Jones v. Corbitt et al (INMATE 1)

Filing 42

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 12/15/2011. (wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
FRANK JONES, #118930,

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Plaintiff,
v.

DR. CORBITT, et al.,
Defendants.

CASE NO. 2:09-CV-367-WC
[WO]

MEMORANDUM OPINION
I. INTRODUCTION
This 42 U.S.C. § 1983 action is before the court on a complaint filed by Frank Jones
[“Jones”], a state inmate, in which he challenges the medical treatment provided to him for
chronic constipation and related bowel discomfort during his confinement at the Elmore
Correctional Facility [“Elmore”]. Specifically, Jones alleges the defendants failed to
provide “the treatment necessary to eliminate” his constipation. Pl.’s Compl. (Doc. No. 1)
at 3. Jones names Dr. Corbitt, Dr. McAuther and Correctional Medical Services as
defendants in this cause of action.1 Jones seeks monetary damages and requests issuance
of an order requiring the defendants to provide him proper medical treatment for his
chronic constipation. Id. at 4.

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The defendants indicate Dr. Corbitt’s true name is Dr. Paul Corbier and further advise Dr.
McAuther is actually Donald McArthur, a physician’s assistant.

The defendants filed a special report and relevant supporting evidentiary materials
addressing Jones’ claim for relief. Pursuant to the orders entered in this case, the court
deems it appropriate to construe this report as a motion for summary judgment. June 15,
2009 Order (Doc. No. 18). Thus, this case is now pending on the defendants’ motion for
summary judgment. Upon consideration of this motion, the evidentiary materials filed in
support thereof and the plaintiff’s response to the motion, the court concludes that the
defendants’ motion for summary judgment is due to be granted.
II. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there is
no genuine [dispute] as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258,
1263 (11th Cir. 2007) (per curiam) (citation to former rule omitted); Fed. R. Civ. P. 56(a)
(“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”).2
The party moving for summary judgment “always bears the initial responsibility of
2

Effective December 1, 2010, Rule 56 was “revised to improve the procedures for presenting and
deciding summary-judgment motions.” Fed. R. Civ. P. 56 Advisory Committee Notes. Under this revision,
“[s]ubdivision (a) carries forward the summary-judgment standard expressed in former subdivision (c),
changing only one word – genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the focus of
a summary-judgment determination.” Id. “‘Shall’ is also restored to express the direction to grant summary
judgment.” Id. Thus, although Rule 56 underwent stylistic changes, its substance remains the same and,
therefore, all cases citing the prior versions of the rule remain equally applicable to the current rule.

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informing the district court of the basis for its motion, and identifying those portions of the
[record, including pleadings, discovery materials and affidavits], which it believes
demonstrate the absence of a genuine issue [ – now dispute – ] of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by
presenting evidence indicating there is no dispute of material fact or by showing that the
nonmoving party has failed to present evidence in support of some element of its case on
which it bears the ultimate burden of proof. Id. at 322-24.
The defendants have met their evidentiary burden and demonstrated the absence of
any genuine dispute of material fact. Thus, the burden shifts to the plaintiff to establish,
with appropriate evidence beyond the pleadings, that a genuine dispute material to his case
exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); Celotex, 477 U.S.
at 324; Fed. R. Civ. P. 56(e)(3) (“If a party fails to properly support an assertion of fact or
fails to properly address another party’s assertion of fact by [citing to materials in the
record including affidavits, relevant documents or other materials] the court may . . . grant
summary judgment if the motion and supporting materials – including the facts considered
undisputed – show that the movant is entitled to it.”) A genuine dispute of material fact
exists when the nonmoving party produces evidence that would allow a reasonable factfinder to return a verdict in its favor. Greenberg, 498 F.3d at 1263.
In civil actions filed by inmates, federal courts

