Coleman v. Hakala et al

Filing 177

MEMORANDUM AND ORDER re: 149 MOTION for Summary Judgment Renewed filed by Defendant Michael C. Hakala, Defendant Phyllis Stanley, Defendant Elizabeth Conley, Defendant Corizon Medical Services motion is GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 4/11/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ALONZO DWAYNE COLEMAN,
Plaintiff,
v.
MICHAEL HAKALA, et al.,
Defendants.

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No. 1:13-CV-61 SNLJ

MEMORANDUM and ORDER
Plaintiff Alonzo Coleman is an inmate suffering from progressive kidney and liver
diseases that are ultimately lethal and for which there is no cure. He brought this 42
U.S.C. § 1983 action against defendants Dr. Michael Hakala, Corizon State Regional
Medical Director Dr. Elizabeth Conley, Corizon Health Services Administrator at SECC
Phyllis Stanley, and Corizon, Inc. related to the treatment of those diseases, claiming that
the defendants violated his Eighth Amendment right to be free from cruel and unusual
punishment. This Court appointed counsel to represent plaintiff. Defendants have
moved for summary judgment (#149). For the reasons explained below, summary
judgment will be granted to defendants.
I.

Factual Background
The following facts are undisputed unless otherwise indicated. Plaintiff became

an inmate with the Missouri Department of Corrections (“MDOC”) in 1996. MDOC
contracts with Corizon, Inc. to provide medical services to inmates. In 2006, while
incarcerated at Crossroads Correctional Center, plaintiff was diagnosed with polycystic
kidney disease (“PKD”) and polycystic liver disease (“PLD”). At the time, plaintiff had
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been scheduled for hernia surgery, but the surgery was cancelled due to elevated blood
pressure and an abnormal EKG. Plaintiff underwent a pre-operative renal Doppler
ultrasound on April 7, 2006, which suggested the presence of the polycystic kidneys. In
May 2006, plaintiff underwent a CT arteriogram, which revealed non-cancerous
polycystic kidneys. Plaintiff’s treating physician at the time, a nonparty, discussed with
plaintiff the results and PKD, including the possibility of kidney failure.
Plaintiff had the hernia surgery and a liver biopsy in June 2006. The hospital
records state that “we are considering outpatient nephrology consultation and
hepatology/gastroenterology consultation as well to follow up these conditions” and that
a “Dr. Matthews . . . is willing to go ahead and follow carefully” with outpatient followup.
On July 31, 2006, plaintiff met with the prison physician, nonparty Dr. Gallup,
who was concerned by plaintiff’s GGT and creatinine levels were elevated. Dr. Gallup
also noted surgeon Dr. Barton’s recommendation for baseline laboratory testing along
with ultrasound of liver. Although Dr. Gallup made a referral request to a renal
specialist, it is unclear whether the request was withdrawn or denied.
In November 2006, plaintiff’s treating physician talked to plaintiff about the
disease progression in general and informed plaintiff there was no need for a specialist
unless his condition worsened. Instead, treatment for PKD includes treating the
complications of the disease, including hypertension, renal insufficiency, hematuria,
kidney stones, or renal infection. Monitoring kidney function consists of monitoring the
glomerular filtration rate (“GFR”) and urine for signs of infection and hydration.
Treatment of PLD also consists of monitoring liver function with liver function testing,
lab work, and ultrasounds. Specifically, blood work to monitor liver function would
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include the testing of liver enzymes and other markers. Treatment of PKD and PLD
might also include decompression of the cysts, which requires a surgical consultation.
Plaintiff was transferred to Southeastern Correctional Center (“SECC”) and placed
under the care of defendant Dr. Hakala in January 2009. By that point, plaintiff’s lab
results showed that his creatinine levels rose and GFR dropped as follows:
April 2008
August 2008
January 2009

Creatinine
1.6H
1.7H
1.8H

GFR
49.28
42.59
39.84

Creatinine level of 2.0 is indicative of renal failure. GFR indicates how well the kidneys
are functioning. Dr. Hakala testified that GFR below 60 indicates cause for concern: “I
may still monitor him for another six months or I might decide well, now we should have
a consult and see what the opinion of a renal specialist would be. Most often I would do
that, particularly for blood pressure control, too.” (Hakala Dep. at 56.) Corizon policy
documents also show that a renal consult should be considered when an inmate has a
GFR of 39-50.
Plaintiff contends that although his medical condition required close monitoring of
his bloodwork, lab testing was not completed as ordered, lab results were not reviewed
and/or acted upon, and complete lab testing to check for liver enzymes were not
conducted. For example, in March 2009, nonparty Dr. Babich ordered labs to be taken
the same month, but they were not. Plaintiff says that although a basic metabolic panel
was completed on August 7, 2009, no follow-up of the labs and no liver enzymes test was
completed. The August 7 results were as follows:
August 2009

