Burton v. Hoskins et al
Filing
90
MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the motion to strike plaintiffs response to defendants' motion for summary judgment and plaintiff's response to defendants' statement of undisputed facts (#87) filed by defendants Amanda Gibson, Dr. Michael Hakala, Stephanie Kasting, and Terry Mitchell is DENIED. IT IS FURTHER ORDERED that the motion for summary judgment (#73) filed by defendants Amanda Gibson, Dr. Michael Hakala, Stephanie Kasting, and Terry Mitchell is GRANTED. A s eparate Judgment in favor of those defendants will accompany this Memorandum and Order. IT IS FURTHER ORDERED that Defendant Terri Martinez shall file a motion for summary judgment within ten days or this matter will be set for trial. Defendant Marti nez may file a motion for summary judgment adopting the record of the defendants currently before the Court on this motion and may file any supplemental arguments or documents in support of her motion. Plaintiff shall have twenty-one days thereafter to file a response and may adopt his response and evidentiary submissions in the record before the Court on this motion. Defendant Martinez shall have seven days thereafter to file a reply.( Response to Court due by 3/28/2014.) Signed by District Judge Stephen N. Limbaugh, Jr on 3/18/14. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
VICTOR RAY BURTON,
Plaintiff,
v.
STEPHANIE KASTINGS, et al.,
Defendants.
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Case No. 1:10CV165 SNLJ
MEMORANDUM AND ORDER
This matter is before the Court on defendants’ motion for summary judgment and
motion to strike plaintiff’s supplemental responses to defendants’ motion and statement
of undisputed facts. Responsive pleadings have been filed and the matter is now ripe for
disposition. For the following reasons, the Court will deny the motion to strike and grant
the motion for summary judgment.
I.
Background
Plaintiff Victor Ray Burton filed this 42 U.S.C. § 1983 claim against defendants
who were on the medical staff at Southeast Correctional Center (SECC) in Charleston,
Missouri, when plaintiff was incarcerated at that facility. Plaintiff complains of a delay
in medical treatment from the date he suffered an injury to his hand, November 13, 2009,
to the date of surgery on his hand, February 4, 2010. Plaintiff alleges that the actions and
inactions of the defendants violated his Eighth Amendment right to be free from cruel
and unusual punishment. Further, he alleges that he has been permanently deformed and
partially disabled as a direct result of the defendants’ deliberate indifference to his serious
medical needs.
Plaintiff filed his original complaint against defendants Sgt. Bryan Hoskins,
Stephanie Kastings, Terry Mitchell, Felicia Dodge, Heather Annesser, Amanda Hill,
Amanda Gibson, and Dr. Michael Hakala. Defendants Sgt. Bryan Hoskins, Felicia
Dodge, Heather Annesser, and Amanda Hill were dismissed by the Court upon motions
of the defendants. Plaintiff filed an amended complaint, which added Terri Martinez as a
defendant. As the case stands at this time, the defendants are Amanda Gibson, Dr.
Michael Hakala, Stephanie Kasting, Terry Mitchell, and Terri Martinez. Defendants
Gibson, Hakala, Kasting, and Mitchell filed a motion for summary judgment. Defendant
Martinez, who was served after the motion was filed, is not a party to the motion.
In their motion for summary judgment, defendants argue that they are entitled to
judgment as a matter of law because plaintiff is unable to present evidence that they acted
with deliberate indifference to plaintiff’s serious medical needs or that any delay in
treatment of plaintiff’s fractured hand caused or had a detrimental effect. They contend
that the medical records and undisputed facts demonstrate that plaintiff was provided
with appropriate medical care for his hand injury.
II.
Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a
motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
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burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op.
Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden,
the nonmoving party must do more than show that there is some doubt as to the facts.
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Instead, the nonmoving party bears the burden of setting forth specific facts showing that
there is sufficient evidence in his favor to allow a jury to return a verdict for him.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324.
