Allen v. Woodall et al

Filing 69

ORDER granting 53 Motion for Summary Judgment; granting 56 Motion for Summary Judgment. Signed by Magistrate Judge Michael T. Parker on January 9, 2013. (KM)

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

PLAINTIFF

VS.

CIVIL ACTION NO. 2:11cv209-MTP

DR. RON WOODALL, ET AL.

DEFENDANTS

OPINION AND ORDER
THIS MATTER is before the court on the Motions for Summary Judgment [53][56] filed
by the Defendants. Having reviewed the submissions of the parties and the applicable law, the
court finds that the Defendants’ Motions for Summary Judgment [53][56] should be granted.
FACTUAL BACKGROUND
Plaintiff Gary Dewayne Allen, proceeding pro se and in forma pauperis, filed his
Complaint [1] pursuant to 42 U.S.C. § 1983 on October 14, 2011. Through his complaint, and as
clarified during his Spears1 hearing, Plaintiff alleges claims against Defendants Dr. Ron
Woodall, Wexford Health Sources, Inc. (“Wexford”), Mike Hatten, and Gloria Perry for the
denial and/or delay of adequate medical treatment in violation of the Eighth Amendment. See
Omnibus Order [46].2 The allegations in Plaintiff’s complaint occurred while he was a postconviction inmate at the South Mississippi Correctional Institution (“SMCI”), where he is
currently incarcerated. Plaintiff seeks monetary damages, proper medical treatment for his

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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). Plaintiff’s Spears hearing took place
on March 22, 2012. See Omnibus Transcript, Ex. D to Motion [56-4].
2

Plaintiff’s claims against Christopher Epps were dismissed by Order [46] dated March
26, 2012.
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conditions, and complete knee replacement surgery for his right knee.
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 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. “Conclusory allegations,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
902 (1990), the presence of a “scintilla of evidence,” Davis v. Chevron U.S.A., Inc., 14 F.3d
1082, 1086 (5th Cir. 1994), 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

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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).
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 Soc. Servs., 436 U.S. 658, 694 (1978).
Plaintiff alleges a claim against Defendants Dr. Ron Woodall, Wexford, Gloria Perry,
and Mike Hatten for the denial and/or delay of adequate medical treatment in violation of the
Eighth Amendment. Specifically, he claims that Dr. Woodall failed to refer him to Dr. Johansen
(an outside provider) for knee surgery stemming from an injury he received in January 2004,
prior to his incarceration. He further claims that Dr. Woodall lied about his MRI results, that the
medication he prescribes him for his knee causes liver damage, and that he is giving him the
wrong medication for his prostate problem. See Ex. D to Motion [56-4].
Plaintiff alleges he sued Wexford because it is Dr. Woodall’s employer and it is
responsible for Dr. Woodall’s actions. Plaintiff alleges that Gloria Perry “upholds” Dr.
Woodall’s opinions and allows him to “falsify” medical records and deny inmates medical care.
Plaintiff claims that Mike Hatten “upholds” Dr. Woodall’s opinions even though he knows Dr.

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Woodall “falsified” Plaintiff’s medical records.
Res Judicata
As an initial matter, Defendants Dr. Woodall and Wexford argue that Plaintiff’s claim
that Dr. Woodall denied him surgery for his knee has already been brought before the court and
dismissed, and thus, is barred by res judicata. See Memo. [57]; Exs. A-C to Motion [56]. The
record reflects that Plaintiff’s knee was injured in January 2004, prior to his incarceration,3 and
he was treated by Dr. Lance Johnansen. On March 24, 2004, Dr. Johansen performed a video
arthroscopy surgery, debridement of medial joint space, and debridement of patellofemoral joint.
Ex. D to Motion [56-4]; Ex. E [60-1] at 37-48.
In the prior action, Plaintiff complained that prison officials, including Dr. Woodall,
refused to allow him to continue treatment with Dr. Johansen for necessary knee replacement
surgery regarding the same knee injury from 2004. Plaintiff conceded that defendants offered to
take him to Jackson, Mississippi for the knee surgery at the State’s expense, but he refused this
course of treatment. In an order dated October 30, 2009, U.S. Magistrate Judge Robert Walker
dismissed Plaintiff’s lawsuit for failing to state a claim against any of the defendants for
inadequate medical care. See Allen v. Gunn, No. 1:08CV393–RHW, 2009 WL 3561541, at *1
(S.D. Miss. Oct. 30, 2009).
In the Fifth Circuit, “an action is barred by the doctrine of res judicata if: 1) the parties
are identical in both actions; 2) the prior judgment was rendered by a court of competent
jurisdiction; 3) the prior judgment was final on the merits; and 4) the cases involve the same

