Felty v. Arkansas Department of Correction et al

Filing 154

RECOMMENDED DISPOSITION recommending 83 , 99 Defendants' Motions for Summary Judgment be granted. Objections to R&R due by 2/25/2009. Signed by Magistrate Judge Beth Deere on 2/11/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION D A V I D FELTY A D C #95976 V. 5:07CV00231 JMM/BD

PLAINTIFF

MAX MOBLEY, Deputy Director, A r k a n sa s Department of Correction; a n d DR. HUGH BURNETT

DEFENDANTS

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 J u d g e James M. Moody. Any party may file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the o b je c tio n . If the objection is to a factual finding, specifically identify that finding and the e v i d e n c e that supports your objection. An original and one copy of your objections must b e received in the office of the United States District Court Clerk no later than eleven (1 1 ) days from the date you receive the Recommended Disposition. A copy will be f u rn is h e d to the opposing party. Failure to file timely objections may result in waiver of th e 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 lain tiff David Felty, an inmate currently incarcerated at the Ouachita River Unit

o f the Arkansas Department of Correction ("ADC"), brings this § 1983 action pro se a lleg in g that Defendants acted with deliberate indifference to his medical needs in v io la tio n of his constitutional rights (docket entries #2 and #6). Specifically, Plaintiff a lleg e s that Dr. Hugh Burnett, a private "dentist/oral surgeon," failed to provide him with a d e q u ate medical care to treat a salivary stone located below his tongue in the area of W h a rto n 's duct. Although it is unclear when Defendant Burnett began treating Plaintiff f o r that condition, the parties agree that on April 16, 2003, Defendant Burnett performed s u rg e ry to remove the stone. Plaintiff contends that the surgery was unsuccessful, and th a t there is still a stone or object in the area that is causing an infection, drainage, and s e v e re pain. On May 26, 2005, a dentist who is not a party to this action took four occlusal xra ys of Plaintiff's mouth and sent those x-rays to Defendant Burnett for review. Plaintiff a lle g e s that two of those x-rays demonstrate that an unspecified object remains in the area o f the Wharton's duct. Nevertheless, on June 30, 2005, Defendant Burnett allegedly inf o rm ed prison officials that, based upon his review of the x-rays, the "surgery went very w e ll and there is no need for follow-up [care]" (#2). Plaintiff contends that, despite se v e ra l requests, Defendant Burnett has not returned two of the occlusal x-rays to his

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p ris o n medical file and that the failure to do so is currently preventing other, unnamed h e a lth c a re providers from providing him with appropriate care.1 O n August 5, 2008, Defendant Mobley filed a motion for summary judgment (# 8 3 ). In the motion, Defendant Mobley argues that: (1) Plaintiff's deliberate in d if f ere n c e claim fails as a matter of law; (2) he is entitled to sovereign immunity; (3) he is entitled to qualified immunity; and (4) respondeat superior is not a basis for recovery u n d e r § 1983.2 O n September 22, 2008, Defendant Burnett filed a motion for summary judgment (# 9 9 ). In the motion, Defendant Burnett argues that Plaintiff's deliberate indifference c la im fails as a matter of law, and that he (Defendant Burnett) is entitled to qualified i m m u n i t y. 3 P la in tif f has responded to both motions for summary judgment (#89, #148, #152, a n d #153). In addition, on December 4, 2008, Plaintiff underwent new paranex and

Presumably, Plaintiff is referring to the two x-rays that allegedly show an object in th e area of the Wharton's duct. Because the Court finds that Plaintiff has failed to state a claim for deliberate indifferenc e , it will not address Defendant Mobley's arguments regarding qualified immunity a n d respondeat superior in this Recommended Disposition. With regard to Defendant M o b le y's argument that he is entitled to sovereign immunity, the Court disagrees. Although P la in tif f requests monetary damages in this matter, he also seeks injunctive relief. Defendant M o b le y is not entitled to sovereign immunity in his official capacity for Plaintiff's claims for in ju n c tiv e relief. Accordingly, Defendant Mobley is not entitled to summary judgment on th a t basis.
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Because the Court finds that Defendant Burnett is entitled to summary judgment on P la in tif f 's deliberate indifference claim, his qualified immunity argument will not be a d d re ss e d in this Recommended Disposition. 3

