Kimbrough v. Seahorn

Filing 79

REPORT AND RECOMMENDATION: The Magistrate Judge recommends that the defendant David Seahorn's motion for summary judgment be GRANTED and that defendant Madubueze Nwozo's motion for summary judgment be GRANTED. Signed by Magistrate Judge John S. Bryant on 6/24/2014. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JAMES KIMBROUGH,
v.
DAVID SEAHORN, et al.

)
)
)
)
)
)

No. 3:13-0220
Judge Campbell/Bryant

To: The Honorable Todd Campbell, District Judge
REPORT AND RECOMMENDATION
This matter is on referral to the undersigned for, inter alia, pretrial management of
this case, including recommendation for ruling on any dispositive motions. (Docket Entry No. 8)
Currently pending is a motion for summary judgment by defendant David Seahorn, MS-PAC
(“Mr. Seahorn”) (Docket Entry No. 63) and a motion for summary judgment by defendant
Madubueze Nwozo, M.D. (“Dr. Nwozo”). (Docket Entry No. 68) For the reasons stated below,
the Magistrate Judge recommends that defendants’ motions for summary judgment be
GRANTED.
Statement of the Case
The plaintiff, proceeding pro se and in forma pauperis, filed this civil rights
action pursuant to 42 U.S.C. § 1983 alleging that defendants Mr. Seahorn and Dr. Nwozo have
violated his Eighth Amendment right by their deliberate indifference to his serious medical needs
while confined as a prisoner at the Lois M. DeBerry Special Needs Facility (“DSNF”) in
Nashville, Tennessee. (Docket Entry No. 1, 13) Plaintiff alleges he has a mass or “knot” in the
deep tissue on the right side of his neck that “appears to be rid[ing] or connected to his carotid
artery.” (Docket Entry No. 1 at 10) The plaintiff admits that the knot has been there for
approximately ten years, but he claims that it began affecting his cardiovascular health over the

1

past couple years. Id. The plaintiff is convinced that his carotid artery is now almost completely
blocked by the knot on his neck, and that he may be on the verge of heart failure “due to the
continuous strain being put on his heart.” Id. at 21. He claims that he has made numerous
complaints about the mass to healthcare officials at DSNF. Id. at 16. He also alleges that his
blood pressure, even while he is on medication, is never under 140 over 90, but he has never
been placed on an order for it to be checked regularly. Id. at 21. Instead, the plaintiff’s blood
pressure is checked monthly as a matter of standard protocol at the prison. Id.
Mr. Seahorn is the physician’s assistant at the prison and plaintiff alleges that he
is “the healthcare official who is ultimately responsible for the plaintiff’s general healthcare
concerns.” Id. at 11. The plaintiff alleges that he has been confined at DSNF for the past year
and has requested to be evaluated by a medical doctor dozens of times, but that Mr. Seahorn has
refused to refer him for examination or treatment by a medical doctor. Id. at 13. Instead, Mr.
Seahorn has frequently told the plaintiff that he should take his medications and avoid doing
strenuous exercise or heavy lifting. Id. at 13-14.
Plaintiff claims he told Mr. Seahorn in an April 2012 examination that he was
having headaches and dizziness and that the area on his neck hurt all the time. Id. at 15.
Plaintiff alleges Mr. Seahorn told him to “keep an eye” on the knot. Since then, the plaintiff
claims he has been experiencing pain radiating from the knot into his head, constant dizziness
and severe headaches on a daily basis, a feeling of pressure in his head, and a “strangled” feeling.
Id. at 15-16. The plaintiff also states that he has been examined by various staff nurses who have
all expressed their concern about his condition and referred him to be seen by Mr. Seahorn, but
Mr. Seahorn consistently chose not to see him. Id. at 17.

2

The plaintiff filed an inmate grievance with DSNF on February 19, 2013, but he
claims he never received a response. Id. at 26. The plaintiff, proceeding pro se and in forma
pauperis, filed a complaint with this Court against Mr. Seahorn on March 12, 2013. (Docket
Entry No. 1) Mr. Seahorn, who claims he was unaware that the plaintiff had a mass or lump on
his neck until he received the complaint, subsequently referred the plaintiff to Dr. Nwozo.
(Docket Entry No. 65 at 3)
Dr. Nwozo evaluated the plaintiff on April 15, 2013. He noticed a “small rubbery
knot on the right anterior neck, non-tender.” (Docket Entry No. 50 at 3) The rest of the
examination was normal. His assessment was “small lipoma, right neck.” He prescribed
Tylenol for plaintiff’s headaches. Id. On April 22, 2013, plaintiff filed a motion to amend his
complaint in order to add Dr. Nwozo as a defendant. (Docket Entry No. 13)
Dr. Nwozo had a follow-up visit with plaintiff on May 7, 2013. (Docket Entry
No. 69 at 3-4) At this visit, Dr. Nwozo assessed the lump as a “questionable lipoma” and
referred the plaintiff for an ENT surgery consult with Mark Williams M.D. (“Dr. Williams”).
Dr. Nwozo also claims he recommended an x-ray of the soft tissue of the neck, but the plaintiff
declined to have the x-ray done. Id. Plaintiff denies declining the x-ray. (Docket Entry No. 74
at 5) Regardless, a CT scan was done on June 17, 2013. Id. at 15. There were no neck masses
or significant adenopathy noted, but Dr. Williams recommended further evaluation of the
mandibular area. Id.
Mr. Seahorn submitted a motion for summary judgment on November 5, 2013
(Docket Entry No. 63) and Dr. Nwozo submitted a motion for summary judgment on December
2, 2013. (Docket Entry No. 68) The defendants have both alleged that summary judgment is
appropriate because 1) the plaintiff has not suffered a sufficiently serious medical need the denial