Creatinine
1.9

GFR
37

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Those results thus showed that plaintiff’s kidney function was continuing to decline.
On September 29, 2009, plaintiff saw nonparty Dr. Flood for a Chronic Care
Clinic visit. Dr. Flood reviewed plaintiff’s worsening lab results and diagnosed him with
chronic renal failure. Dr. Flood instructed plaintiff to stop taking Naproxen for pain and
replace it with Tylenol because the Naproxen can adversely affect his kidneys in light of
the PKD diagnosis.
Plaintiff saw defendant Dr. Hakala on January 14, 2010. Although basic vital
signs were taken according to the medical record (CORIZON 722), the record does not
indicate Hakala reviewed or discussed plaintiff’s most recent lab results.
Plaintiff submitted an Medical Services Request (“MSR”) on January 21, 2010
regarding a lump or cyst in or on his stomach. CORIZON 725. He was seen by a nurse
on January 22, who noted that Coleman expressed pain when his stomach was touched,
and Coleman said it hurt when he lies on top of his stomach. The notes say that Dr.
Matthews issued a verbal order for plaintiff to see Hakala on Monday, January 25.
However, Hakala did not see plaintiff again until March 17. Defendants appear to
dispute that the “verbal order” was directed at Hakala; instead, they say the order was
directed at plaintiff. At the same time, they state that the “nurse or appointment
scheduler is responsible for scheduling physician appointments.” (See #168 at ¶ 57.)
Plaintiff had bloodwork again on January 26:
January 2010

Creatinine
1.8

GFR
40

His liver enzymes were not tested.
On February 3, 2010, plaintiff had still not seen Dr. Hakala, so he filed another
MSR to be seen regarding the lump in his stomach. Plaintiff was seen by a nurse on
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February 4, and she noted that plaintiff’s upper right quadrant was swollen, hard, and
very tender to the touch, that the “knot” is approximately eight inches in diameter, and
that plaintiff has pain when he sleeps on his right side. The nurse referred plaintiff to a
doctor. Plaintiff then saw Dr. Flood on February 8. Flood noted that plaintiff’s
symptoms had grown progressively worse over the past three years and wrote plaintiff’s
abdomen was “grossly distended” and there was a “risk of colangio carcinoma.”
(CORIZON 730-31.) Dr. Flood’s plan was to order an ultrasound of the liver, order labs,
and refer plaintiff for surgical evaluation/treatment. The plan further referred to Dr.
Barton’s June 21, 2006 report and stated “the dx of polycystic liver disease carries a risk
of colangio carcinoma and recommends yr’ly surveillance w/liver u/s, afp, cea and lfts.”
Dr. Flood made a referral request for a liver ultrasound for plaintiff, and that
request was approved. Plaintiff’s February 18, 2010 lab work showed the following
results:
February 2010

Creatinine
1.7

GFR
42

The results of the ultrasound indicated on February 25, 2010 that plaintiff’s liver
and kidneys were “heavily involved by numerous small and large cysts,” that the
gallbladder was obscured by cysts, and a CT scan was recommended. Dr. Flood testified
that based on plaintiff’s history and the ultrasound, a CT would have been appropriate.
Plaintiff filed an MSR for a follow-up of the ultrasound results on March 15, 2010
and met with a nurse the same day. The nurse’s plan was to refer plaintiff to see a doctor,
and plaintiff was assessed by Dr. Cooper on March 22, 2010, but Dr. Cooper did not
discuss the ultrasound results with him.

