Brookes v. Shank et al

Filing 64

REPORT AND RECOMMENDATIONS re 42 MOTION for Summary Judgment filed by Myron Shank. It is RECOMMENDED that Defendants' Motion be GRANTED. Objections to R&R due by 7/27/2015. Signed by Magistrate Judge Norah McCann King on 7/10/2015. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARK C BROOKES,
Plaintiff,
v.

Case No. 2:13-cv-516
Judge Sargus
Magistrate Judge King

MYRON SHANK, et al.,
Defendants.
REPORT AND RECOMMENDATION
Mark C. Brookes, administrator of the Estate of Gregory Otis
Stamper, filed this action under 42 U.S.C. § 1983 on behalf of the
decedent (hereafter “plaintiff”), a former prisoner at the Allen
Correctional Institution (“ACI”), alleging that defendants were
deliberately indifferent to plaintiff’s medical needs in violation of
the Eighth Amendment to the United States Constitution.

On February

7, 2014, all the claims were dismissed, except the claim of deliberate
indifference asserted against defendant Myron Shank, M.D., Ph.D.
Order, ECF 26.

This matter is now before the Court on Defendant, Dr.

Myron Shank’s Motion for Summary Judgment (“Defendant’s Motion”), ECF
42.

Plaintiff opposes Defendants’ Motion, Plaintiff’s Response and

Memorandum in Opposition to Defendant’s Motion for Summary Judgment
(“Plaintiff’s Response”), ECF 52, and defendant has filed a reply.
Defendants’ Reply, ECF 57.

At the Court’s request, ECF 59, plaintiff

filed a Supplemental Response, ECF 60, and defendant filed a

Supplemental Reply, ECF 63.

For the reasons that follow, it is

RECOMMENDED that Defendants’ Motion, ECF 42, be GRANTED.
I.

Background
In March 2008, plaintiff reported chronic low back pain, numbness

in both feet, and intermittent dizziness.
Exhibit A, p. 19.
with difficulty.
2009.

Plaintiff’s Response,

He was slow to arise from a chair and ambulated
Id.

Plaintiff continued to report pain throughout

Plaintiff was taken to the emergency department in February

2009 for pain radiating to his neck, jaw, shoulder, and left arm and
hand.

Id. at Exhibit A, p. 27.

extremities on April 24, 2009.

Plaintiff reported numbness in his
Id. at Exhibit A, p. 23.

On June 1,

2009, plaintiff reported trouble with balance and pain in his hands
and the thoracic area of his back.

Id. at Exhibit A, p. 1.

He

reported dizziness and difficulty with balance in July 2009.
Exhibit A, pp. 9, 15, 35.

Id. at

On September 26, 2009, plaintiff reported a

burning, throbbing pain in his fingers and the skin on his feet.

Id.

at Exhibit A, pp. 1, 33.
On August 4, 2009, plaintiff arrived at pill call and “acted like
he took his pills and left.”

ECF 42-2, PAGEID 283.

However,

plaintiff was searched when pill call was completed and was found to
be in possession of medication, Neurontin (Gabapentin) and Ultram
(Tramadol).

Id.

Plaintiff was found guilty of the resulting rules

violation on August 5, 2009.

Id. at PAGEID 284.

At the disciplinary

hearing, plaintiff admitted to having the pills and stated that he
“traded a bag of cookies for pills.”

Id.

Plaintiff was issued a

verbal reprimand “with stipulation of doctor issuing medication to Mr.

2

Stamper based on his medical conditions.
forms may be an option to consider.”

Id.

Crushing pills or liquid
Plaintiff’s prescriptions

for Tramadol and Gabapentin were cancelled on August 4, 2009, because
of “cheeking.”1

Id. at PAGEID 287.

Plaintiff treated with defendant Dr. Shank on August 6, 2009.
Dr. Shank prescribed Carbamazepine for six months as an alternative to
Tramadol and Gabapentin.

Id. at PAGEID 288-89.

Plaintiff complained

of the denial of medical attention, in response to which Dr. Shank
“pointed out that pain ‘hurts’ but will not ‘hurt’ him.”
PAGEID 289.

Id. at

Plaintiff also requested an EMG and a neurology consult,

which Dr. Shank ordered.

Plaintiff was seen for a neurology

Id.

consult on August 7, 2009.

Id.

It was recommended that plaintiff

undergo an MRI of the brain and spine and an EMG for sensory
neuropathy.

