United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
PATRICIA S. HARRIS, Magistrate Judge.
following Proposed Findings and Recommendation have been sent
to United States District Judge Kristine G. Baker. You may
file written objections to all or part of this
Recommendation. If you do so, those objections must: (1)
specifically explain the factual and/or legal basis for your
objection; and (2) be received by the Clerk of this Court
within fourteen (14) days of this Recommendation. By not
objecting, you may waive the right to appeal questions of
Jerry Champion filed a pro se complaint on August 1,
2013, alleging he was denied adequate medical care for his
shoulder condition. On February 19, 2016, defendant William
Warren, M.D., filed a motion for summary judgment, a brief in
support, and a statement of facts (Doc. Nos. 145-147).
Champion filed a response on March 23, 2016 (Doc. No. 153).
Champion filed a motion for summary judgment and a statement
of facts on February 26, 2016 (Doc. No. 148). Warren filed a
response and brief in support on March 11, 2016 (Doc. Nos.
150 & 151).
Standard of review
Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is proper "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 v. Catrett, 477 U.S. 317, 321 (1986).
When ruling on a motion for summary judgment, the court must
view the evidence in a light most favorable to the nonmoving
party. Naucke v. City of Park Hills, 284 F.3d 923,
927 (8th Cir. 2002). The nonmoving party may not rely on
allegations or denials, but must demonstrate the existence of
specific facts that create a genuine issue for trial.
Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007).
The nonmoving party's allegations must be supported by
sufficient probative evidence that would permit a finding in
his favor on more than mere speculation, conjecture, or
fantasy. Id. (citations omitted). A dispute is
genuine if the evidence is such that it could cause a
reasonable jury to return a verdict for either party; a fact
is material if its resolution affects the outcome of the
case. Othman v. City of Country Club Hills, 671 F.3d
672, 675 (8th Cir. 2012). Disputes that are not genuine or
that are about facts that are not material will not preclude
summary judgment. Sitzes v. City of West Memphis,
Ark., 606 F.3d 461, 465 (8th Cir. 2010).
to Champion's complaint, Warren denied him adequate
medical care for his shoulder pain. Specifically, Champion
complains that when he saw Warren on April 30, 2013, Warren
refused to renew his prescription for Tramadol, an opioid
pain reliever, and did not order any pain medication, despite
the fact Champion had shoulder surgery about a month earlier.
Eighth Amendment's proscription of cruel and unusual
punishment obligates prison officials to provide adequate
medical care to inmates in their custody. Estelle v.
Gamble, 429 U.S. 97, 102-03 (1976). To succeed with an
inadequate medical care claim, a plaintiff must allege and
prove that: (1) he had objectively serious medical needs; and
(2) prison officials subjectively knew of, but deliberately
disregarded, those serious medical needs. Dulany v.
Carnahan, 132 F.3d 1134, 1239 (8th Cir. 1997).
Additionally, the Eighth Circuit has held that a
"prisoner must show more than negligence, more even than
gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional
violation." Estate of Rosenberg by
Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir.
1995). However, "[g]rossly incompetent or inadequate
medical care can constitute deliberate indifference, as can a
doctor's decision to take an easier and less efficacious
course of treatment.'" Warren v. Fanning,
950 F.2d 1370, 1373 (8th Cir. 1991) (quoting Smith v.
Jenkins, 919 F.2d 90, 93 (8th Cir. 1990)).
facts are not in dispute. Warren asserts he is entitled to
summary judgment because his treatment was appropriate, and
Champion simply disagrees with the treatment provided.
Champion asserts in his motion that the facts demonstrate
records indicate Dr. Bernard Crowell, an orthopedic surgeon,
performed surgery on Champion's right shoulder on March
11, 2013, to repair a rotator cuff tear (Doc. No. 148, pages
14-16). Thereafter, Warren first saw Champion on March 15,
2013, and noted Champion's "uncomplicated resolution
from surgery at this time." Warren prescribed daily
dressing changes and range of motion exercises (Doc. No. 145,
exhibit 2). Warren evaluated Champion again on March 20,
2013, for a follow-up and suture removal. Id. At
that time, Warren noted well-healed incisions, and
satisfactory post-operative recovery. Warren prescribed
continued range of motion exercises, and a follow-up
appointment with Crowell. Crowell evaluated Champion on March
27, 2013, and recommended he wear a shoulder immobilizer, and
remove it only for exercises (Doc. No. 148, page 7). Medical
notes from the Cummins Unit indicate Champion used the brace.
requested a refill of Tramadol in an encounter with Estella
Bland, APN, on April 8, 2013. Champion told Bland he
needed the Tramadol for a preexisting back injury as well as
for his shoulder (Doc. No. 145, exhibit 2). Bland referred
Champion to Warren, who evaluated Champion on April 30, 2013.
After an examination and review of Champion's medical
history, Warren determined there was no indication for
continued use of Tramadol, and he noted Champion had used it
for years at another unit without medical justification.
Warren noted Champion became angry when he was told he would
need to reduce his weight before Tramadol would be
considered. Warren did not see Champion after April 30, 2013.
support of his motion for summary judgment, Warren provided
an affidavit from Michael C. Fischer, M.D. (Doc. No. 145,
Exhibit A). Fischer is board certified in internal medicine,
and is a hospitalist at Saline Memorial Hospital in Benton,
Arkansas. He has maintained an active medical practice for 20
years, and has seen and treated back and shoulder pain on
numerous occasions. According to Fischer, Warren
appropriately and adequately assessed and addressed
Champion's complaints based on his ongoing assessment of
Champion's condition, including the prescription of
appropriate exercises for a patient recovering from rotator
cuff surgery (Doc. 145, exhibit A). Specifically, Fischer
states that Warren appropriately addressed Champion's
complaints of back and shoulder pain, concluding
"[w]hether to prescribe Tramadol to Mr. Champion was a
matter committed to the professional judgment of Dr. Warren,
and in light of Dr. Warren's appropriate examination of
Mr. Champion, review of Mr. Champion's medical history,
prescription of exercises for Mr. Champion's shoulder,
and recommendation that Mr. Champion lose weight to reduce
his complaints of back pain, Dr. Warren did not violate the
standard of care and was not deliberately indifferent in
refusing to prescribe Tramadol to Mr. Champion on April 30,
2013." (Doc. No. 145, Exhibit A, at 5).
has provided no medical evidence, either in his response to
Warren's motion or in his own motion, to suggest
Warren's treatment was deficient in any way. In his
complaint, Champion does make reference to two prescriptions
that Crowell recommended (Doc. No. 2, page 5). Champion is
apparently referring to Crowell's May 8, 2013,
recommendation that he be prescribed Tramadol and Naproxen, a
non-steriodal anti-inflammatory drug (Doc. No. 148, page 13).
That recommendation was made after Champion last saw Warren,
and there is no indication Warren was aware of Crowell's
recommendation. Even if Warren was aware of the
recommendation, Champion could at most establish a
disagreement between medical providers, and Warren's
decision to exercise his own judgment would not be a
constitutional violation. SeeLong v. Nix,
86 F.3d 761, 765 (8th Cir.1996) (if medical experts disagree
over appropriate course of treatment, prison officials do ...