United States District Court, W.D. Arkansas, Hot Springs Division
O. HICKEY, UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation filed July 25,
2017, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. ECF
No. 33. Judge Bryant recommends that Defendant Nurse
Denham's (“Defendant”) Motion for Summary
Judgment (ECF No. 17) be granted and Plaintiff's Amended
Complaint (ECF No. 6) be dismissed with prejudice on the
merits. Plaintiff Dale Bryant (“Plaintiff”) has
filed timely objections to the Report and
Recommendation. ECF No. 34. The Court finds this matter
ripe for its consideration. After reviewing the record de
novo, the Court adopts Judge Bryant's Report and
Recommendation as its own.
is an inmate who was formerly incarcerated in the Ouachita
River Unit of the Arkansas Department of Correction
(“ADC”) in Malvern, Arkansas. In his Amended
Complaint, Plaintiff alleges that on October 25, 2014, he
suffered from headaches, nausea and vomiting due to the
discontinuance of his blood pressure medication. Plaintiff
alleges that he informed a barracks officer of his symptoms
at 11:30 p.m. and requested to be taken to the unit hospital
to receive his prescribed shots of Phenergan and Toradol.
According to Plaintiff, the officer “deferred the
situation” to Defendant, the night pill call nurse.
first arrived at Plaintiff's cell at approximately 1:00
a.m. with a Phenergan pill. At the time, Defendant maintained
that he was unable to inject Plaintiff with a Phenergan shot
because he did not have any syringes. Defendant returned to
administer an injection of Phenergan at 3:30 a.m. Defendant
did not, however, administer a Toradol injection in either of
his visits to Plaintiff's cell. Defendant informed
Plaintiff that he would return with a Toradol injection;
however, Defendant failed to do so before the end of his
shift. The nurse who relieved Defendant gave Plaintiff a
Toradol injection at the 7:00 a.m. pill call.
subsequently filed a grievance against Defendant. On August
20, 2015, Plaintiff filed the instant 42 U.S.C. § 1983
action, alleging that Defendant was deliberately indifferent
to his medical needs in violation of the Eighth Amendment to
the United States Constitution. Plaintiff's Amended
Complaint proceeds against Defendant in his individual
capacity and seeks compensatory and punitive damages. On
September 26, 2016, Defendant moved for summary judgment on
the basis that Defendant was not deliberately indifferent to
Plaintiff's medical needs. Specifically, Defendant argues
that Plaintiff's medical needs were not serious, and
Defendant did more than his job required in order to treat
party moves for summary judgment, “[t]he court shall
grant summary judgment if the movant shows that 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); Krenik v. Cty. of LeSueur, 47 F.3d 953, 957
(8th Cir. 1995). This is a “threshold inquiry of . . .
whether there is a need for trial - whether, in other words,
there are genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see
also Agristor Leasing v. Farrow, 826 F.2d 732, 734 (8th
Cir. 1987). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S.
at 248. A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either
party. Id. at 252.
Court must view the evidence and the inferences reasonably
drawn from the evidence in the light most favorable to the
nonmoving party. Enter. Bank v. Magna Bank, 92 F.3d
743, 747 (8th Cir. 1996). The moving party bears the burden
of showing that there is no genuine issue of material fact
and that it is entitled to judgment as a matter of law.
Id. The nonmoving party must then demonstrate the
existence of specific facts in the record that create a
genuine issue for trial. Krenik, 47 F.3d at 957. A
party opposing a properly supported motion for summary
judgment may not rest upon mere allegations or denials, but
must set forth specific facts showing that there is a genuine
issue for trial. Anderson, 477 U.S. at 256.
Eighth Amendment ‘prohibits the infliction of cruel and
unusual punishments on those convicted of crimes.'”
Nelson v. Corr. Med. Serv., 583 F.3d 522, 528 (8th
Cir. 2009) (quoting Wilson v. Seiter, 501 U.S. 294,
296-97 (1991)). The Eighth Amendment's prohibition of
cruel and unusual punishment extends to protect prisoners
from deliberate indifference to serious medical needs.
Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir.
2012). A prison official is deliberately indifferent if he
knows of and disregards a serious medical need or a
substantial risk to a prisoner's health or safety.
Nelson, 583 F.3d at 528 (internal citation and
quotation marks omitted). “Such indifference may be
‘manifested by prison doctors in their response to the
prisoner's needs or by [other prison officials] in
intentionally denying or delaying access to medical care or
intentionally interfering with the treatment once
prescribed.'” Livingston v. Warren Cty.,
No. 4:15-CV-01318 AGF, 2017 WL 2535699, at *4 (E.D. Mo. June
12, 2017) (quoting Estelle v. Gamble, 429 U.S. 99,
104-105 (1976)). The Eighth Circuit has held that there is
both an objective component and a subjective component to a
claim of deliberate indifference, which requires that (1) the
plaintiff demonstrate 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.
present case, Judge Bryant assumed, arguendo, that
Plaintiff suffered from objectively serious medical needs as
a result of the headache, nausea, and vomiting he experienced
on October 25, 2014. However, Judge Bryant recommended that
Defendant's motion for summary judgment be granted
because Plaintiff failed to demonstrate that Defendant
actually knew of and deliberately disregarded Plaintiff's
needs. Thus, at issue is whether Plaintiff has demonstrated
that Defendant knew of but deliberately disregarded his
serious medical needs.
Bryant concludes that Defendant's failure to administer
the Toradol injection was not deliberately indifferent.
Specifically, Judge Bryant found that Defendant was not
authorized to administer the prescription. Judge Bryant
points to the declaration of Nannette Vowell, M.D., a
licensed physician that provides medical services to inmates
within the Ouachita River Unit. Dr. Vowell's affidavit,
as well as the prescription, indicates that the Toradol
injection could only be administered in the Day Clinic. In
addition, Dr. Vowell's affidavit opines that Defendant
did not have access to the pill room where the Toradol or the
syringes used to inject the medication were located.
Bryant made a similar conclusion regarding the Phenergan
administration. First, Judge Bryant notes that Plaintiff only
had to wait a few hours to receive an injection, and Dr.
Vowell's affidavit indicates that there was no medical
harm caused by this delay. In addition, Dr. Vowell's
affidavit reveals that Defendant administered an oral dose of
Phenergan, despite an expired order, as Plaintiff's oral
prescription of Phenergan expired the week before the
incident in question. Moreover, the declarations of Dr.
Vowell and Dr. Gregory McKinney, another licensed physician
at the Ouachita River Unit, maintain that Defendant went
beyond his job duties to obtain a ...