Kennedy v. Bias et al

Filing 88

REPORT AND RECOMMENDATIONS that defts' 43 MOTION for Summary Judgment be granted and that plaintiff's claims be dismissed with prejudice. Objections to R&R due by 12/26/2008. Signed by Magistrate Judge Beth Deere on 12/12/08. (bkp)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION C A Z KENNEDY, A D C #127322 V. J O H N BYUS, et al. Case No. 4:07-cv-00795 SWW-BD DEFENDANTS

PLAINTIFF

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 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 Caz Kennedy, an Arkansas Department of Correction ("ADC") inmate,

filed this action pro se under 42 U.S.C. § 1983. According to allegations in Plaintiff's C o m p la in t and the grievances attached to his Complaint, in April 2006, Plaintiff began e x p e rie n c in g difficulty breathing and also had a sore throat. In June 2006, an x-ray of P la in tif f 's neck was taken. The x-ray revealed that Plaintiff had a foreign metallic object lo d g e d in his thyroid gland. At that time, he was referred to an ear, nose and throat s p e c ia lis t. On July 10, 2006, a physician examined Plaintiff and recommended that a CT scan b e performed. According to the grievances attached to Plaintiff's complaint, the CT scan w a s conducted sometime between July and December 2006. In December 2006, Plaintiff w a s sent to the Diagnostic Unit for an additional test, an esophagogastroduodenoscopy (" E G D " ). The surgeon on staff at the Diagnostic Unit decided that the test should be c o n d u c te d at a facility that could better accommodate Plaintiff's cardiac needs, so on May 3 , 2007, Plaintiff was seen by a gastroenterologist. The EGD was completed on May 8, 2007. Plaintiff complains that he continues to experience pain in his neck, and that the m e ta llic object remains lodged in his thyroid nearly two years after it was discovered.

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P lain tiff also complains that Dr. Charles Leggett took his prescription medicine from him b e c au s e Dr. Leggett became irritated with Plaintiff.1 P la in tif f originally named as Defendants John Byus, Director of Medical Services fo r the ADC, Dr. Charles Leggett, and Dream Redic-Young, the CMS Medical Infirmary A d m in is tra to r. The Court has dismissed Plaintiff's claims against Defendant Byus (d o c k e t entry #29). Separate Defendants Leggett and Redic-Young now have filed a Motion for S u m m a ry Judgment (#43). Defendants argue that they are entitled to summary judgment b e c au s e Plaintiff cannot show that he has suffered any injury as a result of any alleged d e la y in treatment or that Defendants acted with deliberate indifference to his medical n e e d s. In support of their motion, Defendants attach Plaintiff's medical records and the d e c la ra tio n of Dr. Roland Anderson. P lain tiff has responded to the Motion for Summary Judgment (#63 and #65). In h i s Response, Plaintiff states that, although he has been seen by various doctors, D e f en d a n ts have failed to provide him "actual treatment" (#63 at p.2). Plaintiff further a rg u e s that Defendants have failed to act, even though they know that Plaintiff continues

The Court will refer to this Defendant as his name appears on the docket, Charles L e g g e tt. However, in several of the medical Defendants' pleadings, this Defendant is id e n tifie d as Dr. Liggett. 3

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to experience a "real risk of chocking to death," and that their failure amounts to d elib era te indifference (#63 at p.4).2 In addition to his Response, Plaintiff has filed a Rebuttal to Dr. Roland's affidavit (# 6 7 ). In his Rebuttal, Plaintiff claims that Dr. Roland's testimony is either "[f]alse, an e m b e llis h m e n t to make his declaration more believable, or [a] misleading statement[] of f a c ts" (#67 at p.2). Plaintiff believes that the foreign metallic body lodged in his thyroid is a hypodermic needle. A f ter Plaintiff filed his Response to the Motion for Summary Judgment and his R e b u ttal to Dr. Roland's affidavit, he requested that the Court issue a subpoena to Sheila H ill, the Keeper of Medical Records at the Randall L. Williams Unit of the ADC, for P lain tiff 's entire medical file (#68). Although the Court declined to grant Plaintiff's b ro a d request in its entirety, the custodian of records, or her designee, at the Randall W illiam s Correctional Facility was ordered to provide Plaintiff access to copies of his m e d ic a l records dating from April 2006 to the present that relate to his thyroid and the o b jec t lodged therein (#70). In addition, the Court allowed Plaintiff additional time to re sp o n d to the Motion for Summary Judgment so that he could provide the Court with e v id e n c e showing any detrimental effect of the alleged delay in medical treatment.

