Scott v. King

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

TEXARKANA DIVISION

TYRONE LAVALL SCOTT PLAINTIFF

v. Civil No. 4:21-cv-04090

NURSE S. KING DEFENDANT

REPORT AND RECOMMENDATION

This is a civil rights action filed pro se by Plaintiff, Tyrone Lavall Scott, under 42 U.S.C.

§ 1983. Plaintiff names as Defendant Nurse S. King. Plaintiff claims Defendant violated his

constitutional rights in his individual capacity.1 Before the Court is Defendant King’s Motion for

0F

Summary Judgment. (ECF No. 23). Plaintiff filed a Response (ECF No. 26). Pursuant to the

provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey Chief United

States District Judge, referred this case to the undersigned for the purpose of making a Report and

Recommendation.

I. FACTUAL BACKROUND

Plaintiff is currently incarcerated in the Arkansas Department of Corrections – East

Arkansas Regional Unit. His claim in this action arise from his incarceration in Miller County

Detention Center (“MCDC”) in 2021. At all times relevant to the instant lawsuit, Defendant King

was medical staff employed with Southern Health Partners (“SHP”) the company that provides

medical services to the MCDC, and Plaintiff was a convicted prisoner.

1 Plaintiff’s official capacity claim against Defendant King was dismissed during the Section

1915(g) preservice screening procedure along with all other claims and Defendants in Plaintiff’s

Amended Complaint. (ECF Nos. 11, 12).

Plaintiff was booked into MCDC on July 27, 2021 and transferred out to the ADC on

August 28, 2021. (ECF No. 26, p.1). Plaintiff was returned to MCDC and booked in, on

September 10, 2021, to make a court appearance. (ECF No. 20-2, p. 1). During his booking on

September 10, 2021, Plaintiff informed the booking officer he had a metal rod in his spine, and he

was currently on blood pressure medication. (ECF No. 20-2, p. 2).

On September 25, 2021, Plaintiff submitted a medical request to be put on the doctor’s list

for “a rod just below my spine . . . hurting really bad.” (ECF No. 20-2, p. 3). In this medical

request, Plaintiff indicated this was not his first request regarding this issue and he should have

been put on the doctors list “last week.” Id. The response on this medical request notes: “Seen by

. . . Nurse Lisa.” Id.

Plaintiff was examined by L. Davidson, LPN on this same day, and during this examination

an x-ray ordered of Plaintiff’s coccyx—tailbone. (ECF No. 20-2, p. 4). L. Davidson, LPN noted

under additional assessment notes: “[Patient] stated he has a metal rod in his lower back close to

his tail bone and it feels like it has moved. [Patient] has steady gait with no difficulty with ROM

at this time.” (ECF No. 20-2, p. 5). Finally, Plaintiff received naproxen on September 25, 2021.

(ECF No. 20-2, p. 6).

On September 27, 2021, Plaintiff received an x-ray of his Sacrum/Coccyx area. (ECF No.

20-2, p. 7). The radiology interpretation noted it was done to investigate pain in rectum and rule

out foreign object. Further it stated:

No acute fracture. No disruption of the sacral arcuate lines. No diastases of the pubic

symphysis or the sacroiliac joints. No lytic or blastic osseous lesion. Soft tissues are

normal. No ankylosis. No periarticular erosions or calcifications. Mineralization is

normal. No radiopaque foreign body. L5/S1 disc osteophytosis. Pelvic phlepoliths.

Id. The radiologist also noted “no acute finding.” Id.

II. PROCEDURAL BACKGROUND

Plaintiff filed his original Complaint on November 19, 2021 (ECF No. 1) and his Amended

Complaint on January 25, 2022. (ECF No. 10). Defendant Steve King Answered on April 16,

2022. (ECF No. 16). In his Complaint, Plaintiff asserts multiple claims against multiple

defendants, however, the only claim that survived preservice screening pursuant to 28 U.S.C. §

1915A, is one claim of denial of medical care against Defendant King in his individual capacity.

(ECF Nos. 11, 12).

In his Amended Complaint, Plaintiff describes his remaining claim against Defendant King

as “denial of medical attention” and identifies Nurse King as the Defendant who violated his rights.

(ECF No. 10, p. 10). Id. He specifically states:

I Tyrone Scott had an x-ray done on 9-25-21 about a rod over my rectum was

protruding out. The x-ray was done and I was told that it wasn’t anything there.

Which I know it was because I felt it and tried pulling it out only to bring back a

bloody tissue. I never had a surgery back there before. Nurse S. King still didn’t

schedule me to see the doctor when Lisa or Chelsie had me scheduled to see the

doctor.

Id.

