R. v. Missouri, State of, et al
MEMORANDUM AND ORDER IT IS HEREBY ORDERD that the Motion for Summary Judgment (Doc. 36) filed by Defendants Don Pokorny and Chad Davenport is GRANTED;IT IS ORDERED that a separate judgment will be entered incorporating thisMemorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 6/13/14. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
THE STATE OF MISSOURI, et al.,
Case No. 4:12CV956NCC
MEMORANDUM AND ORDER
Before the court is the Motion for Summary Judgment filed by Defendants Don Pokorny
and Chad Davenport. (Doc. 36). The matter is fully briefed and ready for disposition. The
parties have consented to the jurisdiction of the undersigned United Sates Magistrate Judge.
(Doc. 42). See 28 U.S.C. § 636(c).
STANDARD FOR SUMMARY JUDGMENT
The court may grant a motion for summary judgment Aif the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.@ Fed. R. Civ. P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
substantive law determines which facts are critical and which are irrelevant. Only disputes over
facts that might affect the outcome will properly preclude summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party. Id. See also
Fenny v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003) (holding that an issue is
genuine Aif the evidence is sufficient to allow a reasonable jury to return a verdict for the nonmoving party@).
The moving party always bears the burden of informing the court of the basis of its
Celotex, 477 U.S. at 323.
Once the moving party discharges this burden, the
nonmoving party must set forth specific facts demonstrating that there is a dispute as to a
genuine issue of material fact, not the Amere existence of some alleged factual dispute.@
Anderson, 477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials
of his pleading. Anderson, 477 U.S. at 256. AFactual disputes that are irrelevant or unnecessary@
will not preclude summary judgment. Id. at 248.
Where the non-moving party “fails to properly address another party’s assertion of fact as
required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion
. . . [or] grant summary judgment if the motion and supporting materials – including the facts
considered undisputed – show that the movant is entitled to it . . . .” Fed. R. Civ. P. 56(e).
In ruling on a motion for summary judgment, the court must view the facts in the light
most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.
Anderson, 477 U.S. at 255; Matsushita Elect. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986); Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir. 1987). The
court's function is not to weigh the evidence, but to determine whether there is a genuine issue
for trial. Anderson, 477 U.S. at 249. However, A[t]he mere existence of a scintilla of evidence in
support of the [nonmoving party=s] position will be insufficient.@
principles in mind, the court turns to an analysis of Defendants’ motion.
Id. at 252.
BACKGROUND and UNDISPUTED FACTS1
This action arises out of Plaintiff Keenan Robinson’s allegation, in his Amended
Complaint, that Defendants Don Pokorny and Chad Davenport, failed to provide him with proper
medical care, in violation of 42 U.S.C. § 1983, while he was incarcerated under Defendants’
supervision. Plaintiff sues Defendants in their individual capacities, and specifically claims they
failed to transport him to a competent medical provider, including a pediatric hand specialist;
failed to comply with instructions and warnings from Plaintiff’s treating physician; and failed
and refused to carry out Plaintiff’s physician’s treatment plans and orders, including that Plaintiff
have surgery for a mal-union of the right hand. Plaintiff further contends that Mary E. Rashid,
M.D., diagnosed him with a mal-union in his hand; she stated that Plaintiff should have this malunion surgically repaired; and, by the time Defendants sought medical treatment for Plaintiff,
other than initially splinting his injury, the fracture had already healed with a mal-union
deformity. (Doc. 10).
Defendants contend, in their pending Motion for Summary Judgment, that they are
entitled to summary judgment in their favor on Plaintiff’s claim of a failure to provide medical
treatment and, alternatively, that they are entitled to qualified immunity. (Doc. 36).
On February 15, 2011, the Circuit Court of St. Charles County, Family Court Division,
entered an Order and Judgment committing Plaintiff to the legal and physical custody of the
Division of Youth Services (DYS) for an indefinite term. The DYS is a State agency, charged
with the care and treatment of delinquent youth committed to its custody by one of Missouri’s
juvenile courts. (Doc. 37-3).
The facts are undisputed unless otherwise stated.
