Ali v. Prator et al

Filing 33

REPORT AND RECOMMENDATION re 1 Complaint filed by Malik Muhammad Ali and 26 MOTION for Summary Judgment filed by Cathy Bobbit and Steve Prator: IT IS RECOMMENDED that the Motion to Dismiss be granted and that Plaintiff's complaint be dismissed with prejudice. Objections to R&R due by 4/17/2009. Signed by Magistrate Judge Mark Hornsby on 3/31/09. (crt,Cassanova, M)

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UNITED STATES DISTRICT COURT W E S T ER N DISTRICT OF LOUISIANA S H R E V EP O R T DIVISION M A L I K MUHAMM A D ALI VERSUS S T E V E PRATOR, ET AL C I V I L ACTION NO. 08-cv-0192 J U D G E STAGG M A G I S T R A T E JUDGE HORNSBY R E P O RT AND RECOMMENDATION M alik Muhammad Ali ("Plaintiff") filed this pro se civil rights action against officials a t the Caddo Correctional Center. He alleges that he received inadequate medical treatment f o r a broken pinky finger. Before the court is a Motion for Summary Judgment (Doc. 26) f i l ed by Sheriff Steve Prator and Nurse Kathy Bobbitt. It is recommended, for the reasons t h a t follow, that the motion be granted. P l a i n ti f f alleges that he was housed in a three-man cell, where he slept on a "boat bed" o n the floor. Plaintiff alleges in his complaint, and testified in his deposition, that on a S a t u r d a y around noon he was rising from the bed when he fell backward. Plaintiff says that his hand hit on the floor and the boat, injuring his finger. Plaintiff alleged in his complaint t h a t he showed his hand to two deputies in the housing area. The deputies allegedly called t h e nurses' station but got no answer. Plaintiff does not assert any claims against either of the housing unit deputies mentioned in the complaint. P l a in t i f f does assert a claim against Nurse Bobbitt, who saw Plaintiff on Sunday m o r n i n g when she was making pill call, delivering medications to prisoners. Plaintiff t e s ti f i es that he showed his hand to Nurse Bobbitt, said he thought it was broken, and asked if he could get a finger splint. Plaintiff testifies that Bobbitt told him he did not need a splint b e c a u s e the hand was not broken. Plaintiff concedes that Nurse Bobbitt did give him two B a n d - A i d s for bleeding on his finger. Plaintiff denies that Nurse Bobbitt offered to have his fing er X-rayed. Plaintiff alleges in his complaint that he showed his finger to Nurse Angela (Davis) d u r i n g Monday morning pill call. Davis arranged for Plaintiff to be examined, and Plaintiff w a s then transported to a local hospital. Plaintiff alleges that his finger was found to be bro ken , and a physician put two pins in his finger. The facts recited above come from both Plaintiff's complaint, supplemented (where n o t e d ) with Plaintiff's testimony from the portions of his deposition that are attached to the d e f e n s e motion. Defendants offer affidavit testimony from Nurse Bobbitt, as well as c e r t if i e d copies of medical records from the jail. Defendants are entitled to summary j u d g m e n t only if there is no genuine issue of material fact. To the extent that there are conf licts in the competent summary judgment evidence, such as the affidavits, Plaintiff's v e r s io n of the events must control. However, if there are conflicts between the mere a l l eg a t i o n s in the complaint and competent summary judgment evidence, the evidence c o n t r o l s . See e.g. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986); Solo Serv Corp. v. W e s t o w n e Associates, 929 F.2d 160, 164 (5th Cir. 1991). Page 2 of 7 N u r s e Bobbitt agrees with Plaintiff that she saw him on Sunday morning when she w a s passing out medicines. Nurse Bobbitt explains that this process occurs early in the m o r n i n g around 4:00 a.m., and the nurse with that duty goes to all of the pods and areas of t h e jail (which houses about 1,000 inmates). Inmates are informed, and the procedure is set fort h in the inmate handbook, that it is not appropriate to seek non-emergency medical t r e a tm e n t from the nurse who is dispensing medication. An inmate is to make a request for n o n - e m e r g e n c y medical treatment by written "kite" or by contacting a deputy. An inmate can a l s o declare an emergency condition in accordance with the procedures. Nurse Bobbitt e x p l a in s that if inmates make oral request for treatment from the nurse who is dispensing m e d i c i n e , the process of administering medicine would be difficult because the nurse would h a v e to stop and document the information provided by each requesting inmate. The jail's p o l i c y is intended to ensure that medical requests are adequately scheduled and documented. N u r s e Bobbitt testifies that Plaintiff did show her his finger, which she says had a s m a l l cut. Bobbitt did not believe that the finger was broken, and she gave Plaintiff BandA i d s . She returned to the medical unit after dispensing medication, but she did not receive a call from deputies regarding Plaintiff that day. Bobbitt adds that if she had believed P l a i n ti f f had a broken finger, even though Plaintiff showed her his finger while she was busy d i s p e n s in g medication, she would have ensured that the complaint was addressed by instr uctin g a deputy to send Plaintiff to the medical unit. Page 3 of 7 T h e next day, Monday, Plaintiff showed his finger to Nurse Davis, who believed the f i n g e r might be broken, and she told deputies to send Plaintiff to medical. Plaintiff was e x a m i