Williams v. Johnson et al

Filing 234

RECOMMENDED DISPOSITION recommending that 225 Defendants' Motion for Summary Judgment be granted with prejudice; and recommending that the District Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action would be frivolous and not taken in good faith Objections to R&R due 11 days from the date the recommended disposition is received. Signed by Magistrate Judge Beth Deere on 11/16/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION T H E L M A WILLIAMS, JR. V. R . JOHNSON, et al. 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 Chief United States D is tric t Court Judge J. Leon Holmes. 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 le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 CASE NO.: 5:08CV00006 JLH/BD DEFENDANTS PLAINTIFF

II.

I n t r o d u c t io n : P la in tif f Thelma Williams, a former Arkansas Department of Correction ("ADC")

in m a te , filed this action pro se under 42 U.S.C. § 1983. In his Second Amended C o m p la in t (docket entry #54), Plaintiff alleges that Defendants Charlotte Green, Teresa K u n d e rt, Kathy Wells, and Greg Harmon acted with deliberate indifference to his medical n e e d s by denying his request for medical treatment after he was struck with a police baton b y Lt. Stevenson on December 31, 2007.1 D e f e n d a n t Harmon previously filed a Motion to Dismiss (#102); that motion was g ra n te d (#164, #173). Now pending is a Motion for Summary Judgment (#225) filed by D e f e n d a n ts Charlotte Green, Teresa Kundert, and Kathy Wells. Plaintiff has not re s p o n d e d . The Court recommends that Defendants' Motion for Summary Judgment (# 2 2 5 ) be GRANTED. In addition, the Court recommends that the District Court certify th a t an in forma pauperis appeal taken from the order and judgment dismissing this action w o u ld be frivolous and not taken in good faith. III. B ackground: P la in tif f alleges that Lt. Stevenson struck Plaintiff's right palm with a police baton o n December 31, 2007. This incident is not at issue. Instead, Plaintiff's immediate claim in v o lv e s his alleged lack of medical care for his injured hand.

Defendants R. Johnson, J. Page, S. Jackson, D. Johnson, B. Perry, Brander, W e s tb ro o k , Mull, Puckett, and Colleen previously were dismissed from this lawsuit. 2

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As a result of the incident with Lt. Stevenson, Plaintiff was left with a small cut on h is palm (#227-4). On the day Plaintiff was struck, a nurse making pill-call rounds lo o k e d at Plaintiff's hand and instructed him to make a sick call request (#227-2, p. 131 4 ). LPN Shirley Carpenter saw Plaintiff on January 7, 2008 (#227-4) and noted a peas iz e d scab to the palm of Plaintiff's right hand, presumably as a result of Plaintiff's being h it with the baton. Plaintiff complained that his hand was still tender and that he had pain in his wrist when writing. Nurse Carpenter gave Plaintiff a three-day supply of over-thec o u n te r acetaminophen and instructed him to follow up with a medical request if his hand w a s not better in three to four days (#227-4). Plaintiff filed this action the next day, J a n u a ry 8, 2008 (#2). O n January 15, 2008, Plaintiff underwent a medical evaluation as a part of his tra n s f e r from the Varner Unit of the ADC to the East Arkansas Regional Unit ("EARU") (# 2 2 7 -5 ).2 The evaluation noted no current or follow-up treatment and no pending a p p o in tm e n ts . Plaintiff's transfer arrival assessment showed no evidence of abuse or tra u m a (#227-5, p. 4). Plaintiff's only complaint at the time was gastroesophageal reflux d is e a se (GERD). Plaintiff's then-current medications included hand lotion, but nothing re la te d to a hand injury.

At the time of this incident, Defendants Green, Kundert, and Wells were all w o rk in g in the EARU. 3

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On February 28, 2008, while housed in the EARU, Plaintiff requested to see a n u rs e or doctor about his hand (#227-4, p. 3). LPN Crystal Sims saw Plaintiff on April 3, 2 0 0 8 . During this medical visit, Plaintiff complained of dry skin on his hands (#227-4, p. 3 ). Nurse Sims noted no abnormalities at that time. The medical records do not evidence a n y complaint by Plaintiff related to hand trauma. Plaintiff placed another sick call request on April 20, 2008, at which time he c o m p la in e d that he had not been seen at any previous time (#227-4, p. 4). Nurse Sims s a w Plaintiff on April 23, 2008, and he complained of worsening dry skin that was spreading to his head, chest, back, and legs. Nurse Sims referred Plaintiff for a medical e v a lu a tio n regarding his dry skin (#227-4, p. 4). Other than the notation about dry skin, th e record does not mention any other issues with hand problems. In their motion for summary judgment (#225), Defendants argue that Plaintiff's c la im s should be dismissed because: (1) Plaintiff failed to show that he suffered an actual in ju ry as the result of the alleged denial of medical attention; (2) Plaintiff failed to show th a t any of the Defendants were deliberately indifferent to his medical needs; (3) Plaintiff's claims are based on vicarious liability; (4) Plaintiff failed to exhaust his a d m in is tra tiv e remedies; and (5) Plaintiff's in forma pauperis status should be revoked. The Plaintiff has failed to show that he suffered from a serious medical condition. He also has failed to show that the Defendants were deliberately indifferent to any of his m e d ic a l needs. Thus, the Defendants are entitled to summary judgment.

