Clarke v. Federal Transfer Center et al

Filing 125

OPINION AND ORDER GRANTING 81 motion to dismiss and 83 88 motions for summary judgment; dismissing without prejudice Mr. Clarke's claims against Mr. Outlaw; and dismissing with prejudice Mr. Clarke's claims against Mr. Vitvitsky and Ms. Winkler. The Court certifies that an in forma pauperis appeal from this Opinion and Order would not be taken in good faith. Signed by Judge Kristine G. Baker on 09/29/2014. (rhm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
TIBAL CLARKE,
Reg. #97273-071
v.

PLAINTIFF
Case No. 2:13-cv-00026-KGB-JTR

ELLA TAYLOR,
Registered Nurse, FCI-FC, et al.

DEFENDANTS
OPINION AND ORDER

Plaintiff Tibal Clarke is a federal prisoner and brings this pro se action alleging that,
while he was incarcerated in the Federal Correctional Institution at Forrest City (“FCI Forrest
City”), he received inadequate medical care for his complaints of rectal bleeding that resulted in
him receiving a delayed diagnosis of colon cancer.

Mr. Clarke asserts a Bivens1 Eighth

Amendment claim against the individual defendants and a negligence claim against the United
States of America pursuant to the Federal Tort Claims Act (“FTCA”).
Before the Court is the motion to dismiss filed by separate defendant Timothy Outlaw,
the former warden of FCI Forrest City (Dkt. No. 81). Mr. Clarke has not responded, despite
being ordered to do so (Dkt. No. 100). Also before the Court are the motions for summary
judgment filed by separate defendants Jack Vitvitsky, P.A., and Cathie Winkler, R.N., employees
of an independent medical contractor at FCI Forrest City (Dkt. Nos. 83, 88). Mr. Clarke has
responded to Mr. Vitvitsky’s and Ms. Winkler’s motions collectively (Dkt. No. 94), and Ms.
Winkler has replied (Dkt. No. 99). For the following reasons, the Court grants Mr. Outlaw’s
motion to dismiss and Mr. Vitvitsky’s and Ms. Winkler’s motions for summary judgment (Dkt.
Nos. 81, 83, 88). The Court has under advisement the motion for summary judgment filed by
1

See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). A Bivens
cause of action is analogous to a claim under 42 U.S.C. § 1983.

defendants Ella Taylor, R.N., Amy Barker, R.N., Kathleen Maples, R.N., Hipolito Matos, M.D.,
and Nader Peikar, M.D. (Dkt. No. 107).
I.

Factual Background

On April 3, 2009, Mr. Clarke was transferred from FTC Oklahoma City to FCI Forrest
City (Dkt. No. 111, Ex. A, ¶2). At that time, Mr. Clarke underwent a health screen that did not
indicate any abnormalities or health problems other than a prior positive tuberculosis test (Id.,
Attch. 2). On April 13, 2009, Mr. Clarke saw Ella Taylor, a Registered Nurse, in a “sick call
triage encounter” (Dkt. No. 111, Attch. 3). He requested hair clippers and a cholesterol check
(Id.).

On June 29, 2009, Mr. Clarke saw Amy Barker, another Registered Nurse, in an

“[e]mergency encounter performed at Health Services” (Dkt. No. 111, Attch. 4). Mr. Clarke
complained of abdominal pain and multiple episodes of diarrhea (Id.). Ms. Barker assessed Mr.
Clarke with diarrhea and instructed him to “keep hydrated [with] 2 days off work.” (Id.).
On July 15, 2009, Mr. Clarke underwent a full history and physical performed by Rachel
Johnson, a Nurse Practitioner (Dkt. No. 111, Attch. 5). Although Mr. Clarke denied any blood in
his stool, Ms. Johnson ordered a “guaiac [test] time[s] three,” a test for fecal occult blood (Id.,
Attch. 5 at pp. 5, 13). Based on this physical, Mr. Clarke was assessed with osteoarthritis,
elevated blood pressure, and joint pain (Id., Attach. 5 at p. 12).
On August 24, 2009, Mr. Clarke saw physician’s assistant Jerald Jones for a recheck of
an elevated blood-pressure reading and for complaints of knee pain (Dkt. No. 111, Attch. 6). On
September 23, 2009, Mr. Clarke returned to Mr. Jones in a “sick call/triage encounter” (Dkt. No.
83-1, at 5). Mr. Clarke complained of rectal bleeding and stated that he had recently had three
guaiac tests that were positive for fecal occult blood (Id.). After an examination, Mr. Jones