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must distinguish between evidence of disputed facts and disputed matters of
professional judgment. In respect to the latter, our inferences must accord
deference to the views of prison authorities. Unless a prisoner can point to
sufficient evidence regarding such issues of judgment to allow him to prevail
on the merits, he cannot prevail at the summary judgment stage.
Beard v. Banks, 548 U.S. 521, 530 (2006) (internal citation omitted). Consequently, to
survive the defendants’ properly supported motion for summary judgment, Jones is
required to produce “sufficient [favorable] evidence” which would be admissible at trial
supporting his claim for relief. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986);
Fed. R. Civ. P. 56(e). “If the evidence [on which the nonmoving party relies] is merely
colorable . . . or is not significantly probative . . . summary judgment may be granted.” Id.
at 249-50. “A mere ‘scintilla’ of evidence supporting the opposing party’s position will
not suffice; there must be enough of a showing that the [trier of fact] could reasonably find
for that party. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 2512, 91 L.Ed.2d
202 (1986).” Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir. 1990). Conclusory
allegations based on subjective beliefs are likewise insufficient to create a genuine issue
of material fact and, therefore, do not suffice to oppose a motion for summary judgment.
Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001);
Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (plaintiff’s “conclusory
assertions . . . , in the absence of [admissible] supporting evidence, are insufficient to
withstand summary judgment.”); Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995)

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(grant of summary judgment appropriate where inmate produces nothing beyond “his own
conclusory allegations” challenging actions of the defendants); Fullman v. Graddick, 739
F.2d 553, 557 (11th Cir. 1984) (“mere verification of party’s own conclusory allegations
is not sufficient to oppose summary judgment . . . .”). Hence, when a plaintiff fails to set
forth specific facts supported by requisite evidence sufficient to establish the existence of
an element essential to his case and on which the plaintiff will bear the burden of proof at
trial, summary judgment is due to be granted in favor of the moving party. Celotex, 477
U.S. at 322 (“[F]ailure of proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial.”); Barnes v. Southwest Forest Indus.,
Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on any part of the prima facie case the plaintiff
presents insufficient evidence to require submission of the case to the trier of fact, granting
of summary judgment is appropriate).
For summary judgment purposes, only disputes involving material facts are relevant.
United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla.,
363 F.3d 1099, 1101 (11th Cir. 2004). What is material is determined by the substantive
law applicable to the case. Anderson, 477 U.S. at 248; Lofton v. Sec’y of the Dep’t of
Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004) (“Only factual disputes that
are material under the substantive law governing the case will preclude entry of summary
judgment.”). “The mere existence of some factual dispute will not defeat summary

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judgment unless that factual dispute is material to an issue affecting the outcome of the
case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003)
(citation omitted). To demonstrate a genuine dispute of material fact, the party opposing
summary judgment “must do more than simply show that there is some metaphysical doubt
as to the material facts . . . . Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.’”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In cases
where the evidence before the court which is admissible on its face or which can be
reduced to admissible form indicates that there is no genuine dispute of material fact and
that the party moving for summary judgment is entitled to it as a matter of law, summary
judgment is proper. Celotex, 477 U.S. at 323-24 (Summary judgment is appropriate where
pleadings, evidentiary materials and affidavits before the court show there is no genuine
dispute as to a requisite material fact); Waddell, 276 F.3d at 1279 (To establish a genuine
dispute of material fact, the nonmoving party must produce evidence such that a reasonable
trier of fact could return a verdict in his favor).
Although factual inferences must be viewed in a light most favorable to the
nonmoving party and pro se complaints are entitled to liberal interpretation by the courts,
a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine
dispute of material fact. Beard, 548 U.S. at 525; Brown v. Crawford, 906 F.2d 667, 670

