Gipe v. State, No. 515-7-11 Rdcv (Teachout, J., October 2, 2014)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                               CIVIL DIVISION
Rutland Unit                                                                                           Docket No. 515-7-11 Rdcv

James Gipe, as Administrator of the
Estate of Ashley Ellis,
       Plaintiff

           v.

State of Vermont, Vermont Department
of Corrections, et al.,
       Defendants



                                                   DECISION
                               Defendants’ Partial Motions for Summary Judgment


        Ashley Ellis’s incarceration for a misdemeanor at the Northwest State Correctional
Facility in Swanton, Vermont began on August 14, 2009. At the time, she weighed about 90
pounds and looked emaciated. She had symptoms of hypokalemia, meaning a dangerously low
potassium level that is associated with eating disorders and can lead to death if untreated. Prior
to incarceration, her hypokalemia was managed with a potassium prescription and diet under the
care of her physician. The Department of Corrections and the entity with whom it contracted to
provide health care to inmates, Corizon, Inc. (formerly known as Prison Health Services, Inc.),
were fully aware of Ms. Ellis’s condition and its seriousness at the outset of her incarceration.
Despite numerous requests by her, and others on her behalf, for her medication and extra food,
and amidst indications that her poor health was degrading further, she never was given her
potassium medication while in jail. Left completely untreated over her protests, hypokalemia
killed Ms. Ellis by the morning of August 16, 2009, a couple of weeks short of her 24th birthday.

        Ms. Ellis’s estate settled out of court with Corizon, Inc., and then filed this action against
the State. The claims in the complaint are as follows: deliberate indifference to Ms. Ellis’s
serious health needs in violation of the Eighth Amendment (count 1); intentional infliction of
emotional distress due to offensive remarks made to Ms. Ellis by corrections officers (count 2);
negligent failure to provide health care (count 3); punitive damages in relation to all claims
(count 4); and wrongful death (count 5). Defendants have filed two partial motions for summary
judgment that, together, address all claims.

        When this case was filed, or in anticipation of it, the State sought a defense and
indemnity from Corizon pursuant to their contract with regard to all the claims other than
intentional infliction of emotional distress, which it recognized was outside the indemnity
provision. Corizon took the position that its settlement with Ms. Ellis’s estate and the related
covenant not to sue insulated both it and the State defendants, intended third-party beneficiaries
of the covenant, from any claims within the scope of the contractual indemnity provision. It thus
declined to provide a defense. The State then initiated a declaratory judgment action in the
Chittenden civil division, rather than bringing the same claim in this case, to resolve the matter.
State v. Corizon Health, Inc., No. 784-7-11 Cncv (Vt. Super. Ct.). The trial court ruled in
Corizon’s favor. The Supreme Court reversed. State v. Prison Health Services, Inc., 2013 VT
119. Corizon thus provided counsel to defend the State in this case with regard to all substantive
counts other than intentional infliction of emotional distress, and has filed a partial motion for
summary judgment addressing those claims.1 The State, through its own counsel, has filed a
partial summary judgment motion addressing the emotional distress claim. The State also
addressed the Eighth Amendment claim that already had been addressed in the motion filed by
the counsel supplied by Corizon.


         All claims other than intentional infliction of emotional distress

        Plaintiff does not oppose the summary judgment motion addressing all claims other than
intentional infliction of emotional distress and the Court grants it. It requires brief explanation,
however. The motion is based largely on the terms of the covenant not to sue that Ms. Ellis’s
estate entered into in relation to the settlement with Corizon. The covenant operates, as
Defendants assert with Plaintiff’s assent, to protect the State defendants from any claims based
on the failure to provide health care to Ms. Ellis. The Eighth Amendment, negligence, and
wrongful death claims all are based, at least in part, on the failure to provide health care to Ms.
Ellis. Plaintiff thus has not opposed this motion.

        With regard to the Eighth Amendment claim, there is but one, that agents of the State
were deliberately indifferent to Ms. Ellis’s serious health needs. This claim for damages is
brought under 42 U.S.C. § 1983. Neither the State nor state actors in their official capacity are
subject to a damages claim under § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58,
70–71 (1989). Assuming they were named in their personal capacities, the only defendants in
this case other than the State are the DOC’s director of medical services when the underlying
events unfolded, the commissioner of corrections, and the superintendent of the facility where
Ms. Ellis was incarcerated. There are no allegations with respect to these three individuals that
could be related to anything other than the deprivation of health care. There are no other
defendants.2 Granting the summary judgment motion first addressing the Eighth Amendment
claim thus disposes of the claim entirely. For that reason, the Court will not address it again
even though Defendants raised it in their second motion as well.


1
 Punitive damages is framed in the complaint as a separate claim rather than merely as a form of damages. To the
extent that the claim for punitive damages derives from the claims for which Corizon has provided a defense, its
summary judgment motion extends to punitive damages.
2
  The State raises the lack of any relevant defendant as a basis for summary judgment on the Eighth Amendment
claim. It did so, however, for the first time in its reply brief, depriving Plaintiff of a fair opportunity to respond in
the context of that motion. The court mentions the lack of any relevant defendant here solely to help show that there
is one Eighth Amendment claim—not two—and it was addressed in the summary judgment to which Plaintiff
assented.

