Tenerelli v. United States of America et al
Filing
61
ORDER granting 36 Motion for Summary Judgment. (Written Opinion) Signed by Senior Judge David S. Doty on 9/30/2020. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 18-629(DSD/DTS)
Anthony Joseph Tenerelli,
Plainitiff,
v.
ORDER
United States of America; and
Dr. Lon Krieg,
Defendants.
Vincent J. Moccio, Esq. and Bennerotte & Associates, P.A.,
3085 Justice Way, Suite 200, Eagan, MN 55121 and Brandon
Thompson, Esq. and Ciresi Conlin LLP, 225 South 6th Street,
Suite 4600, Minneapolis, MN 55402, counsel for plaintiff.
Friedrich A. P. Siekert, United States Attorney’s Office, 300
South 4th Street, Suite 600, Minneapolis, MN 55415, counsel
for defendants.
This matter is before the court upon defendant Dr. Lon Krieg’s
motion for summary judgment.
After a review of the file, record,
and proceedings herein, and for the following reasons, the motion
is granted.
BACKGROUND
Anthony Joseph Tenerelli is a federal inmate who has been
housed at the Federal Medical Center (FMC) Rochester since 2012.
Kolar Decl. Ex. A, at 1.
Krieg is a physician at FMC Rochester
and Tenerelli was his patient from 2012 through the time period
relevant here.
See id. at 2.
After complaining of back pain and
other
symptoms
for
months,
in
February
2016,
Tenerelli
was
diagnosed with and began treatment for multiple myeloma, a type of
cancer that affects the bone marrow and can cause tumors.
generally id.
See
Tenerelli asserts that Krieg violated his Eighth
Amendment right because, in the months leading up to the diagnosis,
Krieg was deliberately indifferent to the signs and symptoms that
Tenerelli argues made clear that he was suffering from a serious
medical condition. 1
See generally Compl.
Krieg disputes that he
was deliberately indifferent to Tenerelli’s serious medical need
and contends that he is entitled to summary judgment based on
qualified immunity.
See generally Def.’s Mem. Supp. Summ. J., ECF
No. 54.
I.
Relevant Medical Concepts
Back pain is a common ailment, the cause of which can be
difficult to diagnose.
Flynn Decl. ¶ 4. 2
Patients suffering from
back pain most often have a benign condition such as degenerative
disc disease.
See Schorer Aff. ¶ 41; Taylor Aff. ¶ 56.
Although
1
Tenerelli has brought two claims in this suit: one against
the United States of America for liability under the Federal Tort
Claims Act (FTCA), and one against Krieg for liability under the
Eighth Amendment. Only the Eighth Amendment claim against Krieg
is at issue here; the parties do not dispute that Krieg is not
liable under the FTCA.
2
Paragraphs cited from the declaration of Dr. Flynn are in
reference to the section of the declaration titled “Relevant
Medical Concepts.”
2
degenerative conditions are not as common in the thoracic spine as
they are in the cervical or lumbar spine, 3 they are not unheard
of, and thoracic spine pain is found more frequently in patients
with a history of lumbar and cervical spine problems.
Decl. ¶ 2; 4 Schorer Aff. ¶ 40; Taylor Aff. ¶ 55.
See Schoon
In addition to
degenerative conditions, there are a number of conditions that
doctors should consider when diagnosing the cause of back pain,
including — but not limited to — vertebral fractures, nerve root
impingement or spinal cord compression caused by things such as a
herniated disc or tumor, and cancer.
See Schorer Aff. ¶¶ 41–43;
Flynn
should
Decl.
¶ 3.
Although
cancer
be
a
part
of
the
differential diagnosis when trying to find the cause of back pain, 5
“myeloma is rarely the cause” of such pain.
Hellerstein Aff. 3.
Patients who complain of chest pain most often suffer from
conditions relating to the structures or organs found in the chest.
Flynn Decl. ¶ 2.
Chest pain can be caused by, among other things,
heart disease; pericarditis, an inflammation of the sac around the
3
A patient’s cervical spine is in the neck, the thoracic
spine extends from the base of the neck to roughly the middle of
the back, and the lumbar spine extends from the middle of the back
to the sacrum. See Schorer Aff. ¶ 39.
