Lyle v. Montgomery County Jail et al

Filing 35

REPORT AND RECOMMENDATION: For the foregoing reasons, the undersigned recommends that Defendant Ison's Motion for Summary Judgment (Docket No. 26 ) be GRANTED. Signed by Magistrate Judge Jeffery S. Frensley on 2/8/2017. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

ROBERT DOUGLAS LYLE,
Plaintiff,
v.
MONTGOMERY COUNTY, et al
Defendant.

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Case No. 3:15-cv-01065
Judge Crenshaw / Frensley

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon Defendant Jessica Ison’s Motion for Summary
Judgment. Docket No. 26. Along with that Motion, Defendant has filed a supporting
Memorandum of Law (Docket No. 27), a Statement of Undisputed Material Facts (Docket No.
28), and the Affidavits of Jessica Ison (“Ison Aff.”) (Docket No. 26-1) and Cynthia Evans
(“Evans Aff.”) (Docket No. 26-2), as well as Plaintiff’s Jail medical records (Docket Nos. 26-3 26-7).
Plaintiff has not responded to Defendant’s Motion or Statement of Undisputed Material
Facts, nor has he filed his own Statement of Undisputed Material Facts.
Plaintiff originally filed this pro se, in forma pauperis action pursuant to 42 U.S.C. §
1983, alleging the following:
1.) On or About Aug. 5, 2015 I have been received little or no
food on my trays.
2.) On or About Aug. 10, 2015 Female Deputy’s look at inmates
showering.

3.) On or About Sept. 26, 2015 Deputy Paul Carter could not give
me any answers to my questions about my state time at all.
4.) Nurse Ison RN has not or have I [sic] received - medical
treatment for hemorrhoids 9-28-2015
5.) Female nurses look at male inmates and male doctor’s and
male nurses look at female inmates. 9-28-2015
6.) Search of cells with inmates not there when cell is searched.
Docket No. 1.
An Order entered on October 14, 2015, dismissed all of Plaintiff’s claims against
Montgomery County except for his claim related to female guards being able to see male inmates
while they were showering and all of his claims against the other named Defendants except his
deliberate indifference to a serious medical need claim against Nurse Jessica Ison for not treating
his hemorrhoids on September 28, 2015.1 See Docket Nos. 3, 4.
Defendant Jessica Ison filed the instant Motion and supporting materials arguing that
Plaintiff cannot establish either that he had a serious medical need or that Defendant acted with
deliberate indifference to any such need. Docket No. 27. Defendant acknowledges that whether
a hemorrhoid is a serious medical need has not been definitively answered by the courts, but

