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Brown v. Deol

United States District Court, D. Nebraska

November 1, 2019

JESUS BROWN, Plaintiff,
v.
DR. DEOL, Nebraska Department of Correctional Services Medical Director, individually and in their official capacities; GARY J. HUSTAD, MD, individually and in their official capacities; DAN DANAHER, Physician Assistant, individually and in their official capacities; and DR. JEFFREY KASSELMAN, in his individual and official capacity; Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on Defendants' Motion for Summary Judgment. (Filing No. 42.) For the reasons that follow, the Motion is granted.

         I. BACKGROUND

         Plaintiff, an inmate in the custody of the Nebraska Department of Correctional Services (“NDCS”) and currently confined at the Lincoln Correctional Center (“LCC”), brings this 42 U.S.C. § 1983 action against Defendants Dr. Deol, the NDCS Medical Director; Gary J. Hustad, M.D., a doctor responsible for NDCS inmates housed at LCC and the Diagnostic & Evaluation Center (“DEC”); Dr. Jeffrey Kasselman, the pain specialist for the NDCS; and Physician Assistant (“P.A.”) Dan Danaher. (Filing No. 1 & Filing No. 21.) Plaintiff claims that Defendants have failed to provide him medical treatment in violation of the Eighth Amendment. (Filing No. 1 & Filing No. 21.)

         Plaintiff alleges that he entered NDCS custody with an existing back injury from a car accident for which he had been receiving treatment. Upon admission at the DEC, Plaintiff informed NDCS medical staff of his back injury and pain, as well as medical issues with his neck, feet, hand, elbow, shoulder, and knee. Plaintiff asserts that his medical conditions are documented in his medical records, in MRIs, and by specialists, and that Defendants are “well aware of the plaintiff's medical issues and still wish to not treat him for them as they should be.” (Filing No. 1 at CM/ECF p. 3.) More specifically, Plaintiff complains that he was given Gabapentin for his pain issues, rather than Lyrica as was recommended by another doctor (Filing No. 1-1 at CM/ECF pp. 3, 14), and that his prescription pain medication eventually was tapered off, and then discontinued, “even though the[re] is written documentation and [a] specialist that say[s] he needs pain medication.” (Filing No. 1 at CM/ECF p. 3; Filing No. 1-1 at CM/ECF p. 8. In a supplement, Plaintiff indicates that he has been put back on Gabapentin as of July 31, 2018 but maintains that he is still in extreme pain and medical is refusing to provide necessary medical treatment. (Filing No. 15 at CM/ECF pp. 1, 86-91.)

         With respect to Dr. Hustad and P.A. Danaher, Plaintiff alleges that they both were responsible for the medical care of inmates housed at the LCC. (Filing No. 1 at CM/ECF p. 2.) Plaintiff alleges that both Dr. Hustad and P.A. Danaher were aware of Plaintiff's medical needs, his complaints of extreme pain, and that outside prison doctors had ordered certain treatments and medications. Despite this knowledge, they refused to administer Plaintiff the necessary treatments and medications recommended by Plaintiff's outside physicians. Specifically, Plaintiff alleges that one specialist “even recommended a stronger pain medication and P.A. Danaher refused to give this medication to [Plaintiff] and ordered a less stronger medication for his pain so as [Plaintiff] had to suffer in pain.” (Filing No. 1 at CM/ECF p. 3.) Further, Plaintiff alleges “P.A. Danaher also told the Plaintiff that because he complained so much about being in pain [P.A. Danaher] did not believe that he was in pain and took him off all of his pain medication even though the[re] is written documentation and [a] specialist that say he needs pain medication.” (Filing No. 1 at CM/ECF p. 3.) Plaintiff alleges that Dr. Hustad oversees P.A. Danaher and knew of Plaintiff's medical needs but failed to ensure Plaintiff received the treatment he needs. The Inmate Interview Requests (“IIRs”) attached to Plaintiff's Complaint show that Dr. Hustad consulted with P.A. Danaher about Plaintiff's medical complaints and personally responded to some of Plaintiff's IIRs about his medical issues. (Filing No. 1-1 at CM/ECF pp. 11, 13-14.)

         Regarding Dr. Kasselman, Plaintiff alleges that he is the pain specialist for the NDCS who “agreed to remove [Plaintiff] off his medication, even when he was in serious pain.” (Filing No. 21 at CM/ECF pp. 1, 3, ¶¶ 4, 20.)

