Maybin v. Corizon Healthcare et al

Filing 64

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the joint motion of the defendants for summary judgment [Doc. # 41 ] is granted. IT IS FURTHER ORDERED that plaintiffs motion for injunctive relief [Doc. # 13 ] is denied. A judgment in accordance with this Memorandum and Order will be entered separately. Signed by District Judge Carol E. Jackson on 8/4/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
WILLIAM MAYBIN,
Plaintiff,
vs.
CORIZON HEALTHCARE and
WILLIAM MCKINNEY,
Defendants.

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Case No. 4:16-CV-525 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the joint motion of defendants William
McKinney, M.D., and Corizon, LLC for summary judgment pursuant to Federal Rule
of Civil Procedure 56.1 Plaintiff has responded in opposition and the issues are fully
briefed.
I.

Background

Plaintiff William Maybin brings this action under 42 U.S.C. § 1983, claiming
that defendants were deliberately indifferent to his serious medical needs, in
violation of the Eighth Amendment. At all relevant times, plaintiff was an inmate in
the Missouri Department of Corrections (MDOC). He has been confined at the Potosi
Correctional Center (PCC) since his transfer there in November 2014. William
McKinney, M.D., is the sole acting physician at PCC. Corizon, LLC provides medical
care to prison inmates.
Treatment for Respiratory Conditions
i.

1

Pre-Transfer Treatment

Defendants are incorrectly named in the amended complaint as “Corizon Healthcare” and “William McKenney.”
[Doc. #26 at 3].

In November 2013 plaintiff reported blood in his sputum. In response, MDOC
medical personnel conducted several tests in December 2013, including (1) a chest
x-ray, (2) a tuberculosis skin test, and (3) an AFB smear of plaintiff’s sputum
(screening for tuberculosis or other mycobacteria). All of the tests yielded normal
results.
Plaintiff next received an exam from a MDOC physician in March 2014 after
reporting a cough. He also relayed that he first developed respiratory symptoms
following an influenza vaccination in October 2013. The physician ordered albuterol
nebulization treatment, chest and sinus x-rays, and sputum testing.2 Those x-rays
revealed no chest abnormalities, but did show potential allergic rhinitis and
sinusitis. Later that same month, an MDOC physician diagnosed plaintiff with
allergic rhinitis and sinusitis; plaintiff received prescriptions for Cipro, Claritin, and
saline spray.3 During that visit, the MDOC physician noted that plaintiff’s
“respiration was even and unlabored, and his lungs were clear.” [Doc. #43-1 at
10].
In April 2014, the bloody sputum issue resurfaced, and an MDOC physician
subsequently renewed plaintiff’s Cipro prescription to treat his recurrent sinus
infection. Moreover, April 2014 records link pinkish mucous to plaintiff’s unresolved
sinusitis. Notes also state that “throat and nose regions are currently neg[ative] for
traces of mucous or pink drainage,” but that pink drainage might “eventually wind
up in his airway and will need to be coughed out.” [Doc. #43-2 at 76].

2

Albuterol nebulization treatments are used “to prevent wheezing, difficulty breathing, chest tightness, and
coughing” in people with chronic obstructive pulmonary disease, chronic bronchitis, and emphysema. See
https://medlineplus.gov/druginfo/meds/a601063.html (last visited July 28, 2017).
3
Ciproflaxin
is
used
to
treat
or
prevent
bacterial
infections.
See
https://medlineplus.gov/druginfo/meds/a688016.html (last visited July 31, 2017).

2

MDOC physicians took additional sinus x-rays in early July 2014. They noted
several abnormalities. Later that month, plaintiff complained of “continuous pain in
the chest, troubled breathing,” and “coughing up blood.” [Doc. #54 at 10]. A
physician opined that plaintiff might have microcytic hypochromic anemia4; records
also reflect that plaintiff had hilar granulomas on a previous chest x-ray from
March.

The

physician

considered

that

plaintiff

might

have

sarcoidosis

or

hypersensitivity pneumonitis.5 Following this assessment, plaintiff received a
prescription for Cetirizine (an antihistamine) and an albuterol nebulizer treatment
for shortness of breath, in addition to further lab work and spirometry testing.6 An
August 2014 chest x-ray produced normal results. No pulmonary infiltrates were
observed, though granulomas remained. Plaintiff then had a spirometry test in
August 2014; McKinney contends that the spirometry test did not produce results
because plaintiff talked through the attempted procedure. Plaintiff, for his part
claims he was simply responding to the nurse. Plaintiff continued to report
shortness of breath and blood in his sputum in late August 2014; upon examination
a nurse observed no signs of respiratory distress.
ii.

Treatment after Transfer to PCC

4

Records describe the condition as “microtic hypocromia.” Microcytic means that red blood cells are abnormally
small; red blood cells that are hypochromic are pale. See https://ghr.nlm.nih.gov/condition/iron-refractory-irondeficiency-anemia#synonyms (last visited July 31, 2017).
5
Sarcoidosis “is a disease that can affect any organ or system in the body. People with sarcoidosis develop
granulomas (small abnormal clumps of tissue) in certain parts of the body”; the lungs are the “most commonly
affected
part
of
the
body
in
people
who
have
sarcoidosis.”
https://familydoctor.org/condition/sarcoidosis/?adfree=true (last visited July 31, 2017). Sarcoidosis may cause a
cough or chest pain. Id.
6
Spirometry is “a common office test used to assess how well your lungs work by measuring how much air you
exhale, how much you exhale and how quickly you exhale. Spirometry is used to diagnose asthma, chronic
obstructive
pulmonary
disease
(COPD)
and
other
conditions
that
affect
breathing.”
http://www.mayoclinic.org/tests-procedures/spirometry/basics/definition/PRC-20012673?p=1 (last visited July 31,
2017).

3

Plaintiff reported respiratory symptoms to nurses in November 2014 and
December 2014. Specifically, he complained of burning in his chest, congestion
when coughing up dark red sputum, and shortness of breath. The nurse
administered a nebulizer treatment for plaintiff’s wheezing in November 2014.
Plaintiff returned in late December 2014 and a nurse provided a nebulizer treatment
due to diminished sounds in one lung. Plaintiff also produced a sputum sample for
testing in December 2014.
In January and February 2015 plaintiff persisted in reporting chest pain,
burning, and numbness on multiple occasions. McKinney evaluated plaintiff’s
respiratory conditions on February 4, 2015. Noting plaintiff’s history of negative
evaluations and lack of symptomology, McKinney ordered a spirometry test. Plaintiff
reported doing pushups and other exercises three to four times each week. MDOC
medical personnel conducted the aforementioned spirometry exams on February 20
and 23, 2015. Plaintiff “reported he did not have enough air to do the test,” and
“did not follow directions well.” [Doc. #43-1 at 17].
McKinney saw plaintiff again on March 11, 2015. During that visit plaintiff
reiterated that his respiratory symptoms originated from an influenza vaccination.
Medical records indicate that plaintiff reported less coughing.7 Plaintiff further
averred that his symptoms generally included fatigue, weakness, chest pain,
drainage of pink to red colored sputum, and shortness of breath. McKinney
observed (1) good breath sounds, (2) no cough, (3) a normal diagnostic history
including chest x-rays, labs, and an AFB smear, and (4) no indication of disease.
McKinney also ordered additional lab work.

