Nelson v. Griffin et al

Filing 116

ORDER ADOPTING REPORT AND RECOMMENDATION for 109 Report and Recommendation. It is ORDERED that Defendants Motions for Summary Judgment (Docket Nos. 91, 92) are GRANTED and the above-styled civil action is DISMISSED WITH PREJUDICE. All other motions pending in this matter are DENIED. Signed by District Judge Robert W. Schroeder, III on 3/12/2018. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
BRIAN NELSON,
Plaintiff,
v.
RORY L GRIFFIN ET AL.,
Defendants.

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CIVIL ACTION NO. 5:16-CV-00049-RWS

ORDER ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Brian Nelson, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Bowie County
Correctional Center. Plaintiff named as Defendants Warden Bob Page, Dr. J. Shah, Nurse
Regina Lynch, and Rory Griffin, Deputy Director for Health and Correctional Services in the
State of Arkansas. Of these Defendants, Director Griffin and Warden Page have previously been
dismissed. This Court referred the case to the United States Magistrate Judge pursuant to 28
U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the
Assignment of Duties to United States Magistrate Judges.
I.

Background
A. Plaintiff’s Complaint
Plaintiff is a prisoner of the Arkansas Department of Corrections (ADC) who was housed

for almost two years in the Bowie County Correctional Center under an agreement between
Bowie County and the State of Arkansas. Plaintiff asserts that he injured his back while being
transported from Malvern, Arkansas to the Bowie County Correctional Center on July 31, 2015.

Docket No. 2 at 4. According to Plaintiff, he repeatedly sought medical care but was not able to
see the physician, Dr. Shah, until September 9, 2015. Id. at 4–9. He states that Dr. Shah was
very rude to him and that Dr. Shah told him it was not his backbone but his pelvic bone which
was protruding. Id. at 5. Plaintiff further explains that the nurse told him she was ordering pain
medication and muscle relaxants but it would be a while before they came in. Id. at 5–6.
Plaintiff states that two months after not receiving medication except for ibuprofen,
Plaintiff filed an emergency grievance. Id. at 5. According to Plaintiff, Nurse Lynch responded
by stating his pain medication had not yet come in and that the doctor did not order an MRI. Id.
at 6. Plaintiff further states that he appealed Nurse Lynch’s response to Rory Griffin and
received a note stating he would get a response to the grievance by December 10, 2015. Id.
Plaintiff notes that he never received a response to that sick call. Id.
Plaintiff further alleges that he continued filing sick call requests and saw Dr. Shah for
the fourth time on December 11, 2015. Id. at 7. According to Plaintiff, Dr. Shah was rude to
him and told him that he would not perform surgery on Plaintiff’s back. Id. Plaintiff explains
that he told Dr. Shah none of the medications were working but was told to leave. Id.
On January 6, 2016, Griffin denied Plaintiff’s grievance, stating Plaintiff had been seen
numerous times for his complaints of back pain and has been treated as deemed appropriate by
the medical providers. Docket No. 5-3 at 16. Plaintiff continued filing grievances and sick call
requests, some of which were answered by Nurse Lynch but most of which were ignored. See
Docket No. 5-3 at 17–28. Nurse Lynch told him in multiple grievance responses the Arkansas
Department of Correction would not approve an MRI for him because the X-rays taken had
proven normal. See Docket No. 5-3 at 26. On February 22, 2016, Plaintiff wrote to Warden
Page asking for help in getting an MRI but did not receive an answer. Docket No. 2 at 9.

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Plaintiff has filed an original Complaint (Docket No. 2), First Supplemental Complaint
(Docket No. 5), and a Second Supplemental Complaint (Docket No. 8). Attached to the First
Supplemental Complaint are 38 sick call requests, two grievance forms and an inmate request for
services form. The response to one of these sick call requests, signed by Nurse Lynch, states
“what diagnosis do you have? According to your X-ray your spine is normal. You show no
evidence of the diagnosis you’re stating you have. ADC denied your MRI because your X-ray is
Normal!!!” Docket No. 5-3 at 26.
Attached to the Second Supplemental Complaint are a grievance form and 26 sick call
requests, 12 of which are duplicated from the First Supplemental Complaint. Plaintiff also
included three affidavits which he signed. Plaintiff later supplemented this complaint with
additional documents, including affidavits restating his claims, grievances, and sick call requests.
Docket No. 28.
II.

