Murrell v. Pivovarov et al

Filing 11

MEMORANDUM OPINION ADOPTING the 9 Magistrate Judge's Report and Recommendation. Signed by Judge R David Proctor on 6/27/2017. (JLC)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BENJAMIN MURRELL,

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Plaintiff,
v.
IVAN PIVOVAROV, et al.,
Defendants.

Case No.: 5:16-cv-01894-RDP-HNJ

MEMORANDUM OPINION
On June 8, 2017, the Magistrate Judge’s Report and Recommendation was entered and
Plaintiff was allowed therein fourteen (14) days in which to file objections to the
recommendations made by the Magistrate Judge. On June 22, 2017, Plaintiff filed objections to
the Magistrate Judge’s Report and Recommendation.

After careful review of Plaintiff’s

Complaint and the Report and Recommendation, the court concludes that the Report and
Recommendation is due to be adopted and this case is due to be dismissed without prejudice for
failure to state a claim upon which relief can be granted.
I.

The Complaint’s Factual Allegations1
According to Plaintiff, he began to experience mild to moderate back pain and numbness

in his left arm during 2013. (Doc. # 1 at 8). Prison officials at Limestone Correctional Facility
informed Plaintiff in December 2013 that x-rays showed a bulging disc in his upper spine. (Id.).
Plaintiff received non-narcotic pain medication for the back condition in 2014. (Id.). His back
pain worsened during 2014, and he was prescribed Altram in November or December 2014. (Id.
at 9).
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In deciding whether a complaint states a claim for relief, the court accepts the factual allegations in the
complaint as true. Mays v. U.S. Postal Serv., 928 F. Supp. 1552, 1557-58 (M.D. Ala. 1996).

Dr. Stone, an on-site physician at Limestone, ordered a magnetic resonance imaging
(“MRI”) scan on Plaintiff’s upper spine and left shoulder. (Id.). In March 2015, Dr. Stone
advised Plaintiff that the MRI revealed “a pinched nerve in three different places” that would
require surgery. (Id.). Dr. Stone recommended referring Plaintiff to an off-site specialist “for
possible surgery based on the MRI and her examinations.” (Id.). Defendant Dr. Hugh Hood, an
associate regional medical director for Corizon Health, Inc., possessed the authority to approve
or deny referrals of prisoners to off-site specialists. (Id. at 7). Plaintiff received a prescription
for Altram, but that prescription expired 30 days after the March 2015 examination. (Id. at 9).
Plaintiff filed a grievance in late April 2015 that reported the expired pain medication
prescription and inquired about an off-site referral. (Id. at 9-10). Prison officials responded that
his request for pain medication was noted and that the request for an off-site referral had been
denied. (Id. at 10). They also informed Plaintiff that he would be scheduled for another on-site
examination. (Id.).
Defendant Dr. Ivan Pivovarov examined Plaintiff on June 1, 2015. (Id.). Dr. Pivovarov
directed Plaintiff to tilt forward while he moved Plaintiff’s head from side to side. (Id.).
Plaintiff claims he was already experiencing severe pain and “advised Dr. Pivovarov that his
pain was too severe for him [to] continue that method.” (Id.). Dr. Pivovarov responded “that
there [was] nothing wrong with his upper spine, that he was alright, and that he was not going to
be prescribed any pain medication.” (Id.). Dr. Pivovarov also declined to recommend a referral
to an outside specialist. (Id.). “At that point, Plaintiff was advised by Dr. Pivovarov [ ] that he
was finished and that Plaintiff could leave.” (Id.).
On June 3, 2015, Plaintiff allegedly submitted an appeal to his grievance after Dr.
Pivovarov’s examination. (Id. at 15). Plaintiff informed prison officials that he was suffering

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from severe pain and that he had been denied pain medication. (Id.). Prison officials responded
on June 4, noting that Plaintiff “had been seen multiple times for his chronic back pain by nurse
practitioners and on-site physicians” and that the on-site personnel were managing his condition.
(Id.). Officials also advised Plaintiff that (a) surgery had been deemed unnecessary at the time,
and (b) Dr. Pivovarov was treating his back pain in accordance with his medical judgment. (Id.).
A nurse practitioner examined Plaintiff in May 2016 and prescribed him pain medication. (Id. at
11). A prison doctor then referred Plaintiff to a spinal specialist for surgery in July or August
2016. (Id. at 11-12). The specialist, Dr. Freudenberger, informed Plaintiff that surgery would be
needed to resolve the pinched nerve identified in the reports from the 2015 MRI. (Id. at 12).
Plaintiff underwent a second MRI scan in September 2016, and that MRI revealed additional
degeneration and compression on the pinched nerve. (Id.). Plaintiff received surgery on the
pinched nerve in September 2016. (Id.). But, he continued to suffer upper spine pain, lower
neck pain, and numbness in his left hand following his surgery. (Id. at 13). Plaintiff attributes
these continuing symptoms to the delay in the corrective surgery. (Id.).
II.

Standard of Review
When a party files timely objections to a Magistrate Judge’s Report and

Recommendation, the court reviews the objected-to portions de novo. 28 U.S.C. § 636(b).
III.

Analysis
A.

