Fulford v. Perry et al

Filing 40

ORDER granting 36 Motion for Summary Judgment; denying 38 Motion ; denying 38 Motion for Summary Judgment. A separate judgment will be entered. Signed by Magistrate Judge F. Keith Ball on 8/11/15. (Copy mailed to Plaintiff.) (dfk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
CORRY FULFORD

PLAINTIFF

VS.

CIVIL ACTION NO. 3:14cv903-FKB

GLORIA PERRY, et al.

DEFENDANTS

OPINION AND ORDER
Corry Fulford is a state prisoner currently incarcerated at the Central Mississippi
Correctional Facility (CMCF). He brought this action pursuant to 42 U.S.C. § 1983
alleging inadequate medical care. Presently before the Court is the motion of Defendants
for summary judgment [36] and Plaintiff’s cross motion for summary judgment [38].
Plaintiff suffers from kidney disease, for which he undergoes regular dialysis
treatment. Plaintiff contends that dialysis makes him ill and that he is in need of a kidney
transplant. He also alleges that during a period of federal custody, medical professionals
recommended that he receive a kidney transplant and that Mississippi prison officials
have failed to follow that recommendation. He seeks a declaratory judgment that his
rights have been violated, an injunction requiring prison officials to arrange a kidney
transplant for him, and monetary damages.
In support of their motion, Defendants have submitted the affidavit of Dr. Gloria
Perry, the Chief Medical Officer of the Office of Medical Compliance of the Mississippi
Department of Corrections (MDOC). In her affidavit, Dr. Perry states that she has
reviewed Plaintiff’s medical file and that it contains no indication that he is “in dire need of
a kidney transplant” as he alleges. Dr. Perry states that his records indicate that he can
be maintained on hemodialysis without major issues. She also states that MDOC has

been provided with no documentation indicating that there has been a recommendation
for a kidney transplant for Plaintiff. In response, and in support of his own motion, Plaintiff
has submitted various medical records, including records purporting to be from the United
States Medical Center for Federal Prisoners in Springfield, Missouri. These records are
unaccompanied by any affidavit and are therefore not competent summary judgment
evidence. In any event, a review of them indicates no recommendation that Plaintiff
undergo a kidney transplant.1
In order to succeed under § 1983, Plaintiff must establish that Defendants have
been 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 defendant “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. The Constitution does not require the best or the most
efficient medical care. Plaintiff’s medical records do not support a finding that he has
been denied necessary treatment or treated incorrectly for his condition. The fact that he
disagrees with his treatment and would prefer to have a kidney transplant rather than
continue to undergo dialysis does not give rise to a constitutional claim. See Norton v.
Dimazana, 122 F.3d 286, 292 (5th Cir. 1997).

1

The only portion of the medical records addressing Plaintiff’s alleged need for a
transplant is an undated notation in a history and physical update that states that Plaintiff
“may be a suitable candidate for renal transplantation.” [38] at 14.
2

Accordingly, Defendants’ motion for summary judgment is granted, Plaintiff’s
motion for summary judgment is denied, and this matter is dismissed with prejudice. A
separate judgment will be entered.
SO ORDERED this the 11th day of August , 2015.
/s/ F. Keith Ball
______________________________________
UNITED STATES MAGISTRATE JUDGE

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