Gentry v. Wexford Health Services, et al
Filing
225
ORDER granting 135 Motion for Summary Judgment; granting 138 Motion for Summary Judgment; granting 202 Motion for Summary Judgment; denying 224 Motion to Dismiss; adopting 218 Report and Recommendations of United States Magistrate. The Cou rt finds that the Report and Recommendation of United States Magistrate F. Keith Ball is adopted as the opinion of the Court. Plaintiff's claims against all Defendants are dismissed with prejudice. A judgment will be entered in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on September 7, 2011. (SP)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
JEFFERY SCOTT GENTRY
PLAINTIFF
VS.
CIVIL ACTION NO. 3:09cv173-DPJ-FKB
WEXFORD HEALTH SOURCES, INC.,
KENTRELL LIDDELL, GLORIA PERRY,
APRIL MEGGS, THOMAS LEHMAN,
CHRISTOPHER EPPS, EMMITT SPARKMAN,
RONALD KING, HUBERT DAVIS, JOHNNIE
DENMARK, and RONALD WOODALL
DEFENDANTS
ORDER
Plaintiff Jeffery Scott Gentry filed this action against various defendants involved in
his medical care during his incarceration at South Mississippi Correctional Institution.
There are currently three motions for summary judgment [135, 138, 202], one Report and
Recommendation [218], and one motion for voluntary dismissal [224] pending in this
matter, all of which are addressed in this Order. For the reasons explained below, the
Court finds that the motions for summary judgment should be granted; the unopposed
Report and Recommendation should be adopted as the opinion of the Court; the motion
for voluntary dismissal should be denied; and this action should be dismissed with
prejudice.
I.
Report and Recommendation
Turning first to the Report and Recommendation [218], Magistrate Judge F. Keith
Ball recommended granting the Wexford Defendants’ motion for summary judgment [135]
(filed August 27, 2010) and dismissing all claims against Wexford Health Sources, Inc.,
April Meggs, R.N., Thomas Lehman, M.D., and Ronald Woodall, M.D. with prejudice. On
August 17, 2011, Gentry was given until September 2, 2011, to file his Objections to the
Report and Recommendation. He failed to do so, opting instead to file a motion to
voluntarily dismiss [224] this action, which is addressed in Section III of this Order.
The Court, having fully reviewed the unopposed Report and Recommendation of
the United States Magistrate Judge entered in this case, and being duly advised in the
premises, finds that said Report and Recommendation is meritorious and should be
adopted as the opinion of this Court. The Wexford Defendants’ motion for summary
judgment [135] is granted; all claims against Wexford Health Sources, Inc., April Meggs,
R.N., Thomas Lehman, M.D., and Ronald Woodall, M.D. are dismissed with prejudice.
II.
Remaining Motions for Summary Judgment
Defendants Christopher Epps, Ron King, Emmitt Sparkman, and Gloria Perry filed a
Motion for Summary Judgment [138] on September 3, 2010. Defendant Kentrell Liddell
filed a separate motion for Motion for Summary Judgment [202] on July 4, 2011. Plaintiff
has failed to respond to the motions.1 Having considered the motions and supporting
evidence, the Court concludes that the motions should be granted. Furthermore, the
Court finds that the claims against Defendants Hubert Davis and Johnnie Denmark should
be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2).
1
The motion of Epps, King, Sparkman and Perry was filed September 3, 2010.
Since that time, Plaintiff has requested and received numerous extensions to respond to
the motion based upon his contentions that he has not received adequate discovery.
Defendant Liddell’s motion was filed on July 4, 2011. On August 5, 2011, the magistrate
judge entered an order denying Plaintiff’s pending motions for additional discovery and
setting Friday, August 12, 2011, as the deadline for responding to both summary
judgment motions. Upon Plaintiff’s motion, this deadline was extended to August 31,
2011. Instead of filing his responses, Plaintiff moved for voluntarily dismiss his claims,
which is addressed in Section III of this Order.
2
Jeffrey Scott Gentry is a state inmate currently incarcerated at Central Mississippi
Correctional Facility (CMCF). Defendant Epps is the Commissioner of the Mississippi
Department of Corrections (MDOC); Defendant Sparkman is Deputy Commissioner. Dr.
Gloria Perry is the Chief Medical Director for MDOC, a position formerly held by Dr.
