United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE.
a civil rights action filed pro se by the Plaintiff,
Olando Deshun Gray, under 42 U.S.C. § 1983. Pursuant to
the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011),
the Honorable Susan O. Hickey, United States District Judge,
referred this case to the undersigned for the purpose of
making a Report and Recommendation. Currently before the
Court is Defendant Dr. Deanna Hopson's (incorrectly
identified in the caption as “Dr. Hopkins”)
Motion for Summary Judgment. ECF No. 25. After careful
consideration, I make the following Report and
filed his Complaint on February 5, 2016, alleging Dr. Hopson
violated his constitutional rights by denying him adequate
medical care. ECF No. 1. Plaintiff states he fell and
“dislocated” his knee because the floor was
slippery in the cell area in the Union County Detention
Center. ECF No. 1. Plaintiff alleges after falling his knee
swelled to “the size of a softball”. ECF No. 1.
Plaintiff was not taken to the hospital and instead submitted
a sick call. According to Plaintiff, when “finally I
seen the jail doctor, Miss Hopkins, she looked at my knee and
said yes I do need medical attention and sent me to go have
an x-ray. So when my x-ray was done I asked the doctor was it
bad and she said yes but when I ask her what was wrong with
my knee, she said that she couldn't tell me?” ECF
No. 1. “So When I made it back to the jail doctor Miss
Hopkins she said that I need real pains meds, I need an MRI
and an physical therapist cause they don't wana send me
to have surgery? I guess cause they don't wana pay for
it”. ECF No. 1. Plaintiff states Dr. Hopson “gave
him aspirin every day twice a day, and I'm still in pain
right now cause everytime I walk it feels like an knife
stabbing my knee which makes me walk with a limp now”.
ECF No. 1.
Hopson filed her Motion for Summary Judgment asserting she
was not deliberately indifferent to Plaintiff's medical
needs. Dr. Hopson claims the evidence shows she was attentive
to Plaintiff's complaints of knee pain, never ignored his
needs, and treated any pain Plaintiff had during the healing
process. ECF No. 25. In addition, Dr. Hopson argues Plaintiff
cannot present any verifiable medical evidence that he has
suffered an injury as a result of her treatment.
assist Plaintiff in responding to Dr. Hopson's Motion for
Summary Judgment, I sent a questionnaire to Plaintiff asking
him to agree or disagree with various statements set forth by
Dr. Hopson as undisputed facts. Plaintiff filed the
questionnaire as his Response to the summary judgment motion
on December 21, 2016. ECF No. 29. In his Response Plaintiff
agrees on the day he was injured, November 7, 2015, he was
examined, scheduled to see the doctor, given an ice pack and
told to return if his condition worsened. Plaintiff also
acknowledges on November 8, 2015, he returned to the nursing
station where he had been examined and his vital signed were
taken, he was given another ice pack, and told to elevate his
leg and he would see the doctor the next day. ECF No. 29.
Plaintiff admits his knee was x-rayed at SAMA Healthcare
Services, P.A. around the same time although he is not sure
of the exact date the x-ray was taken. ECF No. 29. He claims
“the lady that x-rayed my knee stated and said oh my
and I asked her how bad was my injury? She asked me have this
happened to me before I said no mam and she said its bad but
didn't get into detail about it/my knee injury. Instead
she told me she gonna get back with Dr. Hopson and I fear
that Dr. Hopson might've tampered with my x-rays cause my
knee is still ache and hurting.” ECF No. 29.
admits he was seen by Dr. Hopson “weekly and
monthly” for eight months. Plaintiff claims Dr. Hopson
told him after he got out of jail he would need physical
therapy, an “M.R.I. and real pain med”. ECF No.
29. Plaintiff also claims he asked her “why I
couldn't get it while I'm in jail? She said cause
they would have too pay for it and that would stop me from
getting the Ibuprofen and I would have surgery on my knee an
would have more problems out of my knee than it is now in the
future”. ECF No. 29. Plaintiff admits Dr. Hopson
continued the ibuprofen and told him to do range of motion
exercises but he asserts this did not help him. ECF No. 29.
He claims “I told her I was still in pain she did
nothing to help me just kept giving me ibuprofen she said
what I'm asking for would cost them money and she's
sorry but she can't do those thing for me”. ECF No.
asked to describe in detail how he believes Dr. Hopson
violated his federal constitutional rights Plaintiff states
“lack of medical assistance, denied of real pain meds,
pain and suffering, drawing my blood from S.A.M.A. health
center when I was the wrong person, they was suppose to draw
blood from Orlando Turner and I'm Olando Gray! Denied of
an knee brace! Physical therapy denied of, I know I'm not
suppose to be suffering in pain in this jail when they have
real doctor's and nurse', and is able to help me and
she didn't she only denied me of M.R.I. and of the things
I've stated for 8-9 month while I was pain and
suffering”. ECF No. 29. Plaintiff claims “my knee
slips out of place if I move the wrong way too fast now, it
aches real bad when the weather changes now as if my knee has
arthuritis, my knee slips and pops out of place if I lay down
on it the wrong way now, and I believe due to her denying me
of physical therapy, real pain meds, M.R.I. my knee has
healed wrong”. ECF No. 29.
December 27, 2016, Dr. Hopson filed a Reply (ECF No. 30) to
Plaintiff's Response. Dr. Hopson argues Plaintiff admits
he was promptly seen by medical staff following his injury,
and she examined, treated, and issued orders for Plaintiff
regularly for months in an attempt to treat his injured knee
and knee pain. In addition, Dr. Hopson states Plaintiff
merely disagrees with her medical decisions regarding his
care and pain management and Plaintiff has offered no
medically verifiable evidence to support his claims his knee
pops out of place and he is still in pain. She argues all the
records in this case suggest Plaintiff's knee has healed.
ECF No. 30. Dr. Hopson also responds to Plaintiff's claim
his blood was drawn improperly stating Plaintiff has not
presented any evidence his blood was drawn deliberately with
intent to disregard his medical needs. ECF No. 30.
Court “shall grant summary judgment if the movant shows
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). “[A] genuine issue of material fact
exists if: (1) there is a dispute of fact; (2) the disputed
fact is material to the outcome of the case; and (3) the
dispute is genuine, that is, a reasonable jury could return a
verdict for either party.” RSBI Aerospace, Inc. v.
Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir.
1995). The moving party has the burden of showing the absence
of a genuine issue of material fact and they are entitled to
judgment as a matter of law, but the nonmoving party may not
rest upon mere denials or allegations in the pleadings and
must set forth specific facts to raise a genuine issue for
trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986); Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986). The Court must view all evidence and
inferences in a light most favorable to the nonmoving party.
See McCleary v. ReliaStar Life Ins. Co., 682 F.3d
1116, 1119 (8th Cir. 2012). However, “[w]hen opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the
facts for purposes of ruling on a motion for summary
judgment.” Scott v. Harris, 550 U.S. 372, 380
Eighth Amendment prohibition of cruel and unusual punishment
prohibits deliberate indifference to the serious medical
needs of prisoners. Luckert v. Dodge County, 684
F.3d 808, 817 (8th Cir. 2012). The Eighth Circuit analyzes
both a pretrial detainee's and a convicted inmate's
claim of inadequate medical care under the deliberate
indifference standard. See Butler v. Fletcher, 465
F.3d 340, 344 (8th Cir. 2006). To prevail on his Eighth
Amendment claim, Plaintiff must prove Dr. Hopson acted with
deliberate indifference to his serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
deliberate indifference standard includes “both an
objective and a subjective component: ‘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 v. Knudsen,205 F.3d 1094,
1096 (8th Cir. 2000) (quoting Dulany v. Carnahan,132 F.3d 1234, 1239 (8th Cir. 1997)). In order to show he
suffered from an objectively serious medical need, Plaintiff
must show he “has been diagnosed by a physician as
requiring treatment” or has an injury “that is so
obvious that even a layperson would ...