7

Plaintiff disputes this note. [Doc. #55 at 8].

4

Plaintiff’s respiratory symptoms were again reviewed by a nurse in April
2015, when he complained of shortness of breath. The nurse noted no shortness of
breath, cough, or distress; plaintiff had 99 percent oxygen saturation level. Plaintiff
gave a nurse a sample of his bloody sputum on May 18, 2015, which was preserved
and then “showed” to McKinney in the morning. [Doc. #43-3 at 41]. The nurse also
examined plaintiff’s respiratory status on that date, and found that plaintiff had
“easy and regular respirations,” clear lungs, and oxygen saturation at 98 percent.
[Doc. #43-1 at 20]. On May 21, 2015, plaintiff returned to a nurse to inquire about
the testing of his sputum sample. He was informed at that time that the sample
was “inconsistent with any chronic illness.” [Doc. #43-3 at 41].
On August 26, 2015, plaintiff reported “subtle fatigue and a burning
sensation in his chest and abdomen.” [Doc. #43-1 at 24]. The parties disagree as
to plaintiff’s last episode of bloody sputum. McKinney noted that plaintiff had good
breath sounds.
In an appointment with McKinney on October 5, 2015, plaintiff’s lungs
demonstrated good air movement and clarity. Spirometry testing showed normal
results. Plaintiff’s declaration reflects visits to complain of bloody sputum and
provide further samples in October and November 2016.
Treatment for Podiatry Complaints
i.

Pre-Transfer Treatment
Plaintiff saw a physician at Truman Medical Center in 2006, while

incarcerated in the Jackson County Jail. He does not provide records of this visit but
states that a podiatrist instructed him to wear “soft sole orthopedic shoes.” [Doc.

5

#54 at 3].8 An MDOC doctor noted that plaintiff had “significant bunion
deformit[ies]” on both feet in January 2012; the physician did not observe any
tenderness or tissue breakdown. [Doc. #43-2 at 13]. Notes indicate that plaintiff
had not been approved for shoes in the past, but that he had bunion splints.
Records also indicate the potential for “amputation of foot deformity” as part of a
treatment plan. [Doc. #57 at 1].
Plaintiff filed numerous treatment requests for bunion-related pain from April
2012, to January 2013. Notes from an MDOC physician in May 2012 state that
plaintiff had “difficulty getting wider shoes from custody to accommodate his bunion
deformity,” and that his bunions were “impressive.” [Doc. #57 at 3]. Because
plaintiff

was

in

administrative

segregation,

the

physician

stated

that

accommodation was “a moot point.” Id. During a November 11, 2012, appointment
an MDOC physician recommended that plaintiff avoid running, conduct x-rays of
both feet, and use bilateral bunion splints. And the November 12, 2012, x-ray of
plaintiff’s right foot revealed “subtle bony sclerosis” in the first metatarsophalangeal
articulations; the impression was “hallux valgus with subtle periarticular soft tissue
swelling”

and

mild

degenerative

changes

of

the

first

metatarsophalangeal

articulation. [Doc. #43-2 at 33–34].
In multiple visits in February 2013, doctors emphasized the prominence of
plaintiff’s bunions. Records from a February 4, 2013, doctor encounter state that
8

Defendants argue that plaintiff cannot cite to this 2006 record because it is “inadmissible
hearsay” under Federal Rule of Evidence 801. [Doc. #60 at 8]. Under Federal Rule of Civil
Procedure 56(e), affidavits may be considered by a court deciding a motion for summary
judgment. Fed. R. Civ. P. 56(e). But, those affidavits should “set forth such facts as would
be admissible in evidence.” Id. And “[w]hen 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-Systems,
Inc., 425 F.3d 1109, 1111 (8th Cir. 2005). Accordingly, the 2006 podiatrist
recommendation is inadmissible, and the Court will not consider the evidence in its decision.

6

“the bunion deformity is not viewed as an indication for special shoes, but [his] feet
have impressive degree of bunion.” [Doc. #57 at 7]. The shoe committee
determined that medical shoes should be prescribed upon plaintiff’s release to the
general population. He instead received bunion splints in April 2013. Plaintiff then
requested surgery for his foot issues in September 2013, during a nursing
encounter.
Plaintiff received his medical shoes in October 2013. And he had an
evaluation of his feet in May 2014; that visit resulted in diagnoses of bunions and
mild degenerative joint disease.
ii.

Treatment after Transfer to PCC
In November 2014, plaintiff submitted a request for new medical shoes. He

did not receive them. McKinney examined plaintiff’s feet in January 2015. McKinney
noted a normal gait, no limping, obvious bilateral flat feet with pronation, and
bilateral bunions. But he did not observe any “abrasions or changes to [p]laintiff’s
feet which would indicate that [plaintiff’s] shower shoes were rubbing.” [Doc. #43
at 11]. McKinney recommended that plaintiff use arch support once released from
administrative segregation. He also recommended wider shoes to accommodate
plaintiff’s bunions. He did not believe that medical shoes were merited.
On June 10, 2015, plaintiff saw McKinney and requested surgery for his
bunions. McKinney did not observe redness, soft tissue swelling, or open areas; he
had superficial callouses on his right foot, as well as a “fluid gait with no limp.”
[Doc. #43-1 at 21]. Plaintiff stepped down from the examination table without
discomfort. McKinney determined that surgery was not medically indicated, and
that shoes of the appropriate width would be the prudent treatment.

7

On November 23, 2015, plaintiff met with McKinney regarding his bunions.
McKinney noted that plaintiff was currently in administrative segregation and that
he “still wants surgery.” [Doc. #43-3 at 69].

McKinney noted plaintiff’s smooth

step off exam table. He determined that “surgery is not currently medically
necessary.” Id.
Treatment for Knee Instability and Pain
i.

Pre-Transfer Treatment
In July and August 2012, nurses evaluated plaintiff’s knee pain. Plaintiff

requested a knee brace during those visits. In particular he “reported he fell
without a brace for his right leg.” [Doc. #43-1 at 4]. However, medical personnel
did not observe swelling or popping sounds, and plaintiff exhibited a full range of
motion. Plaintiff and McKinney disagree about whether plaintiff had been approved
for surgery at that time. Plaintiff did not report to appointments regarding a
potential operation.