Defendant King filed his Motion for Summary Judgment with Brief in Support and

Statement of Facts on September 16, 2022. (ECF Nos. 20, 21, 23). Defendant King argues (1)

Plaintiff did not suffer from a serious medical need as required by the Eighth Amendment, (2) he

was not deliberately indifferent to any serious medical need of Plaintiff; and (3) Plaintiff cannot

meet proof with proof. (ECF No. 20).

Plaintiff filed his Response with disputed facts on November 3, 2022. (ECF No. 26).

Plaintiff disputes the fact that September 25, 2021 was the first medical request he made regarding

the metal rod. Instead, he states he made three previous requests. Specifically, Plaintiff claims he

requested medical attention regarding the metal rod on September 11, 2021, September 13, 2021,

and September 15, 2021. However, Plaintiff does not attach these requests for the Court’s review.

Id. at 1-2. Secondly, Plaintiff objects to the results of the x-ray performed on September 27, 2021.

Specifically, Plaintiff argues: “They took x-rays and never once stated any finding nor told me

what was showed in the x-ray.” Id. at 2. Third, Plaintiff argues that an unknown object inside

one’s body is a serious medical need. Id. Finally, Plaintiff also claims that he was denied a visit

to the doctor and the x-ray was altered. Id. The only documentation or summary judgment

evidence attached to Plaintiff’s response is his MCDC Book-In Sheet from July 27, 2021 and

September 10, 2021. (ECF Nos. 26-1; 26-2).

III. LEGAL STANDARD

Summary judgment is appropriate if, after viewing the facts and all reasonable inferences

in the light most favorable to the nonmoving party, the record "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); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "Once

a party moving for summary judgment has made a sufficient showing, the burden rests with the

non-moving party to set forth specific facts, by affidavit or other evidence, showing that a genuine

issue of material fact exists.” Nat’l Bank of Comm. v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir.

1999).

The non-moving party "must do more than simply show that there is some metaphysical

doubt as to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient

evidence to support a jury verdict in their favor." Nat’l Bank, 165 F.3d at 607. "A case founded

on speculation or suspicion is insufficient to survive a motion for summary judgment." Id. at 610.

“When opposing parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380

(2007).

Under § 1983, a defendant may be sued in either his personal capacity, or in his official

capacity, or claims may be stated against a defendant in both his personal and his official

capacities. The type of conduct that is actionable and the type of defense available depend on

whether the claim is asserted against a defendant in his official or individual capacity. See Gorman

v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998) (internal citations omitted). “Claims against

individuals in their official capacities are equivalent to claims against the entity for which they

work; they require proof that a policy or custom of the entity violated the plaintiff’s rights, and the

only type of immunity available is one belonging to the entity itself.” Id. Personal capacity claims

“are those which allege personal liability for individual actions by officials in the course of their

duties; these claims do not require proof of any policy and qualified immunity may be raised as a

defense” to these individual capacity claims. Id. To state a claim under 42 U.S.C. § 1983, Plaintiff

must allege that the defendant acted under color of state law, and that the actor violated a right,

privilege, or immunity secured by the Constitution. West v. Atkins, 487 U.S. 42, 48 (1988);

Dunham v. Wadley, 195 F.3d 1007, 1009 (8th Cir.1999).

IV. DISCUSSION

Plaintiff’s denial of medical care claim is analyzed under the Eighth Amendment as he was

a convicted inmate at the time in question. See e.g., Morris v. Cradduck, 954 F.3d 1055, 1058 (8th

Cir. 2020). To succeed on this type of claim, Plaintiff must demonstrate (1) that he had an

objectively serious medical need, and (2) that the Defendants knew of, but deliberately

disregarded, that serious medical need. See Ivey v. Audrain Cnty., Mo., 968 F.3d 845, 848 (8th

Cir. 2020). “A serious medical need is one that has been diagnosed by a physician as requiring

treatment, or one that is so obvious that even a layperson would easily recognize the necessity for

a doctor's attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997) (internal citation and

quotations omitted). “[T]o demonstrate that a defendant actually knew of, but deliberately

disregarded, a serious medical need, the plaintiff must establish a mental state akin to criminal

recklessness: disregarding a known risk to the [detainee’s] health.” Barton v. Taber, 908 F.3d

1119, 1124 (8th Cir. 2018) (citations omitted). The Eighth Circuit has stated that this “onerous

standard requires a showing more than negligence, more than even gross negligence, but less than

purposefully causing or knowingly bringing about a substantial risk of serious harm to the inmate.”

Thompson v. King, 730 F.3d 742, 747 (8th Cir. 2013) (internal quotations and citations omitted).

Deliberate indifference may also be manifested by “prison guards in intentionally denying

or delaying access to medical care or intentionally interfering with the treatment once prescribed.”

