Jemison v. CMS et al

Filing 28

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 7/7/2014. (AVC)

FILED
2014 Jul-07 PM 03:31
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
WILLIE CHARLES JEMISON,

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Plaintiff,
v.
CORRECTIONAL MEDICAL
SERVICES, INC. et al.,
Defendants.

CV 12-758-IPJ-JHE

MEMORANDUM OPINION
Pending before the court are defendants’ special report (doc. 20), which the
court construes as a motion for summary judgment (doc. 26), exhibits in support
thereof, and plaintiff’s response to defendants’ motion (doc. 27). For the reasons
discussed below, the court finds that defendants’ motion is due to be granted.
STATEMENT OF FACTS
On March 8, 2012, plaintiff Willie Jemison filed a complaint alleging that
he suffered Eighth Amendment violations while an inmate at St. Clair Correctional
Facility (doc. 1). The magistrate judge ordered defendants to file a written report
reviewing plaintiff’s claims (doc. 13). In that order, the court identified plaintiff’s
claims as follows:

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Plaintiff suffers from Hepatitis C. While incarcerated at the Saint Clair
Correctional Facility, he was prescribed medications which caused
severe side effects. He received shots every Wednesday and took pills
three times per day. These medications caused him to suffer from
fainting spells, severe and constant itching, stomach pains, and vomiting
when he ate. The plaintiff complained to the defendants, but was told
that nothing could be done. The defendants did nothing and the plaintiff
continued to suffer.
In September of 2010, the plaintiff became very sick as a result of the
medicine prescribed to him by the defendants. The plaintiff was taken
to Brookwood Medical Center where surgery was performed and a pace
maker was implanted in his heart. The treating physicians at the hospital
told the plaintiff that the medications he had been prescribed had caused
his severe problems and could have killed him had he not made it to the
hospital on time. The Brookwood physicians prescribed medications for
plaintiff, and told him not to take any of the medications that had been
prescribed for him at the prison.
The defendants were deliberately indifferent to his serious medical
needs, which nearly resulted in his death.
Order for Special Report p. 3 (doc. 13). The court ordered plaintiff to notify it
within twenty days if he had any objections to this characterization of his
complaint (id. at 3), and plaintiff voiced none. Plaintiff was unable to identify an
address for defendant Harper and although plaintiff named “CMS medical staff” as
a defendant, fictitious party practice is not authorized by the Federal Rules.
Accordingly, this court dismissed those defendants without prejudice. Order of
September 23, 2013 p. 1 (doc. 23).

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STANDARD OF REVIEW
A court may grant a movant’s motion for summary judgment “when the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820
(11th Cir. 2010); Hamilton v. Southland Christian School, Inc., 680 F.3d 1316,
1318 (11th Cir. 2012). An issue is “material” if it is a legal element of the claim
under the applicable substantive law which might affect the outcome of the case. It
is “genuine” if the record taken as a whole could lead a rational trier of fact to find
for the nonmoving party. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).
In determining whether to grant the motion, the court must view “the
evidence and all reasonable inferences from that evidence. . . in the light most
favorable to the nonmovant.” Jean-Baptiste, 627 F.3d at 820 (11th Cir. 2010);
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). However, the court need
only draw those inferences “to the extent supportable by the record.” Penley v.
Eslinger, 605 F.3d 843, 848 (11th Cir. 2010). Once met by the moving party, the
burden shifts to the non-moving party to come forward with evidence to establish
each element essential to that party’s case sufficient to sustain a jury verdict. See
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Earley v. Champion Int’l
Corp., 907 F.2d 1077, 1080 (11th Cir. 1990).
DISCUSSION
I.

Exhaustion of State Remedies
Defendants’ motion is due to be granted because plaintiff failed to exhaust

St. Clair’s administrative remedies before filing his complaint. As the Eleventh
Circuit has noted,
Section 1997e(a), enacted as part of the PLRA, provides that a prisoner
must exhaust all available administrative remedies before bringing a
federal action challenging prison conditions. The PLRA seeks to
eliminate unwarranted interference with the administration of prisons in
order to afford corrections officials time and opportunity to address
complaints before allowing the initiation of a federal case. Compliance
with prison grievance procedures, therefore, is all that is required by the
PLRA to properly exhaust.
Parzyck v. Prison Health Svcs., Inc., 627 F.3d 1215, 1217–18 (11th Cir. 2010)
(citations and quotation marks omitted).
According to the affidavit of Colleen Oakes, who served as the Health
Services Administrator for St. Clair from November 2009 until December 2011,
St. Clair’s medical staff maintained a grievance procedure well-known to inmates.
Under that procedure, the grievance process began when an inmate submitted a
Medical Grievance form to the Health Services Administrator who then reviewed

