Bailey v. Brothers et al

Filing 30

MEMORANDUM AND ORDER re: 27 HEREBY ORDERED that Defendant McKinney's Motion for Summary Judgment, [Doc. No. 27 ] is granted. Signed by Honorable Henry E. Autrey on 04/20/12. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID EUGENE BAILEY,
Plaintiff,
vs.
UNKNOWN BROTHERS, et al.,
Defendants.

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Case No. 4:10CV2091 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant McKinney’s Motion for
Summary Judgment, [Doc. No. 27]. Plaintiff has not responded to the Motion.
For the reasons set forth below, the Motion is granted.
Introduction
Plaintiffs brought this action seeking damages against Defendant McKinney
alleging that Defendant refused to refill prescriptions for Mobic, Lidocaine
patches and muscle rub, which Plaintiff alleges resulted in his experiencing pain
for about a year.
Facts and Background
The facts of this matter are set out in Defendant’s Statement of Undisputed
Facts.

Plaintiff is an inmate confined in the Department of Corrections of
Missouri.
Defendant is a medical doctor licensed to practice medicine in the State of
Missouri. Defendant provides medical services on behalf of Correctional Medical
Services, a private entity providing medical care to inmates within the Missouri
Department of Corrections. While providing care to inmates, Defendant works as
an independent contractor. He does not receive any financial incentives from
CMS or any other entity to keep the cost of medical care for inmates as low as
possible. Plaintiff acknowledged that he had no evidence to suggest otherwise.
Defendant saw Plaintiff on various occasions and each time he saw Plaintiff,
he examined him, evaluated him, assessed his condition, and advised Plaintiff to
follow up if his condition changed in any way.
Based on his medical judgment, Defendant never felt that it was medically
necessary for Plaintiff to receive Mobic, Lidocaine patches or muscle rub. All of
Defendant’s notations in Plaintiff’s medical records were truthful and
contemporaneous representations of what happened at the evaluations of Plaintiff
and showed Defendant’s medical opinions and judgments at the time of each
evaluation.
On October 14, 2009, Defendant educated Plaintiff against the daily use of
nonsteroidal anti-inflammatory drugs, such as Mobic, since such medication
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should not change the possible progression of Plaintiff’s disease or the character
of the problem, and because nonsteroidal anti-inflammatory drugs carry the risk of
causing gastrointestinal bleeding. Defendant recommended Plaintiff take Tylenol
as needed for neck stiffness or pain, and Plaintiff acknowledged that he
understood Defendant’s instructions.
Defendant examined Plaintiff on December 16, 2009, when Plaintiff
complained of a “palsy.” Defendant ascertained that what Plaintiff meant by
“palsy” was neck pain plus repetitive movements of his head. Defendant’s
examination of Plaintiff revealed that his neurological symptoms remained within
normal limits, and the remainder of his examination remained unchanged.
Defendant informed Plaintiff of why Tylenol remained indicated for his care and
that there was no medical indication for Neurontin or Lidocaine, as Plaintiff
suggested. Defendant recommended the additional treatment modalities massage
to the trapezius and the application of moist heat to the area as part of his
treatment plan.
On March 18, 2010, Plaintiff was scheduled for an examination by
Defendant and refused this appointment.
On June 9, 2010, Defendant placed Plaintiff in the chronic care clinic for
regular evaluation of his neck complaints.

