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Torrey v. Perry

United States District Court, N.D. Mississippi, Greenville Division

December 4, 2019

CLIFTON T. TORREY, SR. PLAINTIFF
v.
DR. GLORIA PERRY DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DAVID A. SANDERS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Clifton T. Torrey, Sr., proceeding pro se and in forma pauperis, filed suit under 42 U.S.C. § 1983 against Dr. Gloria Perry, alleging that she denied him appropriate medical care in violation of the Eighth Amendment prohibition against cruel and unusual punishment. Dr. Perry has moved for summary judgment under Federal Rule of Civil Procedure 56. Despite being granted an extension of time to do so, Torrey has failed to the respond to the motion. Having reviewed the submissions and arguments presented, as well as the applicable law, the Court finds that Dr. Perry's motion should be granted.

         Factual and Procedural Background

         Torrey is an inmate in the custody of the Mississippi Department of Corrections (“MDOC”) and is currently housed at the Mississippi State Penitentiary (“MSP”) located in Parchman, Mississippi. In 1997, prior to his incarceration, Torrey suffered a spinal injury necessitating neck surgery. While housed at the South Mississippi Correctional Institution (“SMCI”), Torrey was diagnosed in 2010 with foot drop in his right foot, a condition which causes him to stumble easily and fall frequently.[1] According to Torrey, his condition has worsened over time, causing frequent pain in his hips and legs.

         On November 8, 2012, Torrey was issued a pre-made leg brace to treat his condition. Torrey, however, did not wear the brace, complaining that it cut into his legs and foot. Torrey alleges that, over the next few years, he wrote several times to Dr. Gloria Perry and others requesting a replacement for the alleged ill-fitting brace, but to no avail.

         On March 18, 2015, a Durable Medical Equipment (“DME”) Request Form was completed by Dr. Charmaine McCleave on Torrey's behalf for a prosthetic leg brace. The reason given for the DME request was that Torrey's “last brace was issued in 2012 and [it] never fit right[, ] so he didn't wear it and it was confiscated.” Torrey alleges that he was not fitted for the new leg brace and orthopedic boots until March 2016, and that he did not receive them until April 27, 2016.

         In June 2016, Torrey was transferred from SMCI to MSP. On June 2, 2016, a DME Request Form was completed by Dr. Ronald Woodall requesting a back brace to treat Torrey's arthritis. The back brace was signed for and received by Torrey on June 15, 2016. In August 2016, however, Torrey alleges that both his leg and back braces were confiscated during a shakedown because an MSP doctor refused to give him a medical pass for those items. In October 2016, the MSP hospital manager, Willie Knighten, responded to a sick call stating Torrey's leg and back braces were being reordered.[2]

         Torrey alleges that, sometime in 2016, he contacted Buckner Prosthetics and requested that his orthopedic boots be resoled, as they were slick and caused him to fall frequently.[3] The following year, in 2017, Torrey was placed on a list to have his boots and leg braced fixed or replaced, and on January 25, 2018, he was approved to go to Buckner for new boots. Months later, on August 15, 2018, Torrey was seen by Zachary Myrick of Buckner where he received padding and strapping for his brace and new extra-depth shoes.

         In addition to his complaints regarding the delay in receiving his leg and back braces, Torrey claims that he has fallen at least six times in the shower due to his slick-soled shower shoes, missing tiles, and absence of any handicapped bars in the showers at his housing unit. He further asserts that MDOC refuses to provide him with an orthopedic pillow, better-soled shower shoes, a ten's unit, and a thicker mattress, all of which he alleges are necessary to alleviate pain.

         Torrey filed the instant lawsuit on February 9, 2018, asserting that Dr. Gloria Perry was personally responsible for the alleged delay and/or denial of medical care, and requests both monetary damages and prospective relief.[4] Following a Spears hearing held on June 7, 2018, the court found that Torrey had “sufficiently alleged a claim that the delay and/or denial of his braces, boots, and shower shoes [has] denied him constitutionally adequate medical care, and that the failure to have handicapped bars in at least one shower in his unit constitutes an unconstitutional condition of confinement, ” and allowed those claims to proceed against Dr. Perry. Doc. # 12; see also Doc. # 16.

         On October 28, 2019, Dr. Perry filed a motion for summary judgment. Doc. # 66. Torrey moved for an extension of time to file a response to said motion on November 13, 2019. Doc. # 72. The Court granted Torrey's motion and permitted him an additional fourteen days in which to file his response. Doc. # 73. Torrey, however, has failed to file a response, and the deadline for doing so has now passed. The matter is now ripe for resolution.

         Summary Judgment Standard

         Summary judgment is appropriate only when the pleadings and evidence, viewed in the 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) and (c)(1); 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 Texas, 560 F.3d 316, 326 (5th Cir. 2009) (citation and internal quotation mark omitted). Once the motion is properly supported with competent evidence, the nonmovant must show that summary judgment is inappropriate. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998); see also Celotex, 477 U.S. at 323. The nonmovant cannot rely upon “conclusory allegations, speculation, and unsubstantiated assertions” to satisfy his burden, but rather, must set forth specific facts showing the existence of a genuine issue as to every essential element of his claim. Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (citation omitted); Morris, 144 F.3d at 380. If the “evidence is such that a reasonable jury court return a verdict for the nonmoving party, “ then ...


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