# Brown v. Dowling

> District Court, N.D. Oklahoma · January 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10386299

## Case

- **Court:** District Court, N.D. Oklahoma
- **Decided:** January 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10386299

## Opinion text

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
KEVIN M. BROWN, Sr. )
)
Plaintiff, )
)
v. ) Case No. 18-CV-0430-CVE-FHM
)
MICHELLE LETTNUS, et al, )
)
Defendants. )
OPINION AND ORDER
Now before the Court is defendants’ motion to dismiss and for summary judgment (Dkt. #
35). Defendants seek judgment on plaintiff’s claims for deliberate indifference to medical needs and
violations of the Health Insurance Portability and Accountability Act (HIPAA). For the reasons
below, the Court will grant the motion and enter judgment in favor of defendants.
I.
The following facts are undisputed: Plaintiff is an inmate appearing pro se. See Dkt. # 10,
at 1. He was incarcerated at the Dick Conner Correctional Center (DCCC) in Hominy, Oklahoma
between February 15, 2017 and August 1, 2018. See Dkt. # 34-1, at 2-3.1 On February 23, 2018,
plaintiff sustained an injury to his right eye. See Dkt. # 34-8, at 2. The following day, prison
officials took him to Dean McGee Eye Institute (Dean McGee), a private ophthalmology practice.
1 In assessing the undisputed facts, the Court relied on the exhibits and medical records
attached to the special report (Dkt. 34). Plaintiff has not specifically controverted any
information in these records, other than to point out that prison officials prepared the report,
and that it does not contain an interview with defendant Sergeant Farmer. See Dkt. # 32.
The special report is consistent with the procedures set forth in Martinez v. Aaron, 570 F.2d
317, 319 (10th Cir. 1978), but, in any event, the Court will accept plaintiff’s allegations
about Farmer as true for the purpose of this ruling.
Id. The ophthalmologist diagnosed plaintiff with an ocular laceration without prolapse or loss of
intraocular tissue. Id, Plaintiff was prescribed a series of eyedrops and other medications, which
did not include pain medication. Id. at 5. In the “history of present illness” section of the medical
record, the ophthalmologist wrote: “Bandage in place; pain controlled.” Id. at 2.
When plaintiff returned to the prison, the DCCC doctor prescribed Norco, a narcotic pain
medication, for a week following the injury. See Dkt. # 34-4, at 2-3. Plaintiff attended follow-up
visits at Dean McGee on February 28, 2018; March 16, 2018; March 30, 2018; and April 11, 2018.
Id. at 6, 11, 19, 24. At each appointment, plaintiff complained about pain, and he often complained
about loss of vision. Id. The ophthamologist gave him prescription eye medication and a patch with
instructions on cleaning, but the treatment plan did not include narcotic pain medication. Id. at 6,
9,11, 14, 22,27. At the latter two appointments (March 30 and April 11, 2018), the ophthamologist
stated that plaintiff could have Tylenol, as needed, for pain. Id. at 22, 27.
Back at DCCC, providers again dispensed Norco for pain on or about March 16, 2018. See
Dkt. # 34-4, at 2. A later medical progress note indicates that DCCC providers may have believed
the ophthamologist ordered the medication. Id. at3. The progress note states: “[plaintiff] came back
from another visit at [Dean McGee] and told nurses he was supposed to have something for pain .

.. They again gave him Norco for a couple of days. When the provider came in on Monday, she
reviewed the notes from [Dean McGee] again, nothing about giving him pain pills.” Id. Plaintiffs
medical records reflect that DCCC did not dispense any narcotic pain medication after March, 2018.
Id. However, DCCC staff did give him Toradol, a nonsteriodial anti-inflammatory drug (NSAID),
on April 14, 2018. Id. at 4.

