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Ewell v. Kelly

United States District Court, E.D. Arkansas, Pine Bluff Division

September 26, 2014

DAMONT EWELL, ADC #109853, Plaintiff,
WENDY KELLY, et al., Defendants.


JEROME T. KEARNEY, Magistrate Judge.

I. Introduction

Plaintiff Damont Ewell is a state inmate incarcerated at the Tucker Unit of the Arkansas Department of Correction (ADC). He filed this pro se civil rights action pursuant to 42 U.S.C. ยง 1983, alleging deliberate indifference to his serious medical needs by Defendants. Defendants Kelly and Warren were dismissed on October 3, 2013, and Defendant Moore was dismissed on February 19, 2014 (Doc. Nos. 8, 33.) Plaintiff asks for monetary and injunctive relief from remaining Defendants Health Services Administrator Marie Austin and Advanced Practice Nurse Estella Bland, a/k/a Estella Murry.

Pending before the Court is the Motion for Summary Judgment filed by Defendants Austin and Bland (Doc. No. 38), to which Plaintiff filed a Response (Doc. No. 42).

II. Complaint

In his Complaint, Plaintiff alleges he went to sick call on January 8, 2012, for "a ear problem, eye problem, joint, back, neck, scist (sic) on his head, hernoids (sic), script renewal and stab wounds." (Doc. No. 1, p. 5.) However, instead of seeing a doctor, Plaintiff was seen by Defendant Bland, who in the past denied Plaintiff adequate medical treatment. (Id.) Then on January 23, 2012, Plaintiff again saw Defendant Bland instead of a doctor, and did not receive adequate medical treatment. (Id.) Following his complaints, Nurse Boycan checked Plaintiff's ear and agreed to talk to the doctor, but after talking with Defendant Bland, Plaintiff was refused medication. ( Id., p. 6.) His medical problems continued through September, 2012, although the last time he saw Defendant 2Bland was in June, 2012. (Id.) Plaintiff also claims that Defendant Austin denied him adequate medical care, causing him to suffer "tremendous pains." (Id.)

III. Summary Judgment

Pursuant to FED.R.CIV.P. 56(a), summary judgment is appropriate if the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Dulany v. Carnahan , 132 F.3d 1234, 1237 (8th Cir. 1997). "The moving party bears the initial burden of identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'" Webb v. Lawrence County , 144 F.3d 1131, 1134 (8th Cir. 1998), quoting Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986) (other citations omitted). "Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or allegations in the pleadings; rather, the non-movant must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 1135. Although the facts are viewed in a light most favorable to the non-moving party, "in order to defeat a motion for summary judgment, the non-movant cannot simply create a factual dispute; rather, there must be a genuine dispute over those facts that could actually affect the outcome of the lawsuit." Id.

A. Defendants' Motion

According to the medical records provided by the Defendants, Plaintiff's complaints against Defendant Bland are based on three encounters in January, 2012. On January 3, 2012, Plaintiff complained generally of pain, and specifically of ear, back, and right arm pain. (Doc. No. 39-1, p. 4.) Plaintiff claimed he was stabbed in the arm with a pen and that he needed to see a neurologist. (Id.) Defendant Bland noted that Plaintiff's posture was erect, his gait stable, with good flexion and rotation of the back, and that he could climb the stairs without difficulty. (Id.) She did note moderate soft cerumen (wax) in his ear, and that there was a well-healed puncture-type wound on his right outer forearm, with no swelling or signs of infection. (Id.) Bland also noted that Plaintiff had active prescriptions for the following: Albuterol inhaler; Baclofed (muscle relaxer); Atenolol (blood pressure medication); Naproxen (nonsteroidal anti-inflammatory drug for pain); Acetaminophen with Codeine for pain; calcium carbonate antacid; Hydrochlorothiazide (hypertension treatment); Neomycin/Hydrocortisone/Polymyxin ear drops (combination anti-inflammatory corticosteroid and antibiotic to reduce ear swelling and discomfort); and Ranitidine (for gastrointestinal reflux). ( Id., pp. 1-3). Bland directed Plaintiff to continue his medications as prescribed and provided him a script to flush his ears with warm water once a day for a week to reduce the ear wax. ( Id., p. 4.) She also noted that Plaintiff did not agree with the medications and treatment plan and claimed he needed to be referred to a neurologist. (Id.)

Plaintiff was seen by a non-party nurse on January 19, 2012, for problems with his "eyes, ears, back, neck, joints, cold, stab wounds, wrist to my head, hemmorids (sic) breathing while I sleep, both L and R wrist and I need a script for a cotton blanket." (Doc. No. 39-1, p. 8.) The nurse noted that his respirations were even and that Plaintiff wanted to be seen by a provider as soon as possible. (Id.) Defendant Bland saw Plaintiff on January 23, 2012 for his complaints, and he responded, "why am I seeing you? I only see a physician. I need to add that I need some ear drops in case my ears mess up. I need a standing script to get my ears flushed out. I got shot and I am hurting all over." ( Id., p. 9.) Defendant Bland reviewed his medication and noted an erect posture, stable gait, and smooth movements, and that he climbed the stairs without difficulty and with no assistance. (Id.) She also noted a small amount of ear wax and determined that no action needed to be taken at that time, but that if Plaintiff developed ear discomforts, he should utilize the sick call process. (Id.) Bland also told him there was no medical indication for referral to a neurologist at that time. (Id.)

Plaintiff filed an "emergency" sick call request on January 25, 2012, complaining of severe pain in his left ear. ( Id., p. 10.) A nurse examined him on January 27, 2012, noting drainage from his left ear and redness to inner ear painful to touch, and recommended he see a provider. ( Id., p. 11.) Bland saw him again for evaluation of a complaint of left ear redness, on January 31, 2012. ( Id., p. 12.) At that time, Plaintiff began shouting as he entered the sick call area, and stated, "what do I have to do to keep you from coming down here to see me? Kick your ass? I am going to stop you from coming down here. A damn APN can't do anything for me. I need to see a real doctor. You just think that you are a doctor. Keep your ass from down here. I mean this." ( Id., p. 12.) Bland noted no redness to either side of Plaintiff's face, and Plaintiff was escorted from the sick call area, yelling and "inciting other inmates." (Id.)

Bland also presents the affidavit of Dr. Robert Floss, Associate Regional Medical Director for Correct Care Solutions, who states that after reviewing the records of Plaintiff's treatment by Bland, he finds that her care and treatment were appropriate and satisfactory for Plaintiff's complaints. (Doc. No. 39-3, pp. 3-4). He also states it was appropriate for her to discontinue her treatment of Plaintiff on January 31, 2012, as a "patient must be willing to cooperate with a provider in order to achieve an appropriate physical examination." ( Id., p. 4.)

Based on Plaintiff's medical records and Dr. Floss's affidavit, Defendant Bland states that Plaintiff cannot provide any proof that she acted with deliberate indifference to his serious medical needs, and that negligence in diagnosing or treating a medical condition does not support an Eighth Amendment violation. Estelle v. Gamble , 429 U.S. 97, 106 (1976). Furthermore, "[i]n the face of medical records indicating that treatment was provided and physician affidavits indicating that the care provided was adequate, an inmate cannot create a ...

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