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Hussey v. Green

June 30, 2006

VINCENT HUSSEY ADC #109212 PLAINTIFF
v.
CHARLOTTE GREEN, ET AL DEFENDANTS



MEMORANDUM OPINION AND ORDER

I. Background

Plaintiff suffers from glaucoma and is exempt from all duties that require peripheral vision. Plaintiff asserts that he was denied his chronic care medication (eye drops) between April 3, 2003, and July 3, 2003. Even after he notified medical personnel and former Defendant Mobley of this denial through the grievance procedure, he was denied some of his medication again between October 13, 2003, and November 6, 2003.*fn1 In addition, Plaintiff asserts that his tinted sunglasses were stolen in May 2003, and were not replaced until August 2003, and that he was wrongfully placed on field duty against medical restrictions.

On March 10, 2006, Defendants Simmons, Grandy, and Green filed a motion for summary judgment and brief in support (docket entries #98, #99) seeking to dismiss Plaintiff's 42 U.S.C. § 1983 complaint on the grounds that he has failed to establish a valid constitutional claim of deliberate medical indifference. After requesting and receiving an extension (see docket entries #106, #107), Plaintiff's counsel has filed a response (docket entry #112). On March 21, 2006, Defendants James and Evans also filed a motion for summary judgment and brief in support (docket entries #101, #102). They seek to dismiss Plaintiff's complaint on the grounds that he has failed to state a claim upon which relief can be granted, sovereign immunity, and qualified immunity. Plaintiff's counsel has also responded to this motion (docket entry #114). For the reasons that follow, Defendants' motions are granted and Plaintiff's claims against them are dismissed in their entirety with prejudice.

II. Standard

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must view the evidence in the light most favorable to the nonmoving party, giving him the benefit of all reasonable factual inferences. Reed v. ULS Corp., 178 F.3d 988, 990 (8th Cir. 1999). A moving party is entitled to summary judgment if the nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he will have the burden of proof at trial. Celotex, 477 U.S. at 322-23. To avoid summary judgment, the non-movant must go beyond the pleadings and come forward with specific facts, "by [his] own affidavit" or otherwise, showing that a genuine, material issue for trial exists. Id. at 324; Fed. R. Civ. P. 56(e). A non-movant has an obligation to present affirmative evidence to support his claims. Settle v. Ross, 992 F.2d 162, 163-64 (8th Cir. 1993). A litigant's verified complaint is generally considered an affidavit for purposes of summary judgment. Burgess v. Moore, 39 F.3d 216, 218 (8th Cir. 1994).

III. Analysis

A. Defendants Simmons, Grandy, and Green

As to Defendants Simmons, Grandy, and Green, Plaintiff has raised two claims: (1) he was denied his chronic care medication (eye drops) between April 3, 2003, and July 3, 2003, and again between October 13, 2003, and November 6, 2003; and (2) his tinted sunglasses were stolen in May 2003, and were not replaced until August 2003.

In support of their motion for summary judgment, Defendants contend that they have presented indisputable medical evidence that establishes: (1) Plaintiff did not suffer any harm from missing his glaucoma medication in 2003; and (2) Plaintiff neither needed, nor was he harmed by, going without tinted sunglasses.

To prevail on his claim of deliberate medical indifference, Plaintiff must allege acts or omissions by Defendants "sufficiently harmful to evidence deliberate indifference to [his] serious medical needs." Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The Eighth Circuit has interpreted this standard to include both objective and subjective components: "The [plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs." Jolly, 205 F.3d at 1096 (citing Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)); see also Stetter v. Riddick, 6 Fed. Appx. 522 (8th Cir. 2001) (unpub. per curiam) (citing Moore v. Jackson, 123 F.3d 1082, 1086 (8th Cir. 1997)). This standard has been well settled for some time, and Plaintiff's burden is substantial. In determining whether Defendants were deliberately indifferent to his serious medical needs, Plaintiff must demonstrate "more than negligence, more even than gross negligence." Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995). Moreover, "mere disagreement with treatment decisions does not rise to the level of a constitutional violation." Id.

First, Plaintiff must establish that he suffered from an objectively serious medical need. A medical need is "serious" if it has been diagnosed by a physician as mandating treatment or if it is so obvious that even a lay person would recognize the necessity for a physician's treatment. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997); see also Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999). Clearly, Plaintiff suffered from an objectively serious medical need. It is undisputed that Plaintiff has been diagnosed with, and is receiving ongoing care for, glaucoma. Next, Plaintiff must establish that Defendants were (1) personally aware of his serious medical needs; and (2) deliberately disregarded those needs. Coleman, 114 F.3d at 785-86. This, Plaintiff cannot do.

1. Denial of Chronic Care Medication

Plaintiff asserts that he was denied his chronic care medication (eye drops) between April 3, 2003, and July 3, 2003. Even after he notified medical personnel, he was denied some of his medication again between October 13, 2003, and November 6, 2003. When an inmate is complaining about a delay in treatment (or, in this case, a delay in receiving medication for treatment), the objective "seriousness" of the deprivation must be measured by reference to the effect of any delay. Coleman, 114 F.3d at 784 (citing Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997)). To succeed on his claim, Plaintiff must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment, i.e., that Defendants ignored a critical or escalating situation, or that the delay adversely affected his prognosis. Id.; Beyerbach v. Sears, 49 F.3d 1324, 1326-27 (8th Cir. 1995). See also the following unpublished cases of Jackson v. Hallazgo, 30 Fed. Appx. 668 (8th Cir. Mar. 6, 2002) (unpub. per curiam) (citing Coleman, 114 F.3d at 784) ("[a]n inmate's failure to place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment precludes a claim of deliberate indifference to medical needs"); O'Neal v. White, 221 F.3d 1343 (8th Cir. July 12, 2000) (unpub. per curiam) (citing Crowley, 109 F.3d at 502) (concluding that plaintiff's "failure to submit verifying medical evidence to show a detrimental effect from any delay in tests, surgery, or alternative treatments was fatal to his Eighth Amendment claim").

The extensive evidence submitted by Defendants (see docket entry #100) indicates that Plaintiff was initially evaluated by H. Ginger, an optometrist. His vision was tested and optic pressures and optic nerves, including cup-to-disk ("CD") ratios, were evaluated. Intra ocular blood pressure ("IOP") below 20 is normal, while pressure readings between 20 and 25 are in the elevated-normal range. On October 21, 1999, Dr. Ginger noted that Plaintiff's IOP was 25/25 (25 in the left eye and 25 in the right eye). This pressure is borderline elevated. Dr. Ginger noted that Plaintiff had a CD ratio of .4, which is also normal, particularly for an ...


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