Adams v. Campbell et al

Filing 75

OPINION,MEMORANDUM AND ORDER- IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment, [Doc. No. 54 ] is granted. IT IS FURTHER ORDERED that judgment in their favor shall be entered. when all remaining issues herein have been resolved. Signed by District Judge Henry E. Autrey on 01/29/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

JOHN Q. ADAMS,
Plaintiff,
vs.
GARY CAMPBELL, M.D., et al.,
Defendants.

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Case No. 2:12CV24 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants Corizon, Inc., Cabrera,
Campbell, Bredeman, and Corley’s Motion for Summary Judgment, [Doc. No. 54].
Plaintiff opposes the Motion. For the reasons set forth below, the Motion is
granted.
Introduction
Plaintiff, was an inmate at the Northeast Correctional Center, Bowling,
Missouri. Plaintiff filed the instant Section 1983 pro se Complaint against
Defendants in which Plaintiff alleges that defendants denied him medical
treatment, that this denial was deliberately indifferent, and that defendants’ actions
violated this constitutional rights under the Eighth Amendment. Plaintiff contends
that he was injured by an attack on him by another inmate. According to

plaintiff’s allegations, he suffered a “busted cheekbone” as a result of the attack,
which occurred on June 6, 2011. The Complaint further sets forth allegations of
events which have occurred regarding plaintiff’s medical condition. Plaintiff has
named Corizon, Inc., Cabrera, Campbell, Bredeman, and Corley as defendants
responsible for the alleged deprivation of Plaintiff’s constitutional rights.
Defendants now move for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure.
Facts and Background1
Plaintiff was an offender in the custody of the Missouri Department of
Corrections. During the time period relevant to Plaintiff’s Complaint, Plaintiff was
confined at Northeast Correctional Center in Bowling Green, Missouri. Defendant
Corizon, Inc. has a contractual agreement with the State of Missouri to provide
medical services to offenders in the Missouri Department of Corrections.
Defendant Dr. Tomas Cabrera is a physician licensed in the State of Missouri who
is retained as an independent contractor physician by Corizon to provide medical
care to offenders incarcerated at Northeast Correctional Center. Defendant Dr.

