Phillips v. Monroe County, MS

Texas, Houston, issued, opinion at this 17th memorandum has SIGNED where October, judgment prior is entered day 2001. mem- opinion, orandum a party timely is free to Harmon, Dis- Melinda United States /s rehearing file a motion for a later file Judge” trict supplemental upon memorandum based Opinion The Memorandum and Order Brandt, opinion.” the memorandum actually referenced was dated and entered Here, 479, n. unambiguous- F.3d 8. it is 23, from on October 2001. Measured Oc- 17, ly clear that the October 2001 “Final 23, 2001, appeal filed tober notice of Summary Judgment” meets all the criteria 20, timely. It is November 2001 would be judgment of a Rule 58 final and that the us, however, that 17 is the clear to October Opinion October 2001 “Memorandum McKenzie, operative date. Diamond v. Moreover, and Order” does not. the no- (D.C.Cir.1985), same 770 F.2d 225 appeal purports tice of appeal here “the starts question of which document Judgment of this Court entered on Octo- arose, opinion as the clock memorandum ber 2001” and makes no mention of or following and order was filed a month Opinion reference to the Memorandum initial order. The factors that the Dia- dated and Order entered October upon holding mond court relied the first 2001. judg- a final document did not constitute ment were that it was entitled “order” Conclusion judgment,” rather than “final included appellant’s only Because we find the no- legal reasoning, substantial amount of filed, appeal timely tice of was not we hold cited a number of authorities. None jurisdiction that this does not have Court Indeed, present these factors are here. present appeal. appeal over the 'is true, 17th the converse is as the October accordingly dismissed. clearly judg- a “final document was labeled APPEAL DISMISSED. ment,” reasoning, legal did not contain legal and cited no authorities.

Thus, only potential ambiguity in the judice

case sub is that the memorandum days opinion order and was entered six Fay PHILLIPS, Sandra on Behalf of the However, judgment. after the final Wrongful Death Beneficiaries of Jon- 11th agree with the Circuit that this does PHILLIPS, Plaintiff-Appellant, athan not alter the fact that the date of the final v. judgment operative remains the date for COUNTY, MISSISSIPPI; MONROE determining appeal. the timeliness of an Dr., individually; Farmer, Charles (In Department Revenue v. Brandt re Bearry, individually, John Defen- Corp.), Southeast Bank 97 F.3d 476 dants-Appellees. Cir.1996). Although or- the memorandum opinion der final No. 01-60425. was filed after the judgment, appeal the 11th Circuit held the Appeals, United States Court of untimely run- began because the clock Fifth Circuit. ning on the date the final Oct. 2002. entered, even though the memorandum Denying Rehearing Order Dec. opinion yet to which it referred had to be noted, “Although filed. The court

grounds appeal may rehearing or clearly known or identified until the Phil-

brought under U.S.C. (the son, lips’s Jonathan Dece- dent), died from testicular cancer while serving aggravated a sentence for assault Mississippi prison system. Phillips in the wrongfully claims the defendants caused in the Decedent’s violation of the Eighth and Fourteenth Amendments by refusing the United States Constitution necessary provide the Decedent with Additionally, Phillips medical care. brought negligence a state law against County. Using Monroe the stan- dard announced in Reeves v. Sanderson Products, Inc., Plumbing U.S. (2000), 2097, 147 L.Ed.2d 105 S.Ct. affirm, plaintiff prove the failed to because necessary the causal link between the De- cedent’s death and the acts omissions Additionally, the state the defendants. County is barred against law claim Monroe ll-49-9(l)(m) by Waide, Kristy Lynn (argued), D. III Jim Code. Associates, MS, Bennett, Tupelo, &Waide Plaintiff-Appellant. for surrounding Most of the relevant facts Hill, Dil- Bradley Lamar John Samuel undisputed. this case are The Decedent Sams, Mitchell, McNutt & (argued), widespread lard testicular diagnosed with MS, County, Tupelo, cancer, for Monroe MS. including lymph disease in the nodes, cavity lungs, Sep- abdominal and Jackson, MS, Clay (argued), John Lewis and surgery 1996. He tember underwent Vincent, Mississippi Leonard Charlton in re- chemotherapy, pronounced and was Corrections, Parchman, MS, for Dept, of mission within six months. Bearry. Farmer and returned, completed Decedent’s cancer he and chemotherapy,

