Long v. Kirby et al
Filing
89
ORDER adopting 85 Final Report and Recommendation as the Order and Opinion of this Court, granting Defendants' 63 Motion for Summary Judgment and 64 Motion for Summary Judgment. The Court OVERRULES 87 Plaintiff's Objections. The civil action is DISMISSED. Signed by Judge Richard W. Story on 03/21/14. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
J. D. LONG,
Plaintiff,
v.
DANE KIRBY, et al.,
Defendants.
:
:
:
:
:
:
:
CIVIL ACTION NO.
2:11-CV-00294-RWS-JCF
PRISONER CIVIL RIGHTS
42 U.S.C. § 1983
ORDER
The Magistrate Judge recommends (Doc. 85) that Defendants’ motions for
summary judgment (Docs. 63, 64) be granted and that Plaintiff’s amended complaint
alleging deliberate indifference to his serious medical needs (Doc. 21) be dismissed.
Plaintiff objects. (Doc. 87). In accordance with 28 U.S.C. § 636(b)(1) and Rule 72
of the Federal Rules of Civil Procedure, the Court has conducted a de novo review
of those portions of the Report to which Plaintiff objects, and has reviewed the
remainder of the Report for plain error. See United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
Plaintiff first objects that the Magistrate Judge ignored his claim of retaliation
contained in Count III of his amended complaint, which he now asserts was based on
his contentions that inmates threatened him and that “[a]t least one supervisor openly
encouraged the inmates to harass [him].” (Doc. 87 at 3-4, 6-7). In fact, however, as
AO 72A
(Rev.8/82)
the Magistrate Judge has pointed out, Plaintiff did not raise a claim of retaliation
based on alleged threats and harassment from inmates, but instead argued that he was
denied medical care as retaliation for requesting medical care, which the Magistrate
Judge properly construed as nothing more than another way for Plaintiff to allege that
Defendants were deliberately indifferent to his serious medical needs. (See Doc. 85
at 36-37 & n.6; Doc. 21-3 at 8-13). This objection fails. See Resolution Trust Corp.
v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the
district court to distill every potential argument that could be made based upon the
materials before it on summary judgment.”).
Plaintiff next objects that the Magistrate Judge failed to make every inference
“in the light most favorable to” him. (Doc. 87 at 4). He states that the Magistrate
Judge accepted the medical records regarding Plaintiff’s treatment that Defendants
placed into evidence, even though he “testified that the records were not correct and
that his requests for help” received no response, and he also provided “the affidavit
of a cellmate[,] Terry Ross, who swore under oath that Plaintiff’s calls for help on the
intercom” received no response and that “jailers” told Ross to ignore Plaintiff. (Id.).
Plaintiff also objects to the Magistrate Judge’s conclusion that none of his individual
medical problems rose to the level of a serious medical need because, he now alleges,
2
AO 72A
(Rev.8/82)
his deliberate indifference claim all along has been “that the combination of the
continual disregard of the cries for pain and delay in getting [him] to the hospital, etc.
was a form of punishment.” (Id. at 7). He states that
while the medical problems might not have been life threatening, they
were certainly serious in total, and the ignoring by the deputies when he
and his cellmates were calling for help certainly exacerbated his pain
with no legitimate reason for the delay. There is no question that the
four trips to the hospital were for medical reasons, and to force the
Plaintiff to be in pain for an extended time until he agreed to pay for his
treatment [is] the intentional infl[i]ction of pain.
(Id. at 8-9 (emphasis added)). Plaintiff also objects to the Magistrate Judge’s
conclusion that he has failed to present a genuine issue for trial on “the issue of
medical help [being] denied until [he] paid for his treatment.” (Id. at 5-6).
“Where the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotations
omitted). In order to avoid summary judgment, the nonmoving party, Plaintiff here,
must come forward with specific facts to show that there exists a genuine issue for
trial. See, e.g., Nawab v. Unifund CCR Partners, No. 13-12820, 2013 U.S. App.