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(11th Cir. 1990). Thus, the plaintiff’s pro se status alone does not mandate this court’s
disregard of elementary principles of production and proof in a civil case. In this case,
Jones fails to demonstrate a requisite genuine dispute of material fact in order to preclude
summary judgment. Matsushita, supra.
III. DISCUSSION
A. Absolute Immunity
With respect to any claim lodged against the defendants in their official capacities,
they are immune from monetary damages. Official capacity lawsuits are “in all respects
other than name, . . . treated as a suit against the entity.” Kentucky v. Graham, 473 U. S.
159, 166 (1985). “A state official may not be sued in his official capacity unless the state
has waived its Eleventh Amendment immunity, see Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), or Congress has
abrogated the state’s immunity, see Seminole Tribe v. Florida, [517 U.S. 44, 59], 116 S.Ct.
1114, 1125, 134 L.Ed.2d 252 (1996). Alabama has not waived its Eleventh Amendment
immunity, see Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990) (citations
omitted), and Congress has not abrogated Alabama’s immunity. Therefore, Alabama state
officials are immune from claims brought against them in their official capacities.”
Lancaster v. Monroe Cnty., 116 F.3d 1419, 1429 (11th Cir. 1997). In light of the
foregoing, it is clear to the court that the defendants are state officials entitled to sovereign

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immunity under the Eleventh Amendment for any claim seeking monetary damages from
them in their official capacities. Lancaster, 116 F.3d at 1429; Jackson v. Georgia Dep’t
of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994); Parker v. Williams, 862 F.2d 1471 (11th
Cir. 1989).
B. Disposition of Deliberate Indifference Claim
In September of 2008, Jones arrived at Elmore and the “defendants . . . prescribed
medication and [sustenance] for plaintiff because plaintiff cannot [swallow] solid food; but
will not order the treatment necessary to [determine and] eliminate the [exact] problem.”
Pl.’s Compl. (Doc. No. 1) at 3. Jones alleges the defendants failed to provide adequate
medical treatment for his chronic constipation which caused him to “suffer with serious
stomach pain” and experience significant weight loss. Id. The defendants deny they acted
with deliberate indifference to Jones’ medical condition and, instead, maintain they
provided Jones with appropriate treatment for his condition.
To prevail on a constitutional claim concerning an alleged denial of adequate
medical treatment, an inmate must, at a minimum, show that those responsible for
providing the treatment acted with deliberate indifference to his serious medical needs.
Estelle v. Gamble, 429 U.S. 97 (1976); Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000);
McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999); Waldrop v. Evans, 871 F.2d 1030,
1033 (11th Cir. 1989); Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986).

