Scott v. Morgan et al

Filing 82

MEMORANDUM AND ORDER: Accordingly, IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment (Doc. 65 ) is GRANTED. A separate judgment will accompany this order. IT IS FURTHER ORDERED that Petitioner's petition for a writ of habea s corpus ad testificandum to secure his presence at trial in this matter (Doc. 81 ) is DENIED as moot. re: 65 MOTION for Summary Judgment filed by Defendant Shanta Pribble, Defendant David Mullen, Defendant Tina Coffman. Signed by District Judge John A. Ross on 7/25/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KERWIN D. SCOTT,
Plaintiff,
vs.
JERRY W. MORGAN, et al.,
Defendants.

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Case No. 4:14-cv-01853-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion for Summary Judgment filed
February 26, 2016 (Doc. 65). On March 18, 2016, Plaintiff submitted a response in opposition to
Plaintiffs’ Motion for Summary Judgment with supporting exhibits (Doc. 67-68 & Attach.).
Defendants filed their reply on March 28, 2016 (Docs. 71-73). The motion is fully briefed and
ready for disposition. For the following reasons, the motion will be granted.
I. Background
On November 3, 2014, Scott, a Missouri inmate, filed this action under 42 U.S.C. § 1983,
seeking damages against Defendants Tina Coffman, a nurse assigned to the administrative
segregation unit at the Eastern Reception, Diagnostic and Correctional Center (ERDCC); David
Mullen, a physician at ERDCC; and Shanta Pribble, the ERDCC Health Service Administrator.
Scott claims that Defendants, with deliberate indifference, provided him constitutionally
inadequate medical care for a fractured clavicle he suffered during a “use of force incident”
involving ERDCC corrections officials (Doc. 1). The summary judgment evidence establishes
the following. On November 24, 2012, Scott--while housed in the ERDCC administrative
segregation unit--was involved in a “use of force incident” during which corrections officers