Before Plaintiff’s commitment to the DYS, on February 14, 2011, he was examined by
Dr. Thomas Applewhite for an injury to his right hand. Dr. Applewhite diagnosed Plaintiff with
a healing fracture of the distal second metacarpal. Dr. Applewhite noted that there was no
significant displacement or misalignment. On February 18, 2011, Plaintiff received a nursing
assessment. The assessment noted that Plaintiff had suffered an injury to his right hand in
December 2010; he had received no treatment at that time; Plaintiff was able to move all five
fingers in his right hand; and there was only mild swelling in Plaintiff’s right hand. On February
22, 2011, Plaintiff was seen for a physical examination by Dr. Maria Dunston. Dr. Dunston
noted that Plaintiff had a healing fracture in his right hand.
On Saturday, March 19, 2011, Plaintiff complained of right hand pain and was referred to
a doctor for examination. On March 28, 2011, Plaintiff injured his right hand when he hit it on a
desk during school. He was seen by Registered Nurse Hulse. Nurse Hulse noted that Plaintiff
had moderate swelling and prescribed a treatment of ice and bandaging. Further, Nurse Hulse
ordered that Plaintiff be seen by urgent care if the injury was not better by the following
morning, and noted that Plaintiff had a prior fracture to the same hand.
On March 29, 2011, Plaintiff was examined by Dr. Wendolyn DiSalvo in the emergency
room at Christian Hospital. Dr. DiSalvo ordered an x-ray of Plaintiff’s right hand; diagnosed
Plaintiff with a fracture of the neck of the metacarpal and a sprained finger, and prescribed
Motrin and Percocet for pain relief. Dr. DiSalvo noted that any recommendations for surgery
would need to come from an orthopedic doctor. Plaintiff’s hand x-ray was reviewed by Dr. Paul
Busse. Dr. Busse diagnosed Plaintiff with a healing fracture of the distal second metacarpal and
noted that there was no acute injury. Specifically, the x-ray report of this date states that Plaintiff
had a “healed or healing fracture of the distal end of the second metacarpal with considerable
periosteal new bone formation”; “acute fracture or dislocation [were] not seen elsewhere.” The
impression was “old healed or healing fracture distal second metacarpal” and “negative for acute
osseous injury.” (Doc. 39-7, DYS 594).2
On April 1, 2011, Plaintiff received a follow-up assessment of his hand by Nurse Hulse.
Nurse Hulse noted that there was mild swelling of the right hand and recommended an
orthopedic appointment and that Plaintiff’s hand be kept immobile, using a splint and wrap.
Nurse Hulse also prescribed pain medication. On April 5, 2011, Plaintiff was seen by Dr.
Dunston for treatment of his right hand. Dr. Dunston noted that the previously performed x-ray
showed a healing fracture and no acute fracture or dislocation. Dr. Dunston also noted slight
swelling over the M-P joint, and prescribed the continued use of a brace and a follow-up
appointment in three weeks.
On April 11, 2011, Plaintiff was taken to Cardinal Glennon Children’s Medical Center
for an appointment with Dr. Rashid, an orthopedic specialist, for his right hand injury. Dr.
Rashid diagnosed Plaintiff with a closed fracture of the neck of the metacarpal and instructed
Plaintiff to return for a follow-up visit in September 2011, at which time an x-ray would be
obtained. This doctor prescribed acetaminophen for Plaintiff to use as needed. (Doc. 39-7, DYS
598). On physical examination of Plaintiff’s right hand, Dr. Rashid reported that Plaintiff had
“mild swelling, tenderness of the index metacarpal with no instability; ligaments intact.” (Doc.
45-4 at 5). Dr. Rashid also reported as follows:
PLAN: We recommend the patient be cleared for return to activities with the
understanding that he would benefit from surgical correction of the malunion. He
will return in September after he is released from the state with his father to
Defendants’ exhibits attached to their Motion are labeled with page numbers prefaced by the
term “DYS.” The court has adopted this style when referring to these exhibits in this
Memorandum and Order.
discuss further surgical options. They will call in the interim with questions or
(Doc. 45-4 at 6).
