Fuller v. Parvin et al

Filing 24

MEMORANDUM OF OPINION Signed by Judge William M Acker, Jr on 3/4/16. (SAC )

FILED
2016 Mar-04 PM 01:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
DAVID BOY FULLER,
Plaintiff,
v.
NURSE PARVIN, et al.,
Defendants.

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) Case No. 4:15-cv-02185-WMA-TMP
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MEMORANDUM OF OPINION

The magistrate judge filed a report and recommendation on February 19, 2016,
recommending that the defendants’ motion for summary judgment (doc. 12) be
granted and that the plaintiff’s federal claims against all defendants be dismissed with
prejudice. The magistrate judge further recommended that the plaintiff’s state law
claims be dismissed without prejudice pursuant to 28 U.S.C. § 1367(c). The parties
were allowed fourteen (14) days to file objections and advised that the failure to file
such objections would bar any later challenge or review of the factual findings of the
magistrate judge. The plaintiff filed objections with the court on February 26, 2016.
(Doc. 22).
The plaintiff first states his shock at the recommendation of the magistrate
judge and suggests the report and recommendation is akin to pandering. (Doc. 22 at
1).

The plaintiff complains that the report did not “favor the party opposing the

motion for summary judgment” as required by Rule 56, Fed.R.Civ.P. (Id., at 2). The
plaintiff then repeats the facts set forth in his original complaint. (Id.). Nothing in the
plaintiff’s objections adds any weight to his claim that the defendants were
deliberately indifferent to his medical needs. Because the plaintiff failed to establish
that he had an objectively serious medical need, and that the defendants were
deliberately indifferent to that need, summary judgement in favor of the defendants
is appropriate. Bingham v. Thomas, 654 F3d 1171, 1175 (11th Cir. 2011). The
magistrate judge meticulously considered the very facts the plaintiff reiterates in his
objections.
Although the plaintiff’s objections are somewhat incoherent, they center around
two main arguments, specifically that the medical records produced by the defendants
are incomplete, and that the magistrate judge failed to correctly consider those medical
records.
A. Objections to the Medical Records:
The plaintiff objects to the magistrate judge having ordered the defendants to
produce the plaintiff’s medical records and, when the same were not produced,
ordering the defendants to produce the records a second time. (Doc. 22 at 4-5).
According to the plaintiff, allowing the defendants to then produce the records
demonstrated leniency towards the defendants. (Id., at 4). The plaintiff objects that
the defendants were not held in contempt. (Id., at 14-15). The magistrate judge’s
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determination to allow the defendants a second opportunity to comply with the order,
based on the plaintiff’s motion requesting such relief, is not a proper basis for an
objection to the report and recommendation.1 The plaintiff also complains that the
medical records that the defendant did produce in response to the court’s order were
not in compliance with the order, because the records produced included months the
court did not specify. (Id., at 15). The defendants’ production of additional medical
records to provide a more complete snapshot of the plaintiff’s medical ailments is not
improper under Rule 26(b) or Rule 34, Fed.R.Civ.P.
The plaintiff also asserts that the defendants failed to produce portions of the
plaintiff’s medical records (doc. 22 at 8-9, 15). These objections focus on the
plaintiff’s belief that he was given Cipro, without his knowledge, prior to November
4, 2015, lab work. (Id.). Based on his own interpretation of the lab results that are
contained in his medical records, the plaintiff speculates other records should exist.
(Id., at 9, 15-16). The plaintiff wildly speculates that a non-party nursing supervisor
removed other documents from the plaintiff’s medical records. (Id., at 9-10). The

1

Whether the magistrate judge allowed the defendants a second opportunity to produce
medical records, and whether those records were more complete than what was requested, has no
bearing on the report and recommendation. In essence, the plaintiff asserts that when the defendants
failed to produce the medical records in response to the Order of January 20, 2016 (doc. 17), the
magistrate judge erred in entering an order on February 12, 2016, allowing the defendants to either
comply with the January 20, 2016, Order or show cause why they should not be held in contempt.
(Doc. 19). However, the February 12, 2016, Order was in direct response to the plaintiff’s motion to
compel filed with the court on February 9, 2016. (Doc. 18). The court granted the plaintiff the very
relief he requested, namely ordering the defendants to comply with the January 20, 2016, Order.
3

plaintiff’s speculation as to other records he believes should exist is not sufficient to
create a genuine issue of material fact.
The plaintiff next objects based on his belief that defendant Nurse Parvin
committed perjury. (Doc. 22 at 5-6). Even assuming the plaintiff could establish the
truth of his allegation of perjury and demonstrate that defendant Parvin intentionally
lied under oath, such a finding does not assist the plaintiff. The magistrate judge noted
the apparent contradiction in defendant Parvin’s testimony that the plaintiff did not
have an infection at any time after August 27, 2015, and the evidence of prescriptions
for antibiotics given to the plaintiff. (Doc. 21 at 13, n. 6).
The plaintiff also objects to the magistrate judge’s lack of finding that defendant
Parvin’s affidavit was “cut and dry” and “just sang a legal tune.” (Doc. 22 at 16).
Whether defendant Parvin’s affidavit contained the “facts” the plaintiff believed it
should contain is not an appropriate objection to the report and recommendation.
The plaintiff asserts that an incident report from August 27, 2015, is missing
from the records produced. (Doc. 22 at 6). However, as the events of that day are
well-documented, and the plaintiff was not provided with any medical care other than
a blood draw, the court cannot draw the evil intent the plaintiff attributes to the August
27, 2015, blood draw not being documented on an incident report.

4

B. The Magistrate Judge’s Consideration of the Medical Records.
The plaintiff objects that the magistrate judge did not find that the “unsanitary
needle” caused an “infection to enter into Fuller’s body.” (Id., at 5). Such a finding
is not a “fact.” Even assuming that the plaintiff could establish that the needle used
was “unsanitary” as opposed to “unwrapped,” the plaintiff provides no evidence in
support of his allegation that the needle puncture on August 27, 2015, was in fact the
cause of his infection. Because the plaintiff failed to produce evidence to establish
that the needle did in fact cause an infection, the defendants are entitled to summary
judgment on this claim. See e.g., Brown v. Crawford, 906 F.2d 667, 670 (11th Cir.
1990) (“[A] pro se litigant does not escape the essential burden under summary
judgment standards of establishing that there is a genuine issue as to a fact material
to his case in order to avert summary judgment.”).
The plaintiff objects to the lack of a finding that the August 27, 2015, blood
draw caused an infection. He states “I, Fuller, Plaintiff, CAN NOT tell this Honorable
Court that the medical ‘professionals’ ever told me I had an infection, nor where IT
STARTED FROM . . .” (doc. 22, at 8), but, “[i]t is more than COMMON SENSE to
figure that unsanitary needle used by NURSE PARVIN was the initial cause of the
virus/infection that terrorized Plaintiff Fullers body for 4 (four) months.” (Id., at 10)
(emphasis and grammar in originals). However, the cause of an infection is a question
which requires medical evidence. See Baker v. Prison Health Services, Inc., 2006 WL
5

2686935, *3 (M.D. Ala. 2006) (“The plaintiff’s opinions are insufficient to create a
genuine issue, and his failure to support his claim with medical or scientific evidence
is fatal to it.”) (citing Brown, 906 F.2d at 670); Dixon v. Campbell, 2006 WL
1214813, *3 (M.D. Ala. 2006) (plaintiff failed to meet burden to avoid summary
judgment where plaintiff claimed he was the victim of “poisoning and blood borne
pathrogens (sic),” but failed to produce any medical or other expert evidence
substantiating his claims). The plaintiff cannot rely on the mere timing or on his own
beliefs to establish that needle used on August 27, 2015, could cause the claimed
infection, let alone testify that it did in fact cause such an infection. See Brown, 906
F.2d at 670 (the plaintiff “has not submitted a doctor’s diagnosis or any medical
evidence supporting his allegations that the City of Miami drinking water at Dade
County jail caused his stomach pains and headaches . . . We therefore conclude that
[the plaintiff’s] allegation of contaminated drinking water . . . is unsubstantiated and
completely speculative.”)
The plaintiff asserts the medical records show that he had flu-like symptoms on
August 29, 2015, which is “akin to viral infection not present in FULLER before the
injection by Parvin . . .” (Doc. 22 at 6) (emphasis in original). On August 29, 2015,
the plaintiff was seen with complaints that “I’ve been shaking and having diarrhea.”
“I’m having a cough and think I’m getting a cold.” (Doc. 20-2 at 22 (re-submitted as
plaintiff exhibit 5)). Because of his symptoms, he was referred to a doctor. (Doc.
6

20-1 at 59 (re-submitted as plaintiff exhibit 6)). No diagnosis appears in the medical
records, however, the plaintiff asserts “[i]t stands to reason someone diagnosed
FULLER as having a virus and pursued anti-biotics prescriptions as FULLER states
above.” (Doc. 22 at 6) (emphasis in original). However, no such evidence appears
in the medical records and the plaintiff fails to connect any such diagnosis to the
prescription for antibiotics on September 23, 2015.
Although the plaintiff insists he was prescribed antibiotics a result of a
September 23, 2015, hospital visit (doc. 22 at 6), nothing in evidence reflects a
hospital visit on that date, any diagnosis of an infection, or that this antibiotic was
prescribed during such a hospital stay. Rather, the records reflect an October 26,
2015, hospital trip, when the plaintiff was seen for management of chest pain and
palpitations.