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On August 5, 2010, Plaintiff refused his scheduled examination with the
chronic pain clinic.
On October 11, 2010, Defendant examined Plaintiff and noted an absence of
radiculopathy or neurological symptoms. Plaintiff continued to have full active
range of motion of his neck without pain. Based on these findings, Defendant
refilled his order for Tylenol as needed for neck stiffness and pain.
On November 16, 2010, Plaintiff was transferred from Potosi Correctional
Center to Fulton Correctional Center and came under the care of Dr. Farnham. In
Plaintiff’s medical record of January 4, 2011, Dr. Farnham documented that
Plaintiff had full range of motion of his neck without apparent discomfort, and
Plaintiff was discharged from the chronic care clinic for treatment of his neck.
Defendant did not refuse to provide appropriate treatment for Plaintiff’s
medical needs. Plaintiff did not have objective signs of a serious medical need.
Defendant never refused to treat or provide Plaintiff with treatment when it was
medically appropriate to do so.
Plaintiff has only alleged that Defendant “absolutely refuses” to refill
prescriptions for Mobic, Lidocaine patches and muscle rub. Plaintiff does not
allege Defendant was deliberately indifferent to Plaintiff’s serious medical needs.
Discussion
Summary Judgment Standard
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The standard for summary judgment is well settled. In determining 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); Littrell v. City of
Kansas City, Mo., 459 F.3d 918, 921 (8th Cir. 2006). The moving party has the
burden to establish both the absence of a genuine issue 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 issue of material fact exists. Fed. R.
Civ. P. 56(e); Anderson 477 U.S. at 256; Littrell , 459 F.3d at 921. “The party
opposing summary judgment may not rest on the allegations in its pleadings; it
must ‘set forth specific facts showing that there is a genuine issue for trial.’”
United of Omaha Life Ins. Co. v. Honea, 458 F.3d 788, 791 (8th Cir.2006)
(quoting Fed. R. Civ. P. 56(e)); “‘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).
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Hitt v. Harsco Corp., 356 F.3d 920, 923 (8th Cir. 2004). An issue 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 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. Mach. Corp., 62 F.3d 237, 241 (8th Cir.
1995)(quotations omitted). Putman v. Unity Health Sys., 348 F.3d 732, 733-34
(8th Cir. 2003). A party may not merely point to unsupported self-serving
allegations, but must substantiate allegations with sufficient probative evidence
that would permit a finding in the plaintiff's favor. Wilson v. Int'l Bus. Mach.
Corp., 62 F.3d 237, 241 (8th Cir.1995). “The mere existence of a scintilla of
evidence in support of the [party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477
U.S. 242 at 252; Davidson & Assocs. v. Jung 422 F.3d 630, 638 (8th Cir. 2005)
Summary judgment is proper if a plaintiff fails to establish any element of the
prima facie case. Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 444 (8th Cir.
1998) (citing Weber v. American Express Co., 994 F.2d 513, 515-16)). “Mere
allegations, unsupported by specific facts or evidence beyond the nonmoving
party’s own conclusions, are insufficient to withstand a motion for summary
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judgment.” Thomas v. Corwin, 483 F.3d 516, 526-27(8th Cir. 2007). Summary
judgment will be granted when, viewing the evidence in the light most favorable
to the nonmoving party and giving the nonmoving party the benefit of all
reasonable inferences, there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Samuels v. Kan. City Mo.
Sch.Dist., 437 F.3d 797, 801 (8th Cir. 2006).
Plaintiff’s only complaint against Defendant is that he absolutely refused to
refill prescriptions for Mobic, Lidocaine patches and muscle rub. Plaintiff does
not allege Defendant was deliberately indifferent to Plaintiff’s serious medical
needs. However, even assuming Plaintiff’s allegations attempt to state a deliberate
indifference claim, Defendant is entitled to judgment.
“Deliberate indifference has both an objective and a subjective component.”
Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir.2009). “The objective component
requires a plaintiff to demonstrate an objectively serious medical need.” Id. “The
subjective component requires a plaintiff to show that the defendant actually knew
of, but deliberately disregarded, such need.” Id.
“Whether a prison’s medical staff deliberately disregarded the needs of an
inmate is a factually-intensive inquiry.” Meuir v. Greene County Jail Employees,
487 F.3d 1115, 1118 (8th Cir.2007). “The plaintiff-inmate must clear a substantial

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evidentiary threshold to show that the prison’s medical staff deliberately
disregarded the inmate’s needs by administering an inadequate treatment.” Id.
Negligent mis-diagnosis does not create a cognizable claim under § 1983.
McRaven v. Sanders, 577 F.3d 974, 982 -983 (8th Cir. 2009).
[A] complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does
not become a constitutional violation merely because the victim is a
prisoner. In order to state a cognizable claim, a prisoner must allege
acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). See also Popoalii v. Corr. Med.
Servs., 512 F.3d 488, 499 (8th Cir.2008) (“Medical malpractice alone ... is not
actionable under the Eighth Amendment.”). “ ‘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.’ ” Bender v. Regier, 385 F.3d 1133, 1137 (8th Cir.2004), quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1970).
The record before the Court clearly establishes the failure of Plaintiff to
establish a serious medical need. Moreover, the record further establishes that
Defendant treated Plaintiff in accordance with Plaintiff’s complaints and
Defendant’s medical judgment and opinion that Plaintiff did not need any of the
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medications Plaintiff thought he needed. Nothing in the record establishes that
Defendant’s medical judgment resulted in inadequate treatment. Clearly,
Defendant’s treatment of Plaintiff does not rise to the level of deliberate
indifference to Plaintiff’s serious medical needs. Nowhere does Plaintiff establish
that Defendant actually knew of, but deliberately disregarded, any serious medical
need of Plaintiff.
Conclusion
Based upon the foregoing analysis, Defendant’s Motion for Summary
Judgment is meritorious. Defendant is therefore entitled to judgment as a matter
of law pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Accordingly,
IT IS HEREBY ORDERED that Defendant McKinney’s Motion for
Summary Judgment, [Doc. No. 27] is granted.
A separate judgment is entered this same date.
Dated this 20th day of April, 2012.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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