Plaintiff contends that additionally, on this date, Dr. Rashid recommended a referral to a
juvenile orthopedic hand specialist. (Doc. 46 (Plaintiff’s Answers to Defendants’ Statements of
Uncontroverted Material Facts, hereafter “Pl. Ans.”) ¶ 21).
Medical records of this date,
however, do not reflect such a recommendation. (DYS 598). As authority for his assertion that
Dr. Rashid recommended a referral, Plaintiff cites his and his father’s affidavits.
affidavits do not reference an orthopedic referral on April 11, 2011, but rather state that Dr.
Rashid indicated, at an unspecified date, that Plaintiff needed surgery to repair his hand. (Doc.
45-3 (Pl. Aff.) ¶ 4; Doc. 45-1 (Ricky Robinson Aff.) ¶ 3).
Plaintiff’s father met with Dr. Rashid on May 16, 2011, “regarding possible operative
therapy for his son.”
Dr. Rashid discussed the “risks and benefits of the procedure with
Plaintiff’s father, including “infection, tendonitis from hardware irritation and nonunioin.” Dr.
Rashid’s records reflect that Plaintiff’s father was “concerned about the retained plate and screws
and want[ed] to think about surgery.” Plaintiff and his father were to see Dr. Rashid on a “p.r.n.
basis.” (Doc. 45-4 at 8).
On July 7 and 22, and August 9, 13, and 14, 2011, Plaintiff complained of right hand pain
or knuckle and index finger pain. Defendants contend, and Plaintiff denies, that Plaintiff refused
medical treatment for his symptoms on these dates.3 (Doc. 37-1 (Defendants’ Statements of
Uncontroverted Material Facts, hereafter “DSUMF”) ¶¶ 23-27; Doc. 46, Pl. Aff. ¶10).
In response to Defendants’ assertion that Plaintiff refused treatment, Plaintiff has stated he
never refused “treatment by an orthopedic specialist for his broken hand.” Defendants, however,
did not make such an assertion; they did not describe the type of treatment Plaintiff refused.
Notably, the nursing notes of these dates reflect that Plaintiff refused treatment. (DYS 443, 446).
Nurse Hulse’s notes of August 23, 2011, reflect that Plaintiff’s father called and stated
that he wanted his son to have his “hand fixed now & not wait till he got released”; Nurse Hulse
told Plaintiff’s father that they were “following orthopedic order[s] & orth stated in writing that
it could wait until [Plaintiff’s] release.” Nurse Hulse’s notes further reflect that she then notified
Dr. Dunston of the father’s call; Dr. Dunston instructed her to find out when Plaintiff was to be
released; and Dr. Dunston said she would talk to orthopedics. Nurse Hulse’s notes also reflect
that Plaintiff’s father called again on August 24, 2011, and, after becoming upset with what he
was told, said he would be calling his attorney, and hung up. (DYS 441).
Plaintiff’s medical records reflect that, on October 6, 2011, Plaintiff was transported to
Cardinal Glennon Children’s Medical Center, where he was examined by orthopedic surgeons
Jessica C. McMichael, M.D., and Philip Sinatra, M.D. (Doc. 45-4 at 10-11). Dr. McMichael
reported, pursuant to physical hand examination, that Plaintiff had “no swelling. Right IF mildly
shortened, with no rotational deformity. Can flex nearly to distal palmar crease. Intact sensation
to light touch. . . . C/O ‘weird feeling’ but no gross tenderness to palpation of fracture sight.
Brisk capillary refill. 5/5 grip strength.” (Doc. 45-4 at 10).
Additionally, Dr. McMichael
Discussed with patient and patient’s father the risks and benefits of surgery. It is
unclear if the patient’s discomfort with writing is related directly to the malunion
of the right 2nd metacarpal head and surgical correction of his metacarpal malunion may not guarantee symptom resolution. He currently is highly functional,
however, has additional cosmetic concerns. It is our recommendation to continue
non-operative management due to morbidity risks of surgery. However, he and
his father would like to pursue a 2nd opinion, we recommend follow-up with our
incoming hand surgeon Dr. Panattoni. We will give clinic phone number to
patient and his family to schedule clinic appointment with Dr. Panattoni when
(Id. at 11) (emphasis added).