LEXIS 25734, at *9 (11th Cir. Dec. 27, 2013) (“When a nonmoving party’s response
consists of nothing more than conclusory allegations, summary judgment is not only
3
AO 72A
(Rev.8/82)
proper but required.” (citing Morris v. Ross, 663 F.2d 1032, 1034 (11th Cir. 1981));
Dawkins v. Fulton County Gov’t, 733 F.3d 1084, (11th Cir. 2013) (same); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (noting that the “complete failure
of proof concerning an essential element of the nonmoving party’s case necessarily
renders all other facts immaterial” and that the “moving party is entitled to judgment
as a matter of law [when] the nonmoving party has failed to make a sufficient
showing on an essential element of [his] case with respect to which [he] has the
burden of proof”). Although “[t]he summary judgment standard requires [a court to]
resolve all reasonable doubts in favor of the non-moving party, . . . it does not require
[the court] to resolve all doubts in such a manner.” Brown v. Clewiston, 848 F.2d
1534, 1540 n.12 (11th Cir. 1988) (internal quotations omitted) (emphasis added).
“ ‘Plausible inferences must be resolved in favor of the party opposing summary
judgment, but [need not be so resolved if] the inferences [the nonmoving party]
presses on [the court] . . . are not plausible.’ ” Id. (quoting Gramenos v. Jewel Co.,
Inc., 797 F.2d 432, 436 (7th Cir. 1986); (see also Doc. 85 at 2-4 (citing cases)).
In light of the foregoing caselaw and Plaintiff’s objections, it is instructive to
consider at length how the Magistrate Judge analyzed a portion of Plaintiff’s
4
AO 72A
(Rev.8/82)
deliberate indifference claims.1
Other than his own testimony, Plaintiff has provided in support
of his allegations only an affidavit from an alleged fellow prisoner, Max
Jones, who states that while incarcerated at the FCDC [Fannin County
Detention Center] “he observed Plaintiff . . . falling with back problems,
. . . hav[ing] visible allergic reaction[s] on several occasions, . . . using
the intercom to call for help because of various medical problems,” with
no response, and “on at least one occasion [he] witnessed [Plaintiff]
writhing in the dorm floor with kidney pain and asking the jailers to
help him.” Jones states that when he asked the jailers to help Plaintiff
he “was told that [Plaintiff] was always putting on and pretending to be
hurt, and that he . . . should ignore . . . Plaintiff.” Affiant also states that
at least once he observed Plaintiff fall in the dorm, and when the Deputy
arrived he “never checked on” Plaintiff’s physical condition but “simply
stood by until the EMTs arrived.”
Plaintiff has provided no other evidence to corroborate his claims
that he was allowed to lie on the floor writhing in pain for hours at a
time before being transported to the hospital or receiving any treatment
at all. Jones’s affidavit provides no specifics regarding dates and times,
making it almost impossible to match his description of events with
Plaintiff’s, especially in light of Plaintiff’s own tendency to describe
events without providing dates and sometimes to provide differing
versions of the same alleged event, as he has done regarding his alleged
kidney stone attack in June 2011.
Plaintiff describes four trips to the hospital between June and
September 2011. Plaintiff claims he lay “in the floor moaning for
several hours” with back pain before being taken to the hospital on June
17, although he agrees with the Medical Defendants’ explanation that
in response to a telephone message from Queen, Evans first ordered that
1
The Court notes that Plaintiff attempted to support his claims with an affidavit from Max
Jones, not Terry Ross, as Plaintiff now states in his objections.
5
AO 72A
(Rev.8/82)
Plaintiff be given pain medication for his back and then ordered that he
be taken to the FCRH [Fannin County Regional Hospital] when his
complaints of pain did not subside, and that upon his return to the
FCDC Plaintiff received the medications prescribed by Dr. Turner, his
FCRH attending physician.
