United States District Court, N.D. Alabama, Southern Division
THOMAS G. BRENNAN, Plaintiff,
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, et al., Defendants.
K. KALLON UNITED STATES DISTRICT JUDGE
magistrate judge filed a report on February 12, 2018,
recommending the defendants' special reports be treated
as motions for summary judgment and further recommending that
the motions be granted. Doc. 76. The parties were advised of
their right to file specific written objections within
fourteen days. Id. at 80. The magistrate judge
granted the plaintiff extensions to file his objections and
afforded him until May 1, 2018, to do so. Docs. 78; 80. The
plaintiff has filed objections which primarily repeat the
same facts and legal arguments he previously submitted to the
court. Doc. 81.
Certified Registered Nurse Practitioner Anissa
extent the plaintiff's objections concerning Anissa
Thomas are not repetitive, he argues Dr. William Talley
cannot testify about Thomas's “acts, omissions, and
conduct” because Dr. Talley was in the examining room
for a total of three minutes during only one of the many
consultations the plaintiff had with Thomas. Id. at
20. But Dr. Talley is not offering testimony about
Thomas' attitude or tone of voice in her interactions
with the plaintiff. Instead, Dr. Talley's opinion
concerning Thomas's ability to diagnosis and treat the
plaintiff is based on his knowledge of the skills she
possesses as Certified Registered Nurse Practitioner and his
review of the medical records. Doc. 45-1 at 1-18. As a
physician, Dr. Talley is qualified to testify to such
plaintiff also argues that Thomas displayed a
“pattern” of deliberately indifferent behavior
toward him. Doc. 81 at 12. He reports that prior to his
transfer to St. Clair Correctional Facility, Dr. Robbins at
Kilby Correctional Facility prescribed him Mobic, Robaxin,
and Tylenol, and the nurse practitioners at that facility
renewed the prescriptions every three months for a year and a
half. Id. In September 2010, sometime after his
transfer to St. Clair, the plaintiff requested renewal of
these medications. Id. Thomas refused to renew the
prescriptions, told the plaintiff he no longer needed them,
and dismissed him. Id. Thomas also denied the
plaintiff new orthopedic shoes even though the
plaintiff's shoes were worn “slick, ” and
stated that she would only replace the shoes when the threads
were showing. Id. The plaintiff states these
additional incidents show that “for some reason Thomas
was not ever going to help” him. Id. This
argument is speculative and ignores the undisputed assistance
Thomas provided in connection with the claims actually at
issue in this case.
the plaintiff argues that the magistrate judge did not
consider the significance or import of the facts in his
complaint, see doc. 1-2; 1-3, and the medical record
when recommending summary judgment in favor of Thomas. Doc.
81 at 19. However, the report and recommendation belies this
assertion. See doc. 76 at 5-31. Further, this court
agrees with the report's conclusion that even the most
troubling of facts against Thomas do not display grossly
inadequate care, or show that she took an easier but less
efficacious route, or that her treatment was so cursory as to
amount to no treatment at all. Id. The alleged facts
show only the plaintiff's disagreement with Thomas's
Dr. William Talley and Health Services Administrator Colleen
extent the plaintiff's objections do not repeat previous
facts and arguments already made in connection with his
Eighth Amendment claims against Dr. Talley and Colleen Oakes,
he points first to a purported factual error in the report
attributing the following testimony to Dr. Talley:
“[s]ome forms of narcotics are not suitable for the
relief of long-term chronic pain and are more suitable for
short-term pain relief.” Doc. 81 at 21. The plaintiff
contends that Thomas actually made the statement.
Id. However, the record, which shows that Dr. Talley
testified to this subject matter, doc. 45-1 at 17, belies
the plaintiff takes issue with the “ficti[on]” in
the magistrate judge's report that Dr. Talley was
concerned with balancing the plaintiff's pain management
and addiction avoidance. Id. at 21 (citing doc. 76
at 73). To be sure, Dr. Talley did not specifically testify
about “addiction” or use that word in the medical
record. Nonetheless, the undisputed record shows that Dr.
Talley repeatedly relayed to the plaintiff his concerns about
overprescribing. Docs. 1-2 at 11; 1-3 at 34, 36, 38, 40. And
when defendant Oakes commented on one occasion about the type
of narcotic the plaintiff desired, the plaintiff responded by
stating that he was not and had never been a drug seeker.
Id. Thus, during the relevant time period (January
to October 2011), the evidence supports the magistrate
judge's report that Dr. Talley was concerned about
balancing the plaintiff's pain management and avoiding
the overuse of narcotics, and shows also that the plaintiff
understood that Dr. Talley's concerns related to drug
the plaintiff strongly disagrees with Dr. Talley's and
Thomas's opinion that the narcotics he sought “were
more suitable for the relief of short-term pain and not
long-term pain.” Docs. 81 at 20; 45-1 at 17; 45-3 at 6.
He points to Dr. Talley's comment that the
plaintiff's pain was well controlled by narcotics between
February and late May 2011, but notes that, thereafter, Dr.
Talley disregarded Dr. Francavilla's recommendation to
continue the plaintiff's narcotic pain relief. Doc. 81 at
20, 22-24. The plaintiff also asserts that Thomas and Dr.
Talley's declarations are undermined by Dr. Talley's
prescribing him Vicodin three times per day beginning after
his cervical fusion on September 28, 2011 and continuing
until July 15, 2012. Id. at 24.
plaintiff's contentions are unavailing. Although Dr.
Talley had concerns about narcotic overuse, he also knew the
plaintiff had dealt with complex, life-time neck, back and
leg difficulties. As the plaintiff's primary caregiver,
Dr. Talley attempted to address the plaintiff's pain
complaints by prescribing medications. Dr. Talley also sought
a specialist and provided the plaintiff with a cane, back
brace, orthopedic shoes, and a wheelchair, and gave the
plaintiff a no prolonged standing profile. Thus, Dr.
Talley's refusal to continually prescribe narcotics that
rendered the plaintiff fully pain-free daily does not display
deliberate indifference to that pain. Rather, Dr. Talley
exercised his medical judgement while addressing a difficult
and complex medical problem. That the plaintiff or Dr.
Francavilla had a different opinion regarding narcotic use
falls short of creating an actionable Eighth Amendment claim
considering all of the other measures Dr. Talley took.
the plaintiff's attempt to blame defendant Oakes for
failing to relieve his pain with narcotics is meritless. The
plaintiff has never disputed that Oakes is a Health Services
Administrator and does not provide care to inmates. Further,
as a registered nurse, Oakes cannot prescribe narcotics or
override Dr. Talley's decisions.
plaintiff points out also that the magistrate judge noted
that he “did not present an affidavit from Dr.
Francavilla.” Doc. 81 at 24. He asserts that he could
not provide an affidavit or interrogatory statement from Dr.
Francavilla or physical therapist Lance Pearson because he
did not have their addresses and did not have access to
internet search engines. Id. The record refutes the
plaintiff's contentions. Specifically, the medical
defendants produced the plaintiff's medical records on
June 21, 2016. Doc. 45-1. A simple review of those records
show that they contained the address and telephone number of
Lance Pearson at Voyager Physical Therapy, 1618
13th Place South, Birmingham, Alabama, 35205, and
listed Dr. Francavilla's location at Brookwood Medical
Center in Birmingham, Alabama. Doc. 45-1 at 56-57, 66, 79.
Although Dr. Francavilla's formal address and telephone
number are not listed in the records the defendants produced,
the plaintiff could have used the information provided to
locate Dr. Francavilla. The court is not persuaded that the
plaintiff's inability to use internet search engines
prevented this discovery, particularly when he has access to