NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0058n.06
Case No. 14-3460 FILED
Jan 20, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
CLARENCE SANFORD, )
)
Plaintiff-Appellee, )
)
v. )
)
LISA STEWART, Individually; SUZANNE )
MOORE, Individually, CHERYL )
RICHARDS, Individually; SANDRA ) ON APPEAL FROM THE UNITED
FLOOD, Individually; ADRIENNE ) STATES DISTRICT COURT FOR
WELFLE, Individually ) THE NORTHERN DISTRICT OF
) OHIO
Defendants-Appellants. )
)
and )
)
DENISE JAMES, Individually, )
)
Defendant. )
)
____________________________________/ )
BEFORE: MERRITT, MOORE, and DONALD, Circuit Judges.
MERRITT, Circuit Judge. In this § 1983, interlocutory, qualified immunity appeal
raising factual issues, we conclude that we do not have appellate jurisdiction. Plaintiff Clarence
Sanford, a former juvenile inmate at the Indian River Juvenile Correctional Facility (“Youth
Facility”) in Stark County, Ohio, commenced this action against the Defendant-Nurses alleging
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collective deliberate indifference in violation of his Eighth Amendment rights. Specifically,
Sanford alleged that the Nurses refused to provide timely and urgent medical attention after
receiving notice of his symptoms. As a result, he became septic, was hospitalized, contracted
pneumonia, and had to undergo surgery. After proceeding with discovery, the Nurses moved for
summary judgment based on grounds of qualified immunity — even though the Ohio
Department of Youth Services itself had concluded after investigation that the Nurses had “failed
to provide adequate medical care.” See Report of Investigation, Nov. 17, 2007, ECF No. 75-1.
The District Court found that Sanford had presented sufficient evidence for a jury to infer that his
dire situation was “so obvious that even a layperson would easily recognize the necessity for a
doctor’s attention.” (quoting Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 899-900 (6th Cir.
2004). It thus denied the motion, holding that genuine disputes of material fact exist as to
whether the Nurses ignored Sanford’s deteriorating condition and need for a physician’s
diagnosis and treatment.1
On appeal, the Nurses dispute the District Court’s finding that a reasonable jury could
conclude that they did not timely inform a treating physician of Sanford’s deteriorating
condition. The Nurses contend we have jurisdiction over their appeal because the District Court
made “blatantly and demonstrably false factual determinations” in finding a factual dispute. We
agree with the District Court, and therefore DISMISS this appeal for lack of jurisdiction.
I. Factual and Procedural History
On Sunday December 2nd, 2007, Youth Facility staff took Sanford to the emergency
room of a local hospital. He was feverish, dehydrated, unable to walk, and “smell[ed] of fecal
material.” He was admitted and subsequently diagnosed with a fractured pelvis and an infected
1
Sanford brought claims against Nurses Stewart, Welfle, Richards, Moore, Flood, and James. The District
Court granted summary judgment and qualified immunity only to Nurse James, who is not a party to this appeal.
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“left hip abscess” which had formed around the fracture site and had advanced into life-
threatening sepsis. By the time Sanford was taken to the emergency room, the Nurses had been
documenting his unresolved hip pain over the course of 72 days.
A. Medical Complaint Procedures at the Youth Facility
Normally, nurses at the Youth Facility initially address medical complaints before a
patient is seen by the doctor. Patients may seek medical care by notifying dormitory staff, going
to the infirmary, or completing a “Health Service Request” form. Nurses document all medical
complaints and courses of treatment in written “Progress Notes” and make them a part of the
patient’s medical records.
Dr. Barbara Volk was the Youth Facility’s physician during the relevant time period. Her
duties included reviewing and updating “Standing Orders,” which are written instructions
regarding how nurses are to handle certain medical complaints. The Standing Orders permit
nurses to issue medication and are designed to treat relatively minor ailments, thereby avoiding
the need to call Dr. Volk every time a patient has a medical complaint. Because she was an
independent contractor, Dr. Volk only visited the Youth Facility on Wednesday mornings to
examine any sick or injured patients whom the nurses had added to the “Health Call List.” When
not physically present, Dr. Volk was on call at all times.
Although some medications could be dispensed without notifying a physician, the
Standing Orders mandated that certain medical emergencies be reported to Dr. Volk. These
included reports of chest pain, as well as “[a]ny injury that has limitation of motion and/or point
tenderness to a significant degree.” In her deposition, Dr. Volk testified that “limitation of
motion” includes limping. Such injuries were to be treated as possible fractures and considered
emergencies if they implicated a “joint space.” Additionally, if a patient refused a nurse’s
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examination, the Department of Youth Services’ Standard Operating Procedures required that
nurses notify their supervisor or the doctor.