Plaintiff alleges that he suffered horrible pain as a result of a
kidney stone before being taken to the FCRH on June 25, 2011,
although there is no record of such a visit. Plaintiff also presents two
different versions of this event, stating in the first version, in his
amended complaint, that he lay on the floor for two hours before being
taken to the FCRH (which included 45 minutes waiting for the EMTs
to arrive after they were called) and stating in the second version, in his
Consolidated Response, that he lay on the floor for twelve hours,
although he does not mention a hospital visit in this version. Plaintiff
has offered no medical evidence that he suffers from kidney stones. All
tests to that effect appear to be negative. Plaintiff also acknowledges
that he told medical personnel at the FCDC on June 29, 2011 that
although he was still having pain and “not moving water,” he was
“feeling better.” These allegations simply do not state a genuine issue
for trial regarding the alleged deliberate indifference of the Medical
Defendants or of anyone else at the FCDC to Plaintiff’s alleged kidney
stone pain.
With regard to Plaintiff’s trip to the FCRH for lower back pain on
September 10, 2011, there is no medical evidence that Plaintiff’s back
condition was a serious medical need, as explained above with respect
to Plaintiff’s claim about the discontinuation of his prescribed
medication by McMunn. Dr. Turner at the FCRH observed Plaintiff on
September 10 to be in “no acute distress” and characterized his
condition as “non-emergent.” Although the discontinuation of the pain
and anti-inflammatory medications upon Plaintiff’s return from the
FCRH is questionable, that decision is a judgment call that is best left
to the medical providers at the FCDC and not to the courts. Finally,
with respect to Plaintiff’s last trip to the FCRH on September 26, 2011,
6
AO 72A
(Rev.8/82)
after he passed out and hit his head, Plaintiff acknowledges that the
Medical Defendants’ description of the events is correct. Because the
Medical Defendants describe an entirely reasonable response to the
situation, Plaintiff has failed to make out a claim of deliberate
indifference based on this incident.
Plaintiff also alleges in his amended complaint that he suffered
from a “constant rash on his body and limbs,” and he describes an
incident when he allegedly had a severe allergic reaction to a Hot Fry,
from which he might have died without the Benadryl that Evans ordered
he not be given, but which Sergeant Burrell gave him anyway. Plaintiff
has provided no evidence to support these allegations, and the medical
records that the Medical Defendants have provided belie these claims.
For example, Plaintiff’s medical requests in June and July 2011
concerned mainly his alleged kidney problems, and when he mentioned
on July 18, 2011 that his “allergies ha[d] gone crazy (headach[e]) sore
throat,” he apparently received allergy medication, about which he
complained on July 23 that it was “not working.” On July 25, 2011, he
submitted a medical request, stating: “Still having allergic problems
having dizzy spells one yesterday again this morning. Having back
pain. It could be my blood pressure.” These medical requests do not
describe serious medical needs, and with respect to his alleged severe
allergic reaction to a Hot Fry, there is no supporting medical evidence
in the record and no statement or testimony from Sergeant Burrell to
support Plaintiff’s claim.
In sum, because the Medical Defendants have properly supported
their motion for summary judgment, Plaintiff must “come forward with
specific facts showing that there is a genuine issue for trial,” i.e., he
“must come forward with significant, probative evidence.”
“[C]onclusory assertions . . . [without] supporting evidence are
insufficient to withstand summary judgment.” Plaintiff has failed to
provide the necessary supporting medical evidence. Moreover, as noted
above, “[a] court need not permit a case to go to a jury . . . when the
inferences that are drawn from the evidence, and upon which the
7
AO 72A
(Rev.8/82)
non-movant relies, are implausible.” Frankly, it is implausible that the
Medical Defendants would provide Plaintiff with the vast array of
prescription medications that they made available to him during the
course of his stay at the FCDC, only to deny him simple over-thecounter medications like Ibuprofen or Benadryl to alleviate Plaintiff’s
allegedly excruciating pain or life-threatening allergic reactions.
(Doc. 85 at 28-33 (citations omitted)).
Not only does this analysis demonstrate that many of the claims that Plaintiff
presented in his amended complaint and in his response to Defendants’ summary
judgment motions are confused, unsupported, vague, and even self-contradictory, but
it also reveals that Plaintiff to this day is still misinformed about the nature of those
claims, which happen to be his own. He now admits, for example, that his “medical
problems might not have been life threatening” (Doc. 87 at 8), although he earlier
claimed that his life was threatened at least once by Defendants’ deliberate
indifference to one of his severe allergic reactions. And, as noted above, he now
asserts that he raised a retaliation claim based on alleged harassment from fellow
inmates, although the record demonstrates that he did not.
Plaintiff has not supported his many vague and even self-contradictory
allegations with specific, plausible facts, and thus he has failed to make a sufficient
showing on the elements of his deliberate indifference claims to allow a rational
8
AO 72A
(Rev.8/82)
factfinder to grant him relief after making in Plaintiff’s favor all reasonable and
plausible inferences from the record evidence. Plaintiff alleges, for example, that an
FCDC guard saved his life by ignoring instructions from one or more of the
Defendants not to give him Benadryl. Although Plaintiff’s counsel deposed each
Defendant, he did not depose or otherwise obtain supporting evidence from the guard
who Plaintiff alleges saved his life. And although Plaintiff asserts that for years he
has suffered from kidney stones, all the while being treated by private doctors for a
whole host of problems, the Court is not aware of any evidence that Plaintiff has
presented to establish that he has ever been treated for kidney stones. It is also
relevant with respect to the plausibility of Plaintiff’s claims that he apparently placed
into the record—regarding his alleged weight loss while at the FCDC—a rather
blatant misrepresentation, which he later acknowledged, albeit indirectly, to be
untrue. (See Doc. 85 at 33).
Plaintiff alleges that he experienced a serious medical need on at least four
occasions, each time requiring his hospitalization, but (a) he cannot get his story
straight on one of those hospital trips (regarding the alleged kidney stone attack);
(b) he was found not to be in acute distress upon arriving at the hospital on each of
his trips; and (c) the video of the prelude to his final hospital trip on September 26,
9
AO 72A
(Rev.8/82)
2011 shows him collapsing rather gently from a standing position onto the floor;
resting comfortably there while chatting with fellow inmates, FCDC guards, and
emergency personnel; and being removed to the hospital in a neck brace and on a
stretcher within approximately fifteen minutes of his fall. As the Magistrate Judge
rightly concluded, Plaintiff has not presented sufficient evidence of a serious medical
need to avoid summary judgment in favor of Defendants on his deliberate
indifference claims. There appears to be no medical evidence to support Plaintiff’s
claims, and there is a plethora of evidence to contradict them.
Therefore, as the Magistrate Judge also rightly concluded, Plaintiff’s claims
regarding the alleged actions or inactions of the Sheriff and the Sheriff’s officers fail.
Also insufficient are Plaintiff’s claims regarding the payment arrangements for his
trips to the hospital or for the medications that he demanded he receive in place of
those offered for free by Defendants, for which the only harm Plaintiff has identified
as a result is that “it really pissed [him] off” and that it strained his family’s budget,
not that it adversely affected any of his medical conditions. (See Doc. 85 at 34-40 &
n.7).
All of Plaintiff’s objections fail. The Court finds no error, plain or otherwise,
in the Magistrate Judge’s Report, OVERRULES Plaintiff’s Objections (Doc. 87),
10
AO 72A
(Rev.8/82)
ADOPTS the Magistrate Judge’s Final Report and Recommendation (Doc. 85) as the
Order and Opinion of this Court, GRANTS Defendants’ Motions for Summary
Judgment (Docs. 63, 64), and DISMISSES this civil action.
IT IS SO ORDERED this 21st day of March, 2014.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
11
AO 72A
(Rev.8/82)
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?