Laushaw v. Epps et al

Filing 52

ORDER granting 39 Motion for Summary Judgment; granting 46 Motion for Summary Judgment. Signed by Magistrate Judge Michael T. Parker on July 27, 2012. (MPE)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

JOHN C. LAUSHAW
PLAINTIFF
V.

CIVIL ACTION NO.
2:11CV134-MTP

CHRISTOPHER EPPS, et al.

DEFENDANTS
OPINION AND ORDER

THIS MATTER is before the court on two Motions for Summary Judgment [39][46] filed
by Defendants, Christopher Epps, Dr. Ron Woodall, Dr. Charmaine McCleave and Wexford
Health Sources, Inc. Having reviewed the submissions of the parties and the applicable law, the
court finds that Defendants’ Motions for Summary Judgement [39][46] should be GRANTED.
FACTUAL BACKGROUND
Plaintiff John C. Laushaw is currently incarcerated in the Central Mississippi Correctional
Facility (“CMCF”), serving a life sentence for one count of murder, 30 years for one count of
armed robbery, and 10 years for one count of kidnaping.1 Plaintiff, proceeding pro se and in
forma pauperis, filed his Complaint [1] pursuant to 42 U.S.C. § 1983 on December 06, 2010.
As set forth in his pleadings, and as amended by the sworn testimony given during his
Spears hearing,2 Plaintiff alleges that he was denied adequate medical care and that the

1

See MDOC database, http://www.mdoc.state.ms.us/InmateDetails.asp?PassedId=74603.

2

See Hurns v. Parker, 165 F.2d 24, No. 98-60006, 1998 WL 870696, at *1 (5th Cir. Dec.
2, 1998); Riley v. Collins, 828 F.2d 306, 307 (5th Cir. 1987) (stating that plaintiff’s claims and
allegations made at Spears hearing supersede claims alleged in complaint). Plaintiff’s Spears, or
Omnibus hearing occurred on October 25, 2011. See Ex. A to Motion [39-1].
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Defendants, Christopher Epps, Dr. Charmaine McCleave, Dr. Ron Woodall, and Wexford Health
Sources, Inc. were deliberately indifferent to his serious medical needs. These allegations refer
specifically to the pain he suffers as a result of a drop left foot, a pin in his left elbow, and a rod in
his left hip.3 The allegations in Plaintiff’s complaint occurred while he was a post-conviction
inmate at South Mississippi Correctional Institution (“SMCI”) from approximately December
2009 until October 2010.
On February 14, 2012, Wexford Health Sources, Inc., Ron Woodall, and Charmaine
McCleave filed their Motion for Summary Judgment [39]. On March 12, 2012, Christopher Epps
filed a Motion for Summary Judgment [46]. On April 6, 2012, Plaintiff filed his response [49] in
opposition to both of the motions.
STANDARD FOR SUMMARY JUDGMENT
This court may grant summary judgment only if, viewing the facts in a light most favorable
to the plaintiff, the defendants demonstrate that there is no genuine issue of material fact and that
they are entitled to judgment as a matter of law. Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.
1995). If the defendants fail to discharge the burden of showing the absence of a genuine issue
concerning any material fact, summary judgment must be denied. John v. Louisiana, 757 F.2d
698, 708 (5th Cir. 1985). The existence of an issue of material fact is a question of law that this
court must decide, and in making that decision, it must “draw inferences most favorable to the
party opposing the motion, and take care that no party will be improperly deprived of a trial of
3

