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Brennan v. Thomas

United States District Court, M.D. Alabama, Northern Division

September 12, 2017

THOMAS G. BRENNAN, #263642, Plaintiff,
v.
KIM TOBIAS THOMAS, et al., Defendants.

          MEMORANDUM AND RULINGS

          TERRY F. MOORER, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff Thomas G. Brennan (“Brennan”) brings this action pursuant to 42 U.S.C. § 1983, claiming that, while he was an inmate of the Draper Correctional Facility (“Draper”) in Elmore, Alabama, medical providers were deliberately indifferent to his serious medical needs, and prison officials forced him to work beyond his physical abilities, and they failed to intervene to prevent the alleged violations of the Eighth Amendment and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Doc. No. 1-1 at 49.[1] Brennan clarified his claims and the defendants, as ordered by the court. Doc. Nos. 117, 118. Brennan names twelve defendants in his clarification, including the following defendants regarding his medical care: Corizon, LLC (“Corizon”) which provides medical services to Draper; DyJerlynn Copeland, M.D. (Dr. Copeland”); Michelle Sagers-Copeland, R.N. (“Sagers-Copeland”); Demetric Hicks, C.R.N.P. (“Hicks”); Rich Hallworth, former Chief Executive Officer of Corizon (“Hallworth”); and Stuart Campbell, former Chief Operations Officer of Corizon (“Campbell”) (collectively “Medical Defendants”). Doc. No. 118. Brennan names the following Alabama Department of Corrections (“ADOC”) officials during the time relevant to the complaint: Kim Thomas, former ADOC Commissioner (“Thomas”); Ruth Naglich, ADOC Associate Commissioner of Health (“Naglich”); Louis Boyd, former ADOC Warden (“Boyd”); Phyllis Billups, ADOC Warden (“Billups”); Larry Philyaw, ADOC Lieutenant (“Philyaw”); and Willie Jackson, ADOC Chief Steward (“Jackson”) (collectively “ADOC Defendants”). Id. Brennan sued the defendants in their individual and official capacities and listed only money damages in his clarification to the court. Doc. No. 118. Before his clarification in Doc. No. 118, Brennan informed the court that he received a “no-work profile” and “lay in” profile excusing him from work at Bullock, and he informed the court that all claims have been resolved except for the ADA and inadequate medical care and treatment claims. Doc. No. 116. Defendants state all equitable issues have been resolved, and they argue Brennan is not entitled to the monetary relief he seeks. Doc. No. 109.

         In accordance with orders of the court, the defendants filed answers, special reports, supplemental special reports, and supporting evidentiary material in response to Brennan's allegations. Doc. Nos. 4, 13, 17, 19, 21, 27, 32, 63, 66, 71, 74, 75, 89, 93, 98, 120. The court informed Brennan that the defendants' special reports may, at any time, be treated as a motion for summary judgment; the court explained the proper manner in which to respond to a motion for summary judgment; and the court directed Brennan to respond to the defendants' report. Doc. Nos. 37, 76. Brennan responded. Doc. Nos. 52, 53, 59, 60, 75, 80, 83, 84, 89, 122.

         Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties consented to a United States Magistrate Judge conducting all proceedings in this case and ordering the entry of final judgment. Doc. No. 49. This case is now pending before the court on the defendants' motions for summary judgment. Upon consideration of the motions, the plaintiff's response to the motions, and the evidentiary materials filed in support and in opposition to the motions, the court concludes that the defendants' motions for summary judgment are due to be granted.

         II. STANDARD OF REVIEW

         “The court shall grant summary judgment if the movant 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). “Summary judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no [dispute] as to any material fact and that the moving party is entitled to judgment as a matter of law.'” Greenberg v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to former Fed.R.Civ.P. 56 omitted; “issue” altered to “dispute” to reflect the stylistic change in the current rule). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [record, including pleadings, discovery materials and affidavits], which it believes demonstrate the absence of a genuine [dispute] of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (alterations added). The movant may meet this burden by presenting evidence indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. Id. at 322-24.