three more rounds in remission. Be- again to be found cancer, the diagnosed with fore he was fight, in a which Decedent was involved WIENER, GARZA, EMILIO M. Before charged and with he was later arrested PARKER, Judges. and Circuit pled guilty He aggravated assault. years imprisonment, to 20 was sentenced GARZA, Judge: EMILIO M. Circuit The Decedent years suspended. with 15 May ap- began serving his sentence Fay Phillips, plaintiff, Sandra custody into as a when he was taken peals the district court’s Department County, County Sheriffs in favor of Monroe matter of law (the Farmer, Department”). Soon there- and Dr. “Sheriffs Mississippi, Dr. Charles after, pains, of chest (collectively began complaining he Bearry “the defen- John breath, headaches, spit- dants”), shortness of death suit process time-consuming, but Dr. Farmer learning symp- of his Upon up ting blood. family immediately managed appointment to schedule an toms, Dr. Hill. oncologist, July Julian the Decedent for his contacted Tupelo, Mississippi. Dr. Hill was located July the Decedent suffered ab- On jail between Due to the distance pain began vomiting. He was dominal Hill’s office, Dr. Hill instructed emergency room the Univer- sent to take the Decedent Department Sheriffs Center, pneu- sity diagnosed with Medical After for blood work. physician ato local antibiotics, monia, and returned to given tests, of the blood the results reviewing later, days the Dece- prison. Eight brought the Decedent Dr. Hill insisted began having seizures and fell uncon- dent tests. The Sheriffs him further to for immediately scious in his cell. He and the Decedent Department complied, University to the Medical transported tests, including CT extensive had more Center, with a diagnosed where he scans, 24th. Dr. Hill found that on June treating The Decedent’s brain tumor. reappeared in cancer had Center, Dr. physicians including at and Dr. spread spleen, to his lungs his and that the testicu- Thigpen, James concluded family and the the Decedent’s Hill advised to the Dece- lar cancer had metastasized Decedent Department Sheriffs brain, they prescribed immedi- dent’s chemotherapy salvage needed to receive therapy. radiation aggressive ate begin it should no immediately and that chemotherapy treating physicians felt 29th. later than June therapy not have been an effective would and not disputed that are For reasons Despite tumor. the radiation for the brain De- analysis, the Sheriffs relevant to our treatments, July the Decedent died on have the Decedent sought to partment certificate lists the and his death system to prison state to the transferred of death as herniation of the brain cause It chemotherapy treatments. receive his due to cancer. sentencing attempted to have the first action Phillips subsequently brought this Decedent’s sentence so modify court of the death beneficia- behalf during be under house arrest that he could Decedent, alleging that his ries of the treatment, he was judge but the found his County’s refusal death was due to Monroe Monroe jurisdiction to do so. without provide necessary medical care and fail- to contacted Dr. County’s Deputy next Chief policies providing ure for medical to have Director at the Bearry, the Medical John in prisoners treatment for those need of Penitentiary at Parch- Mississippi State complaint medical care. The was later man, steps what should to determine Bearry Dr. amended to include given his transfer the Decedent taken to Farmer, individually, gross negligence for Bearry’s needs. Dr. office advised medical willful indifference to the Decedent’s immediately Department to the Sheriffs deliberately rights, alleging they were the Monroe the Decedent from transfer indifferent to the Decedent’s medical County jail to the Central Cor- they provide failed him needs because County. The Facility in Rankin rectional immediate course of chemothera- with the on June Decedent was transferred py prescribed by Dr. Hill. After Farmer, physician, a staff Dr. Charles case, presented her the defendants moved phys- a standard intake gave the Decedent judgment as a matter of law. The for the Decedent to ical exam and referred all granted court the motion on district University Medical Center Jackson finding that the defendants were prisoner grounds, referral cancer treatment. The omitted). Second, in reviewing nal citation- to the Dece- deliberately indifferent not record, needs, all in the we must and thus did of the evidence medical dent’s rights, and “draw all reasonable inferences favor his constitutional violate County against nonmoving party” and “not make cred the state law y Mississippi had not weigh because determinations the evi was barred ibilit words, cir- Id. immunity this sovereign give In other we must waived its dence.” supporting the cumstance. credence to the evidence any sup nonmovant as well as evidence court’s rul review a district We porting moving party that is uncontra- judgment as a matter a motion for ing on dicted, unimpeached, and not attributable Magromer Industrias law de novo. Id. witnesses. interested Bayou v. Louisiana y Pieles S.A. Cueros S.Ct. 2097. Cir.2002). Inc., Furs 50(a) provides a cause of action Section Rule of Civil Procedure Federal subjected persons depri- who are judg render a that a court should states right by per- constitutional vation of party