         Plaintiff further alleges that Dr. Deol, the NDCS Medical Director, was deliberately indifferent to Plaintiff's medical needs and “knew or should have known” about Plaintiff's medical needs and lack of treatment because “he oversees all of the Department of Medical and is the one whom approves all Medical procedures and treatments being done to any prison inmate . . . and is the one whom told all his staff to make cuts in spending and to stop treating some things.” (Filing No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF p. 5, ¶ 28.)

         As relief for the Defendants' alleged deliberate indifference to Plaintiff's medical needs, Plaintiff seeks declaratory and injunctive relief, $500, 000.00 in compensatory damages, and $500, 000.00 in punitive damages against each Defendant.[1] (Filing No. 1 at CM/ECF p. 5; Filing No. 21 at CM/ECF pp. 5-6.)

         Defendants filed their Motion for Summary Judgment on July 8, 2019. (Filing No. 42.) Along with their Motion, Defendants filed a Brief in Support and an Index of Evidence. (Filing No. 43 & Filing No. 43.) Plaintiff did not file a response to Defendants' Motion.

         Plaintiff, a pro se litigant, is “bound by and must comply with all local and federal procedural rules.” NEGenR 1.3(g). The court's local rules require the party moving for summary judgment to file a brief containing a “separate statement of material facts about which the moving party contends there is no genuine issue to be tried and that entitles the moving party to judgment as a matter of law.” This statement of facts “should consist of short numbered paragraphs, each containing pinpoint references to . . . materials that support the material facts . . . .” NECivR 56.1(a). The opposing party must respond to the moving party's statement of material facts in a brief containing separate numbered paragraphs with citations to supporting references and with identification of material facts that are disputed. NECivR 56.1(b). See also NECivR 7.1(b)(2)(A) (“When filing the opposing brief, the opposing party must also file and serve supporting evidentiary material not previously filed.”). Properly referenced material facts in the movant's statement of facts are “considered admitted unless controverted in the opposing party's response.” NECivR 56.1(b)(1).

         The court has carefully reviewed the documents submitted by Defendants. While Defendants have submitted a statement of material facts in accordance with the court's rules, Plaintiff has not filed any response to Defendants' Motion for Summary Judgment.[2] Further, Defendants submitted evidence which was properly authenticated by medical records and declarations. In light of this, the court adopts the following undisputed material facts, which are largely taken from Defendants' submission.

         II. UNDISPUTED MATERIAL FACTS

         1. On March 27, 2014, Plaintiff was seen by medical staff at the DEC in Lincoln, Nebraska, with complaints of mid-back pain. (Filing No. 43-1 at CM/ECF p. 1.) Records from Plaintiff's previous emergency room visit indicated a T11 wedge compression fracture that was “fairly mild.” (Filing No. 43-1 at CM/ECF p. 1.) Plaintiff's cervical spine CT was completely negative. (Filing No. 43-1 at CM/ECF p. 1.) Physician Assistant (“P.A.”) Cheryl Flinn continued to prescribe Plaintiff Tramadol and prescribed Plaintiff Ibuprofen 800 mg “to take in between” as needed and Flexeril 10 mg to try for the next couple of months. (Filing No. 43-1 at CM/ECF p. 1.) Plaintiff acknowledged he would not be prescribed Flexeril forever. (Filing No. 43-1 at CM/ECF p. 1.)

         2. On April 15, 2014, Plaintiff was seen by Dr. Christina-Lynn Ferguson complaining of back pain from a car accident in 2013. (Filing No. 43-1 at CM/ECF pp. 2, 28.) Dr. Ferguson noted Plaintiff would be scheduled for an X-ray of his thoracic and lumbar spine. (Filing No. 43-1 at CM/ECF p. 2.) Dr. Ferguson explained she would schedule Plaintiff for removal of glass from his left forearm as well. (Filing No. 43-1 at CM/ECF p. 2.)

         3. On April 18, 2014, Plaintiff received an X-ray of his lumbar and thoracic spine. (Filing No. 43-1 at CM/ECF pp. 3-4.) No. acute osseous or alignment abnormality was observed on Plaintiff's lumbar spine. (Filing No. 43-1 at CM/ECF p. 3.) With respect to Plaintiff's thoracic spine, the X-ray indicated “T11 age-indeterminate wedge compression deformity with approximately 30% loss of height” but no fractures, dislocations, or alignment abnormality. (Filing No. 43-1 at CM/ECF p. 4.)

         4. On May 16, 2014, Plaintiff underwent a procedure in which glass was removed from his forearm. (Filing No. 43-1 at CM/ECF p. 5.)