4
Paragraphs cited from the declaration of Dr. Schoon are in
reference to the section of the declaration titled “Relevant
Medical Concepts.”
5
A differential diagnosis is the process by which a physician
considers various conditions that may be causing a patient’s
symptoms. See, e.g., Krieg Dep. 39:17–19.
3
heart; pleuritis, an inflammation of the lining between the lungs
and rib cage; esophagitis, an inflammation of the esophagus;
gastroesophageal
reflux
disease
(GERD);
costochondritis,
an
inflammation of the cartilage connecting the ribs to the sternum;
and structural issues with the sternum or ribs, including those
issues that can result from trauma.
Id.; Schoon Decl. ¶ 5.
Multiple myeloma (MM) is a cancer of the plasma cells that
proliferates in the bone marrow and causes the bone to weaken.
Schorer Aff. ¶ 44.
MM sometimes causes tumors in the spine.
Id.
Patients with MM can present with myriad symptoms, including
anemia, bone pain, fatigue, generalized weakness, weight loss,
neurologic symptoms, hypercalcemia, and elevated creatinine or
serum protein.
II.
Id.; Flynn Decl. ¶ 6.
Tenerelli’s Relevant Medical History
Tenerelli was diagnosed with antisocial personality disorder
(APD) in 2009.
Kolar Decl. Ex. A, at 5.
Tenerelli’s APD presented
as a feeling that the medical health care system had let him down
and resulted in a tendency to blame others for his health problems.
Id.
At a psychiatric evaluation in 2012, the provider noted that
Tenerelli had delusions regarding physical ailments that would
make “sorting out medical issues more difficult.”
Id. at 5–6.
Beyond mere evaluation, Tenerelli refused psychiatric treatment.
Id.
4
Tenerelli’s medical records indicate that he has suffered
from pain in his neck and lower back for years.
See id. at 1.
Tenerelli normally attributed that pain to a 1984 car accident.
See, e.g., id. at 1, 2, 4, 5.
At least as far back as 2012,
Tenerelli complained intermittently of numbness and tingling in
his legs.
Id. at 2–4.
Tenerelli also noted difficulty sleeping
due to his back pain, sometimes only getting two to three hours of
sleep a night.
See, e.g., id. at 4.
At times, he rated his neck
and low back pain as a ten out of ten on the pain scale or stated
that his pain was so bad that he could not walk.
Id. at 6, 8.
In September 2012, Tenerelli began complaining of a chronic
cough that caused chest pain.
Id. at 6.
Along with his cough,
Tenerelli reported a “chronic vise-grip sensation in the bone and
neck pain,” as well as fever, chills, and night sweats.
Id.
At
a September 2012 chronic care encounter, Krieg noted that Tenerelli
was observed in the waiting room without exhibiting a cough.
Id.
On entering the exam room, Tenerelli began coughing frequently.
Id.
Tenerelli’s complaints regarding his chronic cough continued
off and on from 2012 through early 2015.
Id. at 6–10.
III. Tenerelli’s Medical Treatment May 2015 – January 2016
On May 11, 2015, Tenerelli visited Krieg for a chronic care
encounter and complained of a persistent cough, which he stated
had been ongoing for three years, and pain in his sternum that he
5
stated had started three weeks earlier. 6
4. 7
Moccio Decl. Ex. 2, at
Tenerelli also complained of shortness of breath, night
sweats, and headaches, and stated that it felt like something was
stuck in his throat.
Id.
Chest x-rays performed in March and
April of 2015 did not reveal a cause for Tenerelli’s cough, so
Krieg prescribed ranitidine to determine whether nighttime reflux
was the cause.
Id. at 5.
On May 15, Tenerelli presented with
pain in his chest and back that he rated a ten out of ten on the
pain
scale.
Id.
at
7.
