Triplett v. Banks et al

Filing 139

ORDER granting 109 Motion for Summary Judgment; denying 114 Motion to Dismiss 109 Motion for Summary Judgment; granting 115 Motion for Extension of Time to File Response/Reply as to 109 Motion for Summary Judgment; denying 129 Motion for TRO; denying 130 Motion for TRO; denying 131 Motion for TRO; denying 133 Motion for Expedited Consideration of 129 Motion for TRO; denying 134 Motion for Expedited Consideration re 129 Motion for TRO; denying 135 Motion for TRO. Signed by Magistrate Judge Robert H. Walker on May 13, 2019 (King, Steve)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ROBERT WARREN TRIPLETT

PLAINTIFF

VERSUS

CIVIL ACTION NO. 1:17CV65-RHW

JACQUELINE BANKS et al

DEFENDANTS

ORDER GRANTING [109] MOTION FOR SUMMARY JUDGMENT
Plaintiff Robert Warren Triplett, proceeding pro se and in forma pauperis, filed a 42
U.S.C. § 1983 prisoner civil rights complaint alleging unconstitutional conditions of confinement
at the South Mississippi Correctional Institution (SMCI), including an allegation of deliberate
indifference to his medical needs. Plaintiff complains about inadequate medical care for: (1) a
sinus infection and related vertigo; and (2) a facial lesion that he fears might be skin cancer.
Plaintiff also alleges unauthorized medical charges stemming from medical treatment at SMCI.
Defendants Dr. Ronald Woodall, Dr. Charmaine McCleave, Nurse Kera Hardy, and Nurse
Practitioner Gwendolyn Woodland (Medical Defendants) filed a motion for summary judgment
as to Plaintiff’s medical claims. Doc. [109]. Plaintiff filed a response on January 14, 2019.
Doc. [123]. Plaintiff previously had filed on November 19, 2018, a motion requesting an
extension of time to respond to the Medical Defendants motion for summary judgment. Doc.
[115]. The Court grants Plaintiff’s motion for extension to the extent that the Court deems
Plaintiff’s response of January 14, 2019, to be timely.
Law and Analysis
Summary Judgment Standard
Rule 56 provides that “[t]he 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); Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627
F.3d 134, 138 (5th Cir. 2010). Where the summary judgment evidence establishes that one of
the essential elements of the plaintiff’s cause of action does not exist as a matter of law, all other
contested issues of fact are rendered immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Topalin v. Ehrman, 954 F.2d 1125, 1138 (5th Cir. 1992). In making its determinations
of fact on a motion for summary judgment, the court must view the evidence submitted by the
parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175,
178 (5th Cir. 1984).
The moving party has the duty to demonstrate the lack of a genuine issue of a material
fact and the appropriateness of judgment as a matter of law to prevail on its motion. Union
Planters Nat’l Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The movant accomplishes this
by informing the court of the basis of its motion, and by identifying portions of the record which
highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131. “Rule 56
contemplates a shifting burden: the nonmovant is under no obligation to respond unless the
movant discharges [its] initial burden of demonstrating [entitlement to summary judgment].”
John v. State of Louisiana, 757 F.3d 698, 708 (5th Cir. 1985). Once a properly supported motion
for summary judgment is presented, the nonmoving party must rebut with “significant probative”
evidence. Ferguson v. Nat’l Broad. Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978).
Inadequate Medical Care
Plaintiff alleges that he did not receive constitutionally adequate medical care for his
sinus infection and facial lesion. To state a constitutional claim for denial of adequate medical
care, a plaintiff must demonstrate that defendants were deliberately indifferent to plaintiff’s
serious medical needs, such that it constituted an unnecessary and wanton infliction of pain.

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Estelle v. Gamble, 429 U.S. 97, 106 (1976). A prison official is not liable for the denial of
medical treatment unless the official knows of and disregards an excessive risk to inmate health
or safety. Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). The Constitution guarantee
prisoners “only adequate, not optimal medical care.” Spriggins v. LaRavia, 2012 WL 1135845,
at *4 (E.D. La. Apr. 4, 2012) (emphasis in original), citing Gobert v. Caldwell, 463 F.3d 339,
349 (5th Cir. 2006). An allegation of malpractice or mere negligence is insufficient to state a
claim. Hall v. Thomas, 190 F.3d 693, 697 (5th Cir. 1999). Moreover, the fact that a prisoner
disagrees with the type of medical treatment does not constitute a constitutional deprivation.
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). A delay in medical care may, under
certain circumstances, state a claim for constitutionally inadequate medical care. See Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). A “delay in medical care can only constitute an
Eighth Amendment violation if there has been deliberate indifference, which results in
substantial harm.” Id. at 195. However, “the decision whether to provide additional treatment ‘is
a classic example of a matter for medical judgment.’” Domino v. Texas Dep’t of Crim. Justice,
239 F.3d 752, 756 (5th Cir. 2001). Disagreements about whether an inmate should be referred to
a specialist as part of ongoing treatment do not constitute deliberate indifference. See Alfred v.
Texas Dep’t of Criminal Justice, No. 03-40313, 2003 WL 22682118, at *1 (5th Cir. Nov.13,
2003); Hickman v. Moya, No. 98-50841, 1999 WL 346987, at *1 (5th Cir. May 21, 1999).
Sinus Condition
With respect to treatment of Plaintiff’s sinus condition and vertigo, Plaintiff alleges that
for approximately one month, between December 10, 2015 and January 16, 2016, he received
little or no treatment. Doc. [1] at 70. Plaintiff’s primary complaint is that he feels he should
have been prescribed an antibiotic. Plaintiff testified at the screening hearing that the medical

