Savage v. Troutt et al

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATION 59 of Magistrate Judge Charles B. Goodwin...the court adopts the Report and Recommendation with the exception discussed; defendants' motion to dismiss is granted in part and denied in part; plaintiff� 39;s motions for summary judgment 48 and for appointment of expert witness 46 are denied; plaintiff's motion for leave 57 is granted; this matter is referred again to Magistrate Judge Goodwin for further proceedings. Signed by Honorable Joe Heaton on 9/20/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KENT G. SAVAGE,
Plaintiff,
vs.
JEFFREY TROUTT, et al.,
Defendants.

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NO. CIV-15-0670-HE

ORDER
Plaintiff Kent G. Savage filed this § 1983 action against the Oklahoma Department
of Corrections (“DOC”) and Dr. Jeffery Troutt, Tami Grogan, and Genese McCoy, three
present or former DOC employees, asserting claims under both federal and state law.
Plaintiff alleges in his complaint that, while he was incarcerated at the James Crabtree
Correctional Center (“JCCC”), defendants failed to provide him with adequate medical care,
denied him access to a fair and adequate grievance process, intentionally inflicted emotional
distress upon him, and violated the Americans with Disabilities Act (“ADA”).
Consistent with 28 U.S.C. § 636(b), the matter was referred for initial proceedings to
Magistrate Judge Charles B. Goodwin, who has recommended that a motion to dismiss filed
by the four defendants be granted in part and denied in part and a motion for summary
judgment filed by plaintiff be denied. Plaintiff has filed an objection, which will be
discussed following a summary of the magistrate judge’s recommendations.
Defendants’ motion to dismiss 1

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The magistrate judge declined to consider evidentiary material plaintiff included in his
response to defendants’ motion to dismiss and convert the motion to a motion for summary

The magistrate judge recommended that plaintiff’s § 1983 claims for damages against
defendants Troutt, Grogan and McCoy in their official capacities be dismissed without
prejudice because they are barred by Eleventh Amendment immunity. With respect to
plaintiff’s § 1983 claims asserted against defendants Troutt, Grogan and McCoy in their
individual capacities, the magistrate judge made the following determinations.
Plaintiff’s deliberate indifference to serious medical needs claims against defendant
Troutt are based on the medication he prescribed for plaintiff’s neuropathic pain, the
physician’s alleged failure to treat plaintiff’s severe constipation and abdominal pain, and his
alleged delayed treatment of plaintiff’s allergies. The magistrate judge concluded that
qualified immunity barred plaintiff’s deliberate indifference claims against defendant Troutt
insofar as they are based on the physician’s treatment of plaintiff’s neuropathic pain and his
allergies. He determined defendant Troutt is not entitled to qualified immunity with respect
to plaintiff’s deliberate indifference claim based on the doctor’s asserted nontreatment of
plaintiff’s constipation.
The magistrate judge determined that plaintiff’s deliberate indifference claims against
defendants Grogan, JCCC’s Health Services Administrator, and McCoy, DOC’s Medical
Service Administrator, fail because plaintiff did not allege that they personally participated
in the asserted constitutional violations or acted with the required deliberately indifferent
state of mind. He concluded that more is required to subject the defendants to supervisory

judgment.

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liability under §1983 than allegations that the defendants responded adversely to two
grievances.
The magistrate judge also rejected plaintiff’s ADA claim against the DOC – the only
claim asserted against that agency. He concluded that merely alleging that the treatment
plaintiff received was inadequate is insufficient to state an ADA claim.2
As for plaintiff’s remaining state law claims, the magistrate judge concluded that 57
Okla. Stat. § 566.3(G) does not “create a personal right to a ‘fair and adequate’ prisongrievance process or authorize private civil actions for its violation.” Doc. #59, p. 31, citing
Rachel v. Troutt, No. CIV-14-655-R, 2015 WL 3408783, at *4 (W.D. Okla. May 27, 2015),
rev’d on other grounds, 820 F.3d 390 (10th Cir. 2016). He also determined that plaintiff’s
conclusory allegations regarding defendants’ alleged misconduct and his resulting emotional
distress are insufficient to “support a reasonable inference that any Defendant’s conduct went
‘beyond all possible bounds of decency’ or that Plaintiff’s resulting emotional distress ‘was
so severe that no reasonable person could be expected to endure it.’” Doc. #59, pp. 32-33
(quoting Computer Publ’ns, Inc. v. Welton, 49 P.3d 732, 735-36 (Okla. 2002) (alteration
omitted)).
Plaintiff’s motion for summary judgment
Because he determined that plaintiff had adequately pled only one claim – that

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The magistrate judge noted that the DOC did not assert Eleventh Amendment immunity as
a defense to plaintiff’s ADA claim and, as neither party raised or briefed the issue of the validity of
Congress’s purported abrogation of state sovereign immunity in the ADA, he proceeded to consider
whether plaintiff had pled facts sufficient to state an ADA claim against the DOC.

