ROBERT L. MILLER, JR., District Judge.
Donald Davis, a prisoner without a lawyer, proceeds on an Eighth Amendment claim against Counselor Schulz and Officer Kennell for failing to protect him against an attack by his cellmate on June 5, 2017, and on an Eighth Amendment claim against Dr. Marandet and Nurse Practitioner Myers for providing inadequate care for the injuries he suffered as a result of the attack. The defendants filed these motions for summary judgment, arguing that Mr. Davis hasn't demonstrated that Counselor Schulz and Officer Kennell knew that the cellmate presented a substantial risk to his safety and that Dr. Marandet and Nurse Practitioner Myers provided adequate medical care to Mr. Davis.
Mr. Davis was assigned to a cell with Randall Izquierdo in December 2, 2018. Mr. Davis and Mr. Izquierdo didn't get along; they disagreed often about bed assignments, use of the television, and visitors. Mr. Izquierdo also tried to intimidate Mr. Davis by staring at Mr. Davis as he slept, complaining about Mr. Davis's race, and becoming upset if he heard Mr. Davis urinate in the cell toilet. On December 7, Mr. Davis wrote to Counselor Schulz, stating, "I am having problems with my roommate. Things are not working out with us. I now request to be moved into some other cell." Counselor Schulz told Mr. Davis the next day that he couldn't be moved for ninety days and that Mr. Davis had to find a new cellmate on his own. Mr. Davis last spoke with Counselor Schulz about his cellmate in January 2017.
On the morning of June 5, 2017, when the cellhouse was on lockdown, Mr. Izquierdo stuffed newspaper into the toilet and flooded the cell. For hours, he paced the cell and yelled through the door and on the intercom. When Mr. Davis heard staff outside the cell, he yelled through the door for the unit team to come to the room because there was a problem. He yelled that his cellmate was acting out and that he needed to be moved.
At his deposition, Mr. Davis testified about the assault as follows:
Officer Kennell arrived with another officer and ordered the inmates to separate. Mr. Davis was escorted to the restricted housing unit and was redirected to the infirmary.
Mr. Davis also testified about the threat posed by Mr. Izquierdo before the attack:
According to the medical records, about an hour after the assault, Dr. Marandet assessed second degree burns on the right shoulder and neck. He admitted Mr. Davis to the infirmary, prescribed Ultram for pain, and ordered the daily application of burn creme and dressing. Two weeks after the attack, Dr. Marandet observed that the burns had healed. He also noted drainage from Mr. Davis' right ear and ordered ear drops. Mr. Davis was discharged from the infirmary the next day and was assigned to the disciplinary housing