Murchison v. Corizon Medical Services NECC Medical Director et al

Filing 80

MEMORANDUM REGARDING SUMMARY JUDGMENT: For the foregoing reasons, defendants' motion for summary judgment (Doc. 66 ) is SUSTAINED in full. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 12/19/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

JOSEPH MURCHISON,
Plaintiff,
v.
KARMA NIEMEYER, et al.
Defendants.

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No. 2:14 CV 102 DDN

MEMORANDUM REGARDING SUMMARY JUDGMENT
This action is before the court on the second motion of defendants Karma
Niemeyer, Melanie Powell, Michael Weis, and Theresa Salmons for summary judgment.
(Doc. 66).

The parties have consented to the exercise of plenary authority by the

undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 19).
The court heard oral arguments on this matter on September 22, 2017. For the following
reasons, the motion is granted.

I. BACKGROUND
In his first amended complaint, plaintiff Joseph Murchison alleges he was
incarcerated by the Missouri Department of Corrections at the Northeast Correctional
Center ("NECC") at all times relevant to this lawsuit. (Doc. 50 at 1.) On November 14,
2013, he alleges he was attacked by another prisoner, which left him with an injured fifth
digit on his left hand ("little finger"). He alleges this "finger was bent or unable to flex,
and [was] left at a roughly 20 [degree] angle to the rest of his fingers. The bend in
Plaintiff's finger is at the very end or lst joint in the digit," with resulting swelling and
pain. (Id. at ¶ ¶ 11, 12). Plaintiff alleges that the defendant NECC medical personnel

were deliberately indifferent to his serious medical needs, in violation of the Eighth
Amendment to the United States Constitution.
On October 31, 2014, plaintiff commenced this action under 42 U.S.C. § 1983
against defendants Corizon Medical Services NECC Medical Director, Jane Doe Nurse,
Jane Doe Nurse #1, Jane Doe Nurse #2, Jane Doe Nurse #3, James Hurley, George
Lombardi, Missouri Department of Corrections Regional Health Services Director, and
Corizon Medical Services Regional Medical Director, all in their individual and official
capacities.

(Doc. 1.)

On January 5, 2015, District Court Judge Jean C. Hamilton

dismissed the claims against defendants Corizon Medical Service NECC Medical
Director, James Hurley, George Lombardi, Missouri Department of Corrections Regional
Health Services Director, and Corizon Medical Services Regional Medical Director, in
their individual and official capacities. (Docs. 6, 7.) On the same day, Judge Hamilton
also dismissed the claims against Jane Doe Nurses #1-3 and John Doe Nurse in their
official capacities. (Id.) On March 13, 2015, plaintiff provided the names of the Jane and
John Doe Nurses as Karma Niemeyer, Melanie Powell, Michael Weis, and Theresa
Salmons. (Doc. 13.) This court corrected the identities of the remaining defendants
accordingly. (Id.)
Plaintiff filed his first amended complaint on September 7, 2016. (Doc. 50).
Remaining for disposition are the following claims:
(1)

Count I, alleging a failure to use adequate procedures with deliberate
indifference against defendants Niemeyer, Powell, Weis, and Salmons
(Doc. 50 at ¶¶ 36-49) and

(2)

Count II, alleging intentional infliction of emotional distress against
defendants Niemeyer, Powell, Weis, and Salmons. (Id. at ¶¶ 50-63).

