United States District Court, N.D. Oklahoma
KEVIN M. BROWN, Sr. Plaintiff,
MICHELLE LETTNUS, et al, Defendants.
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
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
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
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.
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.
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.
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.
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
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.
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. 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.
days after the missed appointment, on May 18, 2018, plaintiff
experienced “great pain” in his
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. 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.
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.
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