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Plaintiff does not specifically controvert defendant’s Statement of Uncontroverted
Material Facts. Pursuant to the Court’s Local Rules, failure to controvert the facts renders them
admitted.
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Gary Campbell is a physician licensed by the State of Missouri who is retained as
an independent contractor physician by Corizon to provide medical-related
services. Defendant Dr. Thomas Bredeman is a physician licensed by the State of
Missouri retained by Corizon, Inc. to provide medical-related services as the
Associate Regional Medical Director. Defendant Dr. Elizabeth Conley is a
physician licensed by the State of Missouri employed by Corizon, Inc. as the
Missouri Regional Medical Director.
The issue in this case with regard to Defendants is the care and treatment
provided to Plaintiff following injuries he sustained in an altercation with another
inmate on or about June 6, 2011. Plaintiff alleges that the “lack of proper medical
care, that’s the basis for the lawsuit.” Plaintiff relies upon the medical records in
support of his allegation that he was not provided with proper medical care.
Plaintiff alleges he suffered a “busted cheekbone” as a result of the incident
on June 6, 2011. Plaintiff received medical care following the June 6 injury,
including evaluations by Dr. Cabrera and specialist Dr. Wanless.
Plaintiff alleges that the injuries to his face required “facial reconstructive
surgery and potential nerve graph surgery” and that Corizon, Inc. violated his
Eighth Amendment rights by not providing him with same.
Plaintiff admits that Dr. Cabrera has never made any statements to him that
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evinced deliberate indifference to his medical needs. Plaintiff alleges that Dr.
Cabrera was deliberately indifferent in that he “didn’t fight hard enough or didn’t
explain it good enough to whatever about my face, what’s wrong with it, why it’s
still numb all the way through here and all, to get them to take me to a doctor that I
needed to be taken to get it fixed.”
Plaintiff alleges that Dr. Bredeman was deliberately indifferent in that he
“denied me being taken out to see a specialist.” Plaintiff cannot articulate how
either Dr. Conley or Dr. Campbell was deliberately indifferent to his medical
needs, and admits that he has never met or communicated with either defendant.
Plaintiff admits he saw “a lot of doctors that first week or so” following the
injury. Plaintiff received medical attention both from Dr. Cabrera at the facility
and from an outside specialist in Moberly, Missouri for his complaints about his
cheekbone/face.
On June 6, 2011 (the date Plaintiff sustained his injuries), Nurse Denise
Morris examined Plaintiff and observed the following: “skin tear r[igh]t elbow[,]
movement within normal limits, reddened area l[ef]t anterior rib area, denies any
problems breathing, abrasion r[igh]t post[erior] shoulder, open skin tear l[ef]t
facial cheek area lat[eral] to l[ef]t eye, l[ar]g[e] hematoma l[ef]t eye, denies any
visual changes, blood noted from mouth, small open area to r[igt] lower lip,
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bleeding all areas contained on presentation.” Nurse Morris cleaned Plaintiff’s
injuries with saline, bandaged his left elbow, and provided Plaintiff with ice for
his eye.
Dr. Cabrera was notified and ordered an x-ray of Plaintiff’s face. Nurse
Melanie Powell also assessed Plaintiff on June 6, noting Plaintiff had “facial
bruising and swelling” and that Plaintiff denied any visual impairment. Nurse Earl
Cox examined Plaintiff on June 7, 2011 and noted “each eye is swollen with
periorbital bruising” and that Plaintiff “denies change in vision.” An x-ray was
taken of Plaintiff’s face on June 7, 2011. The x-ray taken on June 7, 2011 stated
“on a single image there is suggestion of right intraorbital fracture” and the
“zygoma and lateral maxilla appear intact.”
Nurse Christina Craven examined Plaintiff on June 13, 2011, for his
complaints that his medical lay-in had not been renewed and that his right upper
lip bled when he brushed his teeth. Nurse Craven noted that no signs or
symptoms of infection were present with regard to Plaintiff’s lip and provided him
with bacitracin ointment for his lip and scheduled antiseptic mouthwash
treatments in the medical department, which were performed June 13-17.
On June 17, 2011, Dr. Cabrera examined Plaintiff’s face and cheek and
referred Plaintiff to an outside specialist, Dr. Wanless, whose offices are in
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Moberly, Missouri, for further evaluation. The consultation with an outside
specialist was approved by Regional Medical Director Bynum on June 21, 2011.
On July 11, 2011, Nurse Linda Wiley examined Plaintiff for his complaint
that the right side of his face was numb; the nurse observed that Plaintiff’s “facial
response is symmetrical” and that Plaintiff would be seen by an outside physician
for further evaluation.
On July 15, 2011, the outside specialist, Dr. Kirk M. Wanless,2 examined
Plaintiff and determined that Plaintiff’s injury “may resolve in six months or less”
and was “unlikely to need any surgical intervention.”
According to the information made publicly available on the Missouri
Board of Healing Arts’ website, http://www.pr.mo.gov/healingarts.asp, Dr.
Wanless is Board-certified in head and neck surgery. Plaintiff admits that he was
told by Dr. Wanless not to worry about his cheekbone or any nerve damage and
that Dr. Wanless told him the June 6 injury would “heal itself in six to eight
months.” Dr. Wanless recommended that Plaintiff’s dental plate be adjusted,
which was performed by a dentist on July 19, 2011.
Plaintiff was scheduled to be seen by Dr. Cabrera on September 16, 2011,
but refused his medical appointment.
While Plaintiff continued to see medical practitioners in September,
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October, November, and December 2011, he did not make any additional
complaints concerning his cheek or face during that time period. The next time
Plaintiff complained of any issues with his face was on January 31, 2012, when he
was seen by Nurse Melanie Powell for his complaint of facial numbness. Nurse
Powell examined Plaintiff’s face and observed that Plaintiff had an “equal smile,
no drooping noted . . . . face is equal in temp.”
On February 6, 2012, Dr. Cabrera examined Plaintiff and ordered another xray of Plaintiff’s face. The x-ray stated “subtle cortical irregularity along the right
infraorbital plate” that “may be attributable to old injury.” Dr. Cabrera requested a
second referral to Dr. Wanless, which was reviewed by Dr. Bredeman on or about
February 21, 2012.
Plaintiff has never met, does not know, and has never communicated with
Dr. Bredeman, and Dr. Bredeman never personally provided medical care to the
Plaintiff.
Since there were no changes to Plaintiff’s prior x-ray results and therefore
“no new findings for surgical intervention noted,” Dr. Bredeman suggested that
Dr. Cabrera consult with Dr. Wanless concerning Plaintiff’s condition; he also
noted that Dr. Cabrera could resubmit the referral request if indicated following
the consultation with Dr. Wanless.
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On March 7, 2012, Dr. Cabrera consulted with Dr. Wanless concerning
Plaintiff’s cheek; Dr. Wanless’ opinion was that the chances of Plaintiff’s facial
numbness improving with surgery were “very minimal.”
Plaintiff does not dispute that Dr. Wanless told Dr. Cabrera that surgical
intervention was unlikely to improve Plaintiff’s facial numbness, but Plaintiff
disagrees with Dr. Wanless’ medical opinion.
Dr. Cabrera is the only named defendant who personally provided any
medical care to Plaintiff.
Plaintiff named Dr. Campbell as a defendant because Dr. Campbell’s name
was on a list as being affiliated with “medical over this institution.” Plaintiff
admits that he has never met, does not know, and has never communicated with
Dr. Campbell.
Dr. Campbell and Dr. Conley also never personally provided medical care
to Plaintiff, as the Plaintiff has never met either of them. Plaintiff admits that he
has never met, does not know, and has never communicated with Dr. Conley, and
named her as a defendant because Plaintiff found Dr. Conley’s name on a list of
individuals associated with the medical part of the correctional facility.
Summary Judgment Standard
The standards for summary judgment are well settled. In determining
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whether summary judgment should issue, the Court must view the facts and
inferences from the facts in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The moving
party has the burden to establish both the absence of a genuine dispute of material
fact and that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Enterprise Bank v. Magna Bank, 92 F.3d 743,
747 (8th Cir. 1996). Once the moving party has met this burden, the nonmoving
party may not rest on the allegations in his pleadings but by affidavit or other
evidence must set forth specific facts showing that a genuine dispute of material
fact exists. Fed.R.Civ.P. 56(e); Anderson 477 U.S. at 256; Krenik v. Le Sueur, 47
F.3d 953, 957 (8th Cir. 1995). “‘Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of
summary judgment.’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).”
Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004). A dispute of fact is
genuine when “a reasonable jury could return a verdict for the nonmoving party”
on the question. Anderson, 477 U.S. at 248; Woods, 409 F.3d at 990. To survive a
motion for summary judgment, the “nonmoving party must ‘substantiate his
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allegations with sufficient probative evidence [that] would permit a finding in [his]
favor based on more than mere speculation, conjecture, or fantasy.’ Wilson v. Int’l
Bus. Machs. Corp., 62 F.3d 237, 241 (8th Cir. 1995)(quotation omitted).” Putman
v. Unity Health System, 348 F.3d 732, 733-34 (8th Cir. 2003). “[A] complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. The
Court will review the facts in this case with the stated standards in mind.
Discussion
“A prisoner alleging an Eighth Amendment violation must prove both an
objective and subjective element. See Wison v. Seiter, 501 U.S. 294, 298 (1991).”
Revels v. Vincenz, 382 F.3d 870, 875 (8th Cir. 2004). To prevail on a deliberate
indifference claim against defendant, plaintiff must show he suffered from a
serious medical need and defendants knew of, yet disregarded, the need. See
Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004); Jolly v. Knudsen, 205
F.3d 1094, 1096 (8th Cir. 2000); Roberson v. Bradshaw, 198 F.3d 645, 647 (8th
Cir.1999).
Defendants contend they are entitled to summary judgment on the claims
against them.
Plaintiff has failed to create any genuine issues of material fact regarding his
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Eighth Amendment claims against Defendants. While plaintiff’s claims may