         5. On May 23, 2014, Plaintiff received a lower-bunk pass for 30 days. (Filing No. 43-1 at CM/ECF p. 6.)

         6. On June 5, 2014, Plaintiff was seen by Dr. Christina-Lynn Ferguson regarding his chronic back pain. (Filing No. 43-1 at CM/ECF p. 7.) Dr. Ferguson discussed with Plaintiff that Flexeril should be limited to short periods of time. (Filing No. 43-1 at CM/ECF p. 7.) Plaintiff was prescribed Methocarbamol 750 mg for back spasms. (Filing No. 43-1 at CM/ECF p. 7.)

         7. On August 7, 2014, medical saw Plaintiff regarding pain in his right hand. (Filing No. 43-1 at CM/ECF p. 8.) The next day, on August 8, 2014, Plaintiff had an X-ray of that hand. (Filing No. 43-1 at CM/ECF p. 8.)

         8. On October 16, 2014, Plaintiff received a lower-bunk pass for 90 days. (Filing No. 43-1 at CM/ECF p. 9.)

         9. On October 18, 2014, Plaintiff requested a refill of his Methocarbamol prescription for his back pain. (Filing No. 43-1 at CM/ECF p. 11.) It was refilled three days later. (Filing No. 43-1 at CM/ECF p. 11.)

         10. On October 20, 2014, Plaintiff received a lower-bunk pass for twelve months. (Filing No. 43-1 at CM/ECF p. 10.)

         11. Upon referral, Plaintiff saw an orthopedic specialist on November 3, 2014 for his hand pain. (Filing No. 43-1 at CM/ECF p. 12.) X-rays indicated post-traumatic arthritis, secondary to closed fist injuries. (Filing No. 43-1 at CM/ECF p. 12.) The orthopedic specialist, Dr. Scott Strasburger, had no recommendations for treatment. (Filing No. 43-1 at CM/ECF p. 12.)

         12. On November 19, 2014, Plaintiff was seen by medical for back and foot pain. (Filing No. 43-1 at CM/ECF p. 14.) Medical continued Plaintiff's prescription for Tramadol and Ibuprofen 800 mg as needed. (Filing No. 43-1 at CM/ECF p. 14.)

         13. On November 19, 2014, Plaintiff was given a medical-equipment pass for orthotic arches. (Filing No. 43-1 at CM/ECF p. 15.)

         14. On December 22, 2014, after reporting that the outside orthopedist said surgery would not help Plaintiff's wrist, medical requested (and it was approved) up to six visits for physical therapy for Plaintiff's right hand/wrist. (Filing No. 43-1 at CM/ECF p. 13.)

         15. On December 22, 2014, Plaintiff was given a medical-equipment pass for a brace/splint for carpal tunnel. (Filing No. 43-1 at CM/ECF p. 16.)

         16. On December 24, 2014, Plaintiff met with medical and discussed his right wrist pain and how they would proceed with physical therapy to work on strengthening his grip and increasing his range of motion. (Filing No. 43-1 at CM/ECF p. 17.) Medical also ordered fish oil 1000 mg for joint pain. (Filing No. 43-1 at CM/ECF p. 17.)

         17. On January 8, 2015, and January 22, 2015, Plaintiff did not show up for his scheduled physical therapy appointments. (Filing No. 43-1 at CM/ECF pp. 18-19.)

         18. On February 3, 2015, Plaintiff met with P.A. Cameron Eklund to discuss his neck and hand pain. (Filing No. 43-1 at CM/ECF p. 20.) P.A. Eklund prescribed a cervical pillow for six months, a cock-up wrist splint to sleep in, and continued physical therapy. (Filing No. 43-1 at CM/ECF p. 20.)

         19. On February 12, 2015, Plaintiff met with Dr. Ferguson complaining of back pain. (Filing No. 43-1 at CM/ECF pp. 20-21.) Dr. Ferguson advised Plaintiff to continue taking Tramadol for back and hand pain, continue using wrist splint, and was prescribed 300 mg Gabapentin to use in the mornings for back pain. (Filing No. 43-1 at CM/ECF p. 21.)

