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Neihaus v. Geo Group, Inc.

United States District Court, S.D. Mississippi, Northern Division

March 27, 2015

THE GEO GROUP, INC., ET AL., Defendants.


LINDA R. ANDERSON, Magistrate Judge.

This cause is before the Court on the Motion for Summary Judgment filed by Defendant Dr. Carl Faulks [49], the Motion for Summary Judgment filed by Defendant Management & Training Corporation ("MTC") [51], and the Motion for Summary Judgment filed by Defendant GEO Group, Inc. ("GEO") [58]. In support of their motion, Defendants submitted Plaintiff's authenticated medical records, which have been considered by this Court. The Court has also considered the sworn testimony of Plaintiff given at the November 5, 2013, omnibus hearing. Having considered the entire record in this matter, the undersigned finds that Defendants' motions are all well-taken and are granted for the following reasons.[1]

I. Background

Plaintiff, who is proceeding pro se in this litigation, brought this lawsuit pursuant to 42 U.S.C. ยง 1983, challenging the conditions of his confinement. Specifically, Plaintiff alleges that while he was housed at East Mississippi Correctional Facility ("EMCF") in Meridian, Mississippi, he was unconstitutionally denied medical care [1]. The Court held an omnibus or Spears hearing[2] in this matter on November 5, 2013, at which Plaintiff was afforded the opportunity to fully explain his claim under oath.

Plaintiff testified that his right testicle swelled to the size of a softball sometime around June 1, 2012. [51-2] at 6. He claims that he put in a sick call, but got no response. His testicle kept swelling and then going down and was very painful. He asked case managers, mental health counselors, and anyone else who would listen, to please get him help. Everyone he asked instructed him to put in a sick call.

According to Plaintiff, when his testicle first started swelling, the facility was on lockdown. He and his roommate were finally allowed out on the recreation yard on or about July 13, 2012. [51-2] at 7. So that he could get medical attention, Plaintiff refused to come back inside. A guard told him that if he would return to his cell, an attempt would be made to get him immediate treatment. Plaintiff complied and was taken almost immediately to the doctor, Dr. Holland. Id. at 7-8. Dr. Holland examined Plaintiff and determined that Plaintiff needed an ultrasound; he ordered a urine test and prescribed Ibuprofen for pain. GEO was managing EMCF at the time, but Plaintiff alleges that he knew MTC was supposed to take over managing the prison less than a week later. Plaintiff asked Dr. Holland if the change in management would cause a delay, and Dr. Holland assured him that it would not. Id. at 8.

Apparently, the change in management did cause a delay. Plaintiff testified that on August 8, 2012, he again refused to be locked down, so he could get to a doctor again. This time Plaintiff was taken to see Defendant Dr. Faulks. Id. at 8-9. According to the medical records, Dr. Faulks examined Plaintiff and noted tenderness of his right testicle. [51-3 at 5]. He diagnosed Plaintiff with epididymitis, which causes testicular inflammation, redness, and pain. Id. Plaintiff's records also confirm that Plaintiff has a documented family history of epididymitis; his brother had been diagnosed with epididymitis on two occasions. [51-3 at 13]. Dr. Faulks prescribed an anti-inflammatory and pain reliever, Indocin 50mg twice daily for two weeks, and antibiotic Doxycycline 100 mg twice daily for two weeks. Id. He also prescribed three doses of Ibuprofen until the Indocin came in. Id. Dr. Faulks ordered that Plaintiff should return to clinic in one week and at that time Dr. Faulks would schedule an ultrasound. Plaintiff asked about the previously ordered ultrasound, but Dr. Faulks told Plaintiff that he would prescribe medicine first.

According to Plaintiff, the pharmacy did not get him the medication for two weeks. He then took the medicine for two weeks, but it did not help. Plaintiff started putting in sick calls and was seen again by Dr. Faulks on September 6, 2012. He told Dr. Faulks that he had completed the prescribed medication without improvement. [51-3 at 13]. Dr. Faulks ordered an ultrasound and prescribed the anti-inflammatory Naprosyn 500mg twice daily for 30 days for the pain and swelling. According to Plaintiff, Dr. Faulks told him that they would have to set him up with a urologist and get an ultrasound, but it might take six months. [51-2 at 10]. Plaintiff claims to have begged Dr. Faulks to get him in faster, but Dr. Faulks told him: "This is prison. What do you expect?" Id.