2

assessed “[h]emorrhage of the gastrointestinal tract, unspecified” (Id.). Mr. Jones noted that
“[Mr. Clarke] needs CBC and eval by gastro[enterologist]” (Id.).
On December 2, 2009, Mr. Vitvitsky, a physician’s assistant, treated Mr. Clarke in a sick
call/triage encounter (Dkt. No, 83-1, at 1, 7). During that visit, Mr. Clarke complained that, for
the last three months, he had observed blood in his stool every time he used the toilet. He also
reported taking an aspirin a day for a knee injury, which Mr. Vitvitsky noted “may be
contributing to problem.” (Id. at 7). Mr. Vitvitsky recorded: “Rectal stool sample showed
positive for occult blood with sample only from rectal canal — [Mr. Clarke] was too
uncomfortable to push all the way in without lubrication generous on glove. Two more cards to
be returned in a few days.” (Id.). Mr. Vitvitsky assessed “[h]emorrhage of the gastrointestinal
tract, unspecified” (Id. at 8). Mr. Vitvitsky’s plan of care included a CBC blood test and for Mr.
Clarke to follow up at sick call as needed. Mr. Vitvitsky further recorded under his plan of care:
“Await (continue) for consult regarding blood in stool, return two cards Friday, continue Milk of
Mag to provide regularity. Blood tests being ordered.” (Id.).
Mr. Clarke returned to Mr. Vitvitsky on December 4, 2009. Both of Mr. Clarke’s stool
sample cards tested positive for occult blood (Dkt. No. 83-1, at 9). Mr. Vitvitsky noted that Mr.
Clarke now had a total of six stool samples that were positive for blood and listed
gastroenterology consultation under his plan of care (Id., at 10). Mr. Vitvitsky states that he did
see Mr. Clarke as a patient after December 4, 2009 (Dkt. No. 91, ¶ 4), and Mr. Clarke does not
claim otherwise in his response to Mr. Vitvitsky’s motion for summary judgment.
On December 22, 2009, Mr. Clarke saw Ms. Winkler, a Registered Nurse, in a “health
services encounter” (Dkt. No. 88-1, at 1). Ms. Winkler noted: “Rectal bleed, bright red over
normal stool. Refused physical exam. Lab results from previous exams not available. Tx with

3

rectal steroid, if available. Obtain results . . . Tx hypermotility GI distress. Refer to GI
specialist.” (Id.). Ms. Winkler prescribed a hemorrhoid suppository, reflux medicine, and a
high-fiber diet (Id.). She instructed Mr. Clarke to report bloating or abdominal pain (Id.). Ms.
Winkler states in her summary judgment papers that she did not see Mr. Clarke again until
August 26, 2010 (Dkt. No. 89, ¶ 10). Mr. Clarke does not challenge this in his response to Ms.
Winkler’s motion for summary judgment.
Over the next few months, Mr. Clarke saw other Bureau of Prison (“BOP”) medical
personnel and continued to complain of rectal bleeding (Dkt. No. 111, Attchs. 13-15). On April
22, 2010, Mr. Clarke was seen by a general surgeon who recommended a colonoscopy and an
EGD (Id., Attch. 16). On August 20, 2010, Mr. Clarke underwent a colonoscopy and an EGD,
which showed a rectal mass (Id., Attch. 20). The biopsy results indicated a rectal carcinoma with
“multiple lymph nodes invasion, also positive for h-pylori” (Id., Attch. 21). BOP physician
Nader Peikar initiated a medical transfer for Mr. Clarke, and, on September 17, 2010, Mr. Clarke
was transferred to a BOP medical facility in Butler, North Carolina (Id., Attch. 24).
II.

