Miller/Perry v. Correctional Medical Services et al

Filing 155

RECOMMENDED DISPOSITION recommending 123 Defendants' Motion for Summary Judgment be granted, and this action be dismissed with prejudice. Objections to R&R due by 2/9/2009. Signed by Magistrate Judge Beth Deere on 1/26/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS N O R T H E R N DIVISION F R A N C E S RENEE MILLER/PERRY A D C #708998 V. C A S E NO. 1:07CV00034 SWW/BD DEFENDANTS

P L A IN T IF F

C O R R E C T I O N A L MEDICAL SERVICES, et al.

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following Recommended Disposition has been sent to United States District Ju d g e Susan Webber Wright. Any party may file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a sis for the objection. If an objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n eleven (11) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C lerk , United States District Court E a ste rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325

II.

I n tr o d u c tio n : P la in tif f Frances Renee Miller-Perry, an inmate at the McPherson Unit of the

A r k a n s a s Department of Correction ("ADC"), filed this pro se action under 42 U.S.C. § 1983 on July 16, 2007. Plaintiff filed an Amended Complaint (#11) on August 25, 2 0 0 7 , and a Second Amended Complaint (#38) on January 24, 2008. Now pending is D e f e n d a n ts ' Motion for Summary Judgment (#123). Plaintiff has responded (#129). The Court held an Evidentiary Hearing on January 14, 2009, to give Plaintiff an o p p o rtu n ity to question the Defendants and supplement her response to the motion for s u m m a ry judgment. Considering all the evidence now in the record, Defendants' motion f o r summary judgment (#123) should be GRANTED, and this action should be D I S M IS S E D WITH PREJUDICE. III. S u m m a r y Judgment Standard: S u m m a ry judgment is appropriate when there is no genuine issue of material fact, a n d the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The S u p re m e Court has established guidelines to assist trial courts in determining whether this sta n d a rd has been met: T h e inquiry performed is the threshold inquiry of determining w h e t h e r there is the need for a trial - whether, in other words, th e re are any genuine factual issues that properly can be re so lv e d only by a finder of fact because they may reasonably b e resolved in favor of either party.

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A n d e rs o n v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986). In r e v ie w in g a motion for summary judgment, the Court must view the facts in a light most f a v o ra b le to the non-moving party and give that party the benefit of all reasonable in f e re n c e s to be drawn from the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1 0 7 6 , 1077 (8th Cir. 1980). The moving party bears the initial burden of identifying the evidence which it b e lie v e s demonstrates the absence of a genuine issue of material fact. Webb v. Lawrence C o u n ty , 144 F.3d 1131, 1134 (8th Cir. 1998). This burden may be discharged by showing th a t there is an absence of evidence to support the non-moving party's case. Celotex C o rp . v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986). Once the moving party c a rrie s this burden, the non-moving party "must do more than simply show that there is s o m e metaphysical doubt as to the material facts." Matsushita Elec. Inc. Co., Ltd. v. Z e n ith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). When a motion for summary judgment is made and supported a s provided in this rule, an adverse party may not rest upon th e mere allegations or denials of the adverse party's p le a d in g s , but the adverse party's response, by affidavits or as o th e rw ise provided in this rule, must set forth specific facts s h o w in g that there is a genuine issue for trial. If the adverse p a rty does not so respond, summary judgment, if appropriate, s h a ll be entered against the adverse party. FED.R.CIV.P. 56(e). The judge does not weigh the evidence, but rather determines w h e th e r there is a genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.