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Specifically, medical personnel may not subject inmates to “acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S.
at 106, 97 S.Ct. at 292; Mandel v. Doe, 888 F.2d 783, 787 (11th Cir. 1989). When seeking
relief based on deliberate indifference of responsible officials, an inmate is required to
establish “an objectively serious need, an objectively insufficient response to that need,
subjective awareness of facts signaling the need and an actual inference of required action
from those facts.” Taylor, 221 F.3d at 1258; McElligott, 182 F.3d at 1255 (for liability to
attach, the official must know of and then disregard an excessive risk to the prisoner).
Thus, deliberate indifference occurs only when a defendant “knows of and disregards an
excessive risk to inmate health or safety; the [defendant] must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists and he
must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Johnson v.
Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (defendant must have actual knowledge of a
serious condition, not just knowledge of symptoms, and ignore known risk to serious
condition to warrant finding of deliberate indifference). Furthermore, “an official’s failure
to alleviate a significant risk that he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the infliction of punishment.”
Farmer, 511 U.S. at 838.
In articulating the scope of inmates’ right to be free from deliberate
indifference, . . . the Supreme Court has . . . emphasized that not ‘every claim
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by a prisoner that he has not received adequate medical treatment states a
violation of the Eighth Amendment.’ Estelle, 429 U.S. at 105, 97 S.Ct. at
291; Mandel, 888 F.2d at 787. Medical treatment violates the eighth
amendment only when it is ‘so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness.’
Rogers, 792 F.2d at 1058 (citation omitted). Mere incidents of negligence
or malpractice do not rise to the level of constitutional violations. See
Estelle, 429 U.S. at 106, 97 S.Ct. at 292 (‘Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.’);
Mandel, 888 F.2d at 787-88 (mere negligence or medical malpractice ‘not
sufficient’ to constitute deliberate indifference); Waldrop, 871 F.2d at 1033
(mere medical malpractice does not constitute deliberate indifference). Nor
does a simple difference in medical opinion between the prison’s medical
staff and the inmate as to the latter’s diagnosis or course of treatment support
a claim of cruel and unusual punishment. See Waldrop, 871 F.2d at 1033
(citing Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). Moreover, “whether government
actors should have employed additional diagnostic techniques or forms of treatment ‘is a
classic example of a matter for medical judgment’ and therefore not an appropriate basis
for liability under the Eighth Amendment.” Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir.
1995); Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (mere fact that prison
inmate desires a different mode of medical treatment does not amount to deliberate
indifference violative of the Constitution); Garvin v. Armstrong, 236 F.3d 896, 898 (7th
Cir. 2001) (“A difference of opinion as to how a condition should be treated does not give
rise to a constitutional violation.”); Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir.
1981) (prison medical personnel do not violate the Eighth Amendment simply because their
opinions concerning medical treatment conflict with that of the inmate-patient).
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To be deliberately indifferent, Defendants must have been
“subjectively aware of the substantial risk of serious harm in order to have
had a ‘“sufficiently culpable state of mind.”’” Farmer, 511 U.S. at 834-38,
114 S.Ct. at 1977-80; Wilson v. Seiter, 501 U.S. 294, 299, 111 S.Ct. 2321,
2324-25, 115 L.Ed.2d 271 (1991). . . . Even assuming the existence of a
serious risk of harm and causation, the prison official must be aware of
specific facts from which an inference could be drawn that a substantial risk
of serious harm exists–and the prison official must also “draw that
inference.” Farmer, 511 U.S. at 837, 114 S.Ct. at 1979.
Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2001). Thus, for Jones to survive
summary judgment on his deliberate indifference claim against the defendants, he is
“required to produce sufficient evidence of (1) a substantial risk of serious harm; (2) the
defendants’ deliberate indifference to that risk; and (3) causation.” Hale v. Tallapoosa
County, 50 F.3d 1579, 1582 (11th Cir. 1995).
The medical records filed herein demonstrate that during Jones’ confinement at
Elmore correctional medical personnel, in accordance with their professional judgment and
as dictated by their assessment of his condition, consistently provided treatment to Jones
for his constipation and resulting bowel discomfort. Def.’s Ex. A (Aff. of Donald
McArthur - Doc. No. 16-1) at 1-11; Def.’s Ex. B (Aff. of Paul Corbier, M.D.- Doc. No. 162) at 2-6; Def.’s Ex. A (Medical Records of Frank Jones - Doc. No. 16-1) at 13-204. The
probative evidentiary materials before the court further demonstrate that the prison medical
staff routinely examined Jones, thoroughly evaluated his complaints, carried out requisite
tests, performed x-rays, referred him to a free-world physician specializing in

