Roberts v. Ballard et al

Filing 60

MEMORANDUM OPINION AND ORDER OVERRULING Plaintiff's 59 Objection, ADOPTING the 55 Proposed Findings and Recommendation, and GRANTING Dr. Kennedy's 45 Motion for Summary Judgment; this case is DISMISSED and retired from the docket of this Court. Signed by Judge Joseph R. Goodwin on 8/10/2018. (cc: counsel of record; any unrepresented party) (kp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

CHARLES E. ROBERTS,
Plaintiff,
v.

CIVIL ACTION NO. 2:15-cv-15458

JEAN KENNEDY,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Jean Kennedy’s (“Dr. Kennedy”) Motion for
Summary Judgment. (ECF No. 45.) By Standing Order filed in this case on November 24,
2015, this action was referred to United States Magistrate Judge Dwane L. Tinsley for findings
of fact and a recommendation for disposition (“PF&R”).1 (ECF No. 5.) On May 2, 2018,
Magistrate Judge Tinsley entered a PF&R in which he recommends that the Court grant Dr.
Kennedy’s Motion for Summary Judgment. (ECF No. 55.) On July 10, 2018, Plaintiff filed a
timely Response and Objection to the PF&R (“Objection”).2 (ECF No. 59.) For the reasons
provided herein, the Court OVERRULES Plaintiff’s Objection, (ECF No. 59), ADOPTS the
PF&R, (ECF No. 55), and GRANTS Dr. Kennedy’s Motion for Summary Judgment, (ECF No.
45).
1

On February 1, 2017, Magistrate Judge Tinsley entered a PF&R related to two motions to dismiss filed collectively
by all Defendants against whom Plaintiff originally brought claims. (ECF No. 19.) This Court overruled Plaintiff’s
objections, adopted that PF&R recommending the dismissal of all claims in the Complaint except the Eighth
Amendment claim asserted against Dr. Kennedy, and re-referred the case to Magistrate Judge Tinsley for further
pretrial management and submission of further PF&Rs. (ECF No. 21.)
2
While objections to the PF&R originally were due by May 21, 2018, Plaintiff filed a motion for an extension of
time to file his objections, which the Court granted. (ECF Nos. 56, 57.) The Court extended the objections deadline
to July 15, 2018. (ECF No. 57.) Thus, Plaintiff’s Objection filed on July 10, 2018, is timely.

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I. BACKGROUND
This case involves an Eighth Amendment claim by Plaintiff Charles E. Roberts against
Dr. Kennedy, who provides dental care at Mount Olive Correctional Complex (“MOCC”).
Plaintiff alleges that Dr. Kennedy showed a deliberate indifference to a serious medical need
concerning dental care and pain treatment he received in June and July of 2015. (See ECF No.
21 at 2.) Plaintiff claims to have experienced “extreme aching in his lower right jaw” beginning
on May 26, 2015. (ECF No. 2 at ¶ 10.) “Plaintiff sought and received medical treatment from
MOCC’s dental clinic on multiple occasions, but he contends that [Dr.] Kennedy should have
prescribed him medication that was more effective.” (ECF No. 21 at 2 (citing ECF No. 2 at ¶¶
37–40, 46–47, 56–58).) While Dr. Kennedy eventually extracted three of Plaintiff’s teeth over
the course of his examinations to alleviate his pain, Plaintiff alleges that his extreme pain
continued for an entire month. (ECF No. 2 at ¶ 73.) The facts of this case are more fully
described in the PF&R.3 (See ECF No. 55 at 1–4.)
On November 14, 2017, Dr. Kennedy filed her Motion for Summary Judgment. (ECF
No. 45.) Plaintiff filed his response to the motion on December 5, 2017, (ECF No. 48), and Dr.
Kennedy replied on December 19, 2017, (ECF No. 49). Magistrate Judge Tinsley filed the
PF&R on May 2, 2018, (ECF No. 55), and Plaintiff filed his Objection on July 10, 2018, in
which he challenges the PF&R’s recommendation that this Court grant the Motion for Summary
Judgment, (ECF No. 59). As such, the PF&R, the Objection, and the Motion for Summary
Judgment are fully briefed and ripe for adjudication.