In ruling on a motion for summary judgment, the court must review the facts in a
light most favorable to the party opposing the motion and give that party the benefit of
any inferences that logically can be drawn from those facts. Matsushita, 475 U.S. at 587;
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The Court may not
“weigh the evidence in the summary judgment record, decide credibility questions, or
determine the truth of any factual issue.” Kampouris v. St. Louis Symphony Soc., 210
F.3d 845, 847 (8th Cir. 2000). The court is required, however, to resolve all conflicts of
evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chemical
Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
The movant’s statement of facts are deemed admitted if not specifically
controverted by the party opposing the motion. Local Rule 4.01(E) provides:
A memorandum in support of a motion for summary judgment shall have attached
a statement of uncontroverted material facts, set forth in a separately numbered
paragraph for each fact, indicating whether each fact is established by the record,
and if so, the appropriate citations. Every memorandum in opposition shall
include a statement of material facts as to which the party contends a genuine issue
exists. Those matters in dispute shall be set forth with specific references to
portions of the record, where available, upon which the opposing party relies. The
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opposing party also shall note for all disputed facts the paragraph number from
movant’s listing of facts. All matters set forth in the statement of the movant
shall be deemed admitted for purposes of summary judgment unless specifically
controverted by the opposing party.
(emphasis added). Even so, where a plaintiff fails to respond adequately to a motion for
summary judgment, the court should not treat such a non-response as sufficient to dispose
of the motion. Lowry v. Powerscreen USB, Inc., 72 F.Supp.2d 1061, 1064 (E.D. Mo.
1999) (citing Canada v. Union Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997).
“Courts should proceed to examine those portions of the record properly before them and
decide for themselves whether the motion is well taken.” Id.
III.
Facts
In his response to the motion, plaintiff did not dispute the defendants’ statement of
facts with specific references to portions of the record as required by Local Rule 4.01(E)
and Federal Rule of Civil Procedure 56(c)(1). As a result, the defendants’ facts are
deemed admitted. The undisputed facts are set forth below.
Plaintiff, now an inmate at Tipton Correctional Center in Tipton, Missouri, claims
that when he was confined at SECC, the defendants failed to provide him with timely and
necessary medical treatment for his broken hand. On Friday, November 13, 2009,
plaintiff was involved in a physical conflict with another inmate. Correctional officers
broke up the altercation and delivered plaintiff to a segregated housing unit for
confinement where he had an initial evaluation by medical staff. During the initial
evaluation, plaintiff complained that he thought he might have broken his hand. Upon
examination by Nurse Felicia Dodge, it was noted that plaintiff’s right outer hand was
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swollen and tender to touch. Plaintiff was confined to the segregation unit from
November 13, 2009 through December 2, 2009.
Plaintiff filed a medical service request on December 4, 2009 complaining of dry
skin. On December 7, 2009, plaintiff was seen by Nurse Amanda Gibson regarding his
complaint of dry skin. On December 8, 2009, plaintiff was seen in response to a medical
service request he filed on December 7, 2009 in which he requested a hand and finger
assessment. At this nurse encounter, plaintiff complained that he thought he “sprained”
his wrist or “broke it” about a month ago and he “was supposed to get an x-ray but never
heard anything.” Plaintiff further complained that “it still hurts” and he “can’t put
pressure on it or lift heavy items.” Plaintiff was examined by Nurse Amanda Ulmer and
her assessment was that he had a sprain. Plaintiff was directed to take Ibuprofen 200 mg
tablets for pain. He was further instructed to return to sick call in two days if he was not
better.
On January 5, 2010, plaintiff had x-rays on his right hand and wrist. The x-rays
revealed that the component bones of the wrist appeared intact without fracture or
dislocation. There was an incidental finding of fracture involving the base of the fifth
metacarpal. There was some callous formation at the fracture site and the fracture
fragments appeared separated. The osseous structures of the hand were otherwise grossly
intact. The impression was that the hand x-ray revealed a healing intra-articular fracture
at the base of the fifth metacarpal.
On January 6, 2010, Dr. Michael Hakala examined plaintiff regarding his
complaints that his right hand was swollen. Plaintiff explained he had been in a fight in
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November and after the fight his right hand swelled. Dr. Hakala’s assessment was a
fracture at the base of the fourth metacarpal on the right hand. Dr. Hakala’s plan was to
prescribe Naproxen 500mg tablets for the pain and to request an orthopedic consultation.
Dr. Hakala requested a referral for an orthopedic consultation on January 6, 2010. Dr.
Hakala requested the referral because plaintiff had pain in his right hand and a weak grip
due to the pain. Plaintiff also exhibited limited dorsi and palmar flex because of the pain.
Dr. Hakala’s referral request was approved on January 6, 2010.