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Plaintiff originally sued the Montgomery County Jail, Correct Care Solutions, Nurse
Jessica Ison, Paul Carter, and Montgomery County. See Docket No. 1. Plaintiff’s claims against
the Montgomery County Jail, Correct Care Solutions, and Paul Carter were dismissed in an
Order entered October 14, 2015, however, and they were terminated as parties in this action. See
Docket Nos. 3, 4. The only remaining Defendants, therefore, are Montgomery County and Nurse
Jessica Ison. Defendant Montgomery County filed a “Motion to Dismiss Plaintiff’s Complaint,
or in the Alternative for Summary Judgment” (Docket No. 29), which the undersigned
recommend be granted in a Report and Recommendation filed on February 8, 2017 (Docket No.
34). Accordingly, the only claims still pending before the undersigned are the instant claims
against Defendant Jessica Ison.
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notes that a “couple of cases” within the Sixth Circuit “have suggested that a hemorrhoid is not a
sufficiently serious medical need to support a Section 1983 claim.” Id., citing Williams v.
McLemore, 1999 U.S. Dist. LEXIS 12634, at *17 (E.D. Mich. 1999); Voorhees v. Huber, 2010
U.S. Dist. LEXIS 82102, at *3 (W.D. Ky. 2010); Cole v. Tennessee, 2014 U.S. Dist. LEXIS
99353, at *3 (M.D. Tenn. 2014)..
Defendant argues that, as an initial matter, there was no evidence that Plaintiff’s
hemorrhoid was a life threatening condition, posed a serious risk to his health, or worsened on
the day in question. Id. Defendant further argues that hemorrhoids are a condition that does not
necessarily require attention from a physician to be treated. Id., citing Ison Aff., ¶ 8. She notes
that hemorrhoids are commonly treated with over-the-counter topical creams and suppositories,
and adds that in some instances, hemorrhoids can resolve without any medical attention. Id.
Defendant asserts that the existence of a hemorrhoid does not necessarily mean that Plaintiff
would be at risk to develop a more serious health condition. Id.
Defendant additionally argues that Plaintiff did receive medical attention on September
28, 2015 for his hemorrhoid. Id. Defendant notes that, on September 28, 2015, Plaintiff
received medical attention for his hemorrhoid from Nurse Courtney Steele and Nurse Andrew
Lynch, and ultimately received attention from a physician who prescribed an over-the-counter
topical cream and suppository for Plaintiff’s hemorrhoid. Id., citing Plaintiff’s medical records,
Exhibits 2, 3, 4.
Moreover, Defendant argues that Plaintiff cannot demonstrate that she was aware of a
substantial risk of serious harm to him that she disregarded. Id. Defendant notes that Plaintiff’s
only allegation against her is conclusory in nature and fails to include any facts pertaining to her
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conduct. Id. Defendant contends that Plaintiff’s medical records demonstrate that he received
appropriate and timely medical care for his hemorrhoid on the date in question. Id. Defendant
argues that although Plaintiff may disagree with the course of treatment provided for his
hemorrhoid, such disagreement does not constitute deliberate indifference. Id., citing Estelle v.
Gamble, 429 U.S. 97, 102-03, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). Additionally, the
medical records show that Defendant did not have any direct involvement in the evaluation and
treatment of Plaintiff’s hemorrhoid; rather, her involvement was limited to observing Nurse
Steele’s conduct during Plaintiff’s sick call examination, during which Plaintiff refused the rectal
exam that was necessary to evaluate and treat his hemorrhoid. Id. Defendant notes that she was
not present later in the day when Plaintiff underwent his rectal examination with Nurse Andrew
Lynch and received treatment orders from the on-call physician. Id. Defendant contends,
therefore, that Plaintiff simply cannot demonstrate that she was personally involved in the
activities giving rise to his claims, such that she is entitled to a judgment as a matter of law. Id.
For the reasons set forth below, the undersigned recommends that Defendant Jessica
Ison’s “Motion for Summary Judgment” (Docket No. 26) be GRANTED.
II. Undisputed Facts2
A. Relevant Allegations of Plaintiff’s Verified Complaint
As pertains to Plaintiff’s sole remaining claim against the instant Defendant, Plaintiff
asserts that she did not treat his hemorrhoids on September 28, 2015. Docket No. 1.