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gastroenterology for additional evaluation and treatment, provided medical profiles
allowing contravention of normal correctional procedures, and prescribed various
medications for both pain relief and in an effort to alleviate his constipation. The
prescribed medications included Prilosec, Zantac, Reglan, Milk of Magnesia, Lactulose,
Colace, Mylanta, Simethicone, Phenergan, Dulcolax, Fleets Enema, Magcitrate, Ultram,
Percogesic, Tylenol and hemorrhoid cream. Medical personnel followed all orders
regarding Jones’ treatment in accordance with the instructions issued by the attending
physician, physician’s assistant and the free-world physician.
Defendant McArthur sets forth the following summary of medical treatment
provided to Jones regarding the claim presented in the instant complaint:
During my employment at Staton, I did participate in the provision of
medical services to Mr. Jones . . . . Because of the close proximity of Staton
and Elmore Correctional Facility (“Elmore”), the medical staff at Staton is
often involved in and/or responsible for the provision of medical services to
those inmates at Elmore. Mr. Jones first arrived at Elmore Correctional
Facility on September 8, 2008 . . . .
***
Prior to his arrival at Elmore . . . , Mr. Jones had experienced chronic
constipation and bowel discomfort over a significant period of time. In fact,
as of the time of his arrival at Elmore, Mr. Jones had been heavily dependent
upon laxatives for some period of time in order to achieve any bowel
movement. In February of 2006, Mr. Jones underwent an EGD study [or
esophago gastroduodenoscopy which entails the use of a fiber optic scope to
view the esophagus and stomach] during his incarceration at Bibb
Correctional Facility, which was . . . inconclusive and only resulted in a
recommendation [from the free world physician] that Mr. Jones continue
taking Prilosec (a proton pump inhibitor) and consider further study if the
symptoms persisted. In the month prior to his transfer to Elmore, x-rays of
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Mr. Jones’s abdomen and chest did not reveal any specific condition leading
to his complaints of chronic constipation.
Upon his arrival at Elmore, Mr. Jones began receiving medications,
medical treatment and evaluations on a regular basis for his complaints of
chronic constipation. From the time of his arrival at Elmore in September of
2008 through April of 2009 [the period of time relevant to this case], Mr.
Jones was seen by me and/or Dr. Corbier on a least twenty-five (25) different
occasions, averaging roughly three examinations per month.
Mr. Jones did not submit any sick call request forms requesting . . .
medical treatment between September and December of 2008, but he did
submit a total of 13 sick call request forms between January 1, 2009, and
May 14, 2009. Though some of the sick call request forms submitted by Mr.
Jones during this period of time did relate to other non-urgent medical
conditions, a majority of the sick call request forms did relate to his
complaints of chronic constipation [and associated pain]. As indicated in his
medical records, on each occasion that Mr. Jones requested any medical
attention during this period of time, he was promptly seen by members of the
medical staff at Staton. In addition to the occasions when Mr. Jones
requested non-urgent medical attention through the sick call process, he also
was brought to the health care unit for immediate evaluation on nine (9)
different occasions between January and May of 2009. As indicated in [the
plaintiff’s medical records submitted herewith], on each occasion that Mr.
Jones made complaints which were deemed urgent in nature or warranting
immediate evaluation by the medical staff, he was immediately brought to the
attention of the medical staff and was evaluated promptly by a member of the
medical staff.
Throughout his incarceration at Elmore, Mr. Jones has received orders
from me and other members of the medical staff (including Dr. Corbier) to
receive a dietary supplement, Ensure. We regularly attempted to re-evaluate
and adjust Mr. Jones’s medication regime to find the combination of
medications best suited to address his complaints. I, along with Dr. Corbier,
attempted to control Mr. Jones’s chronic constipation through numerous
different medications including: Prilosec (proton pump inhibitor), Zantac,
Reglan, Milk of Magnesia, laxatives (Lactulose), stool softeners (Colace),
anti-gas medications (Mylanta and Simethicone), anti-nausea medication
(Phenergan), suppositories (Dulcolax), bowel preparations to clear his bowel
(Fleets enema and Magcitrate), pain medications (Ultram, Percogesic,
Tylenol) and hemorrhoid cream.
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Because of the various medications prescribed for him, it has been and
is important for Mr. Jones to take his medication, as prescribed. Mr. Jones
has demonstrated difficulty in complying with the pill call process whereby
he is provided his medication by members of the medical staff. As indicated
through his medical records, Mr. Jones failed to appear for pill call at
