Pennington v. Kelly et al

Filing 177

RECOMMENDED DISPOSITION recommending that 84 , 105 Platiniff's motions for summary judgment be denied; recommending that 130 , 169 Defendants' cross motions for summary judgment be granted and Plaintiff's claims be dismissed with prejudice; and recommending all remaining motions be denied as moot. Objections to R&R due by 9/8/2009. Signed by Magistrate Judge Beth Deere on 8/25/09. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS P I N E BLUFF DIVISION

F R E D E R I C K PENNINGTON, JR. A D C # 71305 V. W E N D Y KELLEY, et al. C A S E NO. 5:08CV0018 JLH/BD

P L A IN T IF F

DEFENDANTS

R E C O M M E N D E D DISPOSITION I. P r o c e d u r e s for Filing Objections: The following Recommended Disposition has been sent to Chief United States D is tric t Judge J. Leon Holmes. Any party may serve and 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 s is for the objection. If the objection is to a factual finding, specifically identify that fin 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 receipt of the recommendations. A copy will be furnished to th e opposing party. Failure to file timely objections may result in a waiver of the right to a p p e a l questions of fact. M a il your objections and request for a hearing to: C le rk , United States District Court E a s te rn District of Arkansas 5 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201

II.

Introduction: P e n d in g are Plaintiff's Motions for Summary Judgment (docket entry #84 and

# 1 0 5 ) and Defendants' Motions for Summary Judgment (#130 and #169). For the fo llo w in g reasons, the Court recommends that Plaintiff's motions (#84 and #105) be D E N IE D . In addition, the Court recommends that Defendants' motions (#130 and #169) b e GRANTED and that Plaintiff's claims be DISMISSED with PREJUDICE. All re m a in in g motions should be denied as moot. III. B ackground: P la in tiff, an inmate at the Arkansas Department of Correction ("ADC"), is serving a life sentence for murder. He filed this action pro se under 42 U.S.C. § 1983, alleging th a t Defendants violated his Eighth Amendment rights by acting with deliberate in d iffe re n c e to his medical needs. Specifically, Plaintiff alleges that he did not receive tim e ly anti-viral treatment for Hepatitis C. Plaintiff names as Defendants Wendy Kelley, D r. Patrick Arnold, Grant Harris, John Byus, and "John Doe Doctor," and sues all D e fe n d a n ts in both their individual and official capacities. Wendy Kelly, Grant Harris, and John Byus are employed by the ADC. Dr. Arnold is employed by Correctional Medical Services, Inc. ("CMS"), which contracts with the A D C to provide inmate medical care (#169-2). The Court earlier dismissed the John Doe d e fe n d a n t because Plaintiff failed to identify him (#92, #109). S in c e 1988, Plaintiff has filed more than forty lawsuits in this Court. He was g ra n te d in forma pauperis status in this case only because his allegations satisfied the 2

imminent-danger-of-serious-physical-injury exception contained in 28 U.S.C. § 1915(g). It now appears, however, that Plaintiff's allegations are not supported by the medical e v id e n c e . Plaintiff tested positive for Hepatitis C in January 1996 (#132, ¶7). Since the d ia g n o s is, Plaintiff's medical providers have monitored his liver function in accordance w ith the National Institutes of Health and the Federal Bureau of Prisons clinical practice g u id e lin e s (#132, ¶9). At the time of filing, Plaintiff was monitored through the Chronic C a re Clinic of the ADC. O n March 3, 2006, Plaintiff underwent a liver biopsy which revealed moderate in fla m a tio n and minimal fibrosis. These findings correspond to grade 3 inflamation and s ta g e 1 fibrosis (#2, p. 10). Plaintiff's medical providers continued to monitor his c o n d itio n , but declined to begin anti-viral medication treatment. According to D e fe n d a n ts , the anti-viral medication for Plaintiff's type of Hepatitis C, pegalyated in te rfe ro n alpha-2a and ribavirin, is toxic and causes serious side effects (#130-4). Medication therapy is ineffective in approximately 40-60% of treated patients. Without a n ti-v ira l medication, 85-90% of individuals with chronic Hepatitis C do not experience m a jo r problems with the disease. For these reasons, anti-viral medication is not re c o m m e n d e d for patients with no fibrosis (#130-4). Plaintiff does not dispute these a s s e r tio n s . Leading up to the initiation of this action, Plaintiff was seen in the Chronic Care C lin ic on August 23, 2007, and again on November 13, 2007. On December 14, 2007, 3

Plaintiff met with an unidentified doctor who notified Plaintiff that he would review the m e d ic a l records to determine whether Plaintiff was an appropriate candidate for anti-viral m e d ic a tio n . At that time, the medical records did not evidence more than minimal fib ro s is . P la in tiff filed this action on January 28, 2009, based on the Defendants' failure to b e g in the anti-viral treatment that Plaintiff wished to receive. On February 14, 2008, P la in tiff underwent a second liver biopsy (#130-6). This biopsy showed continued m o d e ra te inflamation, but advancement in fibrosis, from Stage 1 to Stage 2. This biopsy, c o n d u c te d less than two years after Plaintiff's last biopsy, and two weeks after Plaintiff file d this action, is the first test in the record showing increased fibrosis. As a result of th e advancement in fibrosis, a decision was made to begin treatment with anti-viral m e d ic a tio n . Plaintiff's liver function has improved to near normal since he began antiv ira l treatment (#132, ¶24). IV. D is c u s s io n : A. Summary Judgment Standard