The Court notes that Plaintiff mentions both the Americans with Disabilities Act a n d the Arkansas Adult Abuse statute in his response to Defendants' Motion. Because th e se claims were not raised in Plaintiff's Complaint, they will not be addressed in this R e c o m m e n d a tio n . 4

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P la in tif f subsequently filed a motion for leave to amend his complaint (#69). The C o u rt granted Plaintiff's Motion, but cautioned Plaintiff that he had failed to mention any c laim against Defendant Leggett in his proposed Amended Complaint. Because it is well s e ttle d that an amended complaint supercedes an original complaint and renders the o rig in a l complaint without legal effect, see In re Atlas Van Lines, Inc., 209 F.3d 1064, 1 0 6 7 (8th Cir. 2000) (citing Washer v. Bullitt County, 110 U.S. 558, 562, 4 S.Ct. 249 (1 8 8 4 )), Plaintiff was warned that, if he intended to pursue his claims against Defendant L e g g e tt, he would have to so state in his Amended Complaint. In the proposed Amended Complaint Plaintiff submitted in support of his motion to amend, Plaintiff attempted to add claims for adult abuse and violations of the A m e ric a n s with Disabilities Act ("ADA"). The Court noted in its Order granting the M o tio n to Amend that there is no private cause of action for statutory abuse of an adult a n d that an ADA claim requires a description of the alleged disability and the benefits d e n ied because of that disability. Plaintiff was given twenty days in which to file his A m e n d e d Complaint, but he did not file a complete Amended Complaint.3

Plaintiff filed a pleading titled "Amended Correction for Amended Complaint." In the pleading, Plaintiff requested that the claims raised in his amended complaint be c o n sid e re d in addition to those raised in his original complaint (#74). However, in the O rd e r granting Plaintiff's Motion to Amend, the Court instructed Plaintiff to file an A m e n d e d Complaint within twenty days. It appeared that Plaintiff filed the "Amended C o rre c tio n for Amended Complaint" rather than an Amended Complaint. Accordingly, th e Court declined to grant Plaintiff's request, and informed that if he chose to file an A m e n d e d Complaint in this matter, he could make such a request. Plaintiff filed two p le a d in g s in response to this Court's order titled "appeal to District Court Judge"(#85 and 5

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P lain tiff then filed a Motion to Compel in an attempt to obtain copies of his m e d ica l records. Although the Court ordered the Defendants to give Plaintiff access to s u c h files, it denied Plaintiff's request for actual copies (#75). Defendants filed a Response to the Court's October 9, 2008 Order, stating that P la in tif f had reviewed his medical records for approximately one hour on three occasions (#7 7 ). They requested that the time for Plaintiff to respond to their Motion for Summary J u d g m e n t begin to run. The Court agreed and ordered Plaintiff to respond to the pending S u m m a ry Judgment Motion within fourteen days (#78). Plaintiff filed a Motion for Order, again requesting copies of his medical records (# 8 1 ). Plaintiff claimed that Defendants were hiding certain documents from him and f a ilin g to provide him access to all of his medical records. In denying Plaintiff's motion, th e Court noted that Defendants had filed the Motion for Summary Judgment now at issue in June of 2008, and that Plaintiff had been given ample time to respond (#82). Nonetheless, Plaintiff was provided ten additional days to respond to the Motion for S u m m a ry Judgment. The Court specifically advised Plaintiff that, although he was not p r o v i d e d actual copies of his medical records, he could provide other documents, in c lu d in g affidavits, to rebut the evidence presented by Defendants in support of their

#86). Those pleadings were docketed as Responses to the Motion for Summary Judgment a n d should be considered by the District Court as objections to the instant Recommended D is p o s itio n . 6

M o tio n (#82). Plaintiff subsequently submitted various documents to the Court for its co n side ratio n , including affidavits and grievance forms (#84 and #87).4 A f te r reviewing all of the evidence presented in this matter, the Court finds that D e f e n d a n ts ' Motion for Summary Judgment (#43) should be GRANTED. 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

In the grievances Plaintiff submits to the Court, he argues that he has been d e n ie d medical treatment in retaliation for filing lawsuits against employees of CMS. Plaintiff did not make this claim in his Complaint. Accordingly, the Court will not a d d re ss that argument in this Recommended Disposition. 7

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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 is c u s s io n

D e f en d a n t Redic-Young asserts that Plaintiff's claims against her should be d is m is s e d for three reasons. First, Plaintiff failed to reference her or raise any allegations a g a in s t her in his Complaint. Second, Plaintiff failed to exhaust his administrative rem ed ies with regard to his claims against her as required by the Prison Litigation Reform A c t; and third, Plaintiff cannot hold her responsible under a respondeat superior theory of liab ility. Defendant Leggett claims that Plaintiff cannot show that he acted with d e l ib e r a te indifference to Plaintiff's medical needs. After reviewing the parties' filings, in c l u d in g exhibits, the Court finds that both Defendants are entitled to judgment as a m atte r of law.5 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]