3

Plaintiff entered MDOC custody on approximately May 3, 2004. See
http://www.mdoc.state.ms.us/InmateDetails.asp?PassedId=103328 (last visited December 19,
2012).
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cause of action.” Travelers Ins. Co. v. St. Jude Hosp. of Kenner, La., Inc., 37 F.3d 193, 195 (5th
Cir. 1994). Both the current action and the prior action referenced above include Dr. Ron
Woodall and the judgment in the prior action was rendered by a court of competent jurisdiction.
The prior final judgment was also based on the merits. Finally, the cases involve the same cause
of action based on the same nucleus of operative facts: deliberate indifference to a serious
medical need regarding the denial of surgery or proper treatment for Plaintiff’s knee. Id.
Based on the foregoing, the court will not consider any claim by Plaintiff that Dr.
Woodall failed to approve or refer him for knee surgery prior to October 30, 2009 (the date of
the prior judgment), as such claims are barred by res judicata. Plaintiff appears to clarify in his
Responses [62][63] that his claims regarding his knee in this action center around Dr. Woodall’s
alleged tampering of an MRI record taken on May 5, 2011.
Denial and/or Delay of Adequate Medical Treatment
“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 inmate health or safety; the official must both be aware of facts
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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). “[D]elay in medical care can only constitute an Eighth Amendment violation if there has
been deliberate indifference, which results in substantial harm.” Mendoza v. Lynaugh, 989 F.2d
191, 195 (5th Cir. 1993).
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). The 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. 4:03cv141-WHB-JCS, 2006 WL 2827551, at *7 (S.D. Miss. Sept. 25, 2006).
Further, a prisoner’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).
The record reflects that an x-ray of Plaintiff’s right knee was taken on July 1, 2010.4
There was no fracture or significant arthritic change. See Ex. E [60] at 248. Plaintiff was given
a knee brace in November 2010. See Ex. E [60] at 235-36.
Dr. Gloria Perry sent Plaintiff to Forrest General to get an MRI of his right knee on May
5, 2011. The radiologist’s impression was: “only mild degenerative signal characterization of
the posterior horn of the medial meniscus with no acute findings identified.” See Ex. E [60] at

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This is the first record before the court regarding Plaintiff’s knee after the final judgment
in the prior action, October 30, 2009.
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216-17.
On or about January 11, 2012, a x-ray of Plaintiff’s right knee was taken. The
radiologist’s report indicated “subtle changes of the right knee with no acute bone fracture or
dislocation notes.” It further stated, “If further evaluation of the soft tissue structures of the right
knee is clinically, indicated, consideration for MRI would be suggested.” See Ex. E [60-1] at 94.
On May 7, 2012, Plaintiff saw Dr. Michael Stonnington at Southern Bone and Joint
Specialists, P.A. for right knee pain. After a physical examination and x-ray, Dr. Stonnington’s
conclusion was that he did not recommend surgical intervention. Plaintiff received an injection
in his knee. Dr. Stonnington recommended that Plaintiff not take nonsteroidal anti-inflammatory
medication, as “it sounds like he has had liver affects from this in the past.” However, he noted
that Plaintiff was taking Tylenol without any problems. Dr. Stonnington deferred all further
treatment to his prison physician and noted that he would see him as needed. See Ex. E [60-1] at
229-31.
In his affidavit, Dr. Ron Woodall states that he is familiar with the MRI report from
Forrest General Hospital, and he has not tampered with or changed the contents of the report.
Dr. Woodall states that he is familiar with Plaintiff’s treatment at SMCI and his records from
Southern Bone & Joint Clinic, and that in his opinion, Plaintiff did not require additional
surgery. In addition to the treatment outlined above, Dr. Woodall states that Plaintiff has been
provided with various pain medications and anti-inflammatories, including Mobic, Ultram,
Naproxyn, Ibuprofen, Toradol, and Solumedrol. Dr. Woodall opines that Plaintiff has received
the necessary and appropriate treatment for all of his medical conditions for which he has made a
complaint. See Ex. F to Motion [56-6].
Plaintiff has been treated for complaints of stomach pain, and his medications include
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Tums, Prilosec, and Famotidine (Pepcid). Plaintiff has been treated for prostatitis; his
medications include Cipro, an antibiotic, and Terazosin (Hytrin) and Cardura, both used to treat
hypertension and improve urination in men with an enlarged prostrate. He has also been treated
in the Chronic Care Clinic for Gastroesphogeal Reflux Disease (GERD). See Ex. F to Motion
[56-6].
Dr. Woodall
Based on the record, Plaintiff was provided treatment for his knee condition and related
pain, his prostatitis, and other ailments. There is no evidence that Dr. Woodall or any other
medical provider at SMCI denied Plaintiff medical care or ignored his complaints. Indeed,
Plaintiff was seen by several outside specialists, and according to his most recent visit at
Southern Bone and Joint Specialists, P.A. on May 7, 2012, Dr. Stonnington did not recommend
surgical intervention. See Ex. E [60-1] at 229-31. While Plaintiff may disagree with the
treatment he received, this does not amount to deliberate indifference. See Norton, 122 F.3d at
292. Moreover, other than Plaintiff’s conclusory allegations, there is no evidence that Dr.
Woodall altered or tampered with Plaintiff’s May 5, 2011, MRI report.
Plaintiff’s disagreement with the medications prescribed for his prostate condition does
not amount to deliberate indifference. See Norton, 122 F.3d at 292. There is no evidence that
Dr. Woodall deliberately prescribed the wrong medication for Plaintiff’s prostatitis.
Further, there is no summary judgment evidence that the medication Dr. Woodall
prescribed for Plaintiff’s knee has caused him liver damage. While Dr. Stonnington
recommended that Plaintiff not take nonsteroidal anti-inflammatory medication during his visit
on May 7, 2012, it appears this recommendation was based on what Plaintiff told him; Dr.
Stonnington noted, “it sounds like he has had liver affects from this in the past.” See Ex. E [608