The
doctor
prescribed
lorazepam, and oxycodone to help with the pain.
prednisone,
ECF No. 52-4, at
5. 8
Although Tenerelli reported on May 18 that his cough had
dissipated and his pain had improved, by May 21 the pain in his
6
Numerous different providers at FMC Rochester saw and
evaluated Tenerelli throughout the period in question.
As his
primary treating physician, Krieg was responsible for reviewing
the notes and assessments of these other providers, and for
coordinating Tenerelli’s overall care.
7
Exhibit 2 of the Moccio declaration contains Tenerelli’s
Bureau of Prisons (BOP) medical records, which include three
different page numbering systems: the page number assigned through
CM/ECF, the Bates number, and the exhibit page number. For ease
of reference and clarity, the court cites to the exhibit page
number.
8
ECF No. 52 is the Kolar declaration, which contains one
exhibit summarizing Tenerelli’s BOP medical records — attachment
1 — and eighty-five separate parts consisting of Tenerelli’s BOP
medical records — attachments 2–86. For example, ECF No. 52-4 is
part 3 of the Kolar declaration.
For ease of reference and
clarity, the court will cite to the document and page numbers
assigned in ECF.
6
chest and back had returned at an eight out of ten on the pain
scale.
ECF Nos. 52-5, at 1; 52-6, at 1.
The provider on call
ordered another x-ray and renewed the prescriptions for lorazepam
and oxycodone.
ECF No. 52-6, at 3.
Tenerelli’s pain continued
throughout May, so on May 28 a provider ordered an H. pylori test
to determine whether GERD was causing the pain.
ECF No. 52-9.
On
May 29, Tenerelli reported that his pain had improved and that he
felt the prednisone had helped.
ECF No. 52-10, at 1.
He further
reported that the pain in his chest was “pretty much gone,” and
that the only pain remaining was in his back.
Id.
Tenerelli was seen four times in June of 2015, and continued
to complain of pain in his chest and back that was, at times,
relieved by ibuprofen.
See ECF Nos. 52-11, 52-12, 52-13, 52-14.
At a physical therapy appointment on June 16, Tenerelli noted his
chest pain and attributed it to his chronic cough.
11, at 1.
ECF No. 52-
The provider included a note that he had observed
Tenerelli over the past week and had not noted any “pain behaviors,
altered
movement,
evaluation
on
or
June
facial
18,
the
grimacing.”
provider
Id.
noted
at
his
2.
belief
At
an
that
Tenerelli’s pain likely was not related to gastrointestinal (GI)
issues but rather costochondritis, which can last six to twelve
months.
ECF No. 52-12, at 2.
The provider also noted that the
symptoms could also be caused by osteomyelitis, an infection of
7
the bone, which the provider would consider if the pain persisted.
Id.
Tenerelli’s pain continued into July.
On July 6, Tenerelli
stated that his chest pain was a “7+” out of ten on the pain scale.
ECF No. 52-15, at 1.
The provider noted that a GI telemedicine
consult had been approved pending scheduling.
Id.
The provider
also ordered an erythrocyte sedimentation rate (ESR) test and a
test to detect blood in Tenerelli’s stool.
“is
a
broad
but
non-specific
Id. at 3.
measurement
for
An ESR test
inflammation,
infection, and a variety of conditions that produce abnormal
proteins in the blood such as certain cancers and auto-immune
diseases like rheumatoid arthritis and lupus.”
9.
Hellerstein Aff.
A normal ESR is between zero and fifteen millimeters per hour;
Tenerelli’s came back at a fifty-eight.
See Krieg Dep. 88:19; ECF
No. 52-30, at 3–4.
On July 9, Tenerelli had a gastroenterology consult at the
Mayo Clinic.
ECF No. 52-16.
The consulting physician’s initial
impression was that Tenerelli’s pain was caused by GERD, and the
provider ordered an endoscopy “to determine whether [Tenerelli
had] esophagitis or a stricture.”
Id. at 1.
On August 26, an endoscopy revealed a two-centimeter hiatal
hernia and LA Grade A esophagitis.
ECF No. 52-18.
At a sick call
encounter on August 31, Tenerelli stated that his pain was between
an eight and a nine.
ECF No. 52-19.