Plaintiff filed a medical service request on January 20, 2010 regarding questions
about his medications. On January 21, 2010, in response to his medical service request,
plaintiff had a nurse encounter appointment with Terry Mitchell. At the appointment,
plaintiff complained that his right hand was still swollen and hurt and that he had an x-ray
and the doctor stated his hand was broken. Plaintiff further complained that the
medication he was taking for the pain was not working and wanted different pain
medication. Plaintiff described the pain as a 7 or 8 out of a 1-10 pain scale. Nurse
Mitchell noted that he had an edema to the outer part of his hand, generally the palm area.
Nurse Mitchell’s plan was to refer plaintiff to the doctor for examination.
On January 22, 2010, plaintiff saw Dr. Flood for his orthopedic consultation.
Plaintiff complained that he had pain in his hand with decreased ability for grip strength
and use of his hand. Dr. Flood’s assessment was plaintiff had right hand fifth metacarpal
fracture at the base and decreased grip strength. After discussion of various treatment
options, plaintiff chose to proceed with open reduction internal fixation of the malunion.
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Dr. Flood recommended immediate surgery. Dr. Flood reported his recommendation to
Dr. Hakala on January 25, 2010.
On January 28, 2010, Dr. Hakala requested a referral to Dr. Flood for an open
reduction internal fixation surgery for the fracture in his hand. The referral was approved
on January 29, 2010. On February 4, 2010, Dr. Flood performed an open reduction
internal fixation of the right fifth metacarpal on plaintiff’s right hand.
Plaintiff submitted his own affidavit setting forth additional facts. His affidavit set
forth the following facts. When Nurse Dodge examined plaintiff on November 13, 2009,
she noted trauma to his hand, gave him an ice bag, and told him that she would place a
request for him to see the doctor. Plaintiff complained about his hand to Nurse Heather
Annesser that evening when she was making rounds. Nurse Annesser noticed the
swelling, gave him an ace bandage and ice bag, and told him she would put in a request
for him to see the doctor.
Plaintiff complained for the next three days to Nurses Dodge, Mitchell, and
Annesser that his hand was hurting and he was in pain. Each nurse’s response was that
she would see what she could do and he should fill out a medical service request. On
November 17, 2009, plaintiff completed a medical service request seeking an x-ray for a
broken hand.1 Plaintiff continued to complain and fill out medical service requests but
nothing was done. When plaintiff was released from segregation he filled out another
medical service request for the same reason, and the “pain progressed into his wrist.”
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The Court notes that plaintiff provided a copy of the medical service request as an
exhibit. It was not included in the medical records submitted by defendants.
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On December, 17, 2009, plaintiff had a nurse encounter with Nurse Ulmer who
gave him a box of pain pills and told plaintiff she would make a request for him to see the
doctor.2 On December 17, 2009, plaintiff had a nurse encounter with Nurse Gibson for
an unrelated reason. At that time, plaintiff asked Nurse Gibson about pain medication for
his hand. Nurse Gibson told plaintiff that she could not give him any pain medication at
that time because he could only be given pain medication once every thirty days.
On January 4, 2012, plaintiff wrote to Stephanie Kasting informing her that it had
been almost two months since he thought he had broken his hand and his hand had not
been x-rayed despite his numerous requests. On January 5, 2010, plaintiff’s hand was xrayed. On January 6, 2010, plaintiff saw Dr. Hakala who confirmed that plaintiff’s hand
was broken. Dr. Hakala told plaintiff he was sending him to a specialist because it was
possible plaintiff would need pins and screws to repair the break. On February 4, 2010,
plaintiff underwent surgery to repair the break. Plaintiff alleges that “[d]ue to the long
delay, [he] has been disfigured in his right hand.”
IV.
Discussion
A.
Motion to Strike
After defendants filed their reply, plaintiff filed two supplemental documents, a
response to defendants’ motion and a response to defendants’ statement of undisputed
facts. The documents were plaintiff’s attempt to rectify procedural issues in his prior
filings that were raised by defendants in their reply. Defendants filed a motion to strike
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Based on the records provided by plaintiff and defendants, this visit was on December
8, 2009.
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the documents on the basis that they were untimely filed. This Court has reviewed
plaintiff’s supplemental documents and finds that the documents do not offer any
significant new evidence or arguments. Although plaintiff makes some effort to comply
with Local Rule 4.01 (E) and Federal Rule of Civil Procedure 56(c)(1), the result is the
same and defendants’ facts remain undisputed. The Court finds that there is no harm or
prejudice to defendants by the filing of the supplemental documents and will deny the
motion to strike.