o c c lu s a l x-rays of his lower jaw (#138). Based upon all of the evidence presented, the C o u rt finds that the motions for summary judgment (#83 and #99) should be GRANTED. III. D is c u s s io n : A. S u m m ary 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 s p e c if ic facts which create a genuine issue for trial.'" (quoting Krenik v. County of Le S u e u r, 47 F.3d 953, 957 (8th Cir. 1995))). If the opposing party fails to carry that burden o r fails to establish the existence of an essential element of its case on which that party w ill bear the burden of proof at trial, summary judgment should be granted. See Celotex, 4 7 7 U.S. at 322. "Although it is to be construed liberally, a pro se complaint must c o n ta in specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1 3 3 7 (8th Cir. 1985).

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B.

D e lib e ra te Indifference

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 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 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."

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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 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")). 1. D efe n d a n t Burnett

In his original Complaint, Plaintiff alleges that on April 16, 2003, Defendant B u rn e tt removed his submandibular gland. Dr. Burnett sent the excised submandibular g la n d to the Oral and Maxillofacial Pathology Laboratory College of Dentistry at the U n iversity of Oklahoma. According to Plaintiff's allegations, the pathology report in d ic a te d that were "areas of incipient stone formation observed" (#2 at p.11). On April 24, 2003, Defendant Burnett examined Plaintiff based upon Plaintiff's c o n c e rn that there was another stone located in his Wharton's duct (#99-2 at p.3). Defendant Burnett found that the wound was healing normally and there was no sign of in f e ctio n . In addition, Defendant Burnett reported that there was no stone palpable (#992 at p.3). P la in tif f was scheduled to see Defendant Burnett again on May 29, 2003 (#99-1 at p .3 ). However, Plaintiff failed to appear at the appointment (#99-1 at p.3).

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O n April 6, 2004, Defendant Burnett again examined Plaintiff based upon P la in tif f 's concern of a residual stone and possible infection (#99-1 at p.3). Defendant B u rn e tt examined the area and noted that the wound had healed. Specifically, Defendant B u rne tt noted that x-rays showed no evidence of residual stones (#99-1 at p.4). In May 2005, another dentist, not a party to this lawsuit, took four additional o c c lu sa l x-rays. On June 30, 2005, Defendant Burnett participated in a "phone consult" w ith an unknown individual regarding the May 2005 x-rays. Based upon Plaintiff's a lle g a tio n s , Defendant Burnett noted that the May 2005 occlusal x-rays revealed a " su rg ic a l clip" located in Plaintiff's mouth. Apparently, Defendant Burnett stated that the s u rg ic a l clip remains from Plaintiff's original treatment and "is supposed to be there" (#2 at p.13).4 In his Complaint and Amended Complaint, Plaintiff claims that Defendant Burnett n e v e r returned the May 2005 x-rays to his ADC medical jacket. On September 24, 2008, P la in tif f filed a motion to compel with this Court to retrieve the May 2005 x-rays (#103). Although the Court ordered both Defendants to produce the x-rays in question (#109 and # 1 1 7 ), neither party has been able to do so (#115 and #122). As a result, the Court o rd e re d that Plaintiff submit to new occlusal and paranex x-rays to resolve the issues ra is e d in this lawsuit (#126). Although Plaintiff initially refused to submit to the x-rays (# 1 3 0 ), he eventually consented, and the new x-rays were taken on December 4, 2008

In Defendant Burnett's affidavit, he also notes that he observed the surgical clip " th a t was supposed to be present" (#99-1 at p.4). 7