(Doc. 20-6 at 7-9).

He was noted to have no fever, and no

recommendation was made for an antibiotic to be prescribed. (Doc. 20-6 at 7-8). He
was not noted as positive for Hepatitis B. (Id.). Rather, the plaintiff underwent a
esophagagstroducdenoscopy and colonoscopy with biopsies at Brookwood Hospital,
and was diagnosed with erosive esophagitis and erosive gastritis, as well as inflamed
hemorrhoids. (Id., at 13). His discharge medications do not include any antibiotic.
(Id., at 25-27). Thus, the plaintiff’s speculation and unsupported allegations of the
August 27, 2015, needle stick causing an undocumented viral infection is contradicted
by the medical records and does not create a genuine issue of material fact. For
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factual issues to be considered genuine, they must have “a real basis in the record.”
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). See also Scott
v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts for purposes of ruling on
a motion for summary judgment.”).
The medical records do reflect that the plaintiff was prescribed amoxicillin2 on
September 23, 2015. (Doc. 20-1 at 47, 55-56 (re-submitted as plaintiff exhibits 8, 9
and 10)). They reflect that the plaintiff was prescribed Cipro3 on November 17, 2015.
(Doc. 20-1 at 36 (re-submitted as plaintiff exhibit 11)). However, the plaintiff asserts
that lab work collected on November 4, 2015, and reported on November 7, 2015,
proves he was being given Cipro without his knowledge before November 17, 2015,
because on one test, labeled as a test for “pantoea agglomerans,” the reported value
for ciprofloxacin was reported as += 1.4 (Doc. 22 at 8-9, 15-16; see doc. 20-3 at 4).

2

Amoxicillin is generic Augmentin, which is used to treat lower respiratory, middle ear, sinus,
skin, and urinary tract infections that are caused by certain bacteria. http://www.pdrhealth.com/
drugs/augmentin
3

Cipro is an antibiotic used to treat certain bacterial infections of the urinary tract, lower
respiratory (lung) tract, skin, bone, joint, stomach, sinuses, and prostate. Cipro may also be used to
treat other bacterial infections and conditions. http://www.pdrhealth.com/drugs/cipro
4

From the medical records submitted, the court notes that this lab test was run either in
response to or along with the urine culture test run at the same time, which was tested for this
organism. (Doc. 20-3 at 3-4 (doc. 20-3 at 4 resubmitted as plaintiff exhibit 12)). The results,
reported as I, R or S, are likely a list of the susceptibility or resistence of this bacteria to various
8

Thus, he continues, because he was given Cipro, he must of had an infection at that
time. (Doc. 22 at 8-9). However, the documents the plaintiff relies on for the
assumption he was given Cipro do not support that conclusion and the evidence of
record contradicts this speculative theory of the plaintiff.

A plaintiff’s mere

verification of conclusory allegations is not sufficient to oppose a motion for summary
judgment. Harris v. Ostrout, 65 F.3d 912, 916 (11th Cir. 1995) (where plaintiff
produced nothing in support of his claim, beyond his own conclusory allegations,
summary judgment was appropriate). Thus, the plaintiff’s own speculation based on
his unsubstantiated interpretation of a lab report is insufficient to oppose a motion for
summary judgment.
Similarly, the plaintiff asserts that “in the light most favorable to the nonmoving party” the magistrate judge should have found that the alleged viral infection
was caused by the needle puncture. (Doc. 22 at 12). Any such conclusion is outside
of the personal knowledge of the plaintiff and cannot be treated as a fact which he can
establish by testimony alone. See e.g., Brown, 906 F.2d at 670. Even taking as
established “fact” that the plaintiff was stuck with a needle by defendant Parvin on
August 27, 2015, that the plaintiff was prescribed antibiotics a month later, and that

antibiotics. See e.g., http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3895565. The results of this
test apparently have no relationship to the medications the plaintiff was currently prescribed, the
plaintiff would need to produce medical evidence in support of his theory otherwise.
9

the plaintiff had a positive Hepatitis result three months later, these facts still do not
support a conclusion that the plaintiff got Hepatitis B from the August 27, 2015,
needle stick.5
Additionally, the plaintiff relies on the lab report for initial blood screening for
Hepatitis as evidence that he actually has Hepatitis B.6 (Doc. 22 at 8; see also doc 203 at 7 (resubmitted as plaintiff exhibit 26)). The plaintiff asserts that the lab report
notation of “AB POSITIVE” means not only that he has a Hepatitis B infection, but
also that it is a viral infection he received from the August 27, 2015, needle stick.
(Id.). The plaintiff has failed to show that he has the background or training to offer
such evidence which is clearly within the realm of medical knowledge. See e.g.,
Baker, 2006 WL 2686935 at *3.

