Joyce v. Finkbeiner et al

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
MICHAEL TYRONE JOSEPH JOYCE 	PLAINTIFF
v. 	Civil No. 6:23-cv-06029-SOH-BAB
SHERIFF SCOTT FINKBEINER (Hot Spring
County, Arkansas);
JAIL ADMINISTRATOR FRED PHILLIPS;
OFFICER BERLAN (Badge #141) and
OFFICER PILCHER 	DEFENDANTS
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. Pursuant to the provisions
of 28 U.S.C. § 636(b)(1) and (3), the Honorable Susan O. Hickey, Chief United States District
Judge, 	referred 	this 	case 	to 	the 	undersigned 	for 	the 	purpose 	of 	making 	a 	Report 	and
Recommendation. 	Currently before the Court is Defendants’ Motion for Summary Judgment.
(ECF No. 17).
I. BACKGROUND
Plaintiff filed his Complaint on March 16, 2023. 	(ECF No. 1). 	Plaintiff is currently
incarcerated in the Arkansas Division of Correction (“ADC”), but his claims center on his
incarceration in the Hot Spring County Detention Center (“HSCDC”), alleging he was denied
medical care. (Id.). According to records attached to Defendants’ Motion for Summary Judgment,
Plaintiff was booked into this facility for a parole violation and revocation on February 16, 2023.
(ECF No. 19-2 at 1). He was transferred to the ADC to serve a 20-year sentence on March 31,
2023. (Id.).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 1 of 17 PageID #:
<pageID>

2
For his first claim, Plaintiff alleges that on February 24, 2023, Defendants Phillips and
Berlan denied him medical care. Plaintiff states:
I have been experiencing chest pains as well as my left arm being numb. 	I am
diagnosed with sarcoidosis of the lung and I have neuropathy of the extremities. I
have documented seizures, low blood sugar, and high blood pressure issues. My
tooth was broken on a burrito on 3-1-230F
1 and I’ve put countless requests in on paper
and on the kiosk. I have experienced these pains and symptoms since 2-19-23. I
first placed a request on the kiosk on 2-24-23. Officer Berlan was informed over
the intercom of the severity of the situation and failed to react in an urgent or timely
manner. Fred Phillips has also been aware of these situations and still nothing has
been done. My chest is still hurting and I feel as if I am going to have a seizure
everyday and night that I am alive. My left arm is still numb regardless of being
prescribed medication 2-3 weeks later. I believe my heart and lungs are damaged
because of this neglect. My blood pressure reached excessive limits and so did my
blood sugar levels. Also, I felt weak as if my blood pressure and sugar levels were
too low.
(Id. at 4-5). Plaintiff proceeds against these Defendants in their official and individual capacities.
(Id. at 5). 	As his official capacity claim, Plaintiff alleges that he was denied x-rays or medical
attention to establish if he was “actually OK at the time of the incident and was not injured further.”
(Id.).
For his second claim, Plaintiff alleges that Defendants Phillips and Pilcher denied him
medical care on February 16, 2023. (Id. at 6). He alleges:
Upon being booked into the county jail, I had a wrist brace on my left hand to
immobilize my right thumb. My thumb is throbbing and rotting (looks) every day.
After approximately a month later I was issued Ibuprofen for pain. I informed jail
staff I had a knuckle replacement in my thumb and nothing has been done except
for the medication. 	No x-rays or anything have been performed in order to
determine if the replacement has been injured or altered in any way. Neither the
doctor nor Mr. Fred Phillips have done anything to help in this matter. The doctor
did ask me if I had a cardiologist or orthopedic surgeon in which I stated “I do not
‘cause I’m in here.” My thumb hurts more and more everyday as I continue to wear
my wrist brace. No matter how I lay, stand, or sit my thumb throbs.
1 The Court notes that the broken tooth is alleged to have occurred after February 24, 2024.
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 2 of 17 PageID #:
<pageID>

