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Frazee v. Dearborn County Sheriff's Department

United States District Court, S.D. Indiana, New Albany Division

October 17, 2017

JAMES FRAZEE, Plaintiff,
DEARBORN COUNTY SHERIFF'S DEPARTMENT, TIMOTHY ALBRIGHT in his individual capacity, and TERRY BUTLER in his individual capacity, Defendants.



         Plaintiff James Frazee (“Frazee”) brought this action under 42 U.S.C. § 1983 asserting constitutional and state-law torts arising from Frazee's detention in the Dearborn County, Indiana, jail. Frazee has sued the Dearborn County Sheriff's Department (“the Sheriff's Department”) and two special deputies of the Sheriff's Department, Timothy Albright (“Albright”) and Terry Butler (“Butler”) (together, “Defendants”).

         Pending before the Court is Defendants' motion for summary judgment on all claims [Dkt. 43]. For the reasons stated below, that motion is granted in part and denied in part.


         The designated admissible evidence, with all reasonable inferences drawn and all evidentiary conflicts resolved in Frazee's favor, reveals the following. In early 2014, Frazee was a sixty-two-year old man who suffered from a few painful health problems. Some years before, Frazee had been diagnosed with a knee problem in his right knee that required knee-replacement surgery, but he elected not to receive the surgery. Instead Frazee chose to use a cane and prescription medication to manage his knee pain. Frazee has also suffered from gout, which, when it flares up, sharply exacerbates his knee pain to the point that he is unable to bear even touching his knee. Frazee has treated his gout with prescription medication as well.

         On November 14, 2013, Frazee was arrested and charged with battery. For approximately ten weeks, from November 14, 2013, to January 27, 2014, Frazee was detained in the Dearborn County jail. During his detention, Frazee did not have his cane (he had left it at home when he was arrested, believing he would not be permitted to bring it with him into the jail), but his knee pain was manageable enough at the time not to limit substantially his physical activity while he was detained. Frazee did, however, file six requests for medical treatment during the weeks he was in jail, five requesting refills for his prescriptions to treat his knee pain, and one for a toothache. The jail doctor twice denied Frazee's request for a Naproxen prescription, but Frazee's other prescriptions were filled and administered. Frazee does not complain of the jail doctor's treatment of him.

         On January 27, 2014, Frazee was scheduled to be transported from the jail to the Dearborn County courthouse to attend a change of plea hearing. Detainees in the Dearborn County jail are shackled while being transported to the courthouse, according to standard procedures, and an inmate must ordinarily kneel on a chair to facilitate jail officers' efforts to shackle him. On this occasion, Frazee informed a jail officer that his knee hurt to “put force on it” and that he therefore could not kneel. Frazee Depo. (Dkt. 44 Ex. I) 70:9. So the officer allowed Frazee to stand while the officer shackled him. Frazee asked the officer to provide him with a wheelchair, but the officer did not secure one for him, even though wheelchairs were available and readily accessible at the jail for this purpose.

         Butler and Albright were both special sheriff's deputies who were on duty that day. Butler's duties were limited to providing court security; he did not work at the jail regularly, and had never previously interacted with Frazee. Albright, too, had never seen or met Frazee before. The jail and the courthouse are connected by a 500-foot tunnel with two sets of stairs, each consisting of approximately six steps. Butler and Albright transported Frazee, who was shackled and handcuffed, along with other jail inmates through the tunnel to the courthouse. Frazee managed the walk without apparent difficulty. Before, during, and after the change of plea hearing at the courthouse, Frazee's movements were not affected or otherwise impeded by his knee pain. Frazee pleaded guilty and was sentenced to probation. After the hearing was concluded, Frazee was led out of the courthouse still shackled and handcuffed through the tunnel and back to the jail.

