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Edwards v. Wheat

United States District Court, N.D. Alabama, Middle Division

January 14, 2015

MR. WHEAT, et. al., Defendants

Dexter K. Edwards, Plaintiff, Pro se, Springville, AL.



This is an action commenced pursuant to 42 U.S.C. § 1983 by Dexter K. Edwards, a prisoner proceeding pro se. The plaintiff is presently incarcerated at the St. Clair Correctional Facility in Springville, Alabama. He alleges rights, privileges, or immunities afforded him under the Constitution or laws of the United States were abridged during his incarceration there. The remaining defendants in this action are Nurse Jennifer Webb, Nurse Kelly Phillips, and Dr. David Pavlakovic.[1] The gravamen of the complaint is that on October 20, 2012, the two nurse defendants performed an unauthorized medical procedure on the plaintiff by removing skin from a wound on his foot with a scalpel, causing him great pain, and that thereafter the nurse defendants and Dr. Pavlakovic denied the plaintiff adequate medical care. (Doc. 1). The plaintiff seeks compensatory damages and declaratory relief. (Id.). In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(2), the complaint was referred to the undersigned magistrate judge for a preliminary report and recommendation. See McCarthy v. Bronson, 500 U.S. 136 (1991).

I. Procedural History

On February 27, 2014, the previously assigned magistrate judge entered an order for special report directing copies of the complaint to be forwarded to the defendants and requesting that the defendants file a special report addressing the factual allegations contained in the complaint. (Doc. 10). The defendants were advised their special report could be submitted under oath or accompanied by affidavits and, if appropriate, would be considered as a motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. By the same order, the plaintiff was advised that after he received a copy of the defendants' special report, he should file affidavits if he wished to rebut the matters presented in the defendants' special report. The plaintiff was further advised such affidavits should be filed within twenty days after receiving a copy of the defendants' special report.

On May 9, 2014, the defendants filed a special report accompanied by affidavits and portions of the plaintiff's inmate medical record. (Doc. 19). The undersigned construed the defendants' special report as a motion for summary judgment and notified the plaintiff he had twenty days to respond to the motion by filing affidavits or other material. (Doc. 20). The undersigned also advised the plaintiff of the consequences of any default or failure to comply with Rule 56 of the Federal Rules of Civil Procedure. See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). The plaintiff filed a response to the defendants' motion for summary judgment on July 29, 2014. (Doc. 21).

II. Summary Judgment Standard

Summary judgment may be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. In making that assessment, a court must view the evidence in a light most favorable to the non-moving party and must draw all reasonable inferences against the moving party. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The burden of proof is on the moving party to establish his prima facie entitlement to summary judgment by showing the absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir. 1991). Once that initial burden has been carried, the non-moving party may not merely rest on his pleadings, but must come forward with evidence supporting each essential element of his claim. See Celotex, supra; Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Barfield v. Brierton, 883 F.2d 923 (11th Cir. 1989). Unless the plaintiff, who carries the ultimate burden of proving his action, is able to show some evidence with respect to each element of his claim, all other issues of fact become immaterial, and the moving party is entitled to judgment as a matter of law. See Celotex, supra; Bennett v. Parker, 898 F.2d 1530 (11th Cir. 1990). As the Eleventh Circuit has explained:

Facts in dispute cease to be " material" facts when the plaintiff fails to establish a prima facie case. " In such a situation, there can be 'no genuine issue as to any material fact, ' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Thus, under such circumstances, the public official is entitled to judgment as a matter of law, because the plaintiff has failed to carry the burden of proof. This rule facilitates the dismissal of factually unsupported claims prior to trial.

898 F.2d at 1532 (internal citation omitted).

III. Summary Judgment Facts

Applying the above standard, the following facts are undisputed or, if disputed, are taken in a light most favorable to the plaintiff:[2]

The plaintiff is an inmate at the St. Clair Correctional Facility. ( See Doc. 1). Dr. Pavlakovic has been employed as the medical director there since September 13, 2012. (Doc. 19-1 at 1). Nurse Webb has been a registered nurse for ten years. (Doc. 19-8 at 1). She worked as a registered nurse at the St. Clair Correctional Facility from September of 2011 until February of 2013. (Id.). Nurse Phillips has been a registered nurse for over twenty years. (Doc. 19-7 at 1). She began working as a registered nurse at the St. Clair Correctional Facility shortly before the incident in question. (Id.).

