [he] was in jail," whereas the other times he was fed the "regular," solid-food menu. The Sheriff's Office counters that he was fed according to a special dietary order which specifically prescribed a "liquid diet."¹ Despite receiving medication Petty claims he was in considerable pain, and continually requested to see the doctor, only to be rebuffed by jail deputies. Dr. Gordillo contacted the Sheriff's Office Medical Department on April 9, requesting that Petty be brought in for surgery on Thursday, April 11, or Friday, April 12. She was informed that, due to "personnel issues," he could not be transported on the Thursday, and Friday would not work either, because the jail "never transports patients on Friday."

Petty was released from incarceration on Saturday, April 13 (well before his 24-day sentence was up, evidently), and Dr. Gordillo performed the surgery to realign his jaw on the following Tuesday, April 16. He was discharged on the same day. However, he returned to the emergency room on April 17 with symptoms of an infection. Dr. Gordillo treated him for a "wound infection" with a course of intravenous antibiotics and rest. He was released from Ohio State Medical Center on April 20.

Dr. Gordillo examined Petty on a follow-up visit on April 30 and again on May 21. He was experiencing some weakness in his right lower lip, which Dr. Gordillo stated "could be attributable to his surgery," but "is not attributable to the delay in surgery or treatment, and is not attributable to the infection that Mr. Petty incurred subsequent to his injury and surgery." As to the infection, Dr. Gordillo posited as follows: "The timeframe between Mr. Petty's injury and surgery was longer than normal. It may or may not have contributed to the infection.... Certainly, the longer an injury or wound remains open, the greater the risk for infection becomes." Petty was scheduled for another visit on May 28, but he did not appear, and he subsequently discontinued treatment with Dr. Gordillo.

II

Petty brought suit in federal district court under 42 U.S.C. § 1983. The gravamen of his complaint concerned violations of his rights under the Eighth Amendment. Named as defendants were Franklin County, Ohio, the Franklin County Sheriff's Office, Sheriff James Karnes, and John Does # 1-4. John Does # 1 and # 2 were Sheriff's Department employees: John Doe # 1 was allegedly "on duty and assigned to the area of the jail where [Petty] was attacked"; John Doe # 2 allegedly served Petty his meals, and brought only solid foods, not the prescribed soft diet. Compl. at ¶¶ 17, 20. John Does # 3 and # 4 are the two inmates identified visually by Petty after the incident, and later by name through jail records. The specifics of Petty's § 1983 allegations were as follows: first, that the county defendants failed to protect him from other inmates; and second, that the county defendants were deliberately indifferent to his serious medical needs when he was returned from the hospital, by (a) denying him access to medical care for his bleeding mouth, (b) failing to provide him on all occasions with the soft diet prescribed by Dr. Gordillo, and (c) failing to accommodate the request of Dr. Gordillo that he return for surgery on April 11 or 12, 2002. Petty also sought to hold the County, the Sheriff's Department, and Sheriff Karnes liable under § 1983 on a theory of municipal liability. Finally, Petty asserted state-law claims of negligence against the county defendants, and state-law claims of assault and battery against John Does # 3 and # 4.

Defendants Franklin County, the Sheriff's Office, and John Does # 1 and # 2 moved for dismissal of Petty's claims pursuant to Fed.R.Civ.P. 12(b)(6). The district court granted this motion as to all of these defendants. First, citing Barrett v. Wallace, 107 F.Supp.2d 949, 954 (S.D.Ohio 2000), the district court held that the Franklin County Sheriff's Office is not a legal entity capable of being sued under § 1983. D. Ct. Op. at 6. Second, as to defendant John Does # 1 and # 2, the court found that they had never been properly identified or served pursuant to Fed.R.Civ.P. 4(m). The district court held: "Plaintiff had ample time to identify John Does # 1 and # 2. The Court finds no cause sufficient to justify setting aside the requirement of dismissal under Rule 4(m)." D. Ct. Op. at 7. Finally, as to defendant Franklin County, the district court noted that under Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a county may be found liable only if the alleged constitutional violation arose from an official policy or custom of the county. Accordingly, the court held as follows:

Plaintiff identifies no official custom or policy of Franklin County with regard to his constitutional claim. In addition, Plaintiff fails to come forward with any facts to demonstrate how, even if there were a custom or policy of the county, his injuries are causally linked to the County's alleged failure to train and/or supervise. Consequently, Plaintiff's municipal liability claim fails as a matter of law.

D. Ct. Op. at 7.

The only one of Petty's claims to survive beyond the 12(b)(6) stage was an Eighth Amendment claim against Sheriff Karnes for his "deliberate indifference" to Petty's serious medical needs. Sheriff Karnes moved for summary judgment on this claim and the district court granted the motion, finding that Petty had met neither the objective nor the subjective component of a deliberate-indifference claim as to medical care. See Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004). The district court noted that under the objective component, Petty "must place verifying medical evidence in the record to establish the detrimental effect of the delay." D. Ct. Op. at 10 (citing Napier v. Madison County, 238 F.3d 739, 742 (6th Cir.2001)). The court found that Petty failed to meet this burden: "[Petty's] surgeon avers that it was not necessary to operate on [Petty] on the day of the injury. Further, the evidence shows that the infection [Petty] later suffered and the difficulty he experienced moving his mouth after surgery were side-effects of the surgery itself, not attributable to [Petty] receiving surgery approximately ten days after the incident at the jail." Id. at 10-11 (citation omitted). As to the subjective component, the district court noted that Petty's burden was to show that the county actors had a "sufficiently culpable state of mind." Napier, 238...