These Counts are against the respective defendants in their individual capacities only.
(Doc. 7). Plaintiff seeks nominal damages, compensatory damages, punitive damages,
attorney fees, and costs. (Doc. 50 at 13-14).
Defendants filed their first motion for summary judgment in January 2016, but it
was denied without prejudice upon the agreement of the parties because of a variety of
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delays in the discovery process. Defendants renewed their motion for summary judgment
on June 20, 2017. (Doc. 66).
II. SUMMARY JUDGMENT PRINCIPLES
Summary judgment is proper “if there is no dispute of material fact and reasonable
fact finders could not find in favor of the nonmoving party.” Shrable v. Eaton Corp., 695
F.3d 768, 770 (8th Cir. 2012); see also Fed. R. Civ. P. 56(a). The party moving for
summary judgment must demonstrate the absence of a genuine issue of material fact and
that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986). A fact is “material” if it could affect the ultimate disposition of the case, and
a factual dispute is “genuine” if there is substantial evidence to support a reasonable jury
verdict in favor of the nonmoving party. Rademacher v. HBE Corp., 645 F.3d 1005,
1010 (8th Cir. 2011). The court must view the evidence in the light most favorable to the
nonmoving party and accord it the benefit of all reasonable inferences. Scott v. Harris,
550 U.S. 372, 379-80 (2007). The burden shifts to the non-moving party to demonstrate
that disputes of fact do exist only after the movant has made its showing. Id.
Motions for summary judgment are typically ruled on showings of evidence by
affidavit. However, affidavits “shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein.” Fed. R. Civ. P. 56(e). “When an
affidavit contains an out-of-court statement offered to prove the truth of the statement
that is inadmissible hearsay, the statement may not be used to support or defeat a motion
for summary judgment.” Brooks v. Tri-Sys., Inc., 425 F.3d 1109, 1111 (8th Cir. 2005).

III. UNDISPUTED FACTS
The record establishes that, unless otherwise stated, the following facts are without
genuine dispute. Plaintiff was a prisoner incarcerated by the Missouri Department of
Corrections ("MDOC") at the Northeast Correctional Center from November 14, 2013, to
May 12, 2014. (Doc. 68 at ¶ 1). During this time, Corizon, LLC, was under contract
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with the State of Missouri to provide medical care to MDOC prisoners, and employed at
NECC defendants Karma Niemeyer and Melanie Powell as Licensed Practical Nurses,
defendant Michael Weis as a part-time, as-needed Nurse, and Theresa Salmons as a
Licensed Practical Nurse on temporary assignment to NECC. (Doc. 68 at ¶¶ 2-6).
On November 14, 2013, plaintiff was involved in a physical altercation with
another prisoner. (Docs. 68, 72, and 78 at ¶ 7). NECC officers intervened and sprayed
pepper gas on plaintiff in order to stop the altercation. (Doc. 68 at ¶ 8). After this use of
force, the officers ordered plaintiff to be placed in administrative segregation (“ad-seg”).
(Docs. 68, 72, and 78 at ¶ 9). Before being placed in ad-seg, and pursuant to NECC
Standard Operating Procedure 11-39, defendant Niemeyer examined plaintiff for the
presence of any acute illnesses or injuries that would preclude ad-seg confinement.
(Docs. 68 and 72 at ¶¶ 10-15).

During defendant Niemeyer’s evaluation, plaintiff

complained of an injury to and bleeding from the inside of his lower lip, a sore left
elbow, and a sore left little finger. (Docs. 68 and 72 at ¶ 16). Plaintiff reported that he
had a history of exercise-induced asthma and defendant Niemeyer noted he was short of
breath and having difficulty breathing.

(Docs. 68 and 72 at ¶ 17).