S u m m a ry judgment is appropriate when the evidence, viewed in the light most fa 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 4

that 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 ific 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). B. D e lib e r a te Indifference

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 iffe re n c e by prison personnel to an inmate's serious medical needs violates the in m a te 's right to be free from cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 9 7 , 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). An inmates must demonstrate: (1) that he or she suffered objectively serious medical needs; and (2) that prison officials a c tu a lly knew of, but deliberately disregarded, those needs. Id. A serious medical need is 5

"one that has been diagnosed by a physician as requiring treatment, or one that is so o b v io u s that even a layperson would easily recognize the necessity for a doctor's a tte n tio n ." Id. at 778. Plaintiff's chronic Hepatitis C is an objectively serious medical condition. In the a b s e n c e of anti-viral treatment, Plaintiff's chronic Hepatitis C required monitoring by a d o c to r. The February 2008 biopsy, conducted after Plaintiff filed this action, shows that P la in tiff was a candidate for anti-viral treatment. Drawing all inferences in Plaintiff's fa v o r, he has arguably shown the need for anti-viral treatment at the time of filing. Plaintiff has failed, however, to provide any evidence of deliberate indifference. T o show 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 th a t 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. In this case, Plaintiff cannot show that monitoring his condition, without providing a n ti-v ira l treatment, posed an excessive risk to his health. The record shows that the 6

alleged delay in providing anti-viral medication did not result in a deterioration of P la in tiff's health (#130-3, p. 3). It is undisputed that Defendants regularly monitored Plaintiff's condition through th e Chronic Care Clinic. In addition to regular monitoring, Plaintiff underwent a liver b io p s y March 3, 2006, which revealed minimal fibrosis. Since the biopsy showed m in im a l fibrosis, the Federal Bureau of Prisons clinical practice guidelines recommend m o n ito rin g and an additional biopsy in 2-5 years (#130-4, p. 2). Plaintiff's follow-up b io p s y occurred on February 14, 2008, less than two years after the first biopsy. Defendants have shown that monitoring Plaintiff's condition, without providing anti-viral tre a tm e n t, met the standard of care for chronic Hepatitis C patients with little or no fib ro s is (#130-3, #130-4).1 T h e only complaint raised by Plaintiff is over the timing of starting the anti-viral tre a tm e n t. In that regard, Plaintiff alleges what amounts to a disagreement with treatment d e c is io n s . It is understandable that Plaintiff had opinions about the proper course of his tre a tm e n t, but settled law is clear. Disagreement with treatment decisions does not rise to th e level of a constitutional violation. Popoalii v. Correctional Medical Services, 512 F .3 d 488, 499 (8th Cir. 2008) (quoting Estate of Rosenberg, 56 F.3d at 37). Plaintiff has

This conclusion is drawn from the reports provided by Dr. Arshad H. Malik, who w a s retained by Plaintiff's attorney to review the medical records, and Dr. Roland A n d e rso n , Regional Medical Director for CMS. 7

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no constitutional right to receive a particular or requested course of treatment. Long, 86 F .3 d at 765. Plaintiff admits that his condition was monitored in the Chronic Care Clinic by d o c to rs and nurses, but alleges that he should have been sent to a hospital for treatment (# 2 ). He also alleges that Dr. Arnold told him that he should receive anti-viral treatment.2 E v e n if this is so, a disagreement among doctors over recommended treatment does not c o n s titu te a constitutional violation. See Noll v. Petrovky, 828 F.2d 461, 462 (8th Cir. 1 9 8 7 ), cert. denied, 484 U.S. 1014, 108 S.Ct. 718 (1988) (stating that disagreement b e tw e e n physicians regarding treatment "raises a question of medical judgment; it does n o t show deliberate indifference"). Both Dr. Anderson and Dr. Malik determined that clinical monitoring was an a p p ro p ria te course of treatment for Plaintiff's particular condition (#130-3, #130-4). Simply put, Defendants, "do not violate the Eighth Amendment when in the exercise of th e ir professional judgment, they refuse to implement a prisoner's requested course of tre a tm e n t." Vaughn v. Gray, 557 F.3d 904, 909 (8th Cir. 2009) (quoting Long, 86 F.3d at 7 6 5 ). Plaintiff has failed to provide evidence to establish even medical negligence, much le s s deliberate indifference. Accordingly, this action should be dismissed with prejudice.

Plaintiff is now receiving antiviral treatment, and the medical records establish th a t he was not injured by any delay in starting this treatment. 8

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V.

C o n c lu s io n : T h e Court recommends that Plaintiff's motions for summary judgment (#84 and

# 1 0 5 ) be DENIED. In addition, the Court recommends that Defendants' cross motions fo r summary judgment (#130 and #169) be GRANTED and Plaintiff's claims be D IS M IS S E D with PREJUDICE. All remaining motions should be denied as moot. D A T E D this 25th day of August, 2009.

_____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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