3
(Id. at 6). Plaintiff proceeds against these Defendants in their official and individual capacities.
(Id. at 7). As his official capacity portion of this claim, Plaintiff alleges that the neglect or failure
to take his injury seriously may have caused more damage. He states he cannot know this because
he has not yet been given any x-rays or hospital visits. (Id.).
For his third claim, Plaintiff alleges he was denied “medical or mental care” by Defendants
Phillips and Pilcher on February 16, 2023, and March 6, 2023. (Id. at 7). Plaintiff alleges:
I have been diagnosed with mental illnesses and the jail is aware of this. 	I have
been prescribed respiridone, but not trazedone [sic] or any other anti-depressant. I
have asked for the services of Ouachita behavioral health and wellness and have
also wrote to them in an attempt to return to therapy. On March 6, 2023, Officer
Pilcher had me up front awaiting court and one of the parole officers informed him
that “he is much easier to deal with when he is on his meds.” Referring to me and
knowing this Officer Pilcher tried to let someone know of these findings and still
Fred Phillips has done nothing to meet these requirements to be resolved. There is
no anxiety medication for me and it is slowly killing me literally. My mental state
is at stake at this point and I am severely suffering greatly from it.
(Id. at 8). Plaintiff proceeds against these Defendants in their official and individual capacities.
(Id.). As his official capacity claim he alleges that “not having my mental meds or therapy sessions
are no sufficient for my mental status. No one at this facility is taking this seriously.” (Id.).
Plaintiff seeks compensatory, punitive, and other damages. 	(Id. at 9). 	Plaintiff seeks
$50,000 in compensation for pain and suffering. He also asks that the court rule that Defendants
cannot “do this to any inmates in the future. Please send me to a treatment center or do not hold
charges against me.” Plaintiff also asks for a subpoena of his records and for $150,000 for being
“locked up for no reason.” (Id.).
Defendants filed their Motion for Summary Judgment on March 8, 2024. (ECF No. 17).
They argue Defendants were not deliberately indifferent to Plaintiff’s serious medical needs, are
entitled to qualified immunity, and Plaintiff failed to state any official capacity claims. (ECF No.
18). Defendants first argue that the Defendants are not medical professionals and did not deny or
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 3 of 17 PageID #:
<pageID>

4
interfere with Plaintiff’s medical care. Instead, they complied with HSCDC sick call policy and
relied upon medical contractor Darrell Elkins to provide medical care. (Id. at 3-4).
Defendants further note that Plaintiff testified in his deposition that he did not intend to
name Defendant Pilcher as a Defendant because Pilcher did not do anything wrong and tried to
help him. (Id. at 4). He further testified Pilcher did not deny him medical care. (Id.).
They summarize Plaintiff’s allegations as stating he was denied medical care for “chest
pain, left arm numbness, seizures, low blood sugar, high blood pressure, a broken tooth, a right
thumb injury, and mental illness,” 	(Id.), and respond that Plaintiff failed to prove that he was
diagnosed with any conditions requiring treatment. (Id. at 5). Specifically:
• 	None of the named Defendant are medical professionals and none of them
witnessed Plaintiff in need of medical care. (Id.).
• 	When Plaintiff was booked into the facility, Plaintiff reported that he was not
currently on prescribed medication or insulin. 	He reported that he did not have
“high blood pressure, asthma, diabetes, epilepsy, ulcers, or a heart condition.”
Finally, he reported that his "top tooth hurt”" and he had arthritis. (Id. at 6).
• 	Plaintiff failed to prove that he was diagnosed with any heart or chest condition
requiring treatment and had not seen a doctor for chest pain for approximately a
year and half prior to entering HSCDC. (Id.). Plaintiff did not provide any evidence
that he was prescribed any treatment of medication for chest pain. (Id.).
• 	Plaintiff failed to prove that he was diagnosed with any condition related to left arm
numbness requiring treatment. (Id. at 7). 	Plaintiff testified that he had been
diagnosed with neuropathy while at the ADC previously and given gabapentin.
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 4 of 17 PageID #:
<pageID>

