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Madole v. Stukey

United States District Court, E.D. Arkansas, Pine Bluff Division

September 10, 2018

WAYNE MADOLE ADC #158959 PLAINTIFF
v.
RONALD STUKEY DEFENDANT

          PROPOSED FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following Proposed Findings and Recommendation have been sent to United States District Judge J. Leon Holmes. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         I. Introduction

         Plaintiff Wayne Madole filed a complaint pursuant to 42 U.S.C. § 1983 on December 19, 2016, alleging that he received inadequate medical care for a lump in his left testicle while he was at the Tucker Unit of the Arkansas Department of Correction (ADC) in 2016. See Doc. No. 2. Defendant Rory L. Griffin was dismissed on August 25, 2017. See Doc. Nos. 64 & 69. Unnamed Doe defendants were dismissed on October 25, 2017. See Doc. Nos. 72 & 73. Dr. Guy Michael Henry, Jason Kelley, Timothy Faloon, Ramona Huff, and Denise Krablin were dismissed on November 21, 2017. See Doc. Nos. 74 & 75. Madole's remaining claims against Dr. Stukey were limited to the issues and the time period raised in grievance VSM16-03128. Id.

         Dr. Stukey filed a motion for summary judgment, a brief in support, and a statement of facts asserting that he is entitled to qualified immunity with respect to Madole's claims. Doc. Nos. 79-81. Madole filed an objection and a statement of facts, Doc. Nos. 83 & 84, and Dr. Stukey filed a reply, Doc. No. 85.

         For the reasons described herein, the undersigned recommends that Dr. Stukey's motion for summary judgment be granted.

         II. Legal Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if “the movant shows that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a); Celotex v. Catrett, 477 U.S. 317, 321 (1986). When ruling on a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Naucke v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002). The nonmoving party may not rely on allegations or denials, but must demonstrate the existence of specific facts that create a genuine issue for trial. Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007). The nonmoving party's allegations must be supported by sufficient probative evidence that would permit a finding in his favor on more than mere speculation, conjecture, or fantasy. Id. (citations omitted). An assertion that a fact cannot be disputed or is genuinely disputed must be supported by materials in the record such as “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . .”. Fed.R.Civ.P. 56(c)(1)(A). A party may also show that a fact is disputed or undisputed by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(B). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case. Othman v. City of Country Club Hills, 671 F.3d 672, 675 (8th Cir. 2012). Disputes that are not genuine or that are about facts that are not material will not preclude summary judgment. Sitzes v. City of West Memphis, Ark., 606 F.3d 461, 465 (8th Cir. 2010).

         III. Facts

         The facts listed below are taken from those submitted by Dr. Stukey that are supported by the following documents: Madole's prison medical records from July 21, 2016, to December 25, 2016 (Doc. No. 81-1); a copy of Madole's deposition transcript (Doc. No. 81-2); Madole's relevant grievance records (Doc. No. 81-3); and an affidavit by Dr. Jeffrey Steive (Doc. No. 81-4). Madole does not specifically dispute any of the facts alleged by Dr. Stukey. See Doc. Nos. 83 & 84. Instead, Madole generally claims that he has provided sufficient evidence of material facts in dispute. He cites no specific documents to support his contention other than the UAMS ultrasound report which he argued would show that Dr. Stukey misquoted the results. To resolve this factual issue, the Court ordered Dr. Stukey to supplement the record with a copy of the ultrasound report. Doc. No. 86. The ultrasound report has been filed and does not support Madole's argument. Doc. No. 87-1. Madole also claims that Dr. Stieve's opinion should not be allowed into evidence because he was not present during consultations and had only reviewed a portion of Madole's medical records. However, Madole does not identify which records Dr. Stieve did not review or how they might alter his opinion. Because Madole failed to specifically controvert the facts set forth in Defendants' statement of undisputed facts, Doc. No. 81, those facts are deemed admitted. See Local Rule 56.1(c). Madole cannot create questions of fact by merely claiming some exist. See Conseco Life Ins. Co. v. Williams, 620 F.3d 902, 909 (8th Cir. 2010) (quoting Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000) (“When the movant makes a prima facie showing of entitlement to a summary judgment, the respondent must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact.”).

         Madole alleges that Dr. Stukey did not provide appropriate medical care to Madole while he was housed at the Varner Unit between August 25, 2016, and December 19, 2016, the date Madole filed this lawsuit. Doc. No. 2; Doc. No. 81-2 at 29. Dr. Stukey examined Madole for complaints of testicular/scrotal pain three times during that period of time: on September 9, 2016; October 26, 2016; and December 3, 2016. Doc. No. 81-4 at 1-2; Doc. No. 81-1 at 18, 32 & 38. As previously noted, Madole's claims have been limited “to the issues and the time period raised in VSM16-03128.” Doc. No. 75. Grievance number VSM16-03128 concerns one clinical encounter with Dr. Stukey, which occurred on September 9, 2016. Doc. No. 81-3; Doc. No. 81-1 at 18.

         Madole was referred to the University of Arkansas for Medical Sciences (UAMS) for an ultrasound of his testicles and scrotum in the Spring of 2016. See Doc. No. 81-2 at 40-41 & 43. Madole was examined by non-party physician, Dr. Guy Michael Henry, on July 21, 2016. Doc. No. 81-1 at 1. Dr. Henry noted that the ultrasound of Madole's testicles and scrotum “failed to reveal any definite abnormality.” Doc. No. 81-4 at 2; Doc. No. 81-1 at 1. Dr. Henry ordered 500 milligram Naproxen for Madole's complaints of pain twice per day with refills until January 29, 2017. Id. On August 25, 2016, Madole was transferred to the Varner Super Max Unit. Doc. No. 81-4 at 2; Doc. No. 81-1 at 6. Dr. Stukey was the unit medical director at the Varner Super Max Unit at that time. Doc. No. 81-4 at 2.

         On September 9, 2016, Dr. Stukey examined Madole for the first time. Doc. No. 81-4 at 2; Doc. No. 81-1 at 18. Dr. Stukey noted that Madole first noticed a left testicle nodule in March 2016. Id. Dr. Stukey noted that an ultrasound in May 2016 indicated good blood flow to both testes and epidydimi and that there were no testicular masses. Id. Dr. Stukey noted a scrotal mass that was “seemingly benign.” Id. Dr. Stukey noted he would follow up in three months and that Madole agreed with the plan of care. Doc. No. 81-4 at 2; Doc. ...


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