Id. at PAGEID 294-95.

Plaintiff underwent an EMG on September 23, 2009.
Response, Exhibit A, p. 7.

Plaintiff’s

Plaintiff was diagnosed with generalized

sensory and motor peripheral neuropathy.

Id. at p. 8.

Plaintiff treated with Dr. Shank on October 5, 2009, after
undergoing cataract surgery.

ECF 42-2, PAGEID 300.

With regard to

his neuropathy, plaintiff reported that Carbamazepine made him
“queasy” and offered no benefit.

Id.

Dr. Shank discontinued

Carbamazepine, prescribed Lamotrogine, and postponed plaintiff’s
follow up with neurology at plaintiff’s request due to discomfort

1

“ʽCheeking’ is a term used to describe an inmate’s behavior of hiding a pill
or capsule in his cheek, or other area of his mouth after ingesting it, not
swallowing the furnished pill as directed, and instead spitting it out after
his return to his cell.” Affidavit of Helen Gwendolyn Gerhard, Certified
Nurse Practitioner (“Gerhard Affidavit”), ECF 42-9, ¶ 11.

3

associated with the travel required.

Id.

On October 19, 2009,

plaintiff refused an MRI, stating “I can’t do it,” but said he would
consider it if Dr. Shank reconsidered the medication restrictions.
Id. at PAGEID 303.
Dr. Shank again prescribed Lamotrogine on December 15, 2009.
at PAGEID 301, 304.

Id.

Dr. Shank noted that plaintiff had previously

acknowledged selling Tramadol and Gabapentin for a bag of cookies and
commented that plaintiff’s “behavior is inconsistent [with] his
[complaints of] intolerable pain, if cookies were more important to
him than the alleged pain.
[treatment.]”

[Patient] being given alternate

Id.

On February 23, 2010, plaintiff asked for Tramadol and Gabapentin
for worsening pain and coordination caused by his neuropathy.

Id. at

PAGEID 305.

Plaintiff refused an MRI of the brain and spine.

Id. at

PAGEID 306.

Dr. Shank recommended an MRI of the brain to diagnosed a

potentially treatable condition, but noted that plaintiff was “adamant
against outside tests/consults” and “declines all outside trips.”
at PAGEID 305.

Id.

Dr. Shank concluded that he could not justify

plaintiff’s request because of his abuse, i.e., trading medication for
cookies, and unwillingness to pursue potentially treatable causes of
his symptoms.

Id.

In June 2010, plaintiff reported continued pain in his upper back
and shoulder blades and pain and numbness in his hands.
Response, Exhibit A, p. 31.

Plaintiff’s

On June 9, 2010, plaintiff reported to

Dr. Shank “some benefit from indomethacin,” stating “it’s better than
nothing.”

He requested crushed Gabapentin.

4

ECF 42-2, PAGEID 307.

Dr. Shank noted that plaintiff had agreed he would not get another
chance if he misused his medication.

Id. at PAGEID 307-09.

According

to Dr. Shank, plaintiff “failed alternative [treatment] options.
is primarily nocturnal.

Pain

[Plaintiff] willing to work [with]

polysubstance abuse program.”

“Dr. Shank agreed to recommendations

provided by input from a court appointed physician-monitor” and
prescribed Gabapentin in crushed form and ordered a substance abuse
consult.

Defendant’s Reply, p. 5; ECF 42-2, PAGEID 307-09.

Dr. Shank

also ordered restrictions to a low bunk; no lifting greater than 20
pounds; no standing longer than 30 minutes; and no pushing, pulling,
or bending for six months.

ECF 42-2, PAGEID 307-09.

Dr. Shank’s

referral to Recovery Services states the following: “Pt. [with]
peripheral polyneuropathy, apparently familial.

Pt. misused

gabapentin and tramadol [approximately] 1 y ago, selling for cookies.
He has cooperated [with] alternative [treatments,] [illegible] failed.
He has agreed to crush order for gabapentin and to be evaluated and,
if appropriate, monitored by you.”

Id. at PAGEID 310.

On July 6, 2010, plaintiff was interviewed by John Hall at
Recovery Services.

Id. at PAGEID 325-26.

Plaintiff’s score on the

drug screen indicated “no need for service;” plaintiff’s score on the
CMR Instrument was “very low.”

Plaintiff was referred to AOD

educational programming, id., a voluntary 12-week program.

John T.