1] at 229-31. Even assuming some of the medications prescribed by Dr. Woodall did affect
Plaintiff’s liver, there is no evidence that he deliberately prescribed a medication that he knew
would adversely affect Plaintiff. Neither negligence nor medical malpractice amounts to
deliberate indifference. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir.2006)
(“Unsuccessful medical treatment, acts of negligence, or medical malpractice do not constitute
deliberate indifference ....”).
Wexford
Plaintiff alleges he sued Wexford because it is Dr. Woodall’s employer and it is
responsible for Dr. Woodall’s actions. There is no respondeat superior liability under Section
1983. Oliver v. Scott, 276 F.3d 736, 742 & n.6 (5th Cir. 2002); see also Powell v. Shopco Laurel
Co., 678 F.2d 504, 505-06 (1982) (holding that plaintiff could not recover against private stateemployed 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). Plaintiff’s disagreement with his medical treatment 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 on Plaintiff’s claims for
deliberate indifference to his serious medical needs.
Dr. Perry and Mike Hatten
Plaintiff alleges that Gloria Perry, “upholds” Dr. Woodall’s opinions and allows him to
“falsify” medical records and deny inmates medical care. Plaintiff claims that Mike Hatten
“upholds” Dr. Woodall’s opinions even though he knows Dr. Woodall “falsified” Plaintiff’s
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medical records.
As stated above, there is no respondeat superior liability under Section 1983. Oliver, 276
F.3d at 742 & n.6. Moreover, according to their affidavits, Gloria Perry, as Chief Medical
Officer of the MDOC Office of Medical Compliance, and Mike Hatten, as Health Services
Administrator at SMCI, “have no responsibility and/or authority regarding decisions concerning
course of medical treatment of individual inmates as such decisions are made by the onsite
medical providers at each prison facility.” Exs. A and B to Motion [53]. Their affidavits further
state that they “have never allowed Dr. Ron Woodall to falsify medical records and deny inmates
necessary medical care . . . .” Id. Other than Plaintiff’s conclusory allegations, there is simply
no evidence that Dr. Woodall altered or tampered with Plaintiff’s May 5, 2011, MRI report and
that Dr. Perry and Mr. Hatten had knowledge of same.
CONCLUSION
Based on the foregoing, Defendants are entitled to judgment as a matter of law and this
action should be dismissed.5 Accordingly,
IT IS, THEREFORE, ORDERED:
That Defendants’ Motions for Summary Judgment [53][56] are GRANTED and that this
action is dismissed with prejudice. A separate judgment will be entered.
SO ORDERED this the 9th day of January, 2013.
s/ Michael T. Parker
United States Magistrate Judge

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Because the court concludes that there is no genuine issue as to whether Defendants
violated Plaintiff’s constitutional rights, it declines to address the arguments regarding qualified
immunity.
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