Lagerstrom v. Matos et al

Filing 27

REPORT AND RECOMMENDATIONS that 18 MOTION for Summary Judgment filed by N Shah, Hipolito Matos be granted and that plaintiff's claims be dismissed with prejudice Objections to R&R due by 3/12/2009. Signed by Magistrate Judge Beth Deere on 2/26/09. (bkp)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION G A R Y DEAN LAGERSTROM R e g . # 37670-079 V. H I P O L IT O MATOS, et al. N O . 2:08CV00189-SWW-BD DEFENDANTS P L A IN T IF F

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 Susan Webber Wright. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from the date you receive the Recommended Disposition. A c o p y will be furnished to the opposing party. Failure to file timely objections may result in waiver 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 , a federal inmate currently confined at the Federal Correctional Institution

in Forrest City, Arkansas, brings this action pro se under Bivens v. Six Unknown Named A g e n ts, 403 U.S. 388 (1971). In his Complaint, Plaintiff alleges that since January 2003, h e has experienced significant lower back pain. Plaintiff complains that Defendants have c o n tin u a lly ignored his medical condition and have failed to provide him adequate m e d ica l care. Plaintiff bring this lawsuit against Hipolito Matos and N. Shah, in both th e ir official and individual capacities. Plaintiff requests monetary damages as well as in ju n c tiv e relief. D e f en d a n ts have filed a Motion for Summary Judgment (docket entry #18). In the M o tio n , Defendants argue that: (1) Plaintiff has failed to state a deliberate indifference c la im , as a matter of law; (2) Plaintiff failed to make any allegations against Defendant S h a h in his Complaint; and (3) Defendants are entitled to qualified immunity.1 Plaintiff h a s not responded to Defendants' Motion. As a result, all facts contained in Defendants'

In his Complaint, Plaintiff also named the United States and the Bureau of P ris o n s as party Defendants. Although Defendants have moved to dismiss all claims a g a in st these parties in their Motion for Summary Judgment, the Court previously d is m is s e d both the United States and the Bureau of Prisons from this action (#8). Accordingly, Defendants' request should be DENIED as moot. 2

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S tatem en t of Facts will be deemed admitted. See Local Rule 56.1(c). The Court re c o m m e n d s that Defendants' Motion (#18) be GRANTED. I I I. A n a l y s is : A. S tand ard

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. CIV. P . 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, In c ., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its burden u n d e r 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 Northwoods, 4 1 5 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not `rest on mere a lleg a tio n s or denials, but must demonstrate on the record the existence of specific facts w h ic h create a genuine issue for trial.'" (quoting Krenik v. County of Le Sueur, 47 F.3d 9 5 3 , 957 (8th Cir. 1995))). If the opposing party fails to carry that burden or fails to e sta b lis h the existence of an essential element of its case on which that party will bear the b u rd e n of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 3 2 2 . "Although it is to be construed liberally, a pro se complaint must contain specific f a c ts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).

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B.

D e lib e ra te Indifference

T o state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a f e d era lly protected right and show that the alleged deprivation was committed by a person a c tin g under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250 (1988). Prison officials or their agents violate the Eighth Amendment if they commit "acts or o m is s io n s sufficiently harmful to evidence deliberate indifference to [an inmate's] serious m e d ic a l needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1976). The Eighth C irc u it Court of Appeals has interpreted this standard as including both an objective and a s u b je c tiv e component: "The [plaintiff] must demonstrate (1) that [he] suffered [from] o b je c tiv e ly serious medical needs and (2) that the prison officials actually knew of but d e lib e ra te ly disregarded those needs." Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1 9 9 7 ). "The prisoner must show more than negligence, more even than gross negligence, a n d mere disagreement with treatment decisions does not rise to the level of a constitutional v io la tio n ." Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). See also Smith v . Marcantonio, 910 F.2d 500, 502 (8th Cir. 2000) (holding that an inmate's disagreement w ith or displeasure with his course of treatment is not actionable under § 1983). Here, Plaintiff alleges that he has complained about significant lower back pain sinc e his arrival at the Federal Correctional Institution in Marianna, Florida, in January 2 0 0 3 . After Plaintiff was transferred to the Federal Correctional Institution in Forrest City,

