Petition for Writ of Certiorari — Zachary A. Smith, Petitioner v. John A. Matthews, et al.

®mteb i£>tate£ Court of Appeals;

jFor tf)e CtgFjtf) Circuit

No. 17-3815

Zachary A. Smith

Plaintiff - Appellant

v.

John A. Matthews, Former CRCC Medical Director; Paul R. Jones, Former CRCC

Medical Director; Stephen E. Dorsch, CRCC Medical Director; J. Cofield, Corizon

Director of Operations; T. Bredeman, Corizon Assoc Regional Medical Director;

Corizon Health Inc.

Defendants - Appellees

Appeal from United States District Court

for the Western District of Missouri - St. Joseph

Submitted: April 18, 2019

Filed: April 25,2019

[Unpublished]

Before ERICKSON, BOWMAN, and GRASZ, Circuit Judges.

PER CURIAM.

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In this 42 U.S.C. § 1983 action, Missouri inmate Zachary A. Smith appeals

from the order of the District Court1 granting summary judgment to the defendants.

Viewing the record in the light most favorable to Smith and drawing all reasonable

inferences in his favor, we see no error in the court’s decision to grant summary

judgment. See Allard v. Baldwin. 779 F.3d 768, 771 (8th Cir. 2015) (standard of

review). We further find no basis for reversing the numerous other orders Smith

challenges on appeal. We affirm.

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‘The Honorable Fernando J. Gaitan, Jr., United States District Judge for the

Western District of Missouri.

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

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No: 17-3815

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Zachary A. Smith

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Plaintiff - Appellant

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V.

John A. Matthews, Former CRCC Medical Director; Paul R. Jones, Former CRCC Medical

Director; Stephen E. Dorsch, CRCC Medical Director; J, Cofield, Corizon Director of

Operations; T. Bredeman, Corizon Assoc Regional Medical Director; Corizon Health Inc.

Defendants - Appellees

Appeal from U.S. District Court for the Western District of Missouri - St. Joseph

(5:16-cv-06067-FJG)

JUDGMENT

Before ERICKSON, BOWMAN, and GRASZ, Circuit Judges.

This appeal from the United States District Court was submitted on the record of the

district court and briefs of the parties.

After consideration, it is hereby ordered and adjudged that the judgment of the district

court in this cause is affirmed in accordance with the opinion of this Court.

April 25, 2019

Order Entered in Accordance with Opinion:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

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UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

ST. JOSEPH DIVISION

ZACHARY A. SMITH,

Plaintiff,

vs.

JOHN A. MATTHEWS, et al. ,

)

)

)

)

)

)

)

Case No.

16-6067-CV-SJ-FJG-P

Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

AND DISMISSING CASE

This civil rights case was filed pro se pursuant to 42 U.S.C.

§ 1983 by a state prisoner.

Plaintiff is incarcerated at the

Crossroads Correctional Center

(CRCC),

where his claims arose.

The Defendants are Corizon, LLC, a business that contracts with the

Missouri Department of Corrections to provide prisoner health care,

along with medical and administrative officials employed by Corizon.

Pending before the Court is Defendants' motion for summary

judgment, which the Court must grant if there is no genuine issue

as to any material fact and Defendants are entitled to judgment as

a matter of law.

Federal Rule of Civil Procedure 56 (a) .

In applying

this standard, the Court must "view the facts and the inferences to

be drawn from them in the light most favorable to [Plaintiff]."

Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th Cir. 1997)

(citation

omitted).

Case 5:16-cv-06067-FJG Document 123 Filed 12/20/17 Page 1 of 5

Plaintiff claims that he has been denied proper medical care

for testicular pain and discomfort.

Doc. 1, p. 5 (complaint).

For

this ailment, Plaintiff states that he has been examined by four

physicians, who ordered lab tests and prescribed antibiotics and

Id. at 5-9.

medicines for pain.

In

addition

described by

to

the

Plaintiff,

examinations,

Defendants

labs,

and

have

filed

includes this statement by Defendant Dr.

Dorsch:

medications

evidence

which

"I diagnosed

[Plaintiff has having] a probable spermatic chord cyst.

My plan was

to monitor the cyst [with] a possible future evaluation with a scrotal.

ultrasound.

Mr.

medication."

Doc. 110-1, p. 3 (Dorsch affidavit).

Smith declined an

offer

of

additional

pain

Plaintiff was

sent off-site for the ultrasound mentioned by Dr. Dorsch, which

yielded these impressions:

hydroceles

"1. Normal testes with small bilateral

[accumulation of fluid in a body sac],

septated and

slightly more prominent on the left than the right.