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defendant Troutt was deliberately indifferent to plaintiff’s constipation and abdominal pain
– the magistrate judge considered only that claim in conjunction with plaintiff’s motion for
summary judgment. He concluded plaintiff was not entitled to summary judgment because
his submissions did not compel the conclusion that the physician had acted with deliberate
indifference.
Plaintiff had filed a motion to file supplemental exhibits in conjunction with his
summary judgment motion. The magistrate judge recommends that this motion be granted.
The remaining issue addressed by the magistrate judge in his Report and
Recommendation consists of his recommendation that the court deny plaintiff’s request that
the court appoint a neurologist as an expert witness pursuant to Fed.R.Evid. 706(a). The
appointment will be unnecessary, the magistrate judge states, if the court adopts his
recommendations because all of plaintiff’s claims for which a neurologist’s skills and
expertise might be helpful will have been dismissed.
Plaintiff objects to all the magistrate judge’s adverse rulings, except for his
recommendation that his motion for summary judgment be denied. Having conducted a de
novo review, the court concurs with the magistrate judge’s thorough analysis with respect
to all plaintiff’s claims, except for his Eighth Amendment deliberate indifference claim based
on Dr. Troutt’s treatment of plaintiff’s neuropathic pain associated with his multiple
sclerosis.3

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Plaintiff asserts that the magistrate judge erroneously characterized his intentional
infliction of emotional distress claim as being asserted solely under state law. He states he

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Liberally construing the allegations of plaintiff’s pro se complaint, Perkins v. Kansas
Dept. of Corrections, 165 F.3d 803, 806 (10th Cir. 1999), the court concludes plaintiff has
alleged sufficient facts to state a claim that defendant Troutt was deliberately indifferent to
his medical needs. These include plaintiff’s allegations that he has multiple sclerosis, that
his condition has worsened considerably since he arrived at JCCC, that he has extreme pain
and that, despite having repeatedly advised defendant Troutt that the normal strength
Ibuprofen he has provided plaintiff is ineffective, defendant Troutt has refused because of
financial considerations to provide plaintiff with a prescription pain medication
recommended by medical specialists.
Although a close question, the court concludes plaintiff has alleged more than a mere
disagreement with a prescribed course of treatment.4 Therefore, defendants’ motion to
dismiss plaintiff’s §1983 deliberate indifference claim against defendant Troutt based on his
treatment of plaintiff’s neuropathic pain will be denied.5
“specifically invoked 42 U.S.C. 1983 for this claim of the bottom of page 16.” Doc. #62, p. 12.
While a plaintiff may recover damages for emotional distress in a § 1983 action, liability under §
1983 requires a constitutional violation. In other words, there is no independent claim under § 1983
for intentional infliction of emotional distress.
To the extent plaintiff attempts to allege some type of “continuing violation” in his
complaint, see Doc. Nos. 1, pp. 10-11; 62, p. 13, he has failed to state a cognizable claim.
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The court recognizes that “[a] difference of opinion with medical staff about treatment is
not actionable under the Eighth Amendment, nor is a disagreement among medical experts.” Toler
v. Troutt, 631 Fed. Appx. 545, 547 (10th Cir. 2015).
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The court is not, though, intimating any view as to the merits of plaintiff’s claim. As the
magistrate judge noted, “dissatisfaction with the treatment provided does not state a cognizable
constitutional claim under the Eighth Amendment.” Archer v. Simmons, 128 Fed. Appx. 716, 719
(10th Cir. 2005). And “[a] negligent failure to provide adequate medical care, even one
constituting medical malpractice, does not give rise to a constitutional violation.’” Perkins, 165

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In his objection plaintiff also requests that counsel be appointed. The legal and factual
issues in this case are not overly complicated and plaintiff, through his filings, has
demonstrated his ability to represent himself adequately. His request for appointed counsel
is denied.
Accordingly, the court ADOPTS Magistrate Judge Goodwin’s Report and
Recommendation, with the exception previously discussed. Defendants’ motion to dismiss
[Doc. #39] is GRANTED IN PART and DENIED IN PART. Defendants’ motion to
dismiss is DENIED with respect to plaintiff’s §1983 deliberate indifference claims against
defendant Troutt based on his treatment of plaintiff’s neuropathic pain and his constipation
and abdominal pain. Plaintiff’s §1983 deliberate indifference claim against defendant Troutt
based on his treatment of plaintiff’s sinus problems is DISMISSED. Plaintiff’s ADA claim
against defendant DOC and state-law intentional infliction of emotional distress claims
against defendants Troutt, Grogan, and McCoy are DISMISSED WITHOUT
PREJUDICE. 28 U.S.C. § 1915A(b)(1); 42 U.S.C. § 1997e(c)(1). Plaintiff’s motions for
summary judgment [Doc. #48] and for appointment of expert witness [Doc. #46] are
DENIED. Plaintiff’s motion for leave [Doc. #57] is GRANTED.
The matter is REFERRED again to Magistrate Judge Goodwin for further
proceedings. 28 U.S.C. § 636(b).

F.3d at 811.
This decision does not change the court’s conclusion regarding the appointment of a medical
expert. It appears the issues presented can be resolved without the assistance of such an expert.

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IT IS SO ORDERED.
Dated this 20th day of September, 2016.

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