B. Timeline of Sanford’s Medical Complaints
1. September 20th (Nurse Stewart)
Sanford injured his hip while playing football at the Youth Facility. Nurse Stewart
treated him for left hip pain and administered ibuprofen. Although Nurse Stewart’s notes
indicate that Sanford stopped limping when told he would not be able to participate in a
horseback riding program, she later stated that she believed his pain was real. Nurse Stewart did
not inform a physician of Sanford’s injury or refer him for further evaluation.
2. October 10th-12th (Nurse Moore)
Sanford again complained of leg pain on October 10th. An unidentified nurse
documented that he had “upper leg pain” and administered ibuprofen. He submitted a second
“Health Services Request” on October 11th regarding the same “upper left leg pain.” Nurse
Moore saw him on October 12th and administered more ibuprofen. Although this was Sanford’s
third complaint of left hip and upper left leg pain, Nurse Moore wrote “no history of injury” in
her assessment. Nurse Moore did not notify a physician or superior of Sanford’s condition, nor
did she refer him for further evaluation.
3. November 27th & 28th (Nurses Welfle & Stewart)
Sanford submitted a third “Health Services Request” on November 27th, again
complaining of pain in his left leg. In the early morning of November 28th, dormitory staff
reported in the Unit Log Entry2 that Sanford was complaining of hip pain.
2
“Unit Log Entry” refers to notes taken by the dormitory staff at the Youth Facility.
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Nurse Welfle examined Sanford at 8:55 a.m. on Wednesday, November 28th. She
evaluated his condition as “leg stiff from playing ball, [no acute distress],” gave him Tylenol for
his pain, and ordered him to “do stretching before sports.” She did not inform a physician or
superior — despite Dr. Volk’s presence at the Youth Facility that morning. Later that day,
Sanford requested an x-ray be taken of his left hip and Nurse Welfle ordered him one. Despite
this x-ray order, Nurse Welfle did not place Sanford on any activity restrictions, and security
video shows him at gym class shortly thereafter. In contrast to Welfle’s assertion that Sanford
had complete range of movement, the gym video shows him limping and unable to move with a
normal gait.
While playing basketball during gym class, another youth allegedly struck Sanford’s left
hip. Security video shows that two other students half-carried Sanford to the medical clinic,
where Nurses Stewart and James treated him for “severe [left] hip pain.” Nurse James called the
mobile x-ray unit, administered ibuprofen, and documented that Sanford “ambulated with a limp
out of medical.” The Nurses did not notify Dr. Volk.
4. November 29th (Nurses Moore, Richards, Stewart, & Welfle)
At 7:30 a.m., dormitory staff informed Nurse Moore that Sanford “refused to come to
medical due to [a] ‘sore hip.’” Nurse Richards administered ibuprofen “for severe [left hip
pain].” The 7:45 a.m. Unit Log Entry states that Sanford was to remain in the dormitory for the
first half of the school day, noting that he had been “taken to medical due to severe pain in his
leg. Nurse also stated [he] has a high fever.” A 10:45 a.m. entry by Nurse Richards states “pain
not quite as bad – [left] hip” and that she gave Sanford additional ibuprofen “for [left] hip pain –
ambulating with limp.” The Nurses did not notify Dr. Volk.
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At 2:05 p.m., Sanford saw Nurse Welfle due to a “complaint of leg [pain].” Despite the
fact that Sanford was in his dorm all morning and other nursing staff had seen him limping and
documented his pain as “severe,” Nurse Welfle wrote that he “[h]as been walking normal all day.
Was sent to [In School Suspension] – Now stating leg hurts.” Her entry makes no reference to
providing medicine or conducting an assessment.
The x-ray results came back negative for fractures at approximately 4:23 p.m.3
According to Dr. Volk, nurses were supposed to inform her if an x-ray came back negative but a
patient continued having pain. Despite this order, Dr. Volk later stated that she does not
remember getting a call that Sanford was having continued pain, nor was she even informed that
an x-ray had been ordered.
At 5:20 p.m., Nurse Stewart documented that Sanford’s symptoms were not improving.
Her notes indicate “left pelvic discomfort” that was “[t]ender to touch,” that Sanford was
“limping,” and that he had a fever. According to expert testimony, undiagnosed joint area pain
accompanied by a fever is a “medical emergency.” Despite being “concerned” about the fever
and hip pain, Nurse Stewart did not call Dr. Volk. Instead, she merely scheduled Sanford for Dr.
Volk’s next health call — which was not for six more days.
5. November 30th (Nurse Welfle)
At 7:45 a.m., Nurse Welfle wrote that Sanford was again complaining of hip pain. There
is no indication that she took his vitals. Instead, she issued a Standing Order for ibuprofen and
instructed Sanford to “[i]ncrease fluids and try to walk around.”
3
Later investigation determined that the x-ray did not image the full pelvis and thus did not capture the
fracture of Sanford’s iliac crest.