8
Although the provider noted
that Tenerelli did not appear to be in pain, he did appear
distressed
palpation.
and
the
provider
Id. at 2.
ECF No. 52-20.
noted
that
pain
was
detected
on
Krieg evaluated Tenerelli the next day.
Tenerelli reported that certain foods seemed to
exacerbate his pain; Krieg adjusted his medication to help with
the diagnosed esophagitis.
ECF No. 52-20, at 3.
At a physical
therapy appointment on September 3, Tenerelli stated that his pain
was typically between a six and an eight during the day, and
between nine and ten at night.
ECF No. 52-21, at 1.
The provider
stated that Tenerelli had complied with his physical therapy
routine, and that she did not think the cause of his pain was
musculoskeletal in nature.
Id.
She advised Tenerelli that his
pain was likely due to his diagnosed esophagitis.
Id. at 2.
Tenerelli continued to report his pain throughout September.
At an evaluation encounter on September 5, Tenerelli noted his
pain but stated that he did not have any shortness of breath,
nausea, diaphoresis, or pain in his arms.
ECF No. 52-22, at 1.
The provider noted that Tenerelli’s symptoms remained consistent
with his diagnosed esophagitis.
Id.
At a sick call encounter on
September 8, Tenerelli reported that his pain was a nine, however
the provider noted that Tenerelli appeared well, and did not appear
agitated, distressed, or to be in pain.
ECF No. 52-23, at 1, 2.
In mid-September, Tenerelli was twice given a GI cocktail that
included maalox and lidocaine, which helped relieve his pain both
9
times.
Tenerelli
See ECF Nos. 52-24, 52-25, 52-26.
on
September
15
at
a
chronic
After evaluating
care
encounter
and
discussing his pain and medications, Krieg noted that his own
“objective observations and findings continue to be significantly
inconsistent with [Tenerelli’s] subjective complaints.”
52-26, at 3.
ECF No.
On September 17, Krieg referred Tenerelli for
psychological
assessment
because
he
felt
that
Tenerelli’s
“behavioral health issues are obviously impairing his ability to
deal with some of his medical issues.”
ECF No. 52-27, at 1.
On September 21, Tenerelli reported to sick call with “severe
back and chest pain” that he rated as a ten on the pain scale.
ECF No. 52-29, at 1.
Tenerelli also reported not being able to
move his left arm well.
Id.
The provider noted on exam that his
left arm was, at times, weaker than his right arm, but that this
finding was inconsistent.
Id. at 3.
When Tenerelli returned to
sick call on September 23 with “debilitating” chest and back pain,
the provider noted that he did not appear to be in pain.
52-30, at 1, 3.
The provider ordered x-rays of Tenerelli’s back
and neck as well as numerous labs, including an ESR test.
4.
The
x-ray
hypertrophic
ECF No.
taken
changes
in
on
September
Tenerelli’s
throughout his thoracic spine.
25
revealed
lower
Id. at
degenerative
cervical
spine
and
ECF No. 52-31.
Tenerelli was seen by a nurse on September 25 and 27, and
reported pain in his chest and back and weakness in his left arm
10
both times.
ECF Nos. 52-32, 52-34.
At the first encounter, the
nurse noted that although Tenerelli reported not being able to
lift his left arm past his shoulder, she had seen him do just that
minutes earlier.
ECF No. 52-32, at 2.
Tenerelli also reported
that his whole body felt numb, but then stated that was normal for
him.
Id.
Despite his assertion that total-body numbness was
normal for him, at the second encounter Tenerelli reported a “new
development” that his left side was completely numb.
34, at 1.
ECF No. 52-
The provider noted that Tenerelli was able to move his
left side normally and that his gait was steady.
Id. at 2.
By September 28, Tenerelli’s lab results had come back with
an ESR of eighty-eight.
ECF No. 52-35, at 2.
Tenerelli was seen
that day at sick call and reported that his back and chest pain
was at a level ten and that he was still numb on his left side.
Id. at 1.
The provider noted that Tenerelli did not appear to be
in pain, that he sat with a relaxed posture, that he did not
demonstrate any guarding or rigidity, and that he was able to arise
from his chair without difficulty.