2. There are

small benign nodular areas in both scrotal areas.

normal."

3. Color flow is

Doc. 110-4 (report).

Deliberate indifference to the serious medical needs of a

convicted prisoner violates the Eighth Amendment to the United States

Constitution.

Estelle v. Gamble, 429 U.S. 97, 104 (1976).

However,

"a complaint that a physician has'been negligent in diagnosing or

treating a medical condition does not state a valid claim of medical

Case 5:16-cv-06067-FJG Document 123 Filed 12/20/17 Page 2 of 5

mistreatment under the Eighth Amendment."

Id. at 106.

Rather, 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."

Estate of

Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) .

In order to defeat Defendants' motion for summary judgment,

Plaintiff must present "verifying medical evidence [which shows that

Defendants]

ignored an acute

[Defendants' actions]

or escalating

situation or that

adversely affected the prognosis .

.

//

Dulany, 132 F.3d at 1243 (citations and quotation marks omitted).

Plaintiff has filed his sworn declaration to support his claims.’

Doc. 120-1.

However, as in Campbell v. McMinn County, Tennessee,

No. 1:10-CV-278, 2012 WL 369090, at *5 (E.D. Tenn. Feb. 3, 2012),

"although Plaintiff's statement about his surgery provides context."

regarding the

surrounding circumstances,"

it

is

not verifying

medical evidence.

In addition to his sworn declaration,

Plaintiff has filed

information from various websites, including WebMD.

Doc. 120-1.

Plaintiff argues that the information he found on the internet is

verifying medical evidence sufficient to defeat Defendants' motion

for summary judgment, and, as support for this argument, he cites

Rowe v. Gibson, 798 F.3d 622 (*7th Cir. 2 015) .

In Rowe, the majority

(Judge Posner with Judge Rovner concurring) reversed the District

Case 5:16-cv-06067-FJG Document 123 Filed 12/20/17 Page 3 of 5

Court's grant of summary judgment in favor of a prison physician,

citing "cautious, limited Internet research that we have conducted

Id. at 630 .

in default of the parties' having done so."

The dissent

(Judge Hamilton) opined that the internet research cited by the

majority did not constitute verifying medical evidence.

Id. at 644.

• ("The websites the majority relies upon tell us themselves that their

information needs to be interpreted by a qualified physician.")

This Court is not bound by the 7th Circuit's decision in Rowe.

United States v.

Auginash,

266 F.3d 781,

784.

(8th Cir.

2001).

Further, this Court agrees with Judge Hamilton's assessment and finds that the information Plaintiff read on the internet and filed in this

case

is

not

verifying

medical

evidence

Defendants' motion for summary judgment.

sufficient

to

defeat

See also Cooper v. Diggs,

No. 07-1557, 2010 WL 2331067, at *3 n.5 (W.D. Penn. June 4, 2010) ■

(reference to general medical treatise^ is not verifying medical

evidence).

"[A]n inmate's mere disagreement with the course of medical

treatment does not give rise to a constitutional claim."

Martinez

v. Turner, 977 F.2d 421, 423 (8th Cir. 1992), cert, denied, 507 U.S.

1009 (1993) .

The Court finds that this case boils down to such a

disagreement and that Defendants are entitled to judgment as a matter

of law.

Case 5:16-cv-06067-FJG Document 123 Filed 12/20/17 Page 4 of 5

Accordingly, Defendants' motion for summary judgment (Doc. 109)

is granted,

and this case is dismissed.

Dismissal is without

prejudice to any malpractice claim Plaintiff may pursue against

Defendants in state court under state law.

Plaintiff's federal-law

claims against Defendant Dr. John Matthews, who was not served, are

dismissed without prejudice to their presentation in a separate case

if Plaintiff is able to locate and serve Matthews.

Finally,

Plaintiff is cautioned that federal law "makes prisoners responsible

for

[appellate filing fees of $505.00]

. . files an appeal."

Cir. 1997)

the moment the prisoner

Henderson v. Norris, 129 F.3d 481, 483 (8th

(citation and quotation marks omitted).

So ORDERED.

/s/ Fernando J. Gaitan, Jr.

FERNANDO J. GAITAN, JR.

UNITED STATES DISTRICT JUDGE

Dated: December 20, 2017.

Case 5:16-cv-06067-FJG Document 123 Filed 12/20/17 Page 5 of 5

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 17-3815

Zachary A. Smith

Appellant

v.

I

John A. Matthews, Former CRCC Medical Director, et al.

Appellees

Appeal from U.S. District Court for the Western District of Missouri - St. Joseph

(5:16-cv-06067-FJG)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

. May 28, 2019

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans