United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION AND ORDER
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
Lisa McKinley Tullis (“Tullis”) brings this
action pursuant to 42 U.S.C. § 1983, claiming that while
she was an inmate of the Tutwiler Correctional Facility
(“Tutwiler”) in Wetumpka, Alabama, medical
providers were deliberately indifferent to her serious
medical needs. Tullis filed an amended complaint that
supersedes the claims in her original complaint, as ordered
by the court. Doc. Nos. 9, 15, 16, 17, 18. Tullis named three
defendants in her amended complaint: Nurse Carter, Nurse
Jackson, and an unnamed Pharmacist. Doc. No. 16, at 2. Tullis
did not clarify if she was suing defendants in their
individual or official capacities. She sought compensation
for “pain suffering, mental anguish, emotional
stress.” Id. at 4.
court allowed the case to go forward against Defendants
Corizon, Inc., Carter, and Jackson. Doc. No. 18. In
accordance with orders of the court, Defendants Corizon
(“Corizon”), LLC, Vicky Carter
(“Carter”), and Lynda Jackson
(“Jackson”) filed an answer, special reports,
supplemental special report, and supporting evidentiary
material in response to Tullis's allegations. Doc. Nos.
27, 30, 32.
court informed Tullis that the defendants' special
reports would, at some time, be treated as a dispositive
motion; the court explained the proper manner in which to
respond to a motion for summary judgment; and the court
directed Tullis to respond to the defendants' reports.
Doc. No. 33. Tullis responded. Doc. No. 34.
case is now pending before the court on the defendants'
motion for summary judgment. Upon consideration of the
motion, the plaintiff's response to it, and the
evidentiary materials filed in support and in opposition to
the motion, the court concludes that the defendants'
motion for summary judgment is due to be granted.
STANDARD OF REVIEW
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.
defendants have met their evidentiary burden and demonstrated
the absence of any genuine dispute of material fact. Thus,
the burden shifts to Tullis 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).
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, Tullis fails to demonstrate a requisite
genuine dispute of material so as to preclude summary
judgment on her claims against the defendants. See
Matsushita, 475 U.S. at 587.
SUMMARY OF MATERIAL FACTS
is an inmate of the Alabama Department of Corrections
(“ADOC”) at Tutwiler and was incarcerated at
Tutwiler during the time alleged in the complaint. Defendant
Jackson is a registered nurse licensed in the State of
Alabama and employed by Corizon as the Director of Nursing at
Tutweiler. Doc. No. 32-1 at 2. Defendant Corizon holds a
contract with the ADOC to provide health care to inmates in
its facilities. Id. at 2-3. Defendant Carter is a
licensed practical nurse in the State of Alabama and employed
by Corizon as an LPN at Tutwiler. Doc. No. 32-2, at 1.
Gams is a medical doctor licensed in the state of Alabama and
employed by Corizon at Tutwiler. Doc. No. 30-1, at 2. He is
not a defendant in this case, but he submitted an affidavit
in support of the defendant's motion for summary
judgment. On June 13, 2015, as part of the annual vaccination
plan, defendant Carter administered a tuberculosis
(“TB”) skin test to Tullis. Id. at 3.
Dr. Gams explains that the TB skin test determines whether a
person has been exposed to TB. Id. The test consists
of putting a small amount of TB protein (antigens) under the
top layer of skin on the inner forearm. Id. If the
person has been exposed to TB, the skin reacts by developing
a firm red bump at the site within two days. Id. The
TB antigens used in the test are called “purified
protein derivative (PPD).” Id. at 4. The TB
test cannot tell how long someone has been infected with TB
or if the infection is inactive or transmittable.
Id. Some people may react to the TB skin test even
if they are not infected with TB. Id. Dr. Gams
states, “[i]n general, there is no risk associated with
repeated tuberculin skin test placements.” Id.
results were read on June 15, 2015, and showed a bump of ten
millimeters. Id. A bump of ten or more millimeters
is considered a positive reaction in residents and employees
of high risk congregate settings. Id. Based on the
positive reading, a follow-up TB skin test was performed on
June 30, 2015. Id. at 5. The results were negative,
but the results inadvertently were not entered into the
annual vaccination record. Id. Because the follow-up
test on June 30, 2015, was not documented, Tullis had a third
TB skin test on October 12, 2015. Id. The result
showed a bump of five millimeters. This indicates no further
treatment or follow up is needed. Id. Dr. Gams
avers, “[i]t is unfortunate that a false positive skin
test was read of Ms. Tullis for the first TB test taken on
June 13, 2015. However, false positive readings for TB are
not unusual and the false reading did not result in any
treatment of Ms. Tullis or the application of any
medications.” Id. He avers that because ADOC
inmates are confined, Corizon takes seriously its testing and
treatment of inmates for TB. Id. Dr. Gams states
inmates are ...