Hall Deposition, ECF 42-7, pp. 26-27.
On March 28, 2011, Dr. Shank performed a client review and noted
the following:
Pt. [with] peripheral polyneuropathy.
Has received low
bunk, no standing > 30 min., no lifting > 20, and no push,

5

pull, or bend.
This was intended to be relatively short
term, so that his meds could be reevaluated, but I see no
documentation of that taking place.
I do not have
documentation of compliance [with] Recovery Services.
ECF 42-2, PAGEID 313.

In an addendum, Dr. Shank commented that,

“[p]er new policy, unable to receive gabapentin > 600 mg [illegible].”
Id.

Dr. Shank ordered Gabapentin 600 mg “per new policy,” “Gabapentin

levels 1 wk,” and “[n]otify pt. of Rx change.”

Id. at PAGEID 314.

Dr. Shank emailed Matthew Schweyer in Recovery Services that same day
and asked if plaintiff had “been compliant with Recovery Services.”
Id. at PAGEID 323.

Mr. Schweyer responded that plaintiff “has not

been involved in any Recovery Services treatment programs to include
12 step fellowship meetings.”

Dr. Shank inquired further as to

Id.

whether Recovery Services received a referral for plaintiff.
PAGEID 322.

Id. at

Mr. Schweyer confirmed that a referral had been received

and noted the following: “We screened him and he wanted nothing to do
with Recovery Services.

He did not see himself as having a problem.

Seems to me that he had a positive urinalysis for cocaine while in
custody, though, if I remember correctly.
get in.”

Id.

I will check again when I

Mr. Schweyer confirmed on March 29, 2011, that

plaintiff “had two positive urine screens since he has been
incarcerated.

Both were for cocaine.”

Id.

Mr. Schweyer did not

mention that the positive drug screens had occurred in 1997 and 1998.
Id. at PAGEID 328-34.
Plaintiff was evaluated in the Chronic Care Clinic on April 13,
2011 by Helen Gerhard, CNP, for hypertension, hypothyroidism,
hepatitis C, and hyperlipidemia.

Id. at PAGEID 316.

Ms. Gerhard

notified plaintiff of the new policy related to Gabapentin and noted

6

that “unit dosages in excess of 600 milligrams, or daily doses in
excess of 1,800 milligrams were found not to be any more effective for
the treatment of chronic pain as were dosages of 600 milligrams or
less.”

Gerhard Affidavit, ¶ 17.

Plaintiff responded that Gabapentin

“was not effective in relieving his pain at the current dosages
anyway” and that she should just cancel the Gabapentin completely.
Id.

Ms. Gerhard noted that plaintiff “[h]as not complied [with]

contract will remove pain meds.”

ECF 42-2, PAGEID 316.

She cancelled

plaintiff’s prescription for Gabapentin and Indocin “until pt. has
complied [with] contract.”

Id. at PAGEID 315.

On April 26, 2011, Dr. Shank noted that, according to Recovery
Services, plaintiff had refused to participate in the program even
though his participation was a condition of his continued treatment
with Gabapentin and even though he had agreed that he would not
receive another chance.

Id. at PAGEID 313.

“Pt. reportedly does not

perceive a substance abuse problem despite 2 separate urines
[positive] for cocaine.

No further gabapentin.”

Id.

See also PAGEID

318 (“No further gabapentin – do not restart.”).
Plaintiff filed an informal complaint on May 15, 2011.
Plaintiff’s Response, Exhibit A, p. 81.

Plaintiff stated that he

suffered from a neuropathic condition that causes intense and constant
pain.

Id.

Plaintiff reported that he “can barely function” and that

he has “a difficult time making it to the chow hall due to the intense
pain associated with movement.”
reinstatement of his medication.

Id.

He requested the immediate

Plaintiff was informed that, if he

wished to continue his medication, he “should follow through with

7

recommendations of Dr. Shank.”

It was explained that Dr. Shank

Id.

stopped the medication because plaintiff was unwilling to pursue
potentially treatable causes of his symptoms.

Id.

In a notification

of grievance dated May 25, 2011, plaintiff stated that he cannot
travel because he is “physically unable to withstand the trip without
adequate pain management medication which Dr. Shank refuses to
provide.”