The parties

dispute

whether plaintiff

knew

about

the

appointments and intentionally missed them.
In October and November 2012 plaintiff again complained of knee pain and
requested surgery. A nurse evaluated plaintiff’s knee on November 15, 2012. She
found that he had full range of motion in his knee. And he received a similar
referral to a physician for his knee pain in November 2012, but failed to attend the
appointment; plaintiff states that he was not notified of the appointment.
In September and October of 2013, plaintiff continued to report knee pain
and a need for surgery on his right knee to nurses. On October 28, 2013, a
physician noted plaintiff had “a good gait with ambulation,” but that he sat
“gingerly” and was “careful about bending his knee.” [Doc. #43-2 at 48]. Although

8

the MDOC physician did not observe obvious swelling or gross abnormalities,
plaintiff demonstrated tenderness and slight crepitus with palpation. The physician
recommended Meloxicam and a knee sleeve for the left knee pain and instability.
Plaintiff received a knee sleeve in December 2013.
A nurse evaluated plaintiff in January 2014 for bilateral knee pain, knee
“popping,” as well as request for a bottom bunk. [Doc. #43-1 at 8]. The nurse’s
review indicated that he did not have any deformities, swelling, or discoloration,
although he wore a knee sleeve.
An MDOC physician examined plaintiff’s knees in May 2014, pursuant to
plaintiff’s bottom bunk lay-in request. An exam of plaintiff’s knees revealed
“tenderness along the medial and lateral joint line of the right knee,” and “trace
swelling and some tenderness in the right ankle,” but no tears. [Doc. #42 at 4]. Xrays of plaintiff’s right knee in May 2014 showed no abnormalities. Later that
month, an MDOC physician diagnosed chronic knee and ankle strains; he prescribed
Indomethacin (Indocin), analgesic balm, continued use of a right knee sleeve, and
the issuance of a right ankle sleeve. The physician recommended steroid injections
and imaging of the right ankle if plaintiff’s knee pain, ankle instability, and sciatica
did not improve. Subsequent x-rays of plaintiff’s ankle showed no abnormalities and
plaintiff received a prescription for arch supports.
In August 2014 a nurse observed that plaintiff had a mild limp, slightly more
swelling of the right knee, and wincing on palpation of the right knee. Plaintiff
requested a knee support on September 30, 2014; he told a nurse that MDOC
officials held it in impound.
ii.

Treatment after Transfer to PCC

9

McKinney evaluated plaintiff’s knee pain (among other complaints) on April
12, 2015. Plaintiff told McKinney that he suffered right knee pain while jogging in
place. McKinney prescribed Indocin and continued plaintiff’s Pamelor prescription to
treat plaintiff’s general joint pain. In June 2015, a nurse referred plaintiff to
McKinney for “slight swelling below” plaintiff’s knee; plaintiff continued to request a
knee sleeve at that time. [Doc. #43-3 at 52].
McKinney evaluated plaintiff on July 6, 2015. McKinney determined that
plaintiff did not require a neoprene sleeve; in particular he noted plaintiff’s prior
normal x-ray. He did observe increased movement in plaintiff’s knees, which
demonstrated some instability; but he also stated that plaintiff had no warmth,
diffusion, palpable defect or any other abnormality in his knees. Moreover, plaintiff
did not limp and easily climbed on and off the exam table without discomfort.
Therefore, McKinney prescribed quad and hamstring exercises.
Plaintiff reported knee pain to a nurse again several weeks later. He
requested a knee sleeve and reported swelling while doing jumping jacks. On
August 26, 2015, plaintiff also reported right knee pain to McKinney. Plaintiff told
McKinney that he had done pushups, sit-ups and calisthenics, until custody
removed his tennis shoes. McKinney also noted plaintiff’s fluid gate and ability to
climb on and off the exam table. On September 19, 2014, plaintiff complained of
bilateral knee pain during a nurse encounter.
McKinney examined plaintiff on October 9, 2015, for knee pain. Plaintiff
expressed his desire to play basketball. During the appointment, McKinney noted a
fluid gait and normal heel strike and stride. Plaintiff told McKinney that he

10

experienced pain when walking on his toes. McKinney noted no abnormalities and
recommended quad and hamstring exercises.
On November 23, 2015, McKinney conducted an examination of plaintiff’s
knees. He assessed that plaintiff had chronic right knee pain, but found no swelling
or erythema. McKinney prescribed Naproxen.
Plaintiff reported pain in his left hip, right knee, and bunions on May 2, 2016.
Plaintiff “refused to squat for fear of knee pain,” though the right knee appeared
normal. [Doc. #43-1 at 29]. McKinney gave plaintiff a prescription for ibuprofen.
Plaintiff continued to report arthritic pain in his right hip and right knee in June
2016.
Treatment for Chronic Pain: Neuralgia & Sciatica
i.

Pre-Transfer Treatment
In

January

2012,

plaintiff

received

Gabapentin

(Neurontin)

(an

anticonvulsant), Carbamazepine (Tegretol) (an anticonvulsant), and ibuprofen to
manage his pain.
On April 6, 2012, plaintiff’s prescription for Gabapentin was discontinued
because it was suspected that he was “diverting” it to another inmate.

The

prescription was reinstated on October 12, 2012, after plaintiff did not receive a
conduct violation for diverting.

Until November 2013, MDOC physicians renewed

the prescriptions because plaintiff never actually received a custody violation. While
his Gabapentin prescription was in flux, doctors prescribed Trileptal and Tegretol.
The parties dispute plaintiff’s discomfort after the discontinuation of his Gabapentin
prescription.

11

In December 2013, plaintiff complained that Trileptal was not effective.
Records reflect that plaintiff “was unfortunately caught diverting [G]abapentin and
that med had to be stopped.” [Doc. #43-2 at 57]. Records from that visit indicate
that plaintiff “tolerat[ed] Trileptal” and that the dosage would be increased. [Doc.
#43-2 at 57].
Plaintiff disputes that he told a physician in April 2014 that his trigeminal
neuralgia responded to Naproxen or Trileptal.9 In August 2014, plaintiff rated his
trigeminal neuralgia pain as 5 out of 10; the physician disagreed, noting that
plaintiff engaged with his activities of daily living, lifted weights, played sports, and
worked. The MDOC physician determined that plaintiff’s condition was stable.
In August 2014 MDOC permanently terminated plaintiff’s prescription for
Gabopentin, “due to [a] state-wide removal” of the drug. [Doc. #54 at 10; #43-1
at 95]. At that time plaintiff expressed a great deal of concern because it was “the
only drug that has ever worked” in treating his trigeminal neuralgia. Id. His
weaning dose expired in September 2014, but was replaced by another medicationNortriptyline.
ii. Treatment after Transfer to PCC
On November 18, 2014, plaintiff reported to the chronic pain care clinic as a
new transfer to PCC, and received an evaluation from McKinney. Medical records
indicate that plaintiff was “previously on Neurontin” but “was caught diverting.”
[Doc. #43-2 at 105]. He therefore took Nortriptyline and Indocin. Records also
show that plaintiff admitted that Nortriptyline had some pain mitigating effect.
McKinney noted that plaintiff had no current symptoms of trigeminal neuralgia.
9

Trigeminal Neuralgia “is a type of chronic pain that affects your face,” causing “extreme, sudden burning or
shock-like pain.” https://medlineplus.gov/trigeminalneuralgia.html (last visited July 31, 2017).

