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Brown v. Lettnus

United States District Court, N.D. Oklahoma

January 6, 2020

KEVIN M. BROWN, Sr. Plaintiff,
MICHELLE LETTNUS, et al, Defendants.



         Now before the Court is defendants' motion to dismiss and for summary judgment (Dkt. # 35). Defendants seek judgment on plaintiff's claims for deliberate indifference to medical needs and violations of the Health Insurance Portability and Accountability Act (HIPAA). For the reasons below, the Court will grant the motion and enter judgment in favor of defendants.


         The following facts are undisputed: Plaintiff is an inmate appearing pro se. See Dkt. # 10, at 1. He was incarcerated at the Dick Conner Correctional Center (DCCC) in Hominy, Oklahoma between February 15, 2017 and August 1, 2018. See Dkt. # 34-1, at 2-3.[1] On February 23, 2018, plaintiff sustained an injury to his right eye. See Dkt. # 34-8, at 2. The following day, prison officials took him to Dean McGee Eye Institute (Dean McGee), a private ophthalmology practice. Id. The ophthalmologist diagnosed plaintiff with an ocular laceration without prolapse or loss of intraocular tissue. Id. Plaintiff was prescribed a series of eyedrops and other medications, which did not include pain medication. Id. at 5. In the “history of present illness” section of the medical record, the ophthalmologist wrote: “Bandage in place; pain controlled.” Id. at 2.

         When plaintiff returned to the prison, the DCCC doctor prescribed Norco, a narcotic pain medication, for a week following the injury. See Dkt. # 34-4, at 2-3. Plaintiff attended follow-up visits at Dean McGee on February 28, 2018; March 16, 2018; March 30, 2018; and April 11, 2018. Id. at 6, 11, 19, 24. At each appointment, plaintiff complained about pain, and he often complained about loss of vision. Id. The ophthamologist gave him prescription eye medication and a patch with instructions on cleaning, but the treatment plan did not include narcotic pain medication. Id. at 6, 9, 11, 14, 22, 27. At the latter two appointments (March 30 and April 11, 2018), the ophthamologist stated that plaintiff could have Tylenol, as needed, for pain. Id. at 22, 27.

         Back at DCCC, providers again dispensed Norco for pain on or about March 16, 2018. See Dkt. # 34-4, at 2. A later medical progress note indicates that DCCC providers may have believed the ophthamologist ordered the medication. Id. at 3. The progress note states: “[plaintiff] came back from another visit at [Dean McGee] and told nurses he was supposed to have something for pain . . . They again gave him Norco for a couple of days. When the provider came in on Monday, she reviewed the notes from [Dean McGee] again, nothing about giving him pain pills.” Id. Plaintiff's medical records reflect that DCCC did not dispense any narcotic pain medication after March, 2018. Id. However, DCCC staff did give him Toradol, a nonsteriodial anti-inflammatory drug (NSAID), on April 14, 2018. Id. at 4.

         Plaintiff's lawyer, Anita Bryant, contacted DCCC medical staff on two occasions in April about the prospect of dispensing more pain medication. See Dkt. # 34-4, at 3, 6. According to the medical progress note memorializing the calls, medical staff informed Bryant that Dean McGee did not prescribe any pain medication, and that plaintiff “has been very belligerent with nursing on several occasions over pain pills.” Id. Plaintiff had previously authorized DCCC to release his medical information to Bryant. See Dkt. # 34-3, at 2.

         Eventually, Dean McGee staff also complained about plaintiff. See Dkt. # 34-8, at 30. Dr. Smart, an opthamologist, wrote a letter dated April 11, 2018, notifying prison officials that:

We evaluated [plaintiff] ¶ 4/11/18. He has a history of trauma to the right eye leading to worsened vision that, at this time, is deemed to be inoperable. Since his initial encounter he has been noted to be very disrespectful and aggressive during patient encounters.

Id. The corresponding progress note echoed these comments, and stated that “techs and physicians all independently noted this during interaction with pt [patient].” Id. at 27. Dr. Smart asked DCCC officials to administer a psychiatric evaluation “in hopes that this behavior may be corrected at subsequent visits.” Id. at 30. He instructed that plaintiff could “follow up at Dean McGee Eye Institute in three months for repeat evaluation, [or] sooner as needed for intractable pain.” Id.

         Dr. Smart's opinion that plaintiff should have a follow-up appointment in three months conflicts with the medical progress note memorializing plaintiff's April 11, 2018 visit. See Dkt. # 34-4, at 27. The “Follow Up/RTC” section of the progress note states “return to clinic 4 weeks.” Id. Consistent with the progress note, it appears a follow-up visit was originally scheduled for May 14, 2018. See Dkt. # 36, at 2.[2] Sergeant Farmer drove plaintiff to a place near Dean McGee, but he turned the van around without allowing plaintiff to attend the appointment. Id. The uncontroverted allegations reflect that Farmer lied about plaintiff's behavior, which caused the cancellation. Id.

         Four days after the missed appointment, on May 18, 2018, plaintiff experienced “great pain” in his eye.[3] See Dkt. # 36, at 2. DCCC medical staff stated that plaintiff “was not coming to Medical at all for a shot for pain, ” despite repeated requests from plaintiff, his case manager, and his attorney.[4] Id. Plaintiff filed a grievance based on the refusal to dispense pain medication and the missed Dean McGee appointment. See Dkt. # 10, at 10; see also Dkt. # 34-10, at 4.

         Around the same time, plaintiff underwent a psychiatric evaluation at DCCC. See Dkt. # 34-4, at 8. The evaluation states: “[plaintiff] was seen on his unit at the request of medical staff. Due to [his] anger and hostility towards others he is subject to refusal for further treatment unless his behavior can improve.” Id. The evaluation further reflects that plaintiff refused to participate and “walk[ed] away angry” from the clinician. Id. On May 29, 2018, DCCC officials spoke with an administrator at Dean McGee, who required plaintiff to sign a behavioral contract before an ophthamologist would see him again. Id. at 9. The progress note memorializing the call reflects that the Dean McGee administrator expected to see plaintiff for a follow-up visit in three months. Id. DCCC medical staff stated that plaintiff “was already due back, and [the Dean McGee administrator] said there was some contraindication in the record.” Id. Plaintiff signed the behavioral contract several days later, and the follow-up appointment was scheduled for July 3, 2018. Id. at 11; see also Dkt. # 34-8, at 33.

         Plaintiff attended the July 3, 2018 appointment at Dean McGee without incident. The progress note reiterated that plaintiff's condition was inoperable, noting: “B scan last visit with funnel RD, reviewed with Dr. Shukla, inoperable, rec[commend] comfort measures.” See Dkt. # 34-8, at 36. The ophthamologist prescribed more eye drops and some tinted prescription glasses. Id. at 31-32. As to pain, the progress note states: “currently on PF QD and atropine, could increase to PF TID QD to help control ...

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