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(# 1 3 8 ). After the x-rays were taken, the Court ordered that Defendant Mobley provide a w ritte n interpretation of the x-rays at issue (#139). On January 9, 2009, Defendant Burnett submitted his affidavit providing a written in ter p re tatio n of the December 2008 x-rays (#142). According to Defendant Burnett, " th e re is no visible evidence of salivary stone in the floor of [Plaintiff's] mouth, nor is th e re any visible foreign body" (#142-1 at p.1). Further, Defendant Burnett states that " [ t]h e surgical hemoclip which was visible in [Plaintiff's] previous occlusal films which w e re lost, is not visible" (#142-1 at p.1). Defendant Burnett explains that the hemoclip th a t previously was visible is not visible because the most recent x-rays were "placed in a m o re anterior position by the dentist who took the x-rays" (#142-1 at p.1). Defendant B u rn e tt concludes that "[i]f [Plaintiff's] complaints were the result of a stone in the a n t e rio r floor of his mouth, we should have seen this stone with ease on the current films" (#1 4 2 -1 at p.2). In response to Dr. Burnett's affidavit, Plaintiff has filed several papers (#148, # 1 5 2 , and #153).5 However, Plaintiff has failed to produce any evidence to contradict

In these papers, Plaintiff argues that Defendant Burnett, as a party to this lawsuit, sh o u ld not have been permitted to provide an interpretation of the December 2008 x-rays to th e Court. The Court finds Plaintiff's argument unpersuasive. Defendant Burnett has been tra in e d in both dentistry and oral and maxillofacial surgery and is qualified to testify on the m atter in question. Further, Defendant Burnett provided his testimony under oath in the form o f an affidavit. The Court presumes that Defendant Burnett has provided truthful testimony a n d that his attorney, as an officer of the Court, has submitted the affidavit in good faith. B ec au se Plaintiff has failed to produce any evidence to contradict Defendant Burnett's s ta te m e n ts in his affidavit, Plaintiff has failed to create a genuine issue of material fact on th is issue. 8

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D e f en d a n t Burnett's findings. While Plaintiff contends that Dr. Lamont Parson 6 has e x a m in e d the most recent x­rays and concludes that the x-rays reveal that a surgical clip rem ains in the floor of Plaintiff's mouth (#153 at p.2), Plaintiff fails to include Dr. P a rso n 's affidavit.7 Further, even assuming that Dr. Parson did note that a surgical clip re m a in s in Plaintiff's mouth, according to Plaintiff's own allegations, the surgical clip is "su p p o sed to be there" (#2 at p.13).8 F u r th e r, Plaintiff has failed to produce any "verifying medical evidence" to show th a t he has suffered any adverse consequences as a result of any delay in treatment. Although Plaintiff claims that he has continued to experience pain and that an area in his m o u th remains infected, Plaintiff has failed to introduce any evidence to corroborate th o s e statements. A c c o rd in g ly, Plaintiff cannot show that Defendant Burnett has acted with d e lib e ra te indifference to his medical needs. Not only has Defendant Burnett examined P la in tif f on multiple occasions, but multiple x-rays have been taken, and oral surgery was p e rf o rm e d . Plaintiff cannot credibly claim that Defendant Burnett has ignored his

Plaintiff refers to this individual as both Dr. Parson and Dr. Parsons. The Court will re f er to this individual as Dr. Parson. The Court specifically advised Plaintiff to provide any such evidence in its January 2 3 , 2009 Order (#150). The Court notes that Plaintiff states that he was unable to obtain such a n affidavit based upon ADC policy. To keep from prejudicing Plaintiff, for purposes of this m o tio n , the Court will assume that Dr. Parson did in fact make such a statement. In addition, in the affidavit provided by Dr. James Phillips in support of Defendant B u rn e tt's motion, he notes that surgical clips are "commonly used" to control bleeding in the typ e of surgery performed by Defendant Burnett (#99-2 at p.8). He specifically states that su rgica l clips "typically remain in the patient following surgery" (#99-2 at p.8). 9
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s itu a tio n . Although the procedures may not have provided Plaintiff with the relief he had h o p e d for, he can hardly claim that Defendant Burnett has disregarded his serious medical n e e d s.9 See Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285 (1976) (where medical p e rso n n e l saw inmate 17 times in three months and treated back strain with bed rest, m u s c le relaxants, and pain relievers, their failure to x-ray his broken back or implement o th e r diagnostic techniques or treatment was not deliberate indifference); Sherrer v. S te p h e n s, 50 F.3d 496 (8th Cir. 1994) (holding that treatment of inmate's broken finger d id not rise to the level of deliberate indifference based on evidence that he received xra ys , painkillers, instructions to apply ice, and was examined by orthopedists); and B e lle c o u rt 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). In addition, in support of his motion for summary judgment, Defendant Burnett p ro v id e s the affidavit of James Phillips M.S., D.D.S (#99-1), an oral and maxillofacial su rge o n not a party to this action. Dr. Phillips concludes, after a review of Plaintiff's