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Unless otherwise noted, the following facts are in a form required by Fed. R. Civ. P. 56,
and are undisputed.
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B. Affidavit of Jessica Ison
At all times relevant to the instant action, Jessica Ison was employed as the Health
Services Administrator (“HSA”) for Correct Care Solutions, LLC (“CCS”) in Montgomery
County, and is a registered nurse. Docket No. 26-1, Ison Aff., ¶ 2. As the HSA, her duties
include the supervision and coordination of healthcare services at the Montgomery County Jail.
Id. On occasion, she also treats patients at the Montgomery County Jail. Id.
As the HSA, Nurse Ison was present in the sick call room on September 28, 2015, when
Plaintiff was evaluated by sick call nurse Courtney Steele, R.N. Id., ¶ 3. Nurse Steele was a
recently hired nurse in the last day of her new employee training, so Nurse Ison was present
during Plaintiff’s evaluation in order to observe Nurse Steele for training purposes and be
available to answer any questions Nurse Steele may have. Id. Nurse Steele did not ask Nurse
Ison any questions during her examination of Plaintiff on that day. Id.
Nurse Ison’s duties on September 28, 2015 did not include treating patients on sick call.
Id., ¶ 4. Although present during Plaintiff’s sick call visit on September 28, 2015, Nurse Ison
was not directly involved with evaluating and/or treating Plaintiff’s hemorrhoid complaint. Id., ¶
5.
On September 28, 2015, Plaintiff refused a rectal examination from Nurse Steele and/or
any female healthcare provider. Id., ¶ 6. Plaintiff requested a male healthcare provider to
perform the rectal examination. Id. Nurse Steele complied with Plaintiff’s request and set up a
rectal examination by male nurse Andrew Lynch, R.N., which took place later the same day. Id.
Nurse Ison was not present when Plaintiff underwent the rectal examination by Nurse Lynch. Id.,
¶ 7.
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As a registered nurse, Nurse Ison has evaluated and treated patients with hemorrhoids.
Id., ¶ 8. Based on her experience, education, and training, Nurse Ison is of the opinion that
hemorrhoids are not a life threatening condition and do not pose a serious health risk. Id.
Additionally, she is of the opinion that hemorrhoids may resolve without medical treatment, are
often treated with over-the-counter topical creams and suppositories, and do not necessarily
require medical attention from a physician. Id.
C. Affidavit of Cynthia Evans
At all times relevant to the instant action, Cynthia Evans was employed as an
administrative assistant and medical records custodian for CCS at the Montgomery County Jail
(“Jail”). Docket No. 26-2, Evans Aff., ¶ 2. Ms. Evans is familiar with the medical records of the
inmates at the Jail and the manner in which they are created, stored, and maintained. Id.
During Plaintiff’s incarceration at the Jail, he had numerous visits and appointments with
CCS medical personnel. Id., ¶ 3. A record was generated during each visit and each sick call
request that was made by Plaintiff. Id. True and accurate copies of Plaintiff’s relevant medical
records from CCS are attached as Exhibits 1-5. Id., ¶ 4.
III. Analysis
A. Local Rules 7.01(b) and 56.01(c) and (g)
Local Rule 7.01(b) states, in pertinent part:
b. Response. Each party opposing a motion shall serve and file a
response, memorandum, affidavits and other responsive material
not later than fourteen (14) days after service of the motion, except,
that in cases of a motion for summary judgment, that time shall be
twenty-one (21) days after the service of the motion, unless
otherwise ordered by the Court. Failure to file a timely response
shall indicate that there is no opposition to the motion.
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Defendant filed the instant Motion on September 29, 2016. Docket No. 26. Plaintiff has
failed to respond to Defendant’s Motion.
Additionally, with respect to Motions for Summary Judgment specifically, Local Rules
56.01(c) and (g) state, in pertinent part:
c. Response to Statement of Facts. Any party opposing the
motion for summary judgment must respond to each fact set forth
by the movant by either (i) agreeing that the fact is undisputed; (ii)
