             NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 05a0080n.06
                      Filed: February 2, 2005

                             No. 03-6421

                    UNITED STATES COURT OF APPEALS
                         FOR THE SIXTH CIRCUIT



STEVEN T. ATWELL,                  )
                                   )
          Plaintiff-Appellant,     )
                                   )       ON APPEAL FROM THE UNITED
          v.                       )       STATES DISTRICT COURT FOR
                                   )       THE WESTERN DISTRICT OF
HART COUNTY, KENTUCKY; HART COUNTY )       KENTUCKY
 FISCAL COURT; TERRY SHELTON; JIM )
 STEWART; RONALD RIORDAN; FRANKLIN )
 TURNER; DON KESSINGER; BILL       )
 CARTMILL, individually and as Hart)
 County Jailer; BUSTER MAXEY,      )
 individually and as Deputy Jailer;)
 SHELBY DIXON, individually and as )
 Deputy Jailer; JASON PEDIGO,      )
 individually and as Deputy Jailer;)
 GREG GARDNER, individually and as )
 Deputy Jailer; ALICE COOPER RICH, )           OPINION
 individually and as Deputy Jailer;)
 TONY FIELDS, individually and as )
 Deputy Jailer; STANLEY MURPHY;    )
 JERRY RAY GARDNER,                )
                                   )
          Defendants-Appellees.    )



Before:   COOK and NORRIS, Circuit Judges; and BECKWITH,
          Chief District Judge*


SANDRA S. BECKWITH, Chief District Judge.     This appeal arises

from the district court’s award of summary judgment to the
*Sandra S. Beckwith, Chief United States District Judge for the
Southern District of Ohio, sitting by designation.
Appellees on claims related to Appellant Atwell’s brief

incarceration in the Hart County Jail in 2000.       For the reasons

that follow, we AFFIRM.

     In April 2000, days after being diagnosed with paranoid

schizophrenia, acute psychosis, impulse-control disorder, and

polysubstance abuse, Appellant Atwell trespassed onto a golf

course near his home.    He was arrested and taken to the Hart

County Jail, where he was placed in isolation.      He acted

consistently with his recent diagnoses, and, fearing for Mr.

Atwell’s safety, jail personnel sought an emergency

hospitalization order.    Upon obtaining the order, jail personnel

transported Mr. Atwell to the Western State Hospital.

     The transfer was not without event.       Appellant Atwell

resisted and fought with guards.       They used a stun shield and

pepper spray to subdue him and to effectuate the transfer.        The

altercation was recorded on videotape.      It resulted in

convictions for assault against Mr. Atwell.

     Western State Hospital personnel increased the prescribed

dosage for the medication being used to treat Mr. Atwell’s mental

illnesses and returned him to the Hart County Jail.      There, he

was again isolated and, according to all of the record evidence,

refused to take his medication.    He was uncooperative and injured

himself.   He suffered hallucinations and paranoid delusions.        A


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jail nurse recommended psychiatric care outside the jail.      Jail

personnel sought an order for such a transfer and, upon obtaining

one, transferred Appellant Atwell to the Kentucky Correctional

Psychiatric Center.

     After being treated at the Psychiatric Center, Mr. Atwell

remained incarcerated for several weeks.      His claims relate to

the period prior to that treatment, however.

     They include claims under 42 U.S.C. § 1983 for the excessive

use of force, denial of proper medical care, and failure to train

jail personnel.   Appellant Atwell also asserted that jail

personnel discriminated against him and failed to make reasonable

accommodation for his disability in violation of the Americans

with Disabilities Act (the “ADA”) and the parallel provisions of

the Kentucky Civil Rights Act.   Finally, Mr. Atwell asserted

claims for assault and battery, outrage, and intentional

infliction of emotional distress under Kentucky law.

     Appellees moved for summary judgment, and the district court

concluded that Appellant Atwell had failed to identify evidence

in support of any of his claims.       The court awarded judgment to

the Appellees, prompting this appeal.

          The parties are in substantial agreement as regards the

applicable legal standards.   While Appellant Atwell questions

whether the district court chose the correct standard in

addressing Appellant’s claim that he was subjected to excessive


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force, we have not failed to notice that the district court

analyzed the claim in accordance with both of the arguably

applicable standards and concluded that Appellant Atwell had not

introduced evidence in satisfaction of either.   We are convinced

that the district court did not err in selecting the standards

applicable to each of Appellant Atwell’s claims.   We “consider

all facts and inferences drawn therefrom in the light most

favorable to [Appellant]” and review the district court’s

conclusion that summary judgment with respect to all of Appellant

Atwell’s claims is appropriate in accordance with the de novo

standard of review.   Davis v. Sodexho, Cumberland College

Cafeteria, 157 F.3d 460, 462 (6th Cir. 1998).