         As they walked through the tunnel, Butler's position was only a few feet behind Frazee. Frazee appeared to be walking without problem when he suddenly tripped on one of the flights of stairs and fell. Because he was handcuffed, Frazee was unable to slow or stop his fall, and he landed face-first onto the concrete. Frazee suffered bloody, visible injuries to his face and hands. Butler and Albright helped him up to a standing position and assisted him on his walk for the remainder of the way back to the jail. A jail nurse examined Frazee and treated his injuries with ice and ibuprofen. The nurse recommended x-rays, but Frazee refused to allow jail staff to transport him to a hospital. Frazee signed a Refusal of Treatment Medical Release Form and was released to probation, consistent with the sentence that had just been imposed.

         This lawsuit followed. Frazee brings one constitutional claim against Butler[1] for violation of his Fourth and Eighth Amendment rights, and one negligence claim against Albright, Butler, and the Sheriff's Department. Defendants' motion for summary judgment is fully briefed and ripe for decision.

         Standard of Decision

         Summary judgment is appropriate where there are no genuine disputes of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A court must grant a motion for summary judgment if it appears that no reasonable trier of fact could find in favor of the nonmovant on the basis of the designated admissible evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). We neither weigh the evidence nor evaluate the credibility of witnesses, id. at 255, but view the facts and the reasonable inferences flowing from them in the light most favorable to the nonmovant. McConnell v. McKillip, 573 F.Supp.2d 1090, 1097 (S.D. Ind. 2008).


         We begin by delineating the summary judgment materials that are currently before us before turning to an analysis of Frazee's constitutional and negligence claims. As explained more fully below, because no reasonable fact-finder could find for Frazee on this record as to his constitutional claim, Defendants are entitled to judgment as a matter of law on that issue. Albright and Butler are entitled to judgment as a matter of law on his negligence claim, but the Sheriff's Department is not.

         I. Frazee's Amended Affidavit Must Be Disregarded

         Defendants contend that, at least at this stage of the proceedings, Frazee is not entitled to rely on his assertion that it was Butler, rather than another, unidentified jail officer, of whom Frazee made the request for a wheelchair and who denied that request prior to Frazee's walk to the courthouse on January 27, 2014.[2] Defendants rest their contention on the so-called “sham affidavit” rule that holds that a nonmovant cannot resist summary judgment by contradicting his earlier deposition by his later affidavit unless “it is demonstrable that the statement in the deposition was mistaken, perhaps because the question was phrased in a confusing manner or because a lapse of memory is in the circumstances a plausible explanation for the discrepancy.” Russell v. Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995). This rule is to be applied with “great caution, ” Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1169 (7th Cir. 1996), based on the fact-finder's exclusive province, on the one hand, to weigh the evidence, including at “which point in time and with which words the witness . . . was stating the truth[, ]” and, on the other, “[t]he purpose of summary judgment . . . to separate real, genuine issues from those which are formal or pretended.” Id. at 1170 (quoting Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986)).

         In support of their invocation of the “sham affidavit” rule, Defendants cite Frazee's July 29, 2016, deposition testimony, as follows:

Q. [When you fell, ] you said there were two males that were transporting you?
A. Yes.
Q. Do you remember what their races were?
A. They were white.
Q. Do you remember if they had facial hair or anything like that?
A. I know one guy was older. I can't remember the other guy.
Q. And you don't recall their names?
A. No.
Q. Would you be able to recognize them if you saw them?
A. The one I would.
Q. And did you ask them for a wheelchair on that day?
A. I know I-I don't know if I asked them, but I did ask somebody.
Q. You did ask somebody that day?
A. Yes.
Q. And would you recognize that person if you saw them?
A. No, I couldn't. Like I said, there was . . . more than just three or four, there is four or five or six of them running around somewhere. . . .
Q. The somebody that you asked for a wheelchair, was that person male or female?
A. Male I think. To my recall, male, because I don't remember no women. And, you know, like I said, there might have been three people that went over there, but I do know two of them were older deputies.
Q. And the person that you asked for the wheelchair, would it have been one of the older deputies?
A. I can't recall. . . .
Q. And was it a white male that you asked?
A. Yes. There ain't no blacks over there. . . .
Q. The two white older guards are the ones who took you over to ...

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