Plaintiff’s Response, Exhibit F, p. 2

In an undated letter to “Mr. Hall,” plaintiff stated the
following:
On Wednesday, April 13th, during a routine chronic care
visit, I was told that my Neurontin medication would be
canceled immediately.
In the absence of my medication my
condition has deteriorated dramatically.
I have suffered
what seems to me to be a series of seizures or strokes.
Sometimes more than one a day.
I suffered loss of muscle
control in my hands, arms, legs, and most alarmingly in my
face.
Also difficulty with my balance, and nearly
unbearable neuropathy pain.
ECF 42-2, PAGEID 324.
Plaintiff was evaluated by Nurse Practitioner Gerhard in the
Chronic Care Clinic on May 24, 2011.

Id. at PAGEID 319.

Plaintiff

reported continued neuropathy pain that was spreading to his face.
Id.

However, Ms. Gerhard saw no objective indicators of pain.

Deposition of Helen Gwendolyn Gerhard, ECF 42-5, p. 6.

Plaintiff was

referred to Dr. Shank “for [bottom bunk restriction] + pain meds +
round trip for MRI for [diagnosis] of problem.”

ECF 42-2, PAGEID 318.

Ms. Gerhard explained that, although plaintiff “was not in pain,” she
referred him to Dr. Shank because “he was stating that he was in pain”
and she “did not know the full extent of his neuropathy.”
of Helen Gwendolyn Gerhard, p. 15.

8

Deposition

Dr. Shank performed a chart review on May 31, 2011, and noted the
following: “MRI is not indicated in this pt. [with] known . . .
peripheral polyneuropathy.

Pt. has failed, misused, or been non-

compliant [with] terms of Rxs for pain.
options available.

There are no additional

Cancel [doctor’s sick call].”

Dr. Shank ordered: “Cancel DSC [with] me.

Id. at PAGEID 320.

There is no indication for

MRI for known . . . peripheral polyneuropathy and pt. has failed,
misused, or been noncompliant [with] conditions for Rx for pain.
other options available.”

No

Id. at PAGEID 321.

On the next day, plaintiff was found unresponsive in his cell; he
had committed suicide by hanging.
II.

Id.

Standard
The standard for summary judgment is well established.

This

standard is found in Rule 56 of the Federal Rules of Civil Procedure,
which provides in pertinent part: “The court shall grant 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).

Pursuant to Rule 56(a), summary

judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
law.”

Id.

In making this determination, the evidence “must be viewed

in the light most favorable” to the non-moving party.
Kress & Co., 398 U.S. 144, 157 (1970).

Adickes v. S.H.

Summary judgment will not lie

if the dispute about a material fact is genuine, “that is, if the
evidence is such that a reasonable jury could return a verdict for the
non-moving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

9

(1986).

However, summary judgment is appropriate if the opposing

party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”
477 U.S. 317, 322 (1986).

Celotex Corp. v. Catrett,

The “mere existence of a scintilla of

evidence in support of the [opposing party’s] position will be
insufficient; there must be evidence on which the jury could
reasonably find for the [opposing party].”

Anderson, 477 U.S. at 252.

The “party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions” of the record which
demonstrate “the absence of a genuine issue of material fact.”
Celotex Corp., 477 U.S. at 323.

The burden then shifts to the

nonmoving party who “must set forth specific facts showing that there
is a genuine issue for trial.”
Fed. R. Civ. P. 56(e)).

Anderson, 477 U.S. at 250 (quoting

“Once the moving party has proved that no

material facts exist, the non-moving party must do more than raise a
metaphysical or conjectural doubt about issues requiring resolution at
trial.”

Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th

Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986)).
III. Discussion
This is an action under 42 U.S.C. § 1983 claiming deliberate
indifference in connection with an alleged denial of medical care.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or

10

the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights,
privileges,
or
immunities
secured
by
the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983.

A prima facie case under § 1983 requires evidence

of (1) conduct by an individual acting under color of state law, and
(2) the deprivation of a right secured by the Constitution or laws of
the United States.

Day v. Wayne Cnty. Bd. of Auditors, 749 F.2d 1199,

1202 (6th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535
(1981)).

Section 1983 merely provides a vehicle for enforcing

individual rights found elsewhere and does not itself establish any
substantive rights.

