Evans v. Santos et al

Filing 253

MEMORANDUM OPINION AND ORDER - granting 187 Motion for Summary Judgment; denying as moot 189 Motion to Dismiss; granting 192 Motion for Summary Judgment; denying as moot 214 Motion to Dismiss; denying 215 Motion for Summary Judgment; denying as moot 251 Motion. Action dismissed with prejudice. Signed by District Judge Debra M. Brown on 2/14/17. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
TIMOTHY N. EVANS

PLAINTIFF

V.

NO. 4:15-CV-72-DMB-JMV

DR. JUAN SANTOS, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
Timothy Evans, an inmate housed at the Mississippi State Penitentiary, filed this civil
rights action pursuant to 42 U.S.C. § 1983, alleging that he has been denied medical attention in
retaliation for filing a complaint about his living conditions and because of officials’ desire to
discriminate against him based on his race.1 Before the Court are a number of motions filed: (1)
a motion for summary judgment by Dr. Juan Santos, Angela Brown, Paul Madubuonwu, Freddie
Williams, Ms. Leflore, Norma Evans, and LPN Lamar (“Wexford Defendants”),2 Doc. #187, who
at all relevant times were contract medical providers for Wexford Health Sources;3 (2) a motion
for summary judgment by Nathan Harris, Superintendent Earnest Lee, and Co-4 Carla Lofton

1

Timothy amended his complaint a number of times. See Docs. #6, #9, #10, #13, #14, #18, #22, #24. After
conducting a Spears hearing, United States Magistrate Judge Jane M. Virden issued a Report and Recommendation
recommending that all of his claims against the named defendants proceed except those against Norma Evans because
Timothy indicated he intended her to be a witness only. Doc. #26. Because Timothy subsequently indicated that
further discovery supported Norma as a defendant, this Court adopted in part the Report and Recommendation,
rejecting only that part which recommended the claims against Norma not be permitted to proceed. Doc. #88.
2

Three days after the Wexford Defendants filed their motion for summary judgment, the MDOC Defendants filed a
“Joinder in Motion for Summary Judgment of Wexford Defendants [187].” Doc. #194.
3

Wexford providers RN Horn and Dr. Rivera were also named as defendants but have not appeared in this action.
Horn was served with process while Rivera was not successfully served. Doc. #113; Doc. #80. No default against
Horn has been sought. Because the arguments in the Wexford Defendants’ summary judgment motion are equally
applicable to all Wexford providers named as defendants, the Court considers them as also applicable to Horn and
Rivera. See, e.g., Al-Hashimi v. Scott, 756 F.Supp. 1567, 1569 (S.D. Ga. 1991) (stating that “[a]lthough the other
defendants ... did not join in the motion for summary judgment, the rationale for granting [the movant’s] motion
applies equally to them” to grant summary judgment to all defendants).

(“MDOC Defendants”), Doc. #192; (3) Norma’s4 motion to dismiss for insufficient service of
process, Doc. #189; (4) Timothy’s motion to join Norma’s motion to dismiss, Doc. #213; (5)
Timothy’s motion seeking dismissal of the MDOC Defendants, Doc. #214; (6) Timothy’s “Motion
to Counter Summary Judgement,” Doc. #215, which the Court construes as a summary judgment
motion; and (7) the Wexford Defendants’ motion to reschedule trial, Doc. #251.5 For the reasons
below, the Wexford Defendants’ motion for summary judgment and the MDOC Defendants’
motion for summary judgment will be granted; Norma’s motion to dismiss, and Timothy’s motion
to join Norma’s motion, will be denied as moot; Timothy’s motion to dismiss the MDOC
Defendants will be denied as moot; Timothy’s motion for summary judgment will be denied; and
the Wexford Defendants’ motion to reschedule trial will be denied as moot.
I
Background and Procedural History
Timothy arrived at the Mississippi State Penitentiary as a death row inmate in August
2013. He alleges that a new roof was put on his housing unit in July 2014 and that shortly
thereafter, water began seeping into his cell. Timothy, who suffers from a number of chronic
medical conditions, including back pain, gastroesophageal reflux disease (“GERD”), Hepatitis C,
and psoriasis, claims that all of his medical care was terminated on July 21, 2014, approximately
one week after he filed a grievance to prison officials about the water leaks. According to
Timothy, he is being denied medical care (such as medication, skin biopsies, and annual Hepatitis
C screening) in retaliation for his complaints and because he is a member of the Caucasian race.
4
5

To avoid confusion, the first names of Norma Evans and Timothy Evans will be used.

Of those motions not filed by Timothy, Timothy filed a response to only the Wexford Defendants’ summary
judgment motion. Doc. #216; Doc. #241.

