United States District Court, N.D. Mississippi, Greenville Division
TIMOTHY N. EVANS PLAINTIFF
DR. JUAN SANTOS, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
Evans, an inmate housed at the Mississippi State
Penitentiary, filed this civil rights action pursuant to 42
U.S.C. § 1983, alleging that he has been denied medical
attention in retaliation for filing a complaint about his
living conditions and because of officials' desire to
discriminate against him based on his race. Before the Court
are a number of motions filed: (1) a motion for summary
judgment by Dr. Juan Santos, Angela Brown, Paul Madubuonwu,
Freddie Williams, Ms. Leflore, Norma Evans, and LPN Lamar
(“Wexford Defendants”),  Doc. #187, who at all
relevant times were contract medical providers for Wexford
Health Sources; (2) a motion for summary judgment by
Nathan Harris, Superintendent Earnest Lee, and Co-4 Carla
Lofton (“MDOC Defendants”), Doc. #192; (3)
Norma's motion to dismiss for insufficient service
of process, Doc. #189; (4) Timothy's motion to join
Norma's motion to dismiss, Doc. #213; (5)
motion seeking dismissal of the MDOC Defendants, Doc. #214;
(6) Timothy's “Motion to Counter Summary Judgement,
” Doc. #215, which the Court construes as a summary
judgment motion; and (7) the Wexford Defendants' motion
to reschedule trial, Doc. #251. For the reasons below, the
Wexford Defendants' motion for summary judgment and the
MDOC Defendants' motion for summary judgment will be
granted; Norma's motion to dismiss, and Timothy's
motion to join Norma's motion, will be denied as moot;
Timothy's motion to dismiss the MDOC Defendants will be
denied as moot; Timothy's motion for summary judgment
will be denied; and the Wexford Defendants' motion to
reschedule trial will be denied as moot.
Background and Procedural History
arrived at the Mississippi State Penitentiary as a death row
inmate in August 2013. He alleges that a new roof was put on
his housing unit in July 2014 and that shortly thereafter,
water began seeping into his cell. Timothy, who suffers from
a number of chronic medical conditions, including back pain,
gastroesophageal reflux disease (“GERD”),
Hepatitis C, and psoriasis, claims that all of his medical
care was terminated on July 21, 2014, approximately one week
after he filed a grievance to prison officials about the
water leaks. According to Timothy, he is being denied medical
care (such as medication, skin biopsies, and annual Hepatitis
C screening) in retaliation for his complaints and because he
is a member of the Caucasian race.
Spears hearing, Timothy informed the Court that
his primary complaint is that he is routinely denied access
to his stomach medication. Specifically, he stated that the
defendants routinely deny him Prilosec (Omeprazole),
which is necessary to prevent severe vomiting and weight
loss. Timothy alleges that he has been informed that the
medicine is delayed at times due to a “glitch” in
the system but believes this is incorrect, as he has been
denied medication for several days in August, October,
November, and December of 2014, as well as in April of 2015.
He claims that his criminal attorney, Alison Steiner,
intervened on his behalf to get the medicine until April 5,
2015, when he was notified that he would no longer receive
Prilosec and would receive only Rolaids. Timothy alleges to
have made an emergency visit to the hospital on May 17, 2015,
however, and received Prilosec again the following day.
Between the time he was started on only Rolaids to treat his
GERD and his hospitalization in May, he alleges that he was
repeatedly denied medical attention.
conclusion of his Spears hearing on September 14,
2015, Timothy stated that he was then currently receiving his
medication. He has since claimed, however, that the
defendants continue to deny him medical care on the basis of
racial animus and retaliatory motives. See, e.g.,
Doc. # 74; Doc. #104; Doc. #203.