B.
Motion for Summary Judgment
Plaintiff claims that the defendants were deliberately indifferent to his serious
medical needs based on the delay in treatment for his broken hand. Defendants maintain
that there is no evidence that defendants were deliberately indifferent to a serious medical
need or that any delay in treatment of plaintiff’s fractured hand caused or had a
detrimental effect. Further, defendants maintain that the medical records and undisputed
facts demonstrate that plaintiff was provided with appropriate medical care for his hand
injury. For these reasons, defendants contend that they are entitled to judgment as a
matter of law in their favor.
Deliberate indifference to a prisoner’s serious medical needs is cruel and unusual
punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 106,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976). “‘Serious medical need’ has been defined as a
medical need which ‘has been diagnosed by a physician as requiring treatment, or one
that is so obvious that even a layperson would easily recognize the necessity for a
doctor’s attention.’” Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995) (quoting
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Johnson v. Busby, 953 F.2d 349, 351 (8th Cir. 1991); see also Simmons v. Cook, 154
F.3d. 805, 807-08 (8th Cir. 1997) (quoting Moore v. Jackson, 123 F.3d. 1082, 1086 (8th
Cir. 1997) (“A medical need is serious if it is obvious to the layperson or supported by
medical evidence.”)). “To show deliberate indifference, [a plaintiff ] must prove an
objectively serious medical need and that prison officers knew of the need but
deliberately disregarded it.” Gordon ex rel. Gordon v. Frank, 454 F.3d 858, 862 (8th Cir.
2006). “The subjective inquiry must show a mental state akin to criminal recklessness:
disregarding a known risk to the inmate’s health.” Id. (citing Olson v. Bloomberg, 339
F.3d 730, 736 (8th Cir. 2003)). “Knowledge of risk may be inferred from the record.”
Id. (citing Farmer v. Brennan, 511 U.S. 825, 842 (1994)). “Whether a prison’s medical
staff deliberately disregarded the needs of an inmate is a fact-intensive inquiry.” Nelson
v. Shuffman, 603 F.3d 439, 448 (8th Cir. 2010). “The inmate must clear a substantial
evidentiary threshold to show the prison’s medical staff deliberately disregarded the
inmate’s needs by administering inadequate treatment.” Nelson, 603 F.3d at 448.
An inmate alleging constitutionally inadequate medical care due to delay in
medical care must show both that (1) the deprivation alleged was objectively serious; and
(2) the defendant knew of the medical need but was deliberately indifferent to it.
Grayson v. Ross, 454 F.3d 802, 808-09 (8th Cir. 2006); Laughlin v. Schriro, 430 F.3d
927, 929 (8th Cir. 2005). “Intentional delay in providing medical treatment shows
deliberate disregard if a reasonable person would know that the inmate requires medical
attention or the actions of the officers are so dangerous that a knowledge of the risk may
be presumed.” Gordon, 454 F.3d at 862 (citing Plemmons v. Roberts, 439 F.3d 818, 823
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(8th Cir. 2006)). When an “inmate alleges that a delay in medical treatment rises to the
level of an Eighth Amendment violation, ‘the objective seriousness of the deprivation
should also be measured by reference to the effect of delay in treatment.’” Laughlin v.
Schriro, 430 F.3d 927, 929 (8th Cir. 2005). “To establish this effect, the inmate ‘must
place verifying medical evidence in the record to establish the detrimental effect of delay
in medical treatment to succeed.” Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir.
1997). Additionally, the Constitution does not require jailers to handle every medical
complaint as quickly as each inmate might wish. See Jenkins v. City of Hennepin, Minn.,
557 F.3d 628, 633 (8th Cir. 2009).
In this case, the undisputed facts show that plaintiff had a fracture in his right
hand. The Eighth Circuit has held that a fractured hand is a serious medical condition.
Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006); see also McCranie v. Larkins,
4:10CV312 CAS, 2012 WL 871824, at *6 (E.D. Mo. March 14, 2012). Therefore, the
Court finds that plaintiff has presented evidence of a serious medical condition.
However, there is no evidence of deliberate indifference to plaintiff’s condition by the
defendants.
The facts of this case are indistinguishable from the facts in Johnson v. Hamilton.