Id. at 2.
The provider advised
Tenerelli that he thought polymyalgia rheumatica (PMR) may be the
cause of his pain, and he ordered a prescription for prednisone to
help with Tenerelli’s back pain and new labs to test for rheumatic
diseases.
Id. at 3.
Tenerelli returned to sick call on October 5 reporting that
his pain was between an eight and nine and that the numbness on
11
his left side persisted.
ECF No. 52-36.
The provider observed
that Tenerelli seemed relaxed and did not appear to be in pain
even when demonstrating movement in areas in which he complained
of pain.
Id. at 2.
The provider requested a rheumatology consult
at the Mayo Clinic based on his belief that PMR was causing
Tenerelli’s pain.
Id. at 3.
On October 13, a new ESR test was
ordered because of Tenerelli’s previously elevated results.
No. 52-37.
At a sick call encounter on October 19, Tenerelli noted
that the prednisone was helping to decrease his pain.
38.
ECF
ECF No. 52-
The provider noted that his ESR was down to 24 and that he
had a rheumatology appointment pending in December.
Id.
On November 9, Tenerelli presented for a follow up on his
chronic pain and reported that his pain was improved and that he
could move with much less pain.
ECF No. 52-41.
The provider noted
that Tenerelli did not appear to be in any acute pain at that time.
Id. at 2.
Tenerelli’s prescription for prednisone was continued
through November.
See id.; ECF No. 52-42.
Tenerelli was seen at the Mayo Clinic for a rheumatology
consult on December 3.
ECF No. 52-44.
After an exam and a review
of Tenerelli’s history, the provider stated that he was not sure
that Tenerelli’s pain was related to his elevated ESR, nor did he
believe the pain was caused by PMR or another inflammatory spine
disease.
Id. at 2.
The provider believed there was a mechanical
component to Tenerelli’s pain and recommended a radionuclide bone
12
scan to determine whether there was evidence of an “osteoid,
osteoma, or other lesion of concern.”
Id. at 3.
He noted that a
serum protein electrophoresis (SPE) test could also be considered.
Id.
By December 8, providers at FMC Rochester had requested the
recommended radionuclide bone scan and were awaiting scheduling of
the procedure. 9
Tenerelli
ECF No. 52-45, at 1.
continued
throughout December.
to
complain
of
pain
and
numbness
At an encounter on December 8, the provider
noted that Tenerelli did not appear to be in pain, but advised him
to “return immediately if [his] condition worsens.”
Id. at 1, 2.
On December 15, Tenerelli reported pain in his chest and back at
a level eight and complained of night sweats that he stated he had
had for years.
ECF No. 52-46, at 1.
The provider noted that
Tenerelli did not appear in pain, but that he detected pain on
palpation of Tenerelli’s chest and back.
Id. at 4.
At a visit
with Krieg on December 22, Tenerelli reported that his pain and
numbness were getting worse.
ECF No. 52-48.
Tenerelli moved
slowly and winced “as though to portray severe pain,” but then
abandoned those behaviors when describing his symptoms.
9
Id. at 4.
When providers at FMC Rochester request a consultation or
testing that can only be done at the Mayo Clinic, it must first be
approved by the clinical director of the prison. Krieg Dep. 15:8–
15.
Once the request is approved, scheduling the visit often
depends on myriad factors including lockdowns or closures at FMC
Rochester, the number of outside visits already scheduled on a
particular day, and the staffing schedules of correctional
officers needed to accompany inmates. Id. at 19:6–18.
13
An exam revealed normal strength in Tenerelli’s arms and legs, and
Krieg noted that Tenerelli appeared well and not in pain.
2, 3.
Id. at
Krieg again stated that Tenerelli’s subjective complaints
were “significantly out of proportion” to objective findings and
observations, and that Tenerelli’s response to “even very light
touch on the upper back and neck [was] grossly excessive and
inconsistent with normal patient behavior.”
call
encounters
on
December
28
and
30,
providers
Tenerelli had weakness and a shuffling gait.
51.
