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Johnson v. Marlar

United States District Court, E.D. Oklahoma

April 19, 2019

DEXTER LEEMON JOHNSON, Plaintiff,
v.
JOHN MARLAR, Defendant.

          OPINION AND ORDER

          James H. Payne United States District Judge.

         This 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).

         Plaintiff, 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 OSP.

         Standard of Review

         The 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).

         Summary 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.

         STATEMENT OF THE CASE

         Plaintiff 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).

         STATEMENT OF FACTS

         Based upon the record the following facts are uncontroverted pursuant to Fed.R.Civ.P. 56.

         Exhaustion

         1. On May 11, 2015, Plaintiff submitted a request to staff asking that his hemorrhoids be examined. Doc. l, page24[1]. 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.

         2. On 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.

         3. On 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[2]. On August 21, 2015, this RTS was returned unanswered because it was improperly submitted. Id. at page 34.

         4. On 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.

         5. 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.

         Medical Care

         6. On 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.

         7. On October 23, 2012, Plaintiff was diagnosed with hemorrhoids and issued a prescription for suppositories. Id. at 46.

         8. On 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.

         9. On 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.

         10. On 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.

         11. On November 15, 2013, Plaintiff was seen by Dr. Marlar and given an injection of rocephin. Id. at 54.

         12. On November 18, 2013, Plaintiff was seen by Dr. Marlar and indicated that his urinary tract infection had improved. Id. at 55.

         13. On 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.

         14. On March 2, 2015, Plaintiff was scheduled for a blood test. Id. at 59.

         15. On 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.

         16. On 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.

         17. On April 24, 2015, Plaintiff received a periodic physical examination. Id. at 66-67'.

         18. On April 27, 2015, Plaintiffs blood was drawn. Id. at 68-70.

         19. On May 19, 2015, Plaintiff was treated for ...


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