12

Plaintiff disputes this assertion; according to plaintiff, he informed McKinney of the
frequency

and

severity

of

his

trigeminal

neuralgia

pain,

as

well

as

the

ineffectiveness of Nortriptyline. During that visit, McKinney observed that plaintiff
had (1) a normal gait, (2) the ability walk on his toes and heels, (3) full lateral
bending, twisting, and forward flexion of the spine to ninety degrees, (4) full range
of motions in his legs, and (5) a negative bilateral test for possible lower back disc
herniation.

McKinney

continued

plaintiff’s

prescription for

Nortriptyline, and

considered plaintiff active and stable.
On April 21, 2015, plaintiff consulted with McKinney in the chronic pain clinic.
McKinney noted that plaintiff remained physically active, and only reported right
knee pain with jogging. The parties dispute whether plaintiff reported neuralgia or
sciatic pain. McKinney continued plaintiff’s Nortriptyline prescription and started
Indocin for joint pain; he also issued a lay-in for extended cuffs.
Plaintiff states that he continued to complain of the ineffectiveness of his pain
medication, Nortriptyline, in October 2015. McKinney’s notes reflect that during a
chronic pain clinic visit on October 13, 2015, plaintiff was “very vague” about the
nature of his current symptoms and did not appear in any distress. [Doc. #43-3 at
36–37]. Further, plaintiff “did not report any symptoms or signs of trigeminal
neuralgia.” [Doc. # 43-1 at 26]. McKinney determined that plaintiff should continue
his use of Nortriptyline, which plaintiff “indicate[d] remain[ed] helpful.” [Doc. #433 at 37].
Plaintiff complained of left clavicle pain to McKinney and other MDOC medical
personnel in January and February 2016. McKinney did not observe visible physical
issues, but he ordered a chest x-ray. February 2016 x-ray notes indicate “mild

13

thoracic spondylosis and rotoscoliosis.” [Doc. #43-3 at 76]. McKinney remarked
that the x-ray results were normal.
In March 2016, plaintiff continued to tell nurses about the ineffectiveness of
his Nortriptyline prescription, and his persistent collarbone, neck, and shoulder
pain, as well as his hip and knee pain. He also told McKinney on March 10, 2016,
that he was doing some weightlifting and other exercises. Plaintiff did not report
trigeminal neuralgia or sciatica symptoms. Plaintiff alleges that these notes only
reflect McKinney ignoring his pain. Plaintiff failed to show up for an April 2016
appointment to address his collarbone, neck, and knee pain.
On May 2, 2016, plaintiff described how activity led to left hip, right knee,
and foot pain. McKinney performed an examination; he noted a slow but fluid gait,
with no limp, and no evidence of discomfort getting on and off of the examination
table. Plaintiff refused to walk on his toes or squat, for fear of foot and knee pain.
Generally, McKinney found no abnormal results, and prescribed ibuprofen.
McKinney followed up on plaintiff’s chronic pain on August 3, 2016. McKinney
found plaintiff stable and continued his prescription for Nortriptyline. Plaintiff and
McKinney disagree as to the degree of pain plaintiff reported during that visit. A
nurse saw plaintiff about persistent pain in his neck and shoulders on August 17,
2016. The nurse did not observe any swelling or bruising.
McKinney again evaluated plaintiff on September 2, 2016, for recurrent
soreness in the areas of the left clavicle and sternocleimastoid muscle area. He
noted (1) normal range of motion, (2) no neurological signs or symptoms, (3) fluid
gate, (4) full range of motion, (4) no mass in neck or defect in muscle, and (5)

14

soreness to deep palpation in level clavicle and upper check areas. McKinney
ordered lab work and prescribed analgesic balm.
Treatment for Carpal Tunnel and Wrist Paralysis
i.

Pre-Transfer Treatment
In January 2012 MDOC physicians issued plaintiff a wrist brace. During a July

2012 visit, plaintiff requested a wrist brace; he claimed that custody had
confiscated his brace when he went into administrative segregation. The examining
nurse noted that plaintiff had “had a full range of motion in his wrist and no
swelling.” [Doc. #43-1 at 4]. Plaintiff later requested an ace wrap for his wrist in
September 2012; the nurse found no abnormalities upon assessing plaintiff’s wrist.
Plaintiff received another examination in January 2014; a doctor prescribed
Naproxen and provided him with a splint for the affected right wrist. The physician
noted an active range of motion and a negative phalen sign (for assessing carpel
tunnel syndrome).
In September 2014, plaintiff continued to bring up his wrist pain. Records
reflect that plaintiff’s wrist was swollen at the base of the thumb; he had been in an
altercation several weeks prior to the visit. The nurse issued Tylenol and
recommended rest. A nurse then saw plaintiff again for wrist pain and issued
Nortriptyline (Pamelor) (a “tricyclic antidepressant effective in the management of
chronic pain”). [Doc. #43 at 9].
ii.

Treatment after Transfer to PCC
The parties dispute whether plaintiff complained about wrist pain during visits

in January and April 2015. Generally, plaintiff states that his complaints of wrist
pain were ignored. The parties do agree that plaintiff received an examination by

15

McKinney for wrist pain in August 2015. Plaintiff told McKinney he experienced
sharp pain when picking up objects. McKinney reviewed a 2010 x-ray, which was an
“essentially neg[ative] exam.” [Doc. #43-3 at 64]. McKinney found that plaintiff’s
symptoms were not consistent with carpal tunnel syndrome. He accordingly
determined that a wrist brace was not medically necessary. McKinney also
specifically noted that he was “unable to find any lay-in for a wrist brace.” [Doc.
#43-3 at 65].
Plaintiff had an altercation with his cellmate in November 2015, and
McKinney evaluated plaintiff’s condition in December 2015. Plaintiff reported
discomfort in his wrist. The parties dispute whether plaintiff then told McKinney that
he experienced discomfort while doing 100 pushups, two to three times each week.
McKinney conducted an examination, which showed normal results, and indicated
that no further treatment would be required.
II.

Procedural Background
The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, requires that

prison inmates exhaust administrative remedies prior to filing an action under 42
U.S.C. § 1983. 42 U.S.C. § 1997(e)(a). Absent exhaustion, a court may not
consider a prisoner’s claims. Jones v. Bock, 549 U.S. 199, 211 (2007). This
exhaustion requirement “applies to all prisoners seeking redress for prison
circumstances or occurrences.” See Porter v. Nussle, 534 U.S. 516, 520 (2002).
The procedure of the correctional facility defines the boundaries of exhaustion, not
the PLRA. Burns v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014); see Woodford v.
Ngo, 548 U.S. 81, 90 (2006).