Plaintiff's lawyer, Anita Bryant, contacted DCCC medical staff on two occasions in April
about the prospect of dispensing more pain medication. See Dkt. # 34-4, at 3, 6. According to the
medical progress note memorializing the calls, medical staff informed Bryant that Dean McGee did
not prescribe any pain medication, and that plaintiff “has been very belligerent with nursing on
several occasions over pain pills.” Id. Plaintiff had previously authorized DCCC to release his
medical information to Bryant. See Dkt. # 34-3, at 2.
Eventually, Dean McGee staff also complained about plaintiff. See Dkt. # 34-8, at 30. Dr.
Smart, an opthamologist, wrote a letter dated April 11, 2018, notifying prison officials that:
We evaluated [plaintiff] on 4/11/18. He has a history of trauma to the right eye leading to
worsened vision that, at this time, is deemed to be inoperable. Since his initial encounter he
has been noted to be very disrespectful and aggressive during patient encounters.
Id. The corresponding progress note echoed these comments, and stated that “techs and physicians
all independently noted this during interaction with pt [patient].” Id. at 27. Dr. Smart asked DCCC
officials to administer a psychiatric evaluation “in hopes that this behavior may be corrected at
subsequent visits.” Id. at 30. He instructed that plaintiff could “follow up at Dean McGee Eye
Institute in three months for repeat evaluation, [or] sooner as needed for intractable pain.” Id.
Dr. Smart’s opinion that plaintiff should have a follow-up appointment in three months
conflicts with the medical progress note memorializing plaintiff's April 11, 2018 visit. See Dkt. #
34-4, at 27. The “Follow Up/RTC” section of the progress note states “return to clinic 4 weeks.”
Id. Consistent with the progress note, it appears a follow-up visit was originally scheduled for May
14, 2018. See Dkt. # 36, at □□ Sergeant Farmer drove plaintiff to a place near Dean McGee, but he

> Defendants have not specifically controverted plaintiff s version of events regarding the May
14,2018, Dean McGee appointment. The Court, therefore, accepts those specific allegations
as true.

turned the van around without allowing plaintiff to attend the appointment. Id. The uncontroverted
allegations reflect that Farmer lied about plaintiff's behavior, which caused the cancellation. Id.
Four days after the missed appointment, on May 18, 2018, plaintiff experienced “great pain”
in his eye.’ See Dkt. # 36, at 2. DCCC medical staff stated that plaintiff “was not coming to
Medical at all for a shot for pain,” despite repeated requests from plaintiff, his case manager, and his
attorney.’ Id. Plaintiff filed a grievance based on the refusal to dispense pain medication and the
missed Dean McGee appointment. See Dkt. # 10, at 10; see also Dkt. # 34-10, at 4.
Around the same time, plaintiff underwent a psychiatric evaluation at DCCC. See Dkt. #34-
4, at 8. The evaluation states: “[plaintiff] was seen on his unit at the request of medical staff. Due
to [his] anger and hostility towards others he is subject to refusal for further treatment unless his
behavior can improve.” Id. The evaluation further reflects that plaintiff refused to participate and
“walk[ed] away angry” from the clinician. Id. On May 29, 2018, DCCC officials spoke with an
administrator at Dean McGee, who required plaintiff to sign a behavioral contract before an
ophthamologist would see him again. Id. at 9. The progress note memorializing the call reflects that
the Dean McGee administrator expected to see plaintiff for a follow-up visit in three months. Id.
DCCC medical staff stated that plaintiff “was already due back, and [the Dean McGee administrator]
said there was some contraindication in the record.” Id. Plaintiff signed the behavioral contract

3 The Court, again, accepts plaintiff’ s uncontroverted allegations regarding his May 18, 2018
request for medical care, as they were not specifically addressed in defendants’ filings.
‘ In his amended complaint, plaintiff also appears to allege that he wanted DCCC medical staff
to remove blood from his eye. See Dkt. # 10, at 12. However, elsewhere in his filings,
plaintiff admits that he needed an operation to remove the blood, and that Dean McGee was
going to perform that procedure. See Dkt. # 36, at 17.

