Stephens v. Lynch et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 25 Report and Recommendations. (Defendant Regina Lynchs motion for summary judgment (Dkt No. 23) is GRANTED and the claims against Nurse Lynch are DISMISSED WITH PREJUDICE. Claims against the remaining Defendants are DISMISSED WITHOUT PREJUDICE for failure to state a claim upon which relief may be granted.) Signed by District Judge Robert W. Schroeder, III on 12/13/2017. (slo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
GARY STEPHENS,
Plaintiff,
v.
REGINA LYNCH et al.,
Defendants.

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CIVIL ACTION NO. 5:16-CV-00117-RWS

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Gary Stephens, a prisoner of the Arkansas Department of Corrections who
is confined in the Bowie County Correctional Center, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights. Docket No. 1. 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. In his Complaint, Plaintiff names as defendants Nurse Regina
Lynch, Dr. Jagdish Shah and individuals identified as “John Doe, Medical Staff,” and “Jane Doe,
Medical Staff.” Id. at 1. No other identifying information has been provided for John Doe and
Jane Doe. Id. at 1–2.
I.

Background
Plaintiff complains of deliberate indifference to his serious medical needs. He stated he

broke his hand playing sports on March 29, 2016, but it took over two weeks to be seen at the
hospital on April 14. Docket No. 1 at 2–3. Plaintiff stated the doctor told him it was too late to
put a cast on his hand but if he had been seen in three or four days, he would have been alright.

Id. at 3. Plaintiff stated “the bone has already started to heal poking up from my hand” and for
his hand not to be permanently disfigured, the doctor would have had to re-break his hand and
put pins in it. Id.
Plaintiff filed a Step One grievance concerning the incident on April 15, 2016. Docket
No. 1-1 at 3. The response, signed by Nurse Lynch, traced the timeline and stated there was no
denial of treatment. Id. at 2. He filed a grievance appeal and the response, signed by Dr. Rory
Griffin of the Arkansas Department of Corrections Medical Department, reads in pertinent part
as follows:
March 30, 2016, Nurse Lynch noted swelling and redness to your hand, and that
[sic] Dr. Shah ordered an X-ray and Tylenol for pain. March 31, 2016, the X-ray
was completed and showed a fracture in your hand. April 1, 2016, Dr. Shah
reviewed the X-ray results, and submitted a routine ortho consult, and noted that
you needed to be seen ASAP. April 4, 2016, Dr. Floss, Assistant Regional
Medical Director, approved the consult. April 8, 2016, Nurse Lynch updated the
consult with the appointment date. April 14, 2016, you were seen by ortho. It is
the site’s medical department’s responsibility to schedule outside appointments.
Due to you not being seen ASAP as per Dr. Shah, this appeal is with merit.
Id. at 1.
II.

Nurse Lynch’s Motion for Summary Judgment
Nurse Regina Lynch filed a motion for summary judgment (Docket No. 23), which

included an affidavit and medical records as evidence. This evidence showed Plaintiff injured
his hand on March 29 and filed a sick call request which was received on March 30. Docket No.
23-2 at 6. His hand was X-rayed on March 31 and Dr. Shah signed off on the X-ray to refer
Plaintiff to an orthopedist on April 1. Id. at 4–5.
A request for approval to refer Plaintiff to the orthopedist was sent to the Arkansas
Department of Corrections on April 1, 2017. Id. at 3. The Bowie County Correctional Center

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medical staff contacted a local multi-specialty physician group practice called Collom and
Carney Clinic.
On April 6, Collum and Carney Clinic requested insurance information and a copy of
Plaintiff’s X-ray. Docket No. 1-1 at 1. On April 8, the clinic scheduled an appointment for
Plaintiff on April 14 with Dr. Gregory Smolarz, M.D.1 Id.
At the appointment, Dr. Smolarz observed Plaintiff had previous X-rays showing a
mildly displaced metacarpal head fracture.