Plaintiff was in a car accident approximately one year before he was incarcerated, in
which he broke his left femur, left elbow, and damaged muscle and nerves in his left leg causing
his left foot to drop. See Ex. D to Memorandum [49-4]. The doctors at University Medical Center
placed a rod in the left femur and a pin in the left elbow to assist with the healing of the breaks.
Id.
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disputed factual issues.” John, 757 F.2d at 708, 712.
There must, however, be adequate proof in the record showing a real controversy
regarding material facts. The presence of a “scintilla of evidence,” Davis v. Chevron U.S.A., Inc.,
14 F.3d 1082, 1086 (5th Cir. 1994), “conclusory allegations,” Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 902 (1990), or unsubstantiated assertions, Hopper v. Frank, 16 F.3d 92, 96-97 (5th
Cir. 1994), are not enough to create a real controversy regarding material facts. In the absence of
proof, the court does not “assume that the nonmoving party could or would prove the necessary
facts.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (emphasis omitted).
ANALYSIS
Plaintiff’s claims are before the court pursuant to 42 U.S.C. § 1983. However, Section
1983 "neither provides a general remedy for the alleged torts of state officials nor opens the
federal courthouse doors to relieve the complaints of all who suffer injury at the hands of the state
or its officers." White v. Thomas, 660 F.2d 680, 683 (5th Cir. 1981). Rather, "[i]t affords a
remedy only to those who suffer, as a result of state action, deprivation of ‘rights, privileges, or
immunities secured by the Constitution and laws’ of the United States." White, 660 F.2d at 683
(quoting 42 U.S.C. § 1983).
It is well-settled that Section 1983 does not “create supervisory or respondeat superior
liability.” Oliver v. Scott, 276 F.3d 736, 742 & n.6 (5th Cir. 2002); see also Thompkins v. Belt,
828 F.2d 298, 304 (5th Cir. 1987) (citations omitted) (“Under § 1983, supervisory officials
cannot be held liable for the actions of subordinates under any theory of vicarious liability.”). “To
state a cause of action under § 1983, the plaintiff must allege facts reflecting the defendants’
participation in the alleged wrong, specifying the personal involvement of each defendant.” Jolly
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v. Klein, 923 F. Supp. 931, 943 (S.D. Tex. 1996) (citing Murphy v. Kellar, 950 F.2d 290, 292
(5th Cir. 1992)). Thus, supervisory prison officials may be held liable for a Section 1983 violation
only if they either were personally involved in the constitutional deprivation or if there is a
“sufficient causal connection between the supervisor’s wrongful conduct and the constitutional
violation.” Thompkins, 828 F.2d at 304.
Moreover, “[f]or purposes of liability, a suit against a public official in his official capacity
is in effect a suit against the local government entity he represents.” Mairena v. Foti, 816 F.2d
1061, 1064 (5th Cir. 1987) (citations omitted). The Supreme Court has held that in order for a
local governmental entity to have liability under Section 1983, a plaintiff must prove that a policy,
custom or practice of that local government entity was the “moving force” behind the
constitutional violation. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978).
Denial of Adequate Medical Care
"Prison officials violate the constitutional proscription against cruel and unusual
punishment when they are deliberately indifferent to a prisoner’s serious medical needs, as doing
so constitutes unnecessary and wanton infliction of pain." Davidson v. Texas Dep’t of Criminal
Justice, 91 F. App’x 963, 964 (5th Cir. 2004) (citing Wilson v. Seiter, 501 U.S. 294, 297 (1991)).
Deliberate indifference "is an extremely high standard to meet." Gobert v. Caldwell, 463 F.3d
339, 346 (5th Cir. 2006) (quoting Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 752, 756
(5th Cir. 2001)). The test for establishing deliberate indifference is “one of subjective recklessness
as used in the criminal law.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). A prison official
may not be held liable under this standard pursuant to Section 1983 unless the plaintiff alleges
facts which, if true, would establish that the official “knows of and disregards an excessive risk to

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inmate health or safety; the official must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists and he must also draw the inference.” Farmer,
511 U.S. at 838. Plaintiff must “submit evidence that prison officials ‘refused to treat him,
ignored his complaints, intentionally treated him incorrectly, or engaged in any other similar
conduct that would clearly evince a wanton disregard for any serious medical needs.” Davidson,
91 F. App’x at 965 (quoting Domino, 239 F.3d at 756).
Negligent conduct by prison officials does not rise to the level of a constitutional
violation. Daniels v. Williams, 474 U.S. 327, 333-34 (1986). Plaintiff is not entitled to the
“best” medical treatment available. McMahon v. Beard, 583 F.2d 172, 174 (5th Cir. 1978); Irby
v. Cole, No. CIVA 403CV141WHBJCS, 2006 WL 2827551, at *7 (S.D. Miss. Sept. 25, 2006).
Further, Plaintiff’s “disagreement with medical treatment does not state a claim for Eighth
Amendment indifference to medical needs.” Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.
2001).
Epps
Plaintiff alleges a claim against Defendant Christopher Epps, the Commissioner of the
Mississippi Department of Corrections (“MDOC”), for his responsibility in Plaintiff receiving
inadequate/deliberately indifferent health care. Specifically, Plaintiff claims that Epps is legally
responsible for the pain and suffering caused by the actions of the doctors employed by Wexford
Health Sources, Inc., which were contracted by Epps to provide MDOC inmates with medical
treatment.
Plaintiff claims that while he was an inmate at SMCI, he suffered from chronic pain as a
result of a car accident prior to his incarceration. He has a pin in his left elbow, a rod in his left