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Plaintiff filed MSRs on March 18, April 14, 26, 27, and 28 regarding the pain in
his abdomen. Defendant Hakala reviewed plaintiff’s file on April 18 but made no contact
with him until April 29, when Hakala reviewed the February 25 ultrasound results.
Hakala wrote in the medical record that he planned to request a CT of plaintiff’s
abdomen to check for hernia and to see Coleman’s gallbladder better. Hakala also noted
during plaintiff’s April 29 Chronic Care Clinic visit that plaintiff had chronic renal
failure.
Hakala’s referral request was approved. Plaintiff’s May 7, 2010 CT scan report
noted that plaintiff’s liver was 80% full of cysts and that the enlarged liver occupied most
of plaintiff’s upper abdomen. The report was provided to Hakala on May 17.
Plaintiff submitted an MSR on May 25 for abdominal pain, and a nurse gave him
Tylenol. On May 26, he filed an MSR seeking to learn the results of his CT scan.
Plaintiff met with Hakala on June 1. Hakala’s notes in the medical record continue to
focus on plaintiff’s 2006 hernia repair and the CT report’s failure to mention any hernia,
and Hakala requested a re-read of the CT scan. On June 3, the requested re-read
produced the same report with a recommendation for a follow-up exam in a few months
for further evaluation.
Plaintiff filed another MSR for stomach pain on June 15. Although a nurse made
a plan for “referral to physician,” plaintiff states there is no clear policy as to how, when,
or if the appointment should be made, nor is there a review procedure to ensure the plan
was implemented. Plaintiff did not see a doctor until he saw defendant Hakala on August
26. Defendants dispute the suggestion that plaintiff was referred specifically to Dr.
Hakala, but defendants do not appear to refute that plaintiff did not see a doctor for more
than two months after making the request. Notably, as discussed below, plaintiff appears
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to have seen Dr. Hakala in the Chronic Care Clinic on July 8, but plaintiff says Hakala
did not address the re-read of the CT or the cysts, pain, or weight loss for which
physician referrals were made.
On June 29, 2010, plaintiff filed another MSR for worsening pain and weight loss.
He saw a nurse, and the plan was to “discuss with chronic care nurse/Dr. Hakala.”
(CORIZON 758.) Plaintiff’s July 30 lab work showed the following:
July 2010

Creatinine
1.6

GFR
45

Although those creatinine and GFR numbers were improvements over earlier lab work,
Hakala stated in his deposition that the labs were beginning to look interesting. Hakala
met with plaintiff on August 26, but nothing changed regarding Hakala’s plan of
treatment, and the re-read of the CT results was not discussed with plaintiff. The
defendants dispute that the CT results were not reviewed with plaintiff.
Plaintiff filed another MSR regarding his kidney function and enlarged liver on
October 18, 2010 and saw Dr. Hakala on October 22. Dr. Hakala’s plan was to wait to
receive lab results in early 2011 and then consider a repeat CT or ultrasound.
Plaintiff’s November 17, 2010 labs were as follows:
Creatinine
November 2010 1.9

GFR
38

Plaintiff was seen by Dr. Flood for a Chronic Care visit on December 13, 2010, and Dr.
Flood noted that plaintiff’s creatinine had worsened since his last Chronic Care visit.
Plaintiff’s February 23, 2010 labs were as follows:
February 2011

Creatinine
1.9

GFR
37

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Plaintiff saw Dr. Hakala in Chronic Care Clinic on March 3, and Hakala noted that
plaintiff’s condition was worsening in light of the rising creatinine and falling GFR.
Hakala then made a referral request for a renal pathologist, Dr. Winklemeyer.
Dr. Winklemeyer examined plaintiff on April 12, 2011 and assessed stage II
chronic kidney disease, polycystic kidney disease, hypertension, and elevated coronary
vascular risk. He recommended, among other things, additional lab work in July 2011
and follow-up appointments. However, Dr. Winklemeyer made no changes to plaintiff’s
course of treatment.
Plaintiff filed an MSR on April 18 to see a liver specialist. The plan entered by
the nurse was to await follow-up with the site doctor. Plaintiff asserts no follow-up
occurred, but defendants dispute that there was no follow-up. Defendants do not,
however, cite to any evidence showing that there was follow-up.
On April 27, plaintiff filed an MSR because he felt his blood pressure was too
high --- he was experiencing blurred vision, dizziness, and a headache. The nurse noted
his blood pressure was elevated at 164/108. Plaintiff informed the nurse he had been out
of his Nifedpine for five days and that the order was expired. Medications were reordered.
May 25 and July 1, 2011 labs were as follows:
May 2011
July 2011

Creatinine
1.7
2.0

GFR
42
35

Plaintiff had an appointment with defendant Hakala on July 7 concerning medication and
lab results. Hakala’s assessment was “hypertension, renal insuff.” and his plan was to
order a basic metabolic panel for August and follow-up in the Chronic Care Clinic.