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While the PF&R describes the statement of facts as undisputed, a portion of the Objection argues that there are
disputes of material facts, including Dr. Kennedy’s motive in her treatment of Plaintiff. (See ECF No. 59 at 5.)
Nevertheless, the Court incorporates the facts as described in the PF&R because it agrees, as described more fully
below, that based on the evidence presented, Magistrate Judge Tinsley’s statement of facts is undisputed.

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II. LEGAL STANDARD
A. Standard for Review of the PF&R
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the Court “must determine
de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.
R. Civ. P. 72(b)(3). The Court is not required to review, under a de novo or any other standard,
the factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendations to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150
(1985). In addition, this Court need not conduct a de novo review when a party “makes general
and conclusory objections that do not direct the Court to a specific error in the magistrate’s
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)
(citations omitted). However, “[t]he district court cannot artificially limit the scope of its review
by resort to ordinary prudential rules, such as waiver, provided that proper objection to the
magistrate’s proposed finding or conclusion has been made and the appellant’s right to de novo
review by the district court thereby established.” United States v. George, 971 F.2d 1113, 1118
(4th Cir. 1992). In reviewing the portion of the PF&R to which Plaintiff objects, this Court will
consider the fact that Plaintiff is acting pro se, and his filings will be accorded liberal
construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978).
B. Rule 56 Standard
Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment.
This rule provides, in relevant part, that summary judgment should be granted if “there is no
genuine issue as to any material fact.”

Fed. R. Civ. P. 56(a).

Summary judgment is

inappropriate, however, if there exist factual issues that reasonably may be resolved in favor of

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either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material’
when they might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence
would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer
Publ. Co. v. Raleigh–Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010).

When

evaluating such factual issues, the Court must view the evidence “in the light most favorable to
the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).
The moving party may meet its burden of showing that no genuine issue of fact exists by
use of “depositions, answers to interrogatories, answers to requests for admission, and various
documents submitted under request for production.” Barwick v. Celotex Corp., 736 F.2d 946,
958 (4th Cir. 1984). Once the moving party has met its burden, the burden shifts to the
nonmoving party to “make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). If a party fails to make a sufficient showing on one
element of that party’s case, the failure of proof “necessarily renders all other facts immaterial.”
Id. at 323.
III. DISCUSSION
Plaintiff objects to Magistrate Judge Tinsley’s recommendation in the PF&R that Dr.
Kennedy is entitled to judgment as a matter of law. Specifically, Plaintiff objects to the proposed
findings that Plaintiff “failed to establish that Dr. Kennedy was deliberately indifferent to his
serious medical needs” and “that there is no genuine issue of material fact” as to his Eighth
Amendment claim. (ECF No. 55 at 12.) For the reasons that follow, the Court OVERRULES
Plaintiff’s Objection. (ECF No. 59.)
Plaintiff’s Objection involves his Eighth Amendment claim that Dr. Kennedy was

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deliberately indifferent to his serious medical needs. (See id. at 2–4.) The Eighth Amendment
requires that prison officials ensure inmates receive adequate medical care.

See Estelle v.

Gamble, 429 U.S. 97, 103–106 (1976) (“In order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious
medical needs.”); see also Wilson v. Seiter, 501 U.S. 294, 303–04 (1991) (“Whether one
characterizes the treatment received by [the prisoner] as inhumane conditions of confinement,
failure to attend to his medical needs, or a combination of both, it is appropriate to apply the
‘deliberate indifference’ standard articulated in Estelle.” (alteration in original) (citations
omitted)). “The right to treatment is, of course, limited to that which may be provided upon a
reasonable cost and time basis[,] and the essential test is one of medical necessity and not simply
that which may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47–48 (4th
Cir. 1977).
The Supreme Court has reiterated that a prisoner must meet two requirements in making
out a claim of deliberate indifference. See Goodman v. Runion, 676 F. App’x 156, 159–60 (4th
Cir. 2017) (per curiam) (unpublished opinion) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).
“First, the deprivation alleged must be, objectively, sufficiently serious” in that the act or
omission “must result in the denial of the minimal civilized measure of life’s necessities.”
Farmer, 511 U.S. at 834 (internal quotation marks omitted) (citations omitted). Second, the
defendant prison official “must have a sufficiently culpable state of mind.”