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[ T ] h ere is no issue for trial unless there is sufficient evidence f a v o rin g the nonmoving party for a jury to return a verdict for th a t party. If the evidence is merely colorable, or is not s ig n if ic a n tly probative, summary judgment may be granted. Id. at 249-250. IV . B a c k gro u n d : P la in tif f alleges that Defendants were deliberately indifferent to her serious m e d ic a l needs in violation of the Eighth Amendment. Specifically, Plaintiff alleges D e f en d a n ts failed to provide timely medical treatment for a right arm injury. The rem ainin g Defendants in this case are Correctional Medical Services, Inc. ("CMS"), Dr. D o n a ld Anderson, and James Pratt. CMS is the ADC contracted health care provider. Dr. Donald Anderson is a CMS contracted physician. James Pratt is a Health Services A d m in i str a to r for CMS. During the Evidentiary Hearing, Plaintiff moved to dismiss D e f en d a n t Pratt. The Court recommended that Plaintiff's oral motion to dismiss be g ra n te d (#153). Plaintiff testified during the Evidentiary Hearing that she sued CMS because CMS s h o u ld be held responsible for the acts of its employees. Regarding Dr. Anderson, P la in tif f stated that she disagreed with his course of medical treatment. V. D is c u s s io n : P lain tiff 's only claim in this matter is for deliberate indifference to a right arm in ju ry. The Eighth Amendment to the United States Constitution prohibits the infliction o f cruel and unusual punishment. Jenson v. Clark, 94 F.3d 1191 (8th Cir. 1996). 4

D e lib e ra te indifference by prison personnel to an inmate's serious medical needs violates th e inmate's Eighth Amendment right to be free from cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). An Eighth Amendment claim that prison o f f ic ia ls were deliberately indifferent to the medical needs of inmates involves both an o b je c tiv e and a subjective component. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1 9 9 7 ). Inmates must demonstrate (1) that they suffered objectively serious medical n e e d s , and (2) that the prison officials actually knew of but deliberately disregarded those n e e d s . Id. A serious medical need is "one that has been diagnosed by a physician as re q u irin g treatment, or one that is so obvious that even a layperson would easily recognize th e necessity for a doctor's attention." Id. at 778. Plaintiff has had an extensive medical history during her time in the ADC. She has b e e n seen by nursing staff at least 56 times in the past two years for various complaints (# 1 2 5 , ¶45). She has been seen by Dr. Anderson or another mid-level provider at least 35 tim e s in the past two years (#125, ¶46). A large number of the visits with medical staff r e la te to Plaintiff's right wrist and arm injuries. O n February 13, 2007, Plaintiff's right wrist and arm were injured during an a lte rc a tio n with security. After the altercation, Plaintiff was seen by Janet Tiner, RN. N u rs e Tiner noted no signs or symptoms of injury, other than slightly red wrists. Later th e same day, Nurse Tiner was informed that Plaintiff had a knot on her right hand that w as not present earlier (#125, ¶13-14). The next day, February 14, 2007, x-rays were

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tak e n of Plaintiff's right hand and wrist; both x-rays reflected normal conditions in P lain tiff 's wrist and hand (#125, ¶15). O n February 19, 2007, an LPN making pill call rounds noticed that Plaintiff had a b ru ise d right hand, wrist and forearm, as well other injuries. She instructed Plaintiff to file a sick call request and reported her observations (#125, ¶16). On February 20, 2007, Dr. A n d e rs o n reviewed Plaintiff's sick call and ordered that x-rays be repeated the following d a y. On February 21, 2007, Dr. Anderson examined Plaintiff and observed that her right w ris t and hand were swollen and that her fingers were bruised. He diagnosed Plaintiff w ith a contusion of the wrist and a hand sprain and prescribed high-dose ibuprofen (#125, ¶ 1 8 ). The follow-up x-ray did not evidence a fracture of the right hand. On February 23, 2 0 0 7 , Dr. Anderson examined Plaintiff again and explained that her hand injury would take a month or two to heal (#125, ¶20). O n March 13, 2007, Plaintiff submitted another sick call request relating to her w ris t and hand injury. On March 16, 2007, Nurse Tiner saw Plaintiff and noted no ch an g e in the wrist injury (#125, ¶21).1 On April 2, 2007, Plaintiff was examined by Dr. A n d e rs o n . He noted that her wrist pain had significantly improved; the swelling was d o w n ; and the fingers of both hands flexed properly without any significant deficit (#125,

