Hamby v. Logan et al

Filing 167

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned Magistrate Judge RECOMMENDS that defendants' motion for summary judgment 70 be GRANTED and the complaint DISMISSED with prejudice. If this report and recommendation is accepted, the undersigned RECOMMENDS that all pending motions be DENIED as MOOT. Signed by Magistrate Judge John S. Bryant on 2/7/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WILLIAM DAVIDSON HAMBY, JR.,

)
)
Plaintiff,
)
)
v.
)
)
DR. NONA SETLER-LOGAN, et al., )
)
Defendants.
)

Case No. 3:12-0056
Judge Trauger/Bryant

TO: The Honorable Aleta A. Trauger
REPORT AND RECOMMENDATION
Defendants Nona Setler-Logan (“Logan”) and Karen SugdenKundar (“Kundar”) have filed their motion for summary judgment
(Docket Entry No. 70).

Plaintiff has responded in opposition

(Docket Entry Nos. 85 and 90).
For the reasons stated below, the undersigned Magistrate
Judge RECOMMENDS that defendants’ motion for summary judgment be
GRANTED, and the complaint DISMISSED.
Statement of the Case
Plaintiff William Hamby, Jr., a prisoner who is
proceeding pro se, has filed this civil rights action pursuant to
42 U.S.C. § 1983 alleging that defendants Dr. Nona Logan and nurse
Karen Kundar have violated his constitutional rights by their
deliberate indifference to his serious medical needs while confined
as a prisoner by the Davidson County Sheriff’s Office in Nashville,
Tennessee (Docket Entry No. 1).
state

law

claim

against

Plaintiff Hamby also alleges a

defendants

for

medical

malpractice.

Specifically, plaintiff claims that on November 13, November 20 and
December 8, 2011, defendant Logan denied him all examination and
treatment for several medical conditions from which plaintiff
claims to suffer, including coccidioimycosis disease, stage 3
cirrhosis, hepatitis C liver disease, high blood pressure, and
neuropathy secondary to prior gunshot and knife wounds.

Plaintiff

Hamby also alleges that defendant Logan is biased against him
because of his religion (Judaism) and his race (mixed ethnicity).
Plaintiff alleges that defendant Kundar, who is identified in the
complaint as “medical appeals/grievance coordinator,” “denies all
grievances that involve medical complaint, so Kundar causes medical
malpractice and negligence also, continuing injury.” (Docket Entry
No. 1 at 5).
Defendants filed answers denying liability (Docket Entry
Nos. 20 and 21).

After completion of discovery, defendants have

filed their motion for summary judgment.
referred

to

the

undersigned

Magistrate

This motion has been
Judge

for

report

and

recommendation (Docket Entry No. 4).
Standard of Review
A party may obtain summary judgment by showing “that
there is no genuine dispute as to any material fact and that the
movant

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Covington v. Knox County School Sys., 205 F.3d
912, 914 (6th Cir. 2000). The moving party bears the initial burden

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of satisfying the court that the standards of Rule 56 have been
met.

See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986).

The ultimate question to be addressed is whether there exists any
genuine dispute of material fact.

See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at 914 (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

If so,

summary judgment is inappropriate.
To

defeat

a

properly

supported

motion

for

summary

judgment, the nonmoving party must set forth specific facts showing
that there is a genuine issue of material fact for trial.

If the

party does not so respond, summary judgment will be entered if
appropriate.

Fed.R.Civ.P. 56(e).

The nonmoving party’s burden of

providing specific facts demonstrating that there remains a genuine
issue of material fact for trial is triggered once the moving party
shows an absence of evidence to support the nonmoving party’s case.
Celotex, 477 U.S. at 325.

A genuine issue of material fact exists

“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Anderson, 477 U.S. at 248.

In

ruling on a motion for summary judgment, the Court must construe
the evidence in the light most favorable to the nonmoving party,
drawing all justifiable inferences in its favor.

See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Analysis
Deliberate indifference to serious medical needs.

3

The

complaint does not state whether plaintiff Hamby is being held in
pretrial detention or, instead, is confined following imposition of
a sentence.
apply

to

Nevertheless, while the Eighth Amendment does not

pretrial

detainees,

the

Due

Process

Clause

of

the

Fourteenth Amendment does provide them with a right to adequate
medical treatment that is analogous to prisoners’ rights under the
Eighth Amendment.

