Collins v. Turner et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS in whole re 57 Report and Recommendations, with the exception of the language that states Defendant "does not dispute that Plaintiff's back and leg pain constituted an objectively serious medical need." Plaintiff therefore retains the burden of proof on both elements of his deliberate indifference claim concerning back and knee pain; granting in part and denying in part 35 Motion for Summary Judgment. Signed by Honorable Susan O. Hickey on January 30, 2012. (cap)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
J.C. OTIS COLLINS
CASE NO. 4:10-cv-04004
MAJOR GARY TURNER, Miller
County Jail; DR. CLAYTON NASH,
Miller County Jail
Before the Court is the Report and Recommendation filed November 30, 2011, by the
Honorable Erin Setser, United States Magistrate Judge for the Western District of Arkansas. (ECF
No. 57). Judge Setser recommends that Defendant Dr. Clayton Nash’s Motion for Summary
Judgment (ECF No. 28) be granted in part and denied in part. Both sides have responded with timely
objections. (ECF Nos. 58 and 60). After reviewing the record de novo, the Court adopts Judge
Setser’s Report and Recommendation in whole with the exception of the language that states
Defendant “does not dispute that Plaintiff’s back and leg pain constituted an objectively serious
medical need.” (ECF No. 57 at 8).
Plaintiff accuses Dr. Nash under 42 U.S.C. § 1983 of displaying deliberate indifference in
his treatment of, among other things, Plaintiff’s psoriasis and back and knee pain. To prevail,
Plaintiff must show (1) that he suffered from an objectively serious medical need, and (2) that Dr.
Nash actually knew of the need but chose to deliberately disregard it. Krout v. Goemmer, 583 F.3d
557, 567 (8th Cir. 2009). A serious medical need is “one that has been diagnosed by a physician as
requiring treatment, or one that is so obvious that even a layperson would easily recognize the
necessity for a doctor’s attention.” Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1992). Judge Setser
recommends granting Defendant’s summary judgment motion only as to his treatment of Plaintiff’s
psoriasis. Ultimately, Judge Setser notes that Defendant does not dispute that Plaintiff’s back and
knee pain were serious medical needs, and that a genuine dispute exists only regarding whether
Defendant showed deliberate indifference in disregarding that need.
Defendant objects to the Report and Recommendation’s conclusion that he does not dispute
that Plaintiff’s back and knee pain constituted an objectively serious medical need. (ECF No. 57 at
8). Defendant argues that his summary judgment motion is silent on the matter and that he “intends
to develop the facts related to [that] issue at trial.” (ECF No. 58 at 2). To the extent that Defendant
argues that his motion’s silence regarding the first element of the deliberate indifference claim
should not be construed as an admission of that element, the Court agrees. Plaintiff shall continue
to possess the burden of proof on both elements, namely, (1) whether his back and knee pain
constituted a serious medical need, and (2) whether Dr. Nash knew of the need but deliberately chose
to disregard it.
Plaintiff objects to Judge Setser’s recommended finding that no genuine dispute exists as to
whether Defendant was deliberately indifferent to his psoriasis. Specifically, Plaintiff renews his
arguments that Defendant failed to treat him in a timely manner and that his medical records have
been changed or altered to Defendant’s advantage. After a de novo review, the Court finds Plaintiff’s
argument unfounded. As the Report and Recommendation notes, Plaintiff has provided no verifiable
evidence suggesting an alteration of medical records or that he was not timely treated. Defendant has
attached copies of medical records to his summary judgement motion which show that he prescribed
Plaintiff psoriasis-related medication beginning December 15, 2009, approximately four days after
initial booking at the Miller County Detention Center. (ECF No. 36, Ex. 1 at 1 and Ex. 3 at 1). The
Court agrees with the Report and Recommendation that Plaintiff’s bare allegations are not sufficient
to survive Defendant’s summary judgment motion. See, e.g., Jenkins v. County of Hennepin, Minn.,
557 F.3d 628, 631 (8th Cir. 2009) (noting that a plaintiff may survive a summary judgment only if
he “substantiate[s] his allegations with enough probative evidence to support a finding in his
favor”) (quoting Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d 639, 642 (8th Cir. 2008)).
Plaintiff further argues that he suffered headaches and dizziness due to Defendant’s failure
to provide blood pressure medication. Vaguely pled in Plaintiff’s complaint (ECF No. 1 at 6),
Defendant did not specifically address this claim in his summary judgment motion. Accordingly, the
Report and Recommendation did not consider the matter and Plaintiff’s claim on this issue remains
live for trial.
The Court adopts the Report and Recommendation in whole with the exception of the
language that states Defendant “does not dispute that Plaintiff’s back and leg pain constituted an
objectively serious medical need.” (ECF No. 57 at 8). Plaintiff therefore retains the burden of proof
on both elements of his deliberate indifference claim concerning back and knee pain.
Accordingly, Defendant’s motion for summary judgment (ECF No. 35) is GRANTED with respect
to Plaintiff’s claim concerning psoriasis treatment and DENIED with respect to Plaintiff’s claim
concerning treatment of back and knee pain.
IT IS SO ORDERED, this 30th day of January, 2012.
/s/ Susan O. Hickey
Hon. Susan O. Hickey
United States District Judge
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