Berry v. Woodall et al
ORDER granting 107 Motion for Summary Judgment. Signed by Magistrate Judge F. Keith Ball on 8/27/15. A separate judgment will be entered. (Copy mailed to Plaintiff.) (dfk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
MARVIN RAY BERRY
CIVIL ACTION NO. 3:12cv270-FKB
DAISY THOMAS and
OPINION AND ORDER
Marvin Ray Berry, a state prisoner, brought this action pursuant to 42 U.S.C. §
1983 alleging an unreasonable delay in medical treatment. Previously, summary
judgment was granted in favor of Defendants Wexford Health Sources (Wexford),
Rebecca Pope, and Kalashari Bell. Presently before the Court is the motion for summary
judgment  filed by the remaining defendants, Tom Applegate and Dr. Daisy Thomas.
Plaintiff has not responded to the motion. Having considered the motion and the evidence
of record, the Court concludes that the motion should be granted.
Plaintiff’s allegations are as follows. In 2007 prior to his incarceration, Berry
sustained a moderate cervical disc protrusion as a result of an automobile accident.
Plaintiff’s physician indicated to him that he would probably eventually need surgery.
However, the physican recommended that Plaintiff first undergo a trial of physical therapy.
When Plaintiff entered the custody of the Mississippi Department of Corrections in April of
2008, he had not undergone any surgery for his condition. Upon intake at Central
Mississippi Correctional Facility (CMCF), Berry informed prison officials about his injury
and pain and told them that he needed surgery. However, prison medical personnel told
him he was simply suffering from arthritis. Berry was not referred to a neurosurgeon until
2011, and he underwent a cervical fusion in December of that year.
In support of their motion, movants have submitted, inter alia, Plaintiff’s prison
medical file and the affidavits of Defendant Thomas and Joe Ebbitt. Dr. Thomas is a
medical doctor who was previously employed by Wexford, the contract medical provider
for Central Mississippi Correctional Facility (CMCF). Dr. Thomas treated Plaintiff on
several occasions from 2009 through 2011. She states in her affidavit that in September
of 2009, Berry presented with complaints of neck pain from a fall. Dr. Thomas sent him to
the emergency room and upon his return, she gave him pain medication. Dr. Thomas
saw Plaintiff several times thereafter, but during those visits, Plaintiff made no significant
complaints of back or neck pain. Rather, Plaintiff’s back and neck pain were treated
primarily by other physicians at the clinic. In March of 2011, another physician ordered
cervical x-rays. The report from those x-rays showed hypertrophic spurring. When Dr.
Thomas saw Plaintiff in May of 2011, she requested a neurosurgical consult. That
request was granted, and Plaintiff underwent surgery. Dr. Thomas states that she
believes that Plaintiff received the necessary and appropriate treatment, including
conservative treatment for his pain until the x-rays indicated that a referral was
Joe Ebbitt is the Director of Risk Management, HIPAA Compliance, and Legal
Affairs for Wexford. He states in his affidavit that from April 2011 until April 2012,
Thomas Applegate was employed by Wexford as a site manager at CMCF. According to
Mr. Ebbitt, Defendant Applegate is not a medical doctor and would have not been involved
in decisions regarding Plaintiff’s medical treatment.
In order to succeed on a medical claim under § 1983, a prisoner must establish
that the defendants were deliberately indifferent to his serious medical needs. Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); see also Estelle v. Gamble, 429 U.S. 97, 105
(1976). To establish deliberate indifference, a prisoner must show that the defendants
“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.” Domino v. Texas Dep’t of Criminal Justice, 239 F.3d 725, 756
(5th Cir. 2001). Plaintiff has failed to meet this standard. Nothing in Plaintiff’s medical
records or elsewhere in the record supports a finding that Defendant Thomas intentionally
delayed treatment or otherwise wantonly disregarded Plaintiff’s complaints of pain.
Rather, the most that the evidence establishes is that Plaintiff would have preferred to
have received less conservative treatment for his pain and to have been referred to a
neurosurgeon at an earlier date. Berry’s dissatisfaction and disagreement with the
conservative treatment for his pain does not give rise to a constitutional claim. See
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). Furthermore, the undisputed
evidence establishes that Defendant Applegate had no role in Plaintiff’s medical care.
Thus, the Court concludes that Plaintiff has failed to establish the existence of a genuine
factual issue and that movants are entitled to judgment as a matter of law.
Accordingly, the motion is granted. A separate judgment will be entered.
SO ORDERED this the 27th day of August, 2015.
/s/ F. Keith Ball
UNITED STATES MAGISTRATE JUDGE
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