In early 2012, the plaintiff developed a significant stasis ulcer on his lower right leg.[3] (COR 192). The plaintiff saw a specialist outside of the prison system in February of 2012 regarding slow-healing foot and ankle ulcers. (Doc. 19-1 at 5). In March of 2012, the plaintiff had an arteriorgram at the specialist's recommendation. (Id.). On March 21, 2012, during an evaluation by medical staff at the St. Clair Correctional Facility, the plaintiff reported an ulcer on his right foot. (Id.). Between that time and Dr. Pavlakovic's arrival in September of 2012, the plaintiff saw various medical providers, who treated and monitored his stasis ulcer in an attempt to prevent infection and ensure his wound healed properly. (Doc. 19-1 at 5-6). The plaintiff's medical records reflect he saw Dr. Talley, a physician who preceded Dr. Pavlakovic at St. Clair Correctional Facility, approximately fifteen times for treatment of the stasis ulcer on his right leg and that he was ordered to report to the health care clinic several times each day for wound assessments. (Doc. 19-1 at 7). During the daily wound assessments, members of the nursing staff cleaned the wound with an antibacterial skin cleaner, removed any loose debris from the wound, then applied clean dressing to the wound. (Doc. 19-8 at 3-4).

Dr. Pavlakovic first saw the plaintiff on September 14, 2012. (Doc. 19-1 at 7). The plaintiff had a prescription for the pain reliever Norco, which Dr. Pavlakovic refilled for thirty days. (Doc. 19-1 at 7; COR178-179). The plaintiff submitted sick call requests on September 18, 2012 and September 24, 2012, complaining about the pain in his foot and requesting an increase in the dosage of pain reliever. (Doc. 19-1 at 7; COR 45, 52). Dr. Pavlakovic examined the plaintiff on September 27, 2012. (Doc. 19-1 at 7). He did not notice any signs of infection or improper treatment, but because of the plaintiff's complaints of continuing pain, Dr. Pavlakovic temporarily increased the plaintiff's Norco dosage. (Id. at 8; COR 180). Dr. Pavlakovic saw the plaintiff again during a chronic care clinic on October 8, 2012. (Doc. 19-1 at 8; COR 57). Dr. Pavlakovic noted the plaintiff's wound was healing very slowly but saw no signs of infection. (Id.).

On October 20, 2012, the date of the incident in question, the plaintiff saw Nurse Webb and Nurse Phillips for a daily wound assessment.[4] The nurse defendants evaluated the plaintiff's ulcer and noticed the presence of debris in the soft portion of the wound. (Doc. 19-7 at 3-4; Doc. 19-8 at 4). Because of concerns about infection and the ability to control the amount of necrotic tissue, they determined some of the tissue should be removed. (Id.).

The plaintiff claims Nurse Webb and Nurse Phillips used a scalpel[5] to " cut some skin off [his] foot." [6] (Doc. 1 at 5). The resulting wound was deep and painful such that the plaintiff was unable to sleep or walk. (Id.). Neither of the nurse defendants referred the plaintiff to the infirmary doctor or provided him with any type of pain relief for two weeks. (Id.).

The plaintiff saw Dr. Pavlakovic on October 22, 2012. (Doc. 19-1 at 8). The plaintiff complained the nursing staff had used a scalpel to cut the wound on his foot. (Id.). Dr. Pavlakovic examined the plaintiff's foot and saw no signs any new tissue had been removed from the wound or of the presence of any new injury to the wound. (Id.). Members of the nursing staff are authorized to use medical utensils to remove debris from patients' wounds, and Dr. Pavlakovic informed the plaintiff of this. (Id.). The plaintiff complained of pain. (Doc. 1 at 5; Doc. 19-1 at 9). Dr. Pavlakovic confirmed the plaintiff's prescription for Norco (Doc. 19-1 at 9) but refused to give the plaintiff anything new for pain.[7] (Doc. 1 at 5).

