Brewer v. Thompson et al

Filing 132

MEMORANDUM DECISION & ORDER GRANTING SUMMARY JUDGMENT MOTIONS OF DEFENDANTS PERRY, WOOD, AND RUSSELL: finding as moot 47 Motion to Stay; granting 62 Motion for Summary Judgment; granting 71 Motion for Summary Judgment; denying 108 Motion to Strike; finding as moot 118 Motion to Stay. Defendants Perry, Russell and Wood are DISMISSED from this case. Signed by Judge Tena Campbell on 04/28/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
JORDAN ALAN NEVES BREWER,
Plaintiff,

MEMORANDUM DECISION & ORDER
GRANTING SUMMARY JUDGMENT
MOTIONS OF DEFENDANTS PERRY,
WOOD, AND RUSSELL

v.
TERRY THOMPSON et al.,

Civil No. 1:15-CV-40 TC

Defendants.

Judge Tena Campbell

Plaintiff, Jordan Alan Neves Brewer, a former inmate of the Davis County Correctional
Facility (DCCF) and the Weber County Correctional Facility (WCCF), filed this pro se civilrights suit alleging, among other things, violations of his Eighth Amendment right to be free
from cruel and unusual punishment. See 42 U.S.C.S § 1983 (2017). Specifically, Mr. Brewer
alleges that Defendants Sheila Perry, a licensed clinical social worker at both facilities; Dr. John
Wood, director of medical treatment at both facilities; and Richard Russell, a physician’s
assistant at WCCF, were deliberately indifferent to Mr. Brewer’s serious medical needs when
they failed to adequately address Mr. Brewer’s complaints of anxiety, insomnia, and back pain.
As ordered, Defendants filed Martinez reports and summary-judgment motions
addressing Mr. Brewer’s claims. These motions are now fully briefed and before the Court.
UNDISPUTED FACTS
The facts are drawn from Defendants’ Martinez reports: Defendants’ affidavits and
DCCF and WCCF records of medical policies and Mr. Brewer’s medical treatment. Mr.
Brewer’s response to the summary-judgment motion primarily uses these same sources, making

unpersuasive arguments about how they may be interpreted in certain ways to bolster Mr.
Brewer’s claims. To these, he added his own unsworn statement, medical records from treatment
he received at other facilities (both before and after his stays in DCCF and WCCF), copies of
drug indications and Wikipedia definitions of his allegedly diagnosed illnesses, and news reports
of other inmates who had allegedly received poor medical treatment at DCCF and WCCF. Mr.
Brewer’s submissions are either inadmissible or are irrelevant to Defendants’ alleged provision
of inadequate medical treatment and are not relied on here.
(1) Under United States Marshal Service (USMS) custody, Mr. Brewer was held in
DCCF (first) and WCCF (second), from about October 13, 2011, through December
5, 2012. (Docket Entry # 61, Defendants’ Martinez Rep’t, p. 2.)
(2) DCCF medical personnel (including and under supervision of Dr. Wood) saw Mr.
Brewer at least sixteen times, on these dates: 10/13/11, 10/15/11, 11/07/11, 11/09/11,
12/28/11, 2/21/12, 3/28/12, 4/6/12, 5/1/12, 5/23/12, 5/25/12, 6/14/12, 6/18/12,
7/30/12, 8/6/12, and 8/7/12. Other times, they tried to see Mr. Brewer, but he was
unavailable. They also “reviewed [past] medical records, including x-rays and
medical related faxes or calls concerning [Mr. Brewer’s] care on” (at least) 11/03/11,
11/17/12, 2/1/12, 2/8/12, 4/12/12, 4/19/12, and 5/2/12. (Id. at ¶¶ 41, 46, 64, 68.)
(3) During his time at DCCF, Mr. Brewer averaged at least one medical appointment per
month--even as many as three in one month. (See id. at ¶ 46.) Past medical providers
and a specialist were consulted and sometimes their treatment advice was adopted.
(See id. at ¶¶ 47, 49, 51, 52, 53, 56.) X-rays were taken and reviewed. (Id. at ¶ 55.)
(4) When treating an inmate, Dr. Wood independently evaluates the inmate’s condition.

