Hamby v. Dr. Hernandez et al

Filing 113

REPORT AND RECOMMENDATION re 106 MOTION for Summary Judgment. The undersigned recommends that Dr. O'Toole's Motion for Summary Judgment ( 106 ) be GRANTED and that Mr. Hamby's claims against her be DISMISSED. Signed by Magistrate Judge Jeffery S. Frensley on 8/2/18. (xc:Pro se party by regular mail.) (gb)

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

WILLIAM D. HAMBY, JR.,
Plaintiff,
v.
MOLLY O’TOOLE, et al.,
Defendants.

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Case No. 3:17-cv-00629
Judge Trauger/Frensley

REPORT AND RECOMMENDATION
I. Introduction and Background
This matter is before the Court upon Defendant Molly O’Toole’s Motion for Summary
Judgment. Docket No. 106. Dr. O’Toole has also filed a supporting Memorandum of Law
(Docket No. 107) and a Statement of Material and Undisputed Facts (Docket No. 107-1), along
with the Declarations of Dr. O’Toole (Docket No. 107-3) and Jeffrey Scott King (Docket No.
107-4) and a copy of Mr. Hamby’s Response to Defendants’ Interrogatory No. 1 (Docket No.
107-2). The pro se Plaintiff, William Hamby, has filed a document entitled “Motion in Rebuttal/
(To Answer) Defendant’s Summary Judgement (Motion).” Docket No. 110.
Mr. Hamby filed this action pursuant to 42 U.S.C. §1983, alleging that Corizon Health,
Inc. (“Corizon”) and its employees, including Dr. O’Toole, and other defendants violated his
Eighth Amendment constitutional rights by being deliberately indifferent to his serious medical
need by denying him medical care for his hepatitis-C infection, valley fever, high cholesterol,
and neuropathic pain, and by not providing treatment for orthopedic and trauma injuries. Docket

No. 1. Mr. Hamby is suing Dr. O’Toole, a physician working at the DeBerry Special Needs
Facility, in her individual capacity. Id. at 2.
Dr. O’Toole argues that Mr. Hamby’s allegations relate only to his physical health and
conditions, and that “Dr. Molly O’Toole, who is employed by Corizon, only provides mental
health services and treatment . . . Corizon and its employee Dr. O’Toole were not involved with
the Plaintiff’s physical health services at the DeBerry Special Needs Facility or any prison in
Tennessee after September 8, 2013. Docket No. 107, p. 1-2.
The document that Mr. Hamby filed, “Motion in Rebuttal/ (To Answer) Defendant’s
Summary Judgement (Motion),” states, in total:
I, William Hamby, comes the plaintiff, By and through Pro Se,
motions to answer defendants [sic] “summary Judgement” motion:
FACT, since O’toole [sic] is an “M.D.” and since she hides
medical records, case must proceed.
Docket No. 110.
For the reasons set forth below, the undersigned recommends that Dr. O’Toole’s Motion
for Summary Judgment be GRANTED.
II. Undisputed Facts

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Dr. Molly O’Toole and Corizon were not involved with any inmate’s physical health
services at the DeBerry Special Needs facility in Nashville, Tennessee or any other facility in
Tennessee after September 8, 2013. Docket No. 107-4, p. 1. Mr. Hamby’s claims as reflected in
his Complaint arise out of treatment that occurred on or around July 4, 2015. Docket No. 107-2,
p. 4.

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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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III. Law and Analysis
A. Motions for Summary Judgment
Under Fed. R. Civ. P. 56(a), summary judgment is appropriate only “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.” The party bringing the motion has the burden of informing the Court of the basis
for its motion and identifying portions of the record that demonstrate the absence of a genuine
dispute of material facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving
party may satisfy this burden by presenting affirmative evidence that negates an element of the
nonmoving party’s claim or by demonstrating an absence of evidence to support the nonmoving
party’s case. Id. 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 (1986).
In deciding a motion for summary judgment, the Court must review all the evidence,
facts, and inferences 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 (1986); Van Gorder v.
Grand Trunk Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not
weigh the evidence, judge the credibility of witnesses, or determine the truth of the matter.
Liberty Lobby, 477 U.S. at 249. The Court determines whether sufficient evidence has been
presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla
of evidence in support of the nonmoving party’s position will be insufficient to allow the
nonmoving party’s claims to survive summary judgment; rather, the nonmoving party must
convince the Court that there is sufficient evidence for a juror to return a verdict in its favor. Id.