several days later, and the follow-up appointment was scheduled for July 3, 2018. Id. at 11; see also
Dkt. # 34-8, at 33.
Plaintiff attended the July 3, 2018 appointment at Dean McGee without incident. The
progress note reiterated that plaintiff's condition was inoperable, noting: “B scan last visit with
funnel RD, reviewed with Dr. Shukla, inoperable, rec[commend] comfort measures.” See Dkt. #34-
8, at 36. The ophthamologist prescribed more eye drops and some tinted prescription glasses. Id.
at 31-32. As to pain, the progress note states: “currently on PF QD and atropine, could increase to
PF TID QD to help control pain.” Id. at 36. It is not clear from the record what “PF” is, but the
prescription did not include narcotic pain medication. Id, at 43.
Plaintiff filed two more grievances in July, 2018, which do not appear to form the basis of
his claims.’ See Dkt. # 36, at 9. On August 1, 2018, plaintiff was transferred from DCCC - where
all claims arose - to the James Crabtree Correctional Center. See Dkt.# 34-1, at 3.
Plaintiff appears to allege three separate claims stemming from the above facts. He raises
a HIPPA violation, based on the disclosure of medical information to his lawyer, Anita Bryant
(hereinafter, “Count 1”). See Dkt. # 36, at 4; see also Dkt. # 10, at 9. The Court discerns that he also
raises two claims for deliberate indifference to medical needs. “Count 2” pertains to Farmer’s failure
to take plaintiff to his May 14, 2018 follow-up appointment at Dean McGee. See Dkt. # 10 at 3.
“Count 3” pertains to DCCC medical staff's refusal to administer pain medication. Id. at 2, 11.

Plaintiff complained that he was not receiving his prescription glasses quickly enough, and
that medical staff informed him that the only way to get new cotton and tape for his eye was
to “take the old [materials] off.” See Dkt. # 36, at 9. These allegations appear in the
summary judgment response, but they were not the focus the amended complaint (Dkt. # 10).
In any event, they are frivolous and do not establish any constitutional violation.

Defendants seek dismissal or summary judgment on all claims. See Dkt. #35. They argue
that the undisputed facts demonstrate there was no constitutional violation, and that they are entitled
to qualified immunity.
Il.
Summary judgment pursuant to Fed. R. Civ. P. 56 is appropriate where there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848, 850 (10th Cir. 1993). A “dispute about a
material fact is ‘genuine’ ” when “the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248. At the summary-judgment stage, the court
“view[s] the evidence and the reasonable inferences to be drawn from the evidence in the light most
favorable to the nonmoving party.” Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315 (10th Cir. 2017)
(quotations omitted). However, “[w]here the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quotations omitted).
Ordinarily, the movant bears the burden to show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. See Hiatt, 858 F.3d at
1315. However, once a defendant asserts the defense of qualified immunity, the plaintiff must
demonstrate “(1) that the defendant committed a constitutional violation and (2) that the right was
clearly established.” Thomson v. Salt Lake Cty., 584 F.3d 1304, 1325-26 (10th Cir. 2009) (Holmes,
J., concurring). A court has discretion to determine “which of the two prongs of the qualified
immunity analysis should be addressed first,” Pearson v. Callahan, 555 U.S. 223, 236 (2009), “and

may resolve the question by finding either requirement is not met.” Mascorro v. Billings, 656 F.3d
1198, 1204 (10th Cir. 2011). In determining whether a plaintiff has satisfied this two-part burden,
the court generally should “adopt” the plaintiff's “version of the facts.” Id. at 1325 (quoting Scott
v. Harris, 550 U.S. 372, 380 (2007)). At the summary-judgment stage though, a “plaintiffs version
of the facts must find support in the record.” Id. Thus, the court may reject plaintiff's version of the
facts if it is “‘so utterly discredited by the record that no reasonable jury could have believed’ it.”
Id. (quoting Scott, 550 U.S. at 380)).
HI.
Defendants move for summary judgment on plaintiffs claims for HIPAA violations (Count
1) and deliberate indifference to medical needs (Counts 2 and 3).
A. HIPAA Violation
In Count 1, plaintiff argues that defendants violated HIPPA by disclosing private medical
information to his lawyer, Anita Bryant. See Dkt. # 36, at 4; see also Dkt. # 10, at 3. This claim fails
because “HIPAA does not create a private right of action for alleged disclosures of confidential
medical information.” Wilkerson v. Shinseki, 606 F.3d 1256, 1257 n.4 (10th Cir. 2010). Further,
plaintiff explicitly authorized the Oklahoma Department of Corrections to release his medical
records to Bryant. See Dkt. # 34-3, at 2. Defendants are, therefore, entitled to summary judgment
on Count 1.
B. Deliberate Indifference to Medical Needs
In Counts 2 and 3, plaintiff claims that defendants violated his right to adequate medical care
by cancelling his May 14, 2018 appointment at Dean McGee and refusing to treat his pain. See Dkt.
# 10, at 2,3, 11. The Eighth Amendment obligates prison officials to “ensure that inmates receive