Docket No. 23-2 at 20–22. The exam showed

Plaintiff was very tender of the end of the left fifth metacarpal, but had full range of motion in
his fingers. Id. at 20. There was mild swelling but no effusion and his distal neurovascular
status was intact. Id. Dr. Smolarz recommended no immobilization, but stated Plaintiff should
buddy tape his fingers for about two weeks. Id. at 22.
Plaintiff did not file a response to Defendant’s motion for summary judgment.
III.

The Report of the Magistrate Judge
After review of the pleadings and the summary-judgment evidence, the Magistrate Judge

issued a Report recommending Nurse Lynch’s motion for summary judgment be granted.
Docket No. 25. The Magistrate Judge stated a total of 16 days elapsed between Plaintiff’s injury
on March 29 and his visit to the orthopedist on April 14. Id. at 7. During these 16 days, the
Bowie County Correctional Center medical staff X-rayed Plaintiff’s hand, sought and obtained
permission from the Arkansas Department of Corrections to send Plaintiff to an orthopedist,
contacted a local clinic for an appointment with an orthopedic specialist, and transported Plaintiff
to his appointment. Id. at 7–8. The Magistrate Judge concluded these actions plainly showed the
1

The Texas Board of Medical Examiners shows Dr. Smolarz is board-certified by the
American Board of Orthopedic Surgery. See http://reg.tmb.state.tx.us/OnLineVerif
/Phys_Report Verif_new.asp.
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Bowie County Correctional Center medical staff was not deliberately indifferent to Plaintiff’s
serious medical needs. Id. at 8.
The Magistrate Judge further stated 11 of the 16 days between the injury and the medical
appointment could be attributed to factors outside the control of the medical staff. Id. The
Magistrate Judge explained that it took three days to obtain approval from the Arkansas
Department of Corrections for the appointment, two days for the clinic to assign a doctor, and six
days between the date the appointment was made and the date it was kept. Id. The Magistrate
Judge determined Plaintiff failed to show Nurse Lynch or any other member of the Bowie
County Correctional Center medical staff refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar conduct clearly evincing wanton
disregard for Plaintiff’s serious medical needs. Id. See Domino v. TDCJ-ID, 239 F.3d 752, 756
(5th Cir. 2001).
After determining Nurse Lynch was entitled to qualified immunity, the Magistrate Judge
stated parties not joining in a successful motion for summary judgment are entitled to benefit
from that motion. Id. at 9 (citing Lewis v. Lynn, 236 F.3d 766, 768 (5th Cir. 2001)). In this case,
the Magistrate Judge concluded the summary-judgment evidence showed no member of the
Bowie County Correctional Center medical staff demonstrated deliberate indifference to
Plaintiff’s serious medical needs. Id. at 10. Accordingly, the Magistrate Judge recommended
dismissal of the claims against Dr. Shah and the two unknown defendants as well. Id.
IV.

Plaintiff’s Objections to the Report
Plaintiff filed objections to the Magistrate Judge’s Report. Docket No. 28. Plaintiff

objects on four bases:
1. This has been a systematic show of neglect from the failure to take
responsibility by Regina Lynch (nurse), of refusing to treat an emergency
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situation as an emergency situation, all the way to the overlooking that the
Arkansas Deputy Director Griffin’s agreement that I should have been seen
ASAP as per Dr. Shah, and it was this site’s responsibility, down to the motion for
summary judgment.
2. The Plaintiff wishes to address that he is pro se, and representing himself, did
not know he was able to request an outside doctor for a second opinion.
3. The Plaintiff objects to the idea that it was out of the medical staff’s or Regina
Lynch’s control during the 11 out of 16 days in the delay of treatment. That it
shows more of the systematic neglect and failure to see the responsibility in the
case of an emergency. And again points to the Arkansas Deputy Director Griffin
in agreement that the Plaintiff should have been seen ASAP.
4. The Plaintiff adds that not only in being pro se, he is an Arkansas inmate in a
Texas court. The Plaintiff understands he will not receive the best medical care
money can buy, but in an emergency situation, paperwork and guidelines could be
followed as needed in an emergency. Nurse Regina Lynch is notorious in the
courts for her medical neglect cases. She has been in the news for it. It is why
she no longer works at this facility. Regina Lynch took the obligation to work
here as a nurse. My case isn’t as serious as the neglect cases against her resulting
in death. But it is still a serious case that has merit.
Id. at 1–2.
V.