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hip, and suffered from a deteriorating condition of drop foot. Plaintiff claims that on several
occasions he was referred to a specialist for surgical treatment but that those recommendations
were ignored by both Dr. McCleave and Dr. Woodall.
Further, Plaintiff claims that “[d]efendant Epps intentionally failed to disclose Plaintiff[’s]
2004 ARP which shows Plaintiff had been referred to a specialist by Dr. Almand.” See
Memorandum [49]. Plaintiff alleges Epps received and signed the Administrative Remedy
Program Third Step response, but instead of sending Plaintiff to see the specialist, he received the
same treatment, which was a leg brace and special orthopedic shoes. See Tr. [39-1] at 21. Plaintiff
claims this documentation proves that Defendant Epps had knowledge of Plaintiff’s medical
situation since 2004. Id.
In his Motion for Summary Judgement [46], Christopher Epps claims that Plaintiff’s
complaint should be dismissed because it does not establish a constitutional violation using the
standard pronounced in Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995)(following two-part
test for deliberate indifference), that there is no credible evidence to prove any of Plaintiff’s
claims, and that Epps is entitled to qualified immunity for Plaintiff’s claims against him in his
individual capacity. See Motion [46].
In order to prove a constitutional violation there must be proof of deliberate indifference.
As pointed out earlier, the test for establishing deliberate indifference is “one of subjective
recklessness as used in the criminal law.” Farmer, 511 U.S. at 837. Plaintiff must “submit
evidence that prison officials ‘refused to treat him, ignored his complaints, intentionally treated
him incorrectly, or engaged in any other similar conduct that would clearly evince a wanton
disregard for any serious medical needs.” Davidson, 91 F. App’x. at 965 (quoting Domino, 239

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F.3d at 756). By these standards, Plaintiff failed to establish evidence showing a deliberate
indifference on the part of Epps.
Plaintiff testified that he sued Epps because of his supervisory capacity over the doctors
employed by Wexford. See Tr. at 18-20. Epps is not legally responsible for the actions of these
employees. As stated above, Section 1983 does not “create supervisory or respondeat superior
liability.” Oliver, 276 F.3d at 742 & n.6; see also Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir.
1987) (citations omitted) (“Under § 1983, supervisory officials cannot be held liable for the
actions of subordinates under any theory of vicarious liability.”).
Supervisory prison officials may be held liable for a Section 1983 violation only if they
were personally involved in the constitutional deprivation or if there is a “sufficient causal
connection between the supervisor’s wrongful conduct and the constitutional violation.”
Thompkins, 828 F.2d at 304; see also Ashcroft v, Iqbal, 129 S. Ct. 1937, 1948 (2009) (“Because
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution.”). As stated in his sworn affidavit, Defendant Epps has no personal role in the
medical care given to inmates, no authority to grant or deny treatment, and no personal
involvement with Plaintiff other than his being an inmate in the State penal system. See
Ex. A to Motion [46-1].
As stated earlier, “[f]or purposes of liability, a suit against a public official in his official
capacity is in effect a suit against the local government entity he represents.” See supra Mairena,
816 F.2d at 1064. Plaintiff has failed to prove or establish that a policy, custom or practice of the
MDOC was the “moving force” behind the alleged constitutional violation. See Monell, 436 U.S.

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at 694. Thus, Defendant Epps is not liable in his official capacity.
For the foregoing reasons, Christopher Epps is entitled to judgment as a matter of law.
Wexford
Plaintiff’s only claim against Wexford is that it is the medical service provider for MDOC
and that it employed two of the Defendant doctors that treated Plaintiff at SMCI. As stated
above, there is no respondeat superior liability under Section 1983. See supra, Oliver, 276 F.3d
at 742 & n.6; see also Powell v. Shopco Laurel Co., 678 F.2d 504, 505-06 (1982) (holding that
plaintiff could not recover against private state-employed company under Section 1983 based on
theory of respondeat superior). Further, Plaintiff has failed to demonstrate that Wexford
affirmatively participated in any constitutional deprivation or implemented an unconstitutional
policy. See Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992)(holding that in
order to establish vicarious liability it must be proven that Defendant affirmatively participated in a
constitutional deprivation or implemented an unconstitutional violation). In his sworn affidavit,
Dr. Woodall, a Wexford employee, testified that Plaintiff received the proper treatment and that
surgery was not needed. See Ex. B to Motion [39-2]. The records reflect that Plaintiff was
regularly seen and treated for pain and other conditions stemming from his surgical hardware and
drop foot during the time period he was incarcerated at SMCI. See Ex. C [43] to Motion.
Plaintiff’s Response [49] fails to establish any genuine issues of material fact regarding his
claims for deliberate indifference against Wexford. Instead, Plaintiff focuses on allegations
regarding Drs. Woodall and McCleave’s treatment of his injuries and Epps’ legal responsibility for
contracting the medical services of Wexford. See Response [49] at 3-7. Wexford cannot be held
liable for the acts of Drs. Woodall and McCleave. See Oliver 276 F.3d at 742 & n.6. While

