Shaw v. Agricola et al

Filing 51

MEMORANDUM OPINION AND ORDER. The competent summary judgment evidence shows that the defendants were not deliberately indifferent to plaintiff's serious medical needs. An inmate's dissatisfaction or disagreement with his medical treatment is insufficient to show the defendants were deliberately indifferent to his medical needs. Therefore, defendants' motion for summary judgment is granted. Signed by Judge Marcia A. Crone on 9/25/17. (mrp, )

UNITED STATES DISTRICT COURT

JOHNNY SHAW,
Plaintiff,
versus
DENNIS AGRICOLA, et al.,
Defendants.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:11-CV-152

MEMORANDUM OPINION AND ORDER
Plaintiff Johnny Shaw, a prisoner previously confined at the United States Penitentiary in
Beaumont, Texas, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 19831
against Dennis Agricola, Amanda Hensley, Prasad Surapeneni, Kathie Vines, Christina Savant,
Elizabeth Lacy, Regina Criswell, David Onuora, Oscar Currie, and Robert Toups.
Factual Background
Plaintiff alleges he broke his finger on August 28, 2010. Plaintiff alleges he sought medical
treatment on September 20, 2010, and that defendant Currie ordered surgery in October of 2010.
Plaintiff alleges the surgery was delayed until December 6, 2010, due to scheduling issues created
by defendants Agricola, Hensley, Surapaneni, Vines, Savant, Lacy, Criswell, and Onuora. Plaintiff
alleges he was administered general anesthesia on the day of surgery, but defendants Currie and
Toups decided not to proceed with the operation.

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In his original complaint, plaintiff also raised claims pursuant to the Federal Tort Claims Act (FTCA) and
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The defendants are not
federal employees, they are contract workers employed by an agency of the State of Texas. Therefore, the
civil rights claims are properly construed as arising under § 1983. Plaintiff’s FTCA claims fail because
plaintiff did not name the United States as the defendant. Atorie Air, Inc. v. Federal Aviation Administration,
942 F.2d 954, 957 (5th Cir. 1991).

Defendants’ Motion for Summary Judgment
Defendants Agricola, Criswell, Hensley, Lacy, Surapeneni, and Vines moved for summary
judgment. The defendants argued that the evidence did not demonstrate they were deliberately
indifferent to plaintiff’s serious medical needs. The motion for summary judgment was construed
as a motion filed on behalf of the unserved defendants, and plaintiff was given an opportunity to
respond to the motion. See FED. R. CIV. P. 56(f).
Defendants submitted portions of plaintiff’s medical records in support of the motion for
summary judgment. Plaintiff’s medical records reflect that he injured his right middle finger
before he was transferred to the penitentiary in Beaumont, and that he did not receive treatment
at the time of the injury. Exhibit A to Defendants’ Motion for Summary Judgment (Ex. A) at 3.
On September 21, 2010, plaintiff had a medical appointment at the Beaumont penitentiary with
Carlos Mier, a mid-level provider. Ex. A at 3. Mr. Mier noted that an x-ray showed the finger
was fractured, and he applied a splint to the finger and requested a consultation with an
orthopedist. Ex. A at 3-4. Plaintiff was released from the clinic with housing and work
restrictions. Ex. A at 4.
Plaintiff returned to the clinic on September 28, 2010 complaining of pain. Ex. A at 6.
Plaintiff was examined by defendant Onuora, a Physician’s Assistant, who ordered a splint,
referred plaintiff to an orthopedist, and continued plaintiff on pain medication. Ex. A at 7.
On October 16, 2010, plaintiff was examined in the clinic by defendant Criswell, a
Registered Nurse. Ex. A at 8-11. Defendant Criswell advised plaintiff that his orthopedic referral
had been approved, she reapplied his splint, and she advised him to continue taking his pain

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medication. Ex. A at 10. Defendant Criswell also scheduled an appointment with a provider to
evaluate plaintiff’s pain medication. Ex. A at 10.
Plaintiff was brought to the Beaumont Bone and Joint Clinic for an evaluation on October
26, 2010. Ex. A at 12. Additional diagnostic tests were recommended, but no other changes were
made to plaintiff’s treatment plan, and he was continued on the same pain medication. Ex. A at
12-13.
Plaintiff went to the penitentiary clinic on November 1, 2010, complaining of pain in his
fingers. Ex. A at 17. Plaintiff was examined by a nurse who noted that plaintiff would be
scheduled for surgery. Ex. A at 17. On November 18, 2010, plaintiff filed a prisoner request
complaining that he had broken fingers. Defendant Criswell advised plaintiff to go to nurse sick
call if he was still having problems. Ex. A at 22.
On December 6, 2010, plaintiff was brought to the Beaumont Bone and Joint Clinic for
surgery. Ex. A at 23. The orthopedic surgeon determined that the fracture had healed and no
further treatment was necessary. Ex. A at 23. Plaintiff was returned to the penitentiary with
instructions to increase his activity and to move his fingers and make a fist several times every
hour. Ex. A at 24.
Plaintiff returned to the penitentiary clinic complaining of finger pain on December 14,
2010. Defendant Agricola, a Nurse Practitioner, referred plaintiff to physical therapy, ordered
an x-ray, and continued plaintiff’s pain medication. Ex. A at 26-27.
Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the movant shows that there is no genuine dispute as to any material fact and the

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movant is entitled to judgment as a matter of law.” FED. R. CIV. PRO. 56(a). A fact is material
if it could affect the outcome of the case under the governing law. Anderson v. Liberty Lobby, 477
U.S. 242, 248 (1986); Instone Travel Tech Marine & Offshore v. International Shipping Partners,
334 F.3d 423, 427 (5th Cir. 2003). A dispute about a material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S.
at 248; Instone Travel Tech, 334 F.3d at 427.
Because summary judgment is a final adjudication on the merits, courts must employ the
device cautiously. Hulsey v. State of Texas, 929 F.2d 168, 170 (5th Cir. 1991). In prisoner pro
se cases, courts must be careful to “guard against premature truncation of legitimate lawsuits
merely because of unskilled presentations.” Jackson v. Cain, 864 F.2d 1235, 1241 (5th Cir.
1989) (quoting Murrell v. Bennett, 615 F.2d 306, 311 (5th Cir. 1980)).
Analysis
Plaintiff alleges he received inadequate medical treatment, in violation of the Eighth
Amendment of the United States Constitution.

Although the Eighth Amendment does not

explicitly mandate a certain level of medical care for prisoners, the cruel and unusual punishment
clause has been interpreted to impose a duty on prison officials to provide inmates with adequate
food, clothing, shelter, and medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Stewart
v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999). A prison official’s deliberate indifference to the
serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain
proscribed by the Eighth Amendment, whether the indifference is manifested by prison medical
staff or by prison guards. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976); Domino v. Texas Dep’t
of Criminal Justice, 239 F.3d 752, 754 (5th Cir. 2001).

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An Eighth Amendment claim consists of two components--one objective and one
subjective. Farmer, 511 U.S. at 839. To satisfy the objective requirement, plaintiff must prove
that he was exposed to a substantial risk of serious harm. Id. at 834; Lawson v. Dallas County,
286 F.3d 257, 262 (5th Cir. 2002). Plaintiff must also demonstrate that the defendants were
deliberately indifferent to that risk. See Farmer, 511 U.S. at 834; Lawson, 286 F.3d at 262. The
deliberate indifference standard is a subjective inquiry; plaintiff must establish that the defendants
were aware of an excessive risk to plaintiff’s health or safety, and yet consciously disregarded the
risk. Farmer, 511 U.S. at 840-41; Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002);
Stewart, 174 F.3d at 534.
Under exceptional circumstances, a defendant’s knowledge of a substantial risk of harm
may be inferred by the obviousness of the risk. Farmer, 511 U.S. at 842; Harris v. Hegman, 198
F.3d 153, 159 (5th Cir. 1999); Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). Medical
records of sick calls, examinations, diagnoses, and medications may rebut an inmate’s allegations
of deliberate indifference. Banuelos v. McFarland, 41 F.3d 232, 235 (5th Cir. 1995).
Mere negligence, neglect, or medical malpractice does not rise to the level of a
constitutional violation. Domino, 239 F.3d at 756 (“It is indisputable that an incorrect diagnosis
by prison medical personnel does not suffice to state a claim for deliberate indifference.”); Hall
v. Thomas, 190 F.3d 693, 697 (5th Cir. 1999) (“[A]llegations of malpractice or negligence will
never state a claim under the Eighth Amendment.”); Stewart, 174 F.3d at 534. Nor does an
inmate’s disagreement with his medical treatment amount to an Eighth Amendment violation.
Stewart, 174 F.3d at 537; Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir. 1997). “Rather, the
plaintiff must show that the officials ‘refused to treat him, ignored his complaints, intentionally

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treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton
disregard for any serious medical needs.’” Domino, 239 F.3d at 756 (quoting Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985)).
The competent summary judgment evidence shows that the defendants were not deliberately
indifferent to plaintiff’s serious medical needs. The medical records reflect that the injury occurred
several weeks before plaintiff arrived at the Beaumont penitentiary, and that plaintiff had not
received any medical treatment prior to his transfer to Beaumont. After he arrived in Beaumont,
plaintiff was evaluated by the medical staff on multiple occasions, x-rays were taken, pain
medication was prescribed, and plaintiff was referred to an orthopedic surgeon outside the prison
system. Ultimately, the orthopedic surgeon determined that surgery was not necessary because
the fractured finger had healed. When plaintiff continued to complain of pain and reduced
function in his finger, the medical staff prescribed pain medication and ordered physical therapy.
Although he received a significant amount of medical care, plaintiff is dissatisfied with the
treatment he received because he continues to have reduced function in his finger. However, an
inmate’s dissatisfaction or disagreement with his medical treatment is insufficient to show the
defendants were deliberately indifferent to his serious medical needs. Therefore, defendants’
motion for summary judgment should be granted.

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ORDER
For the reasons set forth above, defendants’ motion for summary judgment (#47) is
GRANTED. A final judgment will be entered in accordance with this memorandum opinion and
order.
So ORDERED and SIGNED this 25th day of September, 2017.

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