At his Spears6 hearing, Timothy informed the Court that his primary complaint is that he is
routinely denied access to his stomach medication. Specifically, he stated that the defendants
routinely deny him Prilosec (Omeprazole),7 which is necessary to prevent severe vomiting and
weight loss. Timothy alleges that he has been informed that the medicine is delayed at times due
to a “glitch” in the system but believes this is incorrect, as he has been denied medication for
several days in August, October, November, and December of 2014, as well as in April of 2015.
He claims that his criminal attorney, Alison Steiner, intervened on his behalf to get the medicine
until April 5, 2015, when he was notified that he would no longer receive Prilosec and would
receive only Rolaids. Timothy alleges to have made an emergency visit to the hospital on May
17, 2015, however, and received Prilosec again the following day. Between the time he was
started on only Rolaids to treat his GERD and his hospitalization in May, he alleges that he was
repeatedly denied medical attention.
At the conclusion of his Spears hearing on September 14, 2015, Timothy stated that he was
then currently receiving his medication. He has since claimed, however, that the defendants
continue to deny him medical care on the basis of racial animus and retaliatory motives. See, e.g.,
Doc. # 74; Doc. #104; Doc. #203.
II
Summary Judgment Standard
Summary judgment is proper only when the pleadings and evidence, viewed in a light most

6

Named for the case of Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), a Spears hearing may be utilized to
determine whether the complaint states a justiciable claim.
7

Prilosec, generically named Omeprazole, is a proton pump inhibitor that decreases the production of stomach acid.
It is often prescribed to treat symptoms of GERD. See http://www.drugs.com/prilosec.html (last visited September 1,
2016).

favorable to the nonmoving party, illustrate that no genuine issue of material fact exists and the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) & (c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). A fact is deemed “material” if “its resolution in favor of
one party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star
State of Tex., 560 F.3d 316, 326 (5th Cir. 2009) (citation omitted).
“If the moving party will bear the burden of persuasion at trial, that party must support its
motion with credible evidence that would entitle it to a directed verdict if not controverted at trial.”
McKee v. CBF Corp., 299 F. App’x 426, 428 (5th Cir. 2008) (citing Celotex Corp., 477 U.S. at
331)). If the “evidence is such that a reasonable jury could return a verdict for the nonmoving
party,” then there is a genuine dispute as to a material fact, and summary judgment must be denied.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III
Medical Care
Timothy’s constitutional right to medical care was abridged only if officials acted with
deliberate indifference to his serious medical needs, as deliberate indifference to such needs
violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Estelle v.
Gamble, 429 U.S. 97, 103-04 (1978). The test for establishing deliberate indifference is one of
“subjective recklessness as used in the criminal law.” Farmer v. Brennan, 511 U.S. 825, 839
(1994). Under this standard, a state actor is not liable under § 1983 unless the plaintiff alleges
facts which, if true, would demonstrate that the prison official (1) knew that the inmate faced a
substantial risk of serious harm; and (2) disregarded that risk by failing to take reasonable
measures to abate it. Farmer, 511 U.S. at 847.

A plaintiff cannot demonstrate a prison official’s violation of the “deliberate indifference”
standard by pointing to negligent conduct. Daniels v. Williams, 474 U.S. 327, 328 (1986); Oliver
v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Even if physicians misdiagnose or mistreat the
plaintiff=s condition in what amounts to medical malpractice, a prisoner cannot sustain a § 1983
claim without a showing of deliberate indifference. See, e.g., Varnado v. Lynaugh, 920 F.2d 320,
321 (5th Cir. 1991) (medical malpractice alone does not support § 1983 cause of action). Nor is it
sufficient for a plaintiff to argue that additional or different medical treatment should have been
given, as a plaintiff=s disagreement with the course of medical treatment chosen will not support a
claim of deliberate indifference. Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 2001); Gibbs v.
Grimmette, 254 F.3d 545, 549 (5th Cir. 2001). Rather, liability under the deliberate indifference
standard requires the plaintiff to produce evidence “that prison officials >refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct
that would clearly evince a wanton disregard for any serious medical needs.’” Davidson v. Tex.
Dept. of Crim. J., 91 F. App’x 963, 965 (5th Cir. 2004) (citation omitted); see Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006) (deliberate indifference requires inmate to show prison officials
engaged in conduct that “clearly evince[s] a wanton disregard for any serious medical needs”).
IV
Wexford Defendants’ Motion for Summary Judgment
Timothy alleges that he began experiencing the denial of medication and medical services
in July 2014. The Wexford Defendants, all of whom were employed by Wexford Health Sources
and provided medical care to inmates in MDOC custody at the Mississippi State Penitentiary,8

8

See Docs. #187-1 to 187-4. Wexford Health Sources no longer provides medical services to MDOC inmates; that

have moved for summary judgment arguing, among other things, that Timothy “has regularly been
treated, and has been given all other necessary medical services.”9 Doc. #188 at 8.
In support of their motion, the Wexford Defendants submitted the sworn affidavits of Dr.
Santos and Angela Brown, which attest that Timothy’s numerous health problems have been
appropriately treated with a variety of medications and by a number of medical providers. See
Doc. #187-1; Doc. #187-2. In particular, Dr. Santos maintains that Timothy’s conditions are
regularly monitored in the various chronic care clinics and that Timothy receives various
medications, including Prilosec for his stomach complaints, Zocor for elevated lipid levels,
Methotrexate for arthritic conditions, Keflex for psoriasis, antacids, Ibuprofen, and Tylenol. Doc.
#187-1 at ¶ 4. Dr. Santos also attests that Timothy’s “lab tests and liver function tests do not
indicate the need for additional treatment for hepatitis C.” Id. at ¶ 5.
Also as an exhibit to their motion, the Wexford Defendants filed, under seal, Timothy’s
medical records through August 27, 2015.

