Elmore v. Kelly et al

Filing 120

ORDER ADOPTING REPORT AND RECOMMENDATIONS 119 granting 97 Motion for Summary Judgment, filed by Amanda McLean, Jennifer McBride, Ojiugo Iko, Jacqueline Carswell, Connie Hubbard, Andria Cantrell ; granting 115 Motion for Summary Judgment. Signed by Judge D. P. Marshall Jr. on 1/14/14. (kpr)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION JEFFERY CHARLES ELMORE ADC # 091418 v. PLAINTIFF No. 5:12-cv-325-DPM-BD WENDY KELLY, Deputy Director, ADC; JENNIFER McBRIDE, Infirmary Administrator, Varner Unit, ADC; AMANDA McLEAN, Director of Nursing, Varner Unit, ADC; CONNIE HUBBARD, Nurse Practitioner, Varner Unit, ADC; JACQUELINE CARSWELL, Nurse Practitioner, Varner Unit, ADC; OJIUGO IKO, Dr., Varner Unit, ADC; and ANDRIA CANTRELL, Nurse, Varner Unit, ADC DEFENDANTS ORDER 1. On de novo review, the Court overrules Elmore's objections, NQ 114, and adopts Magistrate Judge Deere's recommendation, NQ 113, as modified. The Court must, and does, take the summary-judgment record in the light most favorable to Elmore. It took six months, and fifteen visits, for the healthcare professionals to diagnose Elmore's scabies correctly and treat the exposure properly. In the interim, Elmore was cared for and treated: he received lotions, shots, a prescription for hot baths, and other remedies. But these treatments did not work because of the missed diagnosis. He makes a strong case that this course was almost certainly negligent, rather than adequate. But he has not made a submissible case of deliberate indifference- the health-care professionals simply misdiagnosed him. Notwithstanding Elmore's speculations, no sufficient record evidence exists of the health-care professionals being wilfully ignorant of what Elmore says was a scabies problem at the prison. Because no reasonable fact-finder could say on this record that the health-care professionals had a state of mind equivalent to criminal recklessness, Elmore's deliberate-indifference claims against McBride, McLean, Hubbard, Carswell, Dr. Iko, and Cantrell fail as a matter of law. Their motion for summary judgment, NQ 97, is granted. 2. Elmore didn't object to Judge Deere's later proposal recommending the dismissal of Wendy Kelley, NQ 119. The Court sees no clear error of fact or legal error on the face of the record. FED. R. CIV. P. 72(b). The recommendation is adopted. Kelley's motion for summary judgment, NQ 115, is granted. So Ordered. Jo!f??4~d.d/-1--. D.P. Marshall Jr. United States District Judge 14 January 2014 -2-

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