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Allen v. Rahming

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

December 11, 2019

ROBERT DANIEL ALLEN, AIS #252342, Plaintiff,
WILCOTT RAHMING, et al., Defendants.




         This 42 U.S.C. § 1983 action is before the court on a complaint and amendment thereto filed by Robert Daniel Allen, an indigent state inmate, in which he alleges the defendants violated his constitutional rights by failing to provide him adequate medical treatment for his multiple myeloma and deep vein thrombosis during his prior term of incarceration at the Kilby Correctional Facility. Doc. 1-1 at 3. Specifically, Allen alleges Dr. Rahming acted with deliberate indifference to his medical needs when he discontinued his blood thinner in October of 2016 and ignored the recall of his IVC filter. Doc 1-1 at 2-3. Allen names Dr. Wilcott Rahming, Nurse Valencia Lockhart, a Physician's Assistant, and Nurse Marianne Baker, a Certified Registered Nurse Practitioner, all medical personnel employed at Kilby during the time period relevant to the complaint, as defendants. Allen seeks monetary damages for the alleged violations of his constitutional rights and requests that the defendants be subjected to criminal prosecution. Doc. 1-1 at 3.

         The defendants filed a special report, supplemental reports and relevant evidentiary materials in support of their reports, including affidavits and certified copies of Allen's medical records, addressing the deliberate indifference claims presented against them. In these documents, the defendants assert that at all times they provided medical treatment to Allen in accordance with their professional judgment and adamantly deny any violation of Allen's constitutional rights.

         After review of the defendants' special reports and supporting exhibits, the court issued orders directing Allen to file a response to the arguments set forth by the defendants in their reports and advising him that any response should be supported by affidavits or statements made under penalty of perjury and other evidentiary materials. Doc. 38 at 2; Doc. 52 at 2-3. These orders specifically cautioned that “unless within fifteen (15) days from the date of this order a party . . . presents sufficient legal cause why such action should not be undertaken . . . the court may at any time [after expiration of the time for the plaintiff filing a response to this order] and without further notice to the parties (1) treat the special reports and any supporting evidentiary materials as a motion for summary judgment and (2) after considering any response as allowed by this order, rule on the motion for summary judgment in accordance with the law.” Doc. 38 at 3; Doc. 52 at 3 (same). Allen filed responses to these orders and submitted exhibits in support of his responses. See Doc. 33; Doc. 41; Doc. 54; Doc. 57; and Doc. 69.

         Pursuant to the directives of the aforementioned orders, the court now treats the defendants' special report and supplemental special reports as a motion for summary judgment and concludes that summary judgment is due to be granted in favor of the defendants.


         “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 genuine [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) (internal quotation marks omitted); Rule 56(a), Fed.R.Civ.P. (“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.”). 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); Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593 (11th Cir. 1995) (holding that moving party has initial burden of showing there is no genuine dispute of material fact for trial). 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 appropriate evidence in support of some element of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-24; Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011) (holding that moving party discharges his burden by showing the record lacks evidence to support the nonmoving party's case or the nonmoving party would be unable to prove his case at trial).

         When the defendants meet their evidentiary burden, as they have in this case, the burden shifts to the plaintiff to establish, with appropriate evidence beyond the pleadings, that a genuine dispute material to his case exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); 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[.]”); Jeffery, 64 F.3d at 593-94 (holding that, once a moving party meets its burden, “the non-moving party must then go beyond the pleadings, and by its own affidavits [or statements made under penalty of perjury], or by depositions, answers to interrogatories, and admissions on file, ” demonstrate that there is a genuine dispute of material fact). In civil actions filed by inmates, federal courts “must distinguish between evidence of disputed facts and disputed matters of professional judgment. In respect to the latter, our inferences must accord deference to the views of prison authorities. Unless a prisoner can point to sufficient evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail at the summary judgment stage.” Beard v. Banks, 548 U.S. 521, 530 (2006) (internal citation omitted). This court will also consider “specific facts” pled in a plaintiff's sworn complaint when considering his opposition to summary judgment. Caldwell v. Warden, FCI Talladega, 748 F.3d 1090, 1098 (11th Cir. 2014); Barker v. Norman, 651 F.2d 1107, 1115 (5th Cir. Unit A 1981) (stating that a verified complaint serves the same purpose of an affidavit for purposes of summary judgment). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).

