Burston v. Hakala et al
MEMORANDUM AND ORDER: Accordingly, IT IS HEREBY ORDERED that the defendants motion for summary judgment (#64) is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion to "Add Witness and to Inform of New Evidence" (#74) is DENIED as moot. Signed by District Judge Stephen N. Limbaugh, Jr on 12/27/2013. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RONALD DALE BURSTON, JR.,
MICHAEL HAKALA, M.D., LISA
BARNES, CHARLANA DUNN, RUTH
TAYLOR, ANGELA RIDDELL,
RUSSELL GRAHAM, M.D.,
PAMELA LACY AND STEPHANIE
Case No. 1:12-CV-00030 SNLJ
Case No. 1:12-CV-00031 SNLJ
Case No. 1:12-CV-00032 LMB
MEMORANDUM AND ORDER
Plaintiff Ronald Dale Burston, Jr. filed three 42 U.S.C. § 1983 claims on February 15,
2012 against defendants Michael Hakala, M.D., Lisa Barnes, Charlana Dunn, Ruth Taylor,
Angela Riddell, Russell Graham, M.D.,1 Stephanie Novak, and Pamela Lacy. The defendants
were employed at the Southeast Correctional Center (“SECC”) in Charleston, Missouri, where
plaintiff was previously incarcerated. Defendants Hakala, Taylor, Novak, and Lacy moved for
summary judgment (#64).
Defendants’ motion to consolidate the plaintiff’s claims into a single case was granted.
Currently before the Court is defendants Hakala, Taylor, Novak, and Lacy’s motion for summary
Defendant Graham has not yet received service of process and is therefore not involved in this
action at this time; the other defendants have been dismissed.
judgment (#64). Plaintiff responded and later moved for the inclusion of additional evidence
(#74). These matters are now fully briefed and is ripe for disposition.
I. Case Summary
Plaintiff has been diagnosed with a number of medical problems including HIV, diabetes,
obesity, eczema, gout, headaches, hypertension, respiratory issues, difficulty sleeping, bipolar
disorder, schizoaffective disorder, and attention deficit hyperactivity disorder. He claims that the
defendants violated his Eighth Amendment right to be free from cruel and unusual punishment
by deliberately denying him proper medical care under 42 U.S.C. § 1983 during his incarceration
at SECC from November 2009 to March 2012. In his initial complaints, plaintiff alleged that
defendants did not treat his HIV and complications arising from his HIV, resulting in a
worsening of his condition causing symptoms including but not limited to: pain, swelling, weight
loss, and skin afflictions (e.g., rashes and open sores).
He also alleged he was wrongfully ordered a liquid diet and that the liquids were not
drinkable, a feeding tube was inserted that caused him discomfort and prevented him from
breathing, and that Dr. Graham refused to send him to the hospital for his multiple complaints.
He further alleged that defendant Novak, an administrative nurse at SECC, acted
unprofessionally and delivered inappropriate care, and defendant Lacy, a nurse employed by
SECC, deliberately gave him the wrong medication. He states that the defendants caused
significant deterioration of his mental and physical condition, emotional distress, and forced him
to self-medicate with marijuana which resulted in additional criminal charges. In his opposition
to the defendants’ motion for summary judgment, plaintiff expounds upon his previous
complaints, alleging that the defendants’ refusal to send him to a specialist is responsible for the
continuing pain and swelling in his throat, feet, and legs, and that defendant Novak did
“everything in her power” to prevent him from receiving medical care for his throat. The
plaintiff did not include any citations in his opposition to establish these allegations as material
facts, nor does he specifically admit or deny any of the material facts set forth by the defendants.
Therefore, the facts submitted by the defendants are uncontroverted. The plaintiff admits he was
given medications to address his medical problems and evaluated by multiple healthcare
providers --- doctors, nurses, and nurse practitioners --- throughout his incarceration. He
requested injunctive relief and money damages.