Plaintiff initially testified at the hearing that she was involved in an altercation a ro u n d this time that resulted in a wrist fracture. Plaintiff later confirmed that the a lte rc a tio n resulting in the wrist fracture occurred in March of 2008, not 2007 (#129, ¶2). The March 2007 sick call, therefore, was apparently related to the injury Plaintiff suffered in the February, 2007 altercation with staff. 6

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¶ 2 2 ). Dr. Anderson advised Plaintiff that her injury should continue to improve, and he re n e w e d her ibuprofen prescription. On May 6, 2007, Plaintiff submitted another sick call relating to her right arm. N u rs e Tiner saw Plaintiff on May 8, 2007, and noted a knot on Plaintiff's right wrist, but P la in t if f retained full range of motion, and there was no swelling (#125, ¶23). Nurse T in e r referred Plaintiff to the physician. On May 10, 2007, Dr. Anderson examined P la in tif f after the referral and noted a lump on Plaintiff's arm consistent with a ganglion cyst. He told Plaintiff that they would continue to monitor the cyst (#125, ¶24). O n May 29, 2007, Plaintiff submitted another sick call relating to her right wrist a n d arm. Nurse Tiner saw Plaintiff and noted no swelling or discoloration, full range of m o tio n , and a small, pea-sized bump on the top of Plaintiff's right wrist. On June 11, 2 0 0 7 , Plaintiff was a walk-in to the infirmary complaining of pain in her right hand and a rm . Plaintiff's knuckles were mildly swollen without redness, and she was able to move a ll digits and her wrist. Plaintiff was instructed to continue the ibuprofen as needed for sw elling and pain (#125, ¶26). O n June 16, 2007, Plaintiff submitted another sick call relating to her hand. Nurse T in e r saw Plaintiff on the 19th and noted that Plaintiff had full range of motion with no sym p to m s of pain or discomfort, no deformity, no swelling and no discoloration. On July 2 , 2007, Plaintiff was involved in another altercation with security and an LPN was called to assess Plaintiff's injuries. Plaintiff's wrists were red, but there was no swelling;

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P la in tif f was able to move both wrists without difficulty (#125, ¶28). On July 16, 2007, P la in tif f filed this action alleging deliberate indifference to her serious medical needs (#2 ). O n September 18, 2007, Plaintiff's ibuprofen prescription was renewed. On O c to b e r 19, 2007, Plaintiff was involved in another altercation. An LPN was called to a ss e ss Plaintiff and noted bruised right fingers which Plaintiff said were hurt because she w o u ld not let go of her bunk. Redness was also noted around both wrists (#125, ¶30). O n November 7, 2007, Plaintiff submitted a sick call regarding her right arm and th e expiration of various medications and restrictions. Plaintiff was seen on the 13th of N o v e m b e r and exhibited normal range of motion with no redness, swelling, or warmth. During this visit, it was noted that Dr. Anderson reviewed Plaintiff's medical jacket and ren ew ed her restrictions (#125, ¶31). O n December 24, 2007, Plaintiff was involved in another altercation, and Nurse T in e r was called to segregation to evaluate the Plaintiff. Nurse Tiner noted areas of d isc o lo ra tio n on Plaintiff's upper right arm, right leg, and red indentations around both w rists. Plaintiff had full range of motion in her hands and fingers (#125, ¶32). A t some point in March of 2008, Plaintiff was involved in another altercation with s e c u rity. On April 11, 2008, Plaintiff saw Dr. Anderson for right wrist pain due to an in ju ry suffered through the food trap door, apparently during the March altercation. P la in tif f 's wrist was tender to palpation over the distal radius and ulna, with pain on