Summary Judgment Standard
judgment is proper only when the pleadings and evidence,
viewed in a light most favorable to the nonmoving party,
illustrate that no genuine issue of material fact exists and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a) & (c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A fact is deemed
“material” if “its resolution in favor of
one party might affect the outcome of the lawsuit under
governing law.” Sossamon v. Lone Star State of
Tex., 560 F.3d 316, 326 (5th Cir. 2009) (citation
the moving party will bear the burden of persuasion at trial,
that party must support its motion with credible evidence
that would entitle it to a directed verdict if not
controverted at trial.” McKee v. CBF Corp.,
299 F. App'x 426, 428 (5th Cir. 2008) (citing Celotex
Corp., 477 U.S. at 331)). If the “evidence is such
that a reasonable jury could return a verdict for the
nonmoving party, ” then there is a genuine dispute as
to a material fact, and summary judgment must be denied.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
constitutional right to medical care was abridged only if
officials acted with deliberate indifference to his serious
medical needs, as deliberate indifference to such needs
violates the Eighth Amendment's prohibition against cruel
and unusual punishment. Estelle v. Gamble, 429 U.S.
97, 103-04 (1978). The test for establishing deliberate
indifference is one of “subjective recklessness as used
in the criminal law.” Farmer v. Brennan, 511
U.S. 825, 839 (1994). Under this standard, a state actor is
not liable under § 1983 unless the plaintiff alleges
facts which, if true, would demonstrate that the prison
official (1) knew that the inmate faced a substantial risk of
serious harm; and (2) disregarded that risk by failing to
take reasonable measures to abate it. Farmer, 511
U.S. at 847.
plaintiff cannot demonstrate a prison official's
violation of the “deliberate indifference”
standard by pointing to negligent conduct. Daniels v.
Williams, 474 U.S. 327, 328 (1986); Oliver
v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Even if
physicians misdiagnose or mistreat the plaintiff's
condition in what amounts to medical malpractice, a prisoner
cannot sustain a § 1983 claim without a showing of
deliberate indifference. See, e.g., Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991) (medical
malpractice alone does not support § 1983 cause of
action). Nor is it sufficient for a plaintiff to argue that
additional or different medical treatment should have been
given, as a plaintiff's disagreement with the course of
medical treatment chosen will not support a claim of
deliberate indifference. Norton v. Dimazana, 122
F.3d 286, 292 (5th Cir. 2001); Gibbs v.
254 F.3d 545, 549 (5th Cir. 2001). Rather, liability under
the deliberate indifference standard requires the plaintiff
to produce evidence “that prison officials >refused
to treat him, ignored his complaints, intentionally treated
him incorrectly, or engaged in any similar conduct that would
clearly evince a wanton disregard for any serious medical
needs.'” Davidson v. Tex. Dept. of Crim.
J., 91 F. App'x 963, 965 (5th Cir. 2004) (citation
omitted); see Gobert v. Caldwell, 463 F.3d 339, 346
(5th Cir. 2006) (deliberate indifference requires inmate to
show prison officials engaged in conduct that “clearly
evince[s] a wanton disregard for any serious medical
Wexford Defendants' Motion for Summary
alleges that he began experiencing the denial of medication
and medical services in July 2014. The Wexford Defendants,
all of whom were employed by Wexford Health Sources and
provided medical care to inmates in MDOC custody at the
Mississippi State Penitentiary,  have moved for summary
judgment arguing, among other things, that Timothy “has
regularly been treated, and has been given all other
necessary medical services.” Doc. #188 at 8.
support of their motion, the Wexford Defendants submitted the
sworn affidavits of Dr. Santos and Angela Brown, which attest
that Timothy's numerous health problems have been
appropriately treated with a variety of medications and by a
number of medical providers. See Doc. #187-1; Doc.
#187-2. In particular, Dr. Santos maintains that
Timothy's conditions are regularly monitored in the
various chronic care clinics and that Timothy receives
various medications, including Prilosec for his stomach
complaints, Zocor for elevated lipid levels, Methotrexate for
arthritic conditions, Keflex for psoriasis, antacids,
Ibuprofen, and Tylenol. Doc. #187-1 at ¶ 4. Dr. Santos
also attests that Timothy's “lab tests and liver
function tests do not indicate the need for additional
treatment for hepatitis C.” Id. at ¶ 5.
an exhibit to their motion, the Wexford Defendants filed,
under seal, Timothy's medical records through August 27,
2015. Doc. #202. These records, which include the treatment
and/or medication updates Timothy received after the alleged
denial of medical care began on July 21, 2014, show that from
July 19, 2014, through April 13, 2015, Timothy submitted at
least fifteen “sick call” requests for medical
treatment, the majority of which were requests for
medication. Id. at 38-55. According to his medical
records, Timothy received the following treatment, as
summarized, after July 21, 2014:
July 22, 2014: Psychiatric visit. Id. at 155-56.