Because the Plaintiff cannot prove that Defendants acted with deliberate ind iffe ren c e to his medical needs, the Court declines to address Defendant Redic-Young's re sp o n d e a t superior argument. Further, although Defendant Redic-Young claims that P lain tiff failed to exhaust his claims against her as required by the PLRA, Defendants p ro v id e no evidence on this issue outside stating so in their Statement of Undisputed F ac ts (#48 at ¶ 19). As a result, Defendant Redic-Young is not entitled to summary ju d g m e n t on that basis. 8

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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 le v e l of a constitutional violation." Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th C ir . 1995). "Deliberate indifference may include intentionally denying or delaying access to medical care, or intentionally interfering with treatment or medication that has been p re sc rib e d ." Vaughan v. Lacey, 49 F.3d 1344, 1346 (8th Cir. 1995) (citing Estelle, 429 U .S . at 104-05). 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 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 Reg'l Youth Det. Ctr., 40 F.3d 1 1 7 6 , 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." Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (quoting Hill, 40 F.3d at 1188);

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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 curiam) (c itin g Crowley, 109 F.3d at 502) (concluding that plaintiff's "failure to submit verifying m e d ic a l evidence to show a detrimental effect from any delay in tests, surgery, or a lte rn a tiv e treatments was fatal to his Eighth Amendment claim")). Here, Plaintiff has f a ile d to submit any such evidence, or to describe anything in his medical records that w o u ld refute the Defendants' assertions.6 In support of their Motion for Summary Judgment, Defendants attach excerpts f ro m Plaintiff's medical file. These records generally support the sequence of events in c lu d e d in Plaintiff's Complaint. In June 2006, an x-ray revealed that Plaintiff had a f o re ig n metallic object lodged in the soft tissue along the right side of his neck (#48 at p .9 ).7 On July 17, 2006, a CT scan of Plaintiff's neck was performed (#48 at p.22). The C T scan also indicated that there was a metallic foreign body if the right soft tissue of the
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Although Plaintiff was not provided actual copies of his medical records, he was p r o v i d e d access to these records and was advised that he could rebut Defendants' e v id e n c e through affidavits (#82). Plaintiff failed to present or point to any evidence that w o u ld create a genuine issue of material fact on Plaintiff's deliberate indifference claim. The Court notes that in the grievance forms Plaintiff submitted to the Court, W e n d y Kelley notes that the foreign metallic object had been lodged in Plaintiff's throat fo r ten years (#87 at p.2). 10
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n e c k anterior to the right thyroid glad (#48 at p.22). The physician who conducted the CT sc a n indicated that an esophogram might be helpful if Plaintiff continued to complain a b o u t difficulty swallowing (#48 at p.5). On August 1, 2006, a limited barium swallow te st was performed (#48 at p.6). The test indicated that the metallic body did not appear to be associated with the esophagus and there was no evidence of aspiration or o b s tru c tio n of the visualized upper esophagus (#48 at p.6). The physician who conducted th e exam noted that there was no digital imaging, which limited the evaluation.8 As a re su lt, the physician indicated that a follow-up barium swallow would be helpful (#48 at p .7 ) . O n May 8, 2007, an EGD with biopsy was performed (#48 at p.10). This p ro c e d u re revealed that Plaintiff had an ulcerated GE junction and a hernia in his e so p h a g u s (#48 at p.10). The physician who conducted the procedure recommended that P lain tiff take Omeprazole, return to the clinic in six weeks, and, if Plaintiff continued to h a v e dysphagia after three months of taking the medicine, an esophageal dilation would b e considered (#48 at p.10). Importantly, the report did not mention the foreign metallic b o d y lodged in Plaintiff's throat. O n November 6, 2007, a consultation request was filed on behalf of Plaintiff in d ic a tin g that Plaintiff was suffering from symptoms of the flu and rectal bleeding (#48

Plaintiff refers to the "botched" barium swallow in his Rebuttal to Dr. A n d erso n 's affidavit (#67 at p.3). 11