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Plaintiff points out that Hakala did not order liver enzyme testing, but defendants deny --without citation to evidence --- that it was not ordered or that it was necessary.
On August 10, 2011, plaintiff filed an MSR at 10:29am for a medication problem
and then a second MSR at 11:33 for a self-declared emergency because he had been out
of medications, including blood pressure medications, for a week. He was suffering from
a severe headache as a result.
Plaintiff’s August 26, 2011 lab results were as follows:
August 2011

Creatinine
1.9

GFR
37

Again, plaintiff points out that Hakala did not order liver enzyme testing, but defendants
deny --- without citation to evidence --- that it was not ordered and that it was necessary.
Dr. Winklemeyer again assessed plaintiff regarding his kidney function and blood
pressure on September 6, 2011. Winklemeyer stated that “he has been doing okay”
although “he does have some difficulty with abdominal discomfort because of the huge
size of his cyst in his liver and kidneys.” (CORIZON 2583.) Winklemeyer stated that
plaintiff should “continue current medical regimen” and get labs in February 2012.
Plaintiff’s October 2011 lab results were the same as the August results. The
parties dispute the same issue regarding testing of liver enzymes discussed above.
On January 16 and 23, 2012, plaintiff filed an MSR for stomach pain. During the
January 16 nurse visit, he reported pain in his liver and asked to see a liver specialist.
There was no referral to a physician. During the January 23 nurse visit, plaintiff stated
his stomach swelling was worse and waking him up. The nurse noted that plaintiff’s
abdomen was firm with several hard knots in it. Plaintiff says no referral to a physician

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was made, but defendants point out that the plan of care was to refer plaintiff to DSC, or
“doctor sick call.” (CORIZON 845-46.)
Plaintiff was seen in the Chronic Care Clinic on January 28, 2012. The doctor
who saw plaintiff ordered an appointment with Dr. Hakala so he could consider a repeat
CT and ultrasound. Hakala saw plaintiff on February 3, made no reference to the clinic
doctor’s CT and ultrasound suggestions, and planned for plaintiff to follow up in Chronic
Care Clinics. Plaintiff’s February 24 labs were as follows:
February 2012