adequate . . . medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To establish a violation,
an inmate must show that prison official acted with “deliberate indifference to [the inmate’s] serious
medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need is considered
sufficiently serious . . . if the condition has been diagnosed by a physician as mandating treatment

or is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”
Al-Turki v. Robinson, 762 F.3d 1188, 1192-93 (10th Cir. 2014) (quotations). “Where a prisoner
claims that harm was caused by a delay in medical treatment, he must show that the delay resulted
in substantial harm.” Id. at 1193. As to the subjective component, a prison official acts with the
requisite state of mind, if the official “act[s] or fail[s] to act despite [the official’s] knowledge of a
substantial risk of serious harm” to the inmate’s health. Farmer, 511 U.S. at 842.
“A prison . . . [official] who serves solely . . . as a gatekeeper for other medical personnel

capable of treating the condition’ may be held liable under the deliberate indifference standard if [the
official] delays or refuses to fulfill that gatekeeper role.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir.
2005) (quotations omitted). However, “a mere difference of opinion between the prison’s medical
staff and the inmate as to the diagnosis or treatment which the inmate receives does not support a
claim of cruel and unusual punishment.” Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980).
(i) Count 2: The Missed Dean McGee Appointment
Plaintiff contends that he missed his fifth follow-up appointment at Dean McGee, which was
scheduled for May 14, 2018. See Dkt. # 36, at 2. The uncontroverted allegations show that Sergeant

Farmer started to drive plaintiff to the appointment; turned around before arriving; and then lied
about plaintiff’s behavior. Id. Even assuming these facts are true, Farmer’s conduct does not
constitute an Eighth Amendment violation. It appears the missed May 14, 2018 appointment was
8
unnecessary, and/or the result of a scheduling error. In his April 11, 2018 letter, Dr. Smart stated
that plaintiff did not need to be seen again until July. See Dkt. #34-8, at 30. An administrator from
Dean McGee reiterated this point on May 29, 2018, again citing the three-month time frame for a
follow-up appointment. See Dkt. # 34-4, at 8. Plaintiff, therefore, has not demonstrated his eye
condition mandated the ophthamologist’s attention on May 14, 2018.
Plaintiff also has not alleged or demonstrated that waiting until July 3, 2018 to see the
ophthamologist “resulted in substantial harm.” Al-Turki v. Robinson, 762 F.3d at 1193. Plaintiff's
condition was inoperable on April 11, 2018, and the medical records confirm that it remained
inoperable on July 3, 2018. See Dkt. # 34-8, at 30, 36. To the extent the alleged harm consisted of
increased pain, neither visit resulted in a prescription for pain medication. Id. On this record,
plaintiff cannot satisfy the objective component of his claim as to Count 2.
(ii) Count 3: Refusal to Provide Care at DCCC Medical
In Count 3, plaintiffalleges that prison officials refused to see him in the DCCC medical unit
to adequately treat his pain. Although the complaint and the summary judgment response both make
numerous general allegations of this nature, the filings cite only one specific date when prison
officials refused care: May 18, 2018. See Dkt. # 10; see also Dkt. #36.° Even assuming there were
multiple instances where plaintiff was denied access to the medical unit, he cannot establish
deliberate indifference.
As to the objective component, the only alleged harm is pain. See Dkt. # 10, at 11 (“All
[plaintiff] ask[ed DCCC staff] to do is to move me back to [a preferable housing unit], take me to