16

Defendants assert that plaintiff has not exhausted any of his claims. They
acknowledge that plaintiff filed grievances and informal resolution requests, but
contend that plaintiff failed to exhaust any of those complaints in accordance with
the Missouri Department of Corrections Grievance Procedure. Plaintiff counters that
he did exhaust his claims; he further contends that Corizon procedurally defaulted
or “abandoned” several claims, manipulated the grievance process, and retaliated
against him by stealing documents necessary for exhaustion of his claims.10 [Doc.
#54 at 18–20].

Neither party provides any documentation of the administrative

claims. Moreover, neither party provides the correctional facility’s grievance
procedure.
Failure to exhaust is an affirmative defense. Nerness v. Johnson, 401 F.3d
874, 876 (8th Cir. 2005). Accordingly, “[i]nmates are not required to specially
plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199,
216 (2007). Rather, defendants bear the burden of raising and proving the absence
of exhaustion. Porter v. Sturm, 781 F.3d 448, 451 (8th Cir. 2015); Nerness, 401
F.3d at 876. Here, defendants have not provided sufficient proof to support their
failure to exhaust defense.

Thus, the defendants are not entitled to summary

judgment based on exhaustion.
III.

Legal Standard

Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment shall be entered if the moving party 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). In ruling on a motion for summary judgment, the
10

Plaintiff specifically cites a portion of the policy that procedural requirements are negated
when a response time is exceeded by the correctional facility. [Doc. #54 at 18].

17

court is required to view the facts in the light most favorable to the non-moving
party, giving that party the benefit of all reasonable inferences to be drawn from
the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987).
The moving party bears the burden of showing both the absence of a genuine issue
of material fact and its entitlement to judgment as a matter of law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). If the moving party meets its
burden, the non-moving party may not rest on the allegations of its pleadings, but
must set forth specific facts, by affidavit or other evidence, showing that a genuine
issue of material fact exists. Gannon Int’l, Ltd. v. Blocker, 684 F.3d 785, 792 (8th
Cir. 2012); Gibson v. Am. Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012).
“Where the record taken as a whole could not lead a rational trier of fact to find for
the nonmoving party, there is no genuine issue for trial.” Ricci v. DeStefano, 557
U.S. 557, 586 (2009) (quoting Matsushita, 475 U.S. at 587).
IV.

Discussion

a. Deliberate Indifference
Deliberate indifference to a serious medical need constitutes cruel and
unusual punishment, in violation of the Eighth Amendment. Estelle v. Gamble, 429
U.S. 97, 102–03 (8th Cir. 1976). Deliberate indifference involves both an objective
and a subjective analysis. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997).
The objective component requires a plaintiff to demonstrate an objectively serious
medical need. Id. “A medical need is objectively serious if it either has been
‘diagnosed by a physician as requiring treatment’ or is ‘so obvious that even a

18

layperson would easily recognize the necessity for a doctor’s attention.’” Scott v.
Benson, 742 F.3d 335, 340 (8th Cir. 2014) (quoting Coleman, 114 F.3d at 784).
There are two components to the subjective analysis: (1) knowledge of the
substantial risk of harm, and (2) deliberate disregard of that risk. Letterman v.
Does, 789 F.3d 856, 862 (8th Cir. 2015). “A party need not necessarily show that
the actor actually knew of the substantial risk of harm to an inmate; the district
court can infer knowledge if the risk was obvious.” Id. As to the second piece of the
subjective analysis –evaluating whether an official deliberately disregarded a risk–
courts “consider his actions in light of the information he possessed at the time, the
practical limitations of his position and alternative courses of action that would have
been apparent to an official in that position.” Id. (internal quotation marks omitted)
(quoting Gregoire v. Class, 236 F.3d 413, 419 (8th Cir. 2000)). This showing
requires a mental state “akin to criminal recklessness.”

Scott, 742 F.3d at 340

(quoting Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006)). Thus, the prisoner
“must show more than negligence, more even than gross negligence.” Popoalii v.
Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008) (quoting Estate of Rosenberg
v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)).
Evaluating whether a prison’s medical staff acted with deliberate indifference
involves a factually-intensive inquiry. Meuir v. Greene Cty. Jail Emps., 487 F.3d
1115, 1118 (8th Cir. 2007) (citing Coleman, 114 F.3d at 784; Jensen v. Clarke, 94
F.3d 1191, 1197–98 (8th Cir. 1996)). A plaintiff-inmate “must clear a substantial
evidentiary

threshold

to

show

that

the

prison’s

medical

staff

deliberately

disregarded the inmate’s needs by administering an inadequate treatment.” Id.
Inadequate Treatment of Medical Conditions

19

Defendants argue that there is no genuine issue of material fact as to any of
plaintiff’s claims of constitutionally inadequate medical care. In support of the
motion defendants have submitted hundreds of pages of plaintiff’s medical records,
which they claim show that they “exhaustively evaluated” plaintiff’s various health
complaints. [Docs. #43-2, 43-3]. They also offer the declaration of McKinney to
demonstrate the adequacy of his care. Defendants further contend that Corizon
“adequately staffed the MDOC facilities with qualified personnel.” [Doc. #41 at 2].
They aver that in the two years since plaintiff arrived at PCC Corizon staff
“evaluated plaintiff multiple times a month.” [Doc. #42 at 2]. Accordingly,
defendants argue that there is no genuine issue of material fact that Corizon did not
implement policies resulting in deliberate indifference to plaintiff’s serious medical
needs.
Plaintiff has responded with his own declaration, medical records, and the
affidavits11 of two other inmates.12 He disputes many of the facts in McKinney’s
declaration. In particular, he argues that on many occasions, McKinney ignored his
complaints of pain. He also argues that McKinney created a façade of adequate
treatment by conducting rudimentary physical exams.

11

Defendants object to the affidavits provided. They argue that they are not admissible
under the Federal Rules of Evidence due to (1) lack of personal knowledge and (2) lack of
medical expertise. Defendants are correct that evidence offered under Federal Rule of Civil
Procedure 56(c) must contain admissible content, even if in its current form it would not be
admissible at trial. Neff v. World Publ’g Co., 349 F.2d 235 (8th Cir. 1965).
12
The Court recognizes that plaintiff is pro se. However, that does not mean that he will be
exempt from providing “specific factual support for his claims to avoid summary judgment.”
Beck v. Skon, 253 F.3d 330, 333 (8th Cir. 2001).

20

Defendants do not dispute that each of plaintiff’s physical conditions
constitutes a serious medical need. Accordingly, the Court will move to the question
of whether defendants acted with deliberate indifference to those medical needs.13
i.