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A rk a n sa s, in September 2004, Plaintiff's complaints persisted. Most recently, Plaintiff c o m p l a in s that he is experiencing numbness and tingling in his lower legs. Plaintiff states that he has not seen a specialist, nor has an MRI been conducted to determine the source of h is pain or whether any surgical procedure is needed. In support of their Motion for Summary Judgment, Defendants provide the D e c la ra tio n of Defendant Matos along with Plaintiff's medical records. These medical re c o rd s indicate that Plaintiff began complaining about lower back pain in January 2003. At that time, Plaintiff informed medical staff at the Federal Correctional Institution in M arian n a, Florida, that he suffered from arthritis and chronic lower back pain. On January 1 0 , 2003, an x-ray of Plaintiff's back was performed. The results indicated that Plaintiff h a d a possible longstanding L3-4 disc disease with no acute changes. The x-rays also sh o w ed that Plaintiff's L5-S1 disc was obliterated because of sacralization and that there m ig h t be relative height loss of the L3-4 disc. However, it was not until August 2003, that P lain tiff informed medical staff in Marianna that he had a history of lower back pain due to a water skiing accident that occurred when he was twenty-seven years old. After this in f o rm a tio n was learned, Plaintiff was added to the orthopedic chronic care clinic and was p ro v id e d a prescription for Salsalate. In addition, further diagnostic studies were requested. In February 2004, Plaintiff again complained of lower back pain to the Marianna m e d ica l staff. At that time, Plaintiff was advised to schedule an appointment with his p rim a ry care provider.

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I n September 2004, Plaintiff arrived at the Federal Correctional Institution in Forrest C ity, Arkansas. During his medical intake screening, Plaintiff noted that he suffered from arthritis. Based on the medical records provided, it appears that Plaintiff first complained of lo w e r back pain to the Forrest City medical staff in late January 2005. At that time, he re q u e ste d either an increase in the dosage of his pain medication or a change in pain m e d ic a tio n . Physician notes indicate that Plaintiff had degenerative joint disease and was a d v is e d to take his pain medication. In May 2005, Plaintiff again complained about pain in his lower back. At that time, P la in tif f 's x-rays were reviewed and his pain medication was refilled.2 In September 2005, Plaintiff complained of lower back pain accompanied with n u m b n e ss and tingling in his lower legs over the last several months. At that time, p h ys ic ia n s again reviewed Plaintiff's x-rays and ordered new x-rays. O n September 15, 2005, another x-ray of Plaintiff's back was taken. A t that time, x-rays revealed that Plaintiff had normal alignment of vertebrae with normal vertebral body h e ig h t and slight narrowing of the L4-5 level.

Based upon Plaintiff's medical records, it appears that he requested refills for his S a ls a la te prescription on March 23, 2003, September 2, 2003, September 3, 2003, O c to b e r 31, 2003, November 17, 2003, January 28, 2004, September 21, 2004, November 5 , 2004, and May 3, 2005. Each time such a request was made, medical staff responded in a timely manner. 6

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O n October 11, 2005, Plaintiff was seen by medical staff for a follow-up visit for b o th an ear infection and lower back pain. At that time, Plaintiff was advised to continue taking his pain medication. O n May 21, 2006, Plaintiff arrived at the health services unit in Forrest City via a m b u la n c e complaining of lower back pain. Plaintiff informed medical staff that when he a w o k e that morning, he could not get out of his bed. However, Plaintiff also told medical s ta f f that he had done at least one lap around the recreation yard that morning. The e v a lu a tin g nurse found no evidence of acute pain. The clinical director was informed of the f in d in g s and ordered Motrin for Plaintiff. Plaintiff was instructed to continue his current p a in medication regimen and to return to the clinic if the pain did not subside. A lth o u g h Plaintiff was seen by medical staff for several follow-up visits after May 2 0 0 6 , Plaintiff did not complain again of back problems until May 2007. At that time, P la in tif f returned to the medical staff with complaints of a boil on his back. On May 21, 2 0 0 7 , Plaintiff initially was treated for the boil. Plaintiff received follow-up treatment for p ro b le m s associated with the boil for the next five days. Plaintiff's medical records indicate that he again complained about lower back pain in August 2007. At that time, the clinical director ordered x-rays and laboratory tests. On S e p tem b e r 28, 2007, x-rays of Plaintiff's back again were taken. Dr. Nguyen (not a party to this action) concluded that Plaintiff suffered abnormal mild diffuse degenerative chan ges.