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defendants refused to give him antibiotics on several occasions. Doc. [86] at 33. He later
asserted that “any reasonable doctor or nurse practitioner should prescribe” antibiotics for a sinus
condition. Id. at 37. In his response to summary judgment, Plaintiff asserts that it should be
obvious to any layman that sinus infections should be treated with antibiotics. Doc. [123] at 2.
Plaintiff admitted that on at least one occasion Nurse Woodall prescribed antibiotics, and he
stated that Dr. Woodall “normally will prescribe them.” Doc. [86] at 19. As demonstrated by
the medical records and Plaintiff’s assertions, he merely disagrees with the type and course of
treatment he received, which does not rise to level of a constitutional violation.
The medical records repeatedly demonstrate that in fact Plaintiff did receive ongoing
medical treatment for his sinus condition. See Doc. [112]. Such treatment included
examinations by medical providers and provision of medications such as Tylenol, Claritin, cold
packs, and eventually an antibiotic. Plaintiff submitted his first sick call request related to the
allegations in this complaint in mid-December 2015. He was seen by medical staff on December
13, 2015. Doc. [112] at 1-2. At that time, Plaintiff had a prescription for Tylenol, which was not
set to expire until December 30, 2015. Id. at 2. Defendant Nurse Woodland examined Plaintiff
on December 17, 2015. Id. at 4-5. He was referred to Defendant Dr. McCleave and examined
by her that same day. Id. at 5-6. Dr. McCleave prescribed Claritin to Plaintiff and gave him a
shot of Toradol for his complaints of neck pain. Doc. [123-1] at 9-10. Plaintiff was examined
on December 28, 2015, by Defendant Nurse Hardy, who referred Plaintiff to a medical provider.
Doc. [112] at 6. Nurse Hardy performed another examination on January 7, 2016 and referred
Plaintiff to a medical provider. Id. at 9. According to Plaintiff, Nurse Hardy offered him
decongestants during each of these visits, which Plaintiff refused because he wanted to be
examined by a doctor instead. Doc. [86] at 37; Doc. [123] at 2-3. On January 16, 2016, Dr.

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Woodall examined Plaintiff for complaints of sinus congestion. Doc. [112] at 11-13. Dr.
Woodall prescribed an anti-inflammatory, an antibiotic and a cold pack for Plaintiff’s symptoms.
Id.
During the screening hearing, Plaintiff admitted to seeing medical providers on several
occasions. See Doc. [86] 16-21. He even stated that Defendants McCleave and Woodland “are
pretty good about doing an examination”. Id. at 33. He also admitted to receiving antibiotics on
one occasion, receiving cold packs from Dr. Woodland, receiving two prescriptions for Antivert
to treat vertigo, and being offered by Nurse Hardy cold packs, antihistamines, and a
decongestant. Id. at 17, 19, 34-35, 37. In his response to summary judgment, Plaintiff recites
with considerable detail the numerous visits, interactions, and treatments he received from
medical personnel. See Doc. [123] at 1-5. Although he expresses disagreement with the course
of treatment and treatment options, his pleading offers additional support for the conclusion that
Defendants were not deliberately indifferent to his medical condition from December 2015 to
January 2016. Based on the foregoing, there is no genuine issue of material fact regarding
whether Defendants were deliberately indifferent to Plaintiff’s sinus condition during the
relevant time frame.
Plaintiff also points to slight delays in being examined by a medical provider at SMCI or
in receiving prescribed medications. None of these delays rise to the level of deliberate
indifference. See Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993); Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir. 1999). As reported in the medical records, Plaintiff was seen by
medical providers on at least six occasions between December 12, 2015, and January 16, 2016,
and he received various medications as treatment.