5
(Id.). However, he testified that in his current ADC incarceration he has not been
provided any treatment for left arm numbness. (Id. at 7-8).
• 	Plaintiff failed to prove he was diagnosed with any seizure condition. 	(Id. at 7).
“Rather, Plaintiff testified that he has never been diagnosed with a seizure
condition, has never seen a doctor regarding seizures, and has never taken
medication for seizures.” (Id.).
• 	“Plaintiff has failed to prove that he was diagnosed with any condition related to
low blood sugar requiring treatment. Plaintiff testified that he has never been
diagnosed with low blood sugar.” (Id. at 8).
• 	“Plaintiff has failed to prove that he was diagnosed with any condition related to
high blood pressure requiring treatment. Plaintiff testified that he does not know if
he’s been diagnosed with high blood pressure.”
• 	Plaintiff gave various renditions of the condition of his tooth after biting a burrito
on February 22, 2023. (Id. at 9). He testified that it was fully intact but was loose.
(Id. at 9). 	Medical provider Elkin examined the tooth on March 5, 2023, and
prescribed Clindamycin. Plaintiff testified that the tooth did not become abscessed
and the antibiotic helped with the pain. 	(Id.). 	The tooth was pulled when he
transferred to the ADC. (Id.).
• 	Plaintiff failed to prove that he was diagnosed with a thumb injury requiring
treatment. 	Plaintiff testified that he had a knuckle replacement in 2015, that it
began to hurt a week before his incarceration in the HCSDC, but that he did not
seek medical attention for it before entering the facility. (Id. at 9-10). He further
testified that medical provider Elkin may have given him Ibuprofen. 	(Id. at 10).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 5 of 17 PageID #:
<pageID>

6
He further testified the ADC has given him Tylenol and Ibuprofen for his thumb.
(Id.).
• 	Plaintiff failed to prove he was diagnosed with any mental illness or condition
requiring treatment. 	(Id. at 10). 	Plaintiff testified he had been diagnosed with
Schizophrenia, Bipolar, and Depression. He testified he was prescribed Trazadone
and Risperdal for his conditions. He is not, however, taking either one at the ADC.
Instead, he has taken only Paxil. (Id.). Further, he received Risperidone while at
HSCDC. (Id. at 24).
• 	None of these alleged conditions resulted in a need for care that would be obvious
to a layperson. (Id. at 11).
• 	Even if the Court finds that any of the above conditions were objectively serious,
there is no evidence that the subjective prong of the deliberate indifference test has
been met. (Id. at 11-12). Upon booking, Plaintiff stated he was taking Risperdal,
trazadone, gabapentin, amlodipine, ibuprofen and Robaxin. (Id. at 13). That same
day, HSCDC personnel called the Walgreen’s pharmacy indicated by Plaintiff to
confirm. 	Defendant Phillips also sent a photo of Plaintiff’s handwritten list to
medical provider Elkin. (Id.). It was his understanding that Elkin reviewed the list
and started Plaintiff on medications as necessary. 	(Id.). 	Plaintiff submitted
numerous medical requests and grievances. Each was forwarded to Elkin. (Id. at
13). Plaintiff’s main grievance against Defendant Phillips appears to be that he did
not override the decisions of medical provider Elkin. (Id. 13-14).
• 	Plaintiff 	was 	examined 	twice 	by 	Elkin, 	and 	was 	prescribed 	Ibuprofen,
Methocarbam, Risperidone, Gabapentin, Almodipine, Ibuprofen, Amox/K Clav,
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 6 of 17 PageID #:
<pageID>