Nor can he establish that “the testing –

DIAGNOSING – takes time in prison. Especially with Welfare State Health-care
system. 8-27-15 to 10/12/15 – is not that long [for the virus to appear]” (emphasis in
original). (Doc. 22 at 8). Again, such a claim requires medical or other expert
evidence for substantiation. See Dixon, 2006 WL 1214813 at *3. Moreover, the lab
5

The fact that antibiotics are used to treat bacterial infections and not viral infections is
within the realm of knowledge of which a court may take judicial notice. See Rule 201(b)(2),
Fed.R.Evid.; http://www.cdc.gov/features/getsmart/. Hepatitis B is a viral infection. Although the
plaintiff’s test for Hepatitus B was negative (see doc. 20-3 at 7 (re-submitted as plaintiff exhibit 26)),
a positive result would not be a likely reason for treatment with an antibiotic.
6

As discussed in the report and recommendation, the lab work was done to allay the plaintiff
fears about the August 27, 2015, needle stick. (Doc. 21 at 9). As discussed supra, no evidence
supports the plaintiff’s allegation that he had Hepatitis B in November 2015.
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report itself reflects that a positive result for HbsAb “indicates exposure to Hepatitus
B virus due to an active infection or vaccination.”7 (Doc. 20-3 at 7 (re-submitted as
plaintiff exhibit 26).
The plaintiff asserts that Corizon LLC employees lied to him about these test
results, and told him the results were negative. (Doc. 22 at 17-18). However, the
plaintiff’s own misinterpretation of his lab results is not a basis on which the court can
deny the defendants’ motion for summary judgment. Moreover, a difference in
medical opinion between medical personnel and the inmate as to the diagnosis or
course of treatment is insufficient to support an Eighth Amendment claim. Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991).
The plaintiff again objects to the report and recommendation on the basis that
he proved the August 27, 2015, incident occurred, he began experiencing symptoms
of a viral infection two days later, and the October 4, 2015, lab results prove that he
had a viral infection. (Doc. 22 at 17). Even if the court could take each of these facts
as established, this would not change the result of the magistrate judge’s analysis.
7

Interpretation of lab results is a matter for medical practitioners and not something to which
the plaintiff may testify. His speculation as to the meaning of his results seemingly is incorrect and
wholly unsupported. As stated on the report itself, a hepatitis B surface antibody (“HbsAb”) positive
result, means either the individual has been vaccinated or has recovered from a hepatitis B infection.
(Doc. 20-3 at 7). A positive result thus means that the individual’s immune system has successfully
protected itself from the hepatitis virus. “Someone who is antibody positive is not infected, and
cannot pass the virus on to others.” http://www.hepb.org/pdf/understanding_ blood_tests.pdf. A
positive test for Hep N Surf. Ag would indicate a current infection (id.), but the plaintiff’s results
were negative. (Doc. 20-3 at 7).
11

Rather, as previously stated, merely assuming the plaintiff had a viral infection on
August 29, 2015, does not establish that it was caused by the needle stick of August
27, 2015. Lacking is any evidence that the August 27, 2015, needle stick could cause
a viral infection of the sort about which the plaintiff complains. The plaintiff even
states that “Plaintiff Fuller can not prove that the injection of Parvin, August 27, 2015,
was the initial cause of a viral infection suffered by Fuller, BUT the Defendant(s)
hereof CANNOT prove that it wasn’t the cause.” (Id., at 22) (emphasis in original).
However, the defendants do not have the burden to “prove” any facts as they did not
initiate this lawsuit. They only must show an “absence of evidence to support the
nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). See
also Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir. 1990) (“a complete failure of
proof concerning an essential element of the non-moving party’s case necessarily
renders all other facts immaterial.”). No genuine issue of material fact was established
by the plaintiff.
C. Miscellaneous Objections
Within his objections to the report and recommendation, the plaintiff complains
about iron studies, toenail cutting, and other unrelated events which he believes fall
short of the health care he deserves. (Doc. 22 at 12-13). He complains that he
receives “factory style medical care.” (Id., at 13). He complains that his diagnosis of