Doc. #202. These records, which include the

treatment and/or medication updates Timothy received after the alleged denial of medical care
began on July 21, 2014, show that from July 19, 2014, through April 13, 2015, Timothy submitted
at least fifteen “sick call” requests for medical treatment, the majority of which were requests for
medication. Id. at 38–55. According to his medical records, Timothy received the following
treatment, as summarized, after July 21, 2014:
July 22, 2014:
July 23, 2014:

Psychiatric visit. Id. at 155–56.
Psychiatric medications updated. Id. at 156.

service is now provided by Centurion of Mississippi. See, e.g., Doc. #187-1.
9

As earlier mentioned, the MDOC Defendants “join[ed] in and adopt[ed] the arguments and authorities contained in
the Wexford Defendants Motion for Summary Judgment [187] which demonstrate that there has been no deliberate
indifference to Plaintiff’s serious medical needs.” Doc. #194.

July 24, 2014:
July 24, 2014:
Aug. 1, 2014:
Aug. 1, 2014:
Aug. 1, 2014:
Aug. 2, 2014:
Aug. 5, 2014:
Aug. 7, 2014:

Aug. 13, 2014:
Aug. 14, 2014:

Aug. 20, 2014:
Aug. 21, 2014:
Sept. 2, 2014:

Sept. 4, 2014:
Sept. 4, 2014:

Sept. 11, 2014:
Oct. 8, 2014:
Oct. 8, 2014:

10

Dental follow-up to complete dentures. Id. at 157–58.
Medical visit for psoriasis and eczema; Methotrexate started
and psoriasis medication refilled. Id. at 159–60.
TED hose (for varicose veins) ordered by Nurse Brown and
approved by Dr. Madubuonwu. Id. at 164, 166.
Placed on suicide precaution at Unit 42 hospital following
emergency psychiatric visit by Leflore. Id. at 164–65.
Enrolled in psoriasis chronic care clinic. Id. at 167.
Pharmacy faxed pantoprazole sodium10 refill. Id. at 176.
Psychiatric medicine changed. Id. at 189.
Treated for sick-call request previous day; Dr. Santos
ordered Prilosec; 60-day prescription faxed to pharmacy. Id.
at 201, 204.
Medication orders refilled by Dr. Madubuonwu, including a
60-day supply of Prilosec. Id. at 202–03.
Treated following August 11th sick call request for back
pain medication refills. Dr. Santos refaxed medications, as
medications were initially sent to wrong pharmacy. X-rays
for back and spine ordered. Id. at 205–06.
Mental health office visit with Leflore. Timothy reported he
is currently receiving all medications. Id. at 209.
Follow-up for eczema/psoriasis with Dr. Santos; new x-ray
ordered. Id. at 210–11.
Seen by medical after complaint lodged that Timothy’s
stomach medicine runs out on Sept. 13, 2014; nurse noted
computer showed his medication was ordered. Id. at 215.
Received dentures. Id. at 216–17.
Treated at Hepatitis chronic care clinic; labs reviewed;
pantoprazole sodium prescription discontinued and Prilosec
prescription added. Id. at 219–23.
Attended chronic care clinics, including Hepatitis. Id. at
227-31.
Mental health treatment plan formulated by Leflore. Id. at
235.
Sick call visit; medications received; referred to doctor. Id.
at 236.

Pantoprazole sodium is a proton pump inhibitor that decreases the amount of acid produced in the stomach.
https://www.drugs.com/pantoprazole.html (last visited December 20, 2016).

Oct. 9, 2014:
Oct. 10, 2014:
Oct. 14, 2014:
Oct. 14, 2014 :
Oct. 16, 2014:
Oct. 16, 2014:

Oct. 23, 2014:
Oct. 30, 2014:

Oct. 31, 2014:

Nov. 6, 2014:
Nov. 7, 2014:
Nov. 26, 2014:

Dec. 1, 2014:
Dec. 3, 2014:

Dec. 4, 2014:
Dec. 11, 2014:
Dec. 12, 2014:
Dec. 18, 2014:

Seen by physician for complaint about spine; doctor ordered
copy of Timothy’s latest TSPINE x-ray. Id. at 238.
Mental health office visit. Id. at 240.
90-day psychiatric visit. Id. at 242.
Psychiatric medication update. Id. at 243.
Blood pressure check; flu vaccine administered. Id. at 244–
45.
Sick call visit regarding spine issues/psoriasis; Dr. Santos
updated Timothy’s medications to add Naproxen and to
refill cream. Id. at 245–46.
Sick call visit for back pain; Dr. Santos ordered Naproxen.
Id. at 248.
Blood pressure check follow-up; Dr. Madubuonwu ordered
Timothy be brought in for walking stick and evaluation of
back pain. Id. at 249.
Dr. Santos evaluated Timothy’s pack pain; removed
Naproxen prescription and added Excedrin to medications;
ordered Timothy be relocated downstairs to bottom tier. Id.
at 253.
Sick call visit for ear pain; Dr. Santos prescribed ointment.
Id. at 255.
Mental health office visit. Id. at 256.
Sick call evaluation by nurse for multiple complaints: back
spasms, request for pain medications, to complain that
stomach medications are expiring soon; nurse referred to
doctor and flagged pharmacy. Id. at 260–61.
Medications ordered, including 120 doses of Prilosec. Id. at
262.
Mental health office visit; Timothy complained that he was
running out of medications and needed to see a doctor. Id.
263.
Sick call visit to obtain skin medications; new
medications/lotion added and CBC ordered. Id. at 265–66.
Chronic care clinics visit, including Hepatitis; labs
reviewed. Id. at 270–72.
Mental health office visit; Timothy reported officials “trying
to get his medication straight.” Id. at 274.
Sick call visit to obtain refill on Excedrin and to obtain
bottom tier bunk; medication refilled; agreed to have

Dec. 20, 2014:
Dec. 20, 2014:

Dec. 22, 2014:

Dec. 22, 2014:
Dec. 24, 2014:
Dec. 26, 2014:
Dec. 30, 2014:
Jan. 14, 2014 :
Jan. 19, 2015:
Jan. 29, 2015:

Feb. 5, 2015:
Feb. 19, 2015:

Feb. 20, 2015:
Mar. 10, 2015:
Mar. 11, 2015:
Mar. 12, 2015:
Mar. 12, 2015:

Mar. 13, 2015:
Mar. 19, 2015:
Mar. 30, 2015:

Timothy moved. Id. at 276.
Medical order for Timothy to be moved to bottom tier for
period of one year. Id. at 277.
Emergency hospital visit with complaints of severe pain and
spasms to back/legs; given Toradol shot for pain. Id. at 277–
80.
MDOC called nurse based on Timothy’s complaint of high
blood pressure; advised Timothy to fill out sick call and
contact hospital if dizziness worsened. Id. at 281.
Excedrin prescription refaxed to pharmacy. Id. at 281.
Sick call visit for blood pressure check. Id. at 284.
Sick call follow-up for psoriasis; medications refilled. Id. at
285.
Psychiatric 90-day visit. Id. at 286.
Annual TB screen. Id. at 290.
Naproxen prescription faxed to pharmacy. Id. at 291.
Sick call visit for shampoo/lotion but clinic closed early by
security. Appointment rescheduled for February 5, 2015. Id.
at 292.
Sick call visit to refill meds and address back problem;
medications updated. Id. at 295–96.
Sick call visit requesting handicapped chair for hip/back
pain; evaluated by doctor and prescribed Ibuprofen; Dr.’s
notes indicate he will request donut pillow be provided to
Timothy. Id. at 299.
Request for donut pillow approved by Dr. Madubuonwu. Id.
at 300.
Mental health sick call visit. Id. at 304–05.
Psychiatric medications faxed to pharmacy. Id. at 306.
Dental sick call for cleaning. Id. at 307–08.
Chronic care clinics, including Hepatitis; labs reviewed;
requested refill on Ibuprofen and Prilosec; medications
updated. Id. at 309–13.
Psychiatric visit. Id. at 313.
Mental health sick call; request that new medications be
ordered, as prescribed medication not in stock. Id. at 315.
Sick call request regarding numb feet; complains he only has
4 days’ worth of Prilosec remaining. Id. at 319.

Mar. 30, 2015:
Apr. 2, 2015:
Apr. 8, 2015:
Apr. 9, 2015:
Apr. 9, 2015:

Apr. 14, 2015:

Apr. 15, 2015:

Apr. 16, 2015:

Apr. 23, 2015:

Apr. 27, 2015:
May 14, 2015:
May 17, 2015:

May 21, 2015:
May 28, 2015:
June 4, 2015:

Dr. Santos faxed 30-day Prilosec prescription to pharmacy.
Id. at 321.
Sick call visit requesting 18-month supply of Prilosec; refill
explained to Timothy and labs ordered. Id. at 323–24.
Specialty consult for Timothy’s chronic heartburn requested
and approved. Id. at 326–27.
Dental sick call for denture repair; lower dentures sent to lab
for repair. Id. at 328–30.
While Timothy was signing a release in clinic, nurse
practitioner noticed lesions on his face related to psoriasis
and ordered skin medications; also ordered 150 calcium
antacid chews. Id. at 330–32.
Sick call visit regarding medications; record indicates
Timothy received requested medication on March 31, 2015.
Id. at 333.
Psychiatric visit where Timothy complained he wanted his
medications, especially Prilosec and Ibuprofen, and that
medical repeatedly stops his access to medications.
Psychiatrist noted review of Timothy’s records shows that
medical “has repeatedly dealt with the issues that he has
raised.” Id. at 333–34.
Sick call visit regarding stomach problems and back
problems; Timothy told his medications had not been
stopped and to take Ibuprofen with food. Id. at 338–39.
Sick call visit to report Tums not helping; Timothy advised
his medical records were required regarding his history of
bleeding ulcers before a specialty consult could be requested
by medical staff; Tums refilled. Id. at 340–41.
Specialty consult for esophagus endoscopy/ligation. Id. at
341.
Dentures delivered. Id. at 345.
Emergency hospital visit initiated for chest pain that became
gastrointestinal complaint upon arrival. Self-reported
vomiting blood but not confirmed by staff. CBC ordered and
Timothy started on Prilosec. Id. at 347–49.
Ibuprofen prescription faxed to pharmacy. Id. at 352.
Psychiatric visit; medications refilled. Id. at 352–54.
Sick call visit regarding stomach pains and psoriasis;
Timothy been noncompliant with his psoriasis medications
but agreed to take them as ordered. 60-day supply of