See Gonzaga Univ. v. Doe, 536 U.S. 273, 285

(2002).
In the case presently before the Court, plaintiff alleges that
Dr. Shank acted with deliberate indifference to his medical needs in
violation of the Eighth Amendment to the United States Constitution.
Plaintiff specifically alleges that Dr. Shank was deliberately
indifferent to plaintiff’s medical needs because, on “May 31, 2011,
Shank canceled a scheduled appointment [plaintiff] had requested” and
“refused to put [plaintiff] back on Neurontin or any other pain
medication” even though Dr. Shank was “aware of [plaintiff’s] serious
medical condition, specifically that [plaintiff] [] suffered constant
agonizing pain.”

Complaint, ¶¶ 45, 47.2

2

This Court previously held that only the acts taken by Dr. Shank “within the
two-year period immediately preceding the filing of the complaint” could be
considered as part of plaintiff’s claim. Report and Recommendation, ECF 25,
p. 4; Order, ECF 26.

11

The Eighth Amendment to the United States Constitution prohibits
cruel and unusual punishment.

In order to prevail on his claim,

plaintiff must prove that Dr. Shank acted with “deliberate
indifference to [his] serious medical needs.”

Estelle v. Gamble, 429

U.S. 97, 103-04 (1976).

This standard includes both an objective and

a subjective component.

The objective component requires that a

plaintiff establish the existence of a “sufficiently serious” medical
need.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The subjective

component requires that a plaintiff establish that the “official being
sued subjectively perceived facts from which to infer substantial risk
to the prisoner, that he did in fact draw the inference, and that he
then disregarded that risk.”

Comstock v. McCrary, 273 F.3d 693, 703

(6th Cir. 2001) (citing Farmer, 511 U.S. at 837).

However, “a

plaintiff need not show that the official acted ‘for the very purpose
of causing harm or with knowledge that harm will result.’”
(quoting Farmer, 511 U.S. at 835).

Id.

“Instead, ‘deliberate indifference

to a substantial risk of serious harm to a prisoner is the equivalent
of recklessly disregarding that risk.’”

Id. (quoting Farmer, 511 U.S.

at 836).
Defendant first argues that plaintiff has failed to present
evidence of the objective component.

Defendant specifically argues

that “no objective evidence can be produced that sufficiently
demonstrates the alleged severity of [plaintiff’s] chronic neuropathic
pain so as to establish it as a serious medical need under the
objective component of a deliberate indifference claim.”
Motion, p. 14.

Defendant’s

“A serious medical need is ‘one that has been

12

diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity
for a doctor's attention.’”

McCarthy v. Place, 313 F. App’x 810, 814

(6th Cir. 2008) (quoting Harrison v. Ash, 539 F.3d 510, 518 (6th Cir.
2008)).

Although defendant argues that plaintiff did not suffer from

a serious medical need, he concedes that plaintiff was diagnosed with
peripheral neuropathy and was treated for related pain over the course
of several years.

Courts have found that a diagnosis of neuropathy

accompanied by evidence of pain qualifies as a serious medical need.
See Ruley v. Corr. Corp. of Am., No. Civ. 11-36-ART, 2013 WL 1815039,
at *4 (E.D. Ky. Apr. 29, 2013) (citing Williams v. Guzman, 346 F.
App'x 102, 105 (7th Cir. 2009) (holding that a plaintiff with
diagnosed neuropathy established a serious medical need)).

A

reasonable jury could therefore find that plaintiff suffered a serious
medical need.
As noted supra, the subjective component of an Eighth Amendment
claim requires that a plaintiff establish that the official
“subjectively perceived facts from which to infer substantial risk to
the prisoner, that he did in fact draw the inference, and that he then
disregarded that risk.”
U.S. at 837).

Comstock, 273 F.3d at 703 (citing Farmer, 511

Defendant first argues that plaintiff has failed to

establish the subjective component of his claim because “[c]ourts have
consistently held that prison medical doctors who discontinue
prescribed medication after an inmate is caught hoarding the
medication are not deliberately indifferent.”
36-40.

Defendant’s Motion, pp.

Defendant also argues that the cancellation of plaintiff’s May

13

31, 2011 appointment in Doctor’s Sick Call does not amount to
deliberate indifference because plaintiff refused diagnostic testing,
failed or misused pain medication, and failed to participate in
Recovery Services even though his participation was a condition of his
continued receipt of pain medication and even though he had agreed
that he would not receive another chance.

Defendant’s Reply, pp. 12-

15.
Plaintiff argues that “Dr. Shank knew that a variety of
medications” “in addition to traditional pain medications,” “were
available to treat neuropathic pain” and that Dr. Shank’s “failure to
acknowledge other options undermines Dr. Shank’s rationale for denying
treatment.”