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Plaintiff may disagree with the medical treatment that was provided, this does not amount to a
constitutional violation. See Norton, 122 F.3d at 292; see also McMahon, 583 F.2d at 174
(holding that prisoners are not entitled to the “best” medical treatment available).
Accordingly, Wexford is entitled to judgment as a matter of law.
Dr. Woodall and Dr. McCleave
Plaintiff’s claims against Dr. Ron Woodall and Dr. Charmaine McCleave are basically the
same. Both doctors were employed by Wexford and saw Plaintiff within two months of each other
in 2010 for chronic pain stemming from the surgical hardware in his left elbow and left hip and the
deteriorating condition of his drop left foot. Drs. Woodall and McCleave allegedly failed to
prescribe the appropriate treatment to Plaintiff, in light of his condition. Plaintiff claims that this
amounted to deliberate indifference to his serious medical needs.
In his affidavit, Dr. Woodall, Medical Director at SMCI, states that in his professional
opinion, Plaintiff “has received all necessary and appropriate medical treatment.” See Ex. B to
Motion [39-2]. During the time that Plaintiff was being treated at SMCI “he was provided with
Ultram, Mobic, Percogesic, an analgesic balm, and Acetaminophen” and “was given an injection
of Solumedrol.” Id. He has also been x-rayed and shown no acute changes. See Ex. C [43] to
Motion at 58, 59, and 147. Furthermore he was provided with orthopedic shoes and a leg brace
which was routinely fitted. Id. at 134. Dr. Woodall stated that the medications given to Plaintiff
were appropriate for his condition and Plaintiff did not need a surgical consultation for removal of
the rod, screws, or plates; x-rays revealed that they were still in place. See Ex. B to Motion [392].
In his opposition [49], Plaintiff expounds on his allegations against the doctors. See

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Response [49]. Specifically, Plaintiff claims both doctors prescribed inadequate medication for his
chronic pain, and failed to recommend allegedly necessary surgical procedures after reviewing
Plaintiff’s x-rays. Id.
Plaintiff’s disagreement with the medication prescribed by the doctors, or their method of
examination, treatment, and/or diagnosis for his ailments, simply does not rise to the level of a
constitutional violation. See Norton, 122 F.3d at 292. Even assuming Drs. Woodall and
McCleave should not have prescribed the same medication for Plaintiff when it had not been
effective in the past, such conduct constitutes only negligence, which does not amount to
deliberate indifference. See Daniels, 474 U.S. at 333-34. While the court is sympathetic to
Plaintiff’s medical condition, Plaintiff is reminded that prisoners are not entitled to the “best”
medical treatment available or the treatment of their choosing. See McMahon, 583 F.2d at 174.
The record clearly demonstrates that Plaintiff received regular treatment and that the
Defendant physicians were not deliberately indifferent to his needs. Accordingly, Drs. Woodall
and McCleave are entitled to judgment as a matter of law.
Qualified Immunity
Although the Defendants raised the defense of qualified immunity, “if it becomes evident
that the plaintiff has failed to state or otherwise to establish a claim, then the defendant is entitled
to dismissal on that basis.” Wells v. Bonner, 45 F.3d 90, 93 (5th Cir. 1993) (citing Siegert v.
Gilley, 500 U.S. 226, 231-33 (1991)); see also Sappington v. Bartee, 195 F.3d 234, 236 (5th Cir.
1999). Because the court finds that the Plaintiff's claims are not cognizable as constitutional
claims, it declines to address the issue of whether Epps is entitled to qualified immunity. Wells,
45 F.3d at 93.

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CONCLUSION
For the reasons stated above, the court finds that Defendants’ Motions for Summary
Judgment [39][46] should be GRANTED. Accordingly,
IT IS, THEREFORE, ORDERED:
1.

That the Defendants’ Motions [39][46] are GRANTED and this action is
dismissed with prejudice.

2.

A separate judgment will be entered pursuant to Fed. R. Civ. P. 58.

SO ORDERED this the 27 day of July, 2012.
s/ Michael T. Parker
United States Magistrate Judge

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