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Although Sanford continued to have unresolved pain with increased fever, it does not
appear that anyone saw him again on Friday, November 30th. The Unit Log Entry that morning
reports that Sanford stayed in his dorm and did not go to school.
6. December 1st (Nurse Moore & Flood)
Sanford again complained about his leg at 7:00 a.m. and was sent to the Youth Facility
clinic at 8:20 a.m. At 8:30 a.m., Nurse Moore documented that Sanford “refused earlier to come
for medication, now in medical complaining of left hip pain.” She also noted that he “refus[ed]
to allow nurse to do assessment. Told him to apply hot moist washcloth to hip and come at 11am
for ordered meds.”
At 9:05 p.m., Nurse Flood wrote: “Meds to dorm. [Sanford] lying in bed refuses to get
up [complaining of] chest pain youth finally raised torso up slightly and took meds when asked
how long he had chest pain he laid back down and covered his head with his blanket. Nurse
Flood did not notify Dr. Volk of Sanford’s refusal of her examination, nor is there any
documentation that Flood took Sanford’s vitals. Additionally, it appears that Nurse Flood failed
to comply with Dr. Volk’s Standing Orders requiring her notification upon a complaint of chest
pain.
7. December 2nd (Nurses Moore & Flood)
Dormitory staff called the nurses at 12:20 p.m. to come and see Sanford due to hip pain.
Nurses Flood and Moore brought him to medical in a wheelchair, where he “required assistance
in transport from chair to exam table.” He was running a fever, dehydrated, demonstrated
“extreme tenderness” in his left hip area and “smell[ed] of fecal material.” Sanford was
subsequently taken to the hospital and diagnosed with a fractured hip (iliac crest), sepsis, and
diffused pneumonia. He remained hospitalized for twenty days and required surgery and a blood
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transfusion. He was in the intensive care unit, on a ventilator, and in respiratory isolation. He
had septic emboli to the lungs with pneumonia, was on intravenous antibiotics, and was in four
point medical restraints so he would not pull out his endotracheal tube. In short, Sanford was
critically ill.
C. Procedural History
Upon notification of Sanford’s ordeal, the Chief Inspector’s Office of the Ohio
Department of Youth Services conducted an internal investigation. See Report of Investigation,
Nov. 17, 2007, ECF No. 75-1. Their report concluded that “medical personnel failed to provide
adequate medical care.” Id. at 13. This lawsuit followed.
After proceeding with discovery, the District Court denied the Nurses’ motion for
summary judgment, finding that Sanford had produced evidence establishing a genuine issue of
material fact as to whether they were deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment. In reviewing the record, the court determined that Sanford
had provided “sufficient evidence from which a jury may infer that, prior to his admittance into
the hospital on December 2nd, 2007, his injury and illness was ‘so obvious that even a layperson
would easily recognize the necessity for a doctor’s attention.’” (quoting Blackmore, 390 F.3d at
899-900). The District Court further found that Sanford had “presented sufficient evidence in
the form of medical proof” from which a jury could find that “the delay [in treatment] caused a
serious medical injury.” (citing Blackmore, 390 F.3d at 899). Finally, the District Court
determined that there was sufficient evidence for a jury to find that, due to his dangerously
deteriorating condition after aggravating his injury on November 28th, Sanford faced a
substantial risk of serious harm, and that a reasonable jury could find that Nurses Stewart,
Welfle, Richards, Moore, and Flood perceived and disregarded that substantial risk.
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Most importantly, the District Court found that “the record does not confirm that Dr.
Volk had been notified,” that there was “a genuine issue of fact regarding whether the nurses
notified the attending physician,” and that the Nurses were aware that Sanford’s condition had
been deteriorating yet provided care a jury could find so cursory or inadequate as to constitute no
treatment at all.
II. Jurisdiction Over Denial of Qualified Immunity
We review a district court’s denial of summary judgment based on qualified immunity
grounds de novo. Quigley v. Tuong Vinh Thai, 707 F.3d 675, 679 (6th Cir. 2013) (citation
omitted). Summary judgment is proper if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Courts must
consider the evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The ultimate question is “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Id. at 251-52.
It is well settled that our interlocutory jurisdiction over orders denying qualified
immunity is quite narrow. Harrison v. Ash, 539 F.3d 510, 516 (6th Cir. 2008). A district court’s
denial of qualified immunity is an appealable final decision under 28 U.S.C. § 1291 only “to the
extent that it turns on an issue of law.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Indeed,
interlocutory appeals from denials of qualified immunity must be “limited to cases presenting
neat abstract issues of law” and such defendants “may not appeal a district court’s summary
judgment order insofar as that order determines whether or not the pretrial record sets forth a
‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 317, 319-20 (1995) (quoting
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15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3914.10, at 664
(1992)).