Estelle v. Gamble, 429 U.S. 97, 104–05 (1976). However, the “Constitution does not require jailers

to handle every medical complaint as quickly as each inmate might wish.” Jenkins v. County of

Hennepin, Minn., 557 F.3d 628, 633 (8th Cir. 2009). “A prisoner alleging a delay in treatment

must present verifying medical evidence that the prison officials ignored an acute or escalating

situation or that [these] delays adversely affected his prognosis[,]” Holden v. Hirner, 663 F.3d 336,

342 (8th Cir. 2011) (internal quotations and citations omitted), unless the need for medical

attention is obvious to a layperson, in which case the plaintiff need not submit verifying medical

evidence to show the detrimental effects of delay. See Schaub v. VonWald, 638 F.3d 905, 919 (8th

Cir. 2011) (citing Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir. 1999)); Boyd v. Knox, 47

F.3d 966, 969 (8th Cir. 1995) (holding a three-week delay, “coupled with knowledge of inmate-

patient’s suffering, can support a finding of an Eighth Amendment violation”).

Here, Plaintiff’s complaint is that Defendant King failed to treat him for his serious medical

need—a metal rod protruding from his anus. (ECF No. 10). The summary judgment evidence

shows Plaintiff received pain medication (ECF No. 20-2, p. 6), and an x-ray of his tailbone and

anus area. (ECF No. 20-2, p. 7). This x-ray indicated no foreign object was present in Plaintiff’s

anus. (ECF No. 20-2, p. 7). Thus, no further treatment was warranted. Based on these facts, the

Court finds Plaintiff did not suffer from an objectively serious medical need, and thus, Defendant

King was not deliberately indifferent in failing to treat Plaintiff. See Ivey, 968 F.3d at 848. Further,

the record indicates Defendant King had no knowledge of a serious medical need as the medical

records indicate there were none. Without knowledge of the serious medical need, Defendant King

could not have deliberately disregarded the need. See Barton, 908 F.3d at 1124.

The Court recognizes Plaintiff’s claim of material facts in dispute. Particularly, Plaintiff

makes a conclusory statement that his x-ray results were altered, and that he does in fact have a

metal rod in his anus that Defendant King is refusing to remove. However, Plaintiff provides no

proof in support of this contention. Without supporting evidence on the record, the Court cannot

adopt Plaintiff’s allegations as true, even on summary judgment, as they are blatantly contradicted

by the summary judgment record. See Scott v. Harris, 550 U.S. 372, 380 (2007).

Furthermore, mere disagreement with the medical treatment one receives does not rise to

the level of a constitutional violation. Jolly v. Knudsen, 205 F.3d 1094 (8th Cir. 2000). Here,

Plaintiff disagrees with his diagnosis or lack of diagnosis. However, he did not provide any

evidence to show the treatment provided was insufficient.

Even if the Court construes Plaintiff’s claim as a delay of medical care claim—finding that

his first medical request was made on September 11, 2021 but the x-ray was not performed until

September 27, 2021—Plaintiff still fails to state deliberate indifference in this delay. Plaintiff has

not produced any verifying medical evidence that the delay in performing the x-ray caused any

detrimental effects to his prognosis. Holden, 663 F.3d at 342.

Lastly, Plaintiff has not shown that Defendant King caused his denial of medical care. It

appears from the record that non-party medical professionals initially examined Plaintiff (ECF No.

20-2, p. 4), performed Plaintiff’s x-ray (ECF No. 20-2, p. 7), and interpreted Plaintiff’s radiology

results (Id.). While the Court will construe Plaintiff’s pleadings liberally, pro se litigants are not

excused from failing to comply with substantive and procedural law. Burgs v. Sissel, 745 F.2d

526, 528 (8th Cir. 1984). To prove a claim against Defendant King, Plaintiff must establish that

Defendant King “personally violated [his] constitutional rights.” Jackson v. Nixon, 747 F.3d 537,

543 (8th Cir. 2014). Liability under Section 1983 requires a causal link to, and direct responsibility

for, the deprivation of rights.” Mayorga v. Missouri, 442 F.3d 1128, 1132 (8th Cir. 2006). Plaintiff

has not provided any evidence on the summary judgment record that Defendant King is the medical

professional responsible for the actions or inactions about which he complains. Accordingly,

Plaintiff’s claims against Defendant King fail as a matter of law.

V. CONCLUSION

For the reasons stated above, I recommend Defendant Steve King’s Motion for Summary

Judgment (ECF No. 23) be GRANTED and the claim against him be DISMISSED WITH

PREJUDICE.

The parties have fourteen days from receipt of the Report and Recommendation in

which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 19th day of April 2023.

Barry A. Bryant

/s/

HON. BARRY A. BRYANT

UNITED STATES MAGISTRATE JUDGE