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In November 2007, Plaintiff returned to the health unit at the Federal Correction In s titu tio n in Forrest City to discuss the September 2007 x-rays with Defendant Matos. Plaintiff was informed that the x-rays revealed that Plaintiff had abnormal mild diffuse d e g e n e ra tiv e changes. At that time, Plaintiff requested an MRI or an orthopedic consult. Based upon intermittent nature of Plaintiff's back pain, Defendant Matos denied Plaintiff's re q u e sts . Defendant Matos instructed Plaintiff to continue taking his pain medication and to continue lower back strengthening exercises. Plaintiff was scheduled for a follow up v is it at that time.3 S in c e November 2007, although Plaintiff has returned to the health unit for other m e d ic a l problems, based upon the medical records provided, he has not made any other c o m p la in ts regarding lower back pain.4 A cc o rd in g to the undisputed evidence, it appears that Defendants responded to every re q u e st made by Plaintiff in a timely fashion. Not only have multiple doctors examined P lain tiff and Plaintiff's medical file, multiple x-rays have been taken. Although these tests m a y not have provided Plaintiff with the answers he seeks, he can hardly claim that D e f en d a n ts have disregarded his serious medical needs. See Estelle v. Gamble, 429 U.S.

Plaintiff's medical records do not provide a date for Plaintiff's follow-up visit w ith Defendant Matos. However, Plaintiff did not appear for his appointment on May 15, 2008. On September 12, 2008, x-rays were taken of Plaintiff's shoulder and back due to c o m p la in ts of a shoulder injury. Those x-rays indicate Plaintiff suffers from degenerative jo in t disease/disc disease. 8
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9 7 , 107, 97 S.Ct. 285 (1976) (where medical personnel saw inmate seventeen times in three m o n th s and treated back strain with bed rest, muscle relaxants, and pain relievers, their f a ilu re to x-ray his broken back or implement other diagnostic techniques or treatment was n o t deliberate indifference); Sherrer v. Stephens, 50 F.3d 496 (8th Cir. 1994) (holding that tre a tm e n t of inmate's broken finger did not rise to the level of deliberate indifference based o n evidence that he received x-rays, painkillers, instructions to apply ice, and was examined b y orthopedists); and Bellecourt v. United States, 994 F.2d 427, 431 (8th Cir. 1993) (h o ld in g that although physician misdiagnosed inmate's condition and method of physical e x a m in a tio n and treatment might not have comported with community standards, conduct d id not amount to deliberate indifference). Moreover, Plaintiff has failed to submit evidence that Defendants either ignored "an a c u t e or escalating situation" or that the delays adversely affected his prognosis. Givens v. J o n e s, 900 F.2d 1229, 1233 (8th Cir. 1990). Thus, Plaintiff's desire for either an MRI or a c o n su lt with an orthopedic specialist is merely a disagreement with the course of medical tre a tm e n t and does not state a constitutional claim. Accordingly, the Court finds that D e f e n d a n ts are entitled to judgment as a matter of law. C. D e f en d a n t Shaw

In addition, in their Motion, Defendants argue that Defendant Shaw should be d i sm is s e d from this lawsuit because Plaintiff fails to make any allegations against D e f en d a n t Shaw in his Complaint. The Court agrees. Although Defendant Shaw is named

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in the caption of Plaintiff's Complaint, Defendant Shaw is not mentioned when Plaintiff d e sc rib e s the events giving rise to this lawsuit. Plaintiff does not attribute any u n c o n stitu tio n a l conduct to Defendant Shaw; nor does Plaintiff state how he suffered any in ju ry based upon Defendant Shaw's conduct. As a result, Defendant Shaw also is entitled to dismissal on this basis. See Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (w h e re plaintiff did not allege that defendant was personally involved in or had direct re sp o n s ib ility for incidents that injured him, his claims against such defendant were not co g n izab le under § 1983). D. Q u a lifie d Immunity

In their Motion for Summary Judgment, Defendants also claim that they are entitled to qualified immunity. However, because the Court finds that Plaintiff has failed to state a c o n stitu tio n a l claim as a matter of law, it is not necessary to address Defendants' qualified im m u n ity argument in this Recommendation. Only if the Court had found an actionable c o n stitu tio n a l claim would it have determined whether Plaintiff's rights were "clearly e sta b lis h e d " at the time of the alleged violation. See Robinson v. White County, Ark., 452 F .3 d 706, 711-12 (8th Cir. 2006). IV . C o n c lu s io n : T h e Court recommends that Defendants' Motion for Summary Judgment (#18) be G R A N T E D and that Plaintiff's claims be DISMISSED WITH PREJUDICE.

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D A T E D this 26th day of February, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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