took him to the ground and sprayed pepper spray in his face. Less than thirty minutes later,
Coffman responded to determine whether Scott could be monitored safely in administrative
segregation, or should instead be transferred to the infirmary. Coffman observed Scott through
the window of his cell door. Scott complained that his eyes were burning, that he was having
difficulty breathing, and that he thought his right shoulder was dislocated. Coffman noted in
Scott’s medical records that he had a history of chronic obstructive pulmonary disease (COPD),
that she had assessed his shoulder area, that his shoulder range of motion was limited by pain,
that the area was symmetrical with his left shoulder, and that she observed no swelling, bruising,
or redness. Coffman telephoned a non-defendant physician to discuss Scott’s history of COPD,
and the physician determined that Scott could be observed safely in administrative segregation.
Coffman then instructed Scott to notify the medical department immediately if he experienced
any shortness of breath or difficulty breathing, or if his shoulder pain worsened (Docs. 66.1 at 5,
7; 66.2 at 4-9; 66.3 at 13-15). During her deposition, Coffman testified that she could not
remember whether she informed the physician of Scott’s shoulder complaints during the
November 24, 2012 telephone call, but that she was “far more concerned with his respiratory
status than any other injury that he was saying he had at [that] time” (Doc. 66.3 at 13-14).
Approximately ten hours later, Scott self-declared a medical emergency, reporting chest
pains, hyperventilation, and excruciating shoulder pain (Doc. 66.1 at 6). When a non-defendant
nurse responded, Scott stated “my shoulder, my shoulder” (Doc. 66.2 at 6-8). During his
deposition, Scott testified that, by this time, he was suffering shoulder pain at a level of “ten
plus” on a scale of one to ten, and that his shoulder area was bruised and swollen. The nurse took
Scott’s vitals, did not examine his shoulder, informed him that he would not be transported to the
emergency room, told him that an x-ray would not be available immediately, as it was the
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weekend, submitted a referral for an shoulder x-ray, and advised Scott to submit a medical
service request (MSR) if his shoulder was in pain (Docs. 66.1 at 6-7; 66.2 at 6-8). The nurse also
erroneously noted in Scott’s medical record that Scott was already taking pain medication (Doc.
66.2 at 8). Later the same day, Scott filed a MSR, indicating that his shoulder had been injured
during the use-of-force incident, that it needed to be x-rayed, that he was unable to move it, that
he could not lay on it, that it felt like it was broken, and that it was large, swollen, and had a knot
or bump on it (Doc. 67.3 at 7-8).
On November 26, 2012, Coffman received Scott’s November 24 MSR as well as five
other MSRs he had submitted, including one in which he requested a renewal of Tramadol, a
narcotic pain medication he had been taking prior to his injury for unrelated complaints (Docs.
66.2 at 8-9; 67.3 at 7-8). As relevant, she spoke with Dr. Mullen, who ordered an x-ray of Scott’s
shoulder; she entered an order for a shoulder x-ray; and she referred Scott’s Tramadol-request to
doctor sick call (Docs. 66.2 at 9; 66.3 at 16). Also on November 26, 2012, Scott submitted
another MSR, complaining of “extreme pain [and] discomfort” in his right shoulder, and stating
that it felt “like it [was] broken or dislocated” (Doc. 67.3 at 9). In response to this second MSR,
Coffman noted that an x-ray had already been ordered (Docs. 66.3 at 17-18; 67.3 at 9).
Scott’s shoulder was x-rayed on November 30, 2012, and the x-ray film was mailed to a
radiologist for interpretation (Doc. 66.2 at 10). Dr. Mullen received the radiologist’s
interpretation--which diagnosed a displaced fracture of the clavicle--on December 5, 2012 (Id. at
10, 91). On December 10, 2012, Scott submitted an informal resolution request (IRR), stating
that the he believed the medical department was refusing to provide him adequate treatment for
his shoulder injury, that his shoulder was still swollen, that he was in excruciating pain, that “a
bone [was] sticking up as if it [was] either broken or dislocated,” and that he still had not been
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assessed by Dr. Mullen or provided any sort of pain medication (Doc. 67.3 at 3, 13-17). On
December 19, 2012, Scott’s sister contacted Pribble, expressing concern about the adequacy of
the medical care Scott was receiving for his shoulder injury based on her own observations of his
condition during a recent in-person visit, and Pribble informed her that Scott was scheduled for
an appointment with Dr. Mullen on December 21, 2012 (Doc. 66.2 at 15).
On December 21, 2012, Dr. Mullen examined Scott’s shoulder injury for the first time
(Docs. 66.2 at 14). He observed a large callous (bony formation) on the distal one-third of
Scott’s clavicle, that Scott had near-normal passive range of motion in his shoulder, and that
Scott’s shoulder was tender to palpation with no crepitus (noise caused by the edges of a fracture
grinding together). Dr. Mullen determined that Scott’s clavicle fracture was healing, ordered
another x-ray, and prescribed ibuprofen to be taken four times per day as needed for pain (Id. at
14-15; Doc. 66.2 at 97-99). Dr. Mullen noted in Scott’s medical record that “custody issues in
[Scott’s] wing” had prevented him from examining Scott sooner, and that he had thus treated
Scott conservatively in the interim (Doc. 66.2 at 14). During his deposition, Dr. Mullen testified
that “scheduling issues” caused the 16-day delay until he examined Scott after he received the
radiologist’s report, and that Scott’s request for a renewal of his Tramadol prescription had been
referred to Jefferson City for approval, which a Missouri Department of Corrections (“MDOC”)
policy required, on November 26, 2012 (Doc. 66.4 at 13-15).
On December 28, 2012, Scott filed a third MSR relating to his shoulder, reporting that the
second x-ray of his shoulder had not yet been taken (Doc. 67.3 at 10-11). A second x-ray of