Discussion
The Magistrate Judge correctly stated deliberate indifference to the serious medical needs

of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment, whether the indifference is manifested by medical personnel or by guards in
intentionally denying or delaying access to medical care. Harris v. Hegmann, 198 F.3d 153, 159
(5th Cir. 1999). Deliberate indifference is an extremely high standard, normally requiring the
plaintiff to show the defendants “refused to treat him, ignored his complaints, intentionally
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. Negligence, complaints of
unsuccessful treatment, and disagreement with the treatment provided are not sufficient to set out

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claims of deliberate indifference. Stewart v. Murphy, 174 F.3d 530, 534 (5th Cir. 1999); Norton
v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997).
The fact Dr. Griffin determined Plaintiff’s grievance appeal had merit does not show
Plaintiff was subjected to a constitutional violation. Even if the finding of merit to the grievance
appeal meant the Bowie County Correctional Center medical staff did not follow proper rules
and regulations, the Fifth Circuit has explained a jail official’s failure to follow the jail’s policies
and procedures is not a constitutional violation. Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.
1996); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th Cir. 1986). The relevant standard in this
case is the constitutional standard of deliberate indifference and not a determination by Arkansas
state officials as to the merits of a prisoner’s grievance.
When the constitutional standard of deliberate indifference is applied, the Magistrate
Judge was plainly correct in concluding Plaintiff failed to set out a constitutional violation. His
injury was promptly seen and an x-ray was conducted. The Arkansas Department of Corrections
was then contacted for approval to take Plaintiff to an orthopedic specialist. Approval was
received and a local clinic was contacted. The clinic scheduled an appointment and Plaintiff was
taken to see the doctor only 16 days after his injury. Bowie County Correctional Center did not
exhibit a “systematic show of neglect,” and the medical staff acted with reasonable speed and
diligence in obtaining medical care for Plaintiff.
Of the 16 days between the injury and the date of the appointment with Dr. Smolarz, the
Magistrate Judge properly determined 11 of these 16 days were not attributable to the Bowie
County Correctional Center medical staff. No appointment with the orthopedist could have been
scheduled before approval was received from Arkansas, and the jail medical staff had no control
over the scheduling of the appointment done by the clinic. The summary judgment evidence

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shows the Bowie County Correctional Center medical staff was not deliberately indifferent to
Plaintiff’s serious medical needs. Plaintiff’s claims regarding Nurse Lynch purportedly being
notorious do not show she was deliberately indifferent to his serious medical needs. Plaintiff did
not object to the Magistrate Judge’s determination concerning Nurse Lynch’s motion for
summary judgment operating to the benefit of the non-moving parties. His objections to the
Magistrate Judge’s Report are without merit.
VI.

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 the Report of the Magistrate Judge is correct and the
Plaintiff’s objections are without merit. It is accordingly
ORDERED the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (Docket No. 25) is ADOPTED as the opinion of the District Court. It is further
ORDERED the Defendant Regina Lynch’s motion for summary judgment (Docket No.
23) is GRANTED and the claims against Nurse Lynch are DISMISSED WITH PREJUDICE.
It is further
ORDERED the claims against the remaining Defendants are DISMISSED WITHOUT
PREJUDICE for failure to state a claim upon which relief may be granted. Finally, it is
ORDERED any and all motions which may be pending in this civil action are hereby
DENIED.

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SIGNED this 13th day of December, 2017.

____________________________________
ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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