Evans v. Correctional Medical Services et al

Filing 134

RECOMMENDED DISPOSITION recommending 113 Defendants' Motion for Summary Judgment be granted and that this case be dismissed with prejudice. Objections to R&R due by 4/17/2009. Signed by Magistrate Judge Beth Deere on 4/3/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION E X C E L EVANS, III V. NO. 2:07CV00134-JMM/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 C o u rt Judge James M. Moody. Any party may serve and 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 the 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.

B a c k gro u n d : P la in tif f Excel Evans III was an Arkansas Department of Correction ("ADC")

in m a te at the time he filed a pro se Complaint under 42 U.S.C. § 1983 on October 24, 2 0 0 7 . Plaintiff has since been released from the ADC. He is proceeding in forma p a u p e ris . In his Complaint, Plaintiff alleges that Defendants have acted with deliberate in d if f ere n c e to his medical needs. Specifically, Plaintiff claims that Defendant Clark was n e g lig e n t in assigning Plaintiff a medical classification of M-1, which resulted in P lain tiff 's being placed on the hoe squad and being asked to perform work that he could n o t perform without causing pain and discomfort. In addition, Plaintiff claims that D e f e n d a n ts Green and Hallmark failed to respond to his grievances adequately. D e f en d a n ts Clark, Green, and Hallmark have filed a motion for summary judgment (d o c k e t entry #113). In the motion, Defendants argue that Defendant Clark is entitled to ju d g m e n t as a matter of law because negligence in diagnosing or treating a medical c o n d itio n does not constitute deliberate indifference. Defendant Clark argues that he ex erc ised his own medical judgment in classifying Plaintiff and that Plaintiff's d is a g re e m e n t with his decision does not state a constitutional claim. Defendant Green contends that she is entitled to judgment as a matter of law b e c au s e Plaintiff seeks to hold her responsible under a respondeat superior theory of liab ility which does not apply to § 1983 claims. In addition, Defendant Hallmark c o n te n d s that she is entitled to judgment as a matter of law because any failure to respond

2

to Plaintiff's grievances in the manner he thought best does not rise to a constitutional v io la tio n . Defendants also argue that Plaintiff has failed to exhaust his administrative r e m e d i e s.1 P lain tiff responded to Defendants' motion by stating that he had evidence to p re se n t to oppose the Defendants' motion, but that he had not been able to collect such e v i d e n c e at that time (#118). Plaintiff requested that this matter be set for a hearing so th a t he could produce evidence to the Court prior to ruling on the motion (#119). This m a tter was set for an evidentiary hearing on March 31, 2009 (#125).2 Plaintiff failed to a p p e a r for the hearing (#132). The Court finds that Defendants' motion for summary judgment (#113) should be G RA N TED .

Defendants Hallmark, Green, and Clark previously moved to have Plaintiff's c la im s against them dismissed for his failure to exhaust administrative remedies (#28). The Court construed the motion as one for summary judgment (#44). In denying the m o tio n , the Court found that the allegations made by Plaintiff in his grievance were s u f f ic ie n t to meet the exhaustion requirements of the PLRA as to Plaintiff's claims related to his treatment for hemorrhoid and back pain, and his claim of deliberate indifference in h is placement on the hoe squad as to Defendants Clark, Hallmark, and Green (#49). A c c o rd in g ly, the Court will not address the issue of exhaustion in this Recommended D is p o s itio n . This matter originally was scheduled for an evidentiary hearing on January 13, 2 0 0 9 (#100). Defendants moved to have the hearing continued based upon the inability o f Defendant Green to attend the hearing on that date (#122). The Court granted D e f en d a n ts ' motion to continue (#123) and scheduled the hearing for March 31, 2009 (# 1 2 5 ). Plaintiff was notified of this change (#124 and #126). 3
2

1

III.

D is c u s s io n : A. S u m m a r y Judgment Standard

S u m m a r y judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of sp ec ific facts which create a genuine issue for trial.") If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint m u s t contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1 3 3 4 , 1337 (8th Cir. 1985). B. D e fe n d a n t Clark

P lain tiff claims that Defendant Clark acted with deliberate indifference to his m e d ica l needs by assigning Plaintiff the medical classification of M-1 upon his return to

4

th e ADC in June 2007. Plaintiff claims that he previously was classified as M-2 so that h e was not required to lift anything that weighed more than fifteen pounds.3 In the motion for summary judgment, Defendant Clark argues that when he e x a m in e d Plaintiff, he used his own medical judgment in classifying Plaintiff as M-1. Defendant Clark states that Plaintiff's disagreement with his classification level does not ris e to the level of a constitutional violation. Further, Defendant Clark argues that n eg lig en ce in the diagnosis of a medical condition does not establish liability under § 1983 and that he was not responsible for Plaintiff's assignment to the hoe squad. The C o u rt agrees and finds that Defendant Clark is entitled to judgment as a matter of law. P riso n officials or their agents violate the Eighth Amendment if they commit "acts o r omissions sufficiently harmful to evidence deliberate indifference to [an inmate's] s e rio u s medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1976). The E ig h th Circuit Court of Appeals has interpreted this standard as including both an o b je c tiv e and a subjective component: "The [plaintiff] must demonstrate (1) that [he] su f f e re d [from] objectively serious medical needs and (2) that the prison officials actually k n e w of but deliberately disregarded those needs." Dulany v. Carnahan, 132 F.3d 1234, 1 2 3 9 (8th Cir. 1997). "The prisoner must show more than negligence, more even than g ro s s negligence, and mere disagreement with treatment decisions does not rise to the

