Gifford v. Rathman, CASE NO. 1:14-CV-1179-SLB-JEO
| Decision Date | 29 September 2017 |
| Docket Number | CASE NO. 1:14-CV-1179-SLB-JEO |
| Court | United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama |
| Parties | JAMES BRETT GIFFORD, Plaintiff, v. WARDEN JOHN RATHMAN; THE FEDERAL BUREAU OF PRISONS; THE UTILIZATION REVIEW COMMITTEE; GEORGE SMITH, M.D., Physician; NORTHEAST ALABAMA REGIONAL MEDICAL CENTER; R. HARDIN, Counselor; BOTT, Correctional Officer; S. PACO, MLP; M. MOURTADA, MLP; L. MARASIGAN, MLP; WILLIAMS, Correctional Officer; MRS. M. TIPPLE, RN; DR. M. HOLBROOK, M.D.; MS. GARDNER, Correctional Officer; UNITED STATES OF AMERICA, Defendants. |
JAMES BRETT GIFFORD, Plaintiff,
v.
WARDEN JOHN RATHMAN; THE FEDERAL BUREAU OF PRISONS;
THE UTILIZATION REVIEW COMMITTEE; GEORGE SMITH,
M.D., Physician; NORTHEAST ALABAMA REGIONAL MEDICAL
CENTER; R. HARDIN, Counselor; BOTT, Correctional Officer; S. PACO,
MLP; M. MOURTADA, MLP; L. MARASIGAN, MLP; WILLIAMS,
Correctional Officer; MRS. M. TIPPLE, RN; DR. M. HOLBROOK, M.D.; MS.
GARDNER, Correctional Officer; UNITED STATES OF AMERICA, Defendants.
CASE NO. 1:14-CV-1179-SLB-JEO
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA EASTERN DIVISION
September 29, 2017
MEMORANDUM OPINION
This case is presently pending before the court on defendants' Special Reports, (docs. 24, 25, 52, 60),1 which the court has notified the parties it will construe as Motions for Summary Judgment, (doc. 61). Plaintiff, James Brett Gifford, was a prisoner in the custody of the United States Bureau of Prisons [BOP] and was housed at the Federal Correctional
Page 2
Institution at Talladega, Alabama, [FCI Talladega] at all times relevant to his claims. In his Amended Complaint, Gifford alleges claims against defendants pursuant to the Alabama Medical Liability Act [AMLA] and the Federal Tort Claims Act [FTCA], and pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), for allegedly inadequate medical treatment of his back injury and for harassment. (See generally doc. 11.) Upon consideration of the record, the submissions of the parties, the Special Reports, and the relevant law, the court is of the opinion that Summary Judgment is due to be granted in favor of defendants.
Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate "if the movant 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); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Page 3
(A) citing to particular parts of 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; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").
In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences 'in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)).
Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("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.").
Page 4
According to Rule 56(e), "If a party . . . fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . (2) consider the fact undisputed for purposes of the motion [and] (3) grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it . . . ." Fed. R. Civ. P. 56(e)(2)-(3). Despite being warned of the consequences of failing to respond to defendants' Special Reports, which the court is treating as Motions for Summary Judgment, Gifford failed to address defendants' assertions of fact. Therefore, the court deems the following facts, which are supported by record evidence, to be undisputed.
On Saturday, June 23, 2012, Gifford reported to the Health Services Unit at FCI-Talladega, complaining that he had "hurt [his] back playing ball." (Doc. 54-1 at 79; 60-28 ¶ 4.) An examination revealed tenderness. (Doc. 54-1 at 79.) The nurse on duty gave Gifford 800 mg of Ibuprofen to be taken three times a day for seven days and told him to use ice compresses several times a day, and she told him to "make sick call on [M]onday if no improvement." (Id.; doc. 60-3 ¶ 3; doc. 60-28 ¶ 4.)
Gifford testified that he slept on the floor that night because he could not climb into his upper bunk. (Doc. 1-1 ¶ 8.) Defendants Michaela Tipple, RN, and Dennis Bott, Correctional Officer, responded to his cell the following morning when he could not get up. (Id. ¶ 10.) Gifford alleged that, when he could not get up, "Bott got down close to [his] face and said, 'Get up or I am going to kick your ass.'" (Id. ¶ 11.) Gifford's Amended Complaint
Page 5
alleges that Stacie Gardner, Correction Officer, violated his constitutional rights by failing to report Bott's threat. (Doc. 11 ¶ 71.) Gifford does not allege that Bott followed through on his threat. Bott does not recall going to see Gifford with Tipple, and he denies ever threatening Gifford.2 (Doc. 60-4 ¶¶ 5, 9.) Gardner testified she did not hear Bott tell Gifford he was going to kick his ass; if she had, she would have reported it. (Doc. 60-18 ¶ 5.)