A. Treatment of Plaintiff’s HIV
The plaintiff was diagnosed with HIV in 2007. He was transferred to SECC in November
2009 and upon transfer was referred to the infectious disease nurse, who noted plaintiff was
compliant with his HIV medications at that time. Plaintiff was also enrolled in the infectious
disease clinic. He alleges he was denied his HIV medications, resulting in pain, weight loss, and
the worsening of his chronic skin condition. The record reflects he was seen at the infectious
disease chronic clinic nineteen times during the approximately two and a half years he was
incarcerated at SECC, and that he voluntarily missed two additional appointments (#65). Dr.
Hakala was his physician at three of those appointments. Uncontested blood test results show
that his CD4 levels2 and viral load were within normal limits from August 2009 to February
2013, which demonstrates that his HIV was effectively controlled while at SECC (#65).
Plaintiff’s medical records further detail that his HIV medications were ordered throughout his
CD4 cells are a type of white blood cell. The number of these cells shows the disease’s stage
and how it may progress, the strength of the body’s immune system, and the effectiveness of HIV
incarceration and given regularly. However, on multiple occasions from 2009 to 2012, the
plaintiff refused to take his medications.3 When that occurred, plaintiff was counseled as to their
importance and encouraged to comply with his physician-ordered treatment plan. Sometimes,
plaintiff was also referred to a physician or mental health provider for additional assessment and
counseling regarding medication compliance. During his time at SECC, he was also seen and
treated at the pulmonary/asthma clinic and the endocrine/diabetes clinic for his extensive medical
B. Plaintiff’s Lower Limb Complaints
Plaintiff alleges he did not receive any medical treatment for pain and swelling in his
lower extremities while at SECC. However, the medical records show he was assessed and
treated by Dr. Hakala and the healthcare staff for those complaints throughout his incarceration at
SECC. He received multiple medications for lower extremity pain, neuropathy, and swelling
including: allopurinol, naproxen, Motrin, colchicine, Toradol, Benedryl, and Elavil in addition to
lab testing. He was also reassessed numerous times for his continuing lower limb complaints and
his treatments were adjusted following reassessment as prescribed. Additionally, the plaintiff’s
medical records show that plaintiff’s requests for treatment or treatment plan changes were
usually granted, when deemed appropriate by his physicians in accordance with their medical
training and judgment. For example, during one appointment, Dr. Hakala examined and
removed the plaintiff’s ingrown toenail upon request. During another, Dr. Hakala prescribed
Elavil for plaintiff’s complaints of lower extremity pain and neuropathy.
C. Plaintiff’s Throat Swelling & Liquid Diet
Other instances of noncompliance in the medical records include plaintiff refusing to allow
healthcare staff to check his vital signs or perform physical assessments of his mouth and throat,
and refusing to go to regularly scheduled appointments.
Plaintiff alleges he was denied adequate nutrition for a period of nine days to three weeks
because he was placed on a liquid diet and the liquids were not drinkable. The liquid diet was
ordered after the plaintiff self-declared a medical emergency for difficulty breathing and a
swollen tongue on July 29, 2010 and complained of continued tongue swelling, difficulty
breathing, and an inability to swallow July 31, 2010 through approximately August 4. During
that time, the medical records reflect plaintiff’s vital signs were stable, his oxygen saturation was
normal,4 and healthcare staff listed his condition as “urgent,” but not an emergency (i.e., it did
not require hospitalization). Dr. Graham examined the plaintiff on July 29, prescribed Benedryl
to treat his complaints, and had him admitted to the Transitional Care Unit (“TCU”), where he
could be observed by medical staff. Plaintiff alleged that Dr. Graham planned to send him to the
hospital, but Nurse Novak changed his mind. Defendants state that no nurse has the authority to
change a physician’s prescribed course of treatment. Dr. Hakala examined the plaintiff on July
31, 2010 and noted he had “soft palate and uvula” swelling and “abundant post nasal drip.” He
further reported that --- although the plaintiff complained he could not swallow anything,
including liquids --- his lungs were clear, he was not drooling, he had full range of motion of his
tongue, he had eaten sausage for breakfast that morning, and he was not having any difficulty
On Dr. Hakala’s orders, plaintiff was placed on a liquid diet and remained in the
infirmary for 23-hour observation. During that time, he refused to take his medications because
Oxygen saturation measurements indicate the level of oxygen in the blood; this helps inform
healthcare staff whether respiratory distress is present. Normal oxygen saturation in a healthy
individual is 96-100%; the plaintiff’s was 96-99%.
he said he could not swallow. However, he drank an orange drink, and the nursing notes state he
did so without any apparent difficulty. Then, he requested a snack sack. The infirmary nurse
reported this to the on-call physician who then had the plaintiff returned to his cell, but ordered
the liquid diet continued until the plaintiff could be evaluated by Dr. Graham or Dr. Hakala.