June 11, 2015:
June 18, 2015:
June 23, 2015:
June 25, 2015:
June 25, 2015:
June 25, 2015:
July 2, 2015:

July 10, 2015:

July 10, 2015:
July 15, 2015:

July 16, 2015:

July 23, 2015:

Aug. 6, 2015:
Aug. 13, 2015:
Aug. 18, 2015:
Aug. 19, 2015:

Prilosec ordered. Id. at 357–58.
Chronic care clinics, including Hepatitis; labs reviewed;
new lotion added for rash. Id. at 359–65.
Sick call visit to request medication refill; x-ray of hip
ordered. Id. at 367.
Left hip x-rayed. Id. at 368.
Sick call visit requested for spine pain but asked for lotion at
visit. Medication updated to add lotion. Id. at 369.
Specialty consult for physical therapist requested and
approved. Id. at 370–71.
Mental health office visit. Id. at 372.
Sick call request made June 29, 2015, complaining about
medication refills now moot. Timothy stated he had received
all medications. Id. at 377.
Sick call visit for upper back pain. Requested physical
therapy and “keep on person” status for all medications.
Referred to physical therapy. Id. at 379–80.
Specialty consult for physical therapy approved. Id. at 380–
81.
Mental health office visit. Timothy requested to see
psychiatrist to address medical and mental health
medications. Id. at 382–83.
Sick call visit requesting MRI regarding back pain. Timothy
advised to keep his appointment with physical therapy and
informed that x-rays showed mild degeneration of his hip
joint. Id. at 384.
Sick call visit with multiple complaints. Timothy advised on
use of compresses for back pain; stated he has all of his
medications. Id. at 386–87.
Sick call visit; Ibuprofen refilled; 90-day Prilosec
prescription refilled. Id. at 390.
Sick call visit for left ear infection and spot on head; Dr.
Santos ordered antibiotics. Id. at 393.
Sick call visit; requested biopsy for spots on skin; nurse
referred Timothy to doctor. Id. at 395–96.
Psychiatric 90-day visit. Provider notes Timothy spent most
of session complaining about his difficulty in getting
Prilosec and Ibuprofen prescriptions. Medication refilled.
Id. at 398.

Aug. 27, 2015:

Sick call visit to request biopsy to check for skin cancer.
Provider notes condition is psoriasis and no biopsy needed.
Id. at 400.

The Wexford Defendants further submitted the affidavit of Dr. Gloria Perry, the Chief
Medical Officer of MDOC’s Office of Medical Compliance. Doc. #187-4. According to Dr.
Perry, the administration of medications to MDOC inmates is documented on a Medication
Administration Record (“MAR”). Doc. #187-4 at ¶¶ 5, 6. Dr. Perry attests that Timothy’s
records demonstrate that he is given Omeprazole, the generic substitute for Prilosec, to keep on his
person and to self-administer.11 Id. at ¶ 7.
In response to the Wexford Defendants’ summary judgment motion, and in support of
claim that he has been denied medical treatment, Timothy filed excerpts from his medical records,
and communications between his criminal attorney, Alison Steiner, and various MDOC officials.12
See, e.g., Doc. #216 at 38–39, 54–63; Doc. #241 13 at 13–20, 21–23, 25–26. Regarding the
excerpts, he argues that “factual genuine issues will be present thru the digital medical records,”
which will show that he was denied the medications listed. Doc. #216 at 4–5.
In the communications, which begin August 13, 2014, and extend through November 11,
2016, Steiner requests by e-mail the assistance of MDOC personnel in resolving treatment issues
Timothy had made known to her.

According to the documents, Timothy’s August 2014

complaint concerning his chronic care medications was satisfactorily resolved, Doc. #6 at 2; and
11

Other documents filed in this action show Timothy’s MAR from January 1, 2016, through June 30, 2016, which
demonstrate that Timothy received 180 doses of Omeprazole during that time-frame. Doc. #174-1; Doc. #179. See
ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 n.2 (5th Cir. 1981) (court may take judicial notice of its own
records).
12
13

Timothy received Steiner’s permission to use the communications as an exhibit. Doc. #241 at 11.