         20. On March 25, 2015, Plaintiff received a medical equipment pass for arch insoles. (Filing No. 43-1 at CM/ECF p. 22.)

         21. On April 3, 2015, medical ordered, and Plaintiff received, an X-ray on his elbow. (Filing No. 43-1 at CM/ECF p. 23.)

         22. On April 27, 2015, Plaintiff failed to attend his scheduled appointment. (Filing No. 43-1 at CM/ECF p. 24.)

         23. On May 8, 2015, Plaintiff failed to attend his scheduled appointment. (Filing No. 43-1 at CM/ECF p. 24.)

         24. On May 27, 2015, Plaintiff met with APRN Julie Pew with complaints of hand and knee pain. (Filing No. 43-1 at CM/ECF p. 24.) APRN Pew noted Plaintiff was already taking Tramadol 50 mg three times per day, Gabapentin 300 mg in the morning, and Methocarbamol 750 mg two times per day. (Filing No. 43-1 at CM/ECF p. 24.) APRN Pew added Naproxen 500 mg twice per day as needed for hand and knee pain with one refill. (Filing No. 43-1 at CM/ECF p. 24.) Additionally, APRN Pew ordered an X-ray of his knee. (Filing No. 43-1 at CM/ECF p. 24.)

         25. On May 29, 2015, Plaintiff received an X-ray of his knee. (Filing No. 43-1 at CM/ECF p. 25.)

         26. On or around the summer of 2015, Plaintiff was released from prison and released into the community. (Filing No. 43-1 at CM/ECF pp. 26, 95.)

         27. On or about October 22, 2015, Plaintiff was back within NDCS custody and complained of back pain in an IIR. (Filing No. 43-1 at CM/ECF p. 27.) The next day, NDCS staff informed Plaintiff he should start receiving Tramadol, Flexeril, and Gabapentin that day. (Filing No. 43-1 at CM/ECF p. 27.)

         28. On October 27, 2015, Plaintiff met with medical to address complaints of back pain. (Filing No. 43-1 at CM/ECF p. 28.) Plaintiff complained his Tramadol 50 mg twice per day was not helping and that he was not receiving Flexeril. (Filing No. 43-1 at CM/ECF p. 28.) P.A. Jennifer Biestek informed Plaintiff that “Cyclobenzaprine, ” which he had been receiving, was, in fact, Flexeril. (Filing No. 43-1 at CM/ECF p. 28.) P.A. Biestek noted in Plaintiff's medical file that he had a history of drug abuse (methamphetamines, cocaine, and marijuana) per his intake physical. (Filing No. 43-1 at CM/ECF p. 28.) P.A. Biestek declined to increase Plaintiff's Tramadol because she did not believe there was enough medical documentation of necessity based on MRI findings. (Filing No. 43-1 at CM/ECF p. 28.) Defendant Dr. Hustad agreed with P.A. Biestek's treatment plan. (Filing No. 43-1 at CM/ECF p. 28.)

         29. On October 29, 2015, Plaintiff received a lower-bunk pass for 365 days. (Filing No. 43-1 at CM/ECF p. 29.)

         30. On November 2, 2015, Plaintiff met with P.A. Flinn complaining of wrist, hand, and back pain. (Filing No. 43-1 at CM/ECF p. 30.) Plaintiff believed that there was some sort of surgery to fix the problems. (Filing No. 43-1 at CM/ECF p. 30.) P.A. Flinn informed him surgery is not done with compression fractures. Filing No. 43-1 at CM/ECF p. 30.) P.A. Flinn ordered an X-ray of Plaintiff's hand and wrist and restricted Plaintiff from weightlifting or playing basketball. (Filing No. 43-1 at CM/ECF p. 30.) Plaintiff said he did not lift weights, but P.A. Flinn noted that his physique suggested otherwise. (Filing No. 43-1 at CM/ECF p. 30.)

         31. On November 2, 2015, Plaintiff was approved for a physical therapy consultation. (Filing No. 43-1 at CM/ECF p. 30.)

         32. On November 3, 2015, Plaintiff received an X-ray of his right wrist and hand. (Filing No. 43-1 at CM/ECF p. 31.) No. evidence of an acute fracture or dislocation in the hand was observed. (Filing No. 43-1 at CM/ECF p. 31.)

         33. On November 5, 2015, Plaintiff received a physical therapy evaluation and approval for six sessions. (Filing No. 43-1 at CM/ECF p. 32.)

         34. On November 19, 2015, Dr. Hustad saw Plaintiff because of “ongoing complaints of inadequate management of chronic mid back pain.” (Filing No. 43-1 at CM/ECF p. 33.) After discussion with, and examination of, Plaintiff, Dr. Hustad ordered Plaintiff's Naproxen discontinued (Plaintiff reported it was not effective), increased Tramadol to 50 mg 3 times per day, increased Gabapentin to 400 mg one in morning and two at night. (Filing No. 43-1 at CM/ECF p. 34.) Dr. Hustad strongly encouraged Plaintiff to comply with physical therapy recommendations and expressed his “long-term prognosis is to be found in non-medication modalities.” (Filing No. 43-1 at CM/ECF p. 34.)