Plaintiff's medical classification was later changed to M-2 based upon the failure o f a foot injury to heal properly (#115-2 at p.12). 5

3

le v e l of a constitutional violation." Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th C ir. 1995). T h e Eighth Circuit has specifically stated that "[p]rison doctors remain free to e x e rc is e their independent medical judgment." Dulany, 132 F .3d at 1240 (citing Long v. N ix , 86 F.3d 761, 765 (8th Cir. 1996)). See also Givens v. Jones, 900 F 2.d 1229, 1232 (8 th Cir. 1990) (prison doctors "must make treatment decisions on the basis of a multitude o f factors, only one of which is the patient's input"). Furthermore, in this case, Plaintiff h a s failed to provide any evidence that Defendant Clark's assessment of Plaintiff was " g ro s s ly inappropriate." Dulany, 132 F.3d at 1241. "Mere negligence or medical m a lp ra c tic e [is ] insufficient to rise to a constitutional violation." Estelle, 429 U.S. at 106. Plaintiff also claims that because Defendant Clark classified him as M-2, he was a ss ig n e d to the hoe squad which resulted in physical injuries. However, the undisputed e v id e n c e presented by Defendants shows that Defendant Clark was not responsible for m a k in g any such assignment (#115-2 at p.1-2). Therefore, Plaintiff has failed to create a n y material question of fact on this issue. C. D e fe n d a n t Green

D e f en d a n t Green is the infirmary manager at East Arkansas Regional Unit of the A D C . In Plaintiff's deposition, he states that he has sued Ms. Green because she is a s u p e rv is o r and is responsible for those individuals she supervises (#115-2 at p.21).

6

P lain tiff admits that he never had a conversation with Defendant Green or directly co m m u n ica ted his complaints to her.4 D ef en d an ts are correct that respondeat superior is not a basis for liability under § 1983. See Vaughn v. Greene County, Ark., 438 F.3d 845, 851 (8th Cir. 2006) (citations o m itte d ) (affirming that the doctrine of respondeat superior is inapplicable to § 1983 c laim s). Here, Plaintiff fails to provide any evidence that Defendant Green directly p a rtic ip a te d in any alleged constitutional violation or learned of any alleged constitutional v i o la tio n and failed to act. Accordingly, Defendant Green is entitled to judgment as a m atte r of law. D. D e fe n d a n t Hallmark

P la in tif f alleges that Defendant Hallmark responded to Plaintiff's informal re so lu tio n by stating that he needed to see a doctor. Plaintiff complains that he was not s e e n by the infirmary staff until two days after he had filed the informal resolution. Plaintiff has not presented any evidence that he sustained any additional injuries as a re su lt of any delay in treatment to preclude the granting of summary judgment in D e f e n d a n t Hallmark's favor. When an inmate alleges that a delay in medical treatment rises to the level of an E ig h th Amendment violation, "the objective seriousness of the deprivation should also be

The Court notes that Plaintiff's statements directly contradict allegations c o n ta in e d in his Amended Complaint in which he states that he informed Defendant G ree n of his medical conditions and his need for treatment (#5). 7

4

m e a su re d `by reference to the effect of delay in treatment.'" Beyerbach v. Sears, 49 F.3d 1 3 2 4 , 1326 (8th Cir. 1995), abrogation on other grounds recognized by Reece v. Groose, 6 0 F.3d 487, 492 (8th Cir. 1995) (quoting Hill v. Dekalb Regional Youth Det. Ctr., 40 F .3 d 1176, 1188 (11th Cir. 1994)). Therefore, the inmate "must place verifying medical e v id e n c e in the record to establish the detrimental effect of delay in medical treatment." C ro w ley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (quoting Hill, 40 F.3d at 1188); s e e also Jackson v. Hallazgo, 30 Fed. Appx. 668 (8th Cir. Mar. 6, 2002) (unpub. per c u ria m ) (citing Coleman v. Rahija, 114 F.3d at 778, 784 (8th Cir. 1997) ("[a]n inmate's f a ilu re to place verifying medical evidence in the record to establish the detrimental effect o f delay in medical treatment precludes a claim of deliberate indifference to medical n e e d s" )); O'Neal v. White, 221 F.3d 1343, *1 (8th Cir. July 12, 2000) (unpub. per c u ria m ) (citing Crowley, 109 F.3d at 502) (concluding that plaintiff's "failure to submit v e rif yin g medical evidence to show a detrimental effect from any delay in tests, surgery, o r alternative treatments was fatal to his Eighth Amendment claim")). Here, Plaintiff has failed to produce any such evidence. Rather, the undisputed e v id e n c e presented by Defendants shows that Plaintiff submitted his informal resolution o n July 23, 2007. At that time, Defendant Hallmark responded that Plaintiff would have to see a doctor for his complaints. On July 25, 2007, Plaintiff was seen in the infirmary, a n d was referred to a doctor. On July 29, 2007, Dr. Suphan evaluated Plaintiff. Under

8

th e se undisputed facts, Plaintiff cannot show that Defendant Hallmark acted with d e lib e ra te indifference to his medical needs. Further, Defendants correctly state in their motion that Defendant Hallmark's a lle g e d failure to respond to Plaintiff's grievance in a timely manner does not rise to the le v e l of a constitutional violation. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1 9 9 3 ) (failure to process grievances fails to state an actionable claim under § 1983). Accordingly, Defendant Hallmark also is entitled to judgment as a matter of law. IV . C o n c lu s io n : T h e Court recommends that Defendants' motion for summary judgment (#113) be G R A N T E D and that this case be dismissed with prejudice. D A T E D this 3rd day of April, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

9