According to Gifford's medical records, on Sunday morning, June 24, 2012, Tipple saw Gifford sometime around 6:30 a.m. in his cell. (Doc. 54-1 at 76; doc. 60-3 ¶ 5; doc. 60-28 ¶ 5.) While there, Tipple spoke with Gifford and he told her that he had hurt his back playing softball; he denied any numbness or tingling. (Doc. 54-1 at 76; doc. 60-28 ¶ 5.) Tipple contacted defendant Mark Holbrook, M.D., FCI-Talladega's Clinical Director, who instructed her to give Gifford a 60 mg shot of Toradol. (Doc. 60-28 ¶ 5; doc. 54-1 at 76.) Toradol is a non-steroidal anti-inflammatory drug (NSAID), that is used for moderate to
Page 6
severe pain. (Doc. 60-3 ¶ 4.) Tipple testified that she and Bott had been very careful when they turned Gifford on his side for the shot. (Doc. 60-28 ¶ 5.)
Tipple waited in Health Services to see "if the shot worked." (Id. ¶ 6.) Less than an hour later, at approximately 7:15 a.m., inmates notified Bott that Gifford "could not move." (Doc. 60-4 ¶ 5; see also doc. 54-1 at 76.) Bott does not recall this incident. (Doc. 60-4 ¶ 5.) However, according to the Camp Log Book, Bott called the Operations Lieutenant at 7:22 a.m. and reported that Gifford was having back pain and could not move. (Id.; doc. 60-5 at 4.) Tipple returned to Gifford's Unit and at that time he told her the shot had not worked at all. (Doc. 60-28 ¶ 6.) An officer attempted to take Gifford to Health Services for further evaluation; however, he "started yelling when the officer and [Tipple] attempted to log roll him [onto a stretcher]." (Doc. 54-1 at 76.) They "did not attempt to move him after that." (Id.)
She noted Gifford was cooperative, but irritable and agitated. (Doc. 54-1 at 76.) He "[a]ppear[ed] well" and showed no apparent distress. (Id.) Also, she noted that Gifford "denie[d] numbness or tingling" and that he was "[m]oving all extremities." (Id.) Tipple telephoned Holbrook and Holbrook gave Tipple a verbal order to send Gifford to the emergency room [ER] at Northeast Alabama Regional Medical Center [the Hospital] for further evaluation and treatment. (Id.; doc. 60-3 ¶ 5; doc. 60-28 ¶ 6.) An ambulance arrived at 8:44 a.m. to take Gifford to the Hospital. (See doc. 60-5 at 4.)
Page 7
When Gifford arrived at the Hospital, he was seen by defendant George Smith, M.D. (Doc. 54-4 at 11-12; doc. 60-3 ¶ 6.) Dr. Smith is licensed to practice medicine in the State of Alabama. (Doc. 24-12 ¶ 4.) On June 24, 2012, he was working in the ER at the Hospital pursuant to an agreement between his employer, Emergency Room Services of Alabama [ERSA] and the Hospital. (See id.; doc. 63-1 ¶¶ 5-6, at 3-4.)
The agreement between the Hospital and ERSA provided ER staffing. (Doc. 63-1 ¶ 6, at 3-4.) The terms of the agreement required ERSA to "provide Emergency Department Services (Department Services) . . . to the Hospital," and "Emergency Department Services" include the services of physicians in the ER. (Doc. 63-1 at 7-8.) "Emergency Department Services" specifically include "[e]valuation and treatment of acute medical needs of every patient submitting himself/herself to the [ER] for medical care . . . .," and "[t]reatment of all [ER] patients requiring medical care regardless of ability to pay . . . ." (Id. at 24, 25.) Doctors working in the Hospital's ER under this agreement are not employees or agents of the Hospital. (Id. at 19.)3 "The Hospital [does] not have or exercise control or direction over
Page 8
the methods by which [ER doctors] perform [their] duties/responsibilities" to provide medical treatment to patients in the ER." (Id.) Dr. Smith was not an employee or agent of the Hospital on June 24, 2012. (Doc. 24-1 ¶ 4; doc. 63-1 ¶ 5, at 3.)
Also, Dr....
To continue reading
Request your trial