Mr. Outlaw’s Motion To Dismiss

Mr. Outlaw moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, arguing that Mr. Clarke has not stated a viable Eighth Amendment claim against him
and that he is entitled to qualified immunity. Although the Court ordered Mr. Clarke to respond
to Mr. Outlaw’s motion (Dkt. No. 100), he has failed to do so. For that reason alone, Mr.
Clarke’s claims against Mr. Outlaw are subject to dismissal pursuant to Local Rule 5.5(c)(2) for
failing to comply with the Court’s Order. However, the Court will consider the merits of Mr.
Outlaw’s motion to dismiss.

4

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”

Id.

(citing

Twombly, 550 U.S. at 556). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in original)
(citation omitted). “When ruling on a motion to dismiss, the district court must accept the
allegations contained in the complaint as true and all reasonable inferences from the complaint
must be drawn in favor of the nonmoving party.” Young v. City of St. Charles, 244 F.3d 623,
627 (8th Cir. 2001).
As a threshold matter, Mr. Outlaw’s motion correctly points out that Mr. Clarke’s official
capacity claim for damages against him is barred by the doctrine of sovereign immunity. See
Baker v. Chisom, 501 F.3d 920, 925 (8th Cir. 2007) (“the real party in interest in an officialcapacity suit is the governmental entity and not the named official.”). Moreover, the Western
District of Oklahoma previously dismissed Mr. Clarke’s official capacity claims against the
individual defendants when transferring the case to this District (Dkt. No. 21).
As to Mr. Clarke’s individual capacity claim against Mr. Outlaw, Mr. Outlaw argues that
Mr. Clarke’s allegations amount to a claim of respondeat superior or supervisory liability. A
supervisor may not be held vicariously liable in a Bivens or § 1983 action for the constitutional
violations of their subordinates on a theory of respondeat superior. Iqbal, 556 U.S. at 676.

5

Rather, a plaintiff “must plead that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Id. “It is settled . . . that ‘a warden’s
general responsibility for supervising the operations of a prison is insufficient to establish
personal involvement.’” Reynolds v. Dormire, 636 F.3d 976, 981 (8th Cir. 2011) (quoting Ouzts
v. Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987)); see also Crooks v. Nix, 872 F.2d 800, 803
(8th Cir. 1989) (stating that a warden or prison director lacking professional medical expertise
would not be liable on agency principles for the alleged wrongful diagnostic judgment of a
physician).
In his complaint, Mr. Clarke alleges that “Prison Administration failed to provide medical
treatment that addressed Plaintiff’s medical symptoms with deliberate indifference.” (Dkt. No.
1, at 6). He further alleges that “executive staff at the institution” provided “meaningless
responses” in the administrative grievance process (Id., at 15). These conclusory allegations of
supervisory liability are not supported by any accompanying facts, and there are no allegations
suggesting what role, if any, Mr. Outlaw played in Mr. Clarke’s medical treatment or the
grievance process. Mr. Clarke’s supervisory liability claims against Mr. Outlaw fail to meet the
pleading requirements set forth in Iqbal and Twombly.
Because Mr. Clarke’s allegations against Mr. Outlaw do not amount to a constitutional
violation, Mr. Outlaw is entitled to qualified immunity. See Patel v. U.S. Bureau of Prisons, 515
F.3d 807, 812-13 (8th Cir. 2008) (stating that qualified immunity extends to Bivens actions and,
if the allegations do not amount to a constitutional violation, there is no necessity for further
inquiries concerning qualified immunity). The Court grants Mr. Outlaw’s motion to dismiss
(Dkt. No. 81), and Mr. Clarke’s claims against Mr. Outlaw are dismissed without prejudice.

6

III.