Supplemental Response, p. 3.

Plaintiff also argues that

“there is a dispute of fact regarding whether [plaintiff] complied
with Dr. Shank’s request” to participate in Recovery Services.

Id. In

this regard, plaintiff insists that he complied with the referral to
Recovery Services because he attended a Recovery Services “consult,”
but “was found to be at an extremely low risk for addiction and not
eligible for Recovery Services’ mandatory program.”

Id.

Plaintiff

also complains that Dr. Shank was more lenient with private patients
and more willing to believe the statements of his private patients,
and suggests that Dr. Shank denied medical care to plaintiff in order
to bolster his reputation in the face of a medical board investigation
related to the doctor’s prescription of pain medication to private
patients.

Id. at p. 5.

Plaintiff characterizes Dr. Shank’s denial of

medical treatment to plaintiff on May 31, 2011, as punishment for the

14

August 2009 cheeking incident.

Id. at p. 1.

Plaintiff’s arguments

are not well taken.
Plaintiff was evaluated by Nurse Practitioner Gerhard in the
Chronic Care Clinic on May 24, 2011, where he reported neuropathy pain
that was spreading to his face.

ECF 42-2, PAGEID 319.

Although Ms.

Gerhard saw no objective indicators of pain, Deposition of Helen
Gwendolyn Gerhard, p. 6, she referred plaintiff to Dr. Shank “for
[bottom bunk restriction] + pain meds + round trip for MRI for
[diagnosis] of problem.”

ECF 42-2, PAGEID 318.

Dr. Shank reviewed

plaintiff’s chart on May 31, 2011, and cancelled the referral to
Doctor’s Sick Call, noting the following: “MRI is not indicated in
this pt. [with] known . . . peripheral polyneuropathy.

Pt. has

failed, misused, or been non-compliant [with] terms of Rxs for pain.
There are no additional options available.
call].”

Id. at PAGEID 320.

Cancel [doctor’s sick

Plaintiff disputes Dr. Shank’s conclusion

that plaintiff “has failed, misused, or been non-compliant” with the
terms of his prescriptions for pain medication.

However, the evidence

supports Dr. Shank’s conclusions.
Plaintiff was diagnosed with generalized sensory and motor
peripheral neuropathy in September 2009.

Id. at PAGEID 300.

Plaintiff was treated with Tramadol and Gabapentin for his symptoms
prior to being diagnosed with neuropathy, but those prescriptions were
cancelled in August 2009 after plaintiff was found to be cheeking the
medication.

ECF 42-2, PAGEID 283-87.

Plaintiff was prescribed

Carbamazepine as an alternative but, in October 2009, he reported that
this medication offered no benefit.

15

Id. at PAGEID 300.

Plaintiff

refused diagnostic testing in 2009 and 2010 because of pain, but
stated that he would consider an MRI if Dr. Shank would prescribe
Gabapentin.

Id. at PAGEID 303.

Plaintiff received no clear benefit

from prednisone, id. at PAGEID 303, 308, and stated that indomethacin
was “better than nothing.”

Id. at PAGEID 307.

Dr. Shank concluded

that plaintiff “failed alternative [treatment] options,” and agreed to
prescribe Gabapentin in crushed form.

Id. at PAGEID 307-09.

I

prescribing this medication, Dr. Shank noted that plaintiff had agreed
that he would not get another chance if he misused his medication and
that plaintiff was willing to work with the polysubstance abuse
program.

Id.

Dr. Shank ordered a substance abuse consult and

restrictions to a low bunk; no lifting greater than 20 pounds; no
standing longer than 30 minutes; and no pushing, pulling, or bending
for six months.

Id.

Dr. Shank’s referral to Recovery Services states

the following: “Pt. [with] peripheral polyneuropathy, apparently
familial.

Pt. misused gabapentin and tramadol [approximately] 1 y

ago, selling for cookies.

He has cooperated [with] alternative

[treatments,] [illegible] failed.

He has agreed to crush order for

gabapentin and to be evaluated and, if appropriate, monitored by you.”
Id. at PAGEID 310.
Plaintiff was interviewed at Recovery Services on July 6, 2010,
and was referred to educational programming, but he did not attend
that programming.
26-27.

Id. at PAGEID 325-26; John T. Hall Deposition, pp.