Respiratory Symptoms

Defendants argue that McKinney did not act with deliberate indifference
because he adequately responded to plaintiff’s respiratory symptoms. First they
argue that McKinney examined plaintiff on twenty-five separate occasions. Second,
they assert that McKinney relied on his analysis of diagnostic tests and did not
subjectively observe a serious medical need. Third, defendants contend that choices
regarding diagnostic techniques constitute “a classic example of a matter for
medical judgment.” [Doc. #60 at 10 (quoting Estelle v. Gamble, 429 U.S. 97, 107
(1976)).] Fourth, defendants dispute that plaintiff’s respiratory symptoms have
progressed as a consequence of McKinney’s treatment; in fact, they argue that “the
medical staff at Potosi have [not] noted any exacerbation of [p]laintiff’s symptoms,”
rather, “he has improved.” Id. at 9. Fifth, defendants argue that plaintiff interfered
with attempted diagnostic testing as he “refused to follow instructions for the
further work up for spirometry.” Id. at 10. Thus, defendants contest both that there
is a genuine issue of material fact as to (1) McKinney’s deliberate indifference, and

13

Defendants also argue that plaintiff has included arguments in his summary judgment
response, which were not included in his amended complaint. Namely, they claim that
plaintiff adds new allegations regarding McKinney’s failure to treat his bunions and
respiratory issues, as well as Corizon’s statewide policies on Gabapentin prescriptions and
bunion surgeries. [Doc. #60 at 2–3]. A review of the record demonstrates that plaintiff was
granted an extension to file an amended complaint until August 20, 2016, and he did so on
August 15, 2016. [Doc. #13]. That amended complaint alleges deliberate indifference to
plaintiff’s respiratory issues, bunions and need for foot surgery, and Corizon’s denial of
effective medication. Notably, defendants answered this amended complaint on December
20, 2016. [Doc. #26]. Accordingly, the Court disagrees with defendants’ contention.

21

(2) a causal connection between the purported constitutional violation and plaintiff’s
injuries.
Plaintiff claims that there is a genuine issue of material fact regarding
whether McKinney was deliberately indifferent to his serious respiratory issues. He
contends that McKinney failed to adequately run diagnostic tests or provide
treatment for the appearance of blood in his sputum, which was purportedly
accompanied by chest pain, shortness of breath, and a burning sensation in his
lungs, among other symptoms. He argues that more “progressive” or in-depth
testing should have been ordered. [Doc. #56 at 6–7]. Plaintiff argues that this is
especially so because he received an x-ray in 2014 which “suggested Sarcoidosis or
Pneumonitis.” Id. at 6. He adds that cost-saving motivated the failure to conduct
more advanced testing, such as CAT scans or MRIs. With regard to causation,
plaintiff argues that his condition has worsened as a result of this deliberate
indifference. In particular he explains that exertion has become more difficult and
that he has experienced secondary complications including neck, collarbone, and
shoulder pain.
At this stage the Court will “take as true those facts asserted by plaintiff that
are properly supported in the record.” Tlamka v. Serrell, 244 F.3d 628, 632 (8th
Cir. 2001); see Pool v. Sebastian Cty., Ark., 418 F.3d 934, 944 (8th Cir. 2005).
Prior to his November 2014 transfer plaintiff received extensive respiratory testing
– physicians ordered chest x-rays in December 2013, March 2014, and August
2014. They also took sinus x-rays in March 2014.

Tests of plaintiff’s sputum, as

well as a tuberculosis test were conducted. Medical personnel issued several
prescriptions including nebulization treatments, Cipro, Claritin, a saline spray, and

22

Cetirizine. Further, a physician noted the possibility of that plaintiff might be
affected

by

conditions,

including

microtic

hypochromia,

sarcoids,

and

hypersensitivity pneumonitis. Plaintiff’s chest x-rays revealed the presence of
granulomas. Wheezing and diminished breath sounds were observed on exam.
Once McKinney took over plaintiff’s treatment he reviewed plaintiff’s prior
diagnostic testing, ordered spirometry testing, and conducted several physical
exams. During physical exams McKinney noted no symptomology – including (1) no
signs of respiratory distress, (2) no coughing, (3) clear lungs, (4) clear breathing
sounds, (5) no shortness of breath, (6) good air movement, and (7) no indications
of disease. McKinney also reviewed plaintiff’s prior x-rays and lab results. McKinney
therefore exercised his medical judgment and concluded that no further diagnostic
testing was required beyond spirometry tests and physical exams. Cf. Croft v.
Hampton, 286 F. App’x 955, at 956–57 (8th Cir. 2008) (reasoning that a physician
may not have actually exercised his independent judgment where he did not review
x-rays or examine the inmate). And notably, it is a well-established tenet that a
“medical decision not to order an x-ray, or like measures, does not represent cruel
and unusual punishment.” See Estelle v. Gamble, 429 U.S. 97, 105–06 (1976).
Moreover, “an inmate’s mere disagreement with the course of medical treatment
does not give rise to a constitutional claim.” Martinez v. Turner, 977 F.2d 421, 423
(8th Cir. 1992); see, e.g., Sherrer v. Stephens, 50 F.3d 496, 497 (8th Cir. 1994)
(noting that a physician’s conservative treatment approach did not rise to the level
of deliberate indifference).
Any claim that plaintiff’s medical complaints were ignored by the defendants
is belied by the voluminous medical record. Plaintiff has not put forth any evidence

23

showing that his respiratory complications are not being treated properly. See
Jimmerson v. Missouri, 2010 WL 924377 (E.D. Mo. Mar. 11, 2010).

He has not

shown an intentional denial or delay in access to medical care. Vaughn v. Lacey, 49
F.3d 1344, 1346 (8th Cir. 1995), nor has he substantiated the allegation that his
condition worsened as a result of the defendants’ actions or inaction. The Court
finds that there is no material factual dispute with respect to plaintiff’s claim that
McKinney was deliberately indifferent to his respiratory ailments.14
ii.