6 One page of the summary judgment response cites the date as February 18, 2018. See Dkt.
# 36, at 2. However, the Court discerns this was a scrivener’s error, as that date occurred
before the eye injury, and the associated facts clearly refer to the May 18, 2018 incident.

all my Dean McGee eye appts, [and] give me all the pain medication[.] That’s it.”). While “not
every twinge of pain suffered .. . is actionable,” substantial pain can satisfy the objective-harm prong
of the deliberate-indifference test. See Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000).
However, a complaint alleging that plaintiff was not given pain medication, but was instead given
other treatment, “amounts to merely a disagreement with [the doctor’s] medical judgment concerning
the most appropriate treatment.” Gee v. Pacheco, 627 F.3d 1178, 1192 (10th Cir. 2010). See also
Carter v. Troutt, 175 Fed. App’x 950 (10th Cir. 2006) (unpublished) (finding no Eighth Amendment
violation by prison doctor who refused to prescribe a certain pain medication where he prescribed
other medications for the inmate); Ledoux _v. Davies, 961 F.2d 1536, 1537 (10th Cir. 1992)
(“Plaintiff's belief that he needed additional medication, other than that prescribed by the treating
physician, as well as his contention that he was denied treatment by a specialist is . . . insufficient
to establish a constitutional violation.”).
Here, plaintiff was under the care of a specialist, who declined to prescribe any pain
medication. See Dkt. # 34-8, at 4-5, 9. Nevertheless, DCCC officials dispensed Norco in the month
following the injury. See Dkt. # 34-4, at 2-4. They also dispensed an NSAID on April 14, 2018.
Id. By the time that plaintiff demanded a “pain shot” on May 18, 2018, see Dkt. # 36, at 17, his
ophthamologist had specifically determined that his pain should be managed via eyedrops and
Tylenol. See Dkt. # 34-8, at 22. Under these circumstances, plaintiff has not demonstrated that he
was seriously harmed by prison officials’ refusal to give him a pain shot.
Plaintiff also failed to satisfy the subjective component of the deliberate-indifference test.
The record reflects that prison officials appropriately discharged their gatekeeper function by taking
plaintiff to a specialist on the day after his injury and on five other occasions between February and

10

July. See Dkt. # 34-8, at 2-33. When plaintiff became unhappy with his care at Dean McGee, Dr.
Bowler of DCCC even agreed to contact Triad Eye Care, another ophthamologist, for a second
opinion. See Dkt. # 34-4, at 10. There is also no indication prison officials consciously disregarded
plaintiff’s concerns. Instead, his DCCC medical records reflect that when prison officials attempted

to provide care, plaintiff was combative and uncooperative. For example, DCCC progress notes
entered between March and May 2018 reflect that it was “difficult to know his honesty in regard to
level of pain discomfort,” because plaintiff had a “history of excessive narcotic request[s]” and was
“belligerent with nursing on several occasions over pain pills.” Dkt. # 34-4, at 2-3. Plaintiff also
refused to allow DCCC staff to examine his eye on multiple occasions and accused them of
withholding pain medication because he was African-American. Id. at 4, 6, 10. The record
demonstrates that defendants did not recklessly disregard a substantial risk of harm, and Count 3 fails

as a matter of law.
IV.
Based on the foregoing, the Court finds that plaintiff has not met his burden to establish a
HIPAA violation or either component of his deliberate-indifference claim. As a result, he has not
established a constitutional violation and cannot make the first showing necessary to overcome the
defendants’ assertion of qualified immunity. The Court will grant summary judgment in favor of
defendants on all claims.

11
ACCORDINGLY, IT IS HEREBY ORDERED that:
1. Defendants’ motion to dismiss, or for summary judgment (Dkt. # 35) is granted.
2. A separate judgment is entered herewith.

DATED this 6th day of January, 2020.

12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10386299. Public record. Not legal advice.