agreeing that the fact is undisputed for the purpose of ruling on the
motion for summary judgment only; or (iii) demonstrating that the
fact is disputed. Each disputed fact must be supported by a citation
to the record. ...
...
g. Failure to Respond. Failure to respond to a moving party’s
statement of material facts, or a non-moving party’s statement of
additional facts, within the time periods provided by these Rules
shall indicate that the asserted facts are not disputed for the
purposes of summary judgment.
Plaintiff has failed to respond to Defendant’s Statement of Undisputed Material Facts or
file his own Statement of Undisputed Material Facts. Pursuant to Local Rule 56.01(g), Plaintiff’s
failure to respond indicates “that the asserted facts are not disputed for the purposes of summary
judgment.” Accordingly, there are no genuine issues as to any material fact and all that remains
to be determined is whether Defendant is entitled to a judgment as a matter of law.
B. Motion for Summary Judgment
It would be inappropriate to grant Defendant’s Motion solely on the ground that Plaintiff
has failed to respond. See Stough v. Mayville Community Schools, 138 F.3d 612, 614 (6th Cir.
1998). As the Sixth Circuit has stated:
[A] district court cannot grant summary judgment in favor of the
movant simply because the adverse party has not responded. The
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Court is required, at a minimum, to examine the movant’s Motion
for Summary Judgment to ensure that he has discharged [his
initial] burden ... The federal rules require that the party filing a
Motion for Summary Judgment “always bears the burden of
demonstrating the absence of a genuine issue as to a material fact.”
Id. (citations omitted). The Court will, therefore, consider whether Defendant has met her
burden under the appropriate summary judgment standards discussed below.
Under Fed. R. Civ. P. 56(c), summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” A dispute is “genuine” only if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).
In order to prevail on a Motion for summary judgment, the moving party must meet the
burden of proving the absence of a genuine issue as to material fact concerning an essential
element of the opposing party’s claim. Celotex v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548,
2553, 91 L. Ed. 2d 265 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir.
1989). In determining whether the moving party has met its burden, the Court must view the
evidence in the light most favorable to the nonmoving party. Matsushita Electric Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
Fed. R. Civ. P. 56 provides that the nonmoving party may not rest upon the mere
allegations or denials of his or her pleading, but his or her response, by affidavits or otherwise,
must set forth specific facts showing that there is a genuine issue for trial. If a nonmoving party,
however, fails to make a showing sufficient to establish the existence of an element essential to
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that party’s case, and on which that party will bear the burden of proof at trial, there is no genuine
issue as to any material fact because a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex, 477 U.S. at
322-23, 106 S. Ct. at 2552, 91 L. Ed. 2d at 273. When this occurs, the moving party is entitled to
summary judgment as a matter of law. Id. at 322-23, 106 S. Ct. at 2552; Williams v. Ford Motor
Co., 187 F.3d 533, 537-38 (6th Cir. 1999).
C. 42 U.S.C. § 1983
1. Generally
Plaintiff generally alleges violations of his Eighth Amendment rights pursuant to 42
U.S.C. § 1983. See Docket No. 1. Section 1983 provides, in part, that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or 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...
Thus, in order to state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48, 108 S. Ct. 2250, 2254-55 (1988), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct.
1908, 1913, 68 L. Ed. 2d 420 (1981) (overruled in part on other grounds, Daniels v. Williams,
474 U.S. 327, 330-331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)); Flagg Bros., Inc. v. Brooks,
436 U.S. 149, 155, 98 S. Ct. 1729, 1733, 56 L. Ed. 2d 185 (1978). The traditional definition of