Podiatry Issues

Defendants argue that McKinney did not act with deliberate indifference in
treating plaintiff’s flat feet and bunions.15 Defendants argue that at the time plaintiff
requested medical shoes, he was in administrative segregation, and therefore was
not “allowed such shoes.” [Doc. #60 at 9]. Thus, they claim, McKinney’s medical
assessment did not constitute an outright denial for medical shoes, but rather a
decision to re-evaluate plaintiff once he joined the general population. And
moreover, defendants argue, “there is no evidence that [p]laintiff is a surgical
candidate” for a bunionectomy. Id. at 8.16
14

Because plaintiff has failed to demonstrate a genuine issue of material fact on the issue of
deliberate indifference, the Court need not address issues of causation.
15
The Court notes that district courts in the Eighth Circuit have found that bunions are a
non-serious medical condition. See Gard v. Dooley, No. 4:14-CV-04023-LLP, 2016 WL
5376236, at *31 (D. S.D. Mar. 4, 2016).
16
Defendants also challenge plaintiff’s use of affidavits from other inmates. Under Federal
Rule of Civil Procedure 56, “[a]n affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence,
and show that the affiant or declarant is competent to testify on the matters stated.” Fed.
R. Civ. P. 56(c)(4). The affidavit of Ronald Earl Newton describes his experience – he states
he had three surgeries on his right foot for bunions. Although he is not qualified to assess
plaintiff’s bunion condition, an explanation of his experience comes from personal
knowledge and would be admissible. [Doc. #55-1]; see Jain v. CVS Pharmacy, Inc., 779
F.3d 753 (8th Cir. 2015) (reasoning that “[l]ay opinion testimony is admissible if the
witness has personal knowledge or perceptions based on industry experience.” (internal
quotation marks and citations omitted)). Accordingly, portions of Newton’s affidavit will be
admissible, and the Court will not consider those statements that require medical

24

Plaintiff alleges that McKinney put his safety at risk, as he refused to address
his flat feet and bunions with a bottom bunk lay-in, medical shoes, or surgery.17
Plaintiff cites earlier diagnoses and prescriptions by other physicians. In particular,
he notes that he held a prescription for medical shoes when he arrived at PCC.
Plaintiff complains that under the care of McKinney he did not receive any
treatment or referral for his painful bunions. He also offers the affidavits of other
inmates supporting the severity of his bunions, which opine that other inmates
received medical shoes or bunionectomy surgeries.
When an official denies a person treatment that has been ordered or
medication that has been prescribed, constitutional liability may follow. Foulks v.
Cole Cty., Mo., 991 F.2d 454, 457 (8th Cir. 1993). In this case, McKinney’s reason
for not issuing medical shoes or referring plaintiff for surgery was based on his
medical judgment. His evaluation of plaintiff—including consideration of plaintiff’s
activities of daily living and ease in his ability to ambulate without a limp or any
other signs of pain—led him to conclude that neither treatment was medically
indicated.. Cf. Hartsfield v. Colburn, 371 F.3d 454, 457 (8th Cir. 2004) (where
withholding of dental treatment was for nonmedical reasons). Moreover, it appears
that McKinney repeatedly considered plaintiff’s “asserted needs in good faith,” and
simply did not consider him to “meet the requisite criteria” for medical shoes or for
a bunionectomy. See Logan v. Clarke, 119 F.3d 647, 649–50 (8th Cir. 1997). He
instead determined that plaintiff simply needed wider shoes. McKinney exercised
qualifications. Similarly, Charles Harvey’s affidavit largely expounds on his personal
experience, McKinney’s reputation, and his observation of plaintiff’s pain when ambulating.
[Doc. #55-1 at 3–5]. Those portions of the affidavit are admissible even if attempts to
define plaintiff’s condition are not.
17
Plaintiff argues that expert testimony would establish that bunions are not simply a
“cosmetic” issue, but rather, “a disabling condition that should be treated.” [Doc. #56 at 3].

25

his independent medical judgment in determining that special shoes, surgery, and a
bottom-bunk lay-in were not required. Dulany v. Carnahan, 132 F.3d 1234, 1239
(8th Cir. 1997) (“prison doctors remain free to exercise their independent medical
judgment”); see, e.g., Brewer v. Blackwell, 836 F. Supp. 631, 644 (S.D. Iowa Oct.
26, 1993) (prison doctor was entitled to exercise his independent judgment and
disagree with the recommendation of a consulting physician); see, e.g., Prater v.
Dep’t of Corr., 11 F. App’x 668, 669 (8th Cir. 2001). And he did not deny or delay
treatment;

rather, he

examined

plaintiff’s

feet on

multiple

occasions

and

recommended use of arch supports. The affidavits plaintiff submits only show that
there were other inmates whose medical problems were addressed in a different
way.

Such evidence has no bearing on plaintiff’s deliberate indifference claim.
After considering the evidence submitted, the Court concludes that there is

no genuine issue of material fact with respect to the claim that McKinney was
deliberately indifferent to plaintiff’s podiatric needs.
iii.

Knee Instability and Pain

Defendants argue that McKinney extensively evaluated plaintiff’s knee
instability and pain, and therefore did not act with deliberate indifference to that
serious medical need. Defendants also argue that no medical personnel ever
diagnosed “severe knee instability.” [Doc. #60 at 6]. According to defendants,
“[e]ven if a prior physician ordered sleeves or wraps, this does not mean Dr.
McKinney acted with deliberate indifference when he elected for physical therapy.”
Id.
McKinney and Corizon medical staff regularly examined plaintiff’s knees.
They noted that any symptoms of swelling or crepitus were minor. They also did

26

not observe any popping or injuries to the knee in his x-rays. McKinney did not
observe any limping or difficulty getting on and off the exam table. Plaintiff
generally continued to engage in his activities of daily living as well as his exercise
routines. Accordingly, McKinney repeatedly considered plaintiff’s “asserted needs in
good faith,” and simply did not consider him to “meet the requisite criteria” for a
knee sleeve. See Logan v. Clarke, 119 F.3d 647, 649–50 (8th Cir. 1997).
Differences in opinion among physicians on treatment options do not substantiate a
constitutional claim. Vaugh v. Lacey, 49 F.3d 1344, 1346 (8th Cir. 1995). Notably,
disagreement with the type of care provided – here, physical therapy and pain
medication, rather than a knee sleeve or steroid injections – is not sufficient to
establish a deliberate indifference claim. Smith v. Marcantonio, 910 F.2d 500, 502
(8th Cir. 1990).
The Court finds that McKinney did not act with deliberate indifference with
regard to plaintiff’s knee pain and instability. McKinney is therefore entitled to
summary judgment on this issue.
iv.

Chronic Pain Treatment: Arthritic, Sciatic, and Joint Pain

Defendants claim that there is no genuine issue of material fact that
McKinney adequately treated plaintiff’s chronic pain – which arose from his arthritis,
sciatica, and trigeminal neuralgia. First they argue that since 2012, plaintiff was
enrolled in the chronic pain clinic. That clinic ensured regular evaluations and
treatment for plaintiff’s left leg sciatic and trigeminal neuralgia pain. Indeed, they
argue that plaintiff received twenty-five evaluations for his conditions, including
knee, wrist, shoulder, and back pain, from Dr. McKinney between November 2014
and October 2016. Second, defendants offer evidence of the numerous medications