2

He reviews available medical records and history (as he did here) but may choose to
discontinue a past medical provider’s course of treatment. He uses his own
“professional judgment, the patient’s history, and [his] personal observations of the
inmate’s current condition to determine the proper treatment plan.” (See id. at ¶ 43.)
(5) During medical visits, Mr. Brewer would sometimes ask for certain drugs, like
Wellbutrin and Remeron; however, DCCF medical personnel, under Dr. Wood’s
guidance, decided to treat him with different drugs deemed more suitable. (See id. ¶¶
48, 49, 51, 63)
(6) On May 23, 2012, Defendant Sheila Perry, LCSW, saw Mr. Brewer about his request
for different medication from that which had been prescribed and referred him to Dr.
Wood. On August 7, 2012, she saw Mr. Brewer again for anxiety and depression and
educated him as to “distraction and breathing techniques.” (See id. at ¶¶ 62, 63, 67.)
(7) On September 11, 2012, Mr. Brewer filed a grievance, stating he had been prescribed
Wellbutrin and Trazadone (apparently by outside personal physician(s)), but was not
getting them at DCCF. Neither of those drugs was allowed by DCCF policy but
medical staff evaluated and treated Mr. Brewer based on the prevailing standard of
care with alternative prescriptions for anxiety and depression, like Lexapro, Celexa,
and Prozac. (See id. at ¶ 69.)
(8) After Mr. Brewer’s transfer to WCCF, Mr. Brewer was seen by medical staff there
for back pain and depression at least eleven times in about three months: 9/13/12,
9/17/12, 9/21/12, 9/25/12, 10/1/12, 10/10/12, 10/11/12, 10/24/12, 10/25/12, 11/21/12,
and 11/25/12. His past medical records were reviewed and he was freshly evaluated.

3

During every visit, action was taken to try to improve Mr. Brewer’s plight--i.e.,
medication was prescribed; dosages were modified or adjusted; follow-up
appointments were arranged; an outside MRI and orthopedic evaluation were ordered.
(See id. at ¶¶ 70, 71, 73, 74, 75, 76, 77, 78, 80, 81, 83, 84, 87, 88, 89.)
(9) Mr. Brewer was then taken into custody by USMS. (See id. at ¶ 71.)
In summary, during his approximately fourteen months at DCCF and WCCF, Mr. Brewer
was seen and his treatment reviewed over thirty times by jail medical personnel for various
complaints, including back pain, anxiety, and depression. According to the DCCF and WCCF
records and Martinez-report documentation, every time Mr. Brewer requested medical visits, jail
medical personnel attempted attention and treatment.
SUMMARY-JUDGMENT STANDARD
“The Court shall grant summary judgment 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.” Fed. R.
Civ. P. 56(a). The movant, asserting there is no genuine dispute about material facts, must
support his assertion “by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
. . . , admissions, interrogatory answers, or other materials; or . . . showing that . . . an adverse
party cannot produce admissible evidence to support the fact.” Id. 56(c). A main purpose of the
summary-judgment rule “is to isolate and dispose of factually unsupported claims or defenses.”
Celotex v. Catrett, 477 U.S. 317, 323−24 (1986). The party moving for summary judgment has
the initial burden of showing “that there is an absence of evidence to support the non-moving
party’s case.” Id. at 325. This burden may be met merely by identifying portions of the records

4

showing an absence of evidence to support an essential element of the opposing party’s case.
Johnson v. City of Bountiful, 996 F. Supp. 1100, 1102 (D. Utah 1998).
Once the moving party satisfies its initial burden, “the burden then shifts to the
nonmoving party to make a showing sufficient to establish that there is a genuine issue of
material fact regarding the existence of [the disputed] element.” Id. Federal Rule of Civil
Procedure 56 requires a nonmovant “that would bear the burden of persuasion at trial” to “go
beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the
event of a trial from which a rational trier of fact could find for the nomovant.” Adler v. WalMart
Stores, 144 F.3d 664, 671 (10th Cir. 1998) (citations omitted). The specific facts put forth by the
nonmovant “must be identified by reference to an affidavit, a deposition transcript or a specific
exhibit incorporated therein.” Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024
(10th Cir. 1992) (citations omitted). Mere allegations and references to the pleadings will not
suffice. The nonmovant must cite to materials that would be admissible at trial to create a
material issue of fact. Fed. R. Civ. P. 56(c). The court, however, must “examine the factual
record and reasonable inferences therefrom in the light most favorable to the party opposing the
motion.” Lopez v. LeMaster, 172 F.3d 756, 759 (10th Cir. 1999) (citations omitted). If the nonmovant fails to meet its burden as to one element of a claim, summary judgment is appropriate
on the claim. Celotex, 477 U.S. at 323.
To defeat a summary-judgment motion, a party may not merely rest on allegations in the
complaint and other filings. Instead, the nonmoving party must come forward with specific facts
showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation omitted). Mr. Brewer must present relevant,