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f le x io n . Dr. Anderson prescribed naproxen and ordered an x-ray (#125, ¶33). An x-ray w a s taken of Plaintiff's right wrist on April 25, 2008, and the radiologist identified a s c a p h o id fracture. On May 7, 2008, Dr. Anderson requested navicular views of P lain tiff 's right wrist. Plaintiff was sent to a consulting orthopedic physician, Dr. G a rb u tt, who noted a remote fracture of the right scaphoid with necrosis (a broken blood v esse l) of the proximal pole (#125, ¶35). O n May 12, 2008, Dr. Anderson submitted a consultation request for Plaintiff to be e v a lu a te d by Dr. Garbutt for surgical repair. The following day, Dr. Roland Anderson a n d Defendant Dr. Donald Anderson discussed Plaintiff's case and agreed to treat the f r a c tu r e conservatively and have the orthopedist evaluate the removal of the ganglion cyst ( # 1 2 5 , ¶36). Dr. Garbutt did not recommend scaphoid surgery due to a very low success ra te and prolonged physical therapy (#125, ¶37). Dr. Anderson noted that a consultation w o u ld be scheduled for the ganglion cyst so a brace could be prescribed for pain m a n a g em e n t of the scaphoid fracture. O n June 24, 2008, Dr. Garbutt determined that the swelling on the back of P lain tiff 's wrist was not a ganglion, "just a diffuse mushy swelling. . . ." Dr. Garbutt d ia g n o se d Plaintiff with synovitis, a form of tendonitis, with suggestions for conservative o r surgical treatment. Dr. Anderson then prescribed Plaintiff a wrist brace and naproxen (# 1 2 5 , ¶38).

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O n August 6, 2008, Plaintiff was evaluated by Dr. Anderson in the chronic care c lin ic . Plaintiff complained of wrist pain after doing push-ups and pull-ups. Plaintiff had f u ll range of motion without pain or swelling, and Dr. Anderson advised Plaintiff to stop d o ing push-ups and pull-ups if it bothered her wrists (#125, ¶39). D r. Anderson opined that Plaintiff had recurrent tendonitis which should be treated w ith ibuprofen or naproxen and rest (#125, ¶42). Plaintiff has had almost continual p re sc rip tio n s for ibuprofen, then naproxen, for her arm and wrist complaints since her f irs t wrist injury (#125, ¶44). Although Plaintiff does not have a ganglion cyst as a ss e ss e d , according to Dr. Anderson, she still would have received the same treatment for a n earlier diagnosis of tendonitis (#125, ¶48). After diagnosing Plaintiff with tendonitis, D r. Garbutt recommended Plaintiff continue with the medication she was already taking (#1 2 9 , ¶3). T h e record establishes continuous evaluation and treatment of Plaintiff's right arm a n d wrist injury. During this treatment, it appears Dr. Anderson incorrectly diagnosed P la in tif f with a ganglion cyst, which Dr. Garbutt diagnosed as tendonitis. This apparent m is ta k e is insufficient to establish deliberate indifference, especially considering the u n c o n tro v e rte d assertion that Plaintiff would have received the same treatment for te n d o n itis as she did for the suspected ganglion cyst. Plaintiff also challenges the delay in getting a brace for her wrist fracture. It is c lea r from the record that Plaintiff did not fracture her wrist until well after she filed this

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la w s u it. It is also clear that the healing process has been disrupted by the numerous p h ysic a l altercations Plaintiff has had with security. Regardless, Plaintiff has failed to s h o w that any alleged delay in treatment rose to the level of a constitutional violation. Plaintiff's wrist brace was prescribed in concert with Dr. Garbutt's evaluation. To show d e trim e n ta l effect of delay in medical treatment, Plaintiff must provide evidence that D e f en d a n ts ignored an acute or escalating situation or that delays adversely affected her p ro g n o s is . Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995) (citations omitted). The re c o rd is devoid of any such evidence. In addition to the delay in getting a wrist brace, Plaintiff testified that she s o m e tim e s had to wait 2-3 days for treatment after submitting a sick call request, and that sh e had to wait nine days from her initial injury before Dr. Anderson prescribed pain m e d ic a tio n (#129, ¶7). Plaintiff attributes part of this delay to Nurse Tiner's alleged re f u s a l to document her injuries after Plaintiff's February 13, 2007 altercation (#129, ¶4). Nurse Tiner is not a Defendant in this matter. The record shows that Nurse Tiner e v a lu a te d Plaintiff immediately after her initial injury on February 13, 2007. Plaintiff s u b m itte d a sick call request on the night of February 19, 2007. On February 20, 2007, D r Anderson reviewed the sick call and the next day he prescribed Plaintiff high-dose ib u p ro f e n for pain and swelling. There is no evidence that Dr. Anderson was aware of P lain tiff 's injuries until he reviewed Plaintiff's sick call on February 20, 2007. The very