Plaintiff’s Deliberate Indifference Claim Against Defendant Dr. Hood

The Magistrate Judge has recommended dismissing the 42 U.S.C. § 1983 claim against
Defendant Dr. Hood because Dr. Hood exercised his independent medical judgment when
considering another physician’s recommendation to refer Plaintiff to a specialist for surgery.
(Doc. # 9 at 8-9). Plaintiff responds that Dr. Hood’s conduct should not be considered a medical

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disagreement because Dr. Hood never examined Plaintiff or monitored his medical condition.
(Doc. # 10 at 2).
The court agrees with the Magistrate Judge that Plaintiff has failed to state a claim for
relief against Defendant Hood. This is so because a prison doctor’s decision to refer a patient to
an outside specialist for further evaluation and possible surgery is a matter of medical judgment,
“and a difference of opinion as to the proper course of medical treatment, standing alone, does
not constitute deliberate indifference within the meaning of the Eighth Amendment.” Tucker v.
Busbee, 619 F. App’x 868, 871 (11th Cir. 2015). Moreover, Plaintiff’s allegations reveal that Dr.
Hood’s denial of a referral did not prevent Plaintiff from receiving on-site medical care for his
back condition. (Doc. # 1 at 9-10). See also Tucker, 619 F. App’x at 871 (concluding that the
plaintiff had failed to state a deliberate indifference claim against a doctor, in part because the
plaintiff had not alleged that the defendant failed to provide him with “routine medical care that
[the defendant] was capable of providing”). Plaintiff’s complaint indicates that prison officials
scheduled another medical examination by Defendant Dr. Pivovarov after Dr. Hood denied a
referral to an outside physician.

(Doc. # 1 at 9-10).

Simply put, Plaintiff’s deliberate

indifference claim against Dr. Hood rests on a disagreement about Dr. Hood’s exercise of
medical judgment, and, thus, fails to allege a deliberate indifference claim against him. Cf.
Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) (explaining that matters of medical
judgment are not appropriate grounds for deliberate indifference claims), abrogated in part on
other grounds by Richardson v. Knight, 521 U.S. 399 (1997).

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B.

Plaintiff’s Deliberate Indifference Claim Against Defendant Dr. Pivovarov

The Magistrate Judge has also recommended dismissing Plaintiff’s claim against Dr.
Pivovarov. (Doc. # 9 at 10-11). According to the Magistrate Judge, Plaintiff’s deliberate
indifference claim rests upon his personal disagreements with Dr. Pivovarov’s professional
judgments and his claims that Dr. Pivovarov should have used different or additional diagnostic
techniques. (Id.). In his objections, Plaintiff responds that his claim against Dr. Pivovarov
“involves a failure to treat plaintiff’s pain at all and leaving him to suffer severe pain without any
pain medication at all.” (Doc. # 10 at 4). Plaintiff supports his allegations of deliberate
indifference by recounting Dr. Pivovarov’s alleged dismissive statements to him during the
examination. (Id. at 5). After careful review, the court agrees with the Magistrate Judge that this
claim should be dismissed.
Plaintiff’s own factual allegations belie any argument that Dr. Pivovarov acted for any
reason other than his medical judgment. By Plaintiff’s own account, Dr. Pivovarov concluded
that Plaintiff had no spine problems after a medical evaluation, albeit a medical evaluation to
which Plaintiff objected. (Doc. # 1 at 10). Even if Dr. Pivovarov’s failure to observe Plaintiff’s
serious back condition could be categorized as gross negligence, the alleged facts about the
examination do not demonstrate any reckless or intentional conduct to support a deliberate
indifference claim. See Farmer v. Brennan, 511 U.S. 825, 836 (1994) (explaining that reckless
disregard towards a substantial risk of harm constitutes deliberate indifference). Moreover,
prison officials expressly informed Plaintiff that Dr. Pivovarov was treating his back condition in
accordance with his medical judgment. (Doc. # 1 at 15). Plaintiff highlights Dr. Pivovarov’s
statements made to him, but at most those statements indicate a lack of bedside manner. They do
not undermine a finding that Dr. Pivovarov exercised his medical judgment in a manner in which
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Plaintiff disagrees. For these reasons, the court agrees with the Magistrate Judge that Plaintiff’s
complaint fails to state a plausible deliberate indifference claim against Dr. Pivovarov.
C.

Plaintiff is Not Entitled to Leave to Amend His Complaint

The court has reviewed Plaintiff’s complaint and finds that the complaint presents a
comprehensive history of the medical consultations and treatments Plaintiff received for his back
condition. Given the detailed allegations about the medical care Plaintiff received, the court
finds that granting Plaintiff leave to amend the complaint would be futile because the
complaint’s allegations reveal that Defendants were not deliberately indifferent towards
Plaintiff’s back condition. Cf. Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001) (noting
that a court may choose to not allow amendment of a complaint when it would be futile).
IV.

Conclusion
After careful consideration of the record in this case, the Magistrate Judge’s Report and

Recommendation, and Petitioner’s objections thereto, the court concludes that the Report of the
Magistrate Judge is due to be adopted. The court further concludes that the recommendation of
the Magistrate Judge that this action be dismissed without prejudice for failure to state a claim
upon which relief can be granted is due to be accepted. A separate order in accordance with this
Memorandum Opinion will be entered.
DONE and ORDERED this June 27, 2017.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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