Id. at 4.
At sick
noted
that
ECF Nos. 52-50, 52-
Despite reporting numbness, Tenerelli could feel palpations
during the exam on December 30.
ECF No. 52-51, at 3.
On January 4, 2016, Tenerelli reported to sick call with pain
between an eight and nine, but the provider observed that his pain
appeared “out of proportion to his body habitus and demeanor.”
ECF No. 52-52.
Tenerelli
that
At a visit on January 6, Krieg explained to
he
had
faxed
copies
of
Tenerelli’s
recently
completed SPE and urine analysis tests to a doctor at the Mayo
Clinic for review.
ECF No. 52-53, at 4.
On January 8, Krieg
entered an administrative note stating that Tenerelli’s ESR was
elevated again at sixty-three. ECF No. 52-54. Krieg then followed
up with the doctor at the Mayo Clinic and asked for review of the
previously
provided
results
and
informed
him
of
Tenerelli’s
elevated ESR.
Id.
pending.
The Mayo Clinic doctor responded to Krieg on January
Id.
At this point in time, the bone scan was still
14
13, and recommended that Tenerelli be referred to a hematologist
to investigate the possibility of myeloma.
ECF No. 52-56.
Krieg
entered a request for a hematology consult and ordered a bone
survey to be performed.
Id.
The results of the bone survey,
performed that same day, showed “no discrete lytic lesions or
pathologic fractures ... to suggest [MM].”
ECF No. 52-57.
On January 19, Tenerelli reported that the numbness had spread
to his stomach, pelvis, and calves.
ECF No. 52-59, at 1.
His
pain was at a level eight, and he reported needing to strain while
urinating.
Id.
Tenerelli was told of the results from his bone
survey and was advised that his bone scan and hematology consult
were upcoming.
Id. at 2.
Tenerelli’s bone scan took place on
January 21, and he had his consult with a hematologist at the Mayo
clinic on January 22.
ECF Nos. 52-60, 52-62.
The hematologist
spoke with Tenerelli about the possibility of MM, but noted that
it is extremely rare.
ECF No. 52-63.
The hematologist requested
additional expedited labs, which Krieg promptly ordered.
52-62.
ECF No.
Krieg also re-sent lab results that the hematologist
requested.
Id.
Tenerelli’s
January 24.
condition
deteriorated
rapidly
beginning
on
On that day, Tenerelli complained of numbness from
his stomach down.
ECF No. 52-64.
On January 25, Tenerelli
presented to sick call and complained of continued numbness and
difficulty walking.
ECF No. 52-65.
15
The provider noted that
Tenerelli appeared distressed and in pain, and observed that he
was now using a walker.
Id.
Tenerelli requested an MRI, but Krieg
declined to order one as it had not been recommended by the
consulting physicians at the Mayo Clinic.
did
order
a
follow-up
consultation
ECF No. 52-66.
with
the
hematologist to discuss a bone marrow biopsy.
Id.
Mayo
Krieg
Clinic
On January 26,
Tenerelli presented to sick call with continued complaints of
numbness from his chest to his feet and reported that he was no
longer able to push or strain while urinating.
1.
ECF No. 52-67, at
An exam revealed slight weakness in Tenerelli’s left arm and
right leg, as well as weakness in his gait.
Id. at 4.
Tenerelli
could not differentiate between sharp and dull touch on his legs
and abdomen, and his ESR was elevated at ninety-six.
Id.
The
provider decided to admit Tenerelli to a medical floor for further
evaluation.
Id.
Once on the medical floor, the provider performed a full
history and physical workup on Tenerelli.
ECF No. 52-69.
On
completion, the provider noted his concern regarding Tenerelli’s
condition and recommended an MRI and potential neurology consult.
Id. at 11.
Tenerelli was taken to the Mayo Clinic emergency
department on January 28 where an MRI and CT biopsy were performed.
ECF Nos. 52-74, 52-75. These tests revealed a “severe pathological
compression fracture of the T3 vertebra with a large amount of
epidural and paraspinal tumor.”
16
ECF No. 52-74.