Scott’s shoulder was taken on February 1, 2013, and the films were again mailed to a radiologist
for interpretation. Dr. Mullen received the radiologist’s interpretation on February 6, 2012.
According to the radiologist, a comparison of Scott’s x-rays showed a “persistent separated
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fracture of the right clavicle” with “no evidence of approximation that would allow for healing”
(Docs. 66.2 at 19-20; 66.4 at 18). On February 11, 2012, Dr. Mullen requested an orthopedic
consultation (Doc. 66.2 at 21).
Scott was then transferred to another prison, and over the next several months, underwent
three surgeries to repair his clavicle. Dr. Galbraith, who performed the first surgery, initially
assessed Scott, via teleconference consultation, on February 28, 2013. Dr. Galbraith gave Scott
the options of continued observation, medication, and physical therapy, or surgery. Scott chose
surgery, telling Dr. Galbraith his shoulder was “hurting real bad,” that “it wasn’t healing,” and
that he “was tired of the pain.” (Doc. 66.6 at 6-8, 15). Dr. Galbraith performed Scott’s first
shoulder surgery in mid-March 2013, installing a metal plate to stabilize the fracture and grafting
bone from Scott’s hip (Id. at 9). By August 2013, it was apparent that Scott’s shoulder was not
healing, and Dr. Galbraith referred him to Dr. Crist, another orthopedic surgeon (Docs. 66.6 at
11; 66.7 at 7).
Dr. Crist then performed two additional surgeries on Scott’s shoulder. During Scott’s
second surgery, Dr. Crist removed the hardware Dr. Galbraith had installed, removed additional
bone and scar tissue at the fracture site, and placed an antibiotic-infused bone-cement spacer
(Doc. 66.7 at 10). During Scott’s third surgery, Dr. Crist removed the bone-cement spacer,
installed new hardware, and placed a bone graft (Id. at 11). Dr. Crist is of the opinion that Scott’s
continuing shoulder pain is related more to his injury, the three surgeries, and a delay in initiating
his post-operative physical therapy. He also opines that patients with clavicle fractures should be
provided arm slings as a comfort measure, but that slings do not keep the clavicle in place to
promote healing (Id. at 6-7, 14). In his opinion, motion at the site of a clavicle fracture, caused
by a patient moving his arm, could be a potential cause of non-healing, but that there are a
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number of factors that can cause clavicle fractures not to heal, and that he could not know for
certain what prevented Scott’s fracture from healing on its own (Doc. 66.7 at 5-9, 12-14).
Drs. Mullen, Galbraith, and Crist all agree that the standard of care for fractured clavicles
includes ice for the first 24 to 48 hours, immobilization of the arm and shoulder using a sling or
harness, pain medication, and possibly surgery (Docs. 66.4 at 9-10; 66.6 at 5-6, 11-12, 15; 66.7
at 5-7, 9, 13-14). They also agree that most clavicle fractures heal on their own, and that it is a
medically acceptable practice to treat such fractures conservatively for several weeks or months
to ascertain whether they will heal without surgical intervention (Docs. 66.4 at 9-12; 66.6 at 9;
66.7 at 6). According to Dr. Mullen, he did not provide Scott an arm sling because, at the time he
was treating him, he was under the mistaken belief that inmates in administrative segregation
were not permitted to have arm slings (Doc. 66.4 at 9-10).
II. Summary Judgment Standard
The Court may grant a motion for summary judgment if 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); Peterson v. Kopp, 754 F.3d 594, 598 (8th Cir. 2014). A moving party
bears the burden of informing the Court of the basis of its motion. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). 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 “mere existence of some alleged factual dispute.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In passing 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 his favor.
Celotex, 477 U.S. at 331. The Court’s function is not to weigh the evidence but to determine
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whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. “Credibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
III. Deliberate Indifference Standard
Deliberate indifference to an inmate’s serious medical needs constitutes cruel and
unusual punishment in violation of the Eighth Amendment. Nelson v. Corr. Med. Servs., 583
F.3d 522, 531-32 (8th Cir. 2009) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). To establish
deliberate indifference, Scott “must prove an objectively serious medical need and that prison
officials knew of the need but deliberately disregarded it.” Id. The second prong of the
deliberate-indifference test requires Scott to show that Defendants were more than negligent, or
even grossly negligent; he must show that their mental state was “akin to criminal recklessness.”
Allard v. Baldwin, 779 F.3d 768, 771-72 (8th Cir. 2015). Scott may show that Defendants were
deliberately indifferent to his serious medical needs by establishing that they totally deprived
him of medical care, and that the deprivation resulted in “pain and suffering” or “a lingering
death.” Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010).
IV. Discussion
There is no real dispute that Scott’s broken clavicle was a serious medical need. Bryan v.
Endell, 141 F.3d 1290, 1291 (8th Cir. 1998) (“There is no doubt that plaintiff had a serious
medical need. His hand had been broken.”); Hightower v. City of St. Louis, No. 4:14-cv-1959,
2015 WL 3891821, at *2 (E.D. Mo. 2015) (shoulder fractured in two places constituted
objectively serious medical need). Thus, the dispositive issue in this case is whether Defendants
were deliberately indifferent to Scott’s fractured clavicle and the pain it caused him. As such, to
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be entitled to summary judgment, Defendants must establish that there is no genuine dispute as
to the constitutional adequacy of the medical treatment they provided Scott for his shoulder
injury and their management of the pain it caused him. Celotex, 477 U.S. at 323.
A.

