Head v. Tubbs et al
MEMORANDUM DECISION & ORDER granting 32 Defendants' Motion for Summary Judgment. Signed by Judge Dale A. Kimball on 3/11/14. (jlw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION & ORDER
GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT
Case No. 2:12-cv-00596
DR. KENNON TUBBS et al.,
Judge Dale A. Kimball
Plaintiff, James Head, an inmate at Utah State Prison (USP), filed this pro se civil rights
suit. See 42 U.S.C.S. § 1983 (2014). The Court now grants Defendants’ summary-judgment
Plaintiff asserts Eighth Amendment cruel-and-unusual-punishment claims of inadequate
medical care. Specifically, Plaintiff alleges that Defendants were deliberately indifferent when
(1) Defendant Dr. Tubbs did not (a) properly assess Plaintiff’s pain and (b) give Plaintiff a
bottom-bunk clearance; (2) Defendant Dr. Roberts stopped Plaintiff’s pain medication and made
Plaintiff use unstable legs; and (3) John Does 1-10 (the Committee) denied Plaintiff bottom-bunk
and -tier clearance. (Compl. ¶ 20.) Plaintiff’s Complaint seeks compensatory and punitive
damages, attorney fees, costs, and release from prison.
As ordered, Defendants submitted a Martinez report, including over 1000 pages of
medical records from both USP and University of Utah Medical Center (UMC), as well as
sworn affidavits of Defendants Tubbs and Roberts. (Doc. No. 27). Defendants also filed a
summary-judgment motion. Plaintiff’s response, to the Martinez report and Defendants’
Motion for Summary Judgment, cites to portions of Plaintiff’s medical records.
The Court’s initial review of Plaintiff’s claims reveals that the Committee members were
never separately identified and served. Therefore, John Does 1-10, comprising the Committee,
are dismissed. Further, one of Plaintiff’s requests for relief is release from prison. This
inappropriate form of relief--in this civil-rights case--is therefore denied out of hand.
II. Summary-Judgment Standard
Summary judgment is appropriate when “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). Factual assertions may be supported by
citing to 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 the materials cited do not
establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the
Id. at 56(c)(1). A primary purpose of the summary-judgment rule “is to isolate and dispose of
factually unsupported claims or defenses.” Celotex v. Catrett, 477 U.S. 317, 324 (1986).
The party moving for summary judgment bears the initial burden of showing “that there
is an absence of evidence to support the non-moving party’s case.” Celotex, 477 U.S. at 325.
This burden may be met merely by identifying portions of the record which show 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 nonmovant to make a showing sufficient to establish that there is a genuine issue of material fact
regarding the existence of [the disputed] element.” Id. Rule 56(e) 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 nonmovant.” Adler v. Wal-Mart Stores, Inc. 144 F.3d 664, 671 (10th Cir.
1998) (citation 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). Mere
allegations and references to the pleadings will not suffice. However, the Court 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).
III. Factual Record
The facts summarized here are drawn from Defendants’ Martinez report, namely
supporting Declarations of Defendants Tubbs and Roberts. Plaintiff did not file any other
material evidence himself but instead referred to his medical records supplied in the Martinez
report to support his limited arguments against summary judgment. The material facts are
undisputed, whether they are the details of medical records or expert opinion offered by
Defendant doctors. The Court deems the included background information not directly related to
Defendants as relevant because it was included in Plaintiff’s medical records to which
Defendants had access and which informed Defendants’ treatment of Plaintiff.
Plaintiff has been in the custody of the Utah Department of Corrections since October 31,
2001. Before imprisonment, Plaintiff injured his back and had a history of back pain.
On June 30, 2010, Plaintiff reported pain in his back, arms and legs to Nurse Charlton
who was working at USP. He requested a bottom-bunk clearance. Under USP policy, when an
inmate requests a specific clearance from a medical provider, such as a bottom bunk, the
provider has discretion to make the decision then. If a provider can identify a medical condition
justifying the requested clearance, the accommodation is provided. Ostensibly unable to identify
a medical condition justifying the request, Nurse Charlton denied Plaintiff a bottom bunk.
If, as here, a provider denies a medical-clearance request, the request is submitted to the
Medical Clearance Committee (Committee) for further review. Medical clearances for inmates
are reviewed and ultimately decided by the Committee. The Committee is comprised of USP
physicians and physician assistants. The Committee meets weekly. On July 7, 2010, the
Committee reviewed Plaintiff’s medical history and medical records and affirmed Nurse
Charlton’s denial of clearance for a bottom bunk. Like Nurse Charlton, the Committee found
that there was no identified medical condition justifying the requested accommodation.
Citing joint pain in “bilat[eral] arms and bilat[eral] legs,” Plaintiff submitted another
request for a bottom-bunk clearance on July 9, 2010.
He was seen and treated by Mark Mook, Emergency Medical Technician (EMT), on July
22, 2010. That day, Plaintiff complained of lower back and left-leg pain, stating his pain started
at 2:00 a.m. Based on Plaintiff’s report and the EMT’s examination, Plaintiff was sent to the
infirmary. There, Plaintiff was treated by Defendant Tubbs, who examined Plaintiff and
prescribed Ultram, Tramadol, HCL and Flexril for ten days. He told Plaintiff to rest his back.