Kentrell Liddell. Ron King is the Superintendent of South Mississippi Correctional
Institution (SMCI).
Gentry brought this action under § 1983 alleging denial of medical
care. Specifically, he claims that prison health professionals wrongfully denied or delayed
outside neurological consults to evaluate his back pain and otherwise failed to provide him
with appropriate treatment and pain medication.
Plaintiff’s prison medical records, which have been submitted in support of the
motions, indicate the following. In 2006, while he was free-world, Plaintiff underwent a
lumbar laminectomy. Since then he has suffered from chronic lumbar pain. When he
entered MDOC custody in 2006, Plaintiff was initially housed at CMCF, where prison
medical personnel, treated his pain with Ultram, a narcotic, and Baclofen, a muscle
relaxer.2 In October of 2007, Plaintiff was transferred to SMCI. At that facility, Wexford
medical personnel chose to manage Gentry’s pain with different medications, in part
because they believed Ultram, a narcotic medication subject to abuse by inmates, was
not appropriate for treatment of chronic pain. Plaintiff filled out frequent and numerous
sick call requests while at SMCI, insisting that the pain medication prescribed for him was
2
Medical care for inmates at CMCF and SMCI is provided by Wexford Health
Sources, Inc. (Wexford) under contract with MDOC. Several of the defendants in this
action are Wexford employees; these defendants have filed a separate motion for
summary judgment.
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not effective. Although alternative medications were prescribed, he nevertheless
continued to complain of lumbar pain and to demand narcotics - particularly Ultram.
Gentry’s primary physician at SMCI was Dr. Ronald Woodall. In March of 2008,
another physician at SMCI, Dr. Charmaine McCleave, submitted a request for a
neurosurgical consult. Dr. Thomas Lehman, the Wexford Associate Regional Director for
Mississippi, reviewed the request, reviewed Plaintiff’s medical records, and discussed the
request with Dr. Woodall. Dr. Lehman concluded that a neurosurgical consult was
unnecessary and denied the request. But several months later, after Plaintiff continued to
complain of back pain, Dr. Woodall requested a neurosurgical consult. This request was
reviewed by MDOC’s Office of Medical Compliance and was approved. As a result, in
June 2008 Plaintiff was transferred to CMCF for an appointment with Dr. Howard Holaday,
a neurosurgeon. Dr. Holaday concluded that Plaintiff needed cervical surgery and
subsequently performed an anterior decompression and fusion at C4-5, C5-6, and C6-7.
He also ordered an MRI of Plaintiff’s lumbar spine. Dr. Holaday did not recommend
lumbar surgery, and he released Plaintiff to return to him on an as-needed basis.
Plaintiff remained at CMCF and continued to complain of pain and to request
narcotic medications, which were provided intermittently but not on a regular basis. In
March of 2009, he was again evaluated by Dr. McCleave. Dr. McCleave requested
approval for an MRI of Plaintiff’s lumbar spine. The request was denied by MDOC’s Office
of Medical Compliance. The request was not approved. Again, in October of 2009, a
nurse practitioner submitted a request for a specialty care consult to perform an MRI of
Gentry’s lumbar spine. In response, Dr. Lehman reviewed all of Plaintiff’s medical records
4
and concluded that the request for an MRI had been based upon an inaccurate history
provided by Plaintiff. Dr. Lehman denied the request.
What is apparent from everything submitted in connection with these motions is that
none of the movants had any personal involvement in the decisions involving Plaintiff’s
medical care. Plaintiff admitted in his testimony at the omnibus hearing that he seeks to
hold Epps, Sparkman, Liddell, and King liable primarily because of their supervisory
positions in the prison system. As to Defendant Perry, he gave as an additional reason
that Dr. Perry denied the third step response to his ARP complaining that his back pain
had not been treated properly. He also stated that he had discussed his medical care
problems with Defendant King. However, nowhere has Gentry alleged, much less
provided evidence of, any direct involvement by these individuals in his healthcare. All of
these Defendants confirm in their affidavits attached to their motions that they played no
part in the medical decisions involved in Gentry’s treatment.
Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a “supervisory liability” or respondeat superior theory. Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Monnell v. Dep’t of Soc. Servs., 436 U.S. 658,
691 (1978)). Rather, in order to establish a constitutional violation under § 1983, a Plaintiff
must show that the defendant directly participated in the denial of his constitutional rights.