Dr. McMichael also stated that Plaintiff had been seen by Dr. Rashid, who discussed
“osteotomy, ORIF,” and that Plaintiff and his father “verbalize their understanding of the
risks/benefits of surgery, but had to defer surgery until release by state custody due to safety
concerns. He is here today to reestablish care. Currently doing well and only complains of
vague hand pain when writing. Otherwise, fully functional.” (Id. at 10) (emphasis added).
October 6, 2011 medical records reflect Plaintiff was instructed to follow-up if his
symptoms worsened or failed to improve. Medical records of this date further reflect that no
activity restrictions were imposed on Plaintiff, or medications prescribed, and Plaintiff was to
have a return appointment with Dr. Panattoni, “when available.”4 (Doc. 39-7, DYS at 592; Doc.
45-4 at 9).
On Saturday, November 12, 2011, Plaintiff complained of right hand pain after he hit his
bunk. Plaintiff was monitored and reevaluated the following morning. (Doc. 37-1, ¶ 29, Doc.
46, ¶ 29).
On November 14 and 28, and December 6 and 7, 2011, Plaintiff complained of right hand
pain. Defendants contend, and Plaintiff denies, that Plaintiff refused treatment for his symptoms
on these dates.5 (Doc. 37-1, DSUMF ¶¶ 30-33; Doc. 46, Pl. Ans. ¶¶ 30-33). On December 9,
2011, Plaintiff complained of right hand pain and was given ibuprofen for his symptoms. On
December 19, 2011, when he complained of right hand pain, Plaintiff was referred to a doctor for
Defendants incorrectly attribute Dr. McMichael’s records to Dr. Panattoni. Plaintiff did not
object to this error. (Doc. 37-1, DSUMF ¶ 28; Doc. 46, Pl. Ans. (Doc. 46, ¶ 28).
See n.2; Doc. 39-2, DYS 430-31, 434 (nurse’s notes reflecting Plaintiff refused treatment).
On Tuesday January 24, 2012, Plaintiff complained of right hand pain. Defendants
contend, and Plaintiff disputes, that Plaintiff refused treatment on this date.6
On January 27, 2012, Plaintiff was released from DYS’s custody to his father, Ricky
During the time relevant to Plaintiff’s First Amended Complaint, Defendant Don
Pokorny was the Regional Administrator for the DYS’s St. Louis Region. He was responsible
for all agency operations in the St. Louis region, including residential care, non-residential
services, and business and administrative functions.
Defendant Pokorny provided direct
supervision of the Service Coordination units as well as supervision of three Assistant Regional
Administrators in the region. He had no involvement in the day to day operations of Missouri
Hills, Spanish Lake Campus.
In response to Defendants’ assertion that Defendant Pokorny had no involvement with
Plaintiff’s medical care (Doc. 37-1, DSUMF ¶ 6), Plaintiff alleges that Defendant Pokorny “had
the authority to direct and duty to direct Plaintiff’s requested medical care by a juvenile
orthopedic hand specialist” (Doc. 46, Pl. Ans. ¶ 6). To support this allegation, Plaintiff has
provided a computer printout which merely reflects that Defendant Pokorny is the “Designated
Principal Assistant, Administrative Services, Non-Residential Care and Southeast Region,” and
which lists staff working under him. (Doc. 45-2). This printout does not even suggest that
Defendant Pokorny “had the authority to direct and duty to direct Plaintiff’s requested medical
care by a juvenile orthopedic hand specialist”; thus, the court deems Defendants’ factual
allegation regarding Defendant Pokorny’s involvement in Plaintiff’s medical care undisputed.
Fed. R. Civ. P. 56(e)(2).
See n.2; Doc. 39-2, DYS 417 (nurse’s notes reflecting Plaintiff refused treatment).
Defendant Chad Davenport is employed as the Facility Manager for Cottage 7, Spanish
Lake, where Plaintiff was housed after his commitment to DYS. Defendant Davenport, who is
not a medical doctor, does not have any involvement in conducting medical exams or diagnosing
medical complaints. Defendants allege, and Plaintiff denies, that while he was living in Cottage
7, Defendant Davenport “did not see him with any injury that caused [him] to believe that he had
a need for immediate medical care beyond the care he was receiving from medical staff.” (Doc.