In his response to Defendant Burnett's affidavit, Plaintiff states that if Defendant B u r n e tt missed the "foreign body" that Dr. Parson allegedly noticed, Defendant Burnett m ig h t have "missed other stones" (#148). Such speculation does not create a genuine issue o f material fact. In addition, Plaintiff states that there were x-rays taken before his operation in 2003 that did not show a stone present (#148). Even assuming that statement is true, P lain tiff has failed to present any evidence that a stone remains in his mouth. Further, P la in tif f 's conclusion that his sublingual gland contains granule stones (#153 at p.3) is not su p p o rte d by the evidence in this case. Even if such stones were allegedly present in P lain tiff 's x-rays taken in January 2003, there is no evidence that they currently remain in P la in tif f 's mouth. 10

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m e d ica l records, that Defendant Burnett followed appropriate standards of care in his trea tm en t of Plaintiff's medical needs, and that it is his opinion "that the medical record r e f le c ts a conscientious and good faith effort by Dr. Burnett to resolve [Plaintiff's] m ed ical issues" (#99-1 at p.9-10). H e re , Plaintiff essentially argues that he disagrees with the treatment that D e f e n d a n t Burnett provided. However, "[n]othing in the Eighth Amendment prevents p ris o n doctors from exercising their independent medical judgment. Prisoners do not h a v e a constitutional right to any particular type of treatment. Prison officials do not v io la te the Eighth Amendment when, in the exercise of their professional judgment, they re f u se to implement a prisoner's requested course of treatment." Long v. Nix, 86 F.3d 7 6 1 , 765 (8th Cir. 1996) (citations omitted). Because a plaintiff's disagreement with tre a tm e n t is insufficient to establish liability under § 1983, Defendant Burnett is entitled to judgment as a matter of law. See Estate of Rosenberg v. Crandell, supra. 2. D e fe n d a n t Mobley

P la in tif f claims that Defendant Mobley, as the director of the health and service p ro g ra m s , received Plaintiff's grievance regarding the alleged denial of medical treatment a n d failed to ensure that Plaintiff received the medical treatment needed. Because the C o u r t finds that Plaintiff has failed to establish a claim for deliberate indifference against D e f e n d a n t Burnett, who was allegedly responsible for Plaintiff's dental treatment, P la in tif f cannot establish that Defendant Mobley, as director of heath of clinical p ro g ra m s , acted with deliberate indifference to Plaintiff's medical needs. As Defendant M o b le y correctly asserts in his motion, to succeed on a medical indifference claim, the

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c la im must be brought against the individual directly responsible for the inmate's medical c a re . Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997). Based upon the undisputed evidence in this case, Defendant Mobley was not the p e rs o n responsible for providing medical treatment or medication to Plaintiff (#83-1 at p .1 -2 ). Further, Defendant Mobley was not involved in the diagnosis or treatment of any o f Plaintiff's medical needs. Rather, as the director of the health and service programs, D e f e n d a n t Mobley reviewed inmate appeals of responses to health-related grievances. Here, Defendant Mobley received Plaintiff's grievance and, after a lengthy delay, f o u n d that the procedure had been completed and that the stone had been removed from P la in tif f 's salivary gland (#83-1). As a result, Defendant Mobley found that the issue had b e e n resolved (#83-1). Although Plaintiff claims that Defendant Mobley did not "follow u p [ ] properly"(#89) with regard to Plaintiff's medical treatment, Plaintiff has failed to s h o w that Defendant Mobley "knew of but deliberately disregarded [his medical] needs." D u la n y , 132 F.3d at 1239. Accordingly, Plaintiff cannot establish that Defendant Mobley a c te d with deliberate indifference, and Defendant Mobley is entitled to judgment as a m a tte r of law on Plaintiff's claims. IV . C o n c lu s io n : T h e Court hereby recommends that Defendants' motions for summary judgment (# 8 3 ) and (#99) be GRANTED. DATED this 11th day of February, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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