Plaintiff was

handcuffed for the entirety of defendant Niemeyer’s assessment. (Docs. 72 and 78 at ¶
8).
Defendant Niemeyer recorded the following findings in plaintiff’s chart: he had
two pea-sized, H shaped open areas on the inside of his lip near the skin fold at the base
of his bottom row of teeth; he had mild erythema with no visible or palpable edema to his
left elbow; he had no erythema, edema, open areas or obvious deformity to his left little
finger; and although he exhibited pain and stiffness with movement of that finger, he
retained a passive full range of motion in it. (Docs. 68, 72, and 78 at ¶ 18). To test
plaintiff’s injured finger, defendant Niemeyer took his hand and made it into a fist to
ensure that she did not hear any crunching, rubbing, popping, or grinding in the finger.
(Docs. 68 and 78 at ¶ 19). She did not note in the medical chart any swelling, redness, or
complaint that plaintiff could not move it on his own. (Docs. 68 and 78 at ¶¶ 20-21).
Plaintiff alleges that regardless of defendant Niemeyer’s records and testimony, she failed
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to conduct a full evaluation of him or determine whether he had active range of motion.
(Docs. 72 and 78 at ¶¶ 7, 18, 20-21). However, he did not provide any further details or
evidence in the record to support this allegation. (Id.)1 Plaintiff also argues that Nurse
Niemeyer told him there was nothing she could do, and that he just had to “deal with it”
until it healed or stopped hurting on its own. (Doc. 72 at ¶ 4). Plaintiff argues that when
he asked defendant Niemeyer for pain medication, she told him to wait for the sick call
and fill out a Medical Services Request. (Doc. 72 at ¶ 5).
Although plaintiff alleges he believed his injury was an emergency situation,
defendant Niemeyer determined that plaintiff’s complaints, including his injured left little
finger, was not an emergency. (Doc. 68 at ¶ 24; Docs. 72 and 78 at ¶ 25). Accordingly,
she did not report that he had any urgent medical needs or refer him to a practitioner for
further evaluation. (Docs. 68 and 78 at ¶¶ 25, 30, 31). Instead, she instructed plaintiff on
the Medical Services Request (“MSR”) procedure in administrative segregation. (Docs.
68 and 72 at ¶ 27). This procedure requires that a prisoner stand at the window of the cell
door when the nurse(s) assigned to the administrative segregation unit make daily
morning rounds. (Docs. 68 and 72 at ¶ 39-40). The nurses pass out MSRs upon request.
(Docs. 68 and 72 at ¶ 39). Defendant argues that prisoners know that the nurse is
approaching his cell door when he hears the nurse interacting with prisoners and the
banging on the doors of the cells next to him. (Docs. 68 and 78 at ¶ 41). Plaintiff
alleges, however, that there is no announcement that the nurse is making rounds. (Doc.
72 at ¶ 41). Defendant alleges that, if a prisoner desiring an MSR is not standing at his
cell door when the nurse approaches his cell, he will not receive an MSR form to fill out;
if he requests an MSR form after the nurse has passed his cell door, he will not receive
one that day. (Docs. 68 and 78 at ¶¶ 42-43). Plaintiff denies these allegations, because
they are directly based on official NECC policy. (Doc. 72 at ¶¶ 42-43). However, the
parties agree that the nurse will not go back to a prisoner's cell after passing it, to ensure

1

Additionally, plaintiff never controverts defendant Niemeyer’s record regarding his
passive range of motion.
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that the process remains efficient and does not hinder the performance of other nursing
duties. (Docs. 68 and 72 at ¶ 45).
During the time Nurse Niemeyer was assessing him for possible transfer to
administrative segregation, plaintiff’s hands were cuffed for approximately 30 to 60
minutes. (Docs. 68, 72, and 78 at ¶ 35). Plaintiff could not tell if his left little finger was
swollen when his hands were cuffed. (Docs. 68, 72, and 78 at ¶ 36). Swelling might not
appear in an injured finger until one or more hours after an injury. (Docs. 68, 72, and 78
at ¶ 38). Plaintiff first noticed the swelling to his left little finger when he was placed in
his cell and the handcuffs were removed. (Docs. 68 and 72 at ¶ 37).
The next morning, on November 15, 2013, plaintiff was awake and sitting on the
bunk in his cell, (Docs. 68 and 72 at ¶¶ 46-48), when he became aware that defendant
Powell was making medical rounds in the administrative segregation unit; he knew this,
because he heard the chuckhole of the cell next to him opening and closing. (Docs. 68
and 72 at ¶ 47). Defendant Powell alleges that when plaintiff reached the window of his
cell, she had already passed by it. (Docs. 68 and 78 at ¶ 49). Plaintiff claims that he
reached the window of his cell “just as” defendant Powell was walking by. (Doc. 72 at ¶
49, ¶ 10). Plaintiff alleges that he called out to her and requested an MSR, but that she
responded, “You should have been at the window when I walked past.” (Doc. 72 at ¶ 50,
¶ 11). Defendant Powell has no independent recollection of plaintiff calling out to her for
an MSR or to look at his left little finger after she passed his cell. (Docs. 68 and 78 at ¶
50). The parties agree that any prisoner who desires an MSR form, medicinal refills,
information about medication, and or other medical services while in administrative
segregation must be standing at the window of the cell door at the time the nurse
approaches the cell door. (Docs. 68 and 72 at ¶ 40). Though the parties disagree on
whether this is an “official” NECC policy, they agree that the nurse will not go back to
the prisoner’s cell after passing it, because this would result in delays and hinder the
performance of other nursing duties. (Docs. 68 and 72 at ¶¶ 40-42).
On November 17, 2013, plaintiff obtained and completed an MSR, complaining of
“pain/allergies.” (Docs. 68 and 72 at ¶ 52). In response to this MSR, plaintiff saw
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defendant Weis at nursing sick-call on November 23, 2013. (Docs. 68 and 72 at ¶ 53).
Plaintiff complained that he could neither fully extend nor curl his injured left little finger
due to pain and swelling. (Doc. 72 at ¶ 12). Plaintiff alleges that defendant Weis
examined his finger while plaintiff was handcuffed and straightened plaintiff’s finger,
and that plaintiff complained that the straightening caused more pain. (Doc. 72 at ¶ 13).
Plaintiff alleges that defendant Weis then asked him to flex his finger and make a fist.
(Doc. 72 at ¶ 13). Defendant Weis’ examination of plaintiff’s left little finger revealed
some swelling, but no heat, redness, or discoloration.