On August 3, three days after being placed on the liquid diet, the plaintiff returned to the
infirmary, complaining that his mouth and throat hurt and he had not eaten in six days. The
infirmary nurse contacted Dr. Graham, and he ordered a feeding tube placed. The plaintiff
consented to the feeding tube, which was placed and used to give the client Ensure, for nutrition,
and water, for hydration. However, the plaintiff found the tube uncomfortable, alleged tube
placement accuracy was never checked, and said he could not breathe at all with the tube in
place.5 Plaintiff pulled out the tube that evening against medical advice. Following this, Dr.
Graham reassessed the plaintiff and discharged him from the infirmary. The liquid diet order
was discontinued on August 10 at the plaintiff’s request.
D. Plaintiff’s Abdominal Complaints
During and shortly after his throat complaints, plaintiff complained of abdominal pain,
diarrhea, and blood in his stools. Dr. Hakala timely assessed him for these conditions during
clinic appointments on August 12 and September 2, 2010. A digital rectal exam was done, the
plaintiff’s stool was checked for blood, an x-ray of the plaintiff’s abdomen was obtained,
medications were ordered, and the plaintiff was provided with additional toilet paper upon
request. On November 4, 2010, an abdominal CT scan was also ordered to determine if plaintiff
had an emergent condition, and his medication regimen for these complaints was changed upon
His oxygen saturation was still greater than 96% at this time.
E. Plaintiff’s Skin Condition
In his initial complaint, the plaintiff alleged that his chronic skin conditions were
exacerbated because he did not receive proper medical treatment. He stated that after he filed a
grievance, Dr. Hakala prescribed skin medication, but the medication prescribed made his skin
deteriorate more. The plaintiff was examined on multiple occasions for skin complaints
throughout his incarceration; a biopsy was taken, and his skin condition was diagnosed as
eczema and treated with a topical cream, which was later changed to an ointment at the plaintiff’s
request because the plaintiff said the ointment “worked better.”
F. Plaintiff’s Medication Administration
The plaintiff alleges he received the wrong medication (niacin), in addition to the
medications he is prescribed, and that the nurse refused to check the medication prescription
book before administering it to him. After receiving the medication, plaintiff claims his skin was
itching and burning. Plaintiff was subsequently given aspirin, which relieved the unintended
niacin side effects.
II. Legal Standard
In 2012, plaintiff brought this (now consolidated) lawsuit claiming that his Eighth
Amendment right to be free from cruel and unusual punishment was violated by defendants’
medical care for the above conditions. Defendants seek summary judgment on all of plaintiff’s
Courts have repeatedly recognized that summary judgment is a harsh remedy that should
be granted only when the moving party has established his right to judgment with such clarity as
not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th
Cir. 1977). Summary judgment motions, however, “can be a tool of great utility in removing
factually insubstantial cases from crowded dockets, freeing courts’ trial time for those that really
do raise genuine issues of material fact.” Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d
268, 273 (8th Cir. 1988).
Pursuant to Federal Rule of Civil Procedure 56(c), 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 material fact and the moving party is entitled to judgment as a matter of law.”
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the
moving party. Mt. Pleasant, 838 F.2d at 273. 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
its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.
1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party.
Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976). With
these principles in mind, the Court turns to the discussion.
Requirements for Eighth Amendment Claim
To establish a constitutional violation based on inadequate medical care, the plaintiff
must show that the defendants were deliberately indifferent to a serious medical need. Vaughn v.
Gray, 557 F.3d 904, 908 (8th Cir. 2009). “Deliberate indifference has both an objective and a
subjective component.” Butler v. Fletcher, 465 F.3d 340, 345 (8th Cir. 2006). The objective
component requires a plaintiff to demonstrate an objectively serious medical need. Grayson v.