         The defendants have met their evidentiary burden and demonstrated the absence of any genuine dispute of material fact. Thus, the burden shifts to Brennan to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to the case exists. Celotex, 477 U.S. at 324; Fed.R.Civ.P. 56(e)(3) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [by citing to materials in the record including affidavits, relevant documents or other materials], the court may . . . grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it . . . .”); see also Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014) (court considers facts pled in a plaintiff's sworn complaint when considering his opposition to summary judgment”). A genuine dispute of material fact exists when the nonmoving party produces evidence that would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F.3d at 1263. The evidence must be admissible at trial, and if the nonmoving party's evidence “is merely colorable . . . or is not significantly probative . . . summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Fed.R.Civ.P. 56(e). “A mere ‘scintilla' of evidence supporting the opposing party's position will not suffice . . . .” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Conclusory allegations based on subjective beliefs are likewise insufficient to create a genuine dispute of material fact. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (per curiam). Only disputes involving material facts are relevant, and what is material is determined by the substantive law applicable to the case. Anderson, 477 U.S. at 248. To demonstrate a genuine dispute of material fact, the party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine [dispute] for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. Although factual inferences must be viewed in a light most favorable to the nonmoving party and pro se complaints are entitled to liberal interpretation by the court, a pro se litigant does not escape the burden of sufficiently establishing a genuine dispute of material fact. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Thus, a plaintiff's pro se status alone does not mandate this court's disregard of elementary principles of production and proof in a civil case. In this case, Brennan fails to demonstrate a requisite genuine dispute of material so as to preclude summary judgment on his claims against the defendants. See Matsushita, 475 U.S. at 587.

         III. SUMMARY OF MATERIAL FACTS

         Before his transfer to Draper on June 15, 2012, Brennan was an inmate at the St. Clair Correctional Facility (“St. Clair”). While at St. Clair, Brennan filed suit in the United States District Court for the Northern District of Alabama, alleging his Eighth Amendment rights were violated by a delay in medical diagnosis and treatment, denial of pain treatment and access to physical therapy, and failure of ADOC staff to intervene in his medical care. See Brennan v. Commissioner, Ala. Dep't Corr., 626 F. App'x 939, 941-45 (11th Cir. 2015).[2] Brennan's case in the Northern District is still pending. Brennan v. Thomas, 2:13-cv-00152-AKK (N.D. Ala.).

         Defendant Rich Hallworth was Chief Executive Officer of Corizon but is no longer employed by Corizon. Doc. No. 32-4, at 2. Corizon has contracts with numerous states, counties, and cities to provide health care to inmates. Id. at 3. Hallworth avers he did not oversee the day to day medical care of the inmates across the country, and he never visited Draper or the health care unit at Staton Correctional Facility (“Staton”) in Elmore County, Alabama. Id. at 2-3. Hallworth states he never had personal communications with Brennan and, if he received communication from him, it would have been forwarded to the appropriate personnel to handle the complaint. Id. at 3. Hallworth states he had no communication regarding Brennan's care and no knowledge or input regarding Brennan's health care. Id.

         Defendant Stuart Campbell was President and Chief Operating Officer of Corizon but is no longer employed by Corizon. Doc. No. 32-5, at 2. Campbell avers that he did not oversee the day to day medical care of the inmates across the country, and he never visited Draper or the health care unit at Staton. Id. at 2-3. Campbell states he never had personal communications with Brennan and, if he received communication from him, it would have been forwarded to the appropriate personnel to handle the complaint. Id. at 3. Campbell states he had no communication regarding Brennan's care and no knowledge or input regarding Brennan's health care. Id.

         Defendant Michelle Sagers-Copeland avers that she is a Registered Nurse (RN”) and employed by Corizon as the Health Services Administrator (“HSA”) at Staton, and that she administers the Health Care Unit. Doc. No. 32-3, at 2-3. Sagers-Copeland does not provide medical care to inmates and states she had no responsibility or control over the medical care Brennan received at Staton. Id. at 3. Sagers-Copeland states that as HSA, she “did not dictate to the medical providers what medical care would have been provided to or recommend or prescribed to Mr. Brennan.” Id. Sagers-Copeland states she never delayed or denied Brennan medical care, and, to her knowledge, Brennan received nursing care within appropriate standards. Id. at 3-4. Sagers-Copeland states that she and Corizon “employees had and have absolutely nothing to do with whether any particular inmate performs a particular job or works in any capacity whatsoever while incarcerated within the” ADOC. Doc. No. 71-1, at 3. She states that no Corizon employee gives work profiles to inmates at Staton or Elmore; instead “[t]he limited profiles may of course limit an inmate from certain work or all work depending on the nature of the limited profile given. However limited profiles are given and not no-work profiles.” Id. at 4. Sagers-Copeland states the limited profiles Brennan received from medical personnel were “deemed appropriate given Mr. Brennan's medical condition.” Id. The ADOC Office of Health Services policy entitled, “Medical Profiles” and dated August 2011, includes a table of guidelines for medical profiles, but “no-work” is not included as a medical profile. Doc. No. 74-4. The policy provides that the guidelines for profiles “are not intended to replace the prescribing authority or ultimate medical decision made by the on-site Provider.” Id. at 3.

         Defendant Demetric Hicks is a Certified Registered Nurse Practitioner (“CRNP”), and worked at Corizon during the time relevant to the complaint. Doc. No. 32-2, at 2. Hicks provided medical care to Brennan in 2013. Id. at 3.

         Defendant DyJerlynn Copeland avers she is a Medical Doctor who was employed as the Medical Director at Staton from September 8, 2010, through March 11, 2013. Doc. No. 32-1, at 2. Dr. Copeland provided care to Brennan while he was an inmate at Staton beginning in July 2012. Id. at 3.

         Defendant Kim Thomas was Commissioner of the ADOC. Doc. No. 13-1, at 2. Thomas avers he had no direct or indirect communication with Brennan, and if Thomas received any correspondence from Brennan about his health care, Thomas would have forwarded it to the appropriate health care providers. Id. at 3. Thomas states he has never been involved in Brennan's medical care or made any decision related to Brennan's medical care, or had any personal contact with any Corizon or ADOC employee regarding Brennan's medical treatment, or refused to provide necessary medication attention to Brennan. Id. at 3-4.

         Defendant Ruth Naglich was Associate Commissioner of Health Services for the ADOC. Doc. No. 13-6, at 2. Naglich avers she never had direct or indirect personal communications with Brennan regarding his health care, and if she received any mail about it, she would have forwarded it to his healthcare providers. Id. at 2-3. Naglich avers she never was involved in any medical care regarding Brennan, and all decisions regarding his care were made by Corizon and its employees. Id. at 3. Naglich submitted a copy of the ADOC Office of Health Services policy regarding medical profiles in effect on August 2011. Doc. No. 74-4. According to the policy, “assessment of the physical limitation or medical treatment that has facilitated the request for a ‘profile' must be documented in the health record in the physician progress notes.” Doc. No. 74-4, at 2.

         Defendant Louis Boyd was Warden at Draper. Doc. No. 13-2, at 2. Boyd avers he had no involvement in Brennan's medical care and took no part in any decision related to health care issues for Brennan. Id. at 3. Boyd states that all medical care decisions are made by Corizon employees, and Boyd had no contact or discussion with them regarding Brennan. Id. Boyd states he never refused to provide Brennan medical attention for his medical conditions. Id. Boyd further avers that he had no recollection of receiving complaints from Brennan, and that it was common practice for the Warden to direct inmate complaints to the Captain of Security for disposition, as Brennan alleged Boyd did. Doc. No. 63-2, at 1. Boyd denies violating Brennan's federal rights. Id. at 1-2.

         Defendant Larry Philyaw was a Correctional Officer at Draper when Brennan was there. Doc. No. 13-3, at 2. Philyaw states he was never involved in Brennan's medical treatment and never participated in any decision related to Brennan's health care. Id. at 3. Philyaw states Corizon employees made all the decisions related to Brennan's health care, and Philyaw had no contact or discussion with any Corizon employee regarding Brennan's medical treatment or requests. Id. Philyaw states he never refused to provide Brennan medical attention for his medical conditions. Id. Philyaw also avers that he was unaware of Brennan's physical condition, his job assignment, or his ability to perform particular duties. Doc. No. 63-4, at 1. Philyaw states he does not oversee inmates on their jobs or function as a member of the job assignment board. Id. Philyaw states that Brennan never expressed to Philyaw concerns about his job assignment or conditions that would prevent Brennan from doing his job. Id. at 1-2. Philyaw denies violating Brennan's federal rights. Id. at 2.

