Percefull v. Robertson et al

Filing 48

ORDER granting 27 defendants' Motion for Summary Judgment and dismissing plaintiff's claims with prejudice. The Court certifies that an ifp appeal would not be taken in good faith. Signed by Judge D. P. Marshall Jr. on 6/11/13. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
RICHARD PERCEFULL
v.

PLAINTIFF
5:12-cv-171-DPM-JTR

VERNON ROBERTSON, Major, Cummins
Unit, ADC, and DONALD TATE, Captain,
Cummins Unit, ADC

DEFENDANTS

ORDER

Richard Percefull filed this prose§ 1983 action alleging that, in April
2012, Major Vernon Robertson and Captain Donald Tate violated his
constitutional rights by denying him medical care for acid reflux while he was
confined in administrative segregation at the Cummins Unit. NQ 7. According
to Percefull, his acid reflux medications and a pillow he used to alleviate his
reflux symptoms while sleeping were seized upon his arrival in
administration segregation. Over the next twenty days, Percefull allegedly
made several written and oral requests for medical care for severe stomach
pains and the inability to eat, both of which were caused by acid reflux.
Percefull believes that Robertson and Tate kept the prison medical staff from
responding to those requests until after he was released from administrative
segregation. Robertson and Tate have moved for summary judgment on

Percefull' s inadequate-medical-care claim. All other claims and defendants
have been dismissed. NQ 3 & NQ 16.
1. Because there is no respondeat superior liability in § 1983 actions,
Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010), Robertson and Tate cannot

be held liable for the alleged failure of the prison medical staff to provide
Percefull with adequate medical care for his acid reflux. Instead, Percefull has
to demonstrate that Robertson and Tate, through their n own individual
actions," violated his constitutional right to adequate medical care. Ashcroft

v. Iqbal, 556 U.S. 662,676 (2009). Percefull must show that Robertson and Tate
"directly participated" in the denial of medical care or that their failure to
il

train or supervise the offending actors" caused the constitutional deprivation.
Beaulieu v. Ludeman, 690 F.3d 1017, 1031 (8th Cir. 2012).

2. Robertson and Tate are not medical providers. They do not train or
supervise the prison medical staff. These facts are undisputed. NQ 3 7-1 & NQ
37-2. Percefull alleges, without any supporting evidence, that Robertson and
Tate refused to process his grievances complaining about the lack of medical
care for acid reflux. NQ 39 at 4. Even so, a prison official's failure to properly
process a grievance is not a constitutional violation. Lomholt v. Holder, 287

-2-

F.3d 683, 684 (8th Cir. 2002). Instead, an alleged interference with the
grievance process could have foreclosed Robertson and Tate from prevailing
on a failure-to-exhaust defense. Sergent v. Norris, 330 F.3d 1084, 1085-86 (8th
Cir. 2003); Lyon v. Vande Krol, 305 F.3d 806,808 (8th Cir. 2002). They, however,
have not raised that affirmative defense in this lawsuit.
3. Percefull next says that Robertson and Tate directly participated in
the constitutional violation by ignoring his verbal request for medical care,
refusing to deliver his written medical requests to the prison medical staff,
and preventing the prison medical staff from dispensing his reflux
medication. He has not come forward with any evidence to support those
allegations; Robertson and Tate, on the other hand, have testified by affidavit
that they did none of these things. NQ 37-1 & NQ 37-2. ADC medical records
also demonstrate that, while he was in administrative segregation for twenty
days, Percefull was examined by the prison medical staff at least three times,
refused sick call once, and reported no medical problems during the medical
staff's daily rounds on at least four occasions. NQ 27-3 & NQ 37-3. There is no
evidence that Robertson and Tate prevented or interfered with the prison
medical staff's access to Percefull or their decisions on how to properly treat

-3-

his acid reflux while he was in administrative segregation. To go to trial,
Percefull "must substantiate his allegations with enough probative evidence
to support a finding" that he had "an objectively serious medical need" and
that the defendants were "deliberately indifferent to that need." Jenkins v.
County of Hennepin, Minn., 557 F.3d 628, 631 (8th Cir. 2009). He has not.

4. Percefull also has not produced any medical evidence demonstrating
that he was harmed by any temporary delay in receiving medical care for acid
reflux. For his case to go forward, he must produce some "verifying medical
evidence that the defendants ignored an acute or escalating situation or that
delays adversely affected the prognosis." Dulany v. Carnahan, 132 F.3d 1234,
1243 (8th Cir. 1997). Percefull has not carried his burden.

***
The motion for summary judgment, NQ 2 7, is granted. Percefull' s claims
are dismissed with prejudice.

The Court certifies that an in forma

pauperis appeal would not be taken in good faith. 28 U.S.C. § 1915(a)(3).

So Ordered.

D.P. Marshall Jr. ,/
United State District Judge

-4-