                                                           2
        Intentional infliction of emotional distress

         Plaintiff’s emotional distress claim is based on allegations that correctional officers
taunted Ms. Ellis by calling her “potassium girl” and making such statements as “potassium girl
needs a sandwich.” The statements allegedly were made by the guards from whom Ms. Ellis
repeatedly sought assistance in getting her medication and extra food. The State disputes that
any such statements ever occurred and argues that, even if they did, they amount to nothing more
than the sort of mere insults that, as a matter of law, cannot rise to the level of intentional
infliction of emotional distress. Plaintiff has come forward with the testimony of an inmate who
was present during Ms. Ellis’s incarceration and has asserted that such statements were made.
For purposes of the State’s motion, the Court treats the allegations as true.

         The tort of intentional infliction of emotional distress is described in the Restatement
(Second) of Torts as follows: “One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for such emotional
distress.” Restatement (Second) of Torts § 46(1); see Sheltra v. Smith, 136 Vt. 472, 475–76
(1978) (adopting § 46 in Vermont).3 The standard is high. “The conduct must be ‘so outrageous
in character, and so extreme in degree, as to go beyond all possible bounds of decency, and . . .
be regarded as atrocious, and utterly intolerable in a civilized community.’” Denton v.
Chittenden Bank, 163 Vt. 62, 66 (1994) (quoting Restatement § 46 cmt. d). “The court makes
the initial determination of whether a jury could reasonably find that the alleged conduct satisfies
all the elements of an IIED claim.” Fromson v. State, 2004 VT 29, ¶ 14, 176 Vt. 395. A
plaintiff cannot rely upon his perceptions of the defendant’s motives to establish the tort—the
test is objective. Id. ¶¶ 17, 15; Baldwin v. Upper Valley Services, Inc., 162 Vt. 51, 57 (1994).

        In its motion, the State minimizes the gravity of the statements that a jury could
reasonably find were made by focusing on the words in the alleged statements, devoid of
context. The State contends that merely calling someone “potassium girl” is not inherently
extreme and outrageous. Context matters, however, as do the circumstances under which words
are said and the knowledge, demeanor, and tone of the speaker. “The extreme and outrageous
character of the conduct may arise from the actor’s knowledge that the other is peculiarly
susceptible to emotional distress, by reason of some physical or mental condition or peculiarity.
The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face

3
 In numerous cases, courts condense the element of extreme and outrageous conduct to simply outrageous conduct.
The third Restatement clarifies that these are separate issues.

        The adjectives “extreme” and “outrageous” are used together in a fashion that might suggest that
        each merely emphasizes the other, rather than serving a distinct role. However, some conduct that
        may be outrageous—for example, marital infidelity—is sufficiently common that it could not be
        characterized as extreme (although today it may also not be outrageous). Similarly, some extreme
        conduct—climbing Mt. Everest, for example—is not outrageous. Thus, this double limitation,
        “extreme and outrageous,” requires both that the character of the conduct be outrageous and that
        the conduct be sufficiently unusual to be extreme.

Restatement (Third) of Torts: Phys. & Emot. Harm § 45 cmt. d.

                                                        3
of such knowledge, where it would not be so if he did not know.” Restatement (Second) of Torts
§ 46 cmt. f, cited in Denton, 163 Vt. at 68.

        In this case, the guards were aware that Ms. Ellis was emaciated and in poor health. The
guards also were aware that Ms. Ellis repeatedly was asking them for assistance in obtaining her
potassium medication and adequate food. It is reasonable to infer that they were aware that she
was not receiving her potassium despite the many requests she made for it. In these
circumstances, a jury could reasonably infer that Ms. Ellis was unusually susceptible to
emotional distress. The jury could further infer, based on its consideration of the evidence as to
the demeanor and tone of the officers, that under the circumstances the reference to potassium
was a taunt. It could also infer that taunting her with references to the sought-after potassium
that presumably would have saved her life was knowingly done as her condition worsened and
she progressed toward a life-threatening state. The jury also could reasonably infer that such
taunts actually caused emotional distress, even though Ms. Ellis is not here to so testify.

        While it is not necessarily the case that trial evidence would support such inferences, this
type of evidence cannot be evaluated without witness presentation of details about specific
circumstances, tone, and demeanor. The Court cannot conclude that, depending on the exact
evidence presented at trial, the jury could not find that the conduct was both extreme in severity
and outrageous in character.

        The record is not particularly well developed on exactly what may have been said and
what all of the circumstances were. It is adequate at present, therefore, to conclude that
Plaintiff’s intentional infliction of emotional distress claim cannot be decided as a matter of law
and should be decided by the jury on the evidence. Summary judgment is not appropriate.


                                              ORDER

        For the foregoing reasons, summary judgment is granted to Defendants on all claims
other than intentional infliction of emotional distress.

        A pretrial status conference will be scheduled with respect to trial of the emotional
distress claim.

       Dated at this 1st day of October, 2014.


                                                      _____________________________
                                                      Mary Miles Teachout,
                                                      Superior Judge




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