July 23, 2014: Psychiatric medications updated. Id.
July 24, 2014: Dental follow-up to complete dentures.
Id. at 157-58.
July 24, 2014: Medical visit for psoriasis and eczema;
Methotrexate started and psoriasis medication refilled.
Id. at 159-60.
Aug. 1, 2014: TED hose (for varicose veins) ordered by Nurse
Brown and approved by Dr. Madubuonwu. Id. at 164,
Aug. 1, 2014: Placed on suicide precaution at Unit 42
hospital following emergency psychiatric visit by Leflore.
Id. at 164-65.
Aug. 1, 2014: Enrolled in psoriasis chronic care clinic.
Id. at 167.
Aug. 2, 2014: Pharmacy faxed pantoprazole
sodium refill. Id. at 176.
Aug. 5, 2014: Psychiatric medicine changed. Id. at
Aug. 7, 2014: Treated for sick-call request previous day; Dr.
Santos ordered Prilosec; 60-day prescription faxed to
pharmacy. Id. at 201, 204.
Aug. 13, 2014: Medication orders refilled by Dr. Madubuonwu,
including a 60-day supply of Prilosec. Id. at
Aug. 14, 2014: Treated following August 11th sick call
request for back pain medication refills. Dr. Santos refaxed
medications, as medications were initially sent to wrong
pharmacy. X-rays for back and spine ordered. Id. at
Aug. 20, 2014: Mental health office visit with Leflore.
Timothy reported he is currently receiving all medications.
Id. at 209.
Aug. 21, 2014: Follow-up for eczema/psoriasis with Dr.
Santos; new x-ray ordered. Id. at 210-11.
Sept. 2, 2014: Seen by medical after complaint lodged that
Timothy's stomach medicine runs out on
Sept. 13, 2014; nurse noted computer showed his medication
was ordered. Id. at 215.
Sept. 4, 2014: Received dentures. Id. at 216-17.
Sept. 4, 2014: Treated at Hepatitis chronic care clinic; labs
reviewed; pantoprazole sodium prescription discontinued and
Prilosec prescription added. Id. at 219-23.
Sept. 11, 2014: Attended chronic care clinics, including
Hepatitis. Id. at 227-31.
Oct. 8, 2014: Mental health treatment plan formulated by
Leflore. Id. at
Oct. 8, 2014: Sick call visit; medications received; referred
to doctor. Id. at 236.
Oct. 9, 2014: Seen by physician for complaint about spine;
doctor ordered copy of Timothy's latest TSPINE x-ray.
Id. at 238.
Oct. 10, 2014: Mental health office visit. Id. at
Oct. 14, 2014: 90-day psychiatric visit. Id. at 242.
Oct. 14, 2014: Psychiatric medication update. Id. at
Oct. 16, 2014: Blood pressure check; flu vaccine
administered. Id. at 244-45
Oct. 16, 2014: Sick call visit regarding spine
issues/psoriasis; Dr. Santos updated Timothy's
medications to add Naproxen and to refill cream. Id.
Oct. 23, 2014: Sick call visit for back pain; Dr. Santos
ordered Naproxen. Id. at 248.
Oct. 30, 2014: Blood pressure check follow-up; Dr. Madubuonwu
ordered Timothy be brought in for walking stick and
evaluation of back pain. Id. at 249.
Oct. 31, 2014: Dr. Santos evaluated Timothy's pack pain;
removed Naproxen prescription and added Excedrin to
medications; ordered Timothy be relocated ...