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Facial Lesion
Plaintiff also alleges that Defendants were deliberately indifferent to a facial lesion that
he feared might be skin cancer. Plaintiff’s claim fails both on the merits and because he did not
exhaust administrative remedies prior to filing the instant lawsuit.
Exhaustion of administrative remedies through the prison grievance system is a
jurisdictional prerequisite for lawsuits filed pursuant to 42 U.S.C. § 1983. Wright v.
Hollingsworth, 260 F.3d 357 (5th Cir. 2001). No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such administrative remedies are exhausted.
42 U.S.C. § 1997e(a). The Fifth Circuit takes a “strict approach” to the exhaustion requirement.
See Johnson v. Ford, 261 Fed. Appx. 752, 755 (5th Cir. 2008). Exhaustion is mandatory for “all
inmate suits about prison life, whether they involve general circumstances or particular episodes,
and whether they allege excessive force or some other wrong.” Alexander v. Tippah County,
Miss., 351 F.3d 626, 630 (5th Cir. 2003). Dismissal is appropriate where an inmate has failed to
properly exhaust the administrative grievance procedure before filing his complaint. Gonzalez v.
Seal, 702 F.3d 785, 788 (5th Cir. 2012). A prisoner cannot satisfy the exhaustion requirement
“by filing an untimely or otherwise procedurally defective administrative grievance or appeal”.
Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). Merely initiating the grievance process or putting
prison officials on notice of a complaint is insufficient to meet the exhaustion requirement. The
grievance process must be carried through to its conclusion before suit can be filed under the
Prison Litigation Reform Act. Wright, 260 F.3d at 358. “Since exhaustion is a threshold issue
that courts must address to determine whether litigation is being conducted in the right forum at

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the right time, . . . judges may resolve factual disputes concerning exhaustion without the
participation of a jury. Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010).
As demonstrated by Plaintiff’s ARP file, provided in conjunction with Defendants’
motion for summary judgment, Plaintiff did not file an ARP regarding medical treatment for the
facial lesion. See Doc. [109-3]. In his response to the motion for summary judgment, Plaintiff
does not dispute Defendants’ assertion that he failed to exhaust with respect to this claim.
Moreover, in his complaint, Plaintiff simply expressed worry that the facial lesion might be
cancerous. In response to his concerns, Defendants referred Plaintiff to a dermatologist (Dr.
Conerly) in Hattiesburg for an appointment about three months later. Doc. [86] at 20, 35-36.
According to Plaintiff, Dr. Conerly did not believe that the lesion was melanoma and treated it
with liquid nitrogen. Plaintiff indicates that he is due for a follow-up examination with Dr.
Conerly. Based on the foregoing, Plaintiff has failed to demonstrate deliberate indifference to
his facial lesion.
Unauthorized Medical Charges
Plaintiff alleges that he received several unauthorized medical charges to his inmate
account. As an initial matter, Plaintiff failed to exhaust administrative remedies as to this claim
prior to filing his lawsuit. Plaintiff filed his complaint on March 10, 2017. Plaintiff did not
receive a second step response to the ARPs until March 2018, approximately one year after filing
his original complaint. Thus, he could not have exhausted administrative remedies prior to
initiating this lawsuit. See Wendell v. Asher, 162 F.3d 887, 892 (5th Cir. 1998) (holding that
“administrative remedies be exhausted before the filing of a § 1983 suit, rather than while the
action is pending.”); Evans v. Grubbs, 2011 WL 2565298, at *2 (S.D.Miss. June 28, 2011). In
his response, Plaintiff admits that he did not exhaust with respect to the medical charges claim

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until a point in time after he filed the original complaint. See Doc. [123] at 6. Regardless,
Plaintiff’s claim for unauthorized medical charges does not state a viable claim under § 1983.
A claim for unauthorized deprivation of an inmate’s property, such as Plaintiff alleges in
this case, does not result in a violation of the inmate’s constitutional rights if there is an adequate
post-deprivation remedy available. See Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996).
The Due Process Clause is not implicated by a state official’s negligent act causing unintended
loss of property. Simmons v. Poppell, 837 F.2d 1243, 1244 (5th Cir. 1988). Likewise,
intentional deprivations of property by state employees do not implicate the due process clause
as long as there is an adequate state post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517,
533 (1984); Murphy v. Collins, 38 F.3d 541, 543-44 (5th Cir. 1994). The State of Mississippi
provides an adequate post-deprivation remedy--namely, filing a lawsuit for conversion in state
court. Nickens v. Melton, 38 F.3d 183 (5th Cir. 1994). Hence, Plaintiff’s claim for deprivation
of personal property, whether by negligence or intentional act, does not rise to the level of a
constitutional claim.
Plaintiff’s Motion to Dismiss
On November 19, 2018, Plaintiff filed a motion to dismiss the Medical Defendants’
motion for summary judgment. Doc. [114]. Plaintiff argues that he did not receive any of the
documents requested in discovery except those provided at the February 28, 2018, screening
hearing. The Court notes that Plaintiff received at the screening hearing 513 pages of
documents, including his institutional record, medical records, and ARP documentation. Doc.
[86] at 30. Plaintiff also argues that he has not received a complete copy of the screening
hearing transcript.

