United States District Court, S.D. Mississippi, Southern Division
ORDER GRANTING  MOTION FOR SUMMARY
H. WALKER UNITED STATES MAGISTRATE JUDGE
Robert Warren Triplett, proceeding pro se and in
forma pauperis, filed a 42 U.S.C. § 1983 prisoner
civil rights complaint alleging unconstitutional conditions
of confinement at the South Mississippi Correctional
Institution (SMCI), including an allegation of deliberate
indifference to his medical needs. Plaintiff complains about
inadequate medical care for: (1) a sinus infection and
related vertigo; and (2) a facial lesion that he fears might
be skin cancer. Plaintiff also alleges unauthorized medical
charges stemming from medical treatment at SMCI. Defendants
Dr. Ronald Woodall, Dr. Charmaine McCleave, Nurse Kera Hardy,
and Nurse Practitioner Gwendolyn Woodland (Medical
Defendants) filed a motion for summary judgment as to
Plaintiff's medical claims. Doc. . Plaintiff filed a
response on January 14, 2019. Doc. . Plaintiff
previously had filed on November 19, 2018, a motion
requesting an extension of time to respond to the Medical
Defendants motion for summary judgment. Doc. . The Court
grants Plaintiff's motion for extension to the extent
that the Court deems Plaintiff's response of January 14,
2019, to be timely.
provides 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); Sierra Club,
Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134,
138 (5th Cir. 2010). Where the summary judgment evidence
establishes that one of the essential elements of the
plaintiff's cause of action does not exist as a matter of
law, all other contested issues of fact are rendered
immaterial. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Topalin v. Ehrman, 954 F.2d 1125, 1138
(5th Cir. 1992). In making its determinations of fact on a
motion for summary judgment, the court must view the evidence
submitted by the parties in a light most favorable to the
non-moving party. McPherson v. Rankin, 736 F.2d 175,
178 (5th Cir. 1984).
moving party has the duty to demonstrate the lack of a
genuine issue of a material fact and the appropriateness of
judgment as a matter of law to prevail on its motion.
Union Planters Nat'l Leasing v. Woods, 687 F.2d
117 (5th Cir. 1982). The movant accomplishes this by
informing the court of the basis of its motion, and by
identifying portions of the record which highlight the
absence of genuine factual issues. Topalian, 954
F.2d at 1131. “Rule 56 contemplates a shifting burden:
the nonmovant is under no obligation to respond unless the
movant discharges [its] initial burden of demonstrating
[entitlement to summary judgment].” John v. State
of Louisiana, 757 F.3d 698, 708 (5th Cir.
1985). Once a properly supported motion for summary judgment
is presented, the nonmoving party must rebut with
“significant probative” evidence. Ferguson v.
Nat'l Broad. Co., Inc., 584 F.2d 111, 114 (5th Cir.
alleges that he did not receive constitutionally adequate
medical care for his sinus infection and facial lesion. To
state a constitutional claim for denial of adequate medical
care, a plaintiff must demonstrate that defendants were
deliberately indifferent to plaintiff's serious medical
needs, such that it constituted an unnecessary and wanton
infliction of pain. Estelle v. Gamble, 429 U.S. 97,
106 (1976). A prison official is not liable for the denial of
medical treatment unless the official knows of and disregards
an excessive risk to inmate health or safety. Harris v.
Hegmann, 198 F.3d 153, 159 (5th Cir. 1999). The
Constitution guarantee prisoners “only adequate, not
optimal medical care.” Spriggins v. LaRavia,
2012 WL 1135845, at *4 (E.D. La. Apr. 4, 2012) (emphasis in
original), citing Gobert v. Caldwell, 463 F.3d 339,
349 (5th Cir. 2006). An allegation of malpractice or mere
negligence is insufficient to state a claim. Hall v.
Thomas, 190 F.3d 693, 697 (5th Cir. 1999). Moreover, the
fact that a prisoner disagrees with the type of medical
treatment does not constitute a constitutional deprivation.
Norton v. Dimazana, 122 F.3d 286, 292 (5th Cir.
1997). A delay in medical care may, under certain
circumstances, state a claim for constitutionally inadequate
medical care. See Mendoza v. Lynaugh, 989 F.2d 191,
195 (5th Cir. 1993). A “delay in medical care can only
constitute an Eighth Amendment violation if there has been
deliberate indifference, which results in substantial
harm.” Id. at 195. However, “the
decision whether to provide additional treatment ‘is a
classic example of a matter for medical judgment.'”
