Story v. Delaney

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

EL DORADO DIVISION

KENDRICK STORY PLAINTIFF

V. CASE NO. 1:16-CV-01004

JANET DELANEY, Jail Administrator,

Columbia County, Arkansas DEFENDANT

MEMORANDUM OPINION

Before 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.

BACKGROUND

Plaintiff 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 grievance1 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

1 Plaintiff stated the following on his grievance form:

On 11/29/15 I fell while getting out of the shower and hurt my right thumb and my back. I told the

officer that was on duty he saw my hand as well as the standing water that was on the floor in front

of the shower. That officer tried to have me looked at but to no avail I’am [sic] in alot [sic] of pain

and I really need to get some help, I was told that a report was made on the incident and that it would

be passed on to the next shift.

ECF No. 41-1, p. 2.

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.

Plaintiff 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.

On 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.

On May 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.

On June 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.

On June 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.

LEGAL STANDARD

The 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.

The 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 omitted).

DISCUSSION

Plaintiff has sued Defendant in both her individual and official capacities. The Court will

address each of these claims in turn.

I. Official Capacity Claims

As noted above, Judge Bryant recommends that Plaintiff’s official capacity claims be

dismissed with prejudice because Plaintiff has failed to identify a policy, practice, or custom that

would subject Columbia County, Arkansas, to liability for the alleged violations of Plaintiff’s

constitutional rights. Although Plaintiff does not specifically object to this conclusion, the Court

will address the issue.

“A suit against a government officer in his official capacity is functionally equivalent to a

suit against the employing governmental entity.” Veatch v. Bartels Lutheran Home, 627 F.3d 1254,

1257 (8th Cir. 2010). In other words, the official capacity claim against Defendant Delaney is

treated as a claim against Columbia County. See Murray v. Lene, 595 F.3d 868, 873 (8th Cir.

2010). “[I]t is well established that a municipality [or county] cannot be held liable on a respondeat

superior theory, that is, solely because it employs a tortfeasor.” Atkinson v. City of Mountain View,

Mo., 709 F.3d 1201, 1214 (8th Cir. 2013). To establish Columbia County’s liability under section

1983, “plaintiff must show that a constitutional violation was committed pursuant to an official

custom, policy, or practice of the governmental entity.” Moyle v. Anderson, 571 F.3d 814, 817 (8th

Cir. 2009) (citation omitted).

Upon review of the record, the Court finds that Judge Bryant’s conclusion was correct and

that Plaintiff does not claim that Defendant acted with deliberate indifference pursuant to a county

policy, custom, or practice.2 Accordingly, the Court finds that Defendant is entitled to summary

judgment in regard to Plaintiff’s official capacity claims.

II. Individual Capacity Claims

As noted above, Judge Bryant recommends that Plaintiff’s individual capacity claims be

dismissed with prejudice because Plaintiff has failed to assert facts to support a finding that

Defendant was deliberately indifferent to his medical needs. For the sake of clarity, the Court will

address Plaintiff’s claims in two parts. First, the Court will address Plaintiff’s contention that

Defendant acted with deliberate indifference to his serious medical needs in regard to the fact that

Plaintiff was allegedly injured on November 29, 2015, and was not seen by Doctor Antoon until

2 The only policy Plaintiff discusses concerns the CCDC’s policy that inmates will be charged $25.00 after they have

been seen by a doctor. Plaintiff has produced a memo dated March 15, 2015, which states: “EFFECTIVE

IMMEDIATELY..[sic] IF YOU FILL OUT A MEDICAL REQUEST TO SEE THE DOCTOR YOU WILL BE

CHARGED $25.00 FROM YOUR COMMISSARY ACCOUNT AFTER YOU HAVE SEEN THE DOCTOR.” ECF

No. 41-1, p. 23 (underlined portion in original). However, Plaintiff does not allege that he was kept from seeing a

doctor because he could not pay the $25.00 or that the alleged constitutional violation—deliberate indifference to his

serious medical needs—was committed pursuant to the policy. Although it is unclear whether Plaintiff actually paid

the $25.00, it is undisputed that he was seen by Doctor Antoon on December 1, 2015.

December 1, 2015. Second, the Court will discuss Plaintiff’s claims in regard to the length of time

between Plaintiff’s initial appointment with Doctor Antoon and the date his x-rays were scheduled.

