Brennan v. Thomas et al
Filing
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MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 5/18/2018. (AFS)
FILED
2018 May-18 PM 02:59
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
THOMAS G. BRENNAN,
Plaintiff,
v.
COMMISSIONER, ALABAMA
DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
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Case No: 2:13-cv-00152-AKK-TMP
MEMORANDUM OPINION
The magistrate judge filed a report on February 12, 2018, recommending the
defendants’ special reports be treated as motions for summary judgment and
further recommending that the motions be granted. Doc. 76. The parties were
advised of their right to file specific written objections within fourteen days. Id. at
80. The magistrate judge granted the plaintiff extensions to file his objections and
afforded him until May 1, 2018, to do so. Docs. 78; 80. The plaintiff has filed
objections which primarily repeat the same facts and legal arguments he previously
submitted to the court. Doc. 81.
A. Certified Registered Nurse Practitioner Anissa Thomas
To the extent the plaintiff’s objections concerning Anissa Thomas are not
repetitive, he argues Dr. William Talley cannot testify about Thomas’s “acts,
omissions, and conduct” because Dr. Talley was in the examining room for a total
of three minutes during only one of the many consultations the plaintiff had with
Thomas. Id. at 20. But Dr. Talley is not offering testimony about Thomas’
attitude or tone of voice in her interactions with the plaintiff. Instead, Dr. Talley’s
opinion concerning Thomas’s ability to diagnosis and treat the plaintiff is based on
his knowledge of the skills she possesses as Certified Registered Nurse Practitioner
and his review of the medical records. Doc. 45-1 at 1-18. As a physician, Dr.
Talley is qualified to testify to such matters.
The plaintiff also argues that Thomas displayed a “pattern” of deliberately
indifferent behavior toward him. Doc. 81 at 12. He reports that prior to his
transfer to St. Clair Correctional Facility, Dr. Robbins at Kilby Correctional
Facility prescribed him Mobic, Robaxin, and Tylenol, and the nurse practitioners at
that facility renewed the prescriptions every three months for a year and a half. Id.
In September 2010, sometime after his transfer to St. Clair, the plaintiff requested
renewal of these medications. Id. Thomas refused to renew the prescriptions, told
the plaintiff he no longer needed them, and dismissed him. Id. Thomas also
denied the plaintiff new orthopedic shoes even though the plaintiff’s shoes were
worn “slick,” and stated that she would only replace the shoes when the threads
were showing. Id. The plaintiff states these additional incidents show that “for
some reason Thomas was not ever going to help” him. Id. This argument is
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speculative and ignores the undisputed assistance Thomas provided in connection
with the claims actually at issue in this case.
Finally, the plaintiff argues that the magistrate judge did not consider the
significance or import of the facts in his complaint, see doc. 1-2; 1-3, and the
medical record when recommending summary judgment in favor of Thomas. Doc.
81 at 19. However, the report and recommendation belies this assertion. See doc.
76 at 5-31. Further, this court agrees with the report’s conclusion that even the
most troubling of facts against Thomas do not display grossly inadequate care, or
show that she took an easier but less efficacious route, or that her treatment was so
cursory as to amount to no treatment at all. Id. The alleged facts show only the
plaintiff’s disagreement with Thomas’s medical judgment. 1
B. Dr. William Talley and Health Services Administrator Colleen Oakes
To the extent the plaintiff’s objections do not repeat previous facts and
arguments already made in connection with his Eighth Amendment claims against
Dr. Talley and Colleen Oakes, he points first to a purported factual error in the
report attributing the following testimony to Dr. Talley: “[s]ome forms of narcotics
are not suitable for the relief of long-term chronic pain and are more suitable for
1
In an effort to dispute any credit afforded to nurse Thomas’s and Dr. Talley’s medical
judgments in November and December 2010, the plaintiff purports to quote an excerpt from Dr.
Francavilla’s July 2011 post-MRI report. Doc. 81 at 16-17. None of the parties submitted this
report into evidence, and it is not properly before the court. Moreover, based on the quote the
plaintiff provided, see doc. 81 at 16-17, the content of the report mirrors other medical evidence
in the record that the court has considered. Doc. 45-1 at 38-40, 46-47, 56-57, 60-61.
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short-term pain relief.” Doc. 81 at 21. The plaintiff contends that Thomas actually
made the statement.
Id.
However, the record, which shows that Dr. Talley
testified to this subject matter, doc. 45-1 at 17, belies this contention.
Second, the plaintiff takes issue with the “ficti[on]” in the magistrate judge’s
report that Dr. Talley was concerned with balancing the plaintiff’s pain
management and addiction avoidance. Id. at 21 (citing doc. 76 at 73). To be sure,
Dr. Talley did not specifically testify about “addiction” or use that word in the
medical record.
Nonetheless, the undisputed record shows that Dr. Talley
repeatedly relayed to the plaintiff his concerns about overprescribing. Docs. 1-2 at
11; 1-3 at 34, 36, 38, 40. And when defendant Oakes commented on one occasion
about the type of narcotic the plaintiff desired, the plaintiff responded by stating
that he was not and had never been a drug seeker. Id. Thus, during the relevant
time period (January to October 2011), the evidence supports the magistrate
judge’s report that Dr. Talley was concerned about balancing the plaintiff’s pain
management and avoiding the overuse of narcotics, and shows also that the
plaintiff understood that Dr. Talley’s concerns related to drug seeking—i.e.,
addiction.
Third, the plaintiff strongly disagrees with Dr. Talley’s and Thomas’s
opinion that the narcotics he sought “were more suitable for the relief of short-term
pain and not long-term pain.” Docs. 81 at 20; 45-1 at 17; 45-3 at 6. He points to
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Dr. Talley’s comment that the plaintiff’s pain was well controlled by narcotics
between February and late May 2011, but notes that, thereafter, Dr. Talley
disregarded Dr. Francavilla’s recommendation to continue the plaintiff’s narcotic
pain relief. Doc. 81 at 20, 22-24. The plaintiff also asserts that Thomas and Dr.
Talley’s declarations are undermined by Dr. Talley’s prescribing him Vicodin
three times per day beginning after his cervical fusion on September 28, 2011 and
continuing until July 15, 2012. Id. at 24.
The plaintiff’s contentions are unavailing.
Although Dr. Talley had
concerns about narcotic overuse, he also knew the plaintiff had dealt with complex,
life-time neck, back and leg difficulties. As the plaintiff’s primary caregiver, Dr.
Talley attempted to address the plaintiff’s pain complaints by prescribing
medications. Dr. Talley also sought a specialist and provided the plaintiff with a
cane, back brace, orthopedic shoes, and a wheelchair, and gave the plaintiff a no
prolonged standing profile. Thus, Dr. Talley’s refusal to continually prescribe
narcotics that rendered the plaintiff fully pain-free daily does not display deliberate
indifference to that pain. Rather, Dr. Talley exercised his medical judgement while
addressing a difficult and complex medical problem. That the plaintiff or Dr.
Francavilla had a different opinion regarding narcotic use falls short of creating an
actionable Eighth Amendment claim considering all of the other measures Dr.
Talley took.
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Finally, the plaintiff’s attempt to blame defendant Oakes for failing to
relieve his pain with narcotics is meritless. The plaintiff has never disputed that
Oakes is a Health Services Administrator and does not provide care to inmates.
Further, as a registered nurse, Oakes cannot prescribe narcotics or override Dr.
Talley’s decisions.
C. Evidentiary matters
The plaintiff points out also that the magistrate judge noted that he “did not
present an affidavit from Dr. Francavilla.” Doc. 81 at 24. He asserts that he could
not provide an affidavit or interrogatory statement from Dr. Francavilla or physical
therapist Lance Pearson because he did not have their addresses and did not have
access to internet search engines.
Id.
The record refutes the plaintiff’s
contentions. Specifically, the medical defendants produced the plaintiff’s medical
records on June 21, 2016. Doc. 45-1. A simple review of those records show that
they contained the address and telephone number of Lance Pearson at Voyager
Physical Therapy, 1618 13th Place South, Birmingham, Alabama, 35205, and listed
Dr. Francavilla’s location at Brookwood Medical Center in Birmingham, Alabama.
Doc. 45-1 at 56-57, 66, 79.
Although Dr. Francavilla’s formal address and
telephone number are not listed in the records the defendants produced, the
plaintiff could have used the information provided to locate Dr. Francavilla. The
court is not persuaded that the plaintiff’s inability to use internet search engines
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prevented this discovery, particularly when he has access to a telephone. More
importantly, the Order for Special Report provided the plaintiff with the
opportunity to request additional discovery from the defendants. Doc. 30 at 7-8.
The plaintiff did not avail himself of the opportunity and cannot now complain
about his purported inability to provide the evidence he desired.
D. Supplemental Jurisdiction
The plaintiff “reminds the court it still has supplemental jurisdiction over his
state torts against [Dr.] Talley, Thomas [and] Oakes in their individual capacity”
for “gross negligence, malice and wantonness.” Id. at 26. Unfortunately, the
plaintiff has never asserted any state law claims against the defendants in his
pleadings, and has always maintained alleged “[v]iolations of the plaintiff’s Eighth
Amendment protect[ions] (i.e. cruel and unusual punishment clause, inadequate,
delayed and denied medical treatment.” Docs. 1 at 2, 5, 18, 20-21; 27. In any
event, even if the plaintiff had asserted state tort claims, the court would have
declined to exercise jurisdiction over them in light of the dismissal of the federal
claims. See 28 U.S.C. § 1367.
E. Conclusion
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation, and the objections thereto, the
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magistrate judge’s report is hereby ADOPTED and the recommendation is
ACCEPTED. A separate order will be entered.
DONE the 18th day of May, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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