(Docs. 68 and 72 at ¶ 54).

Defendant Weis also observed that the affected joint retained a full range of motion.
(Id.). Weis alleges he provided plaintiff with ibuprofen for pain and instructed him to
perform range-of-motion exercises, apply warm compresses for the joint pain and
swelling, and return to sick-call if the symptoms or severity increased. (Docs. 68 and 78
at ¶ 55). Plaintiff alleges that he was only provided with ibuprofen and did not receive
any further treatment; he elsewhere claims Weis recommended he use a warm compress
and limit joint movement. (Doc. 72 at ¶ 55, ¶ 14; Doc. 72, Ex. 1 at ¶ 21). Plaintiff
alleges both that defendant Weis informed him that he would request a referral and that
he did not think a physician’s examination was necessary. (Doc. 72 at ¶ 58, ¶ 13).
Defendant Weis has no recollection of telling plaintiff he would refer him to a physician,
and he did not note a referral in the medical chart, because he determined that (1)
plaintiff’s finger may have stabilized and might be improving, and (2) plaintiff did not
meet the criteria to be seen by a doctor. (Docs. 68, 72, and 78 at ¶¶ 57-59).
On November 29, 2013, plaintiff completed and submitted another MSR form
complaining of pain in his left little finger, difficulty bending it, and pain that was
nonresponsive to the ibuprofen. (Docs. 68 and 72 at ¶ 60). He saw defendant Nurse
Theresa Salmons at nursing sick-call that day.

(Id.)

