United States District Court, E.D. Oklahoma
OPINION AND ORDER
H. Payne United States District Judge.
action is before the Court on Defendant's motion for
summary judgment. The Court has before it for consideration
Plaintiffs complaint (Doc. 1), Defendant's motion (Doc.
42), a special report prepared by the Oklahoma Department of
Corrections (DOC) at the direction of the Court, in
accordance with Martinez v. Aaron, 570 F.2d 317
(10th Cir. 1978) (Doc. 41), and Plaintiffs response to
Defendant's motion (Dkt. 44).
an inmate in the custody of the DOC who is incarcerated at
the Oklahoma State Penitentiary (OSP) in McAlester, Oklahoma,
brings this action under the authority of 42 U.S.C. §
1983, seeking relief for alleged constitutional violations
during his incarceration at that facility. Plaintiff has been
housed at OSP since 2004. Special Report (Doc. 41),
Attachement 1. The defendant is John Marlar, a physician at
Court has carefully reviewed the record and construes
Plaintiffs pleadings liberally. Haines v. Kerner,
404 U.S. 519 (1972). This relaxed standard, however, does not
relieve his burden of alleging sufficient facts on which a
recognized legal claim could be based. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
judgment is appropriate when "there is no genuine
dispute as to any material fact and the movant is entitled to
a judgment as a matter of law." Fed.R.Civ.P. 56(a). 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 fact is material if it "might
affect the outcome of the suit under the governing law."
Id. In making this determination, "[t]he
evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor."
Id. at 255. However, a party opposing a motion for
summary judgment may not simply allege there are disputed
issues of fact; rather, the party must support its assertions
by citing to the record or by showing the moving party cannot
produce admissible evidence to support the fact. Fed.R.Civ.P.
56(c). Thus, the inquiry for this Court is "whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law."
Anderson, 477 U.S. at 251-52.
OF THE CASE
Dexter Johnson is currently in the custody of the Oklahoma
Department of Corrections (ODOC) where he is serving a 150
year sentence for shooting with intent to kill. Johnson also
has a pending murder conviction in the State of California.
Special Report (Doc. 41), Attachment 1. Plaintiff commenced
the instant action against Dr. Marlar on October 16, 2016.
(Doc. 1). In his Complaint, Plaintiff alleges, that Dr.
Marlar's failure to treat his bleeding hemorrhoids and
anemia nearly cost him his life in early 2016. However,
Plaintiffs deliberate indifference claim fails as Dr.
Marlar's treatment of Plaintiff was at all times proper.
This brief relies upon the Court-ordered Special Report filed
contemporaneously in this action at (Doc. 41).
upon the record the following facts are uncontroverted
pursuant to Fed.R.Civ.P. 56.
May 11, 2015, Plaintiff submitted a request to staff asking
that his hemorrhoids be examined. Doc. l,
page24. In response, Plaintiff was informed that
he was "scheduled." Id. On May 22, 2015,
Plaintiff then submitted a related grievance asking that he
be sent to an outside facility to have his hemorrhoids
treated. Doc. 1, page 22. On May 30, 2015, OSP's
correctional health services administrator (CHSA) responded
that Plaintiffs medical records had been reviewed and
discussed with Dr. Marlar, and that an appointment would be
scheduled to assess his condition. Doc. 1, page 21. Plaintiff
was also informed that he would be sent for
testing/procedures if warranted. Id.
June 24, 2015, Plaintiff submitted a Request to Staff asking
if he was going to Lindsey Medical Center for hemorrhoid
treatment. Doc. 1, page 25. In response, Plaintiff was
informed that he would be scheduled when OSP medical
officials heard from OU. Id.
July 19, 2015, Plaintiff submitted a Request to Staff to the
Chief Medical Officer of the Department of Corrections,
asking that his medical records be reviewed and that he be
sent for hemorrhoid surgery at an outside medical facility.
S.R., Attachment 3, pages 32-33. On August 21, 2015, this RTS was
returned unanswered because it was improperly submitted.
Id. at page 34.
November 11, 2015, Plaintiff submitted a Request to Staff to
OSP's CHS A asking for an explanation as to why he had
not been sent to an outside medical facility for hemorrhoid
surgery and asking to be scheduled for such services. S.R.,
Attachment 5, page 40. In response, Plaintiff was informed
that a referral was submitted by Dr. Marlar but not approved
by Dr. Joel McCurdy. Id. On December 6, 2015,
Plaintiff then submitted a related grievance to Medical
Services Administrator Buddy Honaker, asking that he be sent
to an outside medical facility for hemorrhoid surgery.
Id. at pages 41-42. On January 11, 2016, the
grievance was returned unanswered because it was improperly
submitted. Id. at page 43.
After commencement of the above-styled litigation, on
November 28, 2016, Plaintiff submitted an
"Emergency" Grievance asking that he be examined by
a hematologist. S.R., Attachment 4, pages 36-37. On January
4, 2017, the grievance was returned unanswered because it was
improperly submitted. Id.
October 20, 2012, Plaintiff submitted a Request for Health
Services (RHS) indicating that he was suffering from anal
bleeding. In response, Plaintiff was informed that he was
scheduled for an appointment. S.R., Attachment 6, page 45.
October 23, 2012, Plaintiff was diagnosed with hemorrhoids
and issued a prescription for suppositories. Id. at
February 2, 2013, Plaintiff was seen for hemorrhoids.
Id. at 48. He was prescribed ointments and fiber and
encouraged to increase fluid intake. Id. at 49.
November 6, 2013, Plaintiff submitted a RHS asking to have
his hemorrhoids removed. In response, he was informed that he
was scheduled to be seen and was treated for diarrhea on the
same date. Id. at 50-51.
November 12, 2013, Plaintiff submitted a RHS complaining of
bowel and bladder issues. In response, he was scheduled for
an appointment. Id. at 52-53.
November 15, 2013, Plaintiff was seen by Dr. Marlar and given
an injection of rocephin. Id. at 54.
November 18, 2013, Plaintiff was seen by Dr. Marlar and
indicated that his urinary tract infection had improved.
Id. at 55.
March 1, 2015, Plaintiff submitted a request to be examined
for anemia. In response, he was advised that he had been
scheduled to see a provider. Id. at 58.
March 2, 2015, Plaintiff was scheduled for a blood test.
Id. at 59.
March 12, 2015, Plaintiff was examined and his blood was
tested. He was also authorized to receive double portions of
food for 30 days. Id. at 60-61.
April 7, 2015, Plaintiff was seen for hemorrhoids. He was
prescribed suppositories, ointment and fiber and was
encouraged to increase fluid intake. Id. at 62-64.
April 24, 2015, Plaintiff received a periodic physical
examination. Id. at 66-67'.
April 27, 2015, Plaintiffs blood was drawn. Id. at
May 19, 2015, Plaintiff was treated for ...