7
Clindamycin, SMZ/TMP, Mupirocin, and Albuterol while in HSCDC. (Id. at 13-
14).
• 	Defendant Berlan does not recall the incident Plaintiff alleges occurred on March
12, 2023. (Id. at 15). However, during that timeframe, Defendant Berlan worked
night shift in the tower and was not to leave the tower absent an emergency. (Id.).
Thes staff member assigned to the floor would have been responsible for seeing to
Plaintiff in the event of a health issue. 	(Id.). 	Defendant Berlan does not recall
witnessing Plaintiff in need of medical care.
• 	Defendant Finkbeiner had no knowledge or personal involvement regarding
Plaintiff’s allegations. (Id. at 15).
Plaintiff filed his Summary Judgment Response and Statement of Facts on April 4, 2024.
(ECF Nos. 22, 23). In his Response, Plaintiff argues that Defendant Berlan refused to let anyone
know what was going on when Plaintiff called him on the intercom to complain that he had chest
pain on March 12, 2023, instead telling him to lay down and see how he felt. Plaintiff alleges he
should have sent a staff member or called 911. (ECF No. 22 at 1). The Court notes that in his
Complaint, Plaintiff alleges Defendant Berlan denied him medical care on February 24, 2023.
Plaintiff argues that his requests and grievances records show that HSCDC staff are
actually medical personnel, because they need to be able to recognize if an inmate is in need of
immediate attention according to HSCDC policy. 	(Id. at 2). 	Plaintiff raises several rhetorical
questions concerning prescriptions, asking why they were prescribed if he was not having clear
issues. 	(Id.). 	The Court notes that any medical prescriptions were made by medical provider
Darrell Elkin or Martha Hobson. (ECF No. 19-4 at 9-11).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 7 of 17 PageID #:
<pageID>

8
Plaintiff argues his medical records from Higginbotham Family Clinic indicated he was
experiencing “some stressful situations” prior to entering HSCDC. (Id.). The Court has reviewed
this record, Plaintiff’s Exhibit 1. 	The patient summary referenced by Plaintiff indicated he
reported a past medical history of bipolar, insomnia, and depression. The most recent appointment
in the record for this clinic was April 14, 2022, when he was seen for a follow-up visit after
presenting with a cough, nausea, and fever the prior week. At the earlier visit he diagnosed with
acute bronchitis, nasal congestion, and cough. 	(ECF No. 23 at 7, 14, 18, 19). 	At the April 14,
2022, visit he was diagnosed with mood disorder, adult BMI < 19kg, visual hallucination, auditory
hallucination, tobacco use, and major depressive order, recurrent, moderate. (Id. at 15). Plaintiff
was noted to be taking Paxil, trazadone, and albuterol. 	(Id. at 14). 	These were continued and
Claritin, Risperdal, and gabapentin were added. (Id. at 7, 16). His A1C was in the normal range.1F
2
(Id. at 18, 26). He reported burning in his feet for the last few days. (Id. at 18). The Court notes
that this visit is approximately 10 months prior to Plaintiff’s incarceration in HSCDC. The Court
also notes that he denied chest pain, shortness of breath, cough, or muscle aches. (ECF No. 23 at
19). There is no mention of a hand or thumb issue or infection.
Plaintiff argues he started an infection in his hand while at HSCDC and this infection
spread to his feet, leaving scars. (ECF No. 22 at 2-3). He references pictures of his hand at ECF
No. 19-4 at 16-17. 	(Id. at 3). 	Photos of his hand were sent to medical provider Elkin, who
responded "monitor." (ECF No. 19-4 at 16-17).
2 The Court notes that Plaintiff reported different histories to Dr. Higgenbotham on different dates.
On his April 14, 2022, appointment he reported a family history of diabetes, as well as polyuria
and polydipsia. (ECF No. 23 at 14). At his April 7, 2022, appointment he reported no history of
diabetes and no urinary or thirst issues. (Id. at 18).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 8 of 17 PageID #:
<pageID>