As an initial matter, it is unclear whether Plaintiff had been convicted at the time of his

alleged injuries. Regardless, the Eighth Circuit analyzes both a pretrial detainee’s and a convicted

inmate’s claim of inadequate medical care under the deliberate indifference standard. See Butler

v. Fletcher, 465 F.3d 340, 344 (8th Cir. 2006). “[T]he Eighth Amendment prohibition on cruel and

unusual punishment extends to protect prisoners from deliberate indifference to serious medical

needs.” Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012) (quoting Vaughn v. Greene

Cnty., Ark., 438 F.3d 845, 850 (8th Cir. 2006)). “A prison official’s deliberate indifference to a

prisoner’s serious medical needs constitutes cruel and unusual punishment in violation of the

Eighth Amendment.” Popoalii v. Corr. Med. Servs., 512 F.3d 488, 499 (8th Cir. 2008).

The deliberate indifference standard has two elements—one objective and the other

subjective. Scott v. Benson, 742 F.3d 335, 339-40 (8th Cir. 2014) (“Whether an official was

deliberately indifferent entails both an objective and a subjective analysis.”) (citing Coleman v.

Rahija, 114 F.3d 778, 784-86 (8th Cir. 1997)). Under the objective prong of the analysis, Plaintiff

must show that he had an objectively serious medical need. Id. at 340. “A medical need is

objectively serious if it either has been ‘diagnosed by a physician as requiring treatment’ or is ‘so

obvious that even a layperson would easily recognize the necessity for a doctor’s attention.’” Id.

(quoting Rahija, 114 F.3d at 784). Under the subjective prong of the analysis, Plaintiff must show

that Defendant actually knew of but deliberately disregarded Plaintiff’s serious medical need. Id.

Furthermore, “[f]or a claim of deliberate indifference, the prisoner must show more than

negligence, more even than gross negligence, and mere disagreement with treatment decisions

does not rise to the level of a constitutional violation.’” Popoalii, 517 F.3d at 499 (quoting Estate

of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)). “Deliberate indifference is akin to

criminal recklessness, which demands more than negligent misconduct.” Id. (citing Olson v.

Bloomberg, 339 F.3d 730, 736 (8th Cir. 2003)). “Whether an inmate’s condition is a serious

medical need and whether an official was deliberately indifferent to the inmate’s serious medical

need are questions of fact.” Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011).

A. Time Between Alleged Injury and Initial Medical Examination

Plaintiff claims that Defendant was deliberately indifferent to his serious medical needs

because he was allegedly injured on November 29, 2015, but was not seen by Doctor Antoon until

December 1, 2015. Plaintiff states:

Defendant was Deliberately Indifferent to plaintiff medical needs because; once I

made them aware of the injuries that I received I should have seen a doctor or taken

to the hospital but to no avail was any of it done instead I was forced to suffer for

(3) three days before I was able to see the doctor. She had a sufficiently culpable

state of mind she knew of the injuries she saw them but failed to do anything about

it[.]

ECF No. 40, p. 1. To be clear, Plaintiff was allegedly injured on November 29, 2015, and was seen

by Doctor Antoon on December 1, 2015. Although Plaintiff claims that he went three days without

seeing a physician, based on these dates, it is clear that he was seen by Doctor Antoon two days

after he fell.

As noted above, Plaintiff must satisfy both the objective and subjective requirements of the

deliberate indifference standard. In regard to whether Plaintiff had an objectively serious medical

need, at the time Plaintiff met with Defendant on November 30, 2015, he had not been diagnosed

by a physician as needing medical treatment. Likewise, it cannot be said that Plaintiff’s alleged

injuries were “so obvious that even a layperson would easily recognize the necessity for a doctor’s

attention.” As Plaintiff’s grievance form shows, Defendant admits that she looked at Plaintiff’s

thumb and noted that there was a “little bit” of swelling. ECF No. 41-1, p. 2. Further, the statement

Plaintiff included on the grievance form simply notes that he fell and “hurt [his] right thumb and

[his] back” and that he was “in alot [sic] of pain and [he] really need[ed] to get some help.” ECF

No. 41-1, p. 2. Even accepting these assertions as true, that Defendant had a slightly swollen thumb

and was experiencing lower back pain, nothing in Plaintiff’s allegations would support a finding

that Plaintiff’s claimed injuries were “so obvious that even a layperson would easily recognize the

necessity for a doctor’s attention.” Accordingly, the Court finds that Plaintiff has failed to satisfy

the objective element of the deliberate indifference standard.