Creatinine
1.69

GFR
42

Plaintiff’s sister contacted Corizon regarding plaintiff’s complaints of stomach
pain on February 27, 2012. On February 28, plaintiff filed another MSR for stomach
pain and told Hakala on March 1 that he had “stomach pain all over most of [the] time.”
Plaintiff had protein in his urine, and Hakala assessed him as having a “massive liver.”
Hakala’s plan was to order a CT so he could compare the results to the 2010 CT.
(CORIZON 856.) Hakala ordered the CT, but his request was denied by the regional
medical director. Plaintiff also saw renal specialist Dr. Winklemeyer on March 1.
Winklemeyer noted that plaintiff was “quite symptomatic,” that the liver cysts were
compressing his GI tract and causing weight loss. Winklemeyer discussed options with
plaintiff including laparoscopic debulking of his liver and resecting the lobe of his liver.
But Winklemeyer also noted that his surgical suggestions were “questionable” and “may
or may not work.”
On five days in April 2012 --- April 5, 12, 18, 20, and 26 --- plaintiff filed MSRs
for stomach pain. He was seen by Dr. Hakala on April 27, who continued to prescribe
Tylenol and referred plaintiff to nonparty Dr. Doerhoff for a surgical consult. Dr.
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Doerhoff reviewed plaintiff’s medical records and imaging on May 16, 2012. Doerhoff
noted that there was not much room for the bowels according to the CT scan.
Plaintiff filed additional MSRs for stomach pain on May 14 and 29 and June 5 and
6, 2012. He told the nurse on June 7 that he is in pain all of the time. He filed more
MSRs for stomach pain on June 15 and 29, and July 11 and 23. Plaintiff saw a nurse
regarding those MSRs in June, but he did not see a physician until August 8. Although
the medical record suggests that Hakala reviewed Dr. Doerhoff’s May 16 report on May
23, Hakala writes in the August 8 encounter that “Dr. Doerhoff was going to ask a
colleague about the CT.” A September 13 update reports that Dr. Doerhoff learned from
Dr. Howard that no surgical options were available to plaintiff and that “renal failure is
eminent” [sic]; Hakala also mentions the possibility of dialysis, and that plaintiff “needs
to think about his code status.” (CORIZON 880.) On September 19, 2012, Hakala met
with plaintiff and told him that his condition was progressive and would lead to dialysis
and that the surgeons did not consider him a surgical candidate.
Plaintiff filed more MSRs for stomach pain on September 19, October 8, and
October 31. Plaintiff was seen in the Chronic Care Clinic on November 8 by nonparty
Dr. Myers. She observed his abdominal problems and wrote that plaintiff “needs
ultrasound of abdomen asap” but then wrote “ultrasound of abdomen not ordered as I was
unaware it was a referral.” She stated that plaintiff “needs to f/u with Dr. Hakala due to
long hx with abd. problems.” She also said he should go to Chronic Care Clinic in one
month or sooner if needed.
Plaintiff filed an MSR on November 27, 2012 because he was out of one of his
blood pressure medications. He filed MSRs on November 28 and December 5 due to
abdominal pain and saw Dr. Hakala on December 6, 2012 due to his complaints of
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swelling abdomen and shortness of breath. Plaintiff reported that he could not sleep due
to the pain. Dr. Hakala noted that plaintiff had “very little space for diaph[ragm]
motion.” (CORIZON 900.) Hakala stated that he would request a consult with Dr.
Winklemeyer regarding the need for dialysis and request a repeat CT. The December 27
CT scan showed “severe polycystic kidney disease with extensive heptatic involvement
which appears to have progressed.” (CORIZON 902.) The report also suggested
magnetic resonance angiography to evaluate for the presence of a cerebral aneurysm.
Hakala does not appear to have ordered any follow-up testing, treatment, or consultation.
On January 23, 2013, Dr. Hakala noted that “Tylenol is handling pain” and that
some days plaintiff would take one Tylenol pill per day and other times eight pills per
day for it. (CORIZON 915.)
On February 15, 2013, plaintiff filed an MSR for stomach pain and told the nurse
that he cannot eat much due to the pain. His girth was measured as 44 inches. On March
8, plaintiff’s family member called out of concern for plaintiff’s pain and abdominal
swelling. Nonparty Stephanie Novak took the call and told the family member she would
have plaintiff evaluated, but the parties dispute whether any evaluation took place.
Plaintiff had a Chronic Care Clinic appointment on July 18, 2013, which plaintiff
says was the first chronic care appointment since November 8, when Dr. Myers said he
should be seen the next month. Dr. Hakala noted plaintiff’s abdomen was tense and
measured 44 inches, and Hakala’s plan was to complete metabolic panels every six
months and follow up with Dr. Winklemeyer.
Plaintiff’s labs continued to show poor kidney function. On August 29 they
showed the following:

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August 2013

Creatinine
1.99

GFR
35

Per Dr. Winklemeyer’s recommendation following a September 16, 2013 visit, Hakala
discontinued Captopril and started plaintiff on Enalapril. Plaintiff was seen in the
Chronic Care Clinic on October 11. On November 1, Hakala made a referral request for
follow-up consult with Dr. Winklemeyer in May 2014, and the referral was approved. In
November 2013, however, plaintiff complained about side effects from the new blood
pressure medication, Enalapril. It appears from the medical record that plaintiff wanted
to go back to the Captopril, but that Hakala wanted plaintiff to continue to take Enalapril
per Dr. Winklemeyer’s recommendation. Plaintiff refused to take the Enalapril as a
result.
On December 18, 2013, plaintiff saw the nurse for a painful knot on his left side
and wheezing when he breathed. Dr. Beth Hakala, a nonparty, made a referral request for
a CT because she believed the mass may be a new cyst on plaintiff’s spleen. The request
was approved, and a January 15, 2014 CT revealed massive hepatomegaly with liver
replaced by multiple cysts, polycystic kidneys on both sides, and elevation of the right
diaphragm.
Plaintiff’s February 4, 2014 labs showed creatinine levels were as follows:
February 2014

Creatinine
2.04

GFR
Not observed

Plaintiff also filed an MSR on February 4 for chest pain. He also told the nurse that he
was out of his blood pressure medication --- it is unclear, however, what blood pressure
medication he was taking at this point. It does appear that Dr. Winklemeyer resumed

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plaintiff on Captopril instead of Enalapril in February 2014. Plaintiff’s March and April
labs were as follows:
March 2014
April 2014

