United States District Court, S.D. Indiana, New Albany Division
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.
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”).
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.
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.
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.
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.
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.
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.
lawsuit followed. Frazee brings one constitutional claim
against Butler 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
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).
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.
Frazee's Amended Affidavit Must Be
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. 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)).
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
Q. Do you remember what their races were?
A. They were white.
Q. Do you remember if they had facial hair or anything like
A. I know one guy was older. I can't remember the other
Q. And you don't recall their names?
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
Q. You did ask somebody that day?
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