Gray v. City of Detroit, 399 F.3d 612, 615-16

(6th Cir. 2005).

A detainee’s right is violated “when prison

doctors or officials are deliberately indifferent to the prisoner’s
serious medical needs.” Comstock v. McCrary, 273 F.3d 693, 702 (6th
Cir.

2001).

As

the

Supreme

Court

explained,

“deliberate

indifference to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate
indifference entails more than mere negligence, but “is satisfied
by something less than acts or omission for the very purpose of
causing harm.”

Farmer v. Brennan, 511 U.S. 825, 835 (1994).

There is an objective and a subjective component to a
deliberate indifference claim.

The objective component requires

the existence of a “sufficiently serious” medical need.
511 U.S. at 834.

Farmer,

A “serious medical need is one that has been

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.” Blackmore v. Kalamazoo County, 390 F.3d

4

890, 897 (6th Cir. 2004).

The subjective component requires that

the accused have a “sufficiently culpable state of mind.”
511 U.S. at 834.

Farmer,

In other words, a plaintiff must show that the

prison 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 the risk.”

Dominguez v.

Corrections Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009) (quoting
Comstock, 273 F.3d at 703).
“to

prevent

claims.”

Id.

the

The subjective component is intended

constitutionalization

of

medical

malpractice

(internal quotations omitted).
In support of their motion for summary judgment,

defendants have filed an authenticated copy of certain medical
records on plaintiff Hamby from the Davidson County Criminal
Justice Center (Docket Entry No. 70-3 and -4).

These records

indicate that plaintiff Hamby underwent a “receiving screening” on
November 2, 2011. During that screening, the record indicates that
plaintiff Hamby denied that he had been treated for certain listed
disorders, including “high blood pressure.” (Docket Entry No. 70-4
at 2).

He did report that he suffered from PTSD and nerve damage

from gunshot wounds in 1997 and 1999 and a knife wound from 2003.
Id. He further stated that he was currently taking prescribed
medications including Gabapentin, Soma, Wellbutrin, Paxil, Vistaril
and Seroquel (Id.).

He further indicated that he had been exposed

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to or diagnosed with hepatitis (Id.).

Plaintiff’s blood pressure

was recorded as 132/77.
The record suggests that on November 3, 2011, at 6:00
p.m. plaintiff Hamby filed a sick call request seeking medical and
mental health services (Docket Entry No. 70-4 at 6).

He stated

that he needed to have tests and shots for his hepatitis C and that
he needed Gabapentin for his multiple gunshot, knife and shrapnel
wounds.
stress

Plaintiff also stated that he had PTSD (post traumatic
disorder),

bipolar

and

manic

depression

and

paranoid

schizophrenia, that he previously had been in mental institutions
and that he needed numerous “psycho meds.”
record,

plaintiff

was

seen

by

a

healthcare

According to this
provider

on

the

following day, November 4, 2011. Plaintiff was scheduled for blood
pressure checks twice a week for two weeks and was transferred into
a psych observation unit on November 4, 2011 (Id. at 8).
On November 7, 2011, plaintiff submitted a second sick
call request for “mental health” in which he stated that he was in
the psych observation unit, that he had no mental issues, and that
he was being denied the right to go into the general population all
because of “false info.” Plaintiff stated, “I need no meds, and am
of sound mind.” (Id. at 9).

According to this same record,

plaintiff was seen and triaged on November 7.

The psychiatric

provider initial evaluation note dated November 7, 2011, states
that plaintiff admitted that he had made “false statements” about

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his mental health history and about his case, and that he was
demanding to be released from psych observation immediately because
“he says he isn’t mentally ill.”

(Id. at 10).

The record further indicates that on November 7, 2011,
plaintiff Hamby was assessed for his history of hepatitis C and
that no medication changes were recommended (Id. at 13).
In a follow-up psychiatric progress note dated November
14, 2011, the writer states that plaintiff denied he had a mental
illness but stated, “I just said those things because I didn’t like
where I was housed and hoped it would help me get something for
sleep.”

According to this record plaintiff denied any history of

inpatient or outpatient psychiatric treatment (Id. at 16).
In a health and physical assessment dated November 15,
2011, plaintiff denied any history of hepatitis (Id. at 18, line
19).

He further denied a history of liver problems (Id. at 19,

line 25).

In the “comments” section of this assessment, it is

reported that plaintiff gave a history of hepatitis C since 2005
(Id. at 21).