Motion for Summary Judgment
Nurse Lynch filed a motion for summary judgment (Docket No. 91) arguing that, as a

nurse, she cannot order diagnosis or treatment, can only treat very minor medical problems and
can follow the treating physician’s orders for diagnosis and treatment of other conditions.
Docket No. 91 at 3. She stated Plaintiff was being treated by Dr. Shah so she could not be held
liable for failure to diagnose or treat Plaintiff’s medical condition. Id.
Nurse Lynch also argued that Plaintiff had a significant pre-existing back injury from the
Arkansas Department of Corrections. Id. at 4. She attached medical records showing Plaintiff
complained of chronic back pain in December of 2010 and April of 2011 while confined in
Arkansas. Id. (citing Docket No. 91-2). According to Nurse Lynch, Plaintiff’s intake record
showed on August 1, 2015, after his arrival in Bowie County, he stated his medical history

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included a ruptured disk, but he denied any injuries during transport. Id. Nurse Lynch suggested
that these records show Plaintiff did not suffer an injury during transport but already had an
injured back when he arrived in Bowie County. Id. at 4–5.
Nurse Lynch also noted that Dr. Shah ordered X-rays for Plaintiff’s back, which were
taken on November 11, 2015 and returned normal results. Id. at 5. An MRI taken in February of
2017, well after the filing of the lawsuit, showed signs of degenerative disk disease, but Nurse
Lynch argued Plaintiff failed to show if he had received an MRI earlier, he could have received
treatment or surgery which would have improved his condition. Id. at 5–6.
Dr. Shah filed a short Motion for Summary Judgment stating he specifically incorporated
all law, facts, arguments, and prayers asserted in Nurse Lynch’s motion. Docket No. 92.
III.

Plaintiff’s Response to the Motions
In his response to the summary judgment motions, Plaintiff insisted he was injured upon

his arrival in Bowie County, stating he reported this injury to the admissions officer. Docket No.
105 at 2. He contended Nurse Lynch and Dr. Shah prevented him from receiving proper care
from a back specialist, noting Nurse Lynch signed most of the responses to his grievances. Id. at
10–11.
Plaintiff argued he was never diagnosed with a back injury during his time in the
Arkansas Department of Corrections, but conceded he was given pain medication. Id. at 14. He
speculated the X-rays were read as normal to mask the fact he needed treatment, and stated he
saw a back specialist on June 21, 2017, who gave him a diagnosis and recommended treatment
for on-going pain relief including physical therapy, steroid injections, and a medication called
Robaxin. Id. at 16–17. Next, Plaintiff contended the medical form stating he saw a nurse on
August 1, 2015 was a forgery. He asserted he did not deny injury during transport and did not
sign any forms denying injury during transport. Id. at 15.
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Plaintiff attached a letter from Dr. Noojan Kazemi of the University of Arkansas for
Medical Service dated June 21, 2017. Docket No. 105-1 at 6. This letter states that the doctor
did not believe there was a role for surgical intervention but instead recommended physical
therapy, a muscle relaxant called Robaxin, and epidural spinal injections. Id. at 8.
According to a letter to Plaintiff dated September 15, 2016, from the Texas Commission
on Jail Standards, the X-rays of Plaintiff’s back showed no abnormalities and Plaintiff’s medical
records from Arkansas showed he claimed to have a ruptured disk even before his arrival in
Bowie County. Docket No. 105-2 at 36. He is on Robaxin and naproxen. Id. The letter further
stated Dr. Shah requested an MRI but the request was denied by the Director of the Medical
Department for the Arkansas Department of Corrections because the X-rays and medical
examinations showed no abnormalities. Id.
IV.

The Magistrate Judge’s Report and Recommendation
After review of the pleadings, the Magistrate Judge issued a Report recommending the

motions for summary judgment be granted and the lawsuit dismissed. Docket No. 109. The
Magistrate Judge characterized Plaintiff’s claim as one of deliberate indifference to his serious
medical needs and stated deliberate indifference is an extremely high standard to meet, requiring
a showing the jail officials refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in similar conduct evincing a wanton disregard for his medical needs. Id.
at 15–16 (citing Domino v. TDCJ-ID, 239 F.3d 752, 756 (5th Cir. 2001); Stewart v. Murphy, 174
F.3d 530, 534 (5th Cir. 1999).
The Magistrate Judge observed Plaintiff’s medical records showed he had a back injury
prior to his arrival at Bowie County and denied being injured during transport. Id. Although
Plaintiff contended these medical records had been fabricated, the Magistrate Judge stated

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conclusory allegations of falsification of medical records are insufficient to defeat a motion for
summary judgment. Id. at 17.
Even assuming Plaintiff was correct and the records were fabricated, however, the
Magistrate Judge nonetheless determined there was no showing of deliberate indifference. Id.
Plaintiff was seen by medical personnel at the Bowie County Jail on multiple occasions,
receiving X-rays, pain medications, and muscle relaxants. Id. Plaintiff’s documents show he did
not receive an MRI because the Arkansas medical director refused to approve it, and Plaintiff
failed to demonstrate Dr. Shah or Nurse Lynch had authority to schedule an MRI after approval
was denied. Id. In addition, the Magistrate Judge stated Plaintiff did not show the failure to
schedule an MRI after his X-rays proved normal amounted to deliberate indifference.