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n ex t day he prescribed Plaintiff pain mediation. Considering the extent of Plaintiff's in ju rie s, this delay is insufficient to establish an Eighth Amendment violation. D u rin g the evidentiary hearing, Plaintiff admitted that she has received treatment f o r her wrist injury, but stated that she disagreed with the course of treatment provided by D r. Anderson. It appears Plaintiff's injury has improved little or, as Defendants contend, h a s recurred due to use. It is understandable that Plaintiff would want to try a different c o u rs e of medical treatment. Disagreement with treatment decisions, however, does not ris e to the level of a constitutional violation. Estate of Rosenberg, 56 F.3d at 37. D u rin g the evidentiary hearing, Plaintiff testified that she had recently seen a s e c o n d orthopedic physician who recommended bone fusion surgery for Plaintiff's wrist if the problem persists. Plaintiff is scheduled to be released from the ADC soon and w an ts CMS either to schedule the surgery before her release, or to pay for the surgery a f ter her release. After reviewing the record, it is clear that the wrist fracture leading to th e proposed surgery occurred well after Plaintiff filed this action. It is possible, h o w e v e r, that Plaintiff's initial injury contributed to the current condition of her wrist. Plaintiff is again contesting the potential delay in treatment. As noted, to present a c o n stitu tio n a l claim for delay in treatment Plaintiff must show Defendants ignored an a c u te or escalating situation or that delays adversely affected her prognosis. Reece, 60 F .3 d at 491. Again, Plaintiff has not made this showing, particularly in light of the te stim o n y that the surgery is essentially elective and that a delay will not adversely affect

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P la in tif f 's condition. Grundy v. Norris, 26 Fed.Appx. 588, 590, 2001 WL 1345632, 1 (8 th Cir. 2001) (unpublished) (citing Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1 9 9 9 ). A f te r a thorough review of the record, and viewing the facts in a light most f a v o ra b le to Plaintiff, it is clear she cannot present evidence to support an Eighth A m e n d m e n t claim against either CMS or Dr. Anderson. Plaintiff cannot hold CMS liable u n d e r a theory of respondeat superior. See Vaughn v. Greene County, Ark., 438 F.3d 8 4 5 , 851 (8th Cir. 2006) (citations omitted) (affirming that the doctrine of respondeat s u p e rio r is inapplicable to section 1983 claims). Dr. Anderson's conduct, if it can be f a u lte d , does not approach deliberate indifference. While the condition of Plaintiff's wrist has not healed, this is not due to lack of a tte n tio n from medical personnel. The record establishes that Plaintiff has endured some s h o rt delays in medical attention. In addition, Plaintiff was incorrectly diagnosed with a g a n g lio n cyst instead of tendonitis. Based on these facts, however, it would be difficult f o r Plaintiff to establish medical negligence by the Defendants; and even gross negligence is insufficient to establish deliberate indifference under the Eighth Amendment. See Jolly v . Knudsen, 205 F.3d 1094, 1096 (8th Cir.2000) (inmates must show more than even g ro s s negligence). Defendants have carried their burden by presenting evidence entitling them to ju d g m e n t as a matter of law. Plaintiff has failed to establish that there is a question of 13

m a ter ial fact for a jury to decide. Accordingly, this action should be dismissed with p re ju d ic e . VI. C o n c lu s io n : T h e undisputed record establishes that Defendants are entitled to judgment as a m a tte r of law. Accordingly, the Court recommends that the Defendants' motion for s u m m a ry judgment (#123) be GRANTED, and this action be DISMISSED WITH P R E JU D IC E . D A T E D THIS 26th day of January, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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