Plaintiff submitted a sick-call request and was treated by Logan S. Clark, PA on July 30,
2010. He reported that since returning to housing, he had difficulty walking and increased pain.
He further said he had been unable to get to the medication room or dinner for the past few days.
Reporting chronic and intensifying pain, Plaintiff was admitted to the infirmary for bed rest,
observation and a lumbar x-ray, scheduled for Monday, August 4, 2010. Darvocet was also
added to his medications to help him manage pain. The infirmary beds are all single beds and,
thus, are only “bottom bunks.”
While in the infirmary, on July 31, 2010, Plaintiff was treated by Nurse Earnshaw.
Plaintiff complained of left lower back and left thigh pain, in addition to numbness and lack of
reflex in his left leg, from his thigh to his foot.
On August 1, 2010, Plaintiff was treated by Tim Langley, P.A. Plaintiff reported
persistent pain in his lower back and numbness in his left leg. That same day, Plaintiff’s medical
condition was also assessed by Nurse Earnshaw. Plaintiff reported he had to actively lift his leg
into bed with both arms to move it. Plaintiff appeared to be hunched forward when ambulating.
Plaintiff stated that he took his prescribed pain medications every afternoon. More bed rest was
prescribed, but Plaintiff reported no improvement in his back pain after a weekend of bed rest.
Accordingly, Plaintiff was scheduled for more radiological imaging. Plaintiff said his prescribed
pain medications were controlling his pain.
Plaintiff was again assessed by Nurse Johnson on August 4, 2010. Nurse Johnson
consulted with Defendant Tubbs, who consulted with Plaintiff. On August 4, 2010, Defendant
Tubbs requested x-rays of Plaintiff’s lumbar spine. The results of the x-rays showed: “lumbar
spine show minimal anterolisthesis of L4 on L5. There is mild endplate spurring in themed
lumbar region with moderate to severe facet arthropathy in the inferior 2 levels. SI joints are
minimally arthritic.” On August 4, 2010, Defendant Tubbs ordered magnetic resonance imaging
(MRI) of Plaintiff’s lumbar spine due to neuropathy and numbness of both lower extremities.
The next day, August 5, 2010, Plaintiff was taken to UMC for an MRI and later admitted
for surgery for L2-L3 disc rupture. Plaintiff underwent surgery for a L2-3 discectomy on August
6, 2010. Following surgery, Plaintiff was returned to the USP infirmary on August 7, 2010.
Defendant Roberts treated and assessed Plaintiff on August 16, 2010. Plaintiff reported
he may be getting back some use of his right leg. Plaintiff further stated he did not feel ready to
leave the infirmary. Defendant Roberts allowed Plaintiff to remain in the infirmary for further
rest and observation.
Defendant Roberts treated and assessed Plaintiff on August 18, 2010. Plaintiff stated he
called for help; he could see the word “help” in his brain but he could not get the word out; all he
could do was jabber. Defendant Roberts prescribed Valium to help Plaintiff calm down, as
Defendant Roberts believed Plaintiff was having an acute panic attack.
Plaintiff remained an inpatient in the USP infirmary until August 24, 2010, when he was
transferred to a bottom bunk bed in a regular housing unit. On August 26, 2010, Dr. Richard
Garden, the Administrative and Clinical Director over health services for UDOC, formally
authorized a bottom-tier and bottom-bunk clearance for Plaintiff. Plaintiff has continually been
assigned a bottom bunk since his return to regular housing.
Plaintiff started a prescribed program of physical therapy on August 27, 2010. Defendant
Roberts treated and assessed Plaintiff on October 13, 2010. Plaintiff complained of hip pain.
Defendant Roberts noted atrophy in Plaintiff’s quadriceps and loss of muscle mass in his thigh,
which Defendant Roberts believed was causing the hip pain. Plaintiff was still using a
wheelchair. It was Defendant Robert’s medical opinion that inactivity was causing Plaintiff’s
muscles to atrophy which, in turn was causing pain. Thus, Defendant Roberts prescribed a
controlled routine of exercise, movement and a centrally acting analgesic to control pain.
Specifically, Dr. Roberts prescribed a ten-day refill of Tramadol to control pain and physical
therapy three times a week.
Defendant Roberts’ treatment proved effective, as Plaintiff’s condition greatly improved.
After several physical therapy sessions over the course of about thirty days, Plaintiff could walk
on his own using normal gait pattern. His balance was good; and he was able to stand and sit,
change directions, and start and stop without help. At the end of his walking exercises, Plaintiff
was not tired and showed normal respiratory rate.