         35. On December 23, 2015, Plaintiff was given 60 mg of Ketorolac after feeling pain from lifting heavy milk carts. (Filing No. 43-1 at CM/ECF p. 35.)

         36. On December 31, 2015, Dr. Hustad saw Plaintiff to follow-up on his low back and neck pain. (Filing No. 43-1 at CM/ECF p. 36.) Dr. Hustad requested a neurosurgical consultation to evaluate possible carpal tunnel syndrome and Plaintiff's low back pain in light of his MRI in October 2015. (Filing No. 43-1 at CM/ECF p. 37.) Dr. Hustad ordered an X-ray of Plaintiff's cervical spine, thoracic spine, and lumbar sacral spine. (Filing No. 43-1 at CM/ECF p. 37.) Dr. Hustad increased Plaintiff's Gabapentin to 600 mg in the morning and 1200 mg at night. (Filing No. 43-1 at CM/ECF p. 37.) Dr. Hustad reviewed and continued Plaintiff's other prescriptions such as Methocarbamol 750 mg twice a day and Tramadol 50 mg three times a day. (Filing No. 43-1 at CM/ECF p. 38.)

         37. On January 5, 2016, Plaintiff had an X-ray of lumbar, thoracic, and cervical spine per Dr. Hustad's order. (Filing No. 43-1 at CM/ECF p. 39.) Radiograph of the cervical, thoracic, and lumbar spine resulted in normal impression. (Filing No. 43-1 at CM/ECF p. 39.)

         38. On January 19, 2016, Dr. Hustad sent Plaintiff to an outside neurological and spinal surgery consult regarding his back pain. (Filing No. 43-1 at CM/ECF pp. 41-42.) Consult determined there was nothing surgical to offer for Plaintiff's back pain and “really doubt[ed]” that injections would be helpful either. (Filing No. 43-1 at CM/ECF pp. 42-43.)

         39. On February 2, 2016, Dr. Kohl approved Plaintiff to see an outside orthopedic surgeon for a consultation regarding a cyst on his wrist and hand pain. (Filing No. 43-1 at CM/ECF p. 43.)

         40. On February 4, 2016, Plaintiff received an X-ray of his hand. (Filing No. 43-1 at CM/ECF p. 44.)

         41. On February 23, 2016, per Dr. Hustad's referral, Plaintiff met with an outside orthopedic surgeon who explained treatment options for his cyst on his wrist to include observation, compression, aspiration, and surgical excision. (Filing No. 43-1 at CM/ECF pp. 45-48.) Plaintiff indicated he wished to proceed with surgery. (Filing No. 43-1 at CM/ECF p. 46.)

         42. On March 1, 2016, Dr. Hustad met with Plaintiff to discuss the surgical consult and Plaintiff's back and elbow pain. (Filing No. 43-1 at CM/ECF p. 48.) Since the time of the consult with the orthopedic surgeon, the cyst on Plaintiff's hand had “gone away” and was no longer causing symptoms. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad ordered X-rays of both of Plaintiff's elbows because of complaints of chronic pain. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad discussed with Plaintiff the possibility of using Cyclobenzaprine for musculoskeletal pain; however, a drug interaction query indicated increased risk of seizures if taken concomitantly with Tramadol. (Filing No. 43-1 at CM/ECF p. 48.) As such, Dr. Hustad chose not to prescribe Cyclobenzaprine at that time. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad recommended Plaintiff complete his physical therapy regarding his back pain. (Filing No. 43-1 at CM/ECF p. 48.) Dr. Hustad renewed Plaintiff's Tramadol prescription for two more weeks. (Filing No. 43-1 at CM/ECF p. 48.)

         43. On March 3, 2016, per Dr. Hustad's request, Plaintiff received X-rays of both elbows. (Filing No. 43-1 at CM/ECF p. 49.)

         44. On March 29, 2016, Dr. Hustad met with Plaintiff following receipt of IIRs concerning neck pain. (Filing No. 43-1 at CM/ECF p. 50.) Dr. Hustad ordered X-rays, encouraged continued physical therapy, renewed Plaintiff's lower bunk pass for 180 days, renewed Plaintiff's prescription of Tramadol, and scheduled to see Plaintiff again after he had completed more X-rays and physical therapy. (Filing No. 43-1 at CM/ECF p. 50.)

         45. On March 31, 2016, Plaintiff received a medical equipment pass for a back support/brace. (Fil ...


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