         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 such that summary judgment is not warranted. Greenberg, 498 F.3d at 1263; Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1313 (11th Cir. 2007). 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 supporting party's position will not suffice[.]” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). Only disputes involving material facts are relevant, materiality 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. At the summary judgment stage, this court should accept as true “statements in [the plaintiff's] verified complaint, [any] sworn response to the officers' motion for summary judgment, and sworn affidavit attached to that response[.]” Sears v. Roberts, 922 F.3d 1199, 1206 (11th Cir. 2019); United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018) (holding that a plaintiff's purely self-serving and uncorroborated statements “based on personal knowledge or observation” set forth in a verified complaint or affidavit may create an issue of material fact which precludes summary judgment); Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013) (citations omitted) (“To be sure, [Plaintiff's] sworn statements are self-serving, but that alone does not permit [the court] to disregard them at the summary judgment stage . . . . Courts routinely and properly deny summary judgment on the basis of a party's sworn testimony even though it is self-serving.”). However, general, blatantly contradicted and merely “[c]onclusory, uncorroborated allegations by a plaintiff in [his verified complaint or] an affidavit . . . will not create an issue of fact for trial sufficient to defeat a well-supported summary judgment motion.” Solliday v. Fed. Officers, 413 Fed.Appx. 206, 207 (11th Cir. 2011) (citing Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). In addition, conclusory allegations based on purely subjective beliefs of a plaintiff and assertions of which he lacks personal knowledge are likewise insufficient to create a genuine dispute of material fact. See Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). In cases where the evidence before the court which is admissible on its face or which can be reduced to admissible form indicates there is no genuine dispute of material fact and the party moving for summary judgment is entitled to it as a matter of law, summary judgment is proper. Celotex, 477 U.S. at 323-24; Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001) (holding that to establish a genuine dispute of material fact, the nonmoving party must produce evidence such that a reasonable trier of fact could return a verdict in his favor). “The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (citation omitted). “[T]here must exist a conflict in substantial evidence to pose a jury question.” Hall v. Sunjoy Indus. Group, Inc., 764 F.Supp.2d 1297, 1301 (M.D. Fla. 2011) (citation omitted). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007).

         Although factual inferences must be viewed in a light most favorable to the plaintiff and pro se complaints are entitled to liberal interpretation, a pro se litigant does not escape the burden of establishing by sufficient evidence a genuine dispute of material fact. See Beard, 548 U.S. at 525. Thus, a plaintiff's pro se status alone does not compel this court to disregard elementary principles of production and proof in a civil case. Here, after a thorough and exhaustive review of all the evidence which would be admissible at trial, the court finds that Allen has failed to demonstrate a genuine dispute of material fact in order to preclude entry of summary judgment in favor of the defendants.


         A. Deliberate Indifference

         Allen alleges that the defendants denied him adequate medical treatment for his multiple myeloma and conditions related to his myeloma. In their responses, the defendants adamantly deny acting with deliberate indifference to Allen's medical needs.

         To prevail on a claim concerning an alleged denial of medical treatment, an inmate must-at a minimum-show that the defendant acted with deliberate indifference to a serious medical need. Estelle v. Gamble, 429 U.S. 97 (1976); Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000); McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999); Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989). Medical personnel may not subject an inmate to “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at 106; Adams v. Poag, 61 F.3d 1537, 1546 (11th Cir. 1995) (holding, as directed by Estelle, that a plaintiff must establish “not merely the knowledge of a condition, but the knowledge of necessary treatment coupled with a refusal to treat or a delay in [the acknowledged necessary] treatment”).

         Under well settled law, neither medical malpractice or negligence equate to deliberate indifference:

That medical malpractice-negligence by a physician-is insufficient to form the basis of a claim for deliberate indifference is well settled. See Estelle v. Gamble, 429 U.S. 97, 105-07, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995). Instead, something more must be shown. Evidence must support a conclusion that a prison [medical care provider's] harmful acts were intentional or reckless. See Farmer v. Brennan, 511 U.S. 825, 833-38, 114 S.Ct. 1970, 1977-79, 128 L.Ed.2d 811 (1994); Cottrell v. Caldwell, 85 F.3d 1480, 1491 (11th Cir. 1996) (stating that deliberate indifference is equivalent of recklessly disregarding substantial risk of serious harm to inmate); Adams, 61 F.3d at 1543 (stating that plaintiff must show more than mere negligence to assert an Eighth Amendment violation); Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176, 1191 n. 28 (11th Cir. 1994) (recognizing that Supreme Court has defined “deliberate indifference” as requiring more than mere negligence and has adopted a “subjective recklessness” standard from criminal law); Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999) (stating “deliberate indifference” is synonym for intentional or reckless conduct, and that “reckless” conduct describes conduct so dangerous that deliberate nature can be inferred).

Hinson v. Edmond, 192 F.3d 1342, 1345 (11th Cir. 1999).

         In order to establish “deliberate indifference to [a] serious medical need . . ., Plaintiff[] must show: (1) a serious medical need; (2) the defendants' deliberate indifference to that need; and (3) causation between that indifference and the plaintiff's injury.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). When seeking relief based on deliberate indifference, an inmate is required to show “an objectively serious need, an objectively insufficient response to that need, subjective awareness of facts signaling the need and an actual inference of required action from those facts.” Taylor, 221 F.3d at 1258; McElligott, 182 F.3d at 1255 (holding that, for liability to attach, the official must know of and then disregard an excessive risk of harm to the prisoner). Regarding the objective component of a deliberate indifference claim, the plaintiff must first show “an objectively serious medical need[] . . . and second, that the response made by [the defendant] to that need was poor enough to constitute an unnecessary and wanton infliction of pain, and not merely accidental inadequacy, negligen[ce] in diagnos[is] or treat[ment], or even [m]edical malpractice actionable under state law.” Taylor, 221 F.3d at 1258 (internal quotation marks and citations omitted). To proceed on a claim challenging the constitutionality of medical care “[t]he facts alleged must do more than contend medical malpractice, misdiagnosis, accidents, [or] poor exercise of medical judgment.” Daniels v. Williams, 474 U.S. 327, 330-33 (1986); Estelle, 429 U.S. at 106 (holding that neither negligence nor medical malpractice “become[s] a constitutional violation simply because the victim is incarcerated.”); Farmer, 511 U.S. at 836 (observing that a complaint alleging negligence in diagnosing or treating “a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment[, ]” nor does it establish the requisite reckless disregard of a substantial risk of harm so as to demonstrate a constitutional violation.); Kelley v. Hicks, 400 F.3d 1281, 1285 (11th Cir. 2005) (holding that “[m]ere negligence . . . is insufficient to establish deliberate indifference.”); Matthews v. Palte, 282 Fed.Appx. 770, 771 (11th Cir. 2008) (affirming district court's summary dismissal of inmate's complaint because “misdiagnosis and inadequate treatment involve no more than medical negligence.”).

         Additionally, “to show the required subjective intent . . ., a plaintiff must demonstrate that the public official acted with an attitude of deliberate indifference . . . which is in turn defined as requiring two separate things: aware[ness] of facts from which the inference could be drawn that a substantial risk of serious harm exists [] and . . . draw[ing] of the inference[.]” Taylor, 221 F.3d at 1258 (internal quotation marks and citations omitted) (alterations in original). Thus, deliberate indifference occurs only when a defendant “knows of and disregards an excessive risk to inmate health or safety; the [defendant] must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and he must also draw the inference.” Farmer, 511 U.S. at 837; Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998) (holding that defendant must have actual knowledge of a serious condition, not just knowledge of symptoms, and ignore known risk to serious condition to warrant finding of deliberate indifference). Furthermore, “an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838. When medical personnel attempt to diagnose and treat an inmate, the mere fact that the chosen “treatment was ineffectual . . . does not mean that those responsible for it were deliberately indifferent.” Massey v. Montgomery County Detention Facility, 646 Fed.Appx. 777, 780 (11th Cir. 2016).

In articulating the scope of inmates' right to be free from deliberate indifference, . . . the Supreme Court has . . . emphasized that not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105, 97 S.Ct. at 291; Mandel [v. Doe, 888 F.2d 783, 787 (11th Cir. 1989)]. Medical treatment violates the eighth amendment only when it is “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Rogers, 792 F.2d at 1058 (citation omitted). Mere incidents of negligence or malpractice do not rise to the level of constitutional violations. See Estelle, 429 U.S. at 106, 97 S.Ct. at 292 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Mandel, 888 F.2d at 787-88 (mere negligence or medical malpractice ‘not sufficient' to constitute deliberate indifference); Waldrop, 871 F.2d at 1033 (mere medical malpractice does not constitute deliberate indifference). Nor does a simple difference in medical opinion between the prison's medical staff and the inmate as to the latter's diagnosis or course of treatment support a claim of cruel and unusual punishment. See Waldrop, 871 F.2d at 1033 (citing Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).

Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991). “[A]s Estelle teaches, whether government 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.” Adams, 61 F.3d at 1545 (internal quotation marks and citation omitted). Moreover, the law is clear that “[a] difference of opinion as to how a condition should be treated does not give rise to a constitutional violation.” Garvin v. Armstrong, 236 F.3d 896, 898 (7th Cir. 2001); Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir. 1985) (holding that mere fact an inmate desires a different mode of medical treatment does not amount to deliberate indifference violative of the Constitution).

         The defendants submitted several affidavits and relevant medical records in response to the complaint filed by Allen. After a thorough and exhaustive review of the medical records submitted in this case, the court finds that the details of medical treatment provided to Allen as set forth by the defendants in their affidavits are corroborated by the objective medical records contemporaneously compiled during the treatment process. These records also refute several allegations made by Allen regarding his compliance in taking prescribed medications and the orders of his free world oncologist.

         In his initial affidavit, Dr. Rahming addresses the allegations of deliberate indifference, in relevant part, as follows:

I absolutely deny Mr. Allen's allegations, which are completely false. Although I discontinued Mr. Allen's Warfarin prescription on October 11, 2016, in my medical judgment discontinuing the medication was necessary at that time due to Mr. Allen's habitual non-compliance with the medication, as well as with the other directives of the providers on the Kilby medical staff, and the medication's potential side effects. As a blood thinner, Warfarin increases the risk of dangerous bleeding, including both internal bleeding and in the event of trauma. As confirmed through numerous examinations by medical providers, Mr. Allen experienced no complications whatsoever from the discontinuation of his Warfarin. After I learned that Mr. Allen previously underwent the insertion of an inferior vena cava (“IVC”) filter, I placed him back on Warfarin on December 29, 2016. An IVC filter is a medical device designed to catch large, potentially fatal blood clots from traveling to the lungs, but such filters paradoxically increase the risk of blood clotting.
Throughout Mr. Allen's incarceration at Kilby, including in the year prior to October of 2016, he received excellent care for his DVT. As evident from Mr. Allen's medical records, I and other medical providers on the Kilby medical staff diligently monitored his DVT through lab work and regular assessments, examined him at regular intervals and provided appropriate treatment, including medications. However, Mr. Allen repeatedly chose not to comply with the directives of the medical providers by routinely failing to take his medications as prescribed for him; regularly ignoring the providers' counseling regarding the importance of medication compliance; and routinely failing to appear for his scheduled visits in the chronic care clinic.
Medical providers on the Kilby medical staff monitored Mr. Allen's DVT through the chronic care clinic process. The medical staffs at the ADOC facilities evaluate and treat certain pre-defined chronic medical conditions through the chronic care clinic process. The conditions treated at the chronic care clinics include, for example, DVT, hypertension, hepatitis C, diabetes, gastroesophageal reflux disease, chronic obstructive pulmonary disease, hyperlipidemia as well as others. An inmate may be seen for multiple conditions during a single chronic care visit. The medical staffs at the ADOC facilities determine, based upon the condition of the inmate, whether an inmate is seen at intervals of thirty (30), sixty (60) or ninety (90) days. The inmates are not charged any payment whatsoever for their visits to the chronic care clinic.
I along with the other medical providers on the Kilby medical staff examined Mr. Allen at the regularly scheduled chronic care clinics in the year prior to October 11, 2016, i.e. when I discontinued his Warfarin prescription. During Mr. Allen's visits to the chronic care clinic, providers and other members of the medical staff examined him, assessed the status of his DVT and other medical conditions, performed international normalized ratio (“TNR”) measurements and adjusted his medications if necessary. The INR measurement tests the coagulation or clotting tendency of blood. For a healthy person, the normal INR range is 0.8-1.2. For an individual taking Warfarin, his or her INR would normally measure in the 2.0-3.0 range. Throughout the year prior to October 11, 2016, Mr. Allen's INR typically measured within, or just outside of, the normal range for someone taking Warfarin.
In the year prior to October of 2016, I and other medical providers prescribed Mr. Allen with Warfarin to treat his DVT. Warfarin effectively treats blood clotting by thinning the blood. However, as a blood thinner, Warfarin's side effects include an increased risk that a patient may experience dangerous bleeding. Throughout Mr. Allen's incarceration at Kilby, I and other medical providers carefully regulated his Warfarin prescription and adjusted it periodically to ensure he took as small amount as necessary to reduce his exposure to its side effects.
The Kilby medical staff treated not only Mr. Allen's DVT but also his other medical conditions, including multiple myeloma. Multiple myeloma is a cancer of the white blood cells. I and other providers routinely referred Mr. Allen off site for specialty treatment of his multiple myeloma and numerous rounds of chemotherapy treatment during the period of time between October of 2015 and October of 2016. We also referred Mr. Allen for routine visits to his off-site oncologist, Dr. Krishnamohan Basarakodu (“Dr. Basarakodu”), in Montgomery, Alabama.
Despite the medical staff's diligent efforts to care for Mr. Allen, he routinely refused to comply with the directives entered by me and the other providers in the year prior to October 11, 2016. For example, in the year prior to October of 2016, Mr. Allen failed to appear for scheduled appointments in the chronic care clinic on six (6) separate occasions. During that same period of time, Mr. Allen was routinely non-compliant with his medications, including Warfarin. Mr. Allen failed to take his Warfarin on at least twenty-six (26) separate occasions in the year prior to October 11, 2016, including on four (4) occasions in the month prior to that date.
The medical providers on the Kilby medical staff extensively counseled Mr. Allen on numerous occasions regarding his non-compliance with his medications and the directives of the providers, but to no avail. I met with Mr. Allen on the following occasions to counsel him regarding the importance of taking his medications in compliance with the directives of his providers: August 10, 2015; December 4, 2015; January 11, 2016; February 10, 2016; April 28, 2016; and July 25, 2016. In response to my counseling efforts, Mr. Allen refused ...

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