United States District Court, N.D. Mississippi, Oxford Division
B. BIGGERS SENIOR U.S. DISTRICT JUDGE
matter comes before the court on the pro se prisoner
complaint of Jerry Douglas Johnson, who challenges the
conditions of his confinement under 42 U.S.C. § 1983.
For the purposes of the Prison Litigation Reform Act, the
court notes that the plaintiff was incarcerated when he filed
this suit. The plaintiff has brought the instant case under
42 U.S.C. § 1983, which provides a federal cause of
action against “[e]very person” who under color
of state authority causes the “deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws.” 42 U.S.C. § 1983. The plaintiff alleges
that the defendants failed to provide him with adequate
medical care after he was attacked and beaten by another
inmate. The defendants have moved for summary judgment; the
plaintiff has not responded to the motion, and the deadline
to do so has expired. The matter is ripe for resolution. For
the reasons set forth below, the motion by the defendants for
summary judgment will be granted, and judgment will be
entered in favor of the defendants.
Summary judgment is appropriate if the “materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
show 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) and (c)(1).
“The moving party must show that if the evidentiary
material of record were reduced to admissible evidence in
court, it would be insufficient to permit the nonmoving party
to carry its burden.” Beck v. Texas State Bd. of
Dental Examiners, 204 F.3d 629, 633 (5th Cir.
2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317
(1986), cert. denied, 484 U.S. 1066 (1988)). After a
proper motion for summary judgment is made, the burden shifts
to the non-movant to set forth specific facts showing that
there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91
L.Ed.2d 202 (1986); Beck, 204 F.3d at 633; Allen
v. Rapides Parish School Bd., 204 F.3d 619, 621
(5th Cir. 2000); Ragas v. Tennessee Gas
Pipeline Company, 136 F.3d 455, 458 (5th Cir.
1998). Substantive law determines what is material.
Anderson, 477 U.S. at 249. “Only disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id., at 248. If the
non-movant sets forth specific facts in support of
allegations essential to his claim, a genuine issue is
presented. Celotex, 477 U.S. at 327. “Where
the record, taken as a whole, could not lead a rational trier
of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587, 89 L.Ed.2d 538
(1986); Federal Savings and Loan, Inc. v. Krajl, 968
F.2d 500, 503 (5thCir. 1992). The facts are
reviewed drawing all reasonable inferences in favor of the
non-moving party. Allen, 204 F.3d at 621; PYCA
Industries, Inc. v. Harrison County Waste Water Management
Dist., 177 F.3d 351, 161 (5th Cir. 1999);
Banc One Capital Partners Corp. v. Kneipper, 67 F.3d
1187, 1198 (5th Cir. 1995). However, this is so
only when there is “an actual controversy, that is,
when both parties have submitted evidence of contradictory
facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994); see Edwards v.
Your Credit, Inc., 148 F.3d 427, 432 (5th
Cir. 1998). In the absence of proof, the court does not
“assume that the nonmoving party could or would prove
the necessary facts.” Little, 37 F.3d at 1075
very purpose of summary judgment is to “pierce the
pleadings and assess the proof in order to see whether there
is a genuine issue for trial.” Advisory Committee Note
to the 1963 Amendments to Rule 56. Indeed, “[t]he
amendment is not intended to derogate from the solemnity of
the pleadings[;] [r]ather, it recognizes that despite the
best efforts of counsel to make his pleadings accurate, they
may be overwhelmingly contradicted by the proof available to
his adversary.” Id. The non-moving party (the
plaintiff in this case), must come forward with proof to
support each element of his claim. The plaintiff cannot meet
this burden with “some metaphysical doubt as to the
material facts, ” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 1356 (1986), “conclusory allegations, ”
Lujan v. National Wildlife Federation, 497 U.S. 871,
871-73, 110 S.Ct. 3177, 3180 (1990), “unsubstantiated
assertions, ” Hopper v. Frank, 16 F.3d 92
(5th Cir. 1994), or by a mere
“scintilla” of evidence, Davis v. Chevron
U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994).
It would undermine the purposes of summary judgment if a
party could defeat such a motion simply by “replac[ing]
conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit.” Lujan v.
National Wildlife Federation, 497 U.S. 871, 888, 110
S.Ct. 3177, 3188 (1990).
considering a motion for summary judgment, a court must
determine whether the non-moving party's allegations are
plausible. Matsushita, supra. (emphasis
added). “[D]etermining whether a complaint states a
plausible claim is context-specific, requiring the reviewing
court to draw on its experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937
(2009) (discussing plausibility of claim as a requirement to
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6)). In
deciding whether summary judgment is appropriate, once the
court “has determined the relevant set of facts and
drawn all inferences in favor of the nonmoving party to
the extent supportable by the record, [the
ultimate decision becomes] purely a question of law.”