9
Plaintiff argues that his “mental status has never been quite normal so to speak,” and states
he asked HSCDC staff repeatedly for therapist Kristal Caldwell. (ECF No. 22 at 3). He references
his Exhibit 2 and Defendants Exhibit 19-2 at 2-15 and A2. Plaintiff’s Exhibit 2 consists of private
emails primarily to Caitlin Hubbard, who appears to be a romantic partner. (ECF No. 23 at 42-
49). ECF No. 19-2 is Plaintiff’s arrest and booking record and only consists of 3 pages. There is
no mention of his therapist. (ECF No. 19-2). ECF No. 19-3 is 13 pages long, and Plaintiff does
not reference specific pages in the grievances. 	Plaintiff was warned the Court would not sift
through the record to find factual support for his claims. The Court did review the grievances in
this instance, however, and there is no mention of Kristal Caldwell. Plaintiff also states that he
had no confidence or proof that Dr. Elkin was qualified to treat his mental health issues. (ECF No.
22 at 2).
Finally, 	Plaintiff 	argues 	that 	Defendant 	Finkbeiner 	made 	conflicting 	statements.
Specifically, Plaintiff states Finkbeiner swore in his affidavit that he had no face to face or written
contact with Plaintiff. (ECF No. 22 at 5). However, Plaintiff argues that in Defendant Phillips
affidavit, Phillips clearly states that he passed my request along and he saw me in the hallway with
the sheriff and chief.” (Id.). The Court reviewed both affidavits. Defendant Phillips does not state
that he passed information to Finkbeiner or that he saw Plaintiff talking to Finkbeiner. (ECF No.
19-1).
Plaintiff also submitted a Statement of Disputed Facts. (ECF No. 23). As a preliminary
matter, the Court notes that Plaintiff attached 84 pages of documents to his Statement of Facts. As
noted above, Plaintiff was warned the Court will not sift through the file to find support for the
factual contentions. Thus, only those documents properly referenced were examined.
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 9 of 17 PageID #:
<pageID>

10
Many of the Plaintiff’s responses do not identify the fact in dispute or why it is disputed,
despite being expressly directed to do by the Court. Instead, Plaintiff directs the Court to review
various documents in their entirety or makes a case citation. 	These responses will not be
considered. 	Other responses are not reflective of or responsive to a paragraph in Defendants’
Statement of Facts. For example, Defendants’ paragraph 2 simply states that an Inmate Medical
Form was completed at Plaintiff’s intake. 	(ECF No. 19 at 1). 	Plaintiff disputes this paragraph
because he believes there are contradictory questions concerning skin disease on the intake form.
(ECF No. 23 at 1). In paragraph 4 Defendants state that “[o]n February 23, 2023, a note listing
Plaintiff’s medications was provided to HSCDC medical provider Elkin, stating: “Respiridone
[sic], Trazodone, Gabapentin.” (ECF No. 19 at 1). Plaintiff disputes this paragraph because his
“DOB is ironically blocked out,” it was not his handwriting, and the date was incorrect. He also
argues that his access to medical was interfered with. (ECF No. 23 at 1). These type of responses
are not contradictory of the Statement of Facts and do not raise a question of material fact.
Defendant’ Paragraph 7 states: “From February 26, 2023 – March 5, 2023, Plaintiff’s blood
pressure and heart rate were routinely monitored by HSCDC medical personnel, who documented
the values: 77/54/150, 105/66/132, 116/66, 115/81/101, 100/54/125, 103/80/101, 108/87.” (ECF
No. 19 at 2). Plaintiff does not dispute that the readings were taken. Instead, he disputes that they
were taken by medical personnel. Instead, he states they were taken by jail staff. He also indicates
that his heart rate was not normal and not all blood pressures taken were recorded. Review of the
blood pressure log indicates blood pressure readings were taken on the dates indicated, but there
were no signatures or initials to indicate who took the readings. (ECF No. 19-4 at 7).
Defendants’ Paragraphs 20, 21, 22 detail grievances submitted by Plaintiff concerning his
thumb and his concern about a skin infection. (ECF No. 19 at 5-6). The responses indicate medical
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 10 of 17 PageID #:
<pageID>

