Filed: Sep. 11, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 00-60731 _ LARRY WILLIAMS, Plaintiff-Appellee, versus JOHN BEARRY, Etc; Et AL, Defendants, JOHN BEARRY, Doctor, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Mississippi (4:98-CV-236) _ September 7, 2001 Before KING, Chief Judge, JOLLY and BENAVIDES, Circuit Judges. PER CURIAM:1 Dr. John Bearry, Medical Director of the Mississippi State Penitentiary at Parchman, Mississippi (“Parc
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 00-60731 _ LARRY WILLIAMS, Plaintiff-Appellee, versus JOHN BEARRY, Etc; Et AL, Defendants, JOHN BEARRY, Doctor, Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Mississippi (4:98-CV-236) _ September 7, 2001 Before KING, Chief Judge, JOLLY and BENAVIDES, Circuit Judges. PER CURIAM:1 Dr. John Bearry, Medical Director of the Mississippi State Penitentiary at Parchman, Mississippi (“Parch..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________
No. 00-60731
______________________
LARRY WILLIAMS,
Plaintiff-Appellee,
versus
JOHN BEARRY, Etc; Et AL,
Defendants,
JOHN BEARRY, Doctor,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Mississippi
(4:98-CV-236)
_________________________________________________________________
September 7, 2001
Before KING, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.
PER CURIAM:1
Dr. John Bearry, Medical Director of the Mississippi State
Penitentiary at Parchman, Mississippi (“Parchman”), appeals the
judgment of the district court finding him liable for $12,000 for
his deliberate indifference to the serious medical needs of Larry
Williams, Mississippi prisoner # 53814. Williams contended below
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
and on appeal that Dr. Bearry failed to provide him with the
prescription pain medication ordered by his neurosurgeon after his
back surgery. We find that Dr. Bearry’s actions did not amount to
deliberate indifference, and we REVERSE the judgment of the
district court.
I
Williams entered the Rankin County Correctional Facility on
January 9, 1996 on a conviction for armed robbery. Williams was
transferred to Parchman in April 1996, and claims that he began
complaining of back pain in July 1996 but that nothing was done
until October 1997 when an MRI revealed stenosis in his spinal
column. While at Parchman, Williams complained of numerous other
medical problems as well. Williams had a myelogram on April 15,
1998 at the University Medical Center (“UMC”) in Jackson,
Mississippi and received a prescription for Tylox,2 a narcotic pain
reliever, for a severe headache. In order to receive the Tylox or
any other narcotic medication Williams had to remain in the prison
hospital, but Williams chose not to do so. Williams had back
surgery on April 28, 1998 at UMC. On his discharge from UMC on May
1, the medical records show that Williams’ physician prescribed
Flexeril, a muscle relaxant, Ibuprofen for pain and inflammation,
and Tylox. Dr. Bearry testified that the physician at UMC did not
2
Tylox is a narcotic prescription pain medication containing
oxycodone and Tylenol used for relief of moderate and moderately
severe pain. See Physician’s Desk Reference, 2398 (2001).
2
order Tylox when Williams was discharged from UMC, but that
Williams was discharged on Ibuprofen and Flexeril only. Williams
and Dr. Bearry testified that Williams received Darvocet,3 a
somewhat weaker narcotic pain medication, for one week following
Williams’ surgery, although Darvocet does not appear in Williams’
medication records from Parchman. After one week, Dr. Bearry
discontinued the Darvocet. Dr. Bearry testified that Williams’
wound was healing appropriately and that it was proper to stop
narcotic pain medication at that time. Dr. Bearry also testified
that generally narcotic pain medication should not be given to a
patient such as Williams who has chronic back pain. Nevertheless,
Williams testified that he continued to suffer from and complain of
severe pain. Dr. Bearry provided Williams with 600 milligram doses
of Ibuprofen.
On May 11, 1998 Williams returned to UMC for a followup
examination. Williams testified that he still had staples in his
back from the surgery and that he suffered excruciating pain during
the drive to UMC because he had not received his prescribed pain
medication. Williams told his physician at UMC that he had not
been receiving his prescribed pain medicines. The physician gave
Williams an injection of Toradol,4 a nonsteroidal anti-inflammatory
3
Darvocet is a narcotic prescription pain medication used for
relief of mild to moderate pain. See Physician’s Desk Reference,
1708 (2001).
4
Toradol is a nonsteroidal, anti-inflammatory prescription
drug used for acute and long-term management of osteoarthritis and
3
drug (“NSAID”), and faxed a note to the Mississippi Department of
Corrections (“MDOC”) physicians asking them to note the UMC
discharge order for pain medication for Williams, including Lodine5
and Ibuprofen. Dr. Bearry testified that Lodine was not on the
Parchman formulary,6 but that it was in the same class as Ibuprofen
and he gave Williams other NSAIDs. He also stated in an affidavit
that a combination of Lodine and Williams’ other gastric
medications would have been very difficult on Williams’ stomach.