Domino v. Texas Dep't of Crim. Justice, 239 F.3d
752, 756 (5th Cir. 2001). Disagreements about whether an
inmate should be referred to a specialist as part of ongoing
treatment do not constitute deliberate indifference. See
Alfred v. Texas Dep't of Criminal Justice, No.
03-40313, 2003 WL 22682118, at *1 (5th Cir. Nov.13, 2003);
Hickman v. Moya, No. 98-50841, 1999 WL 346987, at *1
(5th Cir. May 21, 1999).
respect to treatment of Plaintiff's sinus condition and
vertigo, Plaintiff alleges that for approximately one month,
between December 10, 2015 and January 16, 2016, he received
little or no treatment. Doc.  at 70. Plaintiff's
primary complaint is that he feels he should have been
prescribed an antibiotic. Plaintiff testified at the
screening hearing that the medical defendants refused to give
him antibiotics on several occasions. Doc.  at 33. He
later asserted that “any reasonable doctor or nurse
practitioner should prescribe” antibiotics for a sinus
condition. Id. at 37. In his response to summary
judgment, Plaintiff asserts that it should be obvious to any
layman that sinus infections should be treated with
antibiotics. Doc.  at 2. Plaintiff admitted that on at
least one occasion Nurse Woodall prescribed antibiotics, and
he stated that Dr. Woodall “normally will prescribe
them.” Doc.  at 19. As demonstrated by the medical
records and Plaintiff's assertions, he merely disagrees
with the type and course of treatment he received, which does
not rise to level of a constitutional violation.
medical records repeatedly demonstrate that in fact Plaintiff
did receive ongoing medical treatment for his sinus
condition. See Doc. . Such treatment included
examinations by medical providers and provision of
medications such as Tylenol, Claritin, cold packs, and
eventually an antibiotic. Plaintiff submitted his first sick
call request related to the allegations in this complaint in
mid-December 2015. He was seen by medical staff on December
13, 2015. Doc.  at 1-2. At that time, Plaintiff had a
prescription for Tylenol, which was not set to expire until
December 30, 2015. Id. at 2. Defendant Nurse
Woodland examined Plaintiff on December 17, 2015.
Id. at 4-5. He was referred to Defendant Dr.
McCleave and examined by her that same day. Id. at
5-6. Dr. McCleave prescribed Claritin to Plaintiff and gave
him a shot of Toradol for his complaints of neck pain. Doc.
[123-1] at 9-10. Plaintiff was examined on December 28, 2015,
by Defendant Nurse Hardy, who referred Plaintiff to a medical
provider. Doc.  at 6. Nurse Hardy performed another
examination on January 7, 2016 and referred Plaintiff to a
medical provider. Id. at 9. According to Plaintiff,
Nurse Hardy offered him decongestants during each of these
visits, which Plaintiff refused because he wanted to be
examined by a doctor instead. Doc.  at 37; Doc.  at
2-3. On January 16, 2016, Dr. Woodall examined Plaintiff for
complaints of sinus congestion. Doc.  at 11-13. Dr.
Woodall prescribed an anti-inflammatory, an antibiotic and a
cold pack for Plaintiff's symptoms. Id.
the screening hearing, Plaintiff admitted to seeing medical
providers on several occasions. See Doc.  16-21.
He even stated that Defendants McCleave and Woodland
“are pretty good about doing an examination”.
Id. at 33. He also admitted to receiving antibiotics
on one occasion, receiving cold packs from Dr. Woodland,
receiving two prescriptions for Antivert to treat vertigo,
and being offered by Nurse Hardy cold packs, antihistamines,
and a decongestant. Id. at 17, 19, 34-35, 37. In his
response to summary judgment, Plaintiff recites with
considerable detail the numerous visits, interactions, and
treatments he received from medical personnel. See
Doc.  at 1-5. Although he expresses disagreement with
the course of treatment and treatment options, his pleading
offers additional support for the conclusion that Defendants
were not deliberately indifferent to his medical condition
from December 2015 to January 2016. Based on the foregoing,
there is no genuine issue of material fact regarding whether
Defendants were deliberately indifferent to Plaintiff's
sinus condition during the relevant time frame.
also points to slight delays in being examined by a medical
provider at SMCI or in receiving prescribed medications. None
of these delays rise to the level of deliberate indifference.
See Mendoza v. Lynaugh, 989 F.2d 191, 193
(5th Cir. 1993); Hunt v. Uphoff, 199 F.3d
1220, 1224 (10th Cir. 1999). As reported in the
medical records, Plaintiff was seen by medical providers on
at least six occasions between December 12, 2015, and January
16, 2016, and he received various medications as treatment.