Document #241 was filed as a supplement to Timothy’s response, which supplement was attached to an unrelated
filing.

his October 27, 2014, complaint was addressed and remedied, id. at 3. His November 2014
complaint involving his request to be moved to a bottom-level tier was also addressed and
remedied by medical personnel. Doc. #6 at 3; Doc. #202 at 276. On December 1, 2014,
Timothy expressed, through Steiner, his fear that he would run out of his chronic care medications
in two days, Doc. #6 at 4; however, Steiner was assured by MDOC personnel that Timothy would
have his medications on December 3, 2014. See, e.g., id. at 7. When, on December 3, 2014,
Steiner e-mailed MDOC personnel at 11:12 a.m. that, after speaking with Timothy, Timothy had
not received his medication, MDOC personnel responded approximately ninety minutes later that
the person who assured the presence of the medication had been contacted and would hopefully
resolve the issue. Id. at 8. While there is no follow-up communication regarding the matter in
the record, the Court notes that Timothy’s medical records demonstrate that 120 doses of Prilosec
were ordered for him on December 1, 2014. Doc. #202 at 262.
Steiner contacted MDOC personnel by e-mail again on May 29, 2015, stating that Timothy
had reported to her his concern that he would run out of Prilosec. Doc. #6 at 10. One of the
Wexford Defendants, Dr. Madubuonwu, forwarded the e-mail and replied to Steiner, asserting that
Timothy was enrolled in chronic care for his GERD and had a sufficient supply of Prilosec to get
him to his next scheduled GERD appointment. Id. at 12. On June 22, 2015, Steiner e-mailed
MDOC personnel that Timothy feared he would be moved to an upper-level tier, Doc. #216 at 63;
however, there is nothing in the record indicating whether such a move occurred.
On November 10, 2016, Steiner contacted MDOC personnel and medical staff to address
problems Timothy had relayed to her—namely, that he had been refused medical treatment under
the guise that he had refused skin-lesion treatment, that he was not receiving his muscle relaxant,

and that he was not timely receiving his chronic care medications. Doc. #241 at 22. She also
addressed his concern that he was a victim of retaliation. Id. MDOC personnel responded that
there was no documentation in Timothy’s record that he had refused an appointment, noting that
Timothy sees medical staff “at least weekly.” Id. at 23. MDOC personnel also stated that an
appointment had been made at the hospital to remove the lesions, and verified that Timothy had
received his medications as prescribed. Id.
During the course of this case, Timothy has also suggested that his skin cancer is not being
treated and has requested injunctive relief. See, e.g., Doc. #203. However, Timothy received a
skin biopsy on November 21, 2016, and a cancerous spot was completely removed. Doc. #238-1;
see also Doc. #235. Additionally, an appointment was scheduled with an off-site surgeon to
confirm that the skin cancer was completely removed during the biopsy. Doc. #238-1.
Based on the record, it does appear that, at times, Timothy has had difficulty obtaining his
medications. He also missed at least two physical therapy appointments in July 2015 due to
officials’ failure to transport him to the appointment. See, e.g., Doc. #202 at 386, 388. However,
that some doses of medicine were occasionally missed or that security twice failed to transport him
to a medical appointment for unknown reasons does not, without more, establish deliberate
indifference. Mayweather v. Foti, 958 F.2d 91, 91 (5th Cir. 1992) (deficiencies in treatment,
including missed occasional dose of medication, does not constitute deliberate indifference).
While Timothy faults the Wexford Defendants for discontinuing his Prilosec prescription and
placing him on Rolaids, he fails to demonstrate their deliberate indifference by substituting his
hindsight opinion of what treatment he should have received in place of the medical judgments
rendered by professionals at the time he received medical care. See Norton v. Dimazana, 122

F.3d 286, 292 (5th Cir. 2001) (plaintiff=s disagreement with course of medical treatment chosen
will not support claim of deliberate indifference). Although Timothy was hospitalized in May
2015 after his Prilosec was discontinued, his medical records demonstrate that he was placed back
on the medication while he was still hospitalized. Doc. #202 at 347–49. Such response belies
Timothy’s assertion that the Wexford Defendants were deliberately attempting to harm him by
refusing to provide him with Prilosec.
Based on the Court’s thorough review of all of the evidence produced in this case, the
Court finds that Timothy’s claims against the Wexford Defendants fail, as the evidence produced,
including that submitted by Timothy, makes it apparent that Timothy has been regularly
monitored, evaluated, and treated for his numerous medical and psychiatric complaints. See
Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995) (medical records of sick calls,
examinations, diagnoses, and medications may rebut inmate’s allegations of deliberate
indifference). While he has not been provided with the medical treatment he apparently believes
is warranted, Timothy has not produced any evidence that any of the Wexford Defendants acted
with a “wanton disregard” for his “serious medical needs” as is necessary to support a claim of
deliberate indifference to his serious medical needs. Davidson v. Tex. Dept. of Crim. J., 91 F.
App’x 963, 965 (5th Cir. 2004). Accordingly, there is no genuine issue of disputed material fact
as to Timothy’s claims against the Wexford Defendants, and the Wexford Defendants are entitled
to judgment as a matter of law.14

14

Because there is no merit to Timothy’s claims of deliberate indifference, any claim against Wexford itself would
also fail on the merits. Section 1983 does not establish respondeat superior liability. Oliver v. Scott, 276 F.3d 736,
742 & n.6 (5th Cir. 2002); see Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987) (“Under § 1983, supervisory
officials are not liable for the actions of subordinates on any theory of vicarious liability.”).