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The mere fact that Plaintiff did not receive all discovery to which he feels he is entitled is
not a valid basis for dismissing Defendants’ motion for summary judgment. He does not identify
a single discovery request or specific document that would aid him in responding to Defendants’
motions for summary judgment. Instead, Plaintiff merely relies on the general absence of
discovery responses as grounds for dismissing Defendants’ motion. Plaintiff did not serve
discovery requests until September 27, 2018, less than 30 days from the October 22, 2018
discovery deadline. Plaintiff later filed an untimely motion to compel discovery on November
28, 2018, which this Court has denied. See Doc. [116] [137]. Although Rule 56(d) allows the
Court to defer consideration of or deny a motion for summary judgment, Plaintiff’s general
request for untimely discovery is not sufficient reason to dismiss or defer ruling on Defendants’
motion for summary judgment. Likewise, Plaintiff fails to explain how a copy of the screening
hearing transcript is necessary to respond to Defendants’ motion for summary judgment.
Plaintiff was present at and participated in the screening hearing. Defendants provided excerpts
for those portions of the hearing transcript they relied upon, but they are under no obligation to
provide Plaintiff with an entire copy of the hearing transcript at their expense. Plaintiff has
failed to demonstrate a particularized need for a free copy of the transcript. See 28 U.S.C. §
1915(c); Norton, 122 F.3d at 293. Based on the foregoing, Plaintiff’s motion to dismiss is
denied.
Motions for Temporary Restraining Orders
Throughout this litigation, Plaintiff has filed motions for temporary restraining order
(TRO) relating to his claims. For the most part, these motions have amounted to nothing more
than an update on what he deems to be ongoing violations of the constitutional claims asserted in
his complaint. By order dated April 26, 2018, the Court denied nine such motions, some of

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which related to Plaintiff’s medical care at SMCI. See Doc. [72]. He has filed six additional
TRO motions relating to ongoing medical treatment at SMCI. Doc. [129] [130] [131] [133]
[134] [135]. Plaintiff’s original complaint alleged inadequate treatment from approximately
December 10, 2015, to January 16, 2016. Plaintiff’s allegations in the TRO motions discuss
medical treatment that occurred two to three years after the constitutional violations alleged in
his original complaint. As such, these allegations are beyond the temporal scope of this lawsuit.
In the latest TRO motions, he reports numerous medical visits. He admitted receiving Nasacort
for his sinus condition, albeit with some interruptions. He also admitted receiving ibuprofen for
pain; however, in his estimation, he did not receive enough. Plaintiff also admitted to receiving a
hernia belt, a referral for hernia surgery, a shampoo prescription for psoriasis, and an antifungal
cream. Primarily, he complains about delays and the nature of the medical care rather than
deliberate indifference.
In the TRO motions at issue, Plaintiff alleges inadequate medical care regarding
treatment for a hernia, psoriasis, arthritic pain, and fungus condition. None of these medical
conditions is alleged in his original complaint. Nor did Plaintiff mention any of these alleged
conditions at his screening hearing. The only claims of inadequate medical care discussed by
Plaintiff at the screening hearing related to his sinus condition and related vertigo, and a skin
lesion he feared might be cancer. Doc. [86] at 16-21, 26-27, 33-37. Plaintiff’s TRO motions are
an attempt to inject into this lawsuit every disagreement he has regarding ongoing medical
treatment at SMCI, regardless of whether it relates to the medical conditions alleged in the
original complaint. The Court finds that Plaintiff’s TRO motions should be denied. If Plaintiff
wishes to pursue claims regarding inadequate medical treatment for the post-lawsuit allegations

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addressed in his TRO motions, then he must first exhaust administrative remedies and then file a
new complaint.
IT IS THEREFORE ORDERED AND ADJUDGED that Defendants’ [109] Motion for
Summary Judgment is GRANTED, and that Plaintiff’s lawsuit is dismissed with prejudice as to
Defendants Ronald Woodall, Charmine McCleave, Kera Hardy, and Gwendolyn Woodland.
IT IS FURTHER ORDERED that Plaintiff’s [115] Motion for Extension is GRANTED
to the extent that his [123] response filed on November 19, 2018 is deemed as timely filed.
IT IS FURTHER ORDERED that Plaintiff’s [114] Motion to Dismiss is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s [129] [130] [131] [133] [134] [135] Motions
for TRO are DENIED.
SO ORDERED AND ADJUDGED, this the 13th day of May 2019.

/s/ Robert H. Walker
ROBERT H. WALKER
UNITED STATES MAGISTRATE JUDGE

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