Defendant Pribble

Health Services Administrator Pribble argues that she is entitled to summary judgment
because, as an administrator, she was not personally involved in Scott’s medical care, and
because she cannot be held liable on a theory of respondeat superior. She also contends that she
was not deliberately indifferent to Scott’s serious medical need, because once she learned of his
injury--during her December 19, 2012 conversation with his sister--she confirmed that Scott had
a December 21, 2012 appointment with Dr. Mullen (Doc. 66). In response, Scott argues that
Pribble had direct knowledge of Scott’s injury and the lack of treatment he was being provided.
More specifically, he notes that, even after she learned of his condition, Pribble took no action to
ensure that he received adequate treatment (Doc. 67 at 14-15).
Prison supervisors cannot be held liable under § 1983 on a respondeat superior theory,
Langford, 614 F.3d at 460. They can, however, incur liability where they are personally involved
in a constitutional violation, or where their corrective inaction amounts to deliberate indifference
to or tacit authorization of their subordinates’ violative practices. Id. (citing Choate v. Lockhart,
7 F.3d 1370, 1376 (8th Cir. 1993). Prison officials who know that an inmate’s medical needs are
not being adequately treated, but remain indifferent, may be held personally liable. Id. at 460-61.
The undisputed evidence shows that Pribble learned of Scott’s injury no earlier than December
19, 2012; that Pribble confirmed that Scott had already been scheduled for an appointment with
Dr. Mullen two days later; that Dr. Mullen saw Scott and provided him pain medication during
that appointment; and that Pribble was not otherwise personally involved in Scott’s medical care.
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The Court concludes that the undisputed facts establish that Pribble did not learn of Scott’s
injury until December 19, 2012; that she responded reasonably after she learned of his injury;
and that she was not deliberately indifferent to Scott’s serious medical needs. The Court will thus
grant summary judgment in her favor.
B.