IV
MDOC Defendants’ Motion for Summary Judgment
The MDOC Defendants have also moved for summary judgment, asserting the defense of
sovereign immunity as to the claims against them in their official capacities, and the defense of
qualified immunity as to the claims against them in their individual capacities. Doc. #192. After
the MDOC Defendants filed their summary judgment motion, Timothy filed a motion requesting
that the MDOC Defendants be dismissed from this action.

Doc. #214; Doc. #220.

In a

subsequent filing, however, Timothy contends that he “erroneously” requested the dismissal of the
MDOC Defendants. Doc. #225. The Court, therefore, considers the merits of the MDOC
Defendants’ summary judgment motion and, accordingly, will deny as moot Timothy’s motion to
dismiss the MDOC Defendants.
A. Eleventh Amendment Immunity
The Eleventh Amendment to the United States Constitution bars suits by private citizens
against states in federal courts unless the particular state has waived its immunity, or Congress has
abrogated the state=s sovereign immunity. U.S. Const. Amend XI; Perez v. Region 20 Educ. Serv.
Ctr., 307 F.3d 318, 326 (5th Cir. 2002). Mississippi has not waived its sovereign immunity. See
Miss. Code Ann. § 11-46-5(4) (“Nothing contained in this chapter shall be construed to waive the
immunity of the state from suit in federal courts guaranteed by the Eleventh Amendment to the
Constitution of the United States.”).

And, “MDOC is considered an arm of the State of

Mississippi” and is thus immune from suit. Williams v. Miss. Dep’t of Corrs., No. 3:12-cv-259,
2012 WL 2052101, at *1 (S.D. Miss. June 6, 2012); see Miss. Code Ann. § 47-5-1, et seq.
Accordingly, the MDOC Defendants are entitled to Eleventh Amendment immunity as to the

monetary claims against them in their official capacities.15
B. Qualified Immunity
The MDOC Defendants claim the defense of qualified immunity as to Timothy’s claims
against them in their individual capacities. Qualified immunity protects governmental employees
from individual civil liability as long as their conduct does not violate clearly established
“constitutional rights of which a reasonable person would have known.” Wernecke v. Garcia,
591 F.3d 386, 392 (5th Cir. 2009) (citation omitted). Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,
341 (1986).
An evaluation of the application of qualified immunity requires a court to conduct a
two-pronged inquiry: (1) whether a clearly established constitutional right would have been
violated on the facts alleged, and (2) “whether the defendant’s actions were objectively
unreasonable in light of the clearly established law at the time of the conduct in question.”
Ramirez v. Knoulton, 542 F.3d 124, 128 (5th Cir. 2008) (citation omitted).

A defendant’s

actions are deemed “objectively reasonable unless all reasonable officials in the defendant’s
circumstances would have then known” that the conduct at issue violated clearly established law.
Thompson v. Upshur County Texas, 245 F.3d 447, 457 (5th Cir. 2001) (citation omitted) (emphasis
in original). The sequence of the two-prong inquiry is not mandatory; a court may rely upon
either prong of the defense in its analysis first. See, e.g., Manis v. Lawson, 585 F.3d 839, 843 (5th
Cir. 2009) (citation omitted).
15

An exception to sovereign immunity exists in cases of prospective injunctive relief. See, e.g., Ex Parte Young, 209
U.S. 123, 167 (1908). Therefore, Timothy’s claim for prospective injunctive relief in the form of medical care is not
barred by sovereign immunity. But, as the Court found above, his medical care claims cannot be sustained.

Once qualified immunity has been pleaded by a defendant, the plaintiff bears the burden of
rebutting the defense “by establishing that the official’s allegedly wrongful conduct violated
clearly established law.” Estate of Davis v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir.
2003). This burden does not allow the plaintiff to “rest on conclusory allegations and assertions”
but rather requires the plaintiff to “demonstrate genuine issues of material fact regarding the
reasonableness of the officer’s conduct.” Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir.
2005).
1. Denial of medical care
In this case, because the Court found no deliberate indifference by the Wexford Defendants
to Timothy’s serious medical needs, Timothy cannot prove that the MDOC Defendants denied him
necessary medical attention based on retaliatory motives or racial considerations.16 Additionally,
Timothy has not established that the individual MDOC Defendants are responsible for prescribing
or administering medications.