5

admissible, probative evidence supporting his allegations. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986) (citations omitted).
DEFENDANTS’ SUMMARY-JUDGMENT MOTIONS
Defendants move for summary judgment on Mr. Brewer’s claims against them, asserting
that Mr. Brewer has not shown a constitutional violation.
Mr. Brewer has alleged that the medical care offered him was so deficient as to constitute
cruel and unusual punishment, violating the Eighth Amendment. The Eighth Amendment’s ban
on cruel and unusual punishment requires prison officials to “provide humane conditions of
confinement” including “adequate food, clothing, shelter, and medical care.” Craig v. Eberly,
164 F.3d 290, 495 (10th Cir. 1998) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir.
1998)) (emphasis added).
To state a cognizable claim under the Eighth Amendment for failure to provide medical
care, a prisoner must “‘allege acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.’” Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (emphasis omitted). To determine whether
a defendant exhibited deliberate indifference, any Eighth Amendment claim must be evaluated
under objective and subjective prongs: “Was the deprivation sufficiently serious?” and, if so,
“Did the officials act with a sufficiently culpable state of mind?” Wilson v. Seiter, 501 U.S. 294,
298 (1991); accord Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 809 (10th Cir. 1999).
The Eighth Amendment’s subjective deliberate-indifference inquiry requires Mr. Brewer
to show that prison officials were consciously aware that he faced a substantial risk of harm and
wantonly disregarded the risk “by failing to take reasonable measures to abate it.” Farmer v.

6

Brennan, 511 U.S. 825, 847 (1994). Deliberate indifference is “more than negligence and
approaches intentional wrongdoing.” Collignon v. Milwaukee Cnty., 163 F.3d 982, 988 (7th Cir.
1998) (citation omitted). In other words, the treatment must be “so blatantly inappropriate as to
evidence intentional mistreatment likely to seriously aggravate [an inmate’s] condition.” Greeno
v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (citation omitted). “A plaintiff can show that the
professional disregarded the need only if the professional’s subjective response was so
inadequate that it demonstrated an absence of professional judgment, which is that ‘no minimally
competent professional would have so responded under those circumstances.’” Arnett, 658 F.3d
at 751 (quoting Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)).
Defendants here offer undisputed evidence that they took Mr. Brewer’s complaints
seriously. They saw Mr. Brewer at least thirty times; reviewed his prior medical records and test
results; added, subtracted, switched and modified medications at almost every visit in response to
Mr. Brewer’s reports; referred to outside specialists; took x-rays and ordered an MRI.
Defendants’ substantial, uncontroverted evidence shows that their treatment of Mr. Brewer was
more than adequate. Having thoroughly reviewed Mr. Brewer’s medical records, the court is
hard pressed to imagine how he could have received more consistent and attentive medical
treatment.
Essentially, Mr. Brewer’s only gripe is that Defendants sometimes did not provide the
specific medications and treatments he wanted. However, Defendants were not required to honor
his preferences. “It is well-settled that a mere difference of opinion regarding the proper
treatment for a medical condition is not sufficient to show deliberate indifference, and medical
personnel are entitled to substantial deference in choosing a proper course of treatment.” Todd v.

7

Bigelow, No. 2:09-cv-808-DAK, 2012 U.S. Dist. LEXIS 24252, at *17 (D. Utah Feb. 24, 2012).
A prisoner who “merely disagrees with a diagnosis or prescribed course of treatment does not
state a constitutional violation.” Perkins, 165 F.3d at 811 (citations omitted); see also Gee v.
Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010) (“Disagreement with a doctor’s particular
method of treatment, without more, does not rise to the level of an Eighth Amendment
violation.”).
“Generally, neither the fact that a prisoner continues to experience pain despite treatment
nor the fact that jail physicians refuse to provide him with the specific pain medications he
requests is sufficient to state a constitutional claim.” Dickerson v. Strain, No. 08-4651, 2009 WL
2023866, at *5 (E.D. La. July 9, 2009) (citations omitted); accord Mosley v. Snider, No. 006310, 10 Fed. App’x 663, 664 (10th Cir. Mar. 22, 2001) (unpublished) (holding no deliberate
indifference where physician discontinued prisoner’s preferred medication when it was
determined unnecessary and other prescription provided); see also Boyett v. Cnty. of Wash., No.
06-4315, 282 Fed. App’x 667, 674 (10th Cir. 2008) (unpublished) (“[Medical professional]’s
prescription of substitute medication for [inmate] does not demonstrate deliberate indifference.”)
(citations omitted); Jones v. Garden, No. 2:06-CV-527 DAK, 2007 U.S. Dist. LEXIS 45313, at
*13 (D. Utah June 21, 2007) (unpublished) (“While prison officials are constitutionally required
to ensure that inmates receive adequate care, specific decisions as to which particular drug an
inmate receives are left to the discretion of prison medical personnel . . . .”).
Ledoux v. Davies, 961 F.2d 1536 (10th Cir. 1992), is instructive. There, a plaintiff/inmate
injured himself playing basketball and was treated by prison medical personnel with pain
medication. Id. at 1536–37. When the medical personnel did not give plaintiff the specific pain

