Moore v. Corizon Medical Services et al (INMATE 1)

Filing 47

OPINION. Signed by Honorable Judge Myron H. Thompson on 9/29/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
THURMON E. MOORE II,

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Plaintiff,
v.
CORIZON MEDICAL SERVICES
and DR. HOOD,
Defendants.

CIVIL ACTION NO.
2:14cv865-MHT
(WO)

OPINION
Pursuant to 42 U.S.C. § 1983, plaintiff Thurmon E.
Moore, a state prisoner, filed this lawsuit challenging
the medical care he has been provided for pain in his
hip under the Eighth Amendment.

This lawsuit is now

before the court on the recommendation of the United
States

Magistrate

Judge

that

defendants’

summary judgment should be granted.

motion

for

Also before the

court are plaintiff’s objections to the recommendation.
After an independent and de novo review of the record,
the court concludes that plaintiff’s objections should

be overruled and the magistrate judge’s recommendation
adopted as the court is convinced that plaintiff has
not

met

his

potentially
judgment

on

burden

of

admissible
the

issue

putting

evidence
of

forward
to

sufficient

survive

deliberate

summary

indifference.

However, the court’s review of the evidence submitted
by defendants did raise significant concerns which must
be addressed.
The court has several concerns about the following
section of Dr. Hood’s sworn affidavit, which the court
is concerned may contain significant misstatements and
misleading content.

First, he attests:

“18. Following this appointment and after
consultation with the site medical staff and
the regional medical staff, the decision was
made
to
discontinue
Mr.
Moore’s
Lortab
prescription, and prescribe the non-narcotic
pain medical Norco as an alternative pain
treatment. (COR008)....”
Affidavit of Dr. Hugh Hood (doc. no. 31-1) at 8.

The

court is concerned that this statement may be false, if
Norco and Lortab are both narcotics with the active
ingredient hydrocodone, an opiate.
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How, if so, could a

physician swear under oath that Norco is non-narcotic?
This must be explained.
The affidavit continues:
“19.
Mr.
Moore
did
not
voice
any
complaints or submit any sick call request
forms related to his medications between May
24, 2012, and August 14, 2012. (COR067). Mr.
Moore
received
and
attended
a
follow
appointment
with
the
site
physician
at
Limestone on August 14, 2012, at which time
they continued to discuss the treatment plan
for Mr. Moore’s osteoarthritis and the site
physician
confirmed
the
absence
of
any
significant changes in Mr. Moore’s overall
condition before renewing his prescription for
Norco. (COR009).”
This statement seems to have been offered to show that
after being switched to a ‘non-narcotic’ medication,
plaintiff

had

no

complaints.

But

the

court

is

concerned that this is again misleading, if Norco is a
narcotic.
The affidavit next states:
“20. In response to a sick call request
form submitted on August 20, 2012, the medical
staff summoned Mr. Moore to the health care
unit at Limestone for sick call on August 21,
2012 (COR071-73), and a subsequent appointment
with the clinician on August 23, 2012. During
the appointment, Mr. Moore remained ‘upset’
because of the medical decision to discontinue
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his narcotic pain regimen in favor of a nonsteroidal
anti-inflammatory
medication.
(COR018). As indicated in the medical records,
Mr. Moore reported to the medical staff that he
had received narcotic pain medications for more
than two and a half years and that he wished to
meet with the site physician. (COR018-19).”
Affidavit of Dr. Hugh Hood (doc. no. 31-1) at 8-9.
Oddly, this section gives the impression that plaintiff
remained upset because he had been switched to Norco,
which

is

strange

in

light

of

the

prior

paragraph’s

statement that he had no complaints while on Norco.
Furthermore, the affidavit fails to explain that, at
that

point,

Medical

plaintiff

Notes

Motrin”).

had
no.

(doc.

been

switched

31-2)

at

to

20

Motrin.

(“Continue

The affidavit also omits that plaintiff said

he was upset because he felt that “Dr. Hood stopped”
his pain medication.

Medical Notes (doc. no. 31-2) at

19.
While

this

listing

is

not

exhaustive,

one

troubling aspect of the affidavit bears mentioning.
describing

the

medical

grievance

process,

explains the appeal process as follows:
4

Dr.

more
In
Hood

“Below the portion of the form designated for
the ‘Response,’ the following notation appears:
IF YOU WISH TO APPEAL THIS REVIEW YOU MAY
REQUEST A GRIEVANCE APPEAL FORM FROM THE HEALTH
SERVICES ADMINISTRATOR. RETURN THE COMPLETED
FORM TO THE ATTENTION OF THE HEALTH SERVICE
ADMINISTRATOR. YOU MAY PLACE THE FORM IN THE
SICK CALL REQUEST BOX OR GIVE IT TO THE
SEGREGATION SICK CALL NURSE ON ROUNDS.”
Affidavit

(doc.

no.

31-1)

at

5-6.

The

court

is

concerned that the affidavit could be read as designed
to give the impression that this notice is a direct
quote both in terms of content and style, and that this
notice would be easily noticeable by a prisoner.
could be viewed as again misleading.
forms

contained

verbiage

is

in

not

the

only

record
not

As the grievance

plainly

written

This

in

show,
all

this

capital

letters, but also is written in far smaller font than
any of the other instructions on the page.

Grievance

Records

allegedly

(doc.

no.

31-3)

at

52-61.

This

misleading presentation of facts is most concerning.
In an order separate from the judgment that will be
entered today, defendants will be required to address
these concerns.

If these concerns remain after that,
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the court will decide later what action, if any, would
be appropriate.
DONE, this the 29th day of September, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

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