Ellis v. Davis

Filing 62

RECOMMENDED DISPOSITION recommending that 42 Defendant Davis's Motion for Summary Judgment be granted, and Ellis's inadequate medical care claim against him be dismissed, without prejudice. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 1/10/2018. (kdr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION

TYRONE ELLIS

PLAINTIFF

v.

5:16-CV-00100-BSM-JTR

GORDON DAVIS, Nurse,
Correct Care Solutions

DEFENDANT

RECOMMENDED DISPOSITION
The following Recommended Disposition (ARecommendation@) has been sent
to United States Chief District Judge Brian S. Miller. Any party may file written
objections to this Recommendation. Objections must be specific and include the
factual or legal basis for disagreeing with the Recommendation. An objection to a
factual finding must specifically identify the finding of fact believed to be wrong
and describe the evidence that supports that belief.
An original and one copy of the objections must be received in the office of
the United States District Clerk within fourteen (14) days of this Recommendation.
If no objections are filed, Judge Miller can adopt this Recommendation without
independently reviewing all of the evidence in the record. By not objecting, you
may also waive any right to appeal questions of fact.

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I.

Introduction

Plaintiff Tyrone Ellis (AEllis@), proceeding pro se, contends that while
detained in the Arkansas Department of Correction (“ADC”), he was denied
constitutionally adequate medical care by Defendant Gordon Davis (“Nurse Davis”),
a Licensed Practical Nurse (“LPN”) with Correct Care Solutions. Docs. 2 & 21.
More specifically, Ellis contends that during a 26-day period between December 24,
2014 and January 19, 2015, Nurse Davis delayed his treatment for stomach issues
caused by his prescribed medication. Ellis sues Nurse Davis solely in his personal
capacity.
Ellis seeks $250,000 in damages, injunctive relief, and a transfer to the Tucker
Max Unit of the ADC.
Nurse Davis has filed a Motion for Summary Judgment, a Brief in Support, a
Statement of Undisputed Facts, and a Reply. Docs. 42-44; 48. Ellis has filed a
Brief and an “Objection” in opposition. Docs. 46-47.1
Before addressing the merits of Nurse Davis’s Motion, the Court will
summarize the relevant undisputed facts giving rise to Ellis’s claims.2

1

Ellis’s filings primarily relate to exhaustion of his administrative remedies. (See also
Docs. 55, 58). However, there is no exhaustion issue before the Court. Thus, Ellis’s exhaustionrelated arguments and legal citations are irrelevant to the resolution of summary judgment.
2

Summary judgment is appropriate when the record, viewed in a light most favorable to
the nonmoving party, demonstrates that there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v.
2

1.

On December 24, 2014, Ellis was examined by Nurse Davis, the triage

duty nurse in the sick call clinic, in response to his sick call request complaining of
right ear pain and drainage.3 During the examination, Ellis also mentioned that he
was suffering from an upset stomach and loose stools which Ellis believed was
caused by a prescription supplement, alpha lipoic acid. 4

To address Ellis’s

complaints of abdominal discomfort, Nurse Davis referred Ellis to be seen by a
doctor or Advanced Practice Nurse (“APN”). (Ellis Depo., Doc. 43-2 at 15-16; 1819; Treatment Notes, Doc. 43-1 at p. 2; Davis Aff., Doc. 43-3).
2.

After seeing Ellis on December 24, 2014, Nurse Davis had no further

contact with him regarding his medical care. (Doc. 43-3).
3.

After his appointment with Nurse Davis on December 24, 2014, Ellis

submitted two sick call requests to “see the doctor.” On January 7, 2015, a nonparty LPN responded that Ellis had been referred to see a doctor or APN and was
“on the list to be seen.” (Doc. 43-1 at 3-4).

Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50
(1986). The moving party bears the initial burden of demonstrating the absence of a genuine
dispute of material fact. Celotex, 477 U.S. at 323. Once that has been done, the nonmoving party
must present specific facts demonstrating that there is a material dispute for trial. See Fed R. Civ.
P. 56(c); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).
3

As Ellis concedes, his treatment for ear pain is not an issue in this case. (Ellis Depo.,
Doc. 43-2 at 8-9, 17-18).
4

Alpha lipoic acid is a naturally occurring antioxidant found in the body.
supplemented form, it may reduce neuropathic pain. (Dr. Stieve Aff., Doc. 43-4 at 1).
3

In a

4.

On January 19, 2015, Ellis was examined by a non-party APN, who

directed Ellis to discontinue the alpha lipoic acid and ordered Nortriptyline to treat
Ellis’s complaints of neuropathy. (Ellis Depo., Doc. 43-2 at 35-36; Doc. 43-4).
5.

Nurse Davis does not know why his December 24, 2014 referral of Ellis

to see an APN or doctor was not acted upon until January 19, 2015. (Doc. 43-3).
6.

In the medical opinion of Dr. Jeffrey Stieve, the Regional Medical

Director for Correct Care Solutions, Ellis’s loose stools and upset stomach were
caused by him taking alpha lipoic acid, a dietary supplement that needed to be taken
with food. According to Dr. Stieve, Ellis’s abdominal discomfort did not rise to the
level of a serious medical need. (Dr. Stieve Aff., Doc. 43-4, at 1-2).

Finally, Dr.