Defendant Salmons reviewed

plaintiff’s medical history and medications and examined his left little finger. (Docs. 68
and 72 at ¶ 61). Plaintiff alleges that she stated “it’s just a phalange.” (Doc. 72 at ¶ 16).
Her records note plaintiff’s finger now had swelling, tenderness, and discoloration, and
he could not bend and straighten it. (Docs. 68 and 72 at ¶ 61). Defendant Salmons
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provided plaintiff with Tylenol for pain, “buddy-taped” the left little finger to the fourth
finger, and instructed plaintiff to perform range-of-motion exercises and apply warm
compresses. (Docs. 68, 72, and 78 at ¶ 62). Plaintiff alleges that he requested a finger
splint from defendant Salmons but did not receive one. (Docs. 72 and 78 at ¶ 17).
Defendant argues that splints are not carried at NECC sick-call, because they have metal
in them and can be used as weapons. (Id.)
Defendant Salmons alleges she also referred plaintiff to a medical practitioner for
further evaluation, because plaintiff’s finger had decreased range of motion, it was
swollen, and his pain had not responded to the previously-provided ibuprofen. (Docs. 68
and 78 at ¶¶ 62-63). Her medical notes included this referral. (Docs. 68 and 78 at ¶¶ 6264). She alleges she delivered this referral to the office of NECC’s Health Services
Administrator (“HSA”) the same day. (Doc. 68 at ¶ 64). Because the HSA was not in
her office, and the office door was locked, defendant Salmons states she slid it under the
HSA’s office door, so that plaintiff could be scheduled for an appointment with a
practitioner as soon as possible. (Doc. 68 at ¶ 65). Plaintiff denies that defendant
Salmons ever referred him to a practitioner, because he was not scheduled for a doctor’s
appointment until a third party intervened. (Doc. 72 at ¶¶ 62-65, ¶¶18-19). Plaintiff
alleges that in mid-December, he went to see NECC’s Director of Nursing, and it was
this director who scheduled plaintiff for an appointment to see a physician. (Doc. 72 at ¶
67, ¶ 19).
On January 2, 2014, plaintiff saw Tomas Cabrera, M.D., who examined plaintiff’s
left little finger and ordered x-rays of his left hand. (Docs. 68, 72, and 78 at ¶¶ 67-68).
The x-rays were sent to a radiologist for review and interpretation. (Doc. 68 at ¶ 75).
The radiologist did not observe any fracture or dislocation, but noted on January 9, 2014,
that there was an extensor tendon injury to the left little finger. (Docs. 68 and 72 at ¶ 76).
On January 27, 2014, a second doctor, Thomas Pryor, M.D., examined plaintiff’s
left little finger and reviewed the x-rays, opining that plaintiff had a torn extensor

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ligament/tendon with secondary “mallet finger,”2 but no fracture. (Docs. 68 and 72 at ¶
78). Dr. Pryor opined that, even if plaintiff had been referred to a physician before
November 23, 2013, there is no guarantee that his injured little finger would have
returned to its normal position, since it involved a torn ligament. (Docs. 68, 72, and 78 at
¶ 90).3 He also opined that the treatment provided to plaintiff’s finger by defendants
Niemeyer, Weis, and Salmons was medically appropriate. (Docs. 68, 72, and 78 at ¶ 91).
Dr. Pryor referred plaintiff to an outside orthopedic surgeon, Dr. Joyce Wilson.
Plaintiff saw the orthopedic surgeon on February 24, 2014, and she diagnosed plaintiff
with a ruptured tendon in the left little finger. (Docs. 68 and 72 at ¶¶ 82-83). She
determined that surgery was not necessary and prescribed and fitted plaintiff’s finger with
an extension splint. (Docs. 68 and 72 at ¶ 84). Plaintiff saw the orthopedic surgeon for
two follow-up visits, on April 21 and May 12, 2014. (Docs. 68 and 72 at ¶ 85). She
observed that his left little finger had only a ten-degree lag, which she considered to be
mild and a very good result. (Docs. 68 and 72 at ¶ 86). Although she noted plaintiff’s
finger still had mild swelling, she was not concerned as these injuries commonly produce
swelling for six months or more. (Docs. 68 and 72 at ¶¶ 87-88). She opined that there
were several reports of good results for mallet fingers treated as late as three to four
months after injury. (Docs. 68, 72, and 78 at ¶ 89). She also stated that “with any injury
I guess you like to treat it as soon as possible.” (Doc. 72 at ¶ 89).
2

“Mallet finger” occurs when the tendon of a finger’s end-joint, also known as the distal
interphalangeal joint (“DIP”), has either ruptured or is fractured and leads to an “extensor
lag.” This condition occurs when an individual is not able to extend the finger
completely without it drooping slightly at the DIP. (Doc. 68 at ¶¶ 79-80).
3