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a t p.32). There is no mention of Plaintiff's thyroid or his alleged inability to swallow in th is request. T h e medical records provided by Defendants also indicate that Plaintiff was tra n sf e rre d to Ouachita River Correction Unit on February 7, 2008. Upon his arrival, his a p p e a ra n c e was noted as good, with no current complaints (#48 at p.33). Specifically, P la in tif f noted that he did not suffer from regurgitation, he had no difficulty swallowing, a n d no pain upon swallowing (#48 at p.35). These notes also indicate that those s ym p to m s had been improving. Further, the medical notes indicate that these symptoms w e re not aggravated at night, directly contradicting Plaintiff's complaints in his Rebuttal to Dr. Anderson's affidavit.9 D e f en d a n t Leggett examined Plaintiff on February 19, 2008, due to complaints of lo w e r back pain (#48 at p.26). The notes provided do not mention any complaints reg ard ing Plaintiff's alleged inability to swallow or pain when swallowing. Further, P la in tif f 's medical records indicate that he also was seen by medical staff on May 1, 2008 (# 4 8 at p.27- 31). Again, those notes do not contain any reference to Plaintiff's alleged in a b ility to swallow. F u rth e r, in the grievance forms Plaintiff provided the Court, Wendy Kelley, D e p u ty Director of the ADC, notes that Plaintiff was seen by Dr. Antosh on June 26,

In his Rebuttal to Dr. Anderson's affidavit, Plaintiff claims that "[t]he fear of c h o k in g is especially [bad] when sleeping" (#67 at p.4) 12

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2 0 0 8 , September 30, 2008, and October, 7, 2008, but he never mentioned the metal object lo d g e d in his neck (#87 at p.2). Further, Ms. Kelley's response to Plaintiff's grievance in d ic a te s that Plaintiff was seen by the nursing staff at the ADC on July 2, 2008, S e p tem b e r 12, 2008, and September 19, 2008, and he did not complain of an inability to s w a llo w (#87 at p.2). The Health Services Administrator/Mental Health Supervisor also in d ic a te d that Plaintiff was seen by medical staff on March 4, 2008, April 15, 2008, and A p ril 17, 2008, and never reported any pain or difficulty swallowing (#87 at p.11). A c c o rd in g ly, Plaintiff cannot show that Defendants have acted with deliberate in d if f ere n c e to his medical needs. Not only have multiple doctors examined Plaintiff and P la in tif f 's medical file, but also x-rays have been taken, and a CT scan, a barium swallow tes t, and an EGD have been performed. Plaintiff cannot credibly claim that Defendants h a v e ignored his situation. Although these extensive tests may not have provided P la in tif f with the relief he seeks, he can hardly claim that Defendants have disregarded h is serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285 (1976) (w h e re medical personnel saw inmate 17 times in three months and treated back strain w ith bed rest, muscle relaxants, and pain relievers, their failure to x-ray his broken back o r implement other diagnostic techniques or treatment was not deliberate indifference); S h e rr e r v. Stephens, 50 F.3d 496 (8th Cir. 1994) (holding that treatment of inmate's b ro k e n finger did not rise to the level of deliberate indifference based on evidence that he rec eive d x-rays, painkillers, instructions to apply ice, and was examined by orthopedists);

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a n d Bellecourt v. United States, 994 F.2d 427, 431 (8th Cir. 1993) (holding that although p h ys ic ia n misdiagnosed inmate's condition and method of physical examination and tre a tm e n t may not have followed community standards, conduct did not amount to d e lib e ra te indifference). Further, although Plaintiff clearly seeks to have the metal object re m o v e d , in the medical records provided to the Court, such a procedure has never been re c o m m e n d e d . Plaintiff essentially argues that he disagrees with the treatment that he has been p r o v i d e d . Because a plaintiff's disagreement with treatment is insufficient to establish lia b ility under § 1983, Defendants are entitled to judgment as a matter of law. See Estate o f Rosenberg v. Crandell, supra. F u rth e r, Plaintiff's medical records belie Plaintiff's claim that Defendant Leggett d is c o n tin u e d Plaintiff's medicine because he became irritated with Plaintiff. In the rec o rds presented to the Court, there is no mention of discontinuing Plaintiff's p r e s c rip t io n s . Rather, a complete list of Plaintiff's prescriptions is included in these d o cu m en ts (#48 at p.27 - 31). Further, Plaintiff's medical records indicate that Dr. L e g g e tt provided Plaintiff prescriptions on at least one date (#48 at p.26). In addition, P la in tif f 's records indicate that following the EGD, he was instructed to take Omeprazole. Plaintiff failed to present any evidence that he was not provided this medication or that D e f en d a n t Leggett ordered it discontinued. As a result, Plaintiff has failed to create a g e n u in e question of material fact on this issue precluding judgment as a matter of law.

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IV .

C o n c lu s io n : T h e Court recommends that the District Court GRANT Defendants' motion for

s u m m a ry judgment (#43). Plaintiff's claims should be dismissed with prejudice. D A T E D this 12th day of December, 2008.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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