However, even if Plaintiff had satisfied the objective element, he has failed to show that

the subjective element is satisfied. As previously stated, to meet this burden, Plaintiff must show

that Defendant actually knew of but deliberately disregarded Plaintiff’s serious medical need.

Upon review of the record, it is clear that Defendant knew of Plaintiff’s alleged injuries the day he

filed his grievance—November 30, 2015—but there is simply nothing in the record to suggest that

she deliberately disregarded Plaintiff’s alleged medical needs.

Defendant met with Plaintiff the same day he filed his grievance form to discuss his

grievance. During the course of that meeting, Defendant examined Plaintiff’s thumb and directed

that he be given a medical request form. Plaintiff was then seen by Doctor Antoon the next day. It

is clear that Defendant was not deliberately indifferent to Plaintiff’s medical needs, but instead

quickly responded once she was apprised of the situation. Therefore, the Court finds that Plaintiff

has failed to satisfy the subjective element of the deliberate indifference standard. Accordingly,

Plaintiff has failed to establish that Defendant was deliberately indifferent to his serious medical

needs in regard to the fact that he was allegedly injured on November 29, 2015, and was not seen

by a medical professional until December 1, 2015.3

3 Plaintiff also claims that he was not given any medication for his pain. ECF No. 1, pp. 5-6. Although there is nothing

to suggest that Defendant gave Plaintiff any kind of pain medication, Plaintiff does not allege that he asked Defendant

B. Time Between Initial Medical Examination and Plaintiff’s Scheduled X-ray

Appointment

Plaintiff claims that Defendant disregarded Doctor Antoon’s order that x-rays be taken of

Defendant’s hand and back. Plaintiff argues that Doctor Antoon “made the order on 12/1/15 I

remained in her custody for (9) nine more days before I was transferred to prison on 12/10/15

that’s nine days [Defendant] could have gotton [sic] me to the doctor office or to the hospital but

to no avail was either done instead I was transferred to prison.” ECF No. 40, p. 2. It is undisputed

that Doctor Antoon ordered that x-rays be taken of Plaintiff’s hand and back. ECF No. 41, p. 9.

However, Plaintiff has provided the Court with a copy of the Medical Transportation Log

from the CCDC that notes that Plaintiff was scheduled to be taken to see Doctor Antoon on

December 16, 2015. ECF No. 41-1, p. 11. There is a handwritten note on the Log that states that

Plaintiff was transferred “to ADC before he was taken to Dr. Antoon for x-rays.” ECF No. 41-1,

p. 11. Plaintiff concedes that this scheduled appointment was for the purpose of taking the ordered

x-rays, stating: “See Medical Transportation Log from the Columbia County Jail that shows that I

was suppose [sic] to have been taken to Dr. Antoon for x-rays which proves that the defendant

knew but disregarded.” ECF No. 41, ¶ 9. Thus, it seems clear that Doctor Antoon’s orders were

technically being complied with and that Plaintiff was scheduled to have x-rays taken of his hand

and back. However, Plaintiff appears to take issue with the two-week period between the date of

his initial examination by Doctor Antoon and the date his x-rays were scheduled to be completed.

Accordingly, although Plaintiff does not explicitly state that his claim is that Defendant was

deliberately indifferent to his serious medical needs because she delayed in getting him medical

for pain medication. Furthermore, Defendant is not a medical professional and Plaintiff does not allege that she was

able to prescribe him any kind of pain medication. Likewise, there is no evidence or claim that Doctor Antoon

prescribed any pain medication or otherwise directed that Plaintiff be given pain medication.

treatment, the allegations appear to center around the alleged delay in complying with Doctor

Antoon’s order.

As Judge Bryant rightly noted, a delay in medical treatment may give rise to a claim for

deliberate indifference. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (“Deliberate

indifference may be demonstrated by prison guards who intentionally deny or delay access to

medical care.”). However, “[w]hen an inmate alleges that a delay in medical treatment constituted

a constitutional deprivation, ‘the objective seriousness of the deprivation should also be measured

by reference to the effect of delay in treatment.’” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir.

