Delaughter v. Hatten

• Decision Date: 06 July 2022
• Docket Number: CIVIL 1:14-cv-18-RHWR
• Parties: THAD EVERETT DELAUGHTER PLAINTIFF v. MICHAEL HATTEN, GLORIA PERRY, and DONALD FAUCETT DEFENDANTS
• Court: U.S. District Court — Southern District of Mississippi

THAD EVERETT DELAUGHTER PLAINTIFF
v.
MICHAEL HATTEN, GLORIA PERRY, and DONALD FAUCETT DEFENDANTS

CIVIL No. 1:14-cv-18-RHWR

United States District Court, S.D. Mississippi, Southern Division

July 6, 2022

MEMORANDUM OPINION AND ORDER DENYING THE RENEWED MOTION [244] FOR JUDGMENT AS A MATTER OF LAW OR, IN THE ALTERNATIVE, A NEW TRIAL OR REMITTITUR AND DENYING THE MOTION [246] TO ALTER OR AMEND JUDGMENT

ROBERT H. WALKER UNITED STATES MAGISTRATE JUDGE

BEFORE THE COURT is the Renewed Motion [244] for Judgment as a Matter of Law or, in the Alternative, a New Trial or Remittitur, filed by Defendant Gloria Perry. Also before the Court is the Motion [246] to Alter or Amend Judgment filed by Defendant Donald Faucett. Both Motions have been fully briefed. Having considered the parties' submissions, the record in this case, and relevant legal authority, the Court finds that both Motions should be denied.

I. BACKGROUND

A. Factual Background

Plaintiff Thad Everett Delaughter (“Plaintiff”) has been incarcerated by the Mississippi Department of Corrections (“MDOC”) since 2006. Trial Tr. [237] at 8-9. He has suffered from rheumatoid arthritis since early childhood. Id. at 8. And in 1992, at the age of seventeen, Plaintiff had a bilateral hip replacement. Id. Plaintiff also had both knees replaced in the early 2000s, prior to his incarceration. Id. at 9.

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In January 2010, Plaintiff began submitting numerous sick call requests to prison officials regarding pain in his left hip. Id; see also Pl.'s Ex. 15, at 2-12. On July 13, 2011, Plaintiff saw Dr. Elliott Nipper (“Dr. Nipper”), an outside orthopedic specialist, regarding that pain. Joint Ex. 1, at 4. Dr. Nipper determined that the acetabular component in Plaintiff's left hip had failed and noticed the presence of debris in the hip. Id. Following a series of scans, Plaintiff returned to Dr. Nipper on September 20, 2011, and elected to proceed with surgery Id. at 13-14. Dr. Nipper advised Plaintiff that the surgery would require “complex reconstructive components, most probably a custom acetabular component.” Id. The surgery, scheduled for October 24, 2011, Joint Ex. 3, at 2, was subsequently canceled without explanation and never rescheduled, Trial Tr. [236] at 88.

Plaintiff did not see an orthopedic specialist again until he returned to Dr. Nipper on September 5, 2013. Id. at 90; Joint Ex. 1, at 15. Following the initial visit, Dr. Nipper had attempted to refer Plaintiff for a custom component evaluation, but his “insurance” would not cover it. Joint Ex. 1, at 15. Therefore, Dr. Nipper represents that he attempted to refer Plaintiff to the University of Mississippi Medical Center (“UMMC”). Id. In a letter years later, Dr. Nipper would inform Plaintiff that “[u]nfortunately, with the MDOC, I am unable to do the surgery as the required reconstructive devices cannot be paid for at my facility.” Pl.'s Ex. 9, at 2. In a September 2019 deposition, Dr. Nipper would testify that “somebody had fussed” about the cost of the custom components, but that he could not accurately recall who. Def.s' Ex. 10, at

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According to MDOC records, Dr. Nipper's referral of Plaintiff to UMMC was approved in July 2014, Pl.'s Ex. 7-B, at 2, but he did not see a UMMC doctor until March 2016, Joint Ex. 6, at 2. Instead, on November 23, 2015, Plaintiff saw Dr. Samuel Box (“Dr. Box”) of Mitias Orthopedics in New Albany, Mississippi. Joint Ex. 4, at 2-3. Dr. Box referred Plaintiff to Dr. Roland Roberson (“Dr. Roberson”) of Specialty Ortho Group in Tupelo, Mississippi. Id. at 4. Dr. Roberson saw Plaintiff on January 8, 2016, and referred him to UMMC. Joint Ex. 5, at 4.

On March 8, 2016, Plaintiff saw Dr. Adam Ryan Smith (“Dr. Smith”) at UMMC. Joint Ex. 6, at 2. Dr. Smith noted that Plaintiff's left hip “has migrated proximally significantly with a fracture of the poly,” that “the stem has migrated proximally through the fracture and the polys,” and that “it is causing significant wear.” Id. Dr. Smith also noted severe migration in the right hip. Id. Dr. Smith ordered a series of tests and directed Plaintiff to return in two weeks for a follow-up. Id. at 3. Plaintiff returned on April 5, 2016; however, because he admitted to recently using nicotine and marijuana, Dr. Smith directed him to return in two months to undergo a drug test, before scheduling the surgery. Id. at 7. Plaintiff did not return to Dr. Smith. Trial Tr. [236] at 99.