37-1, DSUMF ¶ 8).
In support of his denial of this suggested undisputed fact, Plaintiff asserts that, while he
was living in Cottage 7, a meeting was held between his father, Ricky Robinson, and Defendant
Davenport, wherein a recommendation by Dr. Rashid for a referral to a juvenile orthopedic hand
specialist was discussed and requested and demanded by Plaintiff’s father. Also, in response to
Defendants’ contention that Defendant Davenport did not see Plaintiff with an injury that caused
him to believe Plaintiff had a need for immediate medical care beyond what he was receiving,
Plaintiff has provided an August 29, 2011 letter sent by his counsel to Defendant Pokorny—not
to Defendant Davenport—stating that Plaintiff injured his right hand and required the services of
an orthopedic specialist “to determine how best to provide surgical correction of a malunion in
the hand.” The letter further states that it was “a renewed demand for immediate treatment with
an orthopedic surgeon.” (Doc. 45-1).
LEGAL FRAMEWORK and DISCUSSION
Standard for Cause of Action for Deliberate Indifference to Serious Medical Needs
The failure to provide medical care to a prisoner violates the Eighth Amendment when it
involves a deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103106 (1976) (opining that an inadvertent failure to provide adequate medical care and negligence
in treating a medical condition does not necessarily present a constitutional violation; in order to
establish a cognizable claim for the failure to provide adequate medical care, a prisoner must set
forth facts showing that a defendant acted with Adeliberate indifference to [the prisoner=s] serious
medical needs@). See Langford v. Norris, 614 F.3d 445, 460-61 (8th Cir. 2010). To show the
prison officials failed to provide adequate medical treatment, a prisoner must prove “(1) he
suffered from an objectively serious medical need, and (2) defendants knew of the need yet
deliberately disregarded it.” Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004). See also
Johnson v. Hamilton, 452 F.3d 967, 972 (8th Cir. 2006).
ASerious medical need@ has been defined as a medical need which Ahas been diagnosed by
a physician as requiring treatment, or one that is so obvious that even a layperson would easily
recognize the necessity for a doctor=s attention.@ Camberos v. Branstad, 73 F.3d 174, 176 (8th
Cir. 1995). Deliberate indifference extends to prison officials who “intentionally deny or
delay access to medical care or intentionally interfere with  treatment once it is prescribed.”
Holden v. Hirner, 663 F.3d 336, 342 (8th Cir. 2011). See also Popoalii v. Corr. Med. Servs., 512
F.3d 488, 499 (8th Cir. 2008) (“A prima facie case alleging deliberate indifference requires the
inmate-plaintiff to demonstrate that she suffered from an objectively serious medical need and
the ‘prison officials actually knew of but deliberately disregarded’ that need.”). However, more
than mere negligence and even gross negligence are required to establish deliberate indifference.
“Deliberate indifference is akin to criminal recklessness, which demands more than negligent
misconduct.” Id. (emphasis added). “A prisoner alleging a delay in treatment must present
verifying medical evidence that the prison officials ‘ignored an acute or escalating situation or
that [these] delays adversely affected his prognosis.’” Holden, 663 F.3d at 342 (quoting Reece v.
Groose, 60 F.3d 487, 491 (8th Cir. 1995)).
Mere negligence does not establish a constitutional violation. Dulany v. Carnahan, 132
F.3d 1234, 1240 (8th Cir. 1997). Also, the mere delay in an inmate=s receiving surgery for a
serious medical condition does not establish an Eighth Amendment violation where the inmate
cannot establish that the delay adversely affected his prognosis. See Dulany, 132 F.3d at 1243.
A plaintiff must prove that, due to the delay, he was harmed; that the harm done was
Aobjectively, sufficiently serious@; and that Aa prison official [was]... deliberately indifferent to
the prisoner's condition.@ Reece v. Groose, 60 F.3d 487, 491 (8th Cir. 1995) (citing Beyerbach v.
