Gilliam v. Simmons

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following Recommendation has been sent to United States District Judge Kristine G. Baker. 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 Alonzo Gilliam III, an inmate at the Arkansas Department of Correction's (“ADC”) East Arkansas Regional Unit, filed a complaint pursuant to 42 U.S.C. § 1983 on February 9, 2017, alleging that he was denied adequate medical care for complaints of abdominal pain and urinary and rectal bleeding. See Doc. No. 9. Gilliam sues Aric Simmons, Captola M. Clinkscale, Dr. Brett C. Butler, Geraldine Campbell, Tammy Kimble, Amy Rowland, and Tekelia Williams (the “Defendants”) in their individual capacities. Id. at 2. He seeks compensatory and punitive damages. Id. at 17.

         The Court previously determined that Gilliam had exhausted his administrative remedies with respect to the following claims:

1) claims against Simmons, an Advanced Practice Registered Nurse, based on Gilliam's encounters with Simmons on April 14, 2015, May 26, 2015, June 30, 2015, August 10, 2015, and October 5, 2015; the delay in treatment prior to Gilliam's diagnosis in September 2015 of an e. coli infection and blood in his urine; and corrective inaction;

2) claims against Dr. Butler based on a May 16, 2015 bleeding incident and corrective inaction.

3) claims against Clinkscale, a nurse, based on the May 16, 2015 bleeding incident and corrective inaction;

4) claims against Williams, a nurse, based on an August 17, 2015 bleeding incident; and

5) claims against Campbell, an Advanced Practice Registered Nurse, Kimble, the Director of Nursing at the relevant times (see Doc. No. 91-2), and Rowland^[1] for corrective inaction.

Doc. Nos. 90 & 101. Gilliam testified in a deposition that he had no claim based on his encounter with Simmons on June 30, 2015, and that he agreed to dismiss Campbell as a party to his lawsuit. Doc. No. 117-4 at 5 & 11-12.

         Before the Court are a motion for summary judgment and related pleadings filed by the Defendants. See Doc. Nos. 115-117. Gilliam filed a response and a statement of disputed facts, but he did not specifically controvert the facts set forth in Defendants' statement of uncontested facts, Doc. No. 117. Accordingly, those facts are deemed admitted. See Local Rule 56.1(c). The Defendants' statement of uncontested facts, and the other pleadings and exhibits in the record, establish that the material facts are not in dispute and that the Defendants are entitled to judgment as a matter of law.

         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. Undisputed Facts

         The following undisputed facts are taken from those submitted by the Defendants which are supported by the following documentary evidence: Gilliam's medical records from January 2015 through January 2016 (Doc. No. 117-1); Declaration of Aric Simmons (Doc. No. 117-2); Declaration of Dr. Brett C. Butler (Doc. No. 117-3); a portion of Gilliam's deposition testimony transcript (Doc. No. 117-4); and a printout of Tekelia Williams' timesheet for August 17, 2015 (Doc. No. 117-5).

         Gilliam alleges that he was denied adequate medical care for complaints of abdominal pain and urinary and rectal bleeding during 2015 while he was incarcerated at the ADC's East Arkansas Regional Unit. Doc. No. 9. On January 7, 2015, Gilliam had a consultation with a urologist at the University of Arkansas for Medical Sciences (UAMS). Doc. No. 117-1 at 1-4. He complained of an enlarged prostate, difficulty urinating on occasion, rectal discharge, and constipation. Id. The urologist found that Gilliam had a normal uncircumcised penis, normal testes, no hernias, benign rectal tissue, and no discharge. Id.

         On April 14, 2015, Gilliam saw Simmons, an Advanced Practice Registered Nurse (APRN), ^[2] in relation to a sick call request he submitted regarding ear pain. Doc. No. 117-1 at 9 & 13; Doc. No. 117-2 at 2. At that encounter, Gilliam also wanted to discuss his skin, his diet, and medication renewals. Doc. No. 117-1 at 9 & 13; Doc. No. 117-2 at 2. Gilliam's sick call requests before the April 14 encounter related to his ear and prescription lotions for burns. Doc. No. 117-1 at 7-8 & 10. Gilliam did not place a sick call request relating to his penis, abdominal pain, or blood in his urine or stool in 2015 before the April 14 encounter, and the April 14 exam record does not indicate that Gilliam complained of such problems during that encounter. Doc. No. 117-1 at 13; Doc. No. 117-2 at 2.

         Gilliam's first sick call requests in 2015 relating to his prostate or colon were signed by Gilliam on April 21, received in medical on April 23, and triaged on April 27, 2015. Doc. No. 117-1 at 14-15. He submitted two sick call requests: one asking to be tested for prostate and colon cancer because it ran in his family, and the other complaining of blood in his bowel movements and stomach pain. Id. The first sick call request Gilliam submitted relating to his penis (following his January urology evaluation) was dated April 29, 2015. Id. at 16. That sick call request was received in the infirmary on April 30 and triaged on May 3, 2015. Id. In that request, Gilliam complained of rectal bleeding and painful bowel movements, stomach pain, blood in his urine, and a swollen penis. Id. Gilliam submitted another sick call request on April 30, complaining about several issues and requesting a prostate and colon cancer screening. Id. at 17. A nurse saw Gilliam for sick call on May 3, 2015, and referred him to a provider. Id. at 18.

         Gilliam had an encounter with APRN Simmons on May 11, 2015, to address renewal of medications for back pain. Id. at 20. Gilliam also requested labs and testing (stool guaiac) for prostate and colon cancer screening due to a family history of colon cancer. Id. Simmons noted that Gilliam's last Prostate-Specific Antigen (PSA) test was .9, which is normal. Id. Simmons also noted that Gilliam declined a prostate exam, during which Simmons could have performed a stool guaiac test. Id. Simmons entered an order for a fecal occult blood test, i.e., stool guaiac, ...