of law when “a has as a matter ment color of state or acting son on an issue and there fully been heard Although Phillips brings federal law. evidentiary basis for legally no sufficient 1983, § court under she is suit federal party that on jury to find for reasonable rights that her alleging not constitutional In Reeves v. Sanderson issue.” Likewise, Products, Inc., not were violated. she does Supreme Plumbing the personal representative relief as the seek a court should approach clarified the Court words, In other of the Decedent’s estate.1 as a matter granting a use when own Phillips suing is not to redress her First, the record we must review of law. 133, 150, any § constitutional claims 120 1983 claims a 530 U.S. “taken as whole.” (2000) (inter- prior to 2097, might the Decedent have had his 147 L.Ed.2d 105 S.Ct. ries; alleged the as carefully the facts characterize suit reviewed the record for 1. We have claim; parties, wrongful and the as brought death as a any that this suit was evidence court, actions, repeatedly to the case well as the refer which action because such survival hand, suits, wrongful On the other as a death suit. very wrongful death are are similar to sought by sug- damages Phillips types the of § 1983. See Moor v. also available under bring gest might meant to both she have 693, Alameda, County 411 U.S. 702-03 n. of Impor- wrongful actions. death survival 1785, (1973) 596 93 S.Ct. 36 L.Ed.2d however, tantly, Phillips to her- never refers ("[P]ursuant survivorship § stat- to 1988 state personal repre- any plaintiffs the as self or of may the common-law rule utes which reverse estate, nor does sentatives of the Decedent’s brought the context of actions be used in clearly in fact the Dece- assert that she is she 1983.”); Cherry, § v. 293 F.2d under Brazier Under Mis- executor or administrator. dent’s (5th Cir.1961) (incorporating 406-07 statute, only survivorship sissippi's general wrongful statute and its both a state's survival administrators, executors, temporary ad- provide full remedies for death statute to may bring a action. survival ministrators violations). pause point to § We at this 1983 Thus, (1994). § 91-7-233 Miss Code Ann. emphasize importance of the distinction the status, alleging legal appropriate without wrongful death causes between survival and brought a survival Phillips could not have Phillips brought suit as action. If had this of Nichols, Berryhill v. 171 Miss. action. See action, analysis a survival causation (1935) (holding that So. 158 type of claim be different because would suffering deceased recovery pain injuries any suffered constitutional redresses negligence allegedly by of doctor caused by the Decedent his death. before by represen- only personal can be had in suit law). ambiguous by in this The record is somewhat next of kin or heirs tative. and not brought original only regard. captions Phillips could have of both Because claim, wrongful we do not conspicuously refer to the as a death complaint amended suit a survival action. wrongful address the merits of Phillips family death beneficia- as Instead, Phillips Phillips wrongful on the death causation sues behalf death. Reviewing of the De- issue. the entire record and death beneficiaries inju- drawing for the all in favor seeks to recover reasonable inferences cedent. She family Phillips, we find the evidence is uncon- Phillips suffered as result ries the turn, death, which, that, tradicted even if the defendants ar- of the Decedent’s by ranged begin caused the defendants’ for the Decedent chemo- allegedly 29th, therapy constitutional on June as recommended violation of the Decedent’s Hill, pre- such action would have rights. vented the Decedent’s death. Wrongful recovery The Decedent’s death certificate lists the considerable confu “generated 1983 has cause of “brain herniation” death as due disagreement.” Rhyne v. sion and trial, cancer. At metastatic testicular County, 973 F.2d Henderson aunt testified that Cir.1992) Gates, Crumpton v. (quoting treating physician explained (9th Cir.1991)). 1418, 1420 The Su F.2d family that the Decedent’s death was yet has not addressed this preme Court caused when the brain tumor swelled so issue, and, while the circuits are divided much that it herniated his brain. Dr. recovery appropriate, over whether such witness, Thigpen, a disinterested testified consistently it. we have allowed See the Decedent’s death was a direct at 390-91 Rhyne, (summarizing 973 F.2d result of the cancer’s metastasis to the recovery); permitting the line of cases such chemotherapy brain and that would not Brazier, at 406-07. have influenced the brain tumor in statutes Wrongful death create new way. testimony His uncontradicted causes of action on behalf of the statutori chemotherapy is not an effective in ly-designated persons compen order to treatment brain tumors because the sate for the death of the decedent. them drugs pass do not into the brain. Phillips See, e.g., Mississippi Thames v. ex rel. during testimony confirmed her that the Shoemaker, 951 Cir. family had the doctors advised chemo- 1941) (holding Mississippi’s wrongful therapy Thigpen would be ineffective. Dr. an independent death statute creates cause also testified that the cancer did not action). action, a a Unlike survival spread delay to the in brain because of the wrongful