Ross, 454 F.3d 802, 808-09 (8th Cir. 2006). A “serious medical need” is one “that has been
diagnosed by a physician as requiring treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d. 778,
784 (quoting Camberos v. Branstad, 73 F.3d. 174, 176 (8th Cir.1995)); see also 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.”).
In order to satisfy the subjective component of his medical claim, the plaintiff must show
that the defendants knew of, yet deliberately disregarded, an excessive risk to the inmate’s health.
Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (quoting Logan v. Clarke, 119 F.3d. 647,
649 (8th Cir. 1997)). A prison official may be liable if he knows that an inmate faces a
substantial risk of serious harm and fails “to take reasonable measures to abate it.” Coleman, 114
F.3d. at 785 (citing Farmer v. Brennan, 511 U.S. 825, 847 (1994)). The plaintiff must establish a
“mental state akin to criminal recklessness.” Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009)
(quoting Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)). Moreover, to create an actionable
constitutional violation for delay in treatment, “the information available to the prison official
must be such that a reasonable person would know that the inmate requires medical attention, or
the prison official’s actions (or inaction) must be so dangerous to the health or safety of the
inmate that the official can be presumed to have knowledge of a risk to the inmate.” Plemmons
v. Roberts, 439 F.3d 818, 823 (8th Cir. 2006). Delay must be prompted by “obduracy and
wantonness, not inadvertence or error in good faith,” before liability may be imposed. Whitley v.
Albers, 475 U.S. 312, 319 (1986).
B. Plaintiff’s Complaints About His Medical Care
As an initial matter, the Court notes that plaintiff did not respond to the defendant’s
statement of undisputed facts. Therefore, the Court must deem all of the defendants’ facts
admitted because plaintiff did not specifically admit or deny defendants’ facts, and general
denials are not enough to controvert facts allegedly in dispute. Fed. R. Civ. P. 56(e); Local Rule
7-4.01(E); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Hernandez v. Jarman, 340
F.3d 617, 622 (8th Cir. 2003) (Plaintiff “may not rely on mere denials or allegations”). Plaintiff
was required to present material facts supported by citation to the record. Id. In the interests of
preserving justice and fairness, however, the Court reviewed plaintiff’s medical records from his
incarceration at SECC. The Court also reviewed all other evidence provided by both parties
including affidavits, depositions, and the plaintiff’s Exhibit A. Pursuant to Federal Rule of Civil
Procedure 56(c)(3), the Court will take all of this information into consideration.
The plaintiff has multiple medical conditions that likely qualify as serious medical needs.
However, he fails to satisfy the subjective component of the standard for an Eighth Amendment
claim because the information provided shows defendants endeavored to treat all of the patient’s
illnesses during his incarceration at SECC, and plaintiff provides no evidence suggesting they
acted with deliberate indifference towards his serious medical needs. As a general matter,
although the plaintiff found the care he received unsatisfactory, disagreement with one’s
treatment plan does not rise to the level of deliberate indifference to a serious medical need
required for a successful Eighth Amendment claim. Popoalii v. Correctional Medical Services,
512 F.3d 499, 499 (8th Cir. 2008); Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir. 1991).
Even negligent treatment does not in itself indicate deliberate indifference. Id.
The plaintiff attempts to argue that the defendants refused to send him to a specialist in
order to save money. However, he provides no evidence that any of defendants’ actions were
based on policies or customs or that they were trying to save money in refusing to send him to a
specialist. Further, plaintiff relies on an Eleventh Circuit case involving a very distinct and
distinguishable set of facts.6 Defendants maintain that their treatment decisions, including the
decision to treat the patient in prison rather than sending him to the hospital or a specialist, were
based on the independent medical judgment of their healthcare providers and that they
appropriately cared for plaintiff throughout his time at SECC. The following sections address
plaintiff’s concerns and defendant’s responses in more detail.
I. Treatment of HIV and Associated Complaints
Plaintiff insists that the defendants were deliberately indifferent in that they did not refer
him to a specialist and denied him his HIV medications for weeks at a time. Defendants’
uncontroverted facts, however, demonstrate appropriate care was given. “An inmate cannot
create a question of fact by merely stating that he did not feel he received adequate treatment.”
Burston v. Missouri Dept. of Corrections, et. al., 2012 U.S. Dist. LEXIS 5655 at 11 (E.D. Mo.
2012) (citing Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997)). Here, the plaintiff does
The plaintiff in Fields v. Corizon Health was a healthy 24 year old man with an infection that
resulted in permanent paralysis due to the prison medical staff’s failure to get him to the hospital
within 24 hours, despite his multiple and insistent pleas for help, nearly all of which were
completely ignored. 490 Fed. App’x. 174 (11th Cir. 2012).
not cite to the record in any of his filings with the court, nor does he provide any additional
evidence relevant to his claims. It is clear the plaintiff is unhappy with the care he received at
SECC, but that alone is not sufficient to maintain his Eighth Amendment claim. Plaintiff alleges
he was not given his HIV medications for weeks, but the medical records show his HIV
medications --- Lamivudine, zidovudine, darunavir, and ritonavir — were regularly administered
to him. Moreover, although the complaint’s allegations of denying medications to an HIVpositive prisoner are concerning, plaintiff never again raises the matter, much less does he supply
any evidence in support in his opposition to summary judgment.
Plaintiff also makes a more general accusation that defendants failed to treat his HIV
adequately, causing a worsening of his illness. It is somewhat difficult to decipher plaintiff’s
filings, but it seems he attributes this to a plethora of complaints, which are detailed in the case
summary above, ranging from limb pain to skin rashes. However, according to Dr. Hakala’s
affidavit, which he states is based upon his medical knowledge and training, “symptoms of HIV
infection include, but are not limited to, weight loss, oral thrush, recurring yeast infections,
bruising easily, recurrent oral ulcerations, recurrent or unusual skin rashes, experiencing extreme
numbness in hands and feet, and mental deterioration.” The Court also notes that plaintiff, in
addition to having HIV, was also enrolled in chronic care clinics for individuals with respiratory
problems and diabetes. This suggests multiple other disease processes that could have led to the
plaintiff’s deterioration despite his receiving appropriate medical treatment. Therefore, even if
all of plaintiff’s complaints are considered serious medical needs, plaintiff has not provided any
evidence that his illnesses --- throat swelling, difficulty breathing, limb pain and numbness, skin
conditions, abdominal complaints --- arose from any treatment or lack of treatment for which the
defendants are responsible. Moreover, the undisputed medical records and other evidence show
that plaintiff’s complaints were treated, and that the complaints were frequently treated according
to plaintiff’s wishes. For example, plaintiff’s rashes were treated with topical ointments, and
plaintiff’s ingrown toenail was removed.
Further, the medical record reveals multiple instances of plaintiff’s noncompliance with
treatment protocols, including failure to take his HIV medications, refusing to allow healthcare
staff to complete physical assessments or take his vital signs, pulling out his feeding tube, and
missing appointments at chronic care and infectious disease management clinics. However,
despite plaintiff’s occasional refusal to take his medications, the medication administration
record (“MAR”) shows plaintiff complied with his medication regimen more than 80% of the
time while at SECC. This was substantiated in that his CD4 levels and viral load (which were
checked every two to six months from March 2010 to February 2012) indicated his HIV was
being effectively controlled.
The plaintiff’s medical history further shows an extensive treatment plan for the plaintiff
as well as counseling regarding the importance of smoking cessation and exercise. It reflects that
defendants regularly responded to plaintiff’s requests for assessments and reassessments, changes
in treatment, and additional medications. This demonstrates the defendants were not deliberately
indifferent to plaintiff’s other medical needs, including but not limited to his lower limb pain,
throat swelling, skin condition, and abdominal complaints. Therefore, as to his HIV diagnosis
and other, potentially-related ailments, plaintiff failed to show defendants were deliberately
indifferent to a serious medical need.