approximately 6:00 a.m. [the early morning pill call] on at least sixteen (16)
different occasions in the beginning of March 2009 to receive his Lactulose
(laxative medication). More recently, Mr. Jones has been permitted to keep
possession of his own medication without going through the pill call process.
While this process does make the medication more accessible to Mr. Jones,
it also eliminates [the medical staff’s] ability to monitor his day-to-day
medication administration and requires him to notify us in the event that his
medication unexpectedly needs refilling or if he has lost or otherwise been
unable to take his medication. Therefore, in the event that Mr. Jones has not
recently received any of this medications, it is due to his failure to notify the
medical staff that he has either run out of medication, or for whatever reason,
misplaced or lost his medication so that it cannot be taken.
In addition to the medication prescribed for him, [the medical staff]
has also conducted other testing and ordered additional consultations
regarding his complaints of chronic constipation. The medical staff has
conducted extensive laboratory testing, i.e. blood work and urinalyses in
order to attempt to derive some understanding as to the cause of Mr. Jones’s
continued complaints of constipation and abdominal discomfort without any
clear cut answers. When necessary, Mr. Jones has been housed in the
infirmary or “Medical Observation Unit” at Staton so that he could receive
fluids intravenously. Mr. Jones underwent a barium enema which also did
not reveal any cause for his symptoms. In October of 2008, Mr. Jones
developed an anal fissure (likely secondary to his chronic constipation),
which was eventually resolved through various medications.
[The medical staff] regularly entered orders permitting Mr. Jones to
deviate from the protocols and requirements imposed upon the inmate
population by the ADOC policies and procedures, allowing him to remain in
his bunk for extended periods of time over the course of [the time allowed
by the pertinent profile].
Ultimately, we elected to refer Mr. Jones to a gastroenterologist in .
. . February of 2009, for further evaluation of his complaints. Following a
February, 2009, appointment with a gastroenterologist, the medical staff
scheduled Mr. Jones for two procedures recommended by the
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gastroenterologist: a colonoscopy and an esophago gastroduodenoscopy,
also known as an “EGD”. Mr. Jones [subsequently] underwent a
colonoscopy on March 26, 2009, which did not result in any findings of any
significance other than a hemorrhoid and one colon polyp that was not likely
the cause of his continued complaints of constipation. At that time, he also
underwent the EGD in which the specialist determined that Mr. Jones likely
suffered from an inflammation of his digestive tract, but did not find any
specific reasons for Mr. Jones’s chronic constipation. As part of Mr. Jones’s
March, 2009, consultation with the gastroenterologist, the medical staff at
Staton received the [free-world] specialist’s opinion and recommendations
that Mr. Jones continue taking medication for gastritis (i.e inflammation of
the stomach lining) and be scheduled for a follow-up colonoscopy in March
of 2010.
In addition to treatment for his chronic constipation, Mr. Jones has
also received regular treatment for hypertension, which included
management of his condition with prescription medication and frequent
monitoring of his condition through chronic care clinics held by the medical
staff on a regular basis.
As of the date of this affidavit, I along with Dr. Corbier have made
substantial efforts in order to identify the origin or cause of Mr. Jones’s
complaints of chronic constipation. We have conducted numerous and
extensive diagnostic testing including invasive procedures such as a
colonoscopy and an EGD, as well as imaging studies. None of these
extensive tests or the additional blood work or urinalyses conducted by the
medical staff, have resulted in any findings of any kind which would enable
us (or the independent gastroenterologist) to identify any specific disease
and/or medical condition causing Mr. Jones’s chronic constipation which
could be specifically addressed either through surgical intervention or
medication. Though [correctional medical personnel] have referred Mr.
Jones to a gastroenterologist for another opinion, this consultation including
the studies directly ordered by the gastroenterologist have not resulted in any
additional findings or recommendations with regard to this particular patient.
At this time, the gastroenterologist has recommended that the medical staff
continue the current treatment regimen of medication designed to alleviate
Mr. Jones’s symptoms. In short, we simply cannot identify any cure for Mr.
Jones’s chronic constipation and there does not appear to be any medication
regimen which would completely alleviate or eliminate his symptoms.
I have not at any time ignored any request by Mr. Jones for medical
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treatment. I have not deliberately ignored any medical complaints made by