satisfy the objective aspect of the two prong test showing that he has serious
medical needs, see Roberson, 198 F.3d at 648 (need or deprivation alleged must be
either obvious to layperson or supported by medical evidence, like physician's
diagnosis), Plaintiff cannot prove that Defendants knew of the serious medical
needs and deliberately disregarded them. The subjective element of an Eighth
Amendment claim requires that an official act with deliberate indifference to
inmate health or safety. Farmer v. Brennan, 511 U.S. 825, 835-36 (1994).
“Deliberate indifference” entails a level of culpability equal to the criminal law
definition of recklessness, that is, a prison official "must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id., at 837. See also, Bender v.
Regier, 385 F.3d 1133, 1137 (8th Cir. 2004).
The record before the Court shows that Defendant Cabrera, along with other
medical personnel, treated Plaintiff on a number of occasions, and Plaintiff refused
to see Dr. Cabrera on one occasion. Plaintiff’s medical records show that medical
personnel conducted physical examinations, evaluated Plaintiff’s complaints and
concerns and ordered x-rays and tests when warranted. Plaintiff was seen by Dr.
Wanless, an outside physician who determined that surgery was not necessary.
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Further, in consultation with Dr. Wanless, Dr. Wanless’ opinion was that surgery
would be minimally effective. This course of treatment was consistent with
Plaintiff’s medical needs.
Plaintiff seeks specific types of treatment and claims that the failure to
provide this specific treatment rises to the level of a constitutional violation.
Plaintiff ’s disagreement with his treatment is, however, misplaced. See Dulany v.
Carnahan, 132 F.3d 1234, 1239 (8th Cir.1997) (prison doctors remain free to
exercise their independent medical judgment).
In the face of medical records indicating that treatment was provided an
inmate cannot create a question of fact by merely stating that [he] did not feel [he]
received adequate treatment. Dulany, 132 F.3d at 1234.
Plaintiff fails to establish the personal involvement of Defendants Conley
and Campbell. Such failure is fatal to Plaintiffs’ claims against them. It is well
settled that there is no respondeat superior liability under § 1983. Boyd v. Knox, 47
F.3d 966, 968 (8th Cir.1995). Accordingly, supervisory personnel are not liable
under § 1983 absent a showing that “the supervisor [was] personally involved in
the violation” or that “the supervisor's corrective inaction constitute[d] deliberate
indifference toward the violation.” Id. (citation omitted). In particular, the
plaintiff must show that the supervisor knew about the conduct and facilitated it,
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approved it, condoned it, or turned a blind eye to it. Id. (citations omitted); see also
Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir.1997) (“Section 1983 liability
cannot attach to a supervisor merely because a subordinate violated someone's
constitutional rights.”).
Plaintiff admits that Dr. Conley was not personally involved in the alleged
violation. Likewise, there is no evidence that Defendant Campbell was personally
involved in Plaintiff's treatment.
Rather than creating a genuine dispute of material fact, this evidence shows
that neither of these defendants was personally involved in Plaintiff's treatment
decisions, or took corrective inaction. See Boyd, 47 F.3d at 968. Accordingly,
these defendants are entitled to summary judgment on Plaintiff’s Complaint and
will be dismissed from this action. See Fed.R.Civ.P. 56(c); Boyd, 47 F.3d at 968.
With respect to Dr. Bredeman, Plaintiff admits he never met this Defendant,
rather, the claim against Bredeman is that he reviewed a referral request from Dr.
Cabrera. Given the second x-ray, Dr. Bredeman noted that there were no new
findings, and therefore the request for the outside referral was denied. Bredeman
suggested that Cabrera consult with Dr. Wanless regarding Plaintiff’s condition.
Bredeman left open the possibility of Cabrera resubmitting his referral based on
the consultation. Without more, Plaintiff has failed to establish that Bredeman had
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knowledge of, and was deliberately indifferent to a serious medical need.
Bredeman clearly was not deliberately indifferent, rather, he assessed Plaintiff’s
condition, medical records and the previous opinions and concluded that the
outside referral was not needed at the time.
Defendant Corizon, Inc. is also entitled to judgment as a matter of law.
Because Plaintiff has presented no evidence of a Corizon, Inc. policy or custom
relevant to Plaintiff’s claims, summary judgment is proper . See Sanders v. Sears,
Roebuck & Co., 984 F.2d 972, 975-76 (8th Cir.1993) (corporate liability under §
1983).
Conclusion
Based upon the foregoing, plaintiff has failed to present any genuine
disputes as to any material fact to establish that Defendants have violated his
constitutional rights in violation of Section 1983. They are, therefore, entitled to
judgement as a matter of law.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment, [Doc. No. 54] is granted.
IT IS FURTHER ORDERED that judgment in their favor shall be entered

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when all remaining issues herein have been resolved.
Dated this 29th day of January, 2014.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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