         Defendant Willie Jackson was employed by the ADOC as Steward III at Draper. Doc. No. 13-4, at 2. Jackson states he was never involved in Brennan's medical treatment and never participated in any decision related to Brennan's health care. Id. at 3. Jackson states Corizon employees made all the decisions related to Brennan's health care, and Jackson had no contact or discussion with any Corizon employee regarding Brennan's medical treatment or requests. Id. Jackson states he never refused to provide Brennan medical attention for his medical conditions. Id. After Brennan was transferred to Draper, he was assigned to kitchen duty on June 20, 2012, as a dining room worker, where he stayed until December 18, 2012. Doc. No. 74-1, at 4-5. Jackson avers that he never told Brennan he did not care how much pain Brennan was in; or that Brennan had to do his job despite how much damage it would cause Brennan; or that Jackson would not send Brennan back to his room. Doc. No. 63-3, at 1. Jackson avers that if an inmate has a work profile, the kitchen staff follows it, and if an inmate says he has a medical concern but no work profile, Jackson gives the inmate time off to obtain a profile. Id. Jackson avers that dining room workers typically “are able to sit down, while waiting for inmates to leave the tables so they can be cleaned. The approximate amount of time Brennan would have performed that duty is between 11/2 hours and 2 hours per day.” Doc. No. 74-2, at 1. Jackson further avers that inmates who are cleared for kitchen duty are expected to perform their job, and if the inmate has concerns about the work, the inmate has permission to request a medical profile limiting their work. Id. at 2. Jackson states he does not recall Brennan requesting permission from him to get a limited profile, or showing Jackson a profile that would have prevented him from performing his assigned job. Id.

         Defendant Phyllis Billups was Warden III at Draper until June 2013. Doc. No. 13-5, at 2; Doc. No. 74-5, at 1. Billups states she was never involved in Brennan's medical treatment and never participated in any decision related to Brennan's health care. Doc No. 13-5, at 3. Billups states Corizon employees made all the decisions related to Brennan's health care, and she had no contact or discussion with any Corizon employee regarding Brennan's medical treatment or requests. Id. Billups states she never refused to provide Brennan medical attention for his medical conditions. Id. Billups avers she never instructed Corizon medical staff to deny Brennan any type of medical treatment or medical limited profile. Doc. No. 74-5, at 1. Billups states she does not play a role in medical assessment of any inmate and has no authority to do so. Id. Billups avers that, according to ADOC policy, ADOC employees must “respect the decisions made by the medical provider when, for example, an inmate is issued a medical profile or not medical cleared for a particular job or housing assignment.” Id. Billups denies she played any role in getting or denying Brennan's medical profiles, and Billups denies personally refusing to accommodate any profile Brennan had or directing any staff members not to accommodate his medical profile. Id. at 2. Billups further avers she does not recall assigning Brennan a job during the job board while at Draper. Doc. No. 63-1, at 2. Billups states that whenever she conducted job board, she was made aware of an inmate medical profile before assigning a job, and she would make accommodations for the profile. Id. Billups states that, for an inmate with Brennan's profile who was assigned to the kitchen, the inmate “would have only been assigned to wipe tables. This does not require prolonged standing or prolonged walking. Also the name of any inmates that were assigned to the kitchen was sent to medical for clearance to work there.” Id.

         When Brennan arrived at Draper on June 15, 2012, he was taking Baclofen, [3] Norco, [4]and Ibuprofen[5] for pain, and he had fifteen days of pain medication remaining. Copeland Aff., Doc. No. 32-1, at 3, 28. Brennan sent a request for medical services on June 15 and June 21, 2012. Doc. No. 1-1, [6] at 50. On June 23, 2012, Nurse Lowery prescribed Ibuprofen for five days. Doc. No. 32-1, at 28. On June 25, 2012, Brennan was treated for an injured elbow and scheduled for July 3, 2012, for review of his medications. Doc. No. 1-1, at 50-53; Doc. No. 32-1, at 101. On June 27, 2012, Brennan submitted a medical grievance to Defendant Sagers-Copeland, and on June 29, 2012, Brennan sent a letter to Corizon, stating his pain medication was about to expire, it needed to be renewed, and that his previous treating physician, Dr. Francavilla, told Brennan he would be on the pain medications for the rest of his life. Doc. No. 1-1, at 54-55.