Based on these
results and the negative bone scan performed on January 22, the
provider stated that MM was the likely cause.
transferred
to
the
radiology/oncology
Id.
department
Tenerelli was
at
the
Mayo
Clinic, and providers made an official diagnosis of MM on February
7, 2016.
ECF No. 52-76, at 1; ECF No. 52-78, at 1.
began treatment for MM shortly thereafter.
Tenerelli
See ECF No. 52-81.
Tenerelli filed his complaint against Krieg and the United
States on March 6, 2018.
The parties proceeded through discovery,
and on November 25, 2019, Krieg moved for summary judgment on
Tenerelli’s Eighth Amendment claim.
DISCUSSION
I.
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed. R. Civ.
P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material only when its resolution affects the outcome of
the case.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A dispute is genuine if the evidence is such that it could
cause a reasonable jury to return a verdict for either party.
See
id. at 252.
On a motion for summary judgment, the court views all evidence
and inferences in a light most favorable to the nonmoving party.
17
Id. at 255.
The nonmoving party, however, may not rest upon mere
denials or allegations in the pleadings but must set forth specific
facts sufficient to raise a genuine issue for trial.
U.S. at 324.
Celotex, 477
A party asserting that a genuine dispute exists - or
cannot exist - about a material fact must cite “particular parts
of materials in the record.”
Fed. R. Civ. P. 56(c)(1)(A).
If a
plaintiff cannot support each essential element of a claim, the
court must grant summary judgment because a complete failure of
proof regarding an essential element necessarily renders all other
facts immaterial.
II.
Celotex, 477 U.S. at 322-23.
Legal Liability Standards
A.
Bivens Liability
Tenerelli’s claim against Krieg is brought pursuant to Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388 (1971), which created an implied cause of action against
federal employees who violate a person’s constitutional rights.
Federal officials may, however, be protected from Bivens liability
under the doctrine of qualified immunity.
An official will be
immune from Bivens liability unless (1) the facts alleged by the
plaintiff show the official’s conduct violated a constitutional
right of the plaintiff and (2) that right was clearly established
such that a reasonable official would have known that his actions
were unlawful.
Saucier v. Katz, 533 U.S. 194, 201 (2001).
The
“dispositive inquiry in determining whether a right is clearly
18
established
is
whether
it
would
be
clear
to
a
reasonable
[defendant] that his conduct was unlawful in the situation he
confronted.”
Id. at 202.
The facts must be considered in the
light most favorable to the plaintiff.
B.
Id.
Eighth Amendment Deliberate Indifference
The alleged constitutional violation in this case is that of
Tenerelli’s Eighth Amendment right to receive adequate medical
care while incarcerated.
(1976).
to
a
See Estelle v. Gamble, 239 U.S. 97, 106
“It is well established that ‘[d]eliberate indifference
prisoner's
serious
medical
needs
is
cruel
punishment in violation of the Eighth Amendment.’”
and
unusual
Langford v.
Norris, 614 F.3d 445, 459 (8th Cir. 2010) (quoting Gordon ex rel.
Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)).
The standard
to establish a violation of the Eighth Amendment requires both an
objective and subjective analysis.
856, 861–62 (8th Cir. 2015).
Letterman v. Does, 789 F.3d
To succeed on his Eighth Amendment
claim, Tenerelli must show that: (1) he suffered an objectively
serious
medical
need,
and
(2)
Krieg
deliberately disregarded that need.
actually
knew
of
but
Farmer v. Brennan, 511 U.S.
825, 834 (1994).
Under the objective analysis, “a plaintiff must show there
was
a
substantial
risk
of
serious
harm
to
the
victim
....”
Letterman, 789 F.3d at 861 (citing Gordon, 789 F.3d at 862).
Krieg
does not dispute that Tenerelli suffered from a serious medical
19
need and that MM presents a substantial risk of serious harm to a
patient.
Next, under the subjective analysis, a plaintiff must show
that the defendant was deliberately indifferent to that risk of
harm.
Letterman, 789 F.3d at 862.
To establish deliberate
indifference, a plaintiff must show that the defendant “recognized
that a substantial risk of harm existed and knew that their conduct
was inappropriate in light of that risk.”