action cannot be main death initiating chemotherapy. opinion, In his tained the defendant’s conduct is unless spread the cancer had to the brain about death. the cause of the decedent’s Shel six passed months before the Decedent Rights don H. Nahmod, and Civil Civil away. Litigation (4th ed., § 4:67 2001 Liberties Hill, It is also that Dr. undisputed update). Accordingly, plaintiff seeking treating physician, only Decedent’s had claim wrongful to recover on a death chest, abdomen, pelvis § prove alleged 1983 must both the consti scanned in late No June. CT scan was required by § deprivation tutional prior done of the Decedent’s brain to the and the causal link between the defen July onset of his seizures on 9. Dr. Hill dant’s unconstitutional acts or omissions that, further admitted at trial even with victim, required and the death of the as salvage chemotherapy pre- had he death wrongful the state’s statute. scribed, could, most, the Decedent have to whether hoped thirty forty percent We decline address for a to chance any Phillips proved temporary constitutional viola remission of his some cancer. part Finally, July tions on of the defendants because on Decedent was when jury emergency diag- no reasonable could have found for admitted to the room and (de- (5th Cir.1991) Inc., F.2d at the the doctors pneumonia, with nosed expand the “loss of doc- clining to chance” thorough neu- performed a Medical Center beyond its normal context of medical exam, were nor- trine and the results rological conclusion, In find that malpractice). testimony undisputed Thigpen’s mal. prove any acts or Phillips failed have physician no would was that at trial part on the of the defendants omissions scan to order brain any reason had death, thus she the Decedent’s symp- caused appropriate therapy until radiation prove the elements of her has failed to seizure The Decedent’s appeared. toms wrongful death claim. in record only July 9 is the evidence immediately it and was symptoms, of such the district Phillips appeals also facili- the correctional this event that after as a matter of law for court’s Univer- the Decedent ty transferred negli County on the state law treat- appropriate sity Medical Center sovereign gence Mississippi claim. waives sum, in the is no evidence In there ment. political and its subdivi immunity for itself treatment possible medical any record Code, §in 11-46-5 of the sions individual de- County or the that Monroe to numer subjects this blanket waiver but provided to save could have fendants exceptions, including those listed ous the Decedent. life of § 11-46-9 pertinent part, 11-46-9. provides: it argues her brief (l) entity chemo and its em- prove governmental her to A necessary for is not acting within the course ployees the Decedent’s would have saved therapy employment or duties fright scope of their First, she refers life. any liable for claim: suf shall not be and the Decedent anxiety both she (m) delay of the chemothera claimant who at the time the any because Of fered any confuses the deten- regard, Phillips arises is an inmate of py. In this action, workhouse, farm, center, jail, penal dam In a survival tion causation issue. institution, suffering physical penitentiary or other such the Decedent’s ages for claimant is of the al of whether such anxiety regardless as a result and mental an inmate of detention care would or is not of medical leged deprivation farm, center, workhouse, peni- jail, penal In a appropriate. have been when tentiary or other such institution context, however, are damages no the claim is filed. plaintiff has cleared until the available Am. To v. ll-46-9(l)(m) hurdle. See Wilks causation (Supp. § Ann. Miss.Code (Miss.1996) Co., 839, 842 Kim, 680 So.2d 2001). bacco 701 So.2d Sparks v. prove plaintiffs failure to (holding that (Miss.1997), Supreme 1114 wrong by the death was caused wrongful decedent’s to a applied exception this Court ll-49-9(l)(m) precludes Thus, § ful acts of the defendant bars death claim. damages death recovery negligence of state law Phillips’s statute). Mississippi’s wrongful County. against Second, need that Phillips suggests she in her brief Phillips asserts actions in- on the is unconstitutional only prove provision the defendants’ Protec Equal of death due it Decedent’s risk violates grounds creased the Amendment to refer to the of the Fourteenth cancer. seems tion clause She prisoners. applied equal protection by denying often of chance” doctrine “loss Phillips waived the constitu sup- The find that malpractice contexts. We medical present it by failing to tionality medical issue cites relate to porting cases she complaint, amended original her either and are not relevant malpractice suits it in the Co., to include by failing as as well Steamship Bach v. Trident here. See Enters., pretrial Presley may § See Elvis er maintain her order.2 own 1983 action. Inc. 141 F.3d Capece, v. however, petitioner, allege The failed to Cir.1998) (holding that claims or issues which, any, if of her own constitutional pretrial from the order are omitted Nor, rights upon review, were violated. waived, they appeared in even if the com- identify any peti- could we violation of the plaint); v. Ysleta del Sur Pueblo State of rights. tioner’s (5th Cir.1994) Texas, 1325, 1332 36 F.3d (holding inappropriate that it is to reach can