         On June 30, 2012, the prescriptions for Brennan's medications ran out. Brennan states he was in severe pain and experienced withdrawal symptoms when Dr. Copeland stopped the Norco “cold turkey.” Doc. No. 1-1, at 14, 24. On July 1, 2012, Brennan wrote to Defendant Warden Boyd, stating that his previous doctor prescribed medication that had expired, stating that Brennan was in extreme pain and experiencing some symptoms of withdrawal, and asking Boyd if he could use his authority to resolve Brennan's problem. Doc. No. 1-1, at 57. Brennan also submitted a request for medical care, stating his injury was “showing itself, ” and that “to say I'm in pain would be an understatement.” Doc. No. 1-1, at 58. Brennan states he also suffered withdrawal symptoms such as muscle spasms, nausea, hot and cold flashes, and insomnia. Doc No. 1-1, at 14, 84-86.

         On July 3, 2012, Brennan saw Dr. Copeland, who assessed Brennan with “chronic pain . . . cervical & lumbar issue.” Doc. No. 32-1, at 10. Dr. Copeland's notes of the visit indicate “Rx meds accordingly” and follow up as needed. Id. Brennan states that when he asked for his medications to be renewed, Dr. Copeland said he would not receive those “freeworld” medicines in “my camp”; that those strong medicines were used only “if you have broken bone, cancer, or had surgery”; and that “she would have think about” renewing them for him. Doc. No. 1-1, at 12-14, 58. Brennan states that Dr. Copeland questioned Brennan's previous doctor, stating he “caved in, ” and that she thought Brennan's chronic pain was all in Brennan's mind. Doc. No. 1-1, at 12-13, 25, 58, 60-61. According to Brennan, he told Dr. Copeland tdhat Lowery mentioned prescribing Ultram[7] instead of Norco, and Brennan said Ultram did not work as well as Norco for him; he said previously the protocol he experienced was to wean him off a narcotic and introduce Ultram, and if that was not followed, Brennan would be in pain. Doc. No. 1-1, at 55. On July 3, 2012, Brennan wrote a letter to Defendant Hallworth about Dr. Copeland's treatment. Doc. No. 1-1, at 63-65.

         On July 11, 2012, Dr. Copeland prescribed Brennan Baclofen 20 mg twice a day for sixty days and Ultram 50 mg twice a day for thirty days, and he began receiving them on July 12, 2012. Doc. No. 32-1, at 4, 29. On July 14, 2012, Brennan wrote a note that the prescribed drugs were inadequate and that he would be in pain all day and mostly all night, and that he would let it go on for a short time and then write Hallworth Doc. No. 1-1, at 58. The Ultram ended on August 12, 2012. The Baclofen ended on September 12, 2012.

         Brennan wrote a note that on August 6, 2012, Brennan was called to Defendant Warden Billups's office, where they called Sagers-Copeland to discuss Brennan's grievance to Hallworth about Brennan's meeting with Dr. Copeland for pain medications. Doc. No. 1-1, at 66. According to Brennan, Sagers-Copeland asked who else was in the room when he and Dr. Copeland spoke. Brennan said Lowery and Ms. Flowers, a nurse. When Sagers-Copeland asked if Dr. Copeland prescribed Ultram for Brennan, he cut her off and said Ultram was not working and he needed stronger medicine and a higher dose of Baclofen. The note indicated that Sagers-Copeland said she would talk with people at corporate headquarters and get back to him. Brennan wrote that he was “basically in pain and suffering all day long, ” and that “she also denied me an egg crate mat. Warden Billups stated I couldn't have one.” Id. Afterward, Brennan wrote a grievance to Sagers-Copeland, stating he was uncomfortable talking with her while the warden was present. Sagers-Copeland responded that the warden was entitled to be there. Doc. No. 1-1, at 71.

         On August 8, 2012, Brennan asked Dr. Copeland to renew the Ultram scheduled to end on August 12, 2012, and to raise the doses of Ultram and Baclofen. Doc. No. 1-1, at 59. The Ultram ended without renewal on August 12, 2012. On August 16, 2012, Brennan submitted a sick call, stating Lowery wanted to see him for chronic pain care, and Brennan noted on September 10, 2012, that he still had not received a response. Doc. No. 1-1, at 73. Brennan wrote a note on August 20, 2012, that without the pain medications, “I'll be in pain and suffering now 24/7.” Doc. No. 1-1, at 59. He submitted a sick call request on August 21, 2012, complaining about neck and back pain. Doc. No. 1-1, at 74. Brennan wrote a letter to Hallworth on August 26, 2012, describing his pain, his previous ...


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