Creatinine
2.19
2.04

GFR
31
34

On April 30, 2014, nonparty Dr. Massey submitted a referral request for a followup surgical consult with Dr. Doerhoff to see whether therapeutic drainage of the cysts for
comfort was possible, but the referral was deferred because plaintiff’s cysts would recur,
and he was at high risk for complications. Plaintiff was also prescribed Neurontin for
chronic pain.
By October 29, 2014, plaintiff’s labs continued to show poor kidney function, and
his abdomen had grown to 46”.
On March 18, 2016, plaintiff was taken out of SECC on a stretcher and transported
to Missouri Delta Medical Center due to shortness of breath and pain. He was at some
point transferred to Washington University, and his condition had progressed to the point
where he could not lie down flat for a CT scan. His labs at that time were as follows:
March 2016

Creatinine
4.2

GFR
19

On April 11, 2016, plaintiff presented to Barnes Jewish Hospital for emergency care. A
chest x-ray revealed an elevated right diaphragm and almost complete hepatic and renal
replacement by extensive cysts. The surgeon who examined plaintiff stated “I don’t think
this is a surgically fixable problem” and only a liver and kidney transplant could reverse
the course of his disease, but he was not sick enough for emergency transplant status. It
was recommended that plaintiff begin hospice care.

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In addition to the above-stated facts regarding plaintiff’s PKD and PLD, plaintiff
alleges the defendants allowed his blood pressure medication to run out and that he filed
MSRs for blood pressure checks that he suggests were not responded to. Defendants note
that monthly blood pressure checks were ordered by the medical provider through the
cardiovascular Chronic Care Clinic. Defendants appear to accurately portray plaintiff’s
blood pressure check regularity, and plaintiff does not appear to press that his deliberate
indifference claim includes a failure to monitor his blood pressure. (See, e.g., #168 at ¶
108.) As for plaintiff’s blood pressure medication, it does appear that plaintiff
periodically went without blood pressure medication, but those lapses were remedied.
Plaintiff filed his complaint on April 17, 2013. Counsel was appointed for
plaintiff on May 2, 2014. Plaintiff’s amended complaint alleges that the defendants were
deliberately indifferent to plaintiff’s serious medical needs in violation of his
constitutional rights. The four defendants, Dr. Michael Hakala, Corizon State Regional
Medical Director Dr. Elizabeth Conley, Corizon Health Services Administrator at SECC
Phyllis Stanley, and Corizon, have moved for summary judgment.
II.

Legal Standard
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. City of Mt. Pleasant, Iowa v. Assoc. 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).
15

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).
III.

Discussion
Defendants seek summary judgment on each count against them.
A.

Defendant Dr. Michael Hakala

Defendant Dr. Michael Hakala provided medical care to plaintiff at SECC and was
employed as an independent contractor physician for Corizon. Plaintiff claims defendant
Hakala violated his Eighth Amendment right to be free from cruel and unusual
punishment by failing properly to treat his PKD and PLD. To establish a constitutional
violation based on inadequate medical care, plaintiff must show defendant was
deliberately indifferent to the plaintiff’s serious medical needs. 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
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obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Coleman v. Rahija, 114 F.3d. 778, 784 (8th Cir. 1997) (quoting Camberos v.
Branstad, 73 F.3d. 174, 176 (8th Cir. 1995)).
In order to satisfy the subjective component of an Eighth Amendment medical
claim, a plaintiff inmate must show that the prison officials knew of, yet deliberately
disregarded, an excessive risk to the inmate’s health. Keeper v. King, 130 F.3d 1309,
1314 (8th Cir. 1997). A prison official may be liable under the Eighth Amendment 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, 557 F.3d at 908 (quoting Gordon v. Frank, 454 F.3d 858, 862
(8th Cir. 2006). “Neither differences of opinion nor medical malpractice state an
actionable Constitutional violation.” Jones v. Norris, 310 F.3d 610, 612 (8th Cir. 2002).
Defendants contend that, although there is no doubt that plaintiff’s PKD, PLD,
renal failure, and hypertension are serious medical conditions, Hakala regularly and
appropriately monitored and treated the symptoms of plaintiff’s conditions. The record
shows, for instance, that Hakala and staff monitored plaintiff’s polycystic kidney and
liver disease progression through regular lab work, an ultrasound in 2010, CT scans in
2010, 2012, and 2014, and visits with specialists starting in 2011.
Plaintiff retorts that Hakala, when he took over management of plaintiff’s
condition in 2009, should have ordered yearly ultrasounds according to the deposition
testimony of another treating physician, Dr. Jared Flood. In addition, plaintiff points out
that his GFR levels were consistently well under 60, which Hakala himself said would
call for a renal specialist consult. Hakala also testified that he believed a GGTP (which
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pertains to plaintiff’s liver function) should be obtained each time labs were taken for
plaintiff, but GGTP was infrequently obtained. Furthermore, by no later than early 2010,
one of plaintiff’s cysts was visibly protruding from his upper abdomen --- a symptom that
caused Dr. Flood to order an ultrasound. Although that ultrasound was approved, Dr.
Hakala did not review the results --- which called for a CT scan --- for more than two
months. Even when Dr. Hakala finally ordered the CT scan in April 2010, Dr. Hakala
inexplicably focused on the scan’s failure to reveal a hernia rather than on the severe
polycystic kidney and liver problems it did reveal. Then, Dr. Hakala did not refer
plaintiff to a renal specialist until March 2011. Plaintiff saw that renal specialist, Dr.
Winklemeyer, three times until plaintiff’s continued complaints of pain resulted in
Hakala’s referring plaintiff to a surgeon. That surgeon, Dr. Doerhoff, said that nothing
could be done about plaintiff’s cysts. Visits to different surgeons two years later resulted
in the same diagnosis. As plaintiff had been informed numerous times, PKD and PLD
are progressive diseases, and he would ultimately require dialysis as part of his treatment.
Although plaintiff’s experience certainly does not present a model of medical care,
the Court holds that Hakala’s delay in referring plaintiff to a specialist, his infrequent
ordering of diagnostic imaging, his perplexing fixation on a nonexistent hernia diagnosis,
and his failure to order more thorough lab tests does not rise to the level of deliberate
indifference. 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.” Beyerbach v. Sears, 49
F.3d 1324, 1326 (8th Cir. 1995), abrogation on other grounds recognized by Reece v.
Groose, 60 F.3d 487, 492 (8th Cir. 1995) (internal quotation omitted). It is perhaps
troubling that there was no proactive investigation into addressing plaintiff’s visible,
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painful cysts when they were relatively small, but plaintiff’s condition was not ignored,
and even plaintiff’s expert does not explain how, if at all, additional treatment would
have helped. See, e.g., Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997) (noting
that inmate “must place verifying medical evidence in the record to establish the
detrimental effect of delay in medical treatment.”). And even though plaintiff would
have preferred an earlier consult and more thorough lab work, prisoners “have no
constitutional right to receive a particular or requested course of treatment, and prison
doctors remain free to exercise their independent medical judgment.” Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997).
Moreover, most damaging to plaintiff’s case is that, when Dr. Hakala referred
plaintiff to renal specialist Dr. Winklemeyer in 2011, that specialist did not prescribe a
different course of action; instead, he stated that plaintiff should “continue current
medical regimen.” Plaintiff’s suggestion that surgical discussions should have happened
earlier is also belied by Dr. Winklemeyer’s orders. Dr. Winklemeyer did not even
discuss surgical possibilities until plaintiff’s third visit with him, in 2012; Hakala then
referred plaintiff to a surgeon (apparently in response to Winklemeyer’s suggestion that
surgery may or may not work), and that surgeon confirmed that surgery was not an
option.
Plaintiff suggests that his facts implicate the Supreme Court’s decision in Estelle
v. Gamble because the defendants’ failure to provide adequate medical care is causing
plaintiff’s “lingering death.” 429 U.S. 97, 103 (1976). Although plaintiff’s
circumstances are indeed difficult, they are the products of the incurable diseases from
which he suffers --- not the medical care he received while incarcerated. Plaintiff
undoubtedly was and is a very ill man with a chronic and progressive illness. In light of
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these circumstances, plaintiff was appointed counsel who has diligently advocated for her
client. However, the unfortunate fact remains that there is no cure for PKD and PLD.
Dr. Winklemeyer himself noted that decompressing the cysts “for comfort” was not an
option because the cysts would just come right back; he also wrote that he was “not sure
[plaintiff] understands this after several explanations.” (#160-8 at 4.) Although plaintiff
complains that his liver function was not regularly screened by lab work and that he was
never referred to a liver specialist, Dr. Flood testified that referral to a specialist for liver
issues may include referral to a surgeon and “not necessarily a liver specialist.” (#160-1
at 37.) Further, there is no evidence that his liver function caused the suffering for which
he complains or that it was not adequately addressed by visits regarding his abdominal
cysts generally. Additionally, there is no evidence that plaintiff’s occasional failure to
receive his blood pressure medications was a factor in plaintiff’s claimed injury,
particularly in light of plaintiff’s own reluctance to take his medications at times. In fact,
Dr. Winklemeyer’s reports consistently indicate that plaintiff’s hypertension was well
controlled.
The evidence also shows Dr. Hakala was not deliberately indifferent to plaintiff’s
pain. Plaintiff complained of severe pain for years and would at times between 2010 and
2012 file repeated MSRs. But he was provided with Tylenol, for which he had a monthly
order and which he was allowed to keep on his person and take as needed for pain.
Notably, as late as January 23, 2013, Dr. Hakala noted that “Tylenol is handling pain”
and that some days plaintiff would take one Tylenol pill per day and other times eight
pills per day for it. (CORIZON 915.) Plaintiff does not dispute that Tylenol was
effective. Furthermore, despite seeing outside specialists beginning in 2011, those
specialists did not adjust plaintiff’s pain management. Finally, after plaintiff’s
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relationship with Dr. Hakala ended, on April 30, 2014, it is noteworthy that another
doctor prescribed plaintiff Neurontin/Gabapentin for pain, but plaintiff did not like that
medication because it made him sleepy. The medication was discontinued as a result.
The record shows that plaintiff’s pain was known to defendant Hakala, but it is
undisputed that pain is a known symptom of plaintiff’s condition and that Tylenol
controlled the pain --- in fact, the Tylenol was apparently preferable to the Neurontin that
another physician later prescribed. Dr. Hakala provided plaintiff with Tylenol, which
plaintiff admits was effective, and plaintiff does not point to any evidence that he was
forced to be without Tylenol for any period of time.
Because the record shows defendant Hakala was not deliberately indifferent to
plaintiff’s serious medical condition, the Court will grant defendant Dr. Hakala’s motion
for summary judgment.
B.