Plaintiff alleges that Dr. Pryor told him that he should have been seen by a physician
within 14 days or so of his injury and that, because he was not seen right away the
treatment may be ineffective. (Doc. 72 at ¶ 21). Plaintiff alleges that Dr. Pryor asked
why he had not been referred to a physician earlier or received a splint. (Id.) Plaintiff
further claims Dr. Pryor stated that he would likely have permanent damage, continued
pain, and limited mobility. (Id.) However, out-of-court statements offered to prove the
truth of the matter asserted are inadmissible hearsay, and plaintiff’s allegations about
what Dr. Pryor stated are not admissible for this purpose. See Brooks v. Tri-Sys., Inc.,
425 F.3d 1109, 1111 (8th Cir. 2005).
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Defendant alleges that at all relevant times, plaintiff had the right to self-declare a
medical emergency, if he was in fear of loss of life or loss of limb. (Docs. 68, 72, and 78
at ¶¶ 69-70). As of November 14, 2013, plaintiff believed that his left little finger needed
urgent or emergency medical care because of the pain. (Docs. 68 and 72 at ¶ 71). He
admits he had the right to self-declare a medical emergency generally, except when he
was in defendant Niemeyer’s presence on November 14, 2013. He denies that he could
self-declare an emergency at that time, because he had been seen by medical personnel
that day, defendant Niemeyer told him his only option going forward was to request an
MSR form, and he required further loss of life or limb condition to self-declare at that
point. (Doc. 68-8 at 39-42). However, plaintiff did not self-declare a medical emergency
on November 14, 2013, or on November 15, 2013, or at any other time between
November 14, 2013, and the date he saw a doctor, January 2, 2014. (Docs. 68, 72, and 78
at ¶¶ 72-73). Plaintiff alleges that at all relevant times, his finger injury was obvious to
laymen. (Doc. 72 at ¶ 23).

IV. Allegations of Deliberate Indifference
Plaintiff claims that defendants were deliberately indifferent to his serious medical
need, relating to the injury to his left little finger, in violation of the Eighth Amendment,
under 42 U.S.C. § 1983. To prevail on such a claim, plaintiff must prove that (1) he
suffered from an objectively serious medical need, (2) the defendant knew of the
condition, and (3) the defendant deliberately disregarded the complaint. Coleman v.
Rahija, 114 F.3d 778, 784 (8th Cir. 1997).

Deliberate indifference is “more than

negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional violation.” Estate of Rosenberg v.
Crandell, 56 F.3d 35, 37 (8th Cir. 1995).

A. Allegations of Deliberate Indifference against Defendant Niemeyer

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Defendant Karma Niemeyer argues that she is entitled to summary judgment on
Count I, because the care and treatment she provided to plaintiff during the administrative
segregation assessment did not constitute deliberate indifference. (Doc. 67).
Plaintiff argues that there is a genuine dispute as to whether he suffered an injury
obvious to a layperson, and that defendant Niemeyer ignored an “obvious deformity” in
his finger, which he alleges was red and swollen at the time of her examination. (Doc.
73). However, even crediting plaintiff’s allegations, defendant Niemeyer is entitled to
judgment as a matter of law, because there is no genuine dispute of material fact with
regard to the third element of plaintiff’s deliberate indifference claim: whether defendant
deliberately disregarded an objectively serious medical need.

Defendant Niemeyer

evaluated plaintiff’s physical and mental fitness to be placed in administrative
segregation. Even accepting plaintiff’s allegation that his finger was bent, that he could
not straighten it, and that it was red and swollen, defendant Niemeyer’s evaluation notes
state that the finger retained a full passive range of motion—in other words, even if
plaintiff could not straighten his finger himself, she could bend and unbend the finger for
him. She determined that plaintiff was not suffering from any acute injury that would
preclude his placement in administrative segregation and that could not be addressed by
the standard procedure for non-life-threatening medical attention: an MSR. Plaintiff
timely received the assessment of his fitness to enter administrative segregation. Even if
plaintiff’s allegations are true, defendant Niemeyer’s actions or inactions were not
deliberate indifference.