II
Williams initially filed a 42 U.S.C. § 1983 civil rights
action against: Bearry; James Anderson, the MDOC Commissioner;
Walter Booker, the MDOC Superintendent; and Larry Hardy, the Legal
Claims Adjudicator. Williams alleged that the defendants denied or
delayed adequate medical care for his serious back problem, and
that they denied him adequate pain medication as prescribed by the
UMC physician following his back surgery. The magistrate judge
recommended that Williams’ claims against Anderson, Booker, and
Hardy be dismissed for failure to state a claim because Williams
did not allege that they were personally involved in the alleged
rheumatoid arthritis and pain. See Physician’s Desk Reference,
2789 (2001).
5
Lodine is a nonsteroidal anti-inflammatory drug which has
anti-inflammatory, analgesic and antipyretic characteristics. See
Physician’s Desk Reference, 3392 (2001).
6
A formulary is a “book containing the names of pharmaceutical
substances and listing their uses.” American Heritage Dictionary,
517 (1981).
4
denial of adequate medical care. The magistrate judge further
recommended that Williams’ claim against Dr. Bearry proceed to
trial. The district court adopted the magistrate judge’s report
and recommendation. Dr. Bearry then filed a motion for summary
judgment, which the magistrate judge denied, and he proceeded to
conduct a bench trial. After the bench trial, the magistrate judge
issued a report and recommendation that the district court find Dr.
Bearry did not delay or deny medical care for Williams’ back
injury.7 The magistrate judge recommended that the district court
find that Dr. Bearry was deliberately indifferent to Williams’
serious medical needs through his failure to provide the
prescription pain medication which the neurosurgeon ordered on
Williams’ discharge from the UMC hospital and again at his follow-
up examination. The magistrate judge further recommended that the
district court enter a judgment in favor of Williams and that he be
awarded $12,000 in damages. Dr. Bearry filed timely objections to
the magistrate judge’s report. The district court overruled Dr.
Bearry’s objections and adopted the magistrate judge’s report,
entered a judgment in favor of Williams, and ordered Dr. Bearry to
pay court costs and $12,000 in damages to Williams. Dr. Bearry
timely filed a notice of appeal.
III
Dr. Bearry challenges the district court’s determination that
7
Williams has not appealed this finding.
5
he was deliberately indifferent to the serious medical needs of
Williams. Deliberate indifference is a conclusion of law. Walker
v. Butler, 967 F.2d 176, 178 (5th Cir. 1992). In reviewing
judgments on the merits in non-jury civil cases, we review
conclusions of law de novo. Gabriel v. City of Plano,
202 F.3d
741, 745 (5th Cir. 2000).
Williams bases his claims on the Eighth Amendment to the
United States Constitution’s prohibition of cruel and unusual
punishment. Prison officials violate this constitutional
proscription when they act with deliberate indifference to a
prisoner’s serious medical needs, that causes an unnecessary and
wanton infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297
(1991); Estelle v. Gamble,
429 U.S. 97, 106 (1976). Mere
negligence or “inadvertent failure to provide adequate medical
care” do not suffice.
Id. at 105-06. “The legal conclusion of
‘deliberate indifference[]’ . . . must rest on facts clearly
evincing ‘wanton’ actions on the part of the defendants.” Johnson
v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985). Cases have defined
“wanton” as “reckless–-without regard to the rights of others . .
. .”
Id. at 1238, quoting Smith v. Wade,
461 U.S. 30, 39 n. 8
(1983).
A prison official acts with deliberate indifference only if
“he knows of and disregards an excessive risk to inmate health or
safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994); Reeves v.
6
Collins, 27 F.3d 174, 176 (5th Cir. 1994) (applying Farmer to
medical claims). This requires not only that the official be aware
of the facts from which the inference could be drawn that a
substantial risk of serious harm exists, but also that he actually
draw the inference.
Farmer, 511 U.S. at 837.
Although the medical records do not reflect that Williams
received Darvocet or Tylox following his surgery, both Williams and
Dr. Bearry testified that Williams did receive Darvocet for one
week. After Williams’ return visit to UMC and his UMC physician’s
fax to the Parchman hospital, Dr. Bearry continued Williams on
NSAIDs. The physicians at Parchman were Williams’ primary
physicians, and the physicians at UMC were consulting doctors. It
remained within the discretion of Dr. Bearry to provide Williams
with appropriate post-operative care. Dr. Bearry provided Williams
with narcotic pain medication for a week, as well as other pain
medication and anti-inflammatory drugs. Although Dr. Bearry did
not follow the exact regimen ordered by the UMC physicians, Dr.
Bearry’s actions did not amount to deliberate indifference to the
serious medical needs of Williams, within the meaning of the Eighth
Amendment.
IV
For the foregoing reasons, we REVERSE the district court’s
entry of judgment in favor of Williams and REMAND for dismissal of
the complaint.
7
REVERSED and REMANDED for entry of judgment of dismissal.
8
