Felty v. Arkansas Department of Correction et al
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
MAX MOBLEY, Deputy Director, A r k a n sa s Department of Correction; a n d DR. HUGH BURNETT
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
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
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.
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).
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."
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).
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
(# 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
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
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
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
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?