Calhoun v. Corizon Correctional Health Care et al

Filing 132

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendants' motion for summary judgment 80 is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion to compel 113 , second motion to compel 116 , and motion for default judgment 129 are DENIED. A separate judgment is entered this same date. Signed by District Judge Catherine D. Perry on 9/19/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MAJOR CALHOUN
Plaintiff,
vs.
CORIZON CORRECTIONAL
HEALTH CARE, et al.,
Defendants.

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Case No. 2:14 CV 88 CDP

MEMORANDUM AND ORDER
This is a pro se § 1983 action in which plaintiff Major Calhoun alleges
defendants, who are health care providers at the correctional facility where
Calhoun was housed, violated the Eighth Amendment by failing to deliver
adequate medical care for his injured wrist. Before me now are defendants’
motion for summary judgment, two motions to compel discovery filed by plaintiff,
and a motion for default judgment filed by plaintiff. For the reasons discussed
below, I will grant defendants’ motion for summary judgment and deny the
remaining motions.
Defendants’ Motion for Summary Judgment
In their motion for summary judgment, defendants argue that Calhoun
cannot demonstrate they acted with deliberate indifference in relation to the
medical treatment of his right wrist.

On March 23, 2016, I issued a Memorandum and Order granting Calhoun
additional time to file a supplemental response to defendants’ motion for summary
judgment. In that order, I discussed the facts of the case based on the evidence
before me and concluded that Calhoun had not submitted evidence sufficient to
defeat defendants’ motion. However, I acknowledged that Calhoun claimed to
have recently been in administrative segregation for an extended period without
access to his legal documents, and so I granted him additional time, nearly two
months, to file a supplemental response to defendants’ motion.
I am adopting the facts I set out in my March 23, 2016 Memorandum and
Order and will only summarize them as needed here. In short, Calhoun’s claim in
this case is that he was not provided adequate or timely medical care for a fracture
in his wrist. He claims that his injury was apparent and should have been treated
with surgery in 2011. Instead, he was treated with pain medication and a wrist
sleeve. When Calhoun complained about his wrist to prison medical personnel
again in 2013, he was referred to an orthopedic doctor, Dr. Wilson, who treated
him non-surgically at first. When this did not work, Dr. Wilson performed surgery
to attempt to relieve Calhoun’s pain. In his verified complaint, Calhoun claims
that Dr. Wilson told him surgery was indicated in 2011 and if it had been done at
that time his condition could have been corrected. Because it was not done, Dr.
Wilson told Calhoun he would likely suffer severe wrist pain for the rest of his life.
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Calhoun submitted no evidence of Wilson’s opinion other than his own statements
in the verified complaint. In my March 23 Order, I noted that even assuming
Calhoun’s statements about what Dr. Wilson told him were admissible, at most it
would demonstrate that the conservative medical treatment he received from
defendants in 2011 was medical malpractice, not deliberate indifference. I noted
that in order to defeat defendants’ summary judgment motion, Calhoun needed to
prove that in 2011 defendants knew that failing to surgically treat Calhoun’s wrist
created an excessive risk to his health, and that they failed to act on that
knowledge. I also stated that in any supplemental response, Calhoun must include
a response to each numbered paragraph of Defendants’ Statement of
Uncontroverted Material Facts and for any facts he disputed he must provide
evidence contradicting the facts asserted by defendants.
To supplement his response to summary judgment, Calhoun first filed a
document titled “Plaintiff’s Response to Defendants’ Statement of Uncontroverted
Material Facts in Support of Defendants’ Motion for Summary Judgment and
Submits Plaintiff’s Motion of Uncontroverted Material Facts and Motion for
Summary Judgment.” Next, he filed a documented titled “Plaintiff’s Supplemental
Complaint in Response to Defendants’ Motion for Summary Judgment and in
Support of Plaintiff’s Motion for Summary Judgement.” In short, in both of these
responses, Calhoun failed to provide any evidence indicating defendants knew that
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not performing surgery on his wrist in 2011 created an excessive risk to his health.
He also failed to include a response to each numbered paragraph of Defendants’
Statement of Uncontroverted Material Facts. Even construing the evidence in a
light most favorable to Calhoun, neither of his filings raises an issue of material
fact sufficient to defeat summary judgment. See Small v. McCrystal, 708 F.3d 997,
1003 (8th Cir. 2013) (“Summary judgment is proper if, after viewing the evidence
and drawing all reasonable inferences in the light most favorable to the nonmovant,
no genuine issues of material fact exist and the movant is entitled to judgment as a
matter of law”). However, in his “Plaintiff’s Response” filing, Calhoun discussed
and disputed portions of the defendants’ statement of material facts. He made two
arguments regarding his medical treatment that I will address briefly here.
First, Calhoun attached to his filing a number of medical records that
plaintiffs did not file with court, including “Lab/X-Ray Results” from three sets of
x-rays that were done on his wrist in November 2011, May 2013, and July 2013.1
With regard to these records, Calhoun makes much of the fact that in the
November 2011 document, his x-ray results were indicated, through the use of a
check-box, to be within acceptable limits, but in the document from May 2013 the
results (despite Calhoun’s injury being the same) were indicated to be outside
acceptable limits. Calhoun’s analysis stops there, but it is notable that the third
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Calhoun also attached a similar document for an x-ray taken in February 2012, but there is no
indication that the x-ray was taken of his wrist, therefore, I will not discuss the document here.

