United States District Court, S.D. Mississippi, Jackson Division
MEMORANDUM OPINION AND ORDER
F. KEITH BALL, Magistrate Judge.
The Court held an omnibus hearing in this matter, at which time it conferred with Plaintiff and counsel for Defendants in this suit founded upon 42 U.S.C. § 1983. At that hearing, the parties consented to have a United States Magistrate Judge conduct any and all further proceedings in the case and order the entry of final judgment, and the District Judge subsequently entered an order of reference. 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. McCain is proceeding in this matter in forma pauperis and pro se.
Pending before the Court is the Motion for Summary Judgment filed by Wexford Health Sources  and related filings. Wexford Health Sources is the contract healthcare provider for inmates at Central Mississippi Correctional Facility ("CMCF"). Plaintiff has not responded to the Motion for Summary Judgment. For the reasons explained in this Memorandum Opinion and Order, the Court denies Wexford's Motion for Summary Judgment.
I. Plaintiff's Claims
As stated in the Court's prior opinion  in this case, Plaintiff is a convicted inmate who, at all times relevant to the claims in this action, was housed at CMCF. Plaintiff alleges that Defendants have denied him adequate medical care subsequent to the surgical removal of his large intestine or colon, resulting in a colostomy. In his vaguely worded complaint, he alleges that Defendants have denied him adequate medical, sanitation, and disposal supplies to care for himself. . He also alleges that Defendants should provide him with artificial intestines.  at 4. Plaintiff seeks a declaratory judgment stating that Defendants' actions are unconstitutional, injunctive relief granting needed supplies and artificial intestines, or alternatively, release from MDOC custody and compensatory damages. Id.
In response to a Court Order , McCain stated that Defendants "violated and continue to violate [his] constitutional rights by operating with a customary practice that constitutes a policy of being deliberately indifferent to serious medical needs. This practice is due to budgetary concerns, not medical concerns, and is contrary to MDOC's written policy."  at 1.
McCain was given an opportunity to elaborate upon his claims at the omnibus hearing held in this matter. [55-1]. The Court construes his testimony as a part of his complaint. McCain related that he would like artificial intestines and described in detail the various sanitation supplies he needs to care for his colostomy, such as garbage bags, soap, gauze, tissue, tape, sticky pads, glue, and alcohol pads. He alleged that Defendants inconsistently provided him with sanitation supplies to care for his colostomy since it was performed in February 2006, but that he was receiving sufficient sanitation supplies on a weekly and bi-weekly basis at the time of the omnibus hearing in August 2012. [55-1] at 19-22. He also testified that, in the three years prior to the omnibus hearing, he received supplies on a monthly basis, but the supplies were insufficient for his needs. Id. at 22. Finally, McCain stated that he had sued Wexford Health Sources because the company's customary practice "constitutes a policy of deliberate indifference based on budgetary concerns and not medical concerns." Id. at 18.
II. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, in relevant part, that "[t]he 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). An issue of fact is genuine if the "evidence is sufficient to permit a reasonable factfinder to return a verdict for the nonmoving party.'" Lemoine v. New Horizons Ranch and Center , 174 F.3d 629, 633 (5th Cir. 1999) (quoting Colston v. Barnhart , 146 F.3d 282, 284 (5th Cir.), cert. denied, 119 S.Ct. 618 (1998)). Issues of fact are material if "resolution of the issues might affect the outcome of the suit under governing law." Lemoine , 174 F.3d at 633. The Court does not, "however, in the absence of any proof, assume the nonmoving [or opposing] party could or would prove the necessary facts." Little v. Liquid Air Corp. , 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(emphasis omitted). Moreover, the non-moving party's burden to come forward with "specific facts showing that there is a genuine issue for trial, " Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986), is not satisfied by "conclusory allegations" or by "unsubstantiated assertions, " or by only a "scintilla" of evidence. Little , 37 F.3d at 1075.
Turning to Wexford's Motion for Summary Judgment, the Court has reviewed the filings of record and considered Plaintiff's testimony at the omnibus hearing, and it finds that there is a genuine dispute as to the material facts in this case. Plaintiff alleges that Defendant, in customary practice, was deliberately indifferent to his serious medical needs. Although Defendant Wexford has presented voluminous medical records, as well as an affidavit in support of its motion for summary judgment, there are significant chronological gaps in the medical records regarding the provision of colostomy supplies and other medical care for Plaintiff. The chronological gaps in the records, therefore, create a genuine dispute as to the material facts relevant to whether Wexford was, in practice or custom, deliberately indifferent to his serious medical needs. Accordingly, for these reasons, the Motion for Summary Judgment is denied.
Thus, for the reasons explained above, the Court denies Wexford's Motion for Summary Judgment . By separate order, the Court will set this matter for a bench ...