Scott v. Harris, 550 U.S. 372, 381 (2007) (emphasis
in original). “When opposing parties tell two different
stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of
ruling on the motion for summary judgment.”
Id. at 380.
August 2018, Johnson was a pretrial detainee at the Tate
County Jail. At 3:30 p.m. on August 14, he was
assaulted by another inmate, James Turner, who caused trauma
to Johnson's face and mouth. His injuries included teeth
that were knocked out and fractures to his facial
bones. The same day, he was taken to the
emergency room at Tri-Lakes Hospital in Batesville,
Mississippi. A CT scan was performed on him and
diagnosed Plaintiff with a “nondisplaced fracture
traversing the anterior maxilla and anterior nasal
spine.” Panola Medical Center's follow-up
instructions stated to “follow up with dentist
ASAP.” Medical staff at the Tate County Jail
followed up with a dentist in 2 days, and Plaintiff saw Dr.
Graves, a dentist, within that time. He was provided medications
in the jail, which he claimed did not help him. On August 17,
2018, he claimed that he lost sight in one eye and lost 2
teeth. He claimed that jail staff served him a
food tray with regular food, which he had difficulty
Graves, after examining Mr. Johnson, stated that he needed to
see a maxillofacial surgeon. Over the next week, Nurse
Baker spoke with surgeons that the jail often used; however,
they informed her that they no longer saw
inmates. Additionally, during that time frame,
Nurse Baker spoke with Dr. Whittaker in Oxford, Mississippi,
who stated he could not see Johnson because he would have to
be seen at a hospital. Eventually, Dr. Graves recommended
Dr. Roberts, and Nurse Baker set an appointment at the first
available time, August 29, 2018. Nurse Baker informed
Johnson on August 20, 2018, that he was scheduled to see the
surgeon on August 29, 2018. On a follow-up call, Dr.
Roberts informed Nurse Baker that he declined to treat
Plaintiff's injuries because his injuries were due to
trauma. Nurse Baker then provided Dr. Ruhl, a
local physician and the jail doctor, with Johnson's
x-rays and CT results. Dr. Ruhl sent Johnson's x-rays to
an Ear, Nose, and Throat specialist. After examining Mr.
Johnson's x-rays, the ENT informed Dr. Ruhl and Nurse
Baker that Johnson had a closed, or non-displaced, fracture
which did not require surgery.
taken to Baptist Desoto Hospital on September 7, 2018, for a
follow-up CT scan on his chest. He asked to see the
results of that testing in a medical request filed on
September 24, 2018, but he has not seen them. On September
27, 2018, Dr. Graves fitted Plaintiff with partial
October 12, 2018, Mr. Johnson had seen numerous medical
providers (doctors, nurses, and a dentist) multiple times,
and Dr. Ruhl told him that his injuries were healing
is a timeline of Mr. Johnson's medical treatment, medical
requests, and grievances:
5/9/16 Inmate Medical Request: Vision/eye appointment for
5/13/16 in Coldwater at 11:00
4/17/18 Seen at Baptist Desoto with chief complaint of
abscess (bumps on both sides of head); stated his niece was
diagnosed with hand, foot, and mouth disease; has had fever
for 2 days
Diagnosis: folliculitis on neck, chin, and scalp; was given
6/2/18 Seen at Baptist Desoto with chief complaint of right
sided chest pain; is a smoker; observed chills, fever, cough,
chest pain (area of chest circled on anatomical drawing of
chest area is the mid right rib cage area);
X-ray of chest was taken; Findings: no infiltrate, effusion,
or pneumothorax, no abnormality
Ultrasound of gallbladder was taken; Impression is normal
with exception of bowel gas
CT of chest was taken; Impression: an 11 mm noncalcified soft
tissue nodule in lateral portion of right lower lobe labeled
as pneumonia; recommends followup CT in 3 months
6/25/18 Medical Request: pain in my right lung need to see a
“The doctor will be here tomorrow” - Nurse Baker,
6/25/18 at 3:10 p.m.
7/16/18 Medical Request: having problems with both lungs, the
pain is almost unbearable it was just the right one now both
of them having trouble breathing “This request has been
answered” - Nurse Baker, 7/17/18 at 4:12 p.m.
7/20/18 Medical Request: I have a tooth that the filling has
came out and broke off need to have it removed “I will
make you a dentist appointment” - Nurse Baker, 7/24/18
at 1:47 p.m.