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“Pro se complaints are to be held to less stringent standards than formal pleadings drafted
by lawyers, and should therefore be liberally construed.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S. Ct. 1937 (2009) (internal
quotation marks omitted). Pro se litigants, however, are not exempt from the requirements of the
Federal Rules of Civil Procedure. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Further,
“a Court cannot create a claim which [a plaintiff] has not spelled out in his pleading.” Brown v.
Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011). See also Payne v. Sec’y of Treas., 73
F.App’x 836, 837 (6th Cir. 2003) (affirming sua sponte dismissal of complaint pursuant to Fed.
R. Civ. P. 8(a)(2) and stating, “[n]either this court nor the district court is required to create
Payne’s claim for her.”
B. Local Rules 56.01(c) and (g)
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.
Mr. Hamby has failed to respond to Defendants’ Statement of Material and Undisputed
Facts or to file his own Statement of Undisputed Facts. Pursuant to Local Rule 56.01(g), Mr.
Hamby’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

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that remains to be determined is whether Defendants are entitled to a judgment as a matter of
law.
C. 42 U.S.C. §1983
1. Generally
Mr. Hamby alleges violations of his Eighth Amendment rights pursuant to 42 U.S.C.
§1983. 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 (1981) (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 33031, 106 S. Ct. 662 (1986)); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S. Ct. 1729, 1733
(1978). The traditional definition of 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, quoting United
States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043 (1941).
2. Eighth Amendment
a. Generally
The Eighth Amendment provides that:
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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 (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 (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.
“[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 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).
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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 (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).
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). However, there must 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]knowledge 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). Therefore, the appropriate inquiry is “[w]as this
individual prison official aware of the risk to the inmate’s health and deliberately indifference to
it?” Thaddeus-X v. Blatter, 175 F. 3d 378, 402, citing Farmer, 511 U.S. at 837, 844.

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3. Individual Capacity Claims
42 U.S.C. § 1983 does not permit the imposition of liability based upon respondeat
superior. Polk County v. Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 454 (1981). See also
Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037 (1978); Street v.
Corrections Corp. of Am., 102 F. 3d 810, 818 (6th Cir. 1996).
In order for a defendant to be held liable in his individual capacity, a plaintiff must
demonstrate that the defendant personally condoned, encouraged, or participated in the conduct
that allegedly violated his rights. Birrell v. Brown, 867 F. 2d 956, 959 (6th Cir. 1989) (citations
omitted). See also Bellamy v. Bradley, 729 F. 2d 416, 421 (6th Cir. 1984), citing Hays v.
Jefferson County, 668 F. 2d 869, 872-74 (6th Cir. 1982) (a supervisor must have “at least
implicitly authorized, approved or knowingly acquiesced in” the misconduct.) Conclusory
allegations are not enough. See Street, 886 F. 2d at 1479; see also Anderson, 477 U.S. at 257;
Nix v. O’Malley, 160 F.3d 343, 347 (6th Cir. 1998); Lujan v. National Wildlife Fed’n, 497 U.S.
871, 888, 110 S. Ct. 3177, 3188 (1990); McDonald v. Union Camp Corp., 898 F. 2d 1155, 1162
(6th Cir. 1990). A plaintiff must establish a “causal connection between the misconduct
complained of and the official sued.” Dunn v. State of Tennessee, 697 F. 2d 121, 128 (6th Cir.
1982).
D. Analysis of the Case at Bar
It is undisputed that Mr. Hamby’s claims arise out of treatment that occurred on or
around July 4, 2015. Docket No. 107-1, p. 1. Mr. Hamby’s claims relate exclusively to alleged
non-treatment of physical conditions while he was an inmate at the DeBerry Special Needs
Facility: hepatitis-C infection, valley fever, high cholesterol, neuropathic pain, and orthopedic
and trauma injuries. Docket No. 1. It is undisputed that Dr. O’Toole was not involved with any

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inmate’s physical health services at the DeBerry Special Needs Facility (or any other facility in
Tennessee) after September 8, 2013. Docket No. 107-1, p. 1. Dr. O’Toole has provided a sworn
Declaration in which she declares that she is employed only as a provider of mental health
services to inmates. Docket No. 107-3. Jeffrey Scott King, an employee of Corizon, has
provided a sworn Declaration declaring that Corizon ceased providing medical services to
inmates at the DeBerry Special Needs Facility (among others) as of September 8, 2013, and now
provides only mental health services at Tennessee facilities. Docket No. 107-4. He further states
that “Corizon and Dr. Molly O’Toole had no involvement in the Plaintiff’s care and treatment.”
Id. Given this evidence and undisputed facts, Mr. Hamby has not demonstrated that Dr. O’Toole
personally condoned, encouraged, or participated in the conduct that allegedly violated his rights.
See Birrell, 867 F. 2d at 959. Instead, the evidence and undisputed facts indicate that Dr.
O’Toole is a mental health care provider, working for an employer (Corizon) that ceased
providing physical health care to inmates in Tennessee after September 2013, well before Mr.
Hamby’s rights were allegedly violated at the DeBerry Special Needs Facility. Accordingly, Mr.
Hamby cannot sustain his individual capacity claims against Dr. O’Toole, and she is entitled to a
judgment as a matter of law.
IV. Conclusion
For the foregoing reasons, the undersigned recommends that Dr. O’Toole’s Motion for
Summary Judgment (Docket No. 106) be GRANTED and that Mr. Hamby’s claims against her
be DISMISSED.
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

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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
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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