Mr. Vitvitsky’s And Ms. Winkler’s Motions For Summary Judgment

Mr. Vitvitsky and Ms. Winkler move for summary judgment. Both assert that Mr. Clarke
has not met his burden of showing deliberate indifference to his medical needs and that,
therefore, they are entitled to qualified immunity (Dkt. Nos. 83, 88). Ms. Winkler further asserts
that, to the extent Mr. Clarke may allege a medical malpractice claim under state law, Mr.
Clarke’s claim is barred by the statute of limitations and that Mr. Clarke has not met his burden
of proof to establish a medical malpractice claim under Arkansas law (Dkt. No. 88).
Summary judgment is proper if the evidence, when viewed in the light most favorable to
the nonmoving party, shows that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable jury
to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). “The
mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the
dispute must be outcome determinative under prevailing law.” Holloway v. Pigman, 884 F.2d
365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest
merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir.
1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue
of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party
to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel,
121 F.3d 364, 366 (8th Cir. 2008). “The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

7

To prevail on his Eighth Amendment inadequate medical care claims against Mr.
Vitvitsky and Ms. Winkler, Mr. Clarke must prove that: (1) he had objectively serious medical
needs; and (2) those two defendants subjectively knew of, but deliberately disregarded, those
serious needs. See Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010); see generally Estelle
v. Gamble, 429 U.S. 97 (1976) (establishing that deliberate indifference to a serious medical
needs constitutes a violation of the Eighth Amendment).
The parties do not dispute that Mr. Clarke’s rectal bleeding was an objectively serious
medical need. Thus, the issue is whether Mr. Vitvitsky and Ms. Winkler were deliberately
indifferent in the medical treatment they rendered to Mr. Clarke. Deliberate indifference is a
higher standard than gross negligence and “requires proof of a reckless disregard of the known
risk.” Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001) (quoting Jackson v. Everett, 140 F.3d
1149, 1152 (8th Cir. 1998)). “There must be actual knowledge of the risk of harm, followed by
deliberate inaction amounting to callousness.” Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir.
1998) (citing Farmer v. Brennan, 511 U.S. 825, 835-37 (1994)).
Mr. Vitvitsky argues that he saw Mr. Clarke only twice, on December 2 and 4, 2009.
According to his medical notes, he performed a physical examination of Mr. Clarke, ordered a
complete blood count, requested that Mr. Clarke submit additional stool samples, and requested a
consultation with a gastroenterologist. In his supporting affidavit, Mr. Vitvitsky states that,
shortly after December 4, 2009, he was transferred to another building at FCI Forrest City and
never treated Mr. Clarke again (Dkt. No. 83-1, ¶13). Mr. Vitvitsky adds that he “had no control
over when or if an inmate qualified for or received outside consultations by a specialist” and that
he “played no role in determining which [BOP] inmates received outside consultants by
specialists or when such consultations were to occur.” (Id., ¶¶ 15, 17). In addition, Mr.

8

Vitvitsky has submitted a letter from Dr. L. F. Anderson, a board-certified family practitioner in
Lonoke, Arkansas, in which Dr. Anderson opines that Mr. Vitvitsky acted within the standard of
care in treating Mr. Clarke (Dkt. No. 83-2).
In her summary judgment papers, Ms. Winkler states that she only saw Mr. Clarke once
prior to his colonoscopy on December 22, 2009. According to her notes, Ms. Winkler attempted
to examine Mr. Clarke, prescribed a hemorrhoid suppository and reflux medicine, and instructed
him to report promptly any dark tarry stool. (Dkt. No. 88-1, at 1). Ms. Winkler recorded in her
notes that Mr. Clarke needed to be seen by a gastroenterology specialist (Id.; see Dkt. No. 89, at
1-3). In her statement of material facts to which she contends there is no genuine dispute, Ms.
Winkler states that BOP policy only allows her to recommend a consultation with a specialist,
Ms. Winkler states that she has no role or other involvement in determining if or when an inmate
is seen by a specialist (Dkt. No. 89, at 3).
In his response to Mr. Vitvitsky’s and Ms. Winkler’s motions for summary judgment,
Mr. Clarke argues that both Mr. Vitvitsky and Ms. Winkler: (1) should have ordered a “CEA”
blood test for a cancer marker which would have been the “normative procedure” for a patient
reporting rectal bleeding; and (2) had a “medical/ethical responsibility” to follow up on their
recommendations for a gastroenterologist consultation (Dkt. No. 94, ¶8). Mr. Clarke has come
forward with no evidence to substantiate his subjective opinion that Mr. Vitvitsky and Ms.
Winkler should have ordered additional blood testing, much less that their failure to do so was
deliberate indifference. See Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)
(“[M]ere disagreement with treatment decisions does not rise to the level of a constitutional
violation”). The undisputed facts establish that both Mr. Vitvitsky and Ms. Winkler had brief
and limited medical contact with Mr. Clarke, prescribed medication for his problems, and noted