     The district court properly concluded that the evidence of

record could not support Appellant Atwell’s allegation that

personnel of the Hart County Jail used excessive force against

him in the process of effectuating his transfer to the Western

State Hospital.   The Appellees’ use of force was necessitated by

Mr. Atwell’s actions, and the evidence demonstrates unequivocally

that the force used was only that necessary to maintain control

and accomplish the legitimate purpose of moving Mr. Atwell in

order to ensure that he received the appropriate medical care.

The use of force was not punitive and was objectively reasonable.

It did not, therefore, deprive Mr. Atwell of the protections of

the Constitution.   See Graham v. Connor, 490 U.S. 386, 395 n.10


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(1989); Bell v. Wolfish, 441 U.S. 520, 535-39 (1979); Phelps v.

Coy, 286 F.3d 295, 300 (6th Cir. 2002), cert. denied, 537 U.S.

1104 (2003).

     Appellant Atwell also challenges the district court’s

conclusion that evidence of record could not support a finding

that Appellees deprived him of proper medical care in violation

of the Eighth Amendment.   While the evidence amply demonstrates

that Mr. Atwell had a serious medical need, nothing in the record

suggests that the Appellees acted to deprive him of proper

medical care for that need.    Indeed, to the extent that the

medication prescribed for him would have alleviated Mr. Atwell’s

mental health problems, the evidence of record demonstrates that

the Appellees attempted to provide the medication to Mr. Atwell.

If anyone was responsible for his failure to benefit from the

medication, Appellant Atwell was.     In light of the one-sided

evidence identified by the parties, Mr. Atwell could not have

proven deliberate indifference and, therefore, could not have

established an Eighth Amendment violation.    See Horn by Parks v.

Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir.), cert.

denied, 513 U.S. 873 (1994).    The district court properly awarded

Appellees summary judgment with respect to Appellant Atwell’s

claims that the Appellees deprived him of proper medical care.

     The Appellant’s remaining § 1983 claim is that certain of

the Appellees failed to provide adequate training to Hart County


                                  5
Jail personnel to prevent the violation of his constitutional

rights.   Having concluded that Mr. Atwell could not prove that

any of his constitutional rights were violated by Hart County

Jail personnel, the district court did not err by concluding that

Appellant Atwell could not prove a failure to train in violation

of the United States Constitution.    See Watkins v. Battle Creek,

273 F.3d 682, 687 (6th Cir. 2001)(citing Los Angeles v. Heller,

475 U.S. 796, 799 (1986)).

     In order to prove a violation of the ADA and the parallel

provisions of the Kentucky Civil Rights Act in the context of

detention in a county jail, Appellant Atwell would have been

required to establish that he suffered from a physical or mental

impairment that placed a “substantial” limitation on a major life

activity, such as walking, seeing or hearing.   Toyota v.

Williams, 534 U.S. 184, 195-97 (2002).   The limitation must be

permanent or long-term.   See id. at 198.

     None of the evidence identified by Appellant Atwell in

connection with his disability discrimination claims would have

supported a finding that his mental impairments impose permanent

or long-term limitations on any major life activity.   The

evidence that Mr. Atwell’s impairments may be corrected or

mitigated by medication is not disputed and, in this case,

precludes his establishing that his impairments substantially

limit him in a major life activity.   See Sutton v. United Air


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Lines, Inc., 527 U.S. 471, 482 (1999).   The district court did

not err, therefore, in granting summary judgment to Appellees

with respect to Appellant Atwell’s claims under the ADA and the

Kentucky Civil Rights Act.

     Appellant Atwell also asserted claims under Kentucky law for

assault and battery, outrage, and infliction of emotional

distress.   The district court granted Appellees summary judgment

with respect to each of those claims.

     Under Kentucky law, the torts of outrage and intentional

infliction of emotional distress are premised upon extreme and

outrageous conduct intentionally or recklessly causing emotional

distress.   See Craft v. Rice, 671 S.W.2d 247, 251 (Ky. 1984).     In

Appellant Atwell’s case, the same evidentiary defects that

prevent his establishing liability under the United States

Constitution for his injuries also precludes recovery for outrage

or intentional infliction of emotional distress.

     Having concluded that the actions of the Hart County Jail

personnel that are the basis of Appellant Atwell’s assault and

battery claim were objectively reasonable in the § 1983 context,

we further conclude that Mr. Atwell could not prove his claim

under Kentucky law.   See Fultz v. Whittaker, 261 F.Supp.2d 767,

783 (W.D.Ky. 2003).   The district court did not, therefore, err

in granting summary judgment to Appellees with respect to

Appellant Atwell’s tort claims under Kentucky law.


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     For the foregoing reasons, we AFFIRM the district court’s

grant of summary judgment to Appellees on all of Appellant

Atwell’s claims.




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