11
was aware of the issue and had asked that Plaintiff be monitored. (Id.). Plaintiff disputes these
responses, stating he was never monitored by anyone. (ECF No. 23 at 2).
Defendants’ Paragraph 24 states: “On March 23, 2023, Plaintiff was prescribed Cleocin
300mg, Ibuprofen 800mg, Bactrim 800-160mg, and Mupirocin 2% ointment.” (ECF No. 19 at 6).
Plaintiff states he “was never administered any ointments or liquids during my incarceration.”
(ECF No. 23 at 2).
Defendants’ Paragraph 25 states: “Plaintiff submitted an undated, handwritten medical
request form, stating: ‘My problem is my thumb is swollen and in constant pain.’ See Exhibit A3,
Jail Medical File Information, page 4. Plaintiff was examined by HSCDC medical personnel, who
noted: ‘Chronic pain from hand injury. Ø new injury, Ø cellulitis, wearing splint.’” (ECF No. 19
at 6). Plaintiff disputes this by asking: “There was no examination of my thumb so how is there
no new injury?” (ECF No. 23 at 2).
Defendants’ Paragraph 26 states: “From March 1, 2023 – March 31, 2023, Plaintiff was
prescribed Amlodapine 5mg, Gabapentin 300mg , Methocarbam 750mg, Risperidone 1mg, an
Albuterol inhaler, and Augmentin 875mg-125mg.” (ECF No. 19 at 6). Plaintiff disputes that he
was given Augmentin on these dates. (ECF No. 19 at 2).
Defendants Paragraph 54 states: “Plaintiff testified that he has never been examined for
diabetes or had his A1C checked. 	See Exhibit B, Deposition of Michael Tyrone Joseph Joyce,
page 37:24-38:3.” (ECF No. 19 at 10). Plaintiff disputes this, stating A1C was not mentioned in
the deposition. (ECF No. 23 at 3). Review of his deposition indicates that he was asked multiple
times and in multiple ways if he had been tested for or diagnosed with diabetes or any other
condition related to low blood sugar. Plaintiff answered in the negative each time. (ECF No. 19-
6 at 37-40).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 11 of 17 PageID #:
<pageID>

12
Defendants Paragraph 65 states: Plaintiff testified that he broke his tooth on February 22,
2023 while eating a burrito provided by the HSCDC.. (ECF No. 19 at 11). Plaintiff disputes this,
stating: “I broke my tooth before entering HSCDC but I had requested medical attention since
February 22nd. I further injured my tooth on a burrito 3-1-23.” (ECF No. 23 at 3).
Defendants filed their Reply on April 10, 2024. (ECF No. 24). Defendants argue Plaintiff
has yet to provide any evidence that Defendant Berlan failed to let HSCDC floor staff know about
Plaintiff’s complaints. (Id. at 1). Nor has Plaintiff provided any verifying medical evidence that
any delay or denial of treatment cause his purported chest condition to worsen. 	(Id.). 	Rather,
Plaintiff admitted during his deposition that, although he has been transferred to the ADC, he still
has not received any considerable treatment concerning his alleged chest pains. (Id.)
Concerning his mental health care allegations, they note that in his Response Plaintiff
stated he had “no confidence or proof” that Elkin was qualified to provide mental health care
treatment or a referral for mental health care. (Id. at 1-2). They argue “Plaintiff had the opportunity
to seek mental health care from HSCDC medical provider Elkin, but admittedly chose not to.” (Id.
at 2).
Finally, they argue that Plaintiff’s Response to Defendants’ Statement of Undisputed Facts
fails to identify any material fact in dispute. (Id.). “Plaintiff’s Response largely disputes facts that
are not material, such as who specifically took Plaintiff’s blood pressure and stating that Plaintiff’s
medical requests were emergencies.” (Id.).
II. LEGAL STANDARD
Summary judgment is appropriate if, after viewing the facts and all reasonable inferences
in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986), the record “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).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 12 of 17 PageID #:
<pageID>

