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Milner v. Glenn

United States District Court, W.D. Arkansas, Texarkana Division

October 20, 2017

LARRY DONNELL MILNER PLAINTIFF
v.
PRESTON GLENN and SHERIFF DANNY MARTIN DEFENDANTS

          MEMORANDUM OPINION

          Susan O. Hickey United States District Judge.

         Before the Court is Defendants' Motion for Summary Judgment. (ECF No. 18). Plaintiff Larry Donnell Milner has not responded to the motion, and his time to do so has passed.[1] The Court finds the matter ripe for consideration.

         I. BACKGROUND

         On October 17, 2016, Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1). He proceeds pro se and in forma pauperis. Plaintiff alleges that his rights were violated by the denial or delay of medical care while incarcerated in the Nevada County Jail. (ECF No. 1 at 3-4). Specifically, he alleges he was arrested at his home for a probation violation on October 6, 2017. On October 9, 2016, he experienced symptoms which were thought to be indicative of a stroke on his left side. Plaintiff alleges an ambulance was called, but when it arrived, Defendant Jail Administrator Glenn asked if he could be transported by the jail van instead. A driver, presumably the ambulance driver, refused to allow him to be transported by van because the time for transport was a concern for a stroke victim. (ECF No. 1 at 4).

         Plaintiff alleges that he was transported by ambulance to St. Michael's Hospital in Texarkana. He received MRI and CAT scans at the hospital. He informed the hospital that he had health insurance with no copays, because he was disabled. He alleges the doctors could not “figure out why it had happened, ” so they did an MRI of his stomach and found a large spot on his liver. Plaintiff alleges he was scheduled for a liver biopsy on October 12, 2016, but Defendant Glenn forced his discharge from the hospital on October 11, 2016, before the biopsy could be done and “in the middle of [his] treatment.” (ECF No. 1 at 4). Plaintiff alleges this showed indifference to his health. (ECF No. 1 at 4). Plaintiff's Complaint was signed and dated on October 12, 2016. (ECF No. 1 at 5).

         Plaintiff proceeds against Defendants in both their official and personal capacities. (ECF No. 1 at 2). He asks this Court to release him back to his doctors until “such time that my doctors inform this Court that all my health problems have been satisfactorily handled with a prom[pt]ness that it deserved.” (ECF No. 1 at 5).

         Defendants submitted medical and jail records with their Summary Judgment Motion. As noted by Defendants in their Motion, these records indicate Plaintiff was taken to the emergency room of Christus St. Michael Health System on October 9, 2016. (ECF No. 19-2 at 1). He received MRI and CAT scans. There was no evidence of a stroke. However, there was MRI evidence indicating liver cancer in the form of a 6.6 cm hepatic mass. A liver biopsy was discussed, but “Mr. Preston Glenn[, ] who was a supervisor at the prison . . . made it clear that the prison was not willing to undertake that workup at this point and thus the patient was discharged back to prison.” (ECF No. 19-4 at 1-2). Further notes indicated that the prison called and indicated the “patient should be sent back to the prison and he will eventually pursue an outpatient workup for his hepatic mass.” (ECF No. 19-4 at 2). Jail records indicate Plaintiff was discharged on an OR bond on October 28, 2016. (ECF No. 19-1).

         In his affidavit, Defendant Glenn stated he called the hospital and was told Plaintiff had not suffered a stroke. He was told about the spot on Plaintiff's liver and that he asked if the spot “was an emergency at this time and was informed that it was not.” He stated further that “St. Michael released Mr. Milner back to the jail on October 11, 2016, knowing that Mr. Milner could seek further treatment on an outpatient basis.” (ECF No. 19-6).

         II. LEGAL STANDARD

         Summary judgment is appropriate if, after viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party, the record “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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). “Once a party moving for summary judgment has made a sufficient showing, the burden rests with the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists.” Nat'l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999).

         The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient evidence to support a jury verdict in their favor.” Nat'l Bank, 165 F.3d at 607 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). “When 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 (2007).

         III. DISCUSSION

         Plaintiff does not allege a denial or delay of medical care for his stroke symptoms. Rather, he alleges that Defendant Glenn forced his discharge from the hospital before Plaintiff's liver mass could be biopsied.

         Defendants argue that their Motion for Summary Judgment should be granted because: (1) Plaintiff's Complaint is “completely devoid” of any alleged policy or custom of Nevada County which resulted in a violation of his constitutional rights; (2) there is no evidence that Defendants were deliberately indifferent to Plaintiff's medical needs, and Plaintiff failed to provide any medical documentation to show his health was damaged as a result of his return to jail prior to the liver biopsy; (3) Plaintiff's claim against Defendant Marton is based ...


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