Defendants Dr. Mullen and Nurse Coffman – Treatment of the Fracture

Dr. Mullen and Coffman argue that they were not deliberately indifferent to Scott’s
clavicle fracture. More specifically, Coffman argues that she responded to Scott’s MSRs in a
timely manner, and communicated his symptoms to physicians who were authorized to make
decisions regarding his care; and Dr. Mullen asserts that he initially treated Scott’s injury
conservatively and consistently with the standard of medical care (Doc. 66). In response, Scott
contends that Dr. Mullen and Coffman were deliberately indifferent based of on their failure to
provide him any treatment for his shoulder injury, even after they learned his clavicle had been
fractured, until several weeks had passed (Doc. 67).
A complaint that a prison physician has been negligent in diagnosing or treating a
medical condition does not give rise to a claim under the Eighth Amendment. Popoalii v. Corr.
Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008). Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner. Id. Rather, to establish an Eighth
Amendment claim of deliberate indifference to serious medical needs, an inmate must bring forth
evidence of sufficiently harmful acts or omissions. Id. Deliberate indifference entails a level of
culpability equal to criminal recklessness, i.e., that the official was both aware of facts from
which an inference could be drawn that a substantial risk of serious harm existed, and that the
official actually drew the inference. McRaven v. Sanders, 577 F.3d 974, 982-83 (8th Cir. 2009).
When a prisoner-plaintiff’s deliberate-indifference claim is based on a delay in medical
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treatment, the Court must measure the objective seriousness of the deprivation by reference to
the effect of the delay. Jackson v. Riebold, 815 F.3d 1114, 1119-20 (8th Cir. 2016). The plaintiff
must produce verifying medical evidence that establishes the detrimental effect of the delay. Id.
Where an inmate submits evidence documenting his diagnosis and treatment, but offers no
evidence establishing that any delay in treatment had a detrimental effect on his prognosis, the
inmate fails to raise a genuine issue of fact on an essential element of his claim. Id.
The Court concludes that Dr. Mullen and Coffman were, at most, negligent in failing to
provide Scott more complete treatment for his clavicle fracture. Moore v. Duffy, 255 F.3d 543,
545 (8th Cir. 2001) (mere negligence does not support constitutional violation); cf. Corwin v.
City of Independence, Mo., No. 15-1732, 2016 WL 3878216, at *2 (8th Cir. July 18, 2016)
(prison nurse was at most negligent when she responded to prisoner’s complaint of a broken
hand, examined his hand, prescribed over-the-counter pain medication, and applied an ACE
bandage wrap). While the Court is troubled by the delays in performing x-rays of Scott’s
shoulder after the use-of-force incident, the Court nonetheless concludes that the delay did not
rise to the level of deliberate indifference. Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir.
2006) (section 1983 deliberate indifference claim failed because one-month delay between
nurse’s tentative diagnosis of broken finger and x-ray of prisoner’s hand was, at most, negligent)
see also Burton v. Kastings, 595 Fed. App’x 657 (8th Cir. 2015) (unpublished per curiam),
affirming No. 1:10-cv-165 (E.D. Mo. July 21, 2014) (unpublished order) (granting summary
judgment in medical defendants’ favor where no x-ray was performed until two months after
prisoner-plaintiff’s injury, and more than a month after a nurse stated that plaintiff’s hand was
likely fractured; concluding that medical care was at most negligent, as plaintiff was evaluated
and provided pain medication shortly after his injury).
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Moreover, all of Scott’s doctors agree that, in the early stages, the appropriate treatment
for his fracture included nothing more than ice and a shoulder sling or harness. In light of the
minimal, conservative course of treatment that Scott’s condition necessitated, it cannot be said
that the delay in scheduling x-rays or the deprivation of treatment for Scott’s fracture fell so far
below the standard of care as to be akin to criminal recklessness. See Allard, 779 F.3d at 771-72.
Moreover, even assuming that Dr. Mullen and Coffman’s failure to provide Scott treatment for
his fracture met the recklessness standard, the Court would nevertheless grant summary
judgment in their favor, as Scott has adduced no verifying medical evidence that the delay in
treatment detrimentally affected his prognosis. See Jackson, 815 F.3d at 1119-20; see also
Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005) (affirming grant of summary judgment
where prisoner based claim on treatment delays but did not place verifying medical evidence in
the record to establish detrimental effect of delay). Although Scott believes that the delay in
treatment caused his lingering shoulder symptoms, none of the medical professionals offered
such an opinion. There is also no indication that Dr. Galbraith treated Scott’s injury any
differently than he would have had he started treating Scott sooner; to the contrary, Dr. Galbraith
offered Scott a range of treatment options with which he felt comfortable, and Scott chose
surgery over a continued course of more conservative treatment. See Scott v. Benson, No. C114055-MWB, 2016 WL 1048050, at *10 (N.D. Iowa Mar. 11, 2016) (granting summary judgment
on deliberate-indifference claim because, inter alia, nothing in the record showed that plaintiff
was treated differently, or more intensely, because of delay in treatment). In addition, Dr. Crist
attributed Scott’s continuing shoulder pain to factors other than the delay in treatment, namely,
the injury itself, the three surgeries, and an apparent delay in initiating post-operative physical
therapy. Accordingly, the Court finds that Dr. Mullen and Coffman are entitled to summary
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judgment to the extent Scott seeks redress under § 1983 based on their failure to treat his
fractured shoulder.
C.