27

prescribed to relieve plaintiff’s pain including, (1) Gabapentin (Neurontin), (2)
Carbamazepine (Tegretol), and (3) ibuprofen. Third, defendants argue that they
replaced plaintiff’s Gabapentin prescription with adequate substitutes; a substitute
was necessary because plaintiff repeatedly diverted the medication and due to
system-wide abuse of the drug. Fourth, they contend that all objective signs
indicated that plaintiff remained active and stable on substitute pain medications.
Plaintiff claims that McKinney deliberately deprived him of the only
medication that mitigated hip joint deterioration, arthritis, neuralgia, and sciatic
pain. He complains that Corizon selectively permitted prisoners to use Gabapentin,
despite an alleged system-wide ban on the prescription. Plaintiff adds that
McKinney was deliberately indifferent to his trigeminal neuralgia pain and persisted
in prescribing an ineffective medication (Nortriptyline), due to his “inexperience and
apathy.” [Doc. #56 at 5]. Plaintiff also argues that the frequency of visits does not
reflect care quality, but rather, his own “persistence.” Id. at 10.
The prescribing of an improper medication or withholding of pain medication
may be sufficient to avoid summary judgment on a deliberate indifference claim.
Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999); Majors v. Baldwin, 456
F. App’x 616, 617 (8th Cir. 2012). Thus, in Roberson, for example, the plaintiff had
“complaints of serious adverse reactions.” Id.; see also Lair v. Oglesby, 859 F.2d
605, 606 (8th Cir. 1988). In a similar case, the prisoner was refused any
prescription or over-the-counter pain medication to ameliorate his post-surgical
pain. Dadd v. Anoka Cty., 827 F.3d 749, 756 (8th Cir. 2016). Conversely, the
Eighth Circuit has stated that plaintiffs “cannot expect [painkillers] to eliminate all
pain – painkillers usually do not.” Logan v. Clarke, 119 F.3d 647, 650 (8th Cir.

28

1997). In some cases, painkillers may be properly avoided due to an inmate’s
history of drug abuse. Id. at 649–50.
Here, medical personnel attempted to respond to plaintiff’s complaints of
pain with various corrective actions – they switched medications and changed his
dosages. See, e.g., Jolly v. Knudsen, 205 F.3d 1094, 1097 (8th Cir. 2000).
Physicians were compelled to alter his prescription in connection with multiple
reports of diversion. Moreover, there were no objective, obvious indicia of pain.
Plaintiff’s physicals indicated proper functioning. And mere disagreement as to the
proper drug cannot serve as the basis for a claim of deliberate indifference. Phillips
v. Jaspar Cty. Jail, 437 F.3d 791, 795 (8th Cir. 2006); Sills v. Kelley, No. 2:08-CV00198- SWW/BD, 2009 WL 2208310, at *3 (E.D. Ark. July 20, 2009) (failure to
prescribe a particular medication does not rise to the level of a constitutional
violation).
The evidence establishes that McKinney did not act with deliberate
indifference with respect to plaintiff’s chronic pain.
v.

Carpal Tunnel and Paralysis

As a preliminary matter, defendants contend that “carpal tunnel is not wrist
paralysis,” and plaintiff never received a wrist paralysis diagnosis. [Doc. #60 at 6].
They point out that nursing staff evaluated plaintiff’s wrist pain, but found no signs
or symptoms of dysfunction. Lastly, defendants aver that even if plaintiff previously
received a wrist brace, McKinney’s decision not to do so does not equate to
deliberate indifference.
The evidence shows that McKinney examined plaintiff’s wrists on multiple
occasions. He also reviewed 2010 x-ray records, which revealed no abnormalities.

29

Moreover, McKinney noted that plaintiff’s fitness and daily living activities were not
consistent with a serious medical condition. Plaintiff puts forth no evidence that he
received a diagnosis for carpal tunnel syndrome or wrist paralysis. Therefore,
plaintiff has “not established that he had a sufficiently serious medical need for a
wrist brace.” Cottrell v. Uhde, No. C97-3086-MWB, 2000 WL 34032761, at *8 (N.D.
Iowa Feb. 8, 2000). McKinney is entitled to judgment as a matter of law on this
claim.
Claims Against Corizon
Plaintiff contends that Corizon is vicariously liable for any inadequate medical
treatment provided by McKinney. It is well-settled that “[a] supervisor is not
vicariously liable under 42 U.S.C. § 1983 for an employee’s unconstitutional
activity.” White v. Holmes, 21 F.3d 277, 280 (8th Cir. 1994); see, e.g., Martin v.
Corizon Corr. Med. Servs., No. 5:13-CV-00364 (KGB-JJV), 2014 WL 1779295 (E.D.
Ark. Mar. 7, 2014).

Thus, Corizon cannot be held liable based on a theory of

respondeat superior.
Plaintiff also argues that Corizon established a policy or procedure of “profits
over prisoners,” amounting to deliberate indifference to his serious medical needs.
[Doc. # 13 at 16–18]. He claims that this policy resulted in understaffing and hiring
of incompetent personnel. In support of these contentions, plaintiff offers that
McKinney is the only physician employed at PCC. He also contends that this policy
resulted in the deprivation of a proper pain medication and a bunionectomy.
Plaintiff adds that Corizon systematically manipulates and falsifies records to
undermine the prisoner grievance process and obstruct access to the courts.
Defendants contest each of these claims and point out that plaintiff does not

30

provide evidence “of what the correct level of staffing should be,” and “offers no
evidence of training or alleged inadequate training.” [Doc. #60 at 11].
Policy-based liability under 42 U.S.C. § 1983 is imposed when a plaintiff can
show “a policy, custom, or official action that inflicted an actionable injury.”
Johnson v. Hamilton, 452 F.3d 967, 973 (8th Cir. 2006). Even if there was only one
doctor at PCC, there is no evidence that that caused plaintiff to experience any
“lengthy delays” for treatment. See Cullor v. Baldwin, 830 F.3d 830, 838 (8th Cir.
2016). On the contrary, the record demonstrates that plaintiff received medical
treatment in a timely fashion and saw doctors and other medical personnel on a
regular basis. All of his medical complaints were expediently addressed.
Plaintiff’s contention that Corizon medical personnel are incompetent is no
more than an expression of his personal opinion. Plaintiff has failed to provide any
evidence that staffing issues adversely affected the medical care he needed. See
Cullor, 830 F.3d at 839; Butler v. Corizon Health, Inc., No. 4:16-CV-00590 (AGF),
2017 WL 2935662, at *7–8 (E.D. Mo. July 10, 2017).
Plaintiff also asserts that Corizon implemented a policy to obstruct access to
the courts. Plaintiff alleges that Corizon, in furtherance of the policy, falsified
records and worked with PCC officials to have documents stolen from his cell.
Again, plaintiff presents no evidence to support these allegations. In the absence of
such evidence, these allegations do not create a material factual dispute.
The Court concludes that Corizon is entitled to judgment as a matter of law.
***
For the reasons discussed above,

31

IT IS HEREBY ORDERED that the joint motion of the defendants for
summary judgment [Doc. #41] is granted.
IT IS FURTHER ORDERED that plaintiff’s motion for injunctive relief [Doc.
#13] is denied.
A judgment in accordance with this Memorandum and Order will be entered
separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 4th day of August, 2017.

32