Id. (internal

quotation marks omitted) (citations omitted) (noting that “[i]n prison-conditions cases that state
of mind is one of ‘deliberate indifference’ to inmate health or safety”). This second element
results in a subjective test regarding the medical provider’s “actual intent or reckless disregard.”
Miltier v. Beorn, 896 F.2d 848, 851–52 (4th Cir. 1990) (“A defendant acts recklessly by

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disregarding a substantial risk of danger that is either known to the defendant or which would be
apparent to a reasonable person in the defendant’s position.”), overruled in part on other grounds
by Farmer, 511 U.S. at 837.
Notably, negligence of the prison official “in diagnosing or treating a medical condition”
does not rise to the level of an Eighth Amendment violation. Estelle, 429 U.S. at 106; see also
Farmer, 511 U.S. at 835 (“We have since read Estelle for the proposition that Eighth
Amendment liability requires ‘more than ordinary lack of due care for the prisoner’s interests or
safety.’” (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986))). The Fourth Circuit has held
that “[t]he medical provider’s disregard of the prisoner’s serious medical needs must have been
‘so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.’” Goodman, 676 F. App’x at 160 (quoting Miltier, 896 F.2d at 851).
Further, challenges to the provider’s medical judgment are not subject to judicial review under
§ 1983. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 635 (4th Cir. 2003) (citing Russell v.
Sheffer, 528 F.2d 318, 319 (4th Cir. 1975) (per curiam)).
The PF&R thoroughly summarizes the briefing associated with Dr. Kennedy’s Motion
for Summary Judgment. (See ECF No. 55 at 7–11.) In short, the motion argues that Plaintiff’s
alleged dental pain does not rise to the level of a serious medical need and that the evidence
before the Court cannot prove a claim of medical indifference. (See generally ECF No. 46.) The
Court will assume for purposes of this analysis that Plaintiff’s medical needs were sufficiently
serious.4 Thus, the inquiry becomes whether Plaintiff has presented enough evidence to create a
genuine dispute of material fact regarding whether Dr. Kennedy was deliberately indifferent to

“A medical need serious enough to give rise to an Eighth Amendment claim involves a condition which places an
inmate at substantial risk of serious harm, usually loss of life or permanent disability, or a condition for which lack
of treatment causes continuous severe pain.” Green v. Rubenstein, 644 F. Supp. 2d 723, 740 (S.D. W. Va. 2009).
4

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those needs.5 A timeline of Plaintiff’s recent and uncontested dental history at MOCC is relevant
to assessing Dr. Kennedy’s treatment of Plaintiff’s medical needs.
The documents attached to Plaintiff’s Complaint and his response to the motion
demonstrate that he first submitted an inmate medical services request (“MSR”) on June 1, 2015,
in which he stated that he was experiencing a painful tooth abscess. (ECF No. 2-1 at 9, 11.)
Plaintiff was readily seen in the dental clinic the next day. (Id. at 9, 11) Dr. Kennedy extracted
tooth #25 during that visit as oral and x-ray evaluations were consistent with Plaintiff’s
complaint of the area as a pain source. (ECF No. 2 at ¶¶ 18, 20; ECF No. 46-1 at 1.) After
Plaintiff’s pain continued, he submitted a second MSR on June 10, 2015. (ECF No. 2-1 at 9, 12.)
Again, Plaintiff was seen by Dr. Kennedy the very next day. (Id.) Additional x-rays were taken,
and Dr. Kennedy removed tooth #26 to alleviate Plaintiff’s pain. (ECF No. 2 at ¶ 35; ECF No.
46-1 at 2.) Plaintiff was “prescribed and dispensed antibiotic (penicillin VK) and analgesic
(ibuprofen) medication” with specific instructions to take two of the thirty 400 milligram tablets
of ibuprofen every six to eight hours and no more than eight tablets, or 3,200 milligrams, per
twenty-four-hour period. (ECF No. 46-1 at 2.) Dr. Kennedy advised Plaintiff to have his
housing unit contact the dental clinic the next day if he did not experience any pain relief. (ECF
No. 2-1 at 9; ECF No. 46-1 at 2.)
Indeed, on June 12, 2015, Plaintiff expressed a desire to be seen in the dental clinic, and
he was examined by Dr. Kennedy that same afternoon.