Defendants Dr. Mullen and Nurse Coffman – Pain Management

Construing the evidence and all reasonable inferences in Scott’s favor, Celotex, 477 U.S.
at 331, the Court further concludes that no reasonable jury could find that Dr. Mullen and
Coffman were deliberately indifferent to Scott’s pain complaints, Nelson, 583 F.3d at 531-32; cf.
Boretti v. Wiscomb, 930 F.2d 1150, 1154-55 (6th Cir. 1991) (failure to provide pain medication
may be sufficient to support Eighth Amendment deliberate-indifference claim, even where injury
otherwise heals normally). The undisputed evidence shows that Coffman responded to Scott’s
injury less than 30 minutes after the use-of-force incident, that she prioritized his respiratory
symptoms over his complaint of a shoulder injury, and that she advised him to file an MSR if his
shoulder pain worsened. The record also establishes that Coffman received Scott’s first MSR and
referred his request for Tramadol to doctor sick call November 26, 2012, or two days after his
injury; and that Dr. Mullen then referred the pain-medication request to Jefferson City for
approval, as MDOC policy required. Notably, there is no indication that Dr. Mullen or Coffman
were thereafter notified that the Tramadol-request had been denied, or that Scott was not
otherwise receiving pain medication. See Nelson, 583 F.3d at 531-32 (plaintiff must prove that
prison official deliberately disregarded serious medical need).
This case is distinguishable from Dadd v. Anoka Cty., in which the Eighth Circuit Court
of Appeals recently affirmed the denial of a motion to dismiss a pretrial detainee’s claim that jail
officials had been deliberately indifferent to his serious pain. No. 15-2482, 2016 WL 3563424, at
*3-5 (8th Cir. June 30, 2016). In Dadd, a defendant nurse learned that the plaintiff suffered from
a painful dental condition for which he had already been prescribed a narcotic pain medication,
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communicated the plaintiff’s pain complaint to a physician, and thereafter failed to administer to
the plaintiff the new pain medication the physician prescribed. Id. Unlike the nurse in Dadd, Dr.
Mullen and Coffman affirmatively responded to Scott’s pain complaints: Coffman referred
Scott’s request for narcotic pain medication to doctor sick call on November 26, 2012, or two
days after his injury; Dr. Mullen then referred the request to Jefferson City for approval; and
nothing in the record suggests that Dr. Mullen or Coffman were thereafter notified that Scott
continued to suffer from serious shoulder pain after the referral was made. Although Scott filed
an IRR on December 10, 2012, there is no evidence suggesting that Dr. Mullen or Coffman knew
of the IRR, and Scott did not file another MSR until December 28, 2012, a week after Dr. Mullen
had already prescribed him ibuprofen for his shoulder pain. The Court therefore finds that Dr.
Mullen and Coffman were at most negligent in their treatment of Scott’s shoulder pain between
the time of his injury and his first appointment with Dr. Mullen on December 21, 2012. See
Allard, 779 F.3d at 771-72 (mere negligence does not give rise to § 1983 liability).
The Court further concludes that Dr. Mullen and Coffman are entitled to judgment as a
matter of law to the extent Scott seeks relief for pain he continued to suffer after Dr. Mullen
prescribed him ibuprofen on December 21, 2012. Inmates have no constitutional right to their
requested course of medical treatment. Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115, 1118-19
(8th Cir. 2007). Rather, prison doctors remain free to exercise their independent medical
judgment. Id. To the extent Scott contends that ibuprofen was insufficient to manage his shoulder
pain, the Court concludes that his claim amounts to disagreement with Dr. Mullen’s treatment
decision, and thus is not actionable under § 1983. Moreover, to the extent Scott claims that he
was not permitted to take ibuprofen as frequently as Dr. Mullen had prescribed, he has not
alleged, nor does the evidence show, that Dr. Mullen or Coffman were personally involved in
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denying him any medication once it was prescribed. Martin v. Sargent, 780 F.2d 1334, 1338 (8th
Cir. 1985) (to prevail in § 1983 claim, plaintiff must establish that defendant was personally
involved in constitutional violation). The Court thus concludes that Scott has not established that
Dr. Mullen and Nurse Coffman were deliberately indifferent to his shoulder pain.
V. Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment (Doc. 65) is GRANTED. A separate judgment will accompany this order. IT IS
FURTHER ORDERED that Petitioner’s petition for a writ of habeas corpus ad testificandum to
secure his presence at trial in this matter (Doc. 81) is DENIED as moot.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 25th day of July, 2016.

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