13
“Once a party moving for summary judgment has made a sufficient showing, the burden rests with
the non-moving party to set forth specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.” 	National Bank of Commerce v. Dow Chemical Co., 165
F.3d 602, 607 (8th Cir. 1999).
The non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita, 475 U.S. at 586. “They must show there is sufficient
evidence to support a jury verdict in their favor.” National Bank, 165 F.3d at 607 (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “A case founded on speculation or suspicion is
insufficient to survive a motion for summary judgment.” Id. (citing Metge v. Baehler, 762 F.2d
621, 625 (8th Cir. 1985)). 	“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 a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III. ANALYSIS
Plaintiff has not met his burden to set forth specific facts showing that a genuine issue of
material fact exists concerning his denial of medical care claims. Instead, Plaintiff’s allegations
are contradicted by the summary judgment record such that no reasonable jury could believe them.
The Eighth Amendment prohibition of cruel and unusual punishment prohibits deliberate
indifference to prisoners’ serious medical needs. Luckert v. Dodge County, 684 F.3d 808, 817 (8th
Cir. 2012). To prevail on his Eighth Amendment claim, Plaintiff must prove that Defendants acted
with deliberate indifference to his serious medical needs. 	Estelle v. Gamble, 429 U.S. 97, 106
(1976).
The deliberate indifference standard includes “both an objective and a subjective
component: ‘The [Plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 13 of 17 PageID #:
<pageID>

14
medical needs and (2) that the prison officials actually knew of but deliberately disregarded those
needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting Dulany v. Carnahan, 132
F.3d 1234, 1239 (8th Cir. 1997)).
To show that he suffered from an objectively serious medical need Plaintiff must show he
“has been diagnosed by a physician as requiring treatment” or has an injury “that is so obvious
that even a layperson would easily recognize the necessity for a doctor’s attention.” 	Schaub v.
VonWald, 638 F.3d 905, 914 (8th Cir. 2011) (citation omitted).
For the subjective prong of deliberate indifference, “the prisoner must show more than
negligence, more even than gross negligence, and mere disagreement with treatment decisions
does not give rise to the level of a constitutional violation.” Popoalii v. Correctional Med. Servs,
512 F.3d 488, 499 (8th Cir. 2008) (citation omitted). “Deliberate indifference is akin to criminal
recklessness, which demands more than negligent misconduct.” Id.
It is well settled that “[a] prisoner’s mere difference of opinion over matters of expert
medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional
violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal citation omitted). An
“inmate must clear a substantial evidentiary threshold to show the prison’s medical staff
deliberately disregarded the inmate’s needs by administering inadequate treatment.” Id. (internal
citations omitted). Despite this, issues of fact exist when there is a question of whether medical
staff exercised independent medical judgment, and whether the decisions made by medical staff
fell so far below the reasonable standard of care as to constitute deliberate indifference. See Smith
v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).
Plaintiff failed to provide any evidence in the summary judgment record that he was ever
diagnosed by a physician as requiring treatment for any condition except bronchitis and mental
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 14 of 17 PageID #:
<pageID>

15
health issues. The bronchitis was resolved at the time Plaintiff had his April 14, 2022 appointment
with Dr. Higginbotham. 	Plaintiff, therefore, failed to meet the first, objective, prong of the
deliberate indifference test for all conditions except a mental health issues.
Plaintiff fails to meet the second, subjective prong of the deliberate indifference test for his
mental health issues. 	Plaintiff was booked into HSCDC on February 16, 2023. 	Records from
Plaintiff’s free-world primary care provider Dr. Higginbotham indicate Plaintiff was prescribed
Paxil, trazadone, albuterol, Claritin, Risperdal, and gabapentin at his last visit in April 2022. When
booked into HSCDC, contact with Walgreen’s indicated Plaintiff’s current medication list was
Risperdal, gabapentin, albuterol, amlodipine, ibuprofen, and Robaxin on February 23, 2023. (ECF
No. 19 at 1; 19-2 at 3). 	Risperdal is the only psychiatric medication on the Walgreen’s list. 2F
3
According to the jail medical records, Plaintiff was prescribed ibuprofen, methocarbamol
(Robaxin), risperidone (Risperdal), gabapentin, and albuterol on February 24, 2023. (ECF No. 19-
4 at 9, 10). He was prescribed amlodipine on February 27, 2023. (ECF No. 19-4 at 9). He was
also started on Norvasc for blood pressure in response to Plaintiff’s medical request, although the
medical notation indicated that he “hadn’t had BP > 2yrs.” 	(ECF No. 19 at 1; 19-4 at 1).
Amoxicillin (Augmentin) was added on March 6, 2023. (ECF No. 19-4 at 10). Clindamycin was
added March 17, 2023. (Id.). Mupirocin (Bactroban) ointment was added March 24, 2023. (Id.).
Thus, during his month and a half incarceration in HSCDC, Plaintiff was prescribed the same
psychiatric and other medications for which he had current prescriptions prior to his arrest. 	He
placed several sick call requests for non-psychiatric issues, and additional medications were
prescribed in response to those requests. 	Additionally, Plaintiff both testified and stated in his
Summary Judgment Response that he did not ask for mental health treatment from the medical
3 Physician’s Desk Reference, available at www.pdr.net (last accessed Oct. 5, 2024).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 15 of 17 PageID #:
<pageID>