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IV.

D is c u s s io n : A. S u m m a r y Judgment Standard

S u m m a ry 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.") 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 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).

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B.

D e lib e r a te Indifference to Plaintiff's Medical Needs

T h e Eighth Amendment to the United States Constitution prohibits the infliction of c ru e l and unusual punishment. Jenson v. Clark, 94 F.3d 1191 (8th Cir. 1996). Deliberate in d if f e re n c e by prison personnel to an inmate's serious medical needs violates the in m a te 's Eighth Amendment right to be free from cruel and unusual punishment. Estelle v . Gamble, 429 U.S. 97, 104-05 (1976). An Eighth Amendment claim that prison officials were deliberately indifferent to th e medical needs of inmates involves both an objective and a subjective component. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). Inmates must demonstrate (1) that th e y suffered objectively serious medical needs, and (2) that the prison officials actually k n e w of, but deliberately disregarded, those needs. Id. A serious medical need is "one th a t has been diagnosed by a physician as requiring treatment, or one that is so obvious th a t even a layperson would easily recognize the necessity for a doctor's attention." Id. at 778. To prove deliberate indifference, "[t]he prisoner must show more than negligence, m o re even than gross negligence, and mere disagreement with treatment decisions does n o t rise to the level of a constitutional violation." Estate of Rosenberg v. Crandell, 56 F .3 d 35, 37 (8th Cir. 1995). "[T]he failure to treat a medical condition does not constitute p u n is h m e n t within the meaning of the Eighth Amendment unless prison officials knew th a t the condition created an excessive risk to the inmate's health and then failed to act on

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that knowledge." Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). As long as this th re s h o ld is not crossed, inmates have no constitutional right to receive a particular or re q u e s te d course of treatment, and prison doctors remain free to exercise their in d e p e n d e n t medical judgment. Id. Defendants have provided evidence that Plaintiff's hand injury was not a "serious m e d ic a l need." The small scab resulting from the injury and the related tenderness were tre a te d with three days of Motrin (ibuprofen) (#227-4). Plaintiff did not request a d d itio n a l treatment for his hand from medical personnel at the Varner Unit. Plaintiff's tra n s f e r and arrival evaluations did not reflect any injury to Plaintiff's hand (#227-5). Once at the EARU, Plaintiff's complaints related only to dry skin on his hands and not to b lu n t force trauma (#227-4). Eighth Amendment claims require more than de minimis injury. Irving v. D o r m ir e , 519 F.3d 441, 448 (8th Cir. 2008) (citations omitted). Plaintiff has failed to m e e t proof with proof by providing evidence of an injury beyond the de minimis th re s h o ld . Plaintiff states that he may have arthritis in his right hand and that his hand hurts w h e n it is cold (#227-2, p. 14). To soothe the pain, he wraps his hand in a warm towel. Plaintiff's allegation that he has arthritis in his hand is speculative, at best, and finds no s u p p o rt in the record. Significantly, Plaintiff attributes this condition to Lt. Stevenson's s trik in g his hand, and not to the denial of treatment.

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Plaintiff believes that Defendants should have x-rayed his hand (#227-2, p. 14). According to the Plaintiff, if x-rays had evidenced arthritis, he would have been given p a in medications (#227-2, p. 14). He does not explain why he never purchased pain re lie v e rs available to him through the commissary (#227-6; #227-2, p. 14). In any event, other than the initial scab and possible arthritis, Plaintiff does not h a v e any other issues with his hand (#227-2, p. 7). He has not established a serious m e d ic a l condition requiring treatment. Even if Plaintiff could show that his hand injury constituted a "serious medical n e e d ," he has not provided evidence that the Defendants were deliberately indifferent to a k n o w n risk to his health. To satisfy the subjective component of the deliberate in d if f e re n c e standard, Plaintiff must show that the Defendants actually knew of, but d e lib e ra te ly disregarded, a serious medical need. Vaughn v. Gray, 557 F.3d 904, 908 (8th C ir. 2009) (citations omitted). None of the Defendants were charged with providing m e d ic a l services for Plaintiff's hand injury. Plaintiff sued Defendants Green, Kundert, a n d Wells because they were supervisors (#227, ¶ 15-17). Plaintiff's contention that Defendants should have x-rayed his hand is without m e rit, even if these Defendants were directly responsible for treating his hand. First, he h a s failed to provide any evidence that a delay in treatment affected his prognosis. See S h e r r e r v. Stephens, 50 F.3d 496, 497 (8th Cir. 1994) (delay in treatment claims require e v id e n c e that defendants ignored an acute or escalating situation or that the delays

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adversely affected the prognosis). Second, Plaintiff has no constitutional right to receive a particular or requested course of treatment. Long, 86 F.3d at 765. The alleged deficiencies in medical treatment, even if there had been deficiencies, f a ll far short of a constitutional violation. Accordingly, Defendants' Motion for Summary J u d g m e n t (#225) should be granted. V. C o n c lu s io n : T h e Court recommends that Defendants' motion for summary judgment (#225) be G R A N T E D and that all claims be DISMISSED with prejudice. In addition, the Court re c o m m e n d s that the District Court certify that an in forma pauperis appeal taken from th e order and judgment dismissing this action would be frivolous and not taken in good f a ith . D A T E D this 16th day of November, 2009.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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