Stieve states that the medical care and treatment Nurse Davis provided to Ellis was
appropriate and satisfactory for Ellis’s complaints during the relevant period of time.
(Id.).
II.

Discussion

Nurse Davis, the sole Defendant in this case, only treated Ellis once, on
December 24, 2014. Ellis has no complaint about the assessment and treatment
Nurse Davis provided to him on December 24, 2014. Ellis’s only complaint is the
26-day delay between seeing Nurse Davis and the time it took for Nurse Davis’s
referral to result in him seeing an APN on January 19, 2015.
To prevail on his inadequate medical care claim, Ellis must prove that: (1)
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he had an objectively serious need for medical care; and (2) Nurse Davis subjectively
knew of, but deliberately disregarded, that serious medical need. See Saylor v.
Nebraska, 812 F.3d 637, 644 (8th Cir. 2016); Langford v. Norris, 614 F.3d 445,
460 (8th Cir. 2010). Deliberate indifference, which goes well beyond negligence
or gross negligence, “requires proof of a reckless disregard of the known risk."
Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001). In other words, “there must be
actual knowledge of the risk of harm, followed by deliberate inaction amounting to
callousness.” Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir. 1998).
First, Ellis has failed to demonstrate that, on December 24, 2014, he had an
objectively serious medical need requiring a referral.

From Nurse Davis’s

December 24th clinic notes, Ellis’s primary complaint related to his right ear pain,
with only a passing reference to loose stools and an upset stomach. (Doc. 43-1 at
p. 2). In his Affidavit, Nurse Davis makes it clear that he referred Ellis to a doctor
or APN to evaluate the cause for his stomach problems, which Ellis reported was
caused by his taking the alpha lipoic acid supplement. (Doc. 43-1 at p. 1).5 See
Christian v. Wagner, 623 F.3d 608, 613 (8th Cir. 2010) (explaining that a medical
need is objectively serious if it has been diagnosed by a physician as requiring
treatment, or was so obvious that a layperson would recognize the need for a

5

Nurse Davis used the “ear ache protocol” and Debrox ear drops to address Ellis’s
complaints of right ear pain. (Doc. 43-3 at 1).
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physician's attention).
Ellis offers no evidence to counter Dr. Stieve’s medical opinion that Ellis’s
upset stomach and loose stools did not constitute a serious medical need, especially
since Ellis could have discontinued the alpha lipoic supplement at any time to cure
the problem that he told Nurse Davis he believed was caused by taking that
supplement. (Doc. 43-1 at 2).
However, even if the Court were to assume that Ellis had an objectively
serious medical need for medical care, he clearly has failed to produce any evidence
demonstrating that Nurse Davis was deliberately indifferent to his need to receive
that medical treatment.

Ellis’s subjective belief that Nurse Davis did not act

promptly enough is not sufficient to create a material factual dispute. To the
contrary, the uncontroverted facts establish that Nurse Davis’s referred Ellis to be
seen by a doctor or APN on the same day he saw Ellis. Finally, Nurse Davis’s
Affidavit makes it clear that: (1) he has no idea why it took 26 days for his referral
to be acted upon; and (2) he had nothing to do with causing that delay. (Doc. 433).
No evidence has been presented that Nurse Davis did anything to delay the
referral after he saw Ellis on December 24th. As the Eighth Circuit explained in
Logan v. Clarke, 119 F.3d 647, 650 (8th Cir.1997), “[a]lthough the prison doctors
may not have proceeded from their initial diagnosis to their referral to a specialist as
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quickly as hindsight perhaps allows us to think they should have, their actions were
not deliberately indifferent.” See also Bryan v. Endell, 141 F.3d 1290, 1291 (8th
Cir.1998) (some delay in treating an inmate's broken hand, even if negligent, did not
amount to deliberate indifference).
In his deposition, Ellis speculated that Nurse Davis might have simply
forgotten to place Ellis on the referral list. Doc. 43-2 at p. 25, 40. Assuming this
is the case, this establishes only that Nurse Davis was negligent, something “that
does not rise to unconstitutional deliberate indifference.” Hartsfield v. Colburn,
491 F.3d 394, 398 (8th Cir. 2007).
At most, Ellis’s allegations support a claim that Nurse Gordon might have
been negligent in not getting him medical treatment sooner. Claims of negligence
fail to satisfy the higher deliberate indifference standard required to find a
constitutional violation. See Williams v. Kelso, 201 F.3d 1060, 1065 (8th Cir. 2000)
(“At best, plaintiff's proof in this appeal amounts to negligent conduct, not deliberate
or willful conduct on [the jailors’] part.”); Olson v. Bloomberg, 339 F.3d 730 (8th
Cir. 2003) (“deliberate indifference is akin to criminal recklessness, which demands
more than negligent misconduct.”).
III.

Conclusion

Because Ellis has not produced any evidence that Nurse Davis deliberately
disregarded an objectively serious medical need, Nurse Davis is entitled to summary
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judgment on the inadequate medical care claim Ellis has asserted against him.
IT IS THEREFORE RECOMMENDED THAT:
Defendant Davis’s Motion for Summary Judgment (Doc. 42) be
GRANTED, and Ellis’s inadequate medical care claim against him be DISMISSED,
WITH PREJUDICE.
Dated this 10th day of January, 2018.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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