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document, regarding a wrist x-ray taken in July 2013, indicates that his results
were once again within normal limits, despite no change in his injury. Calhoun
appears to believe that the discrepancy between these documents is indicative of a
constitutional violation. The discrepancy is confusing but does not signal an
Eighth Amendment violation. As discussed in my March 23 Memorandum and
Order, the facts show that following each of these x-rays, Calhoun received
progressive medical care in an attempt to relieve his wrist pain. This undisputed
evidence proves the defendants were not deliberately indifferent to his medical
need. In fact, the undisputed evidence shows that defendants continued providing
treatment.
Next, Calhoun seems to argue that he was denied pain medication in
violation of his Eighth Amendment rights beginning in May 2013. But a review of
the records shows that even if defendants did not provide pain relief that was as
immediate or absolute as Calhoun would have liked, there is no indication that
their treatment of his pain was unconsitutional. Notes from medical consultations
regarding Calhoun’s wrist in May 2013 indicate he reported his pain as mild. [ECF
82-1, p. 11-12]. He was fitted with a wrist splint and provided acetaminophen.2
[Id. at 13]. When Calhoun complained of ongoing wrist pain in July 2013, Dr.

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There is some suggestion in the record that Calhoun was still on Tramadol, a narcotic
painkiller, at this time. A note in the record from August 2013 states that he had recently
attempted to wean himself off of Tramadol.

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Wilson was contacted. From August to October 2013, Calhoun’s pain was treated
with steroid injections, a brace, and over-the-counter pain medication. [Id. at 2122, 24]. In October 2013 Calhoun reported his pain was moderately controlled on
his current analgesic regimen. [Id. at 27]. In November 2013, after Calhoun
complained in late October that his current medications were not relieving his pain,
Dr. Archer prescribed Tramadol in addition to ongoing steroid injections. [Id. at
33]. In December 2013, Dr. Archer renewed Calhoun’s prescription for Neurontin
in response to his complaints of wrist pain. [Id. at 35] After that, it is unclear
whether Calhoun continued to receive prescription pain medication, and it appears
that prescription medications may have been withheld due to an administrative
misunderstanding. [See ECF 82-3, p. 8]. In any case, however, at a January 14,
2014 visit, Calhoun was provided acetaminophen in response to his complaints of
wrist pain [ECF 82-1, p. 41], and in late January 2014 the administrative problem
with his prescriptions was identified and corrected by NECC staff. [See ECF 82-3,
p. 8]. None of this rises to the level of deliberate indifference to Calhoun’s pain.
See Holden v. Hirner, 663 F.3d 336, 343 (8th Cir. 2011)(“[t]he level of culpability
required to demonstrate deliberate indifference on the part of prison officials is
equal to criminal recklessness”).
Calhoun’s “Supplemental Complaint” filing alleges various facts about his
medical care that are entirely unrelated to his wrist. It is not clear what effect
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Calhoun wants this document to have. If it is intended to supplement his response
to summary judgment, as I have noted, it does not succeed in defeating defendants’
motion. If Calhoun intends it as a motion to file an amended complaint, his motion
is denied. This case is now two years old and fully briefed for summary judgment;
discovery has been closed for over a year. Permitting the complaint to be amended
would require additional discovery, cause significant undue delay, and prejudice
the defendants. See Hammer v. City of Osage, 318 F.3d 832, 844-45 (8th
Cir.2003) (leave to amend should be denied where there are compelling reasons
“such as undue delay, bad faith, or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the nonmoving party, or futility of the amendment”)(quoting Becker v. Univ. of Nebraska,
191 F.3d 904, 908 (8th Cir. 1999)).
Plaintiffs’ Motions to Compel and Motion for Default Judgment
Calhoun has filed two motions to compel discovery responses and one
motion for default judgment alleging that defendants’ failure to respond to
discovery and to his amended complaint mandates default judgment against them.
After a review of the motions to compel and defendants’ responses, I conclude that
Calhoun has received all discovery he was entitled to, and his motions to compel
are denied. Similarly, there is no evidence that defendants failed to properly

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respond to discovery or to any amended complaint, therefore Calhoun’s motion for
default judgment is also denied.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary
judgment [80] is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to compel [113],
second motion to compel [116], and motion for default judgment [129] are
DENIED.
A separate judgment is entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 19th day of September, 2016.

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