Mr. Jones or interfered in any way with the provision of medical care to Mr.
Jones at any time. I have not [knowingly] taken any action which has caused
Mr. Jones to experience any unnecessary pain and/or suffering. Much to the
contrary, I have made every effort to ensure that [correctional medical
personnel] have proactively sought out every reasonable course of medical
treatment and evaluation to identify the cause of Mr. Jones’s complaints and
alleviate or at a minimum reduce the symptoms that he has experienced.
Indeed, if I knew of a course of medical treatment that would eliminate Mr.
Jones’s chronic constipation, I would have recommended such a course of
action.
Def.’s Ex. A (Aff. of Donald McArthur - Doc. No. 16-1) at 3, 7-11 (citations to medical
records omitted).
During his tenure as the medical director at Staton, Dr. Corbier managed the medical
treatment provided to Jones from September of 2008 until March of 2009 when Corbier
accepted a position in Nashville, Tennessee. The affidavit filed by Dr. Corbier addresses
the claim before this court, in pertinent part, as follows:
As indicated in Mr. Jones’s medical records [filed herein] . . . , Mr.
Jones’s medical history demonstrated that he had experienced chronic
constipation for a period of time preceding his arrival at Elmore. At the time
of his arrival at Elmore, Mr. Jones had pending prescriptions for various
medications intended to control or reduce the symptoms associated with his
chronic bowel problems. As with any new inmate arriving at Elmore, I
reviewed his medical records and prior medical treatment in conjunction with
my first examination of him. I specifically recall that Mr. Jones’s historical
medical treatment revealed a notable reliance upon laxatives, bowel
preparations and other medications intended to improve his bowel functions,
which had provided varying degrees of relief of his symptoms – the most
significant of which was constipation. Though the medical staff at Fountain
Correctional Facility (where Mr. Jones was previously incarcerated) did
make efforts to identify a cause of Mr. Jones’s bowel condition such as an
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esophago gastroduodenoscopy or “EGD,” lab work and other imaging
studies, none of these tests had provided any information leading to a
definitive diagnosis.
When Mr. Jones arrived at Elmore, I along with Mr. Donald
McArthur, a physician’s assistant working under my supervision and
direction, made a concerted effort to identify the cause of Mr. Jones’s
chronic constipation while attempting to control and limit his symptoms
through the use of various medication regimens. Though we initially
continued Mr. Jones’s existing prescriptions ordered by his prior physician,
we later elected to alter his medications when it became evident to us that the
previously prescribed medications were not entirely effective in addressing
Mr. Jones’s complaints.
When Mr. Jones’s symptoms worsened during late 2008 and [the
beginning of] 2009, we continued to adjust his medication regimen to
provide him with relief. There was at least one occasion in the latter part of
November of 2008 when Mr. Jones[] complained of severe constipation and
discomfort and we elected to house Mr. Jones in the facility’s infirmary or
“Medical Observation Unit” in order to receive intravenous fluids. When
Mr. Jones’s symptoms subsided, he was eventually released back to the
general population at Elmore. Throughout the first roughly three (3) months
of Mr. Jones’s incarceration, we attempted to treat his chronic constipation
with medication. During this period of time, Mr. Jones received
prescriptions for various medications intended to address his complaints,
including a proton pump inhibitor, Zantac, Reglan, Milk of Magnesia,
laxatives, stool softeners, anti-gas medications, anti-nausea medication,
suppositories, bowel preparations to clear his bowel and pain medications.
Because Mr. Jones failed to regularly attend pill call to receive his
medications, we also provided his medications to him via the “Keep-on
Person” protocols so that he could self-administer his medication as
prescribed. Because of Mr. Jones’s condition, we also ordered him to take
the dietary supplement, Ensure, in an effort to ensure that he was maintaining
proper nutrition during this period of time. As we treated Mr. Jones’s
symptoms medically, we also continued to monitor Mr. Jones’s condition
through lab work, including blood testing and urinalyses. We also provided
Mr. Jones with physician’s orders (sometimes called “Profiles”) that allowed
him to deviate from the standard operating procedures of the Alabama
Department of Corrections, which, for example, allowed him to remain in his
bunk for extended periods of time.
In January of 2009, it became evident that Mr. Jones’s symptoms were
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not improving and that specialty consultations would be necessary to more
extensively investigate the cause of his continued complaints. At that time,
Mr. McArthur and I agreed to refer Mr. Jones to an outside
gastroenterologist for further evaluation.
Mr. Jones first saw a
gastroenterologist in February of 2009. Following this appointment, the