1997) (quoting Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997)); see Gibson v. Weber,

433 F.3d 642, 646 (8th Cir. 2006) (“To avoid summary judgment an inmate alleging that a delay

in treatment constitutes a constitutional deprivation must produce medical evidence to establish

that the delay had a detrimental effect.”). “To establish this effect, the inmate ‘must place verifying

medical evidence in the record to establish the detrimental effect of delay in medical treatment

[.]’” Jackson v. Riebold, 815 F.3d 1114, 1119-20 (8th Cir. 2016) (quoting Laughlin v. Schriro,

430 F.3d 927, 928 (8th Cir. 2005)) (citations omitted).

“Applying this standard, [the Eighth Circuit has] previously held that where an inmate

‘submitted evidence documenting his diagnosis and treatment, [but] he offered no evidence

establishing that any delay in treatment had a detrimental effect,’ the inmate ‘failed to raise a

genuine issue of fact on an essential element of his claim.’” Jackson, 815 F.3d at 1120 (citing

Laughlin, 430 F.3d at 928). In the present case, Plaintiff has provided evidence that he received

treatment for his swollen finger and back pain while in the ADC, but has failed to provide any

verifying medical evidence that the delay in receiving his initial x-rays had any detrimental effect.

The Court will first address Plaintiff’s claimed hand injury and then turn to his back injury.

i. Hand Injury

On July 5 and July 7, 2016, the ADC filed copies of all medical records it held pertaining

to Plaintiff pursuant to a subpoena issued by the Court. Included in the records are radiology

reports showing that x-rays were taken of Plaintiff’s hand and back. Two x-rays were taken of

Plaintiff’s right hand soon after he was transferred to the ADC. The first radiology report, dated

December 17, 2015, states that the physician saw “[n]o mass, fracture or dislocation” and “[n]o

appreciable soft tissue swelling.” ECF No. 38-3, p. 2. The physician concluded that there was “[no]

definite acute fracture.” ECF No. 38-3, p. 2. Likewise, a second radiology report4 dated January

6, 2016, states that “[a]ll the carpal joints, metacarpophalangeal, proximal and distal

interphalangeal joints are well aligned. . . . No fracture or dislocation is seen.” ECF No. 31, p. 13.

However, the physician did note that there was “[s]egmental soft tissue swelling,”5 but stated his

conclusion as “[u]nremarkable osseous appearance of the right hand.” ECF No. 31, p. 13.

Plaintiff has also provided a document labeled “Medical Department Notification of

Diagnostic Test Results” stating that the results of a diagnostic test that took place on March 15,

2017, had been received and that based on those results Plaintiff would be scheduled for a follow

up appointment with medical personnel. ECF No. 41-1, p. 8. However, this document does not

state the subject matter or results of the diagnostic test. Nonetheless, Plaintiff has provided the

Court with a handwritten document titled as “Radiology Report” and dated March 15, 2017, that

purports to show that Doctor Elliot Wagner found that one of Plaintiff’s fingers had been fractured.

ECF No. 41-1, p. 10. The document does not bear any imprint of a medical services provider and

4 Plaintiff concedes the truth of this report, citing it as evidence that his thumb had “some segmental soft tissue

swelling.” ECF No. 41-1, p. 7.

5 Plaintiff has provided the Court with “Condensed Health Services Encounter” forms dated January 3, 2016; January

13, 2016; and February 17, 2016. ECF No. 41-1, pp. 12-14. All of these documents note that Plaintiff had some

swelling in his right thumb. Plaintiff has also filed medical restriction forms showing that he was put on “One

Arm/Hand Duty” twice in January 2016. ECF No. 41-1, pp. 15-16.

is not on letterhead, but is instead written on a blank piece of white paper. ECF No. 41-1, p. 10.