The medical records reflect the plaintiff continued to receive Norco three times per day throughout the months of October and November of 2012. (COR 297-301).[8]

On November 3, 2012, the plaintiff filed a grievance complaining Nurse Webb cut him with a scalpel when she was removing some skin from his foot on October 20, 2012. ( See COR 381). The plaintiff complained Nurse Webb was not authorized to use a scalpel and requested something for his foot pain. (Id.). On November 12, 2012, Nurse Webb responded that the use of the scalpel to remove necrotic, dead tissue was appropriate. (Id.). The plaintiff did not file an appeal of the grievance.[9] (Doc. 19 at 7).

The plaintiff was seen and treated by Dr. Pavlakovic again on November 7, 2012, December 10, 2012, January 17, 2013, February 4, 2013, February 18, 2013, March 18, 2013, April 15, 2013, May 30, 2013, June 28, 2013, July 29, 2013 September 6, 2013, November 20, 2013, and February 2, 2014, at which point the plaintiff's wound had healed sufficiently and required no more treatment. (Doc. 19-1 at 9). During this period of time, the plaintiff was seen by the nursing staff at treatment call on more than seventy occasions. (Doc. 19-7 at 5).

Inmates are educated about the grievance procedure at the St. Clair Correctional Facility. (Doc. 19-1 at 3-4). The grievance procedure is initiated when an inmate submits a medical grievance form to the Health Services Administrator (" HSA") through the institutional mail system. (Doc. 19-1 at 4). Medical grievance forms are available from correctional officers. (Id.). Inmates are instructed to place completed medical grievance forms in sick call boxes located throughout the facility. (Id.). The HSA reviews grievances daily, provides written responses at the bottom of forms within five (5) days, and returns copies of completed forms to inmates. (Id. at 4-5). Below the portion of the form designated for the HSA's response, the following notation appears:

If you wish to appeal a grievance response you may file a Grievance Appeal. Return the completed form to the attention of the Health Services Administrator. You may place the form in the sick call box or give it to the segregation sick call nurse on rounds.


IV. Discussion

A. Exhaustion of Administrative Remedies

The defendants contend the plaintiff's claims are due to be dismissed because he failed to exhaust his administrative remedies.[10]

In 1996, Congress enacted the Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, 110 Stat. 1321 (1996) (" PLRA"), in an attempt to control the flood of prisoner lawsuits. Title 42 U.S.C. § 1997e(a), as amended by the PLRA, provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted.

In Alexander v. Hawk, the Eleventh Circuit discussed the amendment of 42 U.S.C. § 1997e by the PLRA, concluding " Congress now has mandated exhaustion" and " exhaustion is now a pre-condition to suit [by a prisoner]." 159 F.3d 1321, 1325-26 (11th Cir. 1998). The Eleventh Circuit has also made it clear a district court may not waive this exhaustion requirement. The United States Supreme Court, interpreting the intent of Congress, has concluded exhaustion of administrative remedies is now mandatory even if the procedures to do so do not meet certain " minimum acceptable standards" of fairness and effectiveness and that courts cannot excuse exhaustion even when it would be " appropriate and in the interest of justice." Booth v. Churner, 532 U.S. 731, 740 n.5 (2001).

The plaintiff's allegations that the defendants were deliberately indifferent to his serious medical needs concern the conditions under which he was confined at the St. Clair Correctional Facility. As stated, the medical staff at the facility maintain a grievance procedure for inmates to file complaints regarding medical treatment. (Doc. 19-1 at 3-5). The record reflects the plaintiff filed a grievance on November 3, 2012 and received a response on November 12, 2012. ( See COR 381). However, according to the defendants, the plaintiff did not appeal his grievance. (Doc. 19 at 7). The plaintiff does not dispute this. ( See Doc. 21).