Sears, 49 F.3d 1324, 1326 (8th Cir. 1995) (abrogation on other grounds recognized by Reece, 60
F.3d at 492). An inmate who alleges delay in medical care that rises to the level of an Eighth
Amendment violation, Amust place verifying medical evidence in the record to establish the
detrimental effect of delay in medical treatment.@ Beyerbach, 49 F.3d 1324, 1326 (8th Cir. 1995)
(emphasis in the original). In Beyerbach, the Eighth Circuit found no constitutional violation
where there was delay in treatment to an inmate’s broken hand. Id. at 1326.
Additionally, an inmate does not have a right to a particular course of treatment nor does
an inmate establish deliberate indifference by showing that another doctor might have ordered a
different course of treatment than that actually taken. Dulany, 132 F.3d at 1239 (A[I]nmates have
no constitutional right to receive a particular or requested course of treatment, and prison doctors
remain free to exercise their independent medical judgment.@). See also Long v. Nix, 86 F.3d
761, 765 (8th Cir. 1996) (APrison officials do not violate the Eighth Amendment when, in the
exercise of their professional judgment, they refuse to implement a prisoner=s requested course of
Moreover, an inmate does not establish deliberate indifference by showing
disagreement among doctors as to the proper course of treatment. See Vaughn v. Lacey, 49 F.3d
1344, 1345 (citing Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990) (mere disagreement
with a course of treatment does not state a constitutional claim cognizable under 42 U.S.C. '
1983)). See also Davis v. Hall, 992 F.2d 151, 153 (8th Cir. 1993) (holding that a dispute over
the course of treatment fails to state a claim of deliberate indifference); Smith v. Marcantonio,
910 F.2d 500, 502 (8th Cir. 1990); Scherrer v. Stephens, 50 F.3d 496, 497 (8th Cir. 1994)
(disagreement with a course of treatment does not state a constitutional claim).
Where the treatment received by an inmate may not have been as extensive as that which
would have been given by a private health-care provider, an inmate does not necessarily
establish deliberate indifference. Logan v. Clarke, 119 F.3d 647, 650 (8th Cir. 1997) (A[E]fforts
the prison doctors took to allay [the plaintiff=s] pain, while perhaps not as extensive as those a
private health-care provider might have taken, did not reflect deliberate indifference to his
Further, an inmate=s hearsay testimony regarding alleged statements or
diagnoses by doctors does not create a material issue of fact. See e.g., Mays v. Rhodes, 255 F.3d
644, 648 (8th Cir. 2001). Bare assertions are insufficient to support a claim of deliberate
indifference to serious medical needs. Aswegan v. Henry, 49 F.3d 461, 465 (8th Cir. 1995). An
inmate has the burden of proof to show causation between the alleged acts and the alleged
damage. Robinson v. Hager, 292 F.3d 560 (8th Cir. 2000).
“Liability under § 1983 requires a causal link to, and direct responsibility for, the
deprivation of rights.” Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). It is not
enough for plaintiff to prove that his rights were violated. For § 1983 liability, a plaintiff must
show that defendants were each personally involved in the deprivation of his constitutional
rights. Wilson v. Northcutt, 441 F.3d 586, 591 (8th Cir. 2006) (liability for damages for a
federal constitutional tort is personal so each defendants’ conduct must be independently
assessed). Further, defendants cannot be held liable for constitutional violations under the theory
of respondeat superior because they held supervisory positions. See Tlamka v. Serrell, 244 F.3d
628, 635 (8th Cir. 2001); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (“[A] general
responsibility for supervising the operations of a prison is insufficient to establish the personal
involvement required to support liability.”).
For purposes of the pending Motion, the court will assume Plaintiff’s broken hand was a
serious medical condition. See, e.g., Johnson, 452 F.3d at 973 (finding that a fractured finger
was an objectively serious medical need). The court finds, however, that summary judgment
should be granted in Defendants’ favor for numerous reasons. First, Plaintiff did receive medical
treatment for his hand injuries. Not only was he seen on a regular basis by DYS medical staff,
but he was taken to the emergency room when he reinjured his hand and was seen, on two
occasions, at Cardinal Glennon Children’s Hospital for consultations.
Second, although Dr. Rashid opined that Plaintiff would benefit from surgery, Dr.