B. Allegations of Deliberate Indifference against Defendant Powell
Defendant Melanie Powell argues that she is entitled to summary judgment,
because she denied plaintiff’s MSR request according to policy and not with deliberate
indifference. The parties agree that, if defendant Powell had gone back to plaintiff’s cell
after passing it, she would have established a precedent that would delay and hinder the
performance of other nursing duties. Plaintiff argues that he has submitted evidence that
he was at the door when defendant Powell walked past. (Doc. 73). However, plaintiff’s
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witness stated only that plaintiff rushed to the door and called out to defendant Powell
several times; the witness did not state plaintiff was already at the door when defendant
Powell walked by. (Doc. 72, Ex. 2). Defendant’s own testimony is that he “went to the
door and just as [he] got there she was walking by and [he] called out to her.” (Doc. 68,
Ex. 8 at 11). Moreover, plaintiff’s first amended complaint states that “[b]y the time
Plaintiff arrived at his cell door, Defendant Powell had passed Plaintiff’s cell door and
was at the door to his immediate left.” (Doc. 50, ¶ 19). There is no assertion that
plaintiff was waiting at the door before defendant Powell walked by, and, therefore, there
is no genuine, material dispute as to this fact.

The parties agree that prisoners in

administrative segregation must be at the door of the cell when the nurse making rounds
arrives and that the nurse will not return to a door that she has already passed. While this
may not comport with the prisoners' desire, it does not rise to the level of deliberate
indifference. Nor has plaintiff challenged the practice itself. Moreover, plaintiff had the
choice to self-declare a medical emergency on this date, in which case he would be
immediately evaluated by medical staff, but he never did do so. Even viewing the facts
in the light most favorable to plaintiff, defendant Powell’s actions did not amount to
deliberate indifference.

C. Allegations of Deliberate Indifference against Defendant Weis
Defendant Michael Weis argues that he is entitled to summary judgment on Count
I, because there is no evidence he knew or should have known about plaintiff’s finger
injury before he examined plaintiff on November 23, 2013, and he provided adequate
medical treatment. He asserts that when he examined the finger, it was swollen, but there
was no heat, redness, or discoloration, and plaintiff had full range of motion; so, it
appeared that any injury may have stabilized and might be improving. Plaintiff argues
that there is a dispute of fact as to whether plaintiff’s finger was red at the time of
defendant Weis’ examination and the level of treatment provided. (Doc. 73 at 10).
Defendant Weis claims he provided ibuprofen and instructed plaintiff to perform range of
motion exercises and apply warm compresses.
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Plaintiff claims he was only given

ibuprofen. Plaintiff also claims that defendant Weis told him he would refer him to a
doctor, but defendant Weis has no recollection of this, and there is no referral noted in the
medical chart. (Doc. 73 at 10).
Crediting plaintiff’s allegation that defendant Weis only provided ibuprofen, there
is still no evidence this treatment was improper or that it amounted to deliberate
indifference. Defendant Weis’ treatment of plaintiff was within his medical judgment as
a nurse. Additionally, even if defendant Weis stated he would refer plaintiff to a doctor,
his failure to do so may amount to at most negligence, not deliberate indifference.

D. Allegations of Deliberate Indifference against Defendant Salmons
Defendant Theresa Salmons moves for summary judgment on Count I because
there is no evidence she acted with deliberate indifference in her treatment of plaintiff or
that she knew or should have known of plaintiff’s finger injury prior to her examination
of him on November 29, 2013. On that date, defendant Salmons examined plaintiff’s
finger, gave him Tylenol, and buddy-taped his finger. Even if plaintiff requested a finger
splint and defendant instead “buddy-taped” his finger, this is simply a disagreement with
the course of treatment provided. Defendant Salmons also referred plaintiff to be seen by
a medical practitioner. She noted so on the back of plaintiff’s MSR and slid it under the
door to the HAS’s office. There is no evidence that the conduct of defendant Salmons
rose to the level of deliberate indifference.

E. Evidence of the Effect of Delay on Plaintiff’s Recovery As to All Defendants
The Constitution does not require that every medical complaint be handled as
quickly as an inmate wishes. Jenkins v. County of Hennepin, 557 F.3d 628, 633 (8th Cir.
2009).