Defendants Dr. Elizabeth Conley and Phyllis Stanley

Plaintiff alleges that defendants Conley and Stanley acted with deliberate
indifference when they failed to take action regarding grievances he filed concerning the
continued denial of his blood pressure medication. Defendants Conley and Stanley were
involved in three grievance appeal responses (the third and final step in the grievance
process): those grievances are identified as SECC 10-1057, SEC 10-2044, and SECC 102117. For SECC 10-1057, plaintiff complained he had run out of medication in May
2010. Staff had apologized for the delay and instructed him to submit an MSR when his
medication was running low; further, site management had said it would implement steps
to prevent lapses in the future. By the time plaintiff’s grievance reached defendants
Conley and Stanley in December 2010, the matter had been resolved, and they

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determined that no further action was required. Plaintiff does not dispute that fact (#151
and #167 at ¶ 163).
Grievances SECC 10-2044 and SECC 10-2117 are nearly identical and were
submitted within days of one another, in December 2010. The grievances stemmed from
plaintiff’s complaints that he was unable to see a specialist for his kidneys or liver. By
the time defendants Conley and Stanley responded to the grievance appeals in March
2011, plaintiff had seen a specialist. Plaintiff does not dispute those facts (#151 and #167
at ¶¶ 163, 166).
Instead, plaintiff suggests in his response memorandum that defendants Conley
and Stanley, had they reviewed plaintiff’s medical history, would have learned that
Hakala’s referral to a specialist was untimely and that he needed a liver specialist, not just
a nephrologist. In that way, plaintiff says, defendants Conley and Stanley were
deliberately indifferent to plaintiff’s serious medical needs. This Court has already
determined that plaintiff’s PKD and PLD treatment was not constitutionally deficient.
Defendants Conley and Stanley will be granted summary judgment.
C.

Defendant Corizon

Defendant Corizon contracts with the Missouri Department of Corrections to
furnish medical care to MDOC prisoners. A corporation acting under color state law may
be liable under 42 U.S.C. § 1983 for its own unconstitutional policies or customs. See
Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658, 690 (1978). The
“proper test is whether this is policy, custom, or action by those who represent official
policy that inflicts injury actionable under Section 1983.” Sanders v. Sears, Roebuck &
Co., 984 F.2d 972, 975-76 (8th Cir. 1993). Because the Court finds there is no
underlying constitutional violation, however, Corizon is entitled to summary judgment.
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Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary judgment
(#149) is GRANTED.

It is SO ORDERED this

11th

day of April, 2017.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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