Finally, Timothy cannot otherwise demonstrate supervisory

liability against the MDOC Defendants because he has not identified an unconstitutional policy or
practice implemented by a supervisory official. Wernecke v. Garcia, 591 F.3d 386, 401 (5th Cir.
2009); see Oliver v. Scott, 276 F.3d 736, 742 (5th Cir. 2002) (noting that §1983 does not create
supervisory or respondeat superior liability). Thus, Timothy’s denial of medical care claims
against the individual MDOC Defendants fail.
2. Retaliation
To state a claim for retaliation under § 1983, a plaintiff must allege (1) a specific

16

The Court’s conclusion regarding the Wexford Defendants applies to the MDOC Defendants due to the MDOC
Defendants’ joining the Wexford Defendants’ motion.

constitutional right; (2) the defendant’s intent to retaliate against the prisoner for exercise of that
right; (3) a retaliatory adverse act; and (4) causation. Jones v. Greninger, 188 F.3d 322, 324–25
(5th Cir. 1999). In order to prove causation, a plaintiff must show that “but for the retaliatory
motive the complained of incident would not have occurred.” McDonald v. Steward, 132 F.3d
225, 231 (5th Cir. 1998) (internal quotation marks and alteration omitted). A plaintiff cannot
support a claim of retaliation merely by his personal belief that he is a victim, Jones, 188 F.3d at
325; and a conclusory allegation of retaliation is insufficient to state a claim, Wilson v. Budney,
976 F.2d 957, 958 (5th Cir. 1992). Notably, the Fifth Circuit requires retaliation claims to be
viewed with skepticism. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Here, Timothy has not presented any evidence that he ever complained about a leak in his
cell, and his conclusory allegation that his complaint created a retaliatory motive by the MDOC
Defendants is insufficient.

See Wilson, 976 F.2d at 958 (finding conclusory allegations

insufficient to establish claim of retaliation). Moreover, the Fifth Circuit has determined that
baseless retaliation claims should not be allowed to proceed to trial simply because the alleged
constitutional violation occurred after a prisoner’s complaint to the administration, noting that “[i]t
is a virtual truism that any prisoner who is the subject of an administrative decision that he does not
like feels that he is being discriminated against for one reason or another[.]” Whittington v.
Lynaugh, 842 F.2d 818, 819 (1988). Accordingly, the Court finds the MDOC Defendants are
entitled to judgment as a matter of law.
VI
Norma Evans’ Motion to Dismiss
Norma Evans has moved to dismiss on her assertion that she was never served with

process. Doc. #189. Timothy has moved “to join” her motion requesting dismissal. Doc. #213.
Because the Wexford Defendants, including Norma, are entitled to summary judgment, Norma’s
motion to dismiss, and Timothy’s motion to join it, will be denied as moot.17
VII
Timothy’s “Motion to Counter Summary Judgement”
In his “Motion to Counter Summary Judgement,” which the Court construes as a summary
judgment motion, Timothy argues that his medical records and the e-mails between MDOC
personnel and his criminal attorney, Steiner, demonstrate that MDOC personnel have abused him
since he filed an administrative grievance in 2014. Doc. #215; see also Doc. #241. Although the
filing is styled as a motion, it is apparent that Timothy is actually requesting that the Court deny
summary judgment to the Wexford Defendants. See, e.g., Doc. #215 at 15–16 (“Thus the
summary judg[]ment must be denied because of the opposing evidence that is certified by the[ir]
own notary.). As the Court has already determined that there is no genuine issue of material fact
as to whether the Wexford Defendants were deliberately indifferent to Timothy’s serious medical
needs, Timothy is not entitled to summary judgment as a matter of law. Accordingly, to the
extent Timothy’s motion is construed as one for summary judgment, the motion will be denied.
VIII
Motion to Reschedule Trial
The Wexford Defendants request that the trial in this case “be rescheduled until after a
ruling on the dispositive motions.” Doc. #251. In light of the Court’s decisions above, the
17

Though these motions are deemed moot, the Court notes that Norma joined in an answer filed in this case and did not
raise insufficiency of process in a pre-answer motion, thereby waiving the defense. See Fed. R. Civ. P. 12(h)(1).
Additionally, the Court notes that Timothy, a plaintiff proceeding in forma pauperis, is entitled to rely on the service
by the United States Marshals without penalty for their failure to properly effect service. See, e.g., Rochon v.
Dawson, 828 F.2d 1107, 1109–10 (5th Cir. 1987).

motion will be denied as moot.
IX
Conclusion
For the reasons above:
1.

The Wexford Defendants’ motion for summary judgment [187], which was joined
by the MDOC Defendants,18 is GRANTED;

2.

The MDOC Defendants’ motion for summary judgment [192] is GRANTED;

3.

Timothy’s motion to dismiss the MDOC Defendants [214] is DENIED as moot;

4.

Norma’s motion to dismiss [189], and Timothy’s motion to join her motion to
dismiss [213] are DENIED as moot;

5.

Timothy’s motion for summary judgment [215] is DENIED; and

6.

The Wexford Defendants’ motion to reschedule trial [251] is DENIED as moot.

Accordingly, this action is dismissed with prejudice. A final judgment consistent with
this memorandum opinion and order will be issued.
SO ORDERED, this 14th day of February, 2017.

/s/ Debra M. Brown
UNITED STATES DISTRICT JUDGE

18

Doc. #194.