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the request and provided the inmate a written response within five days. Oakes
Aff. p. 5 (doc. 20-6). The written response also included a statement on how an
inmate may appeal a grievance decision. Id. at 5–6.
Jemison underwent surgery to have an artificial pacemaker implemented on
September 8, 2010 at Brookwood Medical Center. Hood Aff. p. 9 (doc. 20-1). Dr.
McKinney and Dr. Dagget discharged Jemison from Brookwood on September 9,
2010. Id. St. Clair medical staff terminated Jemison’s Hepatitis C Treatment on
September 29, 2010. Id. at 10. Jemison was transferred from St. Clair to Limestone
Correctional Facility on July 12, 2012 and paroled from Limestone on or about
April 22, 2013. Id. at 11. No evidence suggests that Jemison filed a grievance over
his hepatitis treatment to St. Clair officials or St. Clair medical staff at any point
between September 2010 and his release in April 2013.1 In fact, Oakes states that
Jemison “never submitted a Medical Grievance related to the allegations in his
Complaint.” Oakes Aff. p. 6 (doc. 20-6). Thus, because Jemison failed to utilize
St. Clair’s own grievance procedures prior to filing the instant lawsuit, he did not
exhaust his administrative remedies and the defendants’ motion for summary

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Plaintiff did submit one Medical Grievance on August 20, 2010 requesting a “front line
profile” to allow him to pass diabetic inmates in the pill call line. Oakes submits that she would
not enter a “front line profile” for Jemison because diabetic inmates needed to receive their
medication shortly before eating and that Jemison did not appeal that decision pursuant to St.
Clair’s grievance procedure. Oakes Aff. p. 6 (doc. 20-6).
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judgment is due to be granted.
II.

Eighth Amendment Claim
Additionally, Jemison’s Eighth Amendment deliberate indifference claim is

meritless. To establish a deliberate indifference claim, a plaintiff must meet both
an objective and subjective test:
To state an Eighth Amendment claim under § 1983, a prisoner must
allege facts to satisfy both an objective and subjective inquiry regarding
a prison official’s conduct. Under the objective component, a prisoner
must allege a prison condition that is so extreme that it poses an
unreasonable risk of serious damage to the prisoner’s health or safety.
To satisfy the subjective component, the prisoner must allege that the
prison official, at a minimum, acted with a state of mind that constituted
deliberate indifference. Deliberate indifference has three components:
(1) subjective knowledge of a risk of serious harm; (2) disregard of that
risk; (3) by conduct that is more than mere negligence.
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (citations and
quotation marks omitted). Jemison’s deliberate indifference claim fails for two
reasons: (1) he cannot establish that defendants had subjective knowledge of a risk
of serious harm, and (2) Jemison cannot establish that defendants disregarded that
risk. As discussed in part I supra, no evidence suggests that plaintiff notified the
defendants of any problems he had with his treatment. He filed no grievances
other than the request for a front line profile. Accordingly, defendants could not
have been aware of the risk of the serious harm. Dr. Hugh Hood, who has been

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employed with CMS since November 2007, swore by affidavit that during an
April 2010 check-up, Jemison said he was “doing ok”; during a May 2010 checkup, Jemison stated he felt “pretty good”; during a second May 2010 check-up,
Jemison claimed he was “doing fine”; at a July 16, 2010 check-up, Jemison said he
was “doing ok”; at a July 23, 2010 evaluation, Jemison said he was “tolerating
treatments well”; and during an August 25, 2010 check-up, Jemison again said he
was “doing ok.” Hood Aff. pp. 6–8 (doc. 20-1).
The only complaint Mr. Jemison voiced prior to his heart episode in
September of 2010 was at a July 16, 2010 evaluation when Jemison said he
experienced itching and nausea “off and on.” Id. at 7. According to Hood, these
symptoms were not uncommon for patients undergoing Hepatitis C treatment and
Jemison stated that he was “hanging in there.” Id. On the one occasion that
Jemison did voice serious health concerns, September 6, 2010, the CMS staff
acted swiftly to provide Jemison medical treatment. After Jemison reported that he
experienced dizziness and weakness while exercising, the staff evaluated Jemison,
ordered an EKG, and ordered a follow-up EKG the following day after the first
EKG was abnormal. When the second EKG was abnormal, the staff immediately
transferred Jemison by ambulance to the Brookwood Medical Center emergency
room. Id. at 8–9. Thus, before September 6, 2010, defendants had no subjective
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knowledge of the serious risk. Clearly, then, defendants could not have
disregarded a risk of which they had no knowledge. Because Jemison cannot
establish that defendants were deliberately indifferent to his risk of harm, he fails
to meet the subjective prong of the Eighth Amendment analysis, and the court
must grant summary judgment in favor of defendants.
CONCLUSION
Based upon a consideration of the foregoing, the court finds that
defendant’s motion for summary judgment (doc. 20) is due to be GRANTED. The
court shall grant said motion by separate Order.
DONE and ORDERED this 7th day of July 2014.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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