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acting under color of state law requires that the defendant in a § 1983 action have exercised
power “possessed by virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” Id. at 49, 108 S. Ct. 2255, quoting United States v. Classic, 313
U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941).
2. Eighth Amendment
a. Generally
The Eighth Amendment provides that:
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
U.S. Const. amend. VIII.
The United States Supreme Court has held that the constitutional prohibition of “cruel
and unusual punishments” forbids punishments that are incompatible with “the evolving
standards of decency that mark the progress of a maturing society,” or which “involve the
unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S. Ct.
285, 290, 50 L. Ed. 2d 251 (1976) (citations omitted).
In order to establish an Eighth Amendment claim, an inmate must satisfy a two-prong
test: (1) the deprivation alleged must be objectively serious; and (2) the official responsible for
the deprivation must have exhibited deliberate indifference to the inmate’s health or safety.
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811 (1994).
b. Deliberate Indifference To Serious Medical Needs
The State has a constitutional obligation, under the Eighth Amendment, to provide
adequate medical care to those whom it has incarcerated. Estelle, 429 U.S. at 104, 97 S. Ct. at

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291.
“[D]eliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle, 429
U.S. at 104. This is true “whether the indifference is manifested by prison doctors in their
response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to
medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05.
Not every prisoner’s allegation of inadequate medical treatment, however, is a violation
of the Eighth Amendment. Estelle, 429 U.S. at 105. For instance, courts have held that the
accidental, inadvertent, or negligent failure to provide adequate medical care does not state such
a claim. Id. at 105-06 (citations omitted).
Pursuant to Supreme Court precedent, the Sixth Circuit held, in Hunt v. Reynolds, that
Eighth Amendment deliberate indifference claims must contain both an objective component,
“that [plaintiff’s] medical needs were sufficiently serious,” and a subjective component, “that the
defendant state officials were deliberately indifferent to the plaintiff’s needs.” 974 F.2d 734, 735
(6th Cir. 1992) (citations omitted).
In order to satisfy the objective requirement, the Supreme Court requires that an inmate
demonstrate evidence of a current harm or evidence of a medical complaint or condition of
confinement that “is sure or very likely to cause serious illness and needless suffering.” Helling
v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 2480, 125 L. Ed. 2d 22 (1993). Under the Eighth
Amendment, inmate plaintiffs, must allege, at the very least, unnecessary pain or suffering
resulting from prison officials’ deliberate indifference. Id. (prisoner alleging that he suffered
pain and mental anguish from delay in medical care states a valid Eighth Amendment claim).
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As for the subjective element, the Sixth Circuit has held that “a determination of deliberate
indifference does not require proof of intent to harm.” Weeks v. Chaboudy, 984 F.2d 185, 187
(6th Cir. 1993). There must, however, be a showing of deliberate indifference to an inmate’s
serious medical needs. Molton v. City of Cleveland, 839 F.2d 240, 243 (6th Cir. 1988), citing
Westlake v. Lucas, 537 F. 2d 857, 860 n. 3 (6th Cir. 1976). In fact, “[k]nowledge of the asserted
serious needs or of circumstances clearly indicating the existence of such needs, is essential to a
finding of deliberate indifference.” Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th
Cir. 1994) (citations omitted). The inquiry, therefore, according to the Sixth Circuit, is “[w]as this
individual prison official aware of the risk to the inmate’s health and deliberately indifferent to
it?” Thaddeus-X, 175 F.3d at 402, citing Farmer v. Brennan, 511 U.S. 825, 837, 844, 114 S. Ct.
1970, 1979, 1982-83, 128 L. Ed. 2d 811 (1994).
D. The Case at Bar
Although Plaintiff asserts that Defendant Ison did not treat his hemorrhoids on September
28, 2015, the undisputed medical records establish that Plaintiff’s hemorrhoids were, in fact,
treated on that date. See Docket Nos. 26-1 - 26-7. It is further undisputed that Defendant Ison
was present in the sick call room on September 28, 2015, when Plaintiff was evaluated by sick
call nurse Courtney Steele, R.N., and that Nurse Steele was a recently hired nurse in the last day
of her new employee training, so Defendant Ison was present during Plaintiff’s evaluation in
order to observe Nurse Steele for training purposes and be available to answer any questions
Nurse Steele may have, but Nurse Steele did not ask Defendant Ison any questions during her
examination of Plaintiff on that day. Ison Aff., ¶ 3. It is additionally undisputed that Defendant
Ison’s duties on September 28, 2015 did not include treating patients on sick call, and that,
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although present during Plaintiff’s sick call visit on September 28, 2015, Defendant Ison was not
directly involved with evaluating and/or treating Plaintiff’s hemorrhoid complaint. Id., ¶ 4, 5.
Moreover, it is undisputed that on September 28, 2015, Plaintiff refused a rectal
examination from Nurse Steele and/or any female healthcare provider, instead requesting a male
healthcare provider to perform the rectal examination. Id., ¶ 6. Accordingly, Nurse Steele
complied with Plaintiff’s request and set up a rectal examination by male nurse Andrew Lynch,
R.N., which took place later the same day, but Defendant Ison was not present when Plaintiff
underwent the rectal examination by Nurse Lynch. Id., ¶ 6, 7.
Because it is undisputed that Plaintiff received medical attention for his hemorrhoids on
September 28, 2015, Plaintiff simply cannot sustain his deliberate indifference claims against
Defendant, and she is entitled to a judgment as a matter of law.3
IV. Conclusion
For the foregoing reasons, the undersigned recommends that Defendant Ison’s Motion for
Summary Judgment (Docket No. 26) be GRANTED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14)
days after 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 after service of any objections filed to this Report in which to file any
response to said objections. Failure to file specific objections within fourteen (14) days of
service of this Report and Recommendation can constitute a waiver of further appeal of this
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Because it is undisputed that Plaintiff received medical care for his hemorrhoids on
September 28, 2015, it is unnecessary for the undersigned to render an opinion on whether
hemorrhoids constitutes a serious medical condition, and the undersigned declines to do so.
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Recommendation. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L. Ed. 2d 435 (1985),
reh’g denied, 474 U.S. 1111 (1986); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72.

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JEFFERY S. FRENSLEY
United States Magistrate Judge

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