3

of which could constitute an Eighth Amendment violation, and (2) the defendants have not acted
with deliberate indifference regarding the plaintiff’s medical conditions. The plaintiff responded
to both of the motions for summary judgment requesting that they be denied. (Docket Entry
Nos. 67, 74)
Legal Analysis
(1) Standard of Review
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary
judgment should be rendered “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.” In determining whether
the movant has met its burden, the court must view the evidence in the light most favorable to
the nonmoving party. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). The nonmoving party's
burden of providing specific facts demonstrating the existence of a genuine issue of material fact
for trial is triggered after the moving party shows an absence of evidence to support the
nonmoving party's case. Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2554 (1986). Conclusory
allegations that are not supported by specific evidence are insufficient to establish a genuine
issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 110 S. Ct. 3177, 3188 (1990). “Where the
moving party has carried its burden…, its opponent must do more than simply show that there is
some metaphysical doubt as to the material facts….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.’”
Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

4

(2) Legal Standard to Recover under 42 U.S.C. § 1983
A prisoner’s right to be free from cruel and unusual punishment is violated if a
prison doctor or official is deliberately indifferent to the prisoner’s serious medical needs.1
Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001). The Supreme Court has explained
that deliberate indifference to a prisoner’s serious medical needs constitutes the unnecessary and
wanton infliction of pain prohibited 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 or with knowledge
that harm will result.” Farmer v. Brennan, 511 U.S. 825, 835 (1994). Basically, there must be a
knowing failure or refusal to provide urgently needed medical care which exposes the prisoner to
“undue suffering or the threat of a tangible residual injury.” Westlake v. Lucas, 537 F.2d 857,
860 (6th Cir. 1976). The courts must consider the discretion provided to prison officials in their
treatment of prisoners under authorized medical procedures. Id. A delay or even a denial of
medical treatment for a nonserious, superficial physical condition does not amount to a
constitutional violation. Blackmore v. Kalamazoo County, 390 F.3d 890, 897 (6th Cir. 2004).
There is an objective and a subjective component to a deliberate indifference
claim. Farmer, 511 U.S. at 834. The objective component requires the existence of a
sufficiently serious medical need. Id. 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.” Harrison v. Ash, 539 F. 3d 510, 518 (6th Cir.
2008). The subjective component requires that the defendant have a “sufficiently culpable state
of mind.” Farmer, 511 U.S. at 834. In other words, a plaintiff must show that the prison official
1

As the defendant himself has done, the Magistrate Judge is assuming without deciding that Dr. Nwozo was “acting
under the color of state law” when he treated the plaintiff as is required for a plaintiff to state a claim under 42
U.S.C. § 1983. See Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992).

5

“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.” Dominguez v. Corrections Med.
Servs., 555 F.3d 543, 550 (6th Cir. 2009) (quoting Comstock, 273 F.3d at 703).
In support of his motion for summary judgment, Mr. Seahorn submitted a
chronological summary of care based on the TDOC medical records. (Docket Entry No. 65 at 510) The summary details multiple visits plaintiff had with healthcare professionals, including
those with the defendants. The summary indicates that the plaintiff was receiving regular
medical treatment. See Id. The plaintiff has objected to the summary as “rank hearsay,” but has
not indicated that any specific parts of the summary are false. (Docket Entry No. 67 at 9)
Although plaintiff insists that he is suffering from a serious and life-threatening
medical condition (Docket Entry No. 1 at 19-20), he has not offered any competent evidence to
establish a triable issue on this claim. The plaintiff has not presented a single statement by any
of the health care providers involved in his care indicating that his medical condition is serious or
life-threatening. Further, the plaintiff had the knot on his neck before he was incarcerated at
DSNF under the care of Mr. Seahorn (Docket Entry No. 1 at 13) and has been living with the
knot for the past ten years. (Docket Entry No. 1 at 10)
The plaintiff admits he was evaluated by an ENT surgeon, Dr. Williams, at Dr.
Nwozo’s request. (Docket Entry No. 74 at 2) Dr. Williams ordered a CT scan and indicated that
there were no significant neck masses or adenopathy noted. Id. at 15. Although Dr. Williams
indicated that additional observation would be “helpful,” there is no indication that the knot on
his neck was considered serious or life-threatening, or mandated treatment which defendants
denied to plaintiff. Id.

6

In the absence of any competent evidence that the knot on plaintiff’s neck was or
should have been regarded by anyone but himself as requiring heightened medical attention, the
undersigned finds that plaintiff has failed to establish the objective component requiring the
existence of a serious medical need, and the subjective component requiring a showing that
defendants “subjectively perceived facts from which to infer substantial risk to the prisoner.”
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
537 F.2d at 860 n.5. For these reasons, the undersigned Magistrate Judge concludes that there is
no genuine issue of material fact for trial and that defendants are entitled to judgment as a matter
of law on plaintiff’s claims of deliberate indifference to serious medical needs under §1983.
Recommendation
For the reasons stated above, the Magistrate Judge recommends that the defendant
David Seahorn’s motion for summary judgment be GRANTED and that defendant Madubueze
Nwozo’s motion for summary judgment be GRANTED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any party
opposing said objections shall have fourteen (14) days from receipt of any objections filed to this
Report in which to file any responses to 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); Cowherd v.
Million, 380 F.3d 909, 912 (6th Cir. 2004) (en banc).

7

ENTERED this 24th day of June, 2014.

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

8