On December 1, 2010, Plaintiff submitted a medical-visit request, complaining of a
“severe stiff neck.” Defendant Roberts assessed and treated Plaintiff again on December 7,
2010, when Plaintiff reported he had had pain in his neck for eighteen years and noted he had
been in a mining accident before imprisonment. Plaintiff also said he had been having seizures
just before sleeping. Defendant Roberts’ treatment for Plaintiff’s conditions included: (1) 600
mg. Gabapentin daily to control seizures; (2) a radiological examination of Plaintiff’s cervical
spine, which showed no big change from his pre-surgery CT cervical spine scan done on August
5, 2010; and (3) a return to physical therapy, which again improved Plaintiff’s condition.
Five months later, on January 5, 2011, Plaintiff complained of neck pain and showed
myelopathic signs including hand and leg weakness. Plaintiff underwent a cervical MRI on
January 11, 2011 at the UMC. On February 23, 2011, Plaintiff was seen by in the Neurosurgery
Department at UMC and scheduled for a C3-C4 and C4-C5 anterior cervical discectomy and
fusion on March 25, 2011. On March 25, 2011, Plaintiff underwent the C3-C4 and C4-C5
anterior cervical discectomy and fusion. During a six-month follow-up, on September 16, 2011,
via a telemedicine conference with the Clinical Neurosciences Center at the University of Utah,
Plaintiff reported excellent progress. He further said he was doing physical therapy five times
per month and aerobic exercises two-to-three times per week.
IV. Summary Judgment Analysis
A. Legal Standard for Denial of Medical-Care Claims
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court held that “deliberate
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 (quoting
Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion)). “‘Deliberate indifference’ involves
both an objective and a subjective component. The objective component is met if the deprivation
is ‘sufficiently serious.’” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A medical need is serious enough “if it is one
that has been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” Hunt v. Uphoff,
199 F.3d 1220, 1224 (10th Cir. 1999) (quotation marks & citation omitted). The subjective
component is met only if a prison official “knows of and disregards an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 837. Allegations of mere negligence in diagnosing or
treating a medical condition, Estelle, 429 U.S. at 106, or “inadvertent failure to provide adequate
medical care,” Riddle v. Mondragon, 83 F.3d 1197, 1203 (10th Cir. 1996) (quotation marks &
citation omitted), are insufficient to state a claim under the Eighth Amendment.
B. Insufficiency of Plaintiff’s Evidence
Defendants’ motion for summary judgment asserts that the evidence here shows Plaintiff
was not denied adequate medical care and that Defendants were not deliberately indifferent to
Plaintiff’s medical needs. Defendants’ motion is supported by their Martinez report which
includes Plaintiff’s extensive medical records and the sworn affidavits of Defendants Tubbs and
Roberts. The Court has thoroughly reviewed these documents which show that Plaintiff has
received extensive treatment for his various ailments, including numerous doctor visits, regular
outside consultations, multiple MRIs as well as other diagnostic imaging procedures, surgical
procedures, consistent physical therapy and pain-management treatments.
Based on this evidence, the Court concludes that Defendants have met their initial burden
on summary judgment of showing that there is an absence of evidence to support Plaintiff’s
claim of cruel and unusual punishment. Thus, the burden rests squarely with Plaintiff to come
forward with admissible evidence showing there is a genuine issue of material fact which
precludes summary judgment for Defendants.
Plaintiff has not met his burden of proof in this case. Not only has Plaintiff failed to
produce any contrary evidence to support his allegations that he was denied proper medical
diagnosis and treatment he has also failed to show that Defendants were deliberately indifferent
to his medical needs. In fact, the extensive medical records in this case show that Defendants
have been solicitous of Plaintiff’s medical needs. Though Plaintiff may quibble with some
delays, those were only a matter of a few days at a time and can inarguably be attributed to
medical diagnosis and treatment playing out over days of observation and trial and error. Indeed,
the total time between when Plaintiff first complained of pain and when he received his first
surgery was but thirty-seven days, and, during those thirty-seven days (most notably during his
treatment by Defendants), he was never without documented medical treatment--either having
seen a medical professional within the past few days or taking prescribed medication intended to
help. Plaintiff may further argue that the diagnosis and treatment he received was not perfect or
what he would have hoped for; however, that is not the standard upon which to measure these
Further, Plaintiff has done nothing but guess that if he (1) had been assigned a bottom
bunk sooner or (2) been assessed differently for pain medication (which clearly was not flatly
denied as Plaintiff suggests) or (3) not been required to walk on “unstable legs,” he would have
had any better outcome to his situation than he has had. None of these three factors going to the
heart of Plaintiff’s claims appear from Plaintiff’s arguments or (lack of) evidence to have caused
him perceptible injury.
Plaintiff cannot rest upon the mere allegations in his Complaint and, instead, must come
forward with admissible evidence showing a genuine issue remaining for trial. Plaintiff’s
response to Defendants’ summary judgment motion does not identify any material facts in
dispute. Instead, his response confirms that he received adequate medical care and that summary
judgment for Defendants is appropriate.
Based on the foregoing, IT IS HEREBY ORDERED that Defendants’ Motion for
Summary Judgment is GRANTED. (Docket No. 32.)
DATED this 11th day of March, 2014.
BY THE COURT:
DALE A. KIMBALL
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?