ii. Liquid Diet
Plaintiff is critical of defendants’ treatment of his oral complaints, which included tongue
swelling and a sore throat, alleging that the defendants caused him to go without food for either
nine days, as alleged in plaintiff’s declaration in opposition, or three weeks, as alleged in
plaintiff’s initial complaint. However, the defendant was placed on a liquid diet by SECC
physicians because of his symptoms of throat and tongue swelling and complaints of pain and
irritation. Although he wanted to go to the hospital and be seen by a specialist, the SECC
physicians exercised their medical judgment and chose to treat him at the prison as his vital signs
were stable, he was awake, alert, and speaking without difficulty, and none of the healthcare staff
actually observed him having any difficulty swallowing, the only indication was his own
subjective complaints. However, the Court is not required to analyze whether the physicians
acted correctly in ordering a liquid diet, and later a feeding tube, to treat the plaintiff’s sore throat
because “nothing in the Eighth Amendment prevents prison doctors from exercising their
independent professional judgment.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996).
Here, the medical records show the defendants assessed and treated the plaintiff’s sore
throat and tongue swelling by ordering a liquid diet and prescribing medication. Observable
tongue swelling and throat redness was documented. The liquid diet was ordered despite the fact
that plaintiff alleged he could not swallow liquids based on the physician’s judgment after
physically examining the plaintiff. This judgment proved correct when the plaintiff was
observed drinking an orange drink without any difficulty. However, because the plaintiff
continued to complain that he could not swallow liquids, a feeding tube was ordered so he could
be given his medications and adequate nutrition. Plaintiff pulled out the feeding tube, after
consenting to its placement, because he alleged he could not breathe with it in place.7 Because
his symptoms had not abated, the liquid diet was continued. Approximately a week later, a
regular diet was ordered for him at his request. He was assessed frequently and his vital signs
remained stable throughout this incident. The record shows that the defendants provided
appropriate treatment and that they were not deliberately indifferent to the plaintiff’s sore throat
and associated complaints of tongue swelling, denial of nutrition, and difficulty breathing.
iii. Niacin Administration
The allegations that nurse Lacy gave the plaintiff the wrong medication (Niacin) do not
rise to the level of deliberate indifference to a serious medical need because it was a one time
occurrence, unintentional, and he was almost immediately given aspirin to counter the negative
effects of the niacin. That medication successfully relieved all of the adverse symptoms he
experienced. Plaintiff complains that nurse Lacy did not check the prescription book as he
requested before administering the Niacin. However, medical malpractice, including negligent
drug administration, does not meet the high standard necessary for a successful Eighth
Amendment claim. Popoalii, 512 F.3d at 499 (citing Smith v. Clarke, 458 F.3d 720, 724 (8th
Cir. 2006)). Plaintiff cannot support a deliberate indifference claim against defendant Lacy.
IV. Plaintiff’s Motion for the Introduction of New Evidence and Witness Testimony (#74)
After plaintiff submitted his memorandum in opposition to defendants’ motion, he moved
to add a witness and inform the Court of new evidence (#74). Plaintiff says that a doctor
His oxygen saturation was over 96% at this time and he was awake and talking per the medical
employed by the prison’s contracted healthcare provider was willing to be a witness on his
behalf, but he provides no other information about what the doctor would testify to or how
it would advance his case. Further, plaintiff submits (#75) a copy of a neurologist’s report dated
September 2013. The Court has reviewed the report and, setting aside the admissibility of the
report generally, finds that this report does not affect the Court’s decision. It contains test
results taken a year past the time period at issue, and, even if the report were within the relevant
window of time, it fails to connect the actions of any of the defendants to the plaintiff’s
complaints. Plaintiff’s motion will be denied.
The plaintiff failed to present any material issues of disputed fact so as to demonstrate
that the defendants were deliberately indifferent to his serious medical needs in violation of the
Eighth Amendment. Therefore, summary judgment will be granted to the defendants by separate
order, and plaintiff’s motion to introduce new evidence will be denied.
IT IS HEREBY ORDERED that the defendants motion for summary judgment (#64) is
IT IS FURTHER ORDERED that plaintiff’s motion to “Add Witness and to Inform of
New Evidence” (#74) is DENIED as moot.
Dated this 27th day of December, 2013
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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