(ECF No. 2-1 at 10.) At that visit,

Plaintiff informed the dental clinic staff that he took twenty-eight of the thirty 400 milligram
For purposes of this inquiry, Plaintiff’s response to the motion and his Objection attempt to distinguish the
question of whether Dr. Kennedy provided him adequate dental treatment from the question of whether she properly
treated his pain via medication. (See ECF No. 48 at 4–5 (“Plaintiff disputes this because the record as developed
shows he indisputably sought defendant’s help in feeling less pain, rather than mere dental treatment of the many
possible causes of the pain.”); ECF No. 59 at 2–4.) However, the Court does not construe Dr. Kennedy’s argument
or the PF&R’s analysis as considering those issues to be mutually exclusive as Plaintiff seems to believe. Both
questions are part of the same inquiry of whether Dr. Kennedy was deliberately indifferent to Plaintiff’s serious
medical needs.
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tablets of ibuprofen in a twenty-two-hour period, which is 350% greater than the maximum dose
of which he was informed both orally and in writing. (ECF No. 46-1 at 2; see also ECF No. 2 at
¶ 44.) Considering a possible overdose, Dr. Kennedy reported the ibuprofen misuse to medical
administration and the MOCC physician as a precaution. (ECF No. 46-1 at 2; see also ECF No.
2-1 at 31.) At the June 12 examination, Dr. Kennedy heavily numbed Plaintiff and removed
tooth #29. (ECF No. 46-1 at 3.) Plaintiff was not prescribed more medication on that visit
because, according to Dr. Kennedy, “that could have resulted in more serious medical
consequences for [Plaintiff] and would be malpractice.” (Id.)
Plaintiff submitted a third MSR on June 13, 2015, in which he stated that he was not
getting relief from the pain and that he “need[ed] some kind of pain reliever . . . .” (ECF No. 2-1
at 13 (emphasis in original).) Dr. Kennedy responded to the MSR on June 15, 2015, noting that
despite Plaintiff’s claim that he had never been given medication, she previously gave Plaintiff
scheduled doses of ibuprofen that he admitted to abusing during his June 12 visit. (Id. (citing id.
at 10).) Plaintiff was not seen in the dental clinic as a result of the third MSR. Finally, Plaintiff
completed a fourth MSR on June 28, 2015, and he was seen in the dental clinic the day the MSR
was received, July 1, 2015. (Id. at 10, 14; ECF No. 46-1 at 3.) Dr. Kennedy noted during the
visit that the three extraction areas were healing well and that there was no “protruding bone” as
Plaintiff claimed in his MSR. (ECF No. 2-1 at 14; ECF No. 46-1 at 3.) She “smoothed the small
tooth #29 area of uncovered bone and cleaned out the adjacent soft tissue to promote better
healing,” (ECF No. 46-1 at 3), and Plaintiff admits to feeling relieved from his pain after that
procedure, (ECF No. 48-1 at 4).
Shortly after the last visit, Plaintiff wrote a formal complaint letter regarding Dr.
Kennedy’s care to the West Virginia Board of Dentistry. (ECF No. 2-1 at 1.) Dr. Kennedy