McMichael specifically recommended that Plaintiff not have surgery.
Plaintiff has no
constitutional right to a particular course of treatment, especially when there are differing
opinions as to recommended treatment. See Davis, 992 F.2d at 153; Randall, 642 F.2d at 308.
Third, Plaintiff’s medical records do not reflect that any doctor, including Dr. Rashid,
recommended immediate surgery or surgery before Plaintiff was released from DYS custody, or
reported that Plaintiff would be harmed by the delaying of surgery until after his release from
DYS. Specifically, when Dr. Dunston examined Plaintiff shortly after his arrival at Cottage 7,
she reported that his old healing fracture was “all resolved,” and her examination of his right
hand showed “no deformity.” Moreover, she placed no restrictions on Plaintiff’s activities.
(DYS 611). Then, in March 2011, after Plaintiff re-injured his hand when he hit a desk, an x-ray
showed he was negative for acute osseous injury. (DYS 594). Medical records reflect that Dr.
DiSalvo, who saw Plaintiff in the emergency room at Christian Hospital, did not recommend
surgery; Plaintiff’s hand was splinted; and Dr. DiSalvo prescribed Motrin and Percocet, as
needed, for pain, and recommended that Plaintiff ice his hand. (DYS 600-601; Doc. 45-5 at 422). On April 5, 2011, when Plaintiff presented with hand swelling, Dr. Dunston recommended
Plaintiff continue to use a brace until he was pain free and that he return in three weeks for an
assessment. (DYS 481). On April 11, 2011, Dr. Rashid did not recommend immediate surgery,
and noted Plaintiff need not return until September 2011, assuming that he would be released
from custody by that date. In any case, Dr. Rashid noted possible risks of surgery. (Doc. 45-4 at
When Plaintiff returned to Cardinal Glennon Children’s Hospital, in October 2011 for
follow-up of his hand injury, Dr. McMichael noted that surgery might not resolve Plaintiff’s
problem with his hand and that Plaintiff had cosmetic concerns regarding his hand.
Significantly, Dr. McMichael recommended Plaintiff not have surgery due to morbidity risks of
surgery, and also recommended Plaintiff see Dr. Panattoni, a hand specialist, for a second
opinion. Significantly, no restrictions were placed on Plaintiff as a result of Dr. McMichael’s
consultation, and he was told to return if his symptoms worsened. (DYS 592; Doc. 45-4 at 9).
Thus, the undisputed facts contradict Plaintiff’s assertions that Dr. Rashid or any other doctor
recommended immediate surgery, surgery prior to Plaintiff’s release from custody, or opined that
Plaintiff would be harmed by delaying surgery. See Dunlay, 132 F.3d at 1243; Reece, 60 F.3d at
Fourth, the delay in Plaintiff’s receiving surgery for his hand until after his ultimate
release from DYS’s custody fails to establish an Eighth Amendment violation because Plaintiff
has not demonstrated that the delay adversely affected his prognosis, see Dulany, 132 F.3d at
1243, or that he suffered harm which was Aobjectively, sufficiently serious” as a result of his not
having surgery while committed to DYS’s custody, see Reece, 60 F.3d at 491. Significantly, the
record does not reflect that Plaintiff’s symptoms worsened after he saw Dr. Rashid in April 2011.
As noted above, Dr. McMichael reported, in October 2011, that Plaintiff was “doing well,” only
complained of “vague hand pain,” and was “[o]therwise, fully functional.”
physical exam, in October 2011, Plaintiff had intact sensation and no tenderness at the fracture
site. (Doc. 45-4 at 10).
Fifth, although Plaintiff and his father may have preferred—and actually demanded—that
Plaintiff receive surgery prior to his release, the failure of Defendants or anyone else affiliated
with DYS to acquiesce to their wishes or demands does not violate the Eighth Amendment,
given Plaintiff’s failure to demonstrate a resulting negative affect on his prognosis. See Logan,
119 F.3d at 650. Moreover, Plaintiff’s merely stating that Dr. Rashid stated that Plaintiff needed
surgery prior to his release or immediately, without documentary support, is insufficient to create
a material issue of fact as to her recommendation. See Mays, 255 F.3d at 648. As discussed
above, medical records refute Plaintiff’s claim that Dr. Rashid or any other doctor recommended
immediate surgery or surgery prior to Plaintiff’s release.