gastroenterologist recommended that Mr. Jones undergo several procedures
including another EGD as well as a colonoscopy. The medical staff at Staton
scheduled these procedures for Mr. Jones, which occurred at the end of
March, 2009. Unfortunately, both the EGD and colonoscopy failed to reveal
the cause of Mr. Jones’s chronic constipation. Following these procedures,
the consulting gastroenterologist recommended that we continue to treat Mr.
Jones for bowel inflammation, also known as “gastris,” and conduct a
follow-up colonoscopy in one year. In other words, the gastroenterologist
recommended that we continue to attempt to alleviate Mr. Jones’s symptoms
through medication.
I am not aware of any occasion that Mr. Jones voiced complaints
regarding his condition [to health care personnel] and was not evaluated in
a timely fashion by the medical staff. Mr. Jones never indicated to me that
he believed we should be doing anything more than the care that was
provided to him. I was not aware that Mr. Jones was dissatisfied or
otherwise concerned about the scope of medical services provided to him
when he was under my care.
In my professional medical opinion, Mr. Jones’s chronic constipation
has been a condition of unknown origin or epidemiology throughout the time
he was under my care. Over the course of the last approximately ten (10)
months, we followed a well-accepted and clinically appropriate course of
treatment for Mr. Jones’s complaints of chronic constipation which involved
an initial treatment through medications with monitoring through lab and
diagnostic testing followed by specialty consultation with a board-certified
gastroenterologist which confirmed the propriety of the course of treatment
being provided to Mr. Jones. There is no objective medical evidence which
provided us with any definitive grounds for a medical diagnosis of Mr.
Jones’s condition.
As confirmed by the consultation with a
gastroenterologist, there is no indication of any kind that Mr. Jones would
derive any benefit from surgical intervention of any kind. At this point, there
is no reason to believe that Mr. Jones’s condition is life-threatening, though
monitoring of his condition should continue consistent with the monitoring
provided in the past.
I have not at any time ignored any request by Mr. Jones for medical
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treatment. I have not deliberately ignored any medical complaints made by
Mr. Jones or interfered in any way with the provision of medical care to Mr.
Jones at any time . . . I have made every effort to ensure that [the
correctional medical staff] sought out every reasonable course of medical
treatment and evaluation to identify the cause of Mr. Jones’s complaints and
alleviate or at a minimum reduce the symptoms that he has experienced.
Def.’s Ex. B (Aff. of Paul Corbier, M.D. - Doc. No. 16-2) at 3-6. The undisputed medical
records support the assertions made by the defendants and contain additional details with
respect to the treatment provided to Jones.
Under the circumstances of this case, it is clear that the course of treatment
undertaken by the defendants was neither grossly incompetent nor inadequate. Although
Jones asserts he should have been provided a different treatment regimen for his chronic
constipation and related issues--a regimen he does not identify–this purely conclusory and
suppositious assertion clearly fails to establish deliberate indifference. Garvin, 236 F.3d
at 898 (difference of opinion regarding manner in which condition should be treated fails
to demonstrate a constitutional violation); Adams, 61 F.3d at 1545 (whether medical
personnel “should have employed additional . . . forms of treatment ‘is a classic example
of a matter for medical judgment’ and therefore not an appropriate basis for liability under
the Eighth Amendment.”); Hamm, 774 F.2d at 1505 (inmate’s desire for some other form
of medical treatment does not constitute deliberate indifference violative of the
Constitution); Franklin, 662 F.2d at 1344 (simple divergence of opinions between medical
personnel and inmate-patient do not violate the Eighth Amendment). It is undisputed Jones
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received significant medical treatment as dictated by objective evaluations of his condition.
Based on well settled law cited herein, his mere desire for a different mode of medical
treatment does not amount to deliberate indifference.
Jones fails to present any evidence which indicates the defendants knew the manner
in which they treated his medical condition created a substantial risk to his health and that
with this knowledge consciously disregarded such risk. The record is devoid of evidence,
significantly probative or otherwise, showing the defendants acted with deliberate
indifference to Jones’ chronic constipation. Consequently, summary judgment is due to be
granted in favor of the defendants. Carter, 352 F.3d at 1350.
A separate order will accompany this memorandum opinion.
Done this 15th day of December, 2011.

/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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