8

medication he wanted, or refer plaintiff to a particular specialist that he thought he needed,
plaintiff sued, alleging that defendants’ refusal of this treatment violated his Eighth-Amendment
rights. Id. at 1537. The Ledoux court upheld the lower court’s summary-judgment ruling for the
defendants, concluding that “Plaintiff's belief that he needed additional medication, other than
that prescribed by the treating physician, as well as his contention that he was denied treatment
by a specialist is, as the district court correctly recognized, insufficient to establish a
constitutional violation.” Id. The fact that the plaintiff received some medication for his pain
was sufficient. Id.; see also Todd, 2012 U.S. Dist. LEXIS 24252, at *18 (stating “fact that
Defendants tried to accommodate Plaintiff [by offering alternative medication] showed that they
were not deliberately indifferent to his needs”).
To support his argument that Defendants were deliberately indifferent to his anxiety,
depression and back pain, Mr. Brewer asserts that other doctors thought he needed different
medications than the ones prescribed and he needed chiropractic adjustments. However, the fact
that others may have provided these treatments is not binding on Defendants. See McCracken v.
Jones, 562 F.2d 22, 24 (10th Cir. 1977) (holding “variations in the views”—between prisonaffiliated doctors that no surgery was needed and private physician recommending and
performing surgery—did not violate Eighth Amendment); White v. Napoleon, 897 F.2d 103, 110
(3d Cir. 1990) (“If a plaintiff’s disagreement with a doctor’s professional judgment does not state
a violation of the Eighth Amendment, then certainly no claim is stated when a doctor disagrees
with the professional judgment of another doctor. There may, for example, be several acceptable
ways to treat an illness.”). Rather, as was the appropriate and expected practice of any medical
provider, Defendants conducted their independent evaluations of Mr. Brewer’s condition, and

9

used their individual professional medical judgment to determine what drugs, diagnostic tools,
and other treatments to prescribe to and order for Mr. Brewer.
Defendants conducted many physical and mental examinations of Mr. Brewer, and, based
on those findings, used their professional judgment to decide which medications and treatments
to provide Mr. Brewer. When Mr. Brewer complained that a particular pain reliever or
antidepressant was not working, for instance, Defendants adjusted his medications. While
Defendant’s treatment may not have been Mr. Brewer’s preferred course, it was nonetheless a
course of treatment determined based on Defendants’ considered medical judgment. Thus, Mr.
Brewer cannot show that Defendants were deliberately indifferent to his conditions.
CONCLUSION
Defendants have satisfied their burden on summary judgment of showing that Defendants
did not violate Mr. Brewer’s Eighth Amendment rights and showing an absence of evidence to
support Mr. Brewer’s claims. Because Defendants did not violate Mr. Brewer’s rights, summary
judgment for Defendants is appropriate on Mr. Brewer’s claims against them.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
(1) Defendants’ Motions for Summary Judgment (Docket Entry #s 62 & 71) are
GRANTED.
(2) Defendants’ Motion to Stay Discovery (Docket Entry # 47) is DENIED as moot.
(3) Defendants’ motion to strike Mr. Brewer’s sur-reply (Docket Entry # 108) is
DENIED.

10

(4) Mr. Brewer’s motion to stay proceedings due to availability of expert witness (Docket
Entry # 118) is DENIED as moot.
(5) Defendants Perry, Russell and Wood are DISMISSED from this case.
DATED this 28th day of April, 2017.
BY THE COURT:

_______________________________
JUDGE TENA CAMPBELL
United States District Court

11