“An inmate who complains that delay in medical treatment rose to a

constitutional violation must place verifying medical evidence in the record to establish
the detrimental effect of delay in medical treatment to succeed.” Crowley v. Hedgepeth,
109 F.3d 500, 502 (8th Cir. 1997). Accordingly, to withstand a motion for summary
judgment on this claim, an inmate must submit sufficient evidence that the defendant
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ignored an acute or escalating medical situation, or that delays adversely affected the
inmate’s prognosis. Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995).
Plaintiff has not submitted any evidence that any improper treatment or delay from
the defendants exacerbated the injury to his finger. Defendants, on the other hand, have
proffered evidence that the two- to three-month delay in treatment did not adversely
affect plaintiff’s recovery: (1) Dr. Pryor testified that a torn ligament might never return
to its normal position, even if plaintiff had seen a doctor sooner, and (2) Dr. Wilson
testified that plaintiff’s finger healed with only a ten-degree lag, which she considered to
be mild and a very good result. Dr. Wilson also testified that good results can occur for
injuries like plaintiff’s that are not treated until three or four months following the injury.
(Doc. 68, Ex. 1; Docs. 68, 72, and 78 at ¶¶ 86-89). Plaintiff has not submitted any
contradictory, verifying medical evidence establishing that delay had any detrimental
effect in his case. The only evidence he has submitted is Dr. Wilson’s statement that
“with any injury I guess you like to treat it as soon as possible.” This is insufficient to
meet plaintiff's burden, and defendants Niemeyer, Powell, Weis, and Salmons are entitled
to judgment as a matter of law. See Crowley, 109 F.3d at 502.

VI. Allegations of Intentional Infliction of Emotional Distress
Under Missouri law, to establish a claim of intentional infliction of emotional
distress, “(1) the defendant’s conduct must be outrageous or extreme; (2) the defendant
must act intentionally or recklessly; (3) there must be extreme emotional distress that
results in bodily harm; (4) caused by the defendant’s conduct; and (5) the conduct must
be intended solely to cause extreme emotional distress to the victim.” Crow v. Crawford
& Co., 259 S.W.3d 104, 119 (Mo. Ct. App. 2008).
Defendants argue that the allegations underlying plaintiff’s claim of intentional
infliction of emotional distress are not supported by any evidence from which a
reasonable jury could conclude that defendants acted intentionally or recklessly, much
less in a manner so outrageous, extreme, and atrocious as to go beyond all possible
bounds of decency. Plaintiff responds that genuine disputes of fact exist as to this claim,
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arguing that he suffered extreme pain in his hand and the defendants acted recklessly in
ignoring plaintiff’s complaints of pain.
Under the test adopted by Missouri courts for “extreme and outrageous”
conduct, the conduct must be more than “malicious and intentional.”

See Polk v.

INROADS/St. Louis, Inc., 951 S.W.2d 646, 648 (Mo. Ct. App. 1997). It must be “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Hyatt v. Trans World Airlines, Inc., 943 S.W.2d 292, 298 (Mo. Ct. App.
1997). As the Restatement observes, “[t]he rough edges of our society are still in need of
a good deal of filing down, and in the meantime plaintiffs must necessarily be expected
and required to be hardened . . . to occasional acts that are definitely inconsiderate and
unkind.” Restatement (Second) of Torts § 46 cmt. d (1965).
While the actions of some defendants may have been perceived by plaintiff to
have been less than desired, plaintiff has not presented sufficient evidence for a
reasonable jury to find that these actions were extreme or outrageous, as required to
establish a claim of intentional infliction of emotional distress under Missouri law. See
Polk, 951 S.W.2d at 648 (stating that for a defendant's conduct to be “extreme and
outrageous” for purposes of an intentional infliction of emotional distress claim, the
conduct “must be more than malicious and intentional”). No reasonable jury could find
that defendants possessed a mental state akin to criminal recklessness in response to
plaintiff’s medical needs.

Because the record before this court does not show any

conduct that can be characterized as so extreme or outrageous as to be tortious,
defendants are entitled to summary judgment on Count II of plaintiff’s amended
complaint.

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VII. CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment (Doc. 66) is
SUSTAINED in full. An appropriate Judgment Order is issued herewith.

/S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on December 19, 2017.

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