Wheeler v. McMillian et al
Filing
46
MEMORANDUM OPINION AND ORDER granting 38 Motion for Summary Judgment. Signed by Magistrate Judge Linda R. Anderson on 12/29/14. Copy mailed to Plaintiff. (WS)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
JOHNNIE EARL WHEELER, #32067
VS.
PLAINTIFF
CIVIL ACTION NO. 3:13CV297-LRA
LORI DOSS, ET AL.
DEFENDANTS
Memorandum Opinion and Order
This cause is before the Court on the Motion for Summary Judgment filed by the
remaining Defendants, Lori Doss and Sheriff Steve Rushing [38].
I.
Facts
The facts are set out in the Court’s prior opinion [43] dismissing Defendant
Bateman. To summarize, Plaintiff Johnnie Earl Wheeler was incarcerated in the Lincoln
County Jail (“LCJ”) from December 1, 2011, through May 10, 2012, and then again from
June 4, 2012, through January 31, 2013. Wheeler asserts that he was not provided
appropriate medical care for his Type II diabetes. He admits that he was provided
some medical care by Defendant Nurse Doss, but contends the care was not adequate.
Nurse Doss, a Licensed Practical Nurse at LCJ, provided Wheeler’s medical care under
the supervision of Dr. Bateman, a local physician.
Wheeler’s initial Complaint did not name Nurse Doss or Sheriff Rushing as a
defendant. By Order dated August 29, 2013 [14], he was allowed to amend to sue
Nurse Doss and Sheriff Rushing by his pleading filed August 27, 2013 [13]. In this
pleading, Wheeler makes these allegations against Nurse Doss and Sheriff Rushing:
Prior to: May 9, 2012; I submitted a medical form to Mrs.
Lori Doss, because my sugar had been going up and down. I
was feeling bad. No response.
On December 4, 2012 I wrote Mr. Steve Rushing about
my medical, and diet situation, and receive no response.
....
On, December 10, 2012, my sugar level was 287
almost double what it should be; so on, December 14, 2012,
I wrote another medical form to Mrs. Lori Doss. My sugar level
was: 333; this was; 12-19-212. Plaintiff had been sick since 12-9-2012. I was having headaches cold chills, vomiting and
poor vision problems.
Mrs. Doss informed me that she had to speak to doctor
Bateman to go to the doctor; Mrs. Doss said that all medical
forms went to Dr. Bateman, but he was on vacation out of
the country, and wouldn’t [sic] be back in about a month.
Because my sugar level was 333, Mrs. Doss gave me
a shot to bring my sugar down.
[13] at 3-4.
At the omnibus hearing, Wheeler explained his claims against Nurse Doss and
Sheriff Rushing as follows:
Well, I was having problems with my diabetes, and I think it
was November of 2012. And I didn't have my medical diet correct.
I knew that I wasn't supposed to be eating the stuff I was eating, but
I didn’t have no choice because I was incarcerated in the jail.
So I went to Ms. Doss as well as Mr. Welch, Mr. Rushing
concerning that, my diet because I was going through problems. I
was suffering with my diabetes in jail. So I think it was in -- I went -had to be rushed to the hospital in November. I had to be rushed to
the hospital in December, and I had to be rushed to the hospital
in May. I was having diabetic attacks because I was eating improper
food and given improper medications and so forth.
I had explained this to Ms. Doss. I explained it to the
sheriff . . . .
[38-2] at 9-10.
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Plaintiff testified that he received his diabetes medication “most of the time” [38-2]
at 21, but there were other medications and tests he did not receive that he should have
been given. [38-2] at 14-15. Plaintiff also claimed that he did not receive the diabetic
meals ordered for him. Plaintiff testified that although he received medical care during
his incarceration, it basically was not “up to par.” [38-2] at 22.
II. Standard of Review
“Summary judgment is appropriate if the moving party can show that ‘there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.’” United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012)
(quoting Fed.R.Civ.P. 56(a)). “A factual dispute is ‘genuine’ where a reasonable party
would return a verdict for the nonmoving party.” Chiu v. Plano Indep. Sch. Dist., 339
F.3d 273, 282 (5th Cir. 2003) (quoting Lukan v. North Forest Indep. Sch. Dist., 183 F.3d
342, 345 (5th Cir. 1999)). When considering a summary judgment motion, a court “must
review all facts and evidence in the light most favorable to the non-moving party.” Juino
v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013). However,
“[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are
not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, 337
F.3d 539, 541 (5th Cir. 2003) (citing Bridgmon v. Array Sys. Corp., 325 F.3d 572, 577
(5th Cir. 2003); Hugh Symons Group, plc v. Motorola, Inc., 292 F.3d 466, 468 (5th Cir.
2002)).
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III. Constitutional Claim
The Eighth Amendment prohibition against cruel and unusual punishment forbids
deliberate indifference to the serious medical needs of prisoners. Estelle v. Gamble,
429 U.S. 97, 104 (1976). However, "[u]nsuccessful medical treatment, acts of
negligence, or medical malpractice do not constitute deliberate indifference, nor does
a prisoner's disagreement with his medical treatment, absent exceptional
circumstances."
Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
The
undersigned finds no "exceptional circumstances" which would promote this medical
neglect claim to a constitutional claim.
According to the Affidavit of Nurse Doss, submitted in support of Defendants’
motion, Wheeler was prescribed Metformin, a drug used to control Type II diabetes.
[38-4]. He received this medication while incarcerated at LCJ. On several occasions,
Plaintiff’s blood sugar rose, and, at Nurse Doss’s direction, he was taken to the hospital
for treatment. [38-4]. On one occasion when Plaintiff’s blood sugar rose, Dr. Bateman
instructed Nurse Doss to give Wheeler an injection of 10 units of insulin to counter his
high sugar level; Wheeler refused to allow Nurse Doss to administer the medication,
ultimately agreeing to allow her to administer only half the dose. [38-4] at 3.
In support of their motion, Defendants also submitted the Affidavit of Kedria
Yarborough. [38-6]. Yarborough, who was the Kitchen Supervisor at the LCJ during the
relevant time period, avers that Plaintiff was provided a diabetic plate during his
incarceration but that he was not pleased with the diet. Yarborough states that Plaintiff
frequently attempted to obtain sweets not allowed on his diabetic diet. [38-6] at 3. At
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the omnibus hearing, Plaintiff admitted to obtaining honey buns from the canteen during
his incarceration. [38-2] at 24.
In his response to Defendants’ motion, Plaintiff
addressed the Yarborough Affidavit by arguing that he did not receive a diet plate, but
received the same food as the other inmates, just in smaller portions. [40]. This is
consistent with Defendants’ position that diabetics were provided smaller portions and
no sweets. [38-6]. Plaintiff argues that he still received food like white rice, contrary
to the recommendation of his doctor. [40]. Defendants assert that starches were served
to all inmates, but were prepared differently for the diabetic inmates. [38-6]. Though the
Court may not decide disputed issues of material fact on summary judgment, Plaintiff’s
assertion that he was not receiving a diabetic plate is simply unsubstantiated. See
Brown, 337 F.3d at 541.
Dissatisfaction with the treatment provided by Defendants does not rise to the
level of a constitutional violation. Plaintiff's own testimony confirms that his claims are
based on his view that he should have been treated in a different manner. 42 U.S.C.
§ 1983 has never been interpreted to provide that simple negligence on the part of a
prison official is a basis for a constitutional violation. Daniels v. Williams, 474 U.S. 327
(1986); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Wheeler testified that
he was treated for his diabetes both with medications prescribed at the jail and by being
treated at the hospital on at least two occasions. Wheeler’s own sworn testimony
negates any claims of "deliberate indifference" on the part of either remaining
Defendant.
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All of Wheeler’s claims are claims of medical malpractice and are based upon
theories of medical neglect: the failure to treat him properly so as to keep his diabetes
controlled.
Plaintiff was obviously not satisfied with his medical care during his
incarceration. Again though, mere displeasure with the treatment provided does not
equal unreasonable care or “deliberate indifference” to a serious medical need. Plaintiff
has not set forth an arguable constitutional claim in his complaints regarding Nurse
Doss or Sheriff Rushing. A claim concerning a disagreement between an inmate and
medical personnel regarding diagnosis and course of treatment does not implicate the
Eighth Amendment. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985). Plaintiff’s
self-diagnosis of what medications or treatments he believed he needed states nothing
more than a disagreement with the medical staff’s decisions. Wheeler’s own testimony
and allegations rebut any showing of intentional mistreatment; his complaints were
addressed, not ignored, and there was no “refusal” to treat.
A prisoner is not entitled to his choice of treatments. Id; Mayweather v. Foti, 958
F.2d 91 (5th Cir. 1992). As the Mayweather Court explained: “The treatment may not
have been the best that money could buy, and occasionally, a dose of medication may
have been forgotten, but these deficiencies were minimal, they do not show an
unreasonable standard of care, and they fall far short of establishing deliberate
indifference by the prison authorities.” Mayweather, 958 F.2d at 91. “[T]he question
whether . . . additional . . . treatment is indicated is a classic example of a matter for
medical judgment.” Estelle, 429 U.S. at 107. “[A] disagreement between an inmate
and his physician concerning whether certain medical care was appropriate is
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actionable under § 1983 only if there were exceptional circumstances.” Banuelos v.
McFarland, 41 F.3d 232, 235 (5th Cir. 1995). Questions of medical judgment are not
subject to judicial review. Russell v. Sheffer, 528 F.2d 318 (4th Cir. 1975).
III.
Conclusion
Since the Court concludes that Plaintiff has failed to establish a constitutional
violation, the remainder of Defendants’ arguments will not be addressed.
IT IS THEREFORE ORDERED AND ADJUDGED that:
Defendants’ Motion for Summary Judgment [38] is hereby GRANTED.
IT IS FURTHER ORDERED that the Complaint is dismissed with prejudice, and
a separate Final Judgment in favor of all Defendants shall be entered on this date.
SO ORDERED, this the 29th day of December, 2014.
/s/ Linda R. Anderson
UNITED STATES MAGISTRATE JUDGE
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