Instead, Plaintiff saw Dr. Patrick Peavey (“Dr. Peavy”) at UMMC on January 5, 2017. Joint Ex. 6, at 10. Dr. Peavy indicated that because Plaintiff was set to be released in the next five years, the surgery should wait until then. Id. at 10-11. However, the parties agreed to the inaccuracy of Dr. Peavy's notes. Plaintiff did not see any other orthopedic specialists in 2017. Trial Tr. [236] at 105-06.

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Perry testified that in July 2018, she contacted Campbell Clinic in Memphis, Tennessee, Oschner's Clinic, and Tulane University School of Medicine Department of Orthopedics in New Orleans, Louisiana. Id. at 108-09. All three allegedly declined to provide Plaintiff an appointment. Id; Def.s' Ex. 1, at 3. Perry also testified that she continued to attempt to contact UMMC throughout the remainder of 2018. Trial Tr. [236] at 108-09. On August 28, 2018, Plaintiff saw Dr. Sameer Naranje (“Dr. Naranje”) at the University of Alabama Birmingham. Joint Ex. 7, at 2-4. Dr. Naraje scheduled the surgery for October 1, 2018, but subsequently canceled it due to his belief that UMMC was already planning to perform the surgery. Id. at 7-8. Perry would write Dr. Naranje sixteen months later, in February 2020, asking him to reconsider. Def.s' Ex. 9, at 2.

In February 2019, Plaintiff saw Dr. William Porter in Vicksburg, Mississippi, who referred him to a revision specialist. Def.s' Ex. 1, at 2-3. In June 2019, Plaintiff allegedly saw Dr. Michael Dulske with Capital Orthopedics in Jackson, Mississippi, who referred him to UMMC. Def.s' Ex. 4, at 4. Perry testified that during the remainder of 2019, she attempted to obtain appointments with various outside specialists, including Mississippi Sports Medicine in Jackson, Mississippi; Bienville Orthopedic Specialists on the Mississippi gulf coast; Dr. Michael Chamblee in Meridian, Mississippi, Dr. Niels Linschoten of Baton Rouge Orthopedic Clinic in Baton Rouge, Louisiana, and Dr. Al Mollabashy in Dallas, Texas. Trial Tr. [236] at 110-12. As well as Dr. Nipper who by then had moved from Southern Bone & Joint to

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North Louisiana Orthopedic & Sports Medicine. Id. Each allegedly declined to see Plaintiff. Id.

On January 31, 2020, Perry wrote a letter to Dr. Benjamin Stronach at UMMC seeking an appointment for Plaintiff. Def.s' Ex. 4, at 2. Perry retired as Chief Medical Officer on September 30, 2020. Trial Tr. [236] at 34. Dr. Donald Faucett succeeded her in that position. The records in evidence do not indicate that any other attempts were made to contact an outside specialist during 2020. At a pretrial status conference, defense counsel informed the Court that Plaintiff had been seen by orthopedic specialist at UMMC on September 10, 2021, who determined that surgery remained necessary. As of the date of trial, no surgery had occurred.

B. Procedural History

On January 15, 2014, Plaintiff, proceeding pro se and in forma papueris, filed suit under 28 U.S.C. § 1983 against Defendants Ronald Woodall, Michael Hatten, Wexford Health, Christopher Epps, and Johnny Denmark. Compl. [1] at 1. Plaintiff later added as a Defendant the State of Mississippi. Order [11] at 1. Plaintiff alleged that Defendants had refused to pay for medically necessary hip surgery. Compl. [1] at 4.

Plaintiff voluntarily dismissed Defendants Denmark, Epps, and Wexford Health, Mot. to Dismiss [38][86]; Order [46]; Text Only Order 5/8/15; leaving as Defendants Woodall, Hatten, and the State of Mississippi. The remaining Defendants filed motions for summary judgment, which United States Magistrate Judge John C.

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Gargiulo granted.^[1] Mem. Op. & Order [123]; [124]. Plaintiff appealed the dismissal of his individual and official capacity claims against Hatten and Woodall but did not appeal the dismissal of his claims against the State of Mississippi. Not. of Appeal [129].

The United States Court of Appeals for the Fifth Circuit affirmed the grant of summary judgment to Woodall and reversed the grant of summary judgment to Hatten. Delaughter v. Woodall, 909 F.3d 130, 136-137 (5th Cir. 2018). With respect to the official capacity claims against Hatten, the Fifth Circuit held that the Ex parte Young exception to sovereign immunity applied and directed the court to consider the propriety of equitable relief on remand. Id. at 137. As to the individual capacity claims against Hatten, the Fifth Circuit held that “if the fact issues under prong one [of the qualified immunity analysis] were resolved in [Plaintiff's] favor, Hatten's conduct would violate clearly established law and he would not be entitled to qualified immunity.” Id. at 140. Accordingly, the Fifth Circuit remanded that claim for resolution of the factual issues regarding the reason for the delay. Id. The Fifth Circuit also directed the court to reconsider appointing counsel to Delaughter. Id. at 140-41.

On remand, Judge Gargiulo appointed Christopher Smith of the law firm Smith & Holder, PLLC, as pro bono counsel.^[2] Order [156]. Following that appointment, Plaintiff filed an Amended Complaint naming Hatten and Dr. Gloria

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Perry, then the MDOC's Chief Medical Officer, as Defendants. Am. Compl. [162] at 1. Plaintiff advanced two claims under § 1983 for a violation of his Eighth Amendment rights: (1) equitable claim for declaratory and prospective injunctive relief against Defendants in their official capacities; and (2) legal claim for damages against Defendants in their individual capacities. Id. at 7-9. Plaintiff again alleged that Defendants were denying him...