Moreover, even if the plaintiff eventually appealed his grievance, an inmate must exhaust his administrative remedies before pursuing a § 1983 lawsuit. Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir.2000). In this case, the plaintiff could not have done so, as he appears to have prepared his complaint on November 11, 2013 and commenced this action on November 13, 2012. (See Doc. 1 at 7). Therefore, the plaintiff failed to exhaust his administrative remedies before commencing this action, and his claims are due to be dismissed without prejudice pursuant to 42 U.S.C. § 1997e(a).

B. Eighth Amendment -- Deliberate Indifference

Even if the plaintiff had exhausted his administrative remedies, his claims would still be due to be dismissed because he has failed to show the defendants were deliberately indifferent to his serious medical needs.

The United States Supreme Court has held it is only deliberate indifference to serious medical needs that is actionable under 42 U.S.C. § 1983. See Estelle v. Gamble, 429 U.S. 97 (1976). Indeed, the conduct of prison officials must run counter to evolving standards of decency or involve the unnecessary and wanton infliction of pain to be actionable under § 1983. See Bass v. Sullivan, 550 F.2d 229 (5th Cir. 1977) . Mere negligence is insufficient to support a constitutional claim. See Fielder v. Brossard, 590 F.2d 105 (5th Cir. 1979). Moreover, neither an accidental or inadvertent failure to provide medical care, nor the negligent diagnosis or treatment of a medical condition constitutes a wrong under the Eighth Amendment. See Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980). Additionally, " [m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. Finally, a mere difference of opinion between an inmate and the institution's medical staff as to treatment and diagnosis alone will not give rise to a cause of action under the Eighth Amendment. See Smart v. Villar, 547 F.2d 112 (10th Cir. 1976); see also Estelle, 429 U.S. at 106-08.

Deliberate indifference can be shown in a variety of ways. As the Eleventh Circuit Court of Appeals noted:

Our cases have consistently held that knowledge of the need for medical care and an intentional refusal to provide that care constitutes deliberate indifference. Medical treatment that is " so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness" constitutes deliberate indifference. Additionally, when the need for medical treatment is obvious, medical care that is so cursory as to amount to no treatment at all may constitute deliberate indifference.

Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995) (internal citations omitted).

1. Treatment of Wound on October 20, 2012

Viewing the facts in a light most favorable to the plaintiff, the plaintiff has not shown Nurse Webb or Nurse Phillips was deliberately indifferent to his serious medical needs when they used a scalpel to remove dead and necrotic tissue from the wound on his foot. Both nurses explained they did not dig or push the scalpel into his wound but simply used the dull end of a sterilized scalpel to lift debris and remnants of loose necrotic tissue away from the wound. (Docs. 19-8 at 4; 19-7at 4). It is undisputed such actions were appropriate and not beyond the scope of the nurses' duties. (Doc. 19-1 at 8-9).

Although the plaintiff believes his skin was removed and implies the nurse defendants' actions caused a deep and painful hole in his foot, the medical evidence establishes the plaintiff had been experiencing pain because of the wound in his foot for months prior. Nurse Phillips states she and Nurse Webb did not cut any living tissue from the wound[11] and made every effort to minimize discomfort to the plaintiff. (Doc. 19-7 at 4).

That the plaintiff disagrees with the efficacy of the treatment or would have preferred a different course of treatment does not state a constitutional claim. " [A] simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis and course of treatment [does not] support a claim of cruel and unusual punishment." Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). Moreover, there is no evidence the treatment received by the plaintiff was " so grossly incompetent, inadequate, or excessive as to shock the conscience." Adams, 61 F.3d at 1544-45 (whether governmental actors " should have employed additional diagnostic techniques or forms of treatment 'is a classic example of a matter for medical judgment' and therefore not an appropriate basis for grounding liability under the Eighth Amendment") (quoting Estelle, 429 U.S. at 107). The Eleventh Circuit Court of Appeals has recognized that " when a prison inmate has received medical care, courts hesitate to find an Eighth Amendment violation." Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989).

In this case, even assuming the nurse defendants caused the plaintiff pain by removing a portion of his skin while attempting to remove debris and necrotic tissue from his wound and even if such action could constitute medical malpractice, that action would not rise to the level of a constitutional violation.