The document states that “[t]here is a fracture involing [sic] first distal phalanx with no

displacement there is noted soft tissue swelling[.]” ECF No. 41-1, p. 10. The “report” concludes

that Plaintiff has an “[a]cute right first finger fracture as described[.]” ECF No. 41-1, p. 10. At the

bottom of the document is the following handwritten statement: “Electronically signed by Elliot

Wagner, M.D. 3/16/2017 5:31 AM[.]” ECF No. 41-1, p. 10. It is noteworthy that the other, clearly

legitimate, radiology reports state that they are “electronically signed” but also bear the actual

signature of the reviewing physician. In contrast, this “radiology report” does not bear any

physician’s actual signature—even though it is handwritten. Even if this document is legitimate,

it details x-rays taken thirteen months after two other x-rays that noted no fracture in Plaintiff’s

hand and fails to show or suggest that the delay in receiving his initial hand x-ray had any

detrimental effect or otherwise affected Plaintiff’s prognosis.

Plaintiff further claims that he was taken to UAMS on April 28 2017, and that he was seen

by a “bone specialist” who agreed “that the Plaintiff right hand was in fact injured because he

placed a (cast)6 on it for (6) six weeks and said if it did not heal” Plaintiff would need surgery.

ECF No. 39, p. 2. However, Plaintiff has failed to provide any medical records detailing this visit

or stating the physician’s conclusion on the cause or nature of Plaintiff’s alleged injury.7

Accordingly, even accepting Plaintiff’s allegations and claims as true, Plaintiff has failed

to provide any evidence that would support a finding that the delay in having an x-ray performed

6 Plaintiff has produced a medical restriction form dated April 29, 2017, that notes that he needed a bag to cover a cast

on his right arm. The document does not state why he was wearing a cast.

7 Plaintiff states that these documents are “all in [his] medical jacket” but has not provided them to the Court. ECF

No. 41, ¶ 12. Plaintiff states that he made a request to Defendant to produce these documents “and they responded and

said that they would not because the deadline for discovery had passed[.]” ECF No. 41, ¶ 13. However,

notwithstanding the passage of the discovery deadline, it is unclear how Defendant would have obtained these

documents without Plaintiff first signing some kind of consent form allowing either UAMS or ADC to release them

directly to Defendant. Accordingly, Plaintiff’s failed attempt to obtain his records through Defendant does not excuse

the fact that they have not been made part of the record.

on his hand before being transported to the ADC had any detrimental effect on his prognosis. Thus,

Defendant is entitled to summary judgment as to this claim.

ii. Back Injury

Turning to Plaintiff’s alleged back injury, a radiology report dated February 24, 2016,

shows that x-rays were taken of Plaintiff’s back while he was held in the ADC. ECF No. 31, p. 12.

In that report, the physician states that “[t]here is anatomic alignment of lumbar vertebrae. The

vertebral bodies have normal shape and ossification pattern. Posterior elements are intact.” ECF

No. 31, p. 12. The physician states as his conclusion: “Normal lumbar spine series.” ECF No. 31,

p. 12. That being said, Plaintiff has provided the Court with a radiology report from Premier MRI

& Imaging of Little Rock dated September 27, 2007, concluding that Plaintiff suffered from early

degenerative disc disease and early bilateral facet arthropathy. ECF No. 41-1, p. 25. Accordingly,

the records provided by Plaintiff clearly show that any back issues he may have pre-date his fall

at the CCDC. Plaintiff has not provided any evidence or directed the Court to any record evidence

that would support a finding that the delay in having a x-ray performed on his back before being

transferred to the ADC exacerbated or otherwise affected his existing back problems.

Therefore, drawing all inferences in favor of Plaintiff, the Court finds that Plaintiff has

failed to provide verifying medical evidence showing that the delay in receiving his initial-x-rays

caused any detrimental effect. Accordingly, the record would not support a finding that Defendant

was deliberately indifferent to Plaintiff’s serious medical need. Thus, Defendant is entitled to

summary judgment as no genuine issue of material fact remains as to this claim.

CONCLUSION

Upon de novo review, the Court adopts Judge Bryant’s Report and Recommendation. ECF

No. 42. Accordingly, Defendant’s Motion for Summary Judgment (ECF No. 36) should be and

hereby is GRANTED and this matter is DISMISSED WITH PREJUDICE. A Judgment of even

date shall issue.

IT IS SO ORDERED, this 30th day of January, 2018.

/s/ Susan O. Hickey

Susan O. Hickey

United States District Judge