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Browning v. Johnson

United States District Court, E.D. Arkansas, Western Division

April 19, 2018

CARLOS RAY BROWNING, ADC #122856 PLAINTIFF
v.
JOHNSON, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge James M. Moody Jr. Any party may file written objections to this Recommendation. Objections must be specific and must include the factual or legal basis for the objection.

         To be considered, all objections must be received in the office of the Court Clerk within 14 days of this Recommendation. If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record. By not objecting, parties may waive the right to appeal questions of fact.

         II. Background:

         Plaintiff Carlos Ray Browning, who is incarcerated at the Pine Bluff Unit of the Arkansas Department of Correction (“ADC”), filed this case without the help of a lawyer under 42 U.S.C. § 1983. (Docket entry #1) Mr. Browning is proceeding on deliberate-indifference claims against Defendants Cook and Burton based on their failure to provide him prescription Acyclovir; against Defendant McCraw for failure to ensure the pill cart had Acyclovir; against Turn Key Health for an unconstitutional policy; for corrective-inaction against Defendant Pratt; and for state negligence and medical malpractice claims against the Defendants.[1] (#16)

         Defendants have now filed a motion for summary judgment on the merits. (#36) Mr. Browning has filed a response. (#41)

         III. Standard:

         Summary judgment means that the court rules in favor of a party without the need for a trial. A moving party is entitled to summary judgment if the evidence, viewed in the light most favorable to the party on the other side of the lawsuit, shows that there is no genuine dispute as to any fact that is important to the outcome of the case. Fed. R.Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322B23, 106 S.Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 246, 106 S.Ct. 2505 (1986).

         Here, Defendants have moved for summary judgment, so they have the burden of producing evidence showing that there is no real dispute as to material facts and that those facts demonstrate that they were not deliberately indifferent, or even negligent, in addressing Mr. Browning's medical needs. If they make this showing, Mr. Browning is obligated to produce evidence of disputed facts that must be decided at a trial. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc).

         IV. Facts:

         On March 13, 2017, Mr. Browning was examined by the medical staff at an intake, and it was noted he had herpes. (#36-1, p. 1 & 7) On March 15, 2017, medical prescribed Mr. Browning 400 milligrams of Acyclovir to be taken twice daily. (#36-1, p. 67) From March 22, 2017 to March 24, 2017, Mr. Browning missed doses of Acyclovir for three days, which resulted in a painful out-break on his penis. (#5, p.6)

         In this lawsuit, Mr. Browning claims that he was “denied” the Acyclovir. (#5, p.6) His medical records show that on March 22, 2017, his Acyclovir prescription was discontinued after he refused to take the generic form of the drug. (#36-1, p. 54, 55, 57) Mr. Browning does not dispute this fact, but explains that taking Acyclovir twice daily caused him to suffer headaches. (#41) On March 25, 2017, Mr. Browning began taking 800 milligrams of Acyclovir once daily. (#36-1, p. 67) According to Mr. Browning, taking Acyclovir once daily did not cause headaches. (#41)

         Mr. Browning alleges that, on March 30, 2017, Defendant Cook did not give him Acyclovir because it was not in the pill cart.[2] (#5, p.6) Mr. Browning states that Defendant McCraw was responsible for ensuring the pill cart contained appropriate medications, including his Acyclovir. (#5, p.6) According to Mr. Browning, Defendant Cook stated that he would return with Acyclovir if he had time, but never returned with the medication. Later that night, Defendant Burton told Mr. Browning that she had no Acyclovir on the pill cart but would return with his medications, but that she did not return with his Acyclovir that night.

         On March 31, 2017, Mr. Browning was examined by Pamela Johnson, APRN, (not a Defendant) to have stiches removed. (#36-1, p.13) During this visit, Mr. Browning complained of a lesion on his penis. (#36-1, p.17) Ms. ...


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