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Roy v. Correctional Medical Services

United States District Court, S.D. Alabama, Southern Division

October 15, 2014

LARRY ROY, etc., Plaintiff,


WILLIAM H. STEELE, Chief District Judge.

This matter is before the Court on the motion for summary judgment filed by all remaining defendants. (Doc. 99). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 100-01, 107, 109-10, 114), and the motion is ripe for resolution. After careful consideration, the Court concludes that the motion is due to be granted.


According to the verified complaint, (Doc. 1), the plaintiff at all relevant times has been an inmate at Holman Correctional Facility ("Holman"). The entity defendant ("CMS") provides medical services at Holman, and the individual defendants are or were medical providers employed by the entity defendant and working at Holman. Three of the individual defendants (Tesemma, Judit and Barber) are physicians. The remaining six individual defendants (Hicks, Wilson, Poindexter, Griffin, Carnley and Taylor) are nurses. The plaintiff alleges against each defendant a Section 1983 claim of deliberate indifference to a serious medical need in violation of the Eighth Amendment.


In July 2012, the Magistrate Judge issued a report and recommendation ("R&R") that the defendants' motion for summary judgment be granted for lack of a constitutional violation and that the plaintiff's motion for preliminary injunction, (Doc. 36), be denied as moot. (Doc. 40). The Court adopted the R&R, dismissed the complaint with prejudice, and entered judgment accordingly. (Docs. 42, 43). The Eleventh Circuit affirmed in part, reversed in part, and remanded for further proceedings. (Doc. 59). On remand, the Magistrate Judge appointed learned counsel for the plaintiff, (Doc. 65), who has represented the plaintiff throughout discovery and motion practice.

I. Allegations of the Complaint.

According to the complaint, the plaintiff was seen by a free-world urologist (Dr. Newman) in October 2009, who prescribed medications for enlarged prostate. The plaintiff experienced serious side effects from the medications, of which Nurse Taylor was informed, but she did nothing for 47 days. In late November, when a guard brought the plaintiff - displaying obvious symptoms - to Nurse Taylor, she finally made him an appointment with Dr. Tesemma - for mid-December. On December 17, Dr. Tesemma saw the plaintiff, with severe weight loss and other obvious symptoms, and decided the plaintiff could wait two more weeks to see a urologist. The plaintiff's family prevailed upon the warden to permit the plaintiff to visit an emergency room that night, and the ER doctor announced the plaintiff's organs were failing and that he likely would have died had he not come in when he did. (Doc. 1 at 9-11).

On appeal, the Eleventh Circuit found that the plaintiff was prescribed the medications on November 4, 2009, and it found that the defendants' response, through and including December 17, 2009, did not reflect deliberate indifference to a serious medical need. (Doc. 59 at 4, 7). The Eleventh Circuit thus affirmed the grant of summary judgment as to this portion of the plaintiff's claim. ( Id. at 10).

According to the complaint, the free-world surgeon (Dr. Paul) the plaintiff saw on December 18, 2009 inserted an in-dwelling catheter to enable the plaintiff to urinate freely. Dr. Paul instructed that he personally would remove the catheter after seven weeks. Instead, on February 1, 2010, Wilson removed the catheter, and then she and Poindexter attempted unsuccessfully to insert a new catheter. The plaintiff was then taken to a free-world hospital on February 2, where a free-world doctor botched the job. On February 3, the plaintiff was taken to another free-world hospital, where Dr. Newman inserted a flexible, effective catheter. On March 3, 2010, Dr. Newman performed microwave surgery and inserted a new catheter. (Doc. 1 at 11-13).

According to the complaint, Dr. Newman instructed that the catheter be changed on or about April 14, 2010. On April 14, Nurses Griffin and Carnley removed the catheter and attempted to insert a new one but could not get it past the site of the microwave surgery. They opened the balloon tip anyway, causing excruciating pain, and blood (but not urine) flowed into the urine bag. Griffin and Carnley returned the plaintiff to his cell in this condition. The plaintiff returned to the infirmary and complained to Nurses Hicks and Griffin, who sent him back to his cell. A guard returned the plaintiff to the infirmary, where Dr. Judit removed the catheter, removed clots of blood from the tip, and re-inserted the catheter. Again, the catheter stopped at the site of the microwave surgery, Dr. Judit inflated the balloon anyway, and again pain and blood was the result. The three defendants handled other items while trying to insert the catheter, and the plaintiff suffered a urinary tract infection as a result. In addition, the plaintiff's abdomen swelled with pressure from being unable to urinate all day, several organs became infected and excruciatingly painful, and he could smell and taste urine in his saliva. The plaintiff was taken to a free-world emergency room, where he received antibiotics and a new catheter. (Doc. 1 at 13-14).

According to the complaint, the plaintiff notified Dr. Barber, on or about September 25, 2011, of symptoms of a urinary tract infection, including foul-smelling, dark-colored urine and a clear yellow secretion with stringy features. On October 7, 2011, the plaintiff informed Dr. Barber that his kidneys and liver were hurting and that his catheter, which had been inserted on June 15, 2011, needed to be changed because it would periodically stop up. Dr. Barber did nothing, and the catheter became blocked solid. On October 14, 2011, Dr. Barber instructed a nurse to change the catheter, which she did. (Doc. 1 at 15-16).

In reversing and remanding in part, the Eleventh Circuit relied on evidence that the plaintiff supplied in opposition to the defendants' motion for summary judgment. (Docs. 36, 37, 39). The appellate court noted evidence that Dr. Newman had directed prison staff to change the plaintiff's catheter every four weeks and that the plaintiff had repeatedly experienced delays of up to 15 weeks in having his catheter changed. (Doc. 59 at 8). The Eleventh Circuit "conclude[d] that an issue of fact is presented as to whether CMS's failure to regularly provide Roy with catheter treatment pursuant to Dr. Newman's orders displayed deliberate indifference to Roy's serious medical need." ( Id. at 9).

On remand, no viable issue is presented in this regard, because the complaint alleges only a single, narrow issue concerning delay in changing the plaintiff's catheter.[1] Following remand, the plaintiff was given several months to seek leave to amend his complaint. (Doc. 73 at 2). He never did so, leaving his original complaint as the operative pleading. As the defendants note, (Doc. 114 at 10 n.6), "[a]t the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with [Rule 15(a)]. A plaintiff may not amend [his] complaint through argument in a brief opposing summary judgment." Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Actually, the plaintiff does not argue in brief that any more extensive claim regarding delay in changing his catheter is part of this case. Nor does he cite to, or rely upon, the evidence of delay in changing his catheter on which the Eleventh Circuit relied. (Doc. 107 (relying on only the complaint and the plaintiff's declaration)).

II. Summary Judgment Procedure.

Summary judgment should be granted only if "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 party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id .; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

"If, however, the movant carries the initial summary judgment burden..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion....").

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort ...

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