Id.

Plaintiff’s disagreement with the medical care ordered or dissatisfaction with the results was not
tantamount to a showing of deliberate indifference. Id. at 19.
V.

Plaintiff’s Objections
In his objections, Plaintiff first argues the intentional refusal to provide medical care

despite knowledge of the need can amount to deliberate indifference. Docket No. 115 at 1–2.
He points to Dr. Kazemi’s June 21, 2017 letter, which recommended physical therapy, Robaxin,
and epidural steroid injections, and complains that he has never received such treatment. Id. at 2.
Plaintiff filed a notice of change of address on May 25, 2017 (see Docket No. 83), stating
he had been transferred from Bowie County, Texas to Wrightsville, Arkansas. The fact Plaintiff
did not receive the treatment recommended by Dr. Kazemi in June of 2017, at a time when he
was no longer in Bowie County, does not show deliberate indifference on the part of Bowie
County personnel. In any event, the failure to follow a course of treatment recommended by an
outside doctor does not itself show deliberate indifference. Clifford v.Doe, 303 F.App’x 174,

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2008 U.S. App. LEXIS 25300, 2008 WL 4210663 (5th Cir. 2008) (citing Stewart, 174 F.3d at
535). Accordingly, this objection is without merit.
Next, Plaintiff complains his MRI was denied for over a year and, when it was finally
taken, the test showed a serious medical need.

Docket No. 115 at 4.

According to the

documents furnished by Plaintiff, the MRI was denied by Dr. Jeffrey Setvie, the medical director
for the Arkansas Department of Corrections, who is not a defendant in this lawsuit. Docket No.
105-2 at 16. The reason for the denial was Plaintiff’s X-rays were normal. Id. Plaintiff has
failed to show Dr. Shah or Nurse Lynch had any involvement with or responsibility for Dr.
Setvie’s decision to deny the MRI, nor has he shown the failure to schedule an MRI after X-rays
proved normal amounted to deliberate indifference. Id. Accordingly, this objection is without
merit.
Plaintiff states he sent in numerous sick call requests which were not answered or which
simply had the notation “duplicate sick call” written at the bottom. Docket No. 115 at 3. The
summary judgment evidence shows Plaintiff filed a substantial number of sick call requests,
including over 50 during the first year he was in the jail. Some of these sick call requests were
not answered, but many were. By August 22, 2016, Plaintiff had seen Dr. Shah seven times and
X-rays had been taken, which proved normal. The fact Plaintiff did not receive answers to every
one of the sick call requests he filed does not show deliberate indifference to his serious medical
needs, particularly in light of the fact many of his sick call requests were answered and he saw
medical personnel on multiple occasions. This objection is without merit.
The fact that Plaintiff did not agree with some of the answers he received to sick call
requests does not show deliberate indifference. The responses to his sick call requests show the
medical staff repeatedly tried to explain to him he was not approved for an MRI because his X-

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rays had turned out normal. While Plaintiff complains Nurse Lynch sent him a rude response to
a sick call request in February of 2016 (see Docket No. 5-3 at 26), this response simply advised
him X-rays showed his spine was normal and the Arkansas Department of Corrections denied his
MRI for that reason. The summary judgment evidence showed this was the third time in six
weeks Plaintiff had been given this same information. Even if the tone of Nurse Lynch’s
response could be considered rude or intemperate, Plaintiff has failed to show this amounts to
deliberate indifference. This objection is without merit.
Plaintiff also argues there are many genuine issues of material fact in the form of sick
calls, grievances, affidavits and witnesses to testify on his behalf. Docket No. 115 at 7–11. He
contends he is in pain and received a diagnosis from Dr. Kazemi, so his evidence is not weak or
tenuous. Id. at 11. That Plaintiff was ultimately determined to have a back injury is not
probative of whether the Defendants acted with deliberate indifference. Plaintiff cites Farmer v.
Brennan, 511 U.S. 825, 837–38 (1994), in which the Supreme Court explained:
[A] prison official cannot be held liable under the Eighth
Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the
inference. ...
But an official's failure to alleviate a significant risk which he
should have perceived, but did not, while no cause for
commendation, cannot under our cases be condemned as the
infliction of punishment.
Under this standard, Plaintiff must show Dr. Shah and Nurse Lynch knew of and
disregarded an excessive risk to his health or safety. The summary judgment evidence shows he
saw medical personnel numerous times, received several different kinds of medications, and was
given X-rays. Dr. Shah requested permission for an MRI but this was initially refused by the

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medical director for the Arkansas Department of Corrections. Plaintiff was later given an MRI.
After he left Bowie County, an Arkansas physician prescribed a specific course of treatment for
him. In light of this evidence, the Court cannot conclude that Dr. Shah or Nurse Lynch knew of
and disregarded an excessive risk to Plaintiff’s health or safety.
The fact the treatment provided was not as effective as Plaintiff would have wanted or the
fact that an Arkansas physician later prescribed a different course of treatment does not show Dr.
Shah or Nurse Lynch were deliberately indifferent to Plaintiff’s serious medical needs. See, e.g.,
Armenta v. Stanley, 211 F.App’x 266 (5th Cir. 2006) (finding that a claim that defendants should
have employed a different course of treatment or ordered an X-ray at an earlier time did not
support a constitutional claim grounded in deliberate indifference). Plaintiff’s objections in this
regard are without merit.
With regard to qualified immunity, Plaintiff maintains he had an injury which “any lay
person can easily recognize” by the way he walks and the fact he is sometimes unable to breathe.
Docket No. 115 at 17.

He contends the risk was obvious, permitting the inference the

Defendants did recognize it. Id. Plaintiff refers again to his recommended course of treatment
from June of 2017, after he left Bowie County, and states he has numerous affidavits regarding
the verbal abuse he received from Dr. Shah and Nurse Lynch, along with a number of other
exhibits attached to his objections. Id. at 17–19. He asserts he has overcome the defense of
qualified immunity because all reasonable officials would know the Defendants’ actions violated
the Constitution. Id.
As the Magistrate Judge determined, qualified immunity protects government officials
from liability for monetary damages in their individual capacities insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person

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would have known. Thompson v. Mercer, 762 F.3d 433, 436–37 (5th Cir. 2014). Here, Plaintiff
has failed to show a constitutional violation occurred. Nor has he shown all reasonable officials
would have known the Defendants’ actions violated the Constitution. Instead, Defendants did
recognize Plaintiff’s claims of injury, giving him pain medication, muscle relaxers, and X-rays,
later following up with an MRI in February of 2017. The fact Plaintiff disagreed with the
medical care he received or the fact that he believed it should have been more effective does not
amount to a constitutional violation. Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997).
Accordingly, Plaintiff has failed to overcome the defense of qualified immunity.
VI.

Plaintiff’s Exhibits to his Objections
The exhibits attached to Plaintiff’s objections do not compel a different result. Plaintiff’s

first exhibit is a medical record from the Arkansas Department of Corrections dated December
10, 2010, showing a complaint of chronic back pain stemming from an all-terrain vehicle
accident. His second exhibit is a medical record from the Arkansas Department of Corrections
dated April 6, 2011, when he told the nurse at the Cummins Unit, “I have been having extreme
back and neck pain and headaches. I have felt so bad the last two days, I could hardly move. I
have had extremely high fever too because my fever wouldn’t break until I took four ibu[profen]
then when it breaks my head and body is wet all over with sweat.”
Plaintiff’s third exhibit is a medical record from the Arkansas Department of Corrections
dated November 4, 2011, when he presented to the nurse at the Wrightsville Unit with abnormal
gait due to the pain in his back and left leg. The nurse’s notes say “inmate stated that complaint
about back pain C5 to C6 is ruptures [sic].”

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Plaintiff’s fourth exhibit is a medical record from Arkansas dated November 28, 2011,
which he presented to the nurse at the Wrightsville Unit with a complaint that “I am having a lot
of excessive pain in my lower back from a ruptured disk in my lower back.”
Plaintiff’s fifth exhibit is a condensed health services encounter from Bowie County
dated December 17, 2015. This medical record reads, in pertinent part, “ADC did not approve
MRI due to normal X-ray. Currently rec[eiving] pain medications.”
The sixth exhibit is a condensed health services encounter from Bowie County dated
February 12, 2016. This record, signed by Nurse Flieder, reads in pertinent part “I/M states that
we are not giving him the correct medicine for his ‘nerve pain.’ Also that he needs a cane to
walk. I/M has never been DX [diagnosed] with nerve pain. He gave himself this dx. His X-ray is
normal. His exam completed by Dr. Shah ruled out nerve pain. Receives the meds that Dr. Shah
ordered for him. I/M has been seen walking to laundry with a normal gait. He also has no
difficulty walking up and down the stairs to get to and from his pod. The only time he is seen
limping is when he is coming to medical.”1
The seventh exhibit is a condensed health services encounter dated April 11, 2016, in
which Plaintiff complained of his lower back and leg pain. Nurse Michelle Arnold wrote “MD
seen numerous times for this issue. X-ray normal. Physical exam not consistent with reports of
nerve pain. Currently rcv [receiving] medication. ADC denied MRI due to normal X-ray.”
Exhibit 8 is a condensed health services encounter dated May 2, 2016, in which Plaintiff
asked to see the doctor and the response was Plaintiff had been referred to the doctor on April 28
for the next MD clinic.

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Plaintiff asserts Nurse Flieder is lying and he never used the stairs in the Bowie County Correctional Center, but
always took the elevator.

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Exhibit 9 is a medical record dated July 27, 2017, showing Plaintiff received a left lower
extremity Doppler ultrasound, which revealed a non-occlusive thrombosis in his left leg. Exhibit
10 reflects a CTA exam on Plaintiff’s chest on July 31, 2017. These tests were ordered by a
physician named Dr. Melanie Jones after Plaintiff was no longer in Bowie County, and were
performed at the St. Vincent Infirmary Medical Center in Little Rock, Arkansas. Exhibit 11
reflects an examination in the Arkansas Heart Hospital in Little Rock on November 13, 2017,
during which Plaintiff was diagnosed as having a post-operative deep vein thrombosis.
None of Plaintiff’s exhibits show the Defendants were deliberately indifferent to his
serious medical needs. The first four of these exhibits concern his back pain while in Arkansas,
long before arriving in Bowie County. Although Plaintiff insists he did not have any diagnoses
of back problems and did not have such severe pain while in Arkansas, these exhibits indicate
otherwise.
Plaintiff’s fifth, sixth, and seventh exhibits confirm the MRI was denied by the Arkansas
authorities and not Dr. Shah or Nurse Lynch; these exhibits also show Plaintiff was receiving
pain medication. While Plaintiff complains Nurse Flieder lied in the sixth exhibit, she is not a
defendant in the case, and Plaintiff has not shown any alleged untruthful statements by Nurse
Flieder show Dr. Shah or Nurse Lynch were deliberately indifferent to his serious medical needs.
Plaintiff’s eighth exhibit evidences he asked to see the doctor and was told he had been
referred to the doctor a few days earlier for the next MD clinic. The fact Plaintiff was scheduled
to see the doctor does not show deliberate indifference to his serious medical needs.
Plaintiff’s ninth, tenth, and eleventh exhibits concern medical tests he received after
leaving the Bowie County Correctional Center. To the extent Plaintiff may be claiming these
tests should have been run while he was at Bowie County, he has not shown the failure to do so

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amounts to deliberate indifference to his serious medical needs. See Bennett v. Louisiana ex rel.
Department of Public Safety and Corrections, 2009 U.S. App. LEXIS 853 (5th Cir. 2009)
(stating “while the Appellees may very well have exercised poor medical judgment in not
performing additional tests on Russell [the deceased], Bennett has not shown that their actions
rise to the level of deliberate indifference”) (citing Gobert v. Caldwell, 463 F.3d 339, 346 (5th
Cir. 2006) (explaining that a decision whether to provide additional medical treatment is a classic
example of a matter for medical judgment)). Plaintiff’s exhibits fail to show the Defendants
were deliberately indifferent to his serious medical needs.
VII.

Conclusion
The Court has conducted a careful de novo review of those portions of the Magistrate

Judge’s proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C.
§636(b)(1) (district judge shall “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”) Upon such de
novo review, the Court has determined that the Initial Report and Recommendation of the
Magistrate Judge is correct and that the Plaintiff’s objections are without merit. It is accordingly
ORDERED the Plaintiff’s objections are overruled and the Initial Report and
Recommendation of the Magistrate Judge (Docket No. 100) is ADOPTED as the opinion of the
Court. It is further
ORDERED that Defendants’ Motions for Summary Judgment (Docket Nos. 91, 92) are
GRANTED and the above-styled civil action is DISMISSED WITH PREJUDICE. It is
further
ORDERED that any and all other motions pending in this matter are DENIED.

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So ORDERED and SIGNED this 12th day of March, 2018.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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