Goodman v. Harris Cnty., 571 F.3d 388, 395 (5th Cir. 2009). Plaintiff has failed to come
forward with evidence of any personal involvement on the part of movants. In fact, he has
failed to produce evidence of any unconstitutional conduct by anyone, as he has not
5
shown that any health care provider was deliberately indifferent to his serious medical
needs. See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
For these reasons, summary judgment is hereby be granted in favor of Defendants
Epps, King, Sparkman, Perry, and Liddell, and, additionally, the claims against them are
dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).
Remaining are the claims asserted against Defendants Hubert Davis and Johnnie
Denmark, the warden and deputy warden, respectively, of SMCI. These defendants were
only recently served with process and have not yet filed a motion for summary judgment.
Nevertheless, because Plaintiff is proceeding in forma pauperis, this court has the
authority to dismiss these claims sua sponte under 28 U.S.C. § 1915(e)(2). The Court
concludes that such dismissal is appropriate in this case. Plaintiff testified at the omnibus
hearing that he had named these individuals as defendants because he told them about
the problems he was having with medical care and that they responded by directing him to
write a letter about his problems. He has come forward with no allegations or evidence of
any further involvement on their parts. Thus, he has failed to establish any basis for
holding them liable. Accordingly, the claims against Davis and Denmark are hereby
dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).
III.
Plaintiff’s Motion to Voluntarily Dismiss
As noted, Gentry did not respond to the substance of the Report and
Recommendation or two of the motions for summary judgment [138, 202], opting instead
to file a motion to voluntarily dismiss his claims without prejudice pursuant to Federal Rule
of Civil Procedure 41(a)(2). As discussed above, the dispositive motions in this case, two
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in particular [135, 138], have been pending for an extended period of time and the case
has been pending for over two and one-half years. Having considered the motions, the
Court finds they are meritorious and this action is due to be dismissed with prejudice. In
sum, the Court finds that Plaintiff’s motion to voluntarily dismiss [224] should be denied.3
The Court also points out that pursuant to 28 U.S.C. § 1915(e)(2), the Court has
discretion to dismiss this action at any time if it finds the action is frivolous or fails to state
a claim on which relief may be granted.
3
As explained by the Fifth Circuit Court of Appeals,
The district court's decision to deny a motion for voluntary dismissal under
Federal Rule of Civil Procedure 41(a)(2) is reviewed for abuse of discretion.
Yoffe v. Keller Indus., Inc., 580 F.2d 126, 129 (5th Cir.1978), cert. denied,
440 U.S. 915 (1979). If a defendant will suffer some cognizable prejudice
greater than the mere prospect of a second lawsuit, voluntary dismissal
without prejudice should be denied. 9 C. Wright & A. Miller, Federal
Practice and Procedure § 2364 (1971 & Supp.1990). Important in
assessing prejudice is the stage at which the motion to dismiss is made.
Where the plaintiff does not seek dismissal until a late stage and the
defendants have exerted significant time and effort, the district court may, in
its discretion, refuse to grant a voluntary dismissal. Kramer v. Butler, 845
F.2d 1291, 1294-95 (5th Cir.) (no abuse of discretion for district court to
deny plaintiff's motion for voluntary dismissal where habeas corpus petition
litigated for one year and full evidentiary hearing conducted "at significant
expense to the state and federal governments"), cert. denied, 488 U.S. 865,
109 S.Ct. 168, 102 L.Ed.2d 138 (1988); Pace v. S. Express Co., 409 F.2d
331, 334 (7th Cir.1969) (no abuse of discretion in denying plaintiff's motion
to dismiss where case was pending one and one-half years prior to
submission of motion, considerable discovery was undertaken, and
defendant had briefed motion for summary judgment). . . .
Hartford Acc. & Indem. Co. v. Costa Lines Cargo Servs., Inc., 903 F.2d 352, 360–61 (5th
Cir. 1990).
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IV.
Conclusion
Based on the foregoing, the Court finds that the Report and Recommendation [218]
is adopted as the opinion of the Court; the motions for summary judgment [135, 138, 202]
are granted; and the motion for voluntary dismissal [224] is denied. Plaintiff’s claims
against all Defendants are dismissed with prejudice.
A separate judgment in accordance with Federal Rule of Civil Procedure 58 will be
entered.
SO ORDERED AND ADJUDGED this the 7th day of September, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE
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