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responded to the complaint on August 11, 2015, and outlined her treatment to Plaintiff consistent
with her sworn testimony attached to the pending motion. (ECF No. 2-1 at 7–8; ECF No. 46-1.)
Upon review and investigation, the West Virginia Board of Dentistry “determined, in accordance
with the Board’s rules, there [was] not sufficient evidence to warrant further proceedings. The
Board found no violation of the standard of care . . . .” (ECF No. 2-1 at 16.)
Despite these uncontested facts, Plaintiff continues to claim that a genuine dispute of
material fact exists regarding Dr. Kennedy’s treatment and her motive in not prescribing him
additional pain medication. Notwithstanding this claim, Plaintiff has presented no evidence
besides his own sworn statement to contradict the evidence provided by Dr. Kennedy and the
earlier documents attached to the Complaint and his response. Plaintiff provides no other
extrinsic evidence supporting the affidavit’s assertions, which focuses on the month-long pain he
experienced. Thus, the Court must examine whether Plaintiff’s affidavit serves to preclude
summary judgment in this situation because the Fourth Circuit again has recently rejected “the
misconception that uncorroborated testimony from the non-movant cannot prevent summary
judgment because it is ‘self-serving.’” Lovett v. Cracker Barrel Old Country Store, Inc., 700 F.
App’x 209, 212 (4th Cir. 2017) (per curiam) (unpublished opinion) (citations omitted).
Once more, the question at this stage of litigation is whether Plaintiff has produced
enough evidence to demonstrate that a “dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. The only evidence produced by Plaintiff besides the documents
originally attached to his Complaint is his own affidavit signed on December 4, 2017. 6 (See ECF

While the document is not properly notarized, it provides that the statement is made “under penalty of perjury” and
is “true to the best of [Plaintiff’s] understanding and knowledge.” (ECF No. 48-1 at 1.) Thus, “[u]nder Fed. R. Civ.
P. 56(e) and 28 U.S.C. § 1746, the filing qualifies as an affidavit,” cf. Williams v. Sielaff, No. 89-7750, 1990 WL
135721, at *1 (4th Cir. Sept. 20, 1990) (per curiam) (unpublished opinion), and will be considered as such.
6

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No. 48-1; compare ECF No. 2-1, with ECF Nos. 48-2, 48-3, 48-4, 48-5, 48-6, 48-7.)
“Sometimes, the non-movant’s affidavit will be insufficient to meet this standard, and other
times it will be enough.” Lovett, 700 F. App’x at 212 (citing Harris v. Mayor & City Council of
Balt., 429 F. App’x 195, 198 n.5, 203 (4th Cir. 2011) (unpublished opinion) (concluding that
summary judgment was inappropriate, in part because of evidence from non-movant’s affidavit);
Coffey v. Chem. Specialties, Inc., No. 92-2397, 1993 WL 318886, at *3 (4th Cir. Aug. 20, 1993)
(finding plaintiff’s “self serving testimony” to be “utterly lacking in foundation” and thus failing
to establish a genuine issue of material fact)).
The affidavit here, even when viewed in the light most favorable to Plaintiff, is not
enough to create a genuine dispute of fact necessary to his case. The only statements within
Plaintiff’s affidavit, if any, that are relevant to the second element of his deliberate indifference
claim are those statements regarding Dr. Kennedy’s alleged improper motive in refusing to
provide him effective pain medication. (See ECF No. 48-1 at 3 (“I request the Court to let a trial
determine if there is evidence that defendant deliberately ignored and refused to act upon the
repeated requests I submitted to be free of pain.”).) Plaintiff claims that Dr. Kennedy’s stated
reasoning for not prescribing additional medication on June 12, 2015—because of the amount of
ibuprofen consumed by Plaintiff within the previous twenty-four hours—was a pretext for
denying him medication to guarantee the continuation of his pain. (See ECF No. 48-1 at 2.)
Unfortunately for Plaintiff, these statements simply reflect his disagreement with Dr. Kennedy’s
medical judgment, which is well documented in the record. See Russell, 528 F.2d 319. The fact
that Plaintiff did not receive medication that he claims would have been effective does not render
Dr. Kennedy’s decisions judicially reviewable. See Bowring, 551 F.2d at 47–48.
According to the evidence, Plaintiff filed four MSRs within a month, and he was seen by

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Dr. Kennedy on four occasions within the same period.