9

referrals to a gastroenterology specialist. Nothing about these facts suggests that Mr. Vitvitsky
or Ms. Winkler were deliberately indifferent in the medical treatment they provided to Mr.
Clarke.
Mr. Vitvitsky and Ms. Winkler both fail to address the reason for the nine-month delay
between their notations that Mr. Clarke needed to be seen by a gastroenterologist and his
colonoscopy on August 20, 2010. The Court acknowledges that Mr. Vitvitsky and Ms. Winkler
both claim they did not treat Mr. Clarke again during that period and maintain that they had no
role or other involvement in determining if or when Mr. Clarke was seen by a specialist.
However, when Mr. Clarke pursued this matter through the BOP administrative grievance
process, an “administrative remedy response” from a warden at FMC Butler explained the reason
for this delay as follows:

“A referral [by Mr. Jones] was made to Gastroenterology on

September 23, 2009; however local policy, at FCI Forrest City, requires patients who require a
colonoscopy [to] see General Surgery. This referral was corrected on February 22, 2010, and
you were seen by General Surgery on April 23, 2010.

The General Surgeon ordered a

colonoscopy which was performed August 20, 2010.” (Dkt. No. 1-1, at 2).
Assuming that FCI policy did require that a patient with rectal bleeding and blood in his
stool be referred to general surgery, rather than a gastroenterologist, such a referral error by Mr.
Vitvitsky and Ms. Winkler does not establish deliberate indifference. Further, Mr. Vitvitsky
only saw Mr. Clarke twice over three days, and Ms. Winkler only saw Mr. Clarke once prior to
August 2010. Mr. Clarke has not controverted Mr. Vitvitsky’s and Ms. Winkler’s statements
that they have no role in determining whether an inmate sees a specialist. Viewing the evidence
and facts in the light most favorable to Mr. Clarke, Mr. Vitvitsky’s and Ms. Winkler’s alleged

10

failures to follow up on their recommendations for Mr. Clarke to see a gastroenterologist do not
rise to the level of deliberate indifference.
The Court finds no genuine issue of material fact on Mr. Clarke’s claims of deliberate
indifference against Mr. Vitvitsky and Ms. Winkler, and Mr. Vitvitsky and Ms. Winkler are
entitled to qualified immunity on Mr. Clarke’s Eighth Amendment claims against them. The
Court grants Mr. Vitvitsky’s and Ms. Winkler’s motions for summary judgment (Dkt. No. 83,
88).
Ms. Winkler argues that, to the extent Mr. Clarke “may assert” a state-law medical
negligence claim against her under the Arkansas Medical Malpractice Act, she is entitled to
summary judgment (Dkt. No. 88, ¶4). Although Mr. Clarke has asserted a negligence claim
against the government pursuant to the FTCA (Dkt. No. 1, at 2-3), his complaint does not plead
state law claims for medical negligence against the individual defendants. Accordingly, the
Court need not consider Ms. Winkler’s argument on this issue.
*

*

11

*

For the foregoing reasons, the Court grants Mr. Outlaw’s motion to dismiss (Dkt. No. 81)
and dismisses without prejudice Mr. Clarke’s claims against Mr. Outlaw. The Court also grants
Mr. Vitvitsky’s and Ms. Winkler’s motions for summary judgment (Dkt. Nos. 83, 88) and
dismisses with prejudice Mr. Clarke’s claims against Mr. Vitvitsky and Ms. Winkler. The Court
has under advisement the motion for summary judgment filed by defendants Ella Taylor, R.N.,
Amy Barker, R.N., Kathleen Maples, R.N., Hipolito Matos, M.D., and Nader Peikar, M.D. (Dkt.
No. 107). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis
appeal from this Opinion and Order would not be taken in good faith.
SO ORDERED this the 29th day of September, 2014.

__________________________
Kristine G. Baker
United States District Judge

12