Plaintiff’s blood pressure on November 30, 2011, was

recorded as 128/92 (Id. at 24).
Although plaintiff in opposition insists that he is
suffering

from

numerous

serious

and

life-threatening

medical

conditions, he has offered no authenticated records or other
competent evidence to establish these claims.
plaintiff

alleges

that

his

various

7

Similarly, although

medical

maladies

require

immediate treatment by a number of prescription medications, he has
provided no competent medical evidence in support of those claims.
In the face of a record that demonstrates that plaintiff
has been seen and assessed by medical personnel in the Davidson
County Criminal Justice Center on numerous occasions in response to
plaintiff’s complaints, and in the absence of any competent medical
evidence that plaintiff currently suffers from a “serious medical
need,” the undersigned finds that plaintiff has failed to establish
the objective component requiring the existence of a serious
medical need, or the subjective component requiring a showing that
defendants

“subjectively

perceived

facts

from

which

to

infer

substantial risk to the prisoner, that they did in fact draw that
inference, and that they then disregarded the risk.” Dominguez, 555
F.3d at 350. “Where a prisoner has received some medical attention
and the dispute is over the adequacy of the treatment, federal
courts are generally reluctant to second guess medical judgments
and constitutionalize claims which sound in state tort law.”
Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). For these
reasons, the undersigned Magistrate Judge finds that there is no
genuine issue of material fact for trial and that plaintiff’s
claims of deliberate indifference to serious medical needs under
§1983 must be dismissed as a matter of law.
State medical malpractice claim.

Defendants argue that

plaintiff Hamby’s state claim for medical malpractice must be

8

dismissed for his failure to comply with state law requiring a
prior notice to the healthcare provider and a certificate of good
faith as defined by Tennessee law.
Tennessee Code Annotated § 29-26-121 requires that any
person asserting a potential claim for healthcare liability shall
provide written notice of the potential claim to each healthcare
provider that will be named defendant at least sixty (60) days
before the filing of a complaint based upon healthcare liability.
Defendants Logan and Kudar have filed their affidavits stating that
they have not received any notice as required by § 29-26-121(a)
(Docket Entry Nos. 70-1 and 70-2).

In addition, Tennessee Code

Annotated § 29-26-122 requires that, in any lawsuit against a
healthcare provider in which expert testimony is required, a
plaintiff must file a certificate of good faith along with the
complaint.

According to the statute, if no certificate of good

faith is filed with the complaint, the complaint must be dismissed.
Such a certificate must state that plaintiff or plaintiff’s counsel
has consulted with one or more expert witnesses who have provided
a signed written statement confirming that (1) they are competent
to express an opinion in the case and (2) they “believe, based upon
information available, that there is a good faith basis to maintain
the action consistent with state law.”
From the record in this case, no such certificate of good
faith was filed with plaintiff Hamby’s complaint.

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The

Sixth

Circuit

has

found

that

these

notice

and

certification requirements in any medical malpractice action in
Tennessee are mandatory, and that a trial court may exercise
discretion to excuse compliance “only for extraordinary cause.”
Reed v. Speck, 2012 WL 6176846, at *7 (6th Cir. Dec. 11, 2012)
(citing Brandon v. Williamson Med. Ctr., 343 S.W. 3d 784, 790
(Tenn. Ct. App. 2010) and Tenn. Code Ann. § 29-26-121(b).
In the absence of the required pretrial notice and
certificate of good faith, the undersigned finds that there is no
genuine issue of material fact for trial, and that plaintiff
Hamby’s state claim for medical malpractice must be dismissed as a
matter of law.
RECOMMENDATION
For the reasons stated above, the undersigned Magistrate
Judge RECOMMENDS that defendants’ motion for summary judgment
(Docket Entry No. 70) be GRANTED and the complaint DISMISSED with
prejudice.

If this report and recommendation is accepted, the

undersigned RECOMMENDS that all pending motions be DENIED as MOOT.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any party has fourteen (14) days from service of this Report and
Recommendation in which to file any written objections to this
Recommendation, with the District Court.

Any party opposing said

objections shall have fourteen (14) days from receipt of any
objections filed in this Report in which to file any responses to

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said objections.

Failure to file specific objections within

fourteen (14) days of receipt of this Report and Recommendation can
constitute a waiver of further appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 (1985), reh’g denied, 474 U.S. 1111
(1986).
ENTERED this 7th day of February 2013.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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