16
provider in HSCDC because he did not believe medical provider Elkin was qualified to provide
that treatment. (ECF Nos. 19 at 14; 19-6 at 64-65; 22 at 2).
Based on this summary judgment record, the Court concludes the care Plaintiff received
was constitutionally sufficient. Courts “hesitate to find an [E]ighth [A]mendment violation when
a prison inmate has received medical care.” Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990). See
also, e.g., Hudson v. McMillian, 503 U.S. 1, 9 (1992) (Eighth Amendment does not require that
prisoners receive “unqualified access to health care”); Harris v. Thigpen, 941 F.2d 1495, 1510
(11th Cir. 1991) (it is not constitutionally required that care be “perfect, the best obtainable, or
even very good”) (citation omitted); Schaub v. VonWald, 638 F.3d 905, 935 (8th Cir. 2011) (Beam,
J., dissenting) (“inmates are only entitled to adequate medical care, not the best care possible”)
(internal quotation marks and citation omitted).
While Plaintiff disagrees with the quality of care provided, such disagreement does not rise
to a constitutional violation. 	The Eighth Circuit has “repeatedly held that a prisoner’s mere
difference of opinion over matters of expert medical judgment or a course of medical treatment
fail to rise to the level of a constitutional violation.” Smith v. Marcantonio, 910 F.2d 500, 502 (8th
Cir. 1990) (prisoner’s disagreements on location of rehabilitation for burn injuries, amounts of
pain medication, and frequency of bandage changes failed to state deliberate indifference); Taylor
v. Turner, 884 F.2d 1088, 1090 (8th Cir. 1989) (prisoner’s disagreement about treatment for mental
deficiency, surgery for hernia, hearing deficiency, and nutritional deficiency found insufficient);
Lair v. Ogelsby, 859 F.2d 605, 606 (8th Cir. 1988) (mere disagreement about which medication
should have been prescribed does not constitute an Eighth Amendment violation); Martin v.
Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985) (prisoner’s disagreement about treatment of pain in
his lower back and arm did not constitute an Eighth Amendment violation).
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 16 of 17 PageID #:
<pageID>

17
Finally, as correctly argued by Defendants, the named Defendants for this case are not
medical professionals. 	Even if the care in question had been constitutionally deficient, there is
nothing in the summary judgment record before the Court that indicates Plaintiff suffered from
any condition so obvious that even a layperson would easily recognize the necessity for a doctor’s
attention.3F
4 Nor is there anything in the summary judgment record which indicates the Defendants
delayed or interfered with Plaintiff’s medical care. To the contrary, Plaintiff’s frequent and varied
medical requests were passed on to the medical providers and Plaintiff’s care was adjusted
accordingly.
IV. CONCLUSION
Accordingly, it is recommended that Plaintiff’s Complaint (ECF No. 1) be DISMISSED
WITH PREJUDICE.
Referral Status: This case should not remain referred because all matters have been
recommended for dismissal in this Report and Recommendation.
The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
DATED this 10th day of October 2024.
/s/ 	Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
4 The Court notes that this includes the photos of his thumb.
Case 6:23-cv-06029-SOH Document 27 Filed 10/10/24 Page 17 of 17 PageID #:
<pageID>