constitutional issues when case grounds).

decided on other America, of UNITED STATES reasons, For these we find that the dis- Plaintiff-Appellee, trict court properly found for the defen- dants on all claims as v. matter of law is AFFIRMED. McFARLAND, Jr., James Defendant- Appellant.

ON PETITION FOR REHEARING No. 00-10569. Before WIENER and EMILIO M. GARZA, Judges.* Circuit Appeals, United States Court of petition IT IS ORDERED for Fifth Circuit.

rehearing is DENIED. Oct. petitioner suggests The that the Court (argued), Michael R. Dreeben Dept, U.S. by ruling sponte wrong- erred sun that her Justice, Felton, Kathleen A. Dept, U.S. ful brought death cause of action under 42 Justice, Div., Appellate Criminal Sec- U.S.C. 1983 could not stand because she tion, DC, Washington, Delonia Anita Wat- prove failed to that the defendants caused son, Worth, TX, Fort for Plaintiff-Appel- death. decedent’s We note defendants did address the causation issue lee. both at trial and in their briefs. Carmon Stephen (argued), Baer U. Baer & Asso- Lubrizol, (5th Cir.1994)

v. 17 F.3d ciates, Dallas, TX, Defendant-Appel- (this liberally Court construes briefs lant. review). determining presented issues Moreover, may affirm the district any grounds

court’s decision on supported Okoye the record. v. Univ. Tex. Ctr., Houston Health Sci. KING, GARWOOD, Before Judge, Chief (5th Cir.2001). petitioner also JOLLY, HIGGINBOTHAM, DAVIS, argues holding that our is flawed because JONES, SMITH, WIENER, it explain why does not she was not al- BARKSDALE, GARZA, EMILIO M. lowed to pain recover for her own DeMOSS, BENAVIDES, STEWART, suffering. petitioner correct PARKER, DENNIS, CLEMENT, one whose own constitutional rights have been violated actions at directed anoth- Judges. Circuit * challenge ap- Judge 2. Nor does the original constitutional Parker was a member of the pear to have merit. Prisoners are anot sus- panel but retired from the court on November class, pect quasi-suspect Mississip- and the 2002, and, participate therefore did pi Supreme already Court has identified a petition rehearing. being This order is l-46-9(l)(m) legitimate state interest for by quorum pursuant entered of this court that more than meets the burden of rationali- 46(d). 28 U.S.C. Section ty Sparks, review. See 701 So.2d (finding protects that the statute the state's ability competent prison personnel). to hire

Case Details

Case Name: Phillips v. Monroe County, MS

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 18, 2002

Citation: 311 F.3d 369

Docket Number: 01-60425

Court Abbreviation: 5th Cir.