Johnson also involved a fractured hand and an alleged delay in treatment involving an xray and surgery. Johnson, 452 F.3d at 971. There, the plaintiff was involved in an
altercation with corrections officers. Id. After the altercation, the plaintiff was examined
by a nurse and was treated for skin abrasions. Id. Six days later, the plaintiff submitted
his first medical service request complaining of pain in his hand and neck and requesting
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x-rays of those areas. Id. Eleven days after the altercation, he was examined by a
different nurse, who gave him Ibuprofen and referred him to a physician. Id. The plaintiff
testified that at the time, the nurse told him that it was likely his finger was fractured. Id.
Approximately one month later, the plaintiff submitted another medical service request
and was seen the same day by a physician, who ordered an x-ray and prescribed
additional pain medication. Id. An x-ray of the hand was not taken until two months after
the injury, and more than a month after the nurse expressed the belief that she thought the
finger was broken. Id. The x-ray revealed a fracture in one of plaintiff’s finger. Id.
Based on these facts, the Eighth Circuit concluded that the medical defendants were
entitled to judgment as a matter of law, because the plaintiff “has presented no evidence
that the medical personnel deliberately disregarded [serious medical] needs.” Id. at 973.
Further, the Court held that plaintiff “has presented no evidence [ ] that [the] delay was
the result of anything other than negligence.” Id. And “[m]ere negligence does not rise to
a constitutional violation.” Id. (citing Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir.
1997)).
Here, as in Johnson, the undisputed facts show that plaintiff was examined by a
nurse after the altercation, his hand was examined at a subsequent nurse encounter, and
he was given pain medication for his complaints of pain. Subsequently, plaintiff’s hand
was x-rayed at his request. The x-ray revealed a fracture and surgery was successfully
performed on his hand by an orthopedic specialist. As in Johnson, this Court finds that
there is no evidence that the medical defendants deliberately disregarded plaintiff’s
serious medical needs, nor has plaintiff offered “verifying medical evidence” to establish
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any detrimental effect of delay in medical treatment. See also McCranie-El v. Larkins,
4:10CV312 CAS, 2012 WL 871824 (E.D. Mo. March 14, 2012) (finding Johnson to be
controlling on plaintiff’s claim of delay in diagnosis and treatment of hand injury and
granting summary judgment in favor of medical defendants). As a result, the defendants
are entitled to judgment as a matter of law with regard to plaintiff’s claim that they
delayed or failed to provide medical treatment for his injured hand.
V.
Conclusion
In sum, this Court finds that the defendants have shown that they are entitled to
summary judgment as to plaintiff’s claim against them for failure to provide adequate
medical care. Even under plaintiff’s version of the facts, he has not established that
defendants were deliberately indifferent to his serious medical needs or that any delay in
treatment caused or had a detrimental effect. Plaintiff was provided with treatment for
the fracture in his hand and any delay in that treatment does not rise to the level of
deliberate indifference.
Finally, the Court notes that there is a claim remaining against defendant Terri
Martinez, who was added by the first amended complaint and served after the motion for
summary judgment was filed by defendants Gibson, Kasting, Mitchell, and Dr. Hakala.
If defendant Martinez would like to file a motion for summary judgment, she shall do so
within ten days. Otherwise, this matter will be set for trial.
Accordingly,
IT IS HEREBY ORDERED that the motion to strike plaintiff’s response to
defendants’ motion for summary judgment and plaintiff’s response to defendants’
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statement of undisputed facts (#87) filed by defendants Amanda Gibson, Dr. Michael
Hakala, Stephanie Kasting, and Terry Mitchell is DENIED.
IT IS FURTHER ORDERED that the motion for summary judgment (#73) filed
by defendants Amanda Gibson, Dr. Michael Hakala, Stephanie Kasting, and Terry
Mitchell is GRANTED. A separate Judgment in favor of those defendants will
accompany this Memorandum and Order.
IT IS FURTHER ORDERED that Defendant Terri Martinez shall file a motion
for summary judgment within ten days or this matter will be set for trial. Defendant
Martinez may file a motion for summary judgment adopting the record of the defendants
currently before the Court on this motion and may file any supplemental arguments or
documents in support of her motion. Plaintiff shall have twenty-one days thereafter to
file a response and may adopt his response and evidentiary submissions in the record
before the Court on this motion. Defendant Martinez shall have seven days thereafter to
file a reply.
Dated this 18th day of March, 2014.
___________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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