Even after prescribing Plaintiff

medication at the second visit, she advised him to seek treatment again the next day if his pain
did not subside. He did seek treatment the next day. During that visit, Plaintiff informed the
dental staff that he had abused the prescribed medication and, subsequently, complained of pain
following an extraction for which he had been completely numbed. While Plaintiff submitted a
third MSR on June 13, 2015, Dr. Kennedy wrote that she was out of the office from June 13 to
June 16, 2015. (ECF No. 2-1 at 7.) Nonetheless, Dr. Kennedy again saw Plaintiff and provided
him additional treatment after the fourth MSR. Apart from the third MSR, which was submitted
while Dr. Kennedy was out of the office, Dr. Kennedy saw and treated Plaintiff four times
during the month in which he reportedly experienced severe pain, taking steps on each occasion
to diagnose and treat the pain source. Clearly, even if the initial procedures and prescribed
medication were not wholly effective, Dr. Kennedy did not “fail[] to respond to [Plaintiff’s]
known medical needs,” which could result in an inference of deliberate indifference.

See

Sosabee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986); cf. Green, 644 F. Supp. 2d at 732.
Further, the West Virginia Board of Dentistry concluded after investigating and
examining all the patient notes and x-rays provided by Dr. Kennedy that her treatment of
Plaintiff did not violate the profession’s standard of care. It would be a stretch to conclude that
while Dr. Kennedy’s alleged acts or omissions did not violate the profession’s standard of care as
evaluated by the state board, they nonetheless were “so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier, 896
F.2d at 851. The Court finds that no reasonable jury could find as much even considering
Plaintiff’s affidavit.
Finally, when a plaintiff “has named a witness to support [his] claim, summary judgment

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should not be granted without . . . somehow showing that the named witness’ possible testimony
raises no genuine issue of material fact.” Celotex, 477 U.S. at 328 (White, J., concurring). Here,
Plaintiff has not named an expert witness to support the claims in the Complaint. (See ECF No.
46-2.) Plaintiff wrote in response to an interrogatory that the MOCC physician, Dr. Lye, will
testify as to Plaintiff’s kidney damage, but this does not create an issue of fact as to the dental
care provided by Dr. Kennedy. Plaintiff also suggests in his affidavit that prison personnel will
testify on his behalf, including “Major Rhodes, Lt. Blagg, UM Brenda Ward, and other
staff . . . .” (ECF No. 48-1 at 3–4; see also ECF No 48 at 5.) Again, though, the Court does not
find that their potential testimonies create an issue of fact regarding the dental care provided by
Dr. Kennedy.

As detailed above, the evidence offered by Dr. Kennedy coupled with the

documents already put into the record by Plaintiff produce no triable issue on the question of
whether Dr. Kennedy was deliberately indifferent to Plaintiff’s serious medical needs.
Green, 644 F. Supp. 2d at 732.

Cf.

Any continued challenge to Dr. Kennedy’s treatment of

Plaintiff’s pain, considering the facts before the Court, is a challenge to her medical judgment,
and this Court cannot entertain such a claim. See Wright v. Collins, 766 F.2d 841, 849 (4th Cir.
1985) (noting that these types of allegations “would, at most, constitute a claim of medical
malpractice”). Under these circumstances, Dr. Kennedy is entitled to judgment as a matter of
law on Plaintiff’s deliberate indifference claim.
IV. CONCLUSION
For the reasons stated above, the Court OVERRULES Plaintiff’s Objection, (ECF No.
59), ADOPTS the PF&R, (ECF No. 55), and GRANTS Dr. Kennedy’s Motion for Summary
Judgment, (ECF No. 45). Accordingly, this case is DISMISSED and retired from the docket of
this Court.

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IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:

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August 10, 2018