2. Treatment Following October 20, 2012

The plaintiff also complains he went without pain medication for two weeks following the October 20, 2012 incident. (Doc. 21 at 3). Although the plaintiff refers to his inmate medical record to support his contention ( id.), that record refutes the plaintiff's contention. The record establishes not only that the plaintiff was prescribed a pain reliever for the months of October and November of 2012, but also that the plaintiff reported to pill call at 4:00 A.M., 12:00 P.M., and 6:30 P.M. every day during that period. (COR 297-301).

To the extent the plaintiff claims the defendants denied him adequate medical care after the October 20, 2012 incident (Doc. 1 at 5-6), his claim is not supported by his inmate medical record, which establishes the plaintiff was consistently seen and treated for the wound on his foot. That the wound did not heal as quickly as the plaintiff would like does not mean the treatment he received was constitutionally deficient. It is undisputed the plaintiff suffered from several health conditions that not only made him more likely to suffer from ulcers on his extremities but also made ulcers more difficult to heal. (Doc. 19-1 at 6-7, 10). In this instance, the evidence does not show the defendants acted deliberately indifferent towards the plaintiff's medical condition.

It is important to note that in his initial complaint the plaintiff complains only of the actions of the two nurse defendants on October 20, 2012 and their and Dr. Pavlakovic's alleged failure to treat the resulting injury. In his response to the defendants' motion for summary judgment, the plaintiff appears to attempt to argue the defendants' treatment of his leg and foot ulcers in general over the span of months evinced deliberate indifference to his serious medical needs. (Doc. 21). Not only are these assertions beyond the scope of the initial complaint, but also they are refuted by the record.

There is no evidence the defendants ever refused to treat the plaintiff or were otherwise deliberately indifferent to his medical condition. Neither is there evidence the treatment the defendants provided the plaintiff was " so grossly incompetent, inadequate, or excessive as to shock the conscience." Adams, 61 F.3d at 1544. Accordingly, even if the plaintiff had exhausted his administrative remedies, the defendants' motion for summary judgment as to the plaintiff's deliberate indifference claims would be due to be granted and the claims due to be dismissed.

VI. Recommendation

For the foregoing reasons, the undersigned RECOMMENDS that this action be DISMISSED WITHOUT PREJUDICE pursuant to § 1997e due to the plaintiff's failure to exhaust his administrative remedies. Further, even if the plaintiff had exhausted his administrative remedies, the undersigned would recommended the plaintiff's Eighth Amendment claims against the defendants be dismissed because the plaintiff has failed to show the defendants were deliberately indifferent to his serious medical needs.

Finally, to the extent the plaintiff is attempting to raise state law claims of medical malpractice or negligence, the magistrate judge RECOMMENDS that the court decline to exercise supplemental jurisdiction, and that those claims be DISMISSED WITHOUT PREJUDICE, pursuant to 28 U.S.C. § 1367(c)(3).[12]

VII. Notice of Right to Object

Any party who objects to this report and recommendation must, within fourteen (14) days of the date on which it is entered, file specific written objections with the clerk of this court. Any objections to the failure of the magistrate judge to address any contention raised in the petition also must be included. Failure to do so will bar any later challenge or review of the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982) (en banc). In order to challenge the findings of the magistrate judge, a party must file with the clerk of the court written objections which shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. A copy of the objections must be served upon all other parties to the action.

Upon receipt of objections meeting the specificity requirement set out above, a United States District Judge shall make a de novo determination of those portions of the report, proposed findings, or recommendation to which objection is made and may accept, reject, or modify in whole or in part, the findings or recommendations made by the magistrate judge. The district judge, however, need conduct a hearing only in his discretion or if required by law, and may consider the record developed before the magistrate judge, making his own determination on the basis of that record. The district judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Objections not meeting the specificity requirement set out above will not be considered by a district judge.

A party may not appeal a magistrate judge's recommendation directly to the United States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final judgment entered by or at the direction of a district judge.

The Clerk is DIRECTED to serve a copy of this report and recommendation upon the plaintiff and upon counsel for the defendants.

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