United States District Court, W.D. Arkansas, El Dorado Division
O. Hickey United States District Judge.
the Court is the Report and Recommendation filed on June 13,
2017, by the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas. ECF
No. 42. Plaintiff has filed timely objections. ECF No. 43.
The Court finds this matter ripe for consideration.
filed the present 42 U.S.C. § 1983 action on January 21,
2016. ECF No. 1. Plaintiff sues Defendant in her official and
individual capacities for deliberate indifference to his
serious medical needs. ECF No. 1, p. 8. Plaintiff alleges
that on November 29, 2015, he slipped when exiting a shower
at the Columbia County Detention Center (“CCDC”)
due to standing water and injured his hand and back. ECF No.
1, p. 5. Plaintiff filed a grievance on November 30, 2015, and
met with Defendant that same day. ECF No. 1, p. 5; ECF No.
41-1, p. 2. Plaintiff states that Defendant looked at his
thumb and admitted that it was swollen, but “didn't
address the issue with [his] back at all.” ECF No. 1,
p. 5. Plaintiff states that he told Defendant he was in pain
and needed medical attention. ECF No. 1, p. 5. Plaintiff
alleges that he was not given any medication for his pain and
that he should have been taken to the hospital. ECF No. 1,
pp. 5-6. Plaintiff does not allege that he requested
Defendant provide him with pain medication and, regardless,
it is undisputed that Defendant is not a medical
professional. Defendant directed another officer to provide
Plaintiff with a medical request form so that he could be
seen by a medical professional later that afternoon. ECF No.
1, pp. 5, 9. Plaintiff states that he filled out the medical
request form on November 30, 2015, “but didn't see
the doctor until December 1, 2015.” ECF No. 1, p. 5.
states that the doctor who examined him, Doctor Antoon,
ordered that x-rays be taken of Plaintiff's hand and
back. ECF No. 1, p. 5. Defendant admits that on December 1,
2015, Doctor Antoon ordered that x-rays be taken of
Plaintiff's right hand and lower back. ECF No. 41-1, p.
5. The record does not reflect any other course of treatment
or prescriptions ordered by Doctor Antoon. Plaintiff states
that x-rays were not performed until sometime after he was
transferred to the Arkansas Department of Correction
(“ADC”) on December 10, 2015. ECF No. 1, p. 6.
Two x-rays were taken of Plaintiff's hand shortly after
he was transferred to the ADC. Both indicated that his hand
had not been fractured. ECF No. 31, p. 13; ECF No. 38-3, p.
2. Likewise, an x-ray of Plaintiff's back taken less than
three months after he was transferred to the ADC yielded
normal results. ECF No. 31, p. 12.
April 28, 2017, Defendant filed a Motion for Summary
Judgment. ECF No. 36. Defendant argues that she is entitled
to summary judgment because: (1) “Plaintiff has not
presented any verifying medical evidence showing that the
Defendant was deliberately indifferent to his medical
needs[;]” (2) she is protected by qualified immunity;
and (3) there is no basis for official capacity liability.
5, 2017, Plaintiff filed a response to Defendant's Motion
for Summary Judgment, a brief in support of his response, and
a statement of facts and argued that summary judgment was
inappropriate. ECF Nos. 39, 40, 41. Among other things,
Plaintiff states that he was taken to the University of
Arkansas for Medical Sciences (“UAMS”) on April
28, 2017, in regard to his alleged hand injury. ECF No. 39,
p. 2. He states that he was seen by a “bone
specialist” who agreed “that the
Plaintiff['s] right hand was in fact injured because he
placed a (cast) on it for (6) six weeks and said if it did
not heal” Plaintiff would need surgery. ECF No. 39, p.
2. Plaintiff did not provide the Court with any medical
record evidence detailing this alleged examination.
13, 2017, Judge Bryant entered a Report and Recommendation
and recommended that Defendant's Motion for Summary
Judgment be granted and that Plaintiff's claims be
dismissed with prejudice. ECF No. 42. In regard to
Plaintiff's official capacity claim, Judge Bryant found
that Plaintiff failed to identify an allegedly
unconstitutional policy that was the moving force behind his
injury and, therefore, summary judgment is appropriate on
that claim. ECF No. 42, pp. 5-6. Judge Bryant further found
that Defendant was entitled to summary judgment on
Plaintiff's individual capacity claim, concluding that
“there are no facts to support [a finding that]
Defendant Delaney was deliberately indifferent to
Plaintiff's medical needs.” ECF No. 42, p. 8.
Accordingly, Judge Bryant found it unnecessary to reach the
issue of whether Defendant is entitled to qualified immunity.
22, 2017, Plaintiff filed objections to Judge Bryant's
Report and Recommendation. ECF No. 43. In his objections,
Plaintiff re-asserts many of his previous arguments as well
as arguing that Judge Bryant only addressed his alleged hand
injury, but failed to address his claimed back injury. ECF
No. 43, ¶ 2. Plaintiff also states that Judge Bryant
erroneously found that Plaintiff was given pain medication.
ECF No. 43, ¶ 5. Further, Plaintiff states that he
“has produced everything to the court that came out of
the Plaintiff['s] medical jacket, the Plaintiff was sent
to (UAMS) on April 28, 2017 where [he] was treated for the
injury to [his] right hand the Bone specialist put a (cast)
on it for six weeks because [his] right thumb was injuried
[sic].” ECF No. 43, ¶ 10.
Federal Rules of Civil Procedure provide that when a 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). The
Supreme Court has issued the following guidelines for trial
courts to determine whether this standard has been satisfied:
The inquiry performed is the threshold inquiry of determining
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 (8th Cir. 1987); Niagara of Wis. Paper Corp. v.
Paper Indus. Union-Mgmt. Pension Fund, 800 F.2d
742, 746 (8th Cir. 1986). 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 that may be
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 v. Cnty. of
Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). 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. The non-moving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts.”
Matsuhita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). “A case founded on
speculation or suspicion is insufficient to survive a motion
for summary judgment.” Nat'l Bank of Commerce
of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602, 610
(8th Cir. 1999). The non-moving party “must come
forward with sufficient evidence to support their claims and
cannot stand on their complaint and unfounded
speculation.” Id. (internal citations
has sued Defendant in both her individual and official
capacities. The Court will address each of these claims in