United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATION
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.
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
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.
reasons described herein, the undersigned recommends that Dr.
Stukey's motion for summary judgment be granted.
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).
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.”).
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.
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
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. ...