7/23/18 Medical Request: the steroid pack the doctor gave me
has not helped my symptoms in my lungs still hurting its not
a muscle its in are around my lungs can't coff sneeze are
blow my nose with out pain it seems to be getting worse.from
the front of my chest to the center of my back “This
request has been answered” - Nurse Baker, 7/24/18 at
7/26/18 Radiology Report to Tate County Jail: Results of
X-ray to chest: Findings: no pneumonia, normal cardiac
rhythm, no pleural effusion, no pneumothorax, overriding
fracture of left lateral fifth rib seen with potential
fracture of left sixth rib
8/9/18 Medical Request: its going to be the end of September
before I see my primary care doctor I got a letter in mail
from a lung specialist for me to come in.ASAP so if you will
go ahead and schedule me to see the doctor for the lump in my
chest “I will take care of it” - Nurse Baker,
8/9/18 at 12:15 p.m.
8/9/18 Inmate Medical Request and Nursing Assessment:
complaint of chest pain on right side from knot; not on meds;
reports pain across chest and shooting across breast bone;
right side huts when palpated; has knot under right breast
that is movable and hot to touch; knot is size of egg
8/10/18 Medical Request: just going to see if you would send
me a heating pad.my chest is hurting
“I will see if I can get you one” - Nurse Baker,
8/13/18 at 11:16 a.m.
8/14/18 Medical Progress Notes of Nurse Baker
Time: 1600: Nurse Baker was called to the nurse's station
by Officer Armstrong to check on Johnson because he was
assaulted by another inmate; she assessed his two front teeth
missing and he had a split lip; she informed Lt. Alexander
that Johnson needed to be transported to hospital; Johnson
was taken to Panola Medical Center where he was seen at ER;
ER doctors recommended that Johnson follow up with a dentist
asap and was given meds; nurse had inmate transported to Dr.
Graves on 8/15/18; Dr. Graves referred a doctor in Southaven,
MS; Nurse Baker called the doctor and was informed that he no
longer did surgery; Nurse Baker called Dr. Ruhl and
instructed Nurse Baker to call Dr. Laurenzo in Oxford; Dr.
Laurenzo's office referred to Dr. Whitaker in Oxford.
8/14/18 Seen at Panola Medical Center ER with chief complaint
of dental pain and laceration on face
Diagnosis: fracture of nasal bones, initial encounter for
closed fracture; laceration without foreign body of lip,
Was prescribed medicine for pain and antibiotic with notation
“follow up with dentist - asap”
CT's were done with findings: nondisplaced fracture of
anterior maxilla (upper back jaw at hinge site) and anterior
nasal spine (nose); cut on face; eyes are normal; mild sinus
8/15/18 Tate County Jail Dental Report by Dr. Ruhl: has lost
teeth 7 & 8 completely; began warm salty water rinses
asap; give Sensodyne toothpaste; after healing, recommend
8/15/18 Medical Request: Chief v. Byrd sir I have been laying
in the zone all night can't breath and chest pain knocked
out teeth and fractured bones in my face told staff but still
setting here in pain unbearable!
“Request was closed without a response” - Lt. B.
Sharp, 8/15/18 at 12:12 p.m.
8/15/18 Medical Request: They never brought me any soup the
meds are hurting my stomach and could I get a ice pack please
thank you sooo much
“I can bring you some ice but I can't bring you any
soup because you took a lunch tray, that is policy” -
Nurse Baker, 8/16/18 at 12:40 p.m.
8/15/18 Medical Request: My face and mouth pain is unbearable
nurse Baker the meds are not helping I can't breathe
threw my nose so taking a breath threw my mouth hurts so bac
I feel like I'm going to pass out!
“I am sorry you're in pain. You have an appointment
with a maxillofacial surgeon set up.” - Nurse Baker,
8/16/18 at 12:45 p.m.
8/16/18 Medical Request: Sheriff b.Lance sir I'm in pain
can't even get my meds for lack of statt. Sargent.
Alexander witnessed the dentist x-ray I have fractured bones
in my face that need surgery ASAP. lost the sight in my right
eye 2 teeth gone nasal cavity crushed I need medical
Please respond! I'm filing grievance today. - 8/17/18 at
“Request was closed without a response.” -
Sheriff B. Lance, 9/24/18 at 9:55 a.m.
8/21/18 Medical Progress Notes of Nurse Baker (#13 in
Time: 0912 Spoke with Brianna at Dr. Whitaker's office
and was instructed that Dr.
Whitaker can't see him because he would need to be seen
in a hospital Time: 0914: spoke with Susan at Dr. Graves
office and was told to try Dr. Roberts in Southaven, a
Time: 0931: Spoke with Sandy at Dr. Roberts office and was
instructed that Dr. Roberts ...