Sixth, even assuming that Defendant Pokorny and Defendant Davenport knew of
Plaintiff’s serious medical need, the undisputed facts fail to establish that they deliberately
disregarded it. See Hartsfield, 371 F.3d at 457. Plaintiff’s unsupported assertions that they did
so are insufficient to withstand summary judgment. See Anderson, 477 U.S. at 247. Further, the
undisputed facts fail to establish that either Defendant Pokorny or Defendant Davenport was
personally involved in the alleged deprivation of Plaintiff’s constitutional rights. See Wilson,
441 F.3d at 591. To the extent Plaintiff suggests that either Defendant is liable based on their
supervision of others, Plaintiff’s allegation of respondeat superior liability is insufficient to
establish a constitutional violation. See Tlamka, 244 F.3d at 635; Keeper, 130 F.3d at 1314.
Seventh, Plaintiff has not established deliberate indifference to his serious medical
condition merely because his treatment may not have been as extensive as that which would have
been given by a private health-care provider. Thus, even though the record does not reflect that
he saw Dr. Panattoni pursuant to Dr. McMichael’s recommendation, Plaintiff has failed to
establish a constitutional violation. See Logan, 119 F.3d at 650. Moreover, Dr. McMichael’s
October 6, 2011 records reflect that Dr. Panattoni was not yet at Cardinal Glennon Children’s
Hospital (he was the hospital’s “incoming hand surgeon”), and that Plaintiff should see this
doctor when he was available. Plaintiff has failed to provide any evidence of Dr. Panattoni’s
availability. In any case, Dr. McMichael only sought Dr. Panattoni’s consult as a second
Eighth, despite Plaintiff’s assertions that he should have received immediate surgery or
surgery prior to his release, he fractured his hand in December 2010, and had not had it treated
prior to entering DYS custody in February 2011.
Ninth, and most significantly, Plaintiff has failed to place any medical evidence in the
record to verify his allegation of a detrimental effect in the delay of his medical treatment.
Beyerbach, 49 F.3d at 1326 (finding summary judgment should have been granted for defendants
where inmate, who complained that delay in medical treatment violated the Constitution, failed
to place verifying medical evidence in the record to establish the detrimental effect of delay).
The court finds, therefore, that Plaintiff has failed to establish deliberate indifference to
his serious medical needs, in violation of the Constitution, and that summary judgment should be
granted in favor of Defendants. See Hartsfield, 371 F.3d at 457.
AIn a ' 1983 action, state actors may be entitled to qualified immunity.@ McRaven v.
Sanders, 577 F.3d 974, 980 (8th Cir. 2009) (citation omitted). Qualified immunity may shield a
government official from liability when his conduct does not violate Aclearly established
statutory or constitutional rights of which a reasonable person would have known.@ Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is a question of law, not a question of
fact. McClendon v. Story County Sheriff=s Office, 403 F.3d 510, 515 (8th Cir. 2005). Qualified
immunity is Aan immunity from suit rather than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously permitted to go to trial.@ Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985)(emphasis in original).
In Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court held that there are two
prongs to a qualified immunity analysis. A court must consider both whether a constitutional
right has been violated and whether that right had been clearly established at the time of the
The Court further held in Pearson, that, while often appropriate, is not
mandatory to consider these issues in any particular sequence.
Under Pearson, courts are
Apermitted to exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular case at
hand.@ Pearson, 555 U.S. at 236.
Given that Plaintiff has failed to establish that Defendants deliberately denied him
medical care for his serious medical condition, in violation of the Constitution, the court further
finds that Defendants are entitled to qualified immunity. See Pearson, 555 U.S. at 236.
IT IS HEREBY ORDERD that the Motion for Summary Judgment (Doc. 36) filed by
Defendants Don Pokorny and Chad Davenport is GRANTED;
IT IS ORDERED that a separate judgment will be entered incorporating this
Memorandum and Order.
Dated this 13th day of June, 2014.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE
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