Yet, only about two weeks later, on September 24, 2012, Plaintiff had an ultrasound. On October 17, 2012, Dr. Faulks received results of the ultrasound indicating testicular cancer. [51-3 at 21]. Plaintiff also received the results the same day, learning that he had testicular cancer, about three weeks after the ultrasound was taken. [51-2 at 11]. Plaintiff was then taken to a urologist, Dr. Moore, less than three weeks later, on October 23, 2012. Dr. Moore recommended that Plaintiff's right testicle be removed. Plaintiff underwent the surgery on October 26, 2012, to remove the testicular mass; the surgery was completed without incident or complication. [51-4 at 7-8]. On November 1, 2012, Plaintiff had a CT scan of the chest, abdomen, and pelvis. [51-4 at 6]. The CT scan revealed a "single pathologically enlarged lymph node, " in his abdomen but was otherwise noted to be a "normal CT... with no metastatic disease." [51-4 at 6]. He was referred to Dr. Morris, an oncologist.

Dr. Morris discussed with Plaintiff the appropriate treatment options for the singular affected lymph node: either lymph node dissection or chemotherapy. [51-5 at 10]. Dr. Morris also advised Plaintiff that the dissection may be necessary even after chemotherapy had been completed. [51-5 at 10]. Following discussion of the treatment options, Plaintiff elected chemotherapy treatment. [51-5 at 17]. He started chemotherapy on December 10, 2012, but claims he could not get anti-nausea medication when he needed it. Id. at 12. However, his medical records indicate that on December 16, 2012, Dr. Faulks prescribed anti-nausea medication Phenergan 25mg 1-2 tablets twice daily for 10 days, and he ordered an injectable (shot) form of Phenergan for acute nausea/vomiting as needed. [51-3 at 28]. Dr. Faulks also indicated his concern about Plaintiff's compromised immune system and risk for infection, and he ordered that Plaintiff be housed in the medical unit so that he could be properly treated for his chemotherapy symptoms including nausea/vomiting, as well as prevent exposure to other inmates, as such exposure increases the risk of infection. [51-3 at 29]. The nurse discussed with Plaintiff the importance of being housed in the medical unit as ordered by Dr. Faulks because of his decreased immunity due to the chemotherapy and his risk for infection. Id. at 30. Plaintiff verbalized understanding of the risks but he refused to be housed in the medical unit; he signed a refusal form which was properly witnessed. Id.

On December 21, 2012, Plaintiff was treated by Dr. Morris, who ordered a second round of chemotherapy. Defendant MTC has set forth a detailed list of Plaintiff's medical requests and visits on pages 2-7 of its Memorandum [52] in support of Summary Judgment from the date it took over management at EMCF, July 19, 2012, until Plaintiff was transferred on December 26, 2012, to Central Mississippi Correctional Facility ("CMCF"). This list accurately comports with Plaintiff's records and has not been disputed. Plaintiff was later transferred to South Mississippi Correctional Institution ("SMCI") and completed chemotherapy there. Plaintiff underwent another CAT scan, confirming that his cancer was in remission. [51-3 at 13].

All Defendants have moved for summary judgment as to Plaintiff's claims.

II. Standard of Review

"Summary judgment is appropriate if the moving party can show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" United States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Fed.R.Civ.P. 56(a)). "A factual dispute is genuine' where a reasonable party would return a verdict for the nonmoving party." Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273, 282 (5th Cir. 2003) (quoting Lukan v. North Forest Indep. Sch. Dist., 183 F.3d 342, 345 (5th Cir. 1999)). When considering a summary judgment motion, a court "must review all facts and evidence in the light most favorable to the non-moving party." Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013). However, "[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for ...

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