In their attempt to justify an improper interlocutory appeal, the Nurses accuse the District
Court of “blatantly and demonstrably false factual determinations.” See Nurses’ Br. at 23. They
thus invoke the language of the “one limited exception” by which we might consider their
version of the facts on an interlocutory appeal. See Scott v. Harris, 550 U.S. 372, 380 (2007)
(holding that on summary judgment, a court should not adopt a version of the facts “blatantly
contradicted by the record”). This exception, however, is met only “where the evidence is so
utterly discredited by the record as to be rendered a visible fiction.” Younes v. Pellerito, 739
F.3d 885, 889 (6th Cir. 2014) (quoting Scott, 550 U.S. at 380-81).
Typically, “if what is at issue in the appeal is nothing more than ‘whether the evidence
could support a finding that particular conduct occurred,’ there is no appellate jurisdiction
because that question is inseparable from the merits of the plaintiff’s claim.” Berryman v.
Rieger, 150 F.3d 561, 563 (6th Cir. 1998) (quoting Behrens v. Pelletier, 516 U.S. 299, 313
(1996)). In this case, we lack jurisdiction because this appeal presents precisely the same
situation. A key component of Sanford’s case involves his allegation that the Nurses failed to
inform Dr. Volk of his deteriorating condition. See Mem. Op. at 19 (“[Sanford] alleges he
became septic precisely because his condition was not discovered sooner, due to the delay in
medical treatment.”). The Nurses, however, argue that Sanford’s medical records serve as
“objective evidence” that Dr. Volk was in fact notified of his condition by telephone on
November 30th, 2007. The Nurses thus contend that the District Court’s finding of a genuine
issue of material fact regarding whether Dr. Volk was notified of Sanford’s leg pain is a
“blatantly false determination in light of the objective medical evidence.” See Nurses’ Reply Br.
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at 10. Because the record does not discredit Sanford’s evidence as the Nurses claim, we
conclude that the District Court was correct in denying qualified immunity.
In its denial of summary judgment, the District Court also found that the medical orders
do not make clear whether Dr. Volk was consulted or gave medical orders on November 30th,
2007. This finding is amply supported by the record, which contains numerous inconsistencies
regarding whether Dr. Volk actually received notice of Sanford’s condition. For example, Dr.
Volk herself stated during the Youth Services internal investigation that no one contacted her
about Sanford’s condition until the afternoon of December 2nd. She later testified in depositions
that she did not recall whether the Nurses contacted her prior to Sanford’s admittance to the
hospital.
Despite these inconsistencies, the Nurses insist that a “telephone order” given by Dr.
Volk on November 30th confirms that she received notification of Sanford’s complaints of leg
pain on that day. The District Court found that this document proves very little because it was
not signed by Dr. Volk until December 5th — one week after Sanford’s admission to the
hospital. Although the Nurses acknowledge this date discrepancy, they maintain that it is
inconsequential because “the District Court failed to consider evidence that Dr. Volk would not
have had the opportunity to sign the telephone order until the following week when [she] made
her weekly visit to the [Youth Facility].” See Nurses’ Reply Br. at 14. Again, this is not so. In
fact, the District Court specifically highlighted this evidence. See Mem. Op. at 11 (“To add to
the uncertainty [about the date discrepancy], Nurse Welfle testified that Dr. Volk would review
and sign the charts and orders from the previous week when she visited the [Youth Facility].”).
Moreover, Dr. Volk stated that although she had not ordered Sanford’s x-ray, one of the Nurses
must have listed her name as the ordering physician without first discussing the order with her.
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It is certainly possible that a similar action could have occurred regarding the November 30th
order. Thus, the November 30th order does not clearly show that it was issued by Dr. Volk. A
factual issue therefore exists as to whether Dr. Volk was notified of Sanford’s condition.
Finally, the Nurses point to deposition testimony of Sanford’s own expert as “objective
evidence” that they did in fact notify Dr. Volk. See Nurses’ Reply Br. at 10. The nature of the
questioning at this deposition, however, was purely speculative. Moreover, this expert was
merely opining on the medical records; she was not present at the Youth Facility and has no
basis for knowing whether anyone ever actually contacted Dr. Volk.
III. Conclusion
This frivolous appeal does not present a question of law, but rather an argument over
which version of the facts is most credible, as the District Court concluded. We have no
jurisdiction over these so-called “legal” arguments because they “rely entirely on [the Nurses’]
own disputed version of the facts,” presenting us with “issues of fact and credibility
determinations” which the jury will have to make. Thompson v. Grida, 656 F.3d 365, 367 (6th
Cir. 2011). This case does not fall within the narrow category of cases open to interlocutory
appeal based on qualified immunity. Accordingly, we DISMISS for lack of appellate
jurisdiction and return the case to the District Court for further proceedings consistent with this
opinion.
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