Id.
A plaintiff may
not rely on evidence that shows mere negligence or gross negligence
on the part of the defendant.
(8th Cir. 2016).
Barton v. Taber, 820 F.3d 958, 965
Rather, the subjective component “requires a
mental state akin to criminal recklessness.”
Id.
The requisite
“mental state can be inferred, however, from facts that demonstrate
that a medical need was obvious and that the [defendant’s] response
was obviously inadequate.”
Id. (citation omitted).
Finally, although the plaintiff has a right to adequate
medical care, he “ha[s] no right to receive a particular or
requested course of treatment.”
Barr v. Pearson, 909 F.3d 919,
921 (8th Cir. 2018) (quotation omitted).
Therefore, a “mere
difference of opinion over matters of expert medical judgment or
a course of medical treatment fails to rise to the level of a
constitutional violation.”
Id. at 921–22 (quotation omitted).
20
III. Tenerelli’s Claim Fails on Deliberate Indifference
Tenerelli does not appear to dispute that Krieg did not have
actual knowledge of his serious medical condition, i.e. that he
had MM, leading up to the eventual diagnosis in February 2016.
Instead, Tenerelli argues that Krieg should have known, based on
the signs and symptoms exhibited, that he was suffering from a
serious medical condition.
Tenerelli asserts that Krieg should
have done more — including ordering an MRI, or a CT scan, or a
consult with a neurologist — to determine the cause of his pain,
and that by failing to do so he exhibited deliberate indifference
to Tenerelli’s serious medical needs.
Although Krieg concedes that “the symptoms Tenerelli was
complaining about in retrospect [were] all 100 percent consistent
with
[a]
spinal
tumor,”
see
Krieg
Dep.
111:10–14,
such
retrospective recognition of the problem does not rise to the level
of criminal recklessness required to establish an Eighth Amendment
violation.
See Gregoire v. Class, 236 F.3d 413, 419 (8th Cir.
2000); Logan v. Clarke, 119 F.3d 647, 650 (8th Cir. 1997).
Indeed,
both Tenerelli’s and Krieg’s experts agree that chest and back
pain can have myriad causes.
Krieg and the medical team at FMC Rochester made multiple
attempts to diagnose the cause of Tenerelli’s pain.
They ordered
x-rays, testing, and consultations with specialists at the Mayo
Clinic.
When Mayo Clinic specialists recommended further testing,
21
Krieg complied with those recommendations.
Multiple diagnoses
were ultimately made that could explain the cause of Tenerelli’s
pain,
including
GERD,
costochondritis,
degenerative back issues.
esophagitis,
and
Treatments for these various ailments
alleviated the pain at times, and providers attempted to adjust
treatment when needed.
Providers also considered other conditions
that could cause Tenerelli’s problems, such as PMR, and sought
consultations to rule that out.
Tenerelli also cannot show deliberate indifference based on
Krieg’s
failure
to
act
more
quickly
when
Tenerelli
started
exhibiting neurological symptoms such as tingling, numbness, and
weakness in September.
This is because these were not all new
symptoms for Tenerelli. He had complained of tingling and numbness
as far back as 2012, and in September 2015 he stated that the
feeling
multiple
of
full-body
providers
numbness
indicated
was
that
normal
an
for
objective
him.
Further,
evaluation
of
Tenerelli’s symptoms did not always match with his subjective
complaints.
Although Tenerelli reported weakness and numbness,
objective testing of these symptoms did not always support his
subjective complains.
Given these inconsistencies, the court
cannot conclude that Krieg exhibited a level of indifference akin
to criminal recklessness.
As a result, Tenerelli cannot establish
a violation of his Eighth Amendment right to adequate medical care
and Krieg is entitled to immunity on this claim.
22
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.
The motion for summary judgment [ECF No. 36] is granted;
2.
The claim against Krieg is dismissed with prejudice; and
3.
Krieg is dismissed from this suit.
Dated: September 30, 2020
s/David S. Doty
David S. Doty, Judge
United States District Court
23
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