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a mood disorder proves he is “mentally slow” and that he is illiterate, a “teenager in
an adult body.” (Doc. 22, at 12). The plaintiff also argues that he is mentally ill.8 (Id.,
at 13). He complains that he received 350 pages of documents from the defendants
which were unnumbered, out of order, and faded in color. (Id., at 15). He complains
that defendant Parvin summoned two guards to the lab before injecting the plaintiff.
(Id., at 16-17). He complains that relevant medical records were not produced. (Id.,
at 17). He complains that the “Magistrate obviously has no idea that a VIRAL
INFECTION will terrorize a body, setting infections, causing burning pains. . .”9 (Id.,
at 19). He complains that defendant Parvin committed assault against him. (Id., at
21). He complains that the magistrate judge construed the special report as a motion
for summary judgment, but should not have done so in the light most favorable to
him. (Id., at 18).

8

The plaintiff asserts his exhibits 18-22 support that he is mentally ill. (Previously submitted
as doc. 20-2 at 9 (plaintiff exhibit 18); doc. 20-2 at 27 (plaintiff exhibit 19); doc. 20-2 at 46 (plainitff
exhibit 20); doc. 20-2 at 16 (plaintiff exhibit 21); and doc. 20-2 at 18 (plaintiff exhibit 22). These
exhibits are medical records from September 20, 2015, through November 13, 2015, which reflect
that the plaintiff is followed in the Chronic Disease Clinic for high blood pressure, diabetes, and
hyperlipidemia, and that he had blood sugar testing and was administered medication for diabetes.
These records also reflect that the plaintiff is both non-compliant with prescribed medical care and
hostile to the medical providers.
9

This is an allegation which requires evidence in support of it. Neither the magistrate judge
nor the district judge may simply assume that viral infections terrorize bodies or cause burning pains.

13

Nothing in the plaintiff’s objections adds weight to his allegations that the
defendants were deliberately indifferent to his medical needs. The plaintiff has
offered no evidence creating a genuine issue of material fact. The evidence indicates
that the plaintiff did, in fact, receive adequate medical care, and though he may have
been displeased with the level of that care, his displeasure is not enough to establish
deliberate indifference. The medical care provided a prisoner is not required to be
“perfect, the best obtainable, or even very good.” Brown v. Beck, 481 F. Supp. 723,
726 (S.D.Ga. 1980).
The plaintiff’s perception regarding the efficacy of his treatment and his desire
for different or additional treatment does not establish a constitutional violation.
Hamm v. DeKalb County, 774 F.2d. 1567, 1575 (11th Cir.1985). At best, the plaintiff
has provided the court with no more than his own unsubstantiated beliefs and opinions
about the caliber, appropriateness, efficaciousness, and timeliness of the medical care
he received. Such unsupported beliefs and opinions are insufficient to create a
genuine dispute and certainly do not do so in this case. He has no constitutional right
to specific medical treatment on demand. See Hudson v. McMillian, 503 U.S. 1, 9
(1992) (“[S]ociety does not expect that prisoners will have unqualified access to
health care.”). Under the circumstances of this case, the treatment the plaintiff
received was neither grossly incompetent nor inadequate. The plaintiff has not shown

14

by medical evidence consistent with Rule 56, Fed.R.Civ.P., that the treatment he
received was so deficient as to amount to deliberate indifference in violation of the
Eighth Amendment. Consequently, the magistrate judge correctly concluded that the
plaintiff failed to establish a genuine issue of material fact to support a claim for
deliberate indifference on the part of defendants.
Having carefully reviewed and considered de novo all the materials in the court
file, including the report and recommendation, the court is of the opinion that the
magistrate judge’s report is due to be and is hereby is ADOPTED and the
recommendation is ACCEPTED. The court EXPRESSLY finds that there are no
genuine issues of material fact and the defendants are entitled to judgment in their
favor as a matter of law.
Accordingly, the defendants’ motion for summary judgment is due to be
GRANTED and the plaintiff’s federal claims are due to be DISMISSED WITH
PREJUDICE. To the extent that the plaintiff attempts to bring state law claims, any
such claims are due to be DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1367(c). The plaintiff’s motion for Federal District Court to Enter Charges
of Perjury and Contempt upon the Defendants and Appoint Counsel (doc. 23) is
MOOT. A Final Judgment will be entered.

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DATED this 4th day of March, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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