Dr. Shank reviewed plaintiff’s file in March 2011 and noted

that he did “not have documentation of compliance [with] Recovery
Services.”

ECF 42-2, PAGEID 313.

Upon his inquiry, Dr. Shank was

16

informed that plaintiff had not “been compliant with Recovery
Services.”

Id. at PAGEID 323.

Mr. Schweyer confirmed that a referral

to Recovery Services had been received and that plaintiff had been
screened by Recovery Services, but that plaintiff “wanted nothing to
do with Recovery Services” and “did not see himself as having a
problem,” despite “two positive urine screens since he has been
incarcerated.”

Id.

Plaintiff’s prescription for Gabapentin was actually cancelled
by Nurse Practitioner Gerhard on April 13, 2011, when plaintiff
refused to accept a lower dose of the medication, stated that
Gabapentin “was not effective in relieving his pain at the current
dosages anyway,” and asked that his prescription be cancelled.
PAGEID 315-16.

Id. at

On April 26, 2011, Dr. Shank noted that, according to

Recovery Services, plaintiff had refused to participate in the program
even though his participation was a condition of his continued
treatment with Gabapentin and even though he had agreed that he would
not receive another chance.

Id. at PAGEID 313.

Dr. Shank noted at

the time: “Pt. reportedly does not perceive a substance abuse problem
despite 2 separate urines [positive] for cocaine.
gabapentin.”

Id.

No further

See also PAGEID 318 (“No further gabapentin – do

not restart.”).
In short, the evidence supports Dr. Shank’s conclusion that
plaintiff had failed, misused, or been non-compliant with the terms of
his prescription for pain medication.

Plaintiff had misused

Gabapentin, alternative treatments had failed, and plaintiff had
refused to undergo diagnostic testing, and had not participated in

17

Recovery Services even though that participation was a condition of
his further receipt of Gabapentin.

Although plaintiff contends that

he complied with the referral to Recovery Services, Dr. Shank
specifically inquired as to plaintiff’s compliance and was informed
that plaintiff had not complied with the referral to Recovery
Services.

Under these circumstances, Dr. Shank’s refusal to prescribe

pain medication on May 31, 2011, simply does not constitute deliberate
indifference to plaintiff’s serious medical needs.

See e.g., Atakpu

v. Lawson, No. 1:05-CV-00524, 2008 WL 5233467, at *11 (S.D. Ohio Dec.
11, 2008) (“In a prison setting, the decision to discontinue a pain
medication because of concerns of abuse of such medication does not
amount to deliberate indifference to serious medical needs.”).
Plaintiff also argues that Dr. Shank’s refusal to prescribe pain
medication on May 31, 2011, was not based on his medical judgment, but
on a desire to bolster his reputation in the face of a medical board
investigation related to his alleged overprescribing pain medication
to private patients.

In this regard, plaintiff contends that Dr.

Shank was more lenient with his private patients and more willing to
believe their statements.

Supplemental Response, p. 5.

According to

plaintiff, Dr. Shank adopted strict policies when prescribing pain
medication to inmates after he was investigated for overprescribing
pain medication in his private practice.

Id.; Plaintiff’s Response,

pp. 36-41. “The refusal to treat [plaintiff] and the pretextual
reasons given for it, when combined with his leniency towards his
private pain management patients, raises the inference that Dr.
Shank’s denial of treatment was not about his professional medical

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judgment but about his deliberate indifference to [plaintiff’s] pain.”
Supplemental Response, p. 5.
However, even if plaintiff’s contentions in this regard are true,
(i.e., that Dr. Shank adopted strict policies for prescribing pain
medication to inmates after he was investigated for overprescribing
pain medication, and that he did so in order to bolster his image
before the medical board), the evidence nevertheless demonstrates that
Dr. Shank was not deliberately indifferent to plaintiff’s serious
medical needs.

No reasonable jury could find that Dr. Shank did not

have a subjective good-faith belief that plaintiff had misused or had
been non-compliant with the terms of his prescription for pain
medication.

The fact that Dr. Shank may have been less lenient in his

pain medication prescription practices for inmates than he had
previously been for his private practice patients does not alter this
conclusion.

In short, plaintiff has not raised a genuine issue of material
fact and Dr. Shank is entitled to summary judgment as a matter of law.
It is therefore RECOMMENDED that Defendant, Dr. Myron Shank’s Motion
for Summary Judgment, ECF 42, be GRANTED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

28

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

July 10, 2015

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

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