n e d , his condition was documented, and he was taken to a local hospital for treatment. A f t e r w a r d , Nurse Bobbitt made a "late entry" in the medical records regarding her October 7 interaction with Plaintiff. She recounted seeing the small laceration and giving Band-Aids. S h e wrote that she saw no bruising or swelling, and Plaintiff was able to flex his finger. She wro te that Plaintiff did ask for a splint, and Bobbitt says that she told Plaintiff the finger wo uld have to be X-rayed to justify a splint. She wrote that Plaintiff "stated it didn't need t o be X-rayed it wasn't broken or he wouldn't be able to move it." For a convicted prisoner or pretrial detainee to prevail on a claim that his medical care ( o r lack of care) violated the Constitution, he must prove that prison or jail officials were "delib erately indifferent" to his "serious medical needs." Estelle v. Gamble, 97 S.Ct. 285, 2 9 1 (1976); Hare v. City of Corinth, 74 F.3d 633, 643 (5th Cir. 1996) (en banc). Deliberate i n d i f fe r e n c e encompasses only unnecessary and wanton infliction of pain repugnant to the c o n s c i e n ce of mankind. Estelle, 97 S.Ct. at 291-92. Disagreement with the diagnostic m e a s u r e s or methods of treatment afforded by prison officials does not state a constitutional claim for indifference to medical needs. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 199 7). In December 2008, Plaintiff filed a notice of change of address from Forcht Wade to W i n n Correctional Center (Doc. 25). Defendants filed their motion for summary judgment Page 4 of 7 o n e week later. There was some confusion for a while regarding Plaintiff' receipt of the m o t i o n and the instructions regarding the deadline to oppose the motion. Those issues have n o w been resolved, and Plaintiff was afforded a generous opportunity to oppose the motion. S e e Doc.31. Plaintiff has filed an unsworn memorandum (Doc. 32) that repeats his a l l e g a t io n s , but unsworn memoranda are not competent summary judgment evidence. Larry v. White, 929 F.2d 206, 211 n. 12 (5th Cir. 1991). T h e facts set forth in the affidavits and evidence offered by movants depict Nurse Bo bbitt as looking at Plaintiff's hand, despite jail policy that she not administer medical care d u r i n g pill call. Bobbitt decided from her examination that the hand was not broken. The p i n k y finger actually was broken, and when that was discovered soon afterward, Plaintiff r e c e iv e d a quick trip to the hospital for care by a physician. D e l i b e r a t e indifference is an extremely high standard to meet, and the Fifth Circuit h a s made clear that a mere "incorrect diagnosis by prison medical personnel does not suffice to state a claim for deliberate indifference." Domino v. Texas Dept. of Criminal Justice, 239 F . 3 d 752, 756 (5th Cir. 2001), citing Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.1985). Rather, the plaintiff must show that the officials "refused to treat him, ignored his c o m p l a i n t s , intentionally treated him incorrectly, or engaged in any similar conduct that w o u l d clearly evince a wanton disregard for any serious medical needs." Id. "[T]he question whether an X-ray or additional diagnostic techniques or forms of t r e a tm e n t is indicated is a classic example of a matter for medical judgment." Estelle, 97 Page 5 of 7 S.C t. at 293. "A medical decision not to order an X-ray, or like measures, does not represent c r u e l and unusual punishment." Id. There is no evidence to show that Nurse Bobbitt's d e c i s io n not to order an X-Ray or other diagnostic measures was other than a reasoned m e d i c a l decision that hindsight tells us was not the best decision. That is woefully i n s u f f ic i e n t to create a genuine issue of material fact and require a trial to resolve the delibe rate indifference claim against Bobbitt. There is no allegation that Sheriff Prator had a n y personal involvement in Plaintiff's medical care or did or did not do anything that could subje ct him to liability for the Section 1983 medical claims asserted in the complaint. A cc or di ng ly; IT RECOMM E N D E D that the M o t i o n for Summary Judgment (Doc. 26) filed by S h e r i f f Steve Prator and Nurse Kathy Bobbitt be granted and that Plaintiff's complaint be dism issed with prejudice. Objections U n d e r the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties a g g r i e v ed by this recommendation have ten (10) business days from service of this report and r e c o m m e n d a t i o n to file specific, written objections with the Clerk of Court, unless an e x t e n s io n of time is granted under Fed. R. Civ. P. 6(b). A party may respond to another party's objections within ten (10) days after being served with a copy thereof. Counsel are d i r e c te d to furnish a courtesy copy of any objections or responses to the District Judge at the t i m e of filing. Page 6 of 7 A party's failure to file written objections to the proposed findings, conclusions and r e c o m m e n d a t i o n set forth above, within 10 days after being served with a copy, shall bar that pa rty, except upon grounds of plain error, from attacking on appeal the unobjected-to p r o p o s e d factual findings and legal conclusions accepted by the district court. See Douglass v . U.S.A.A., 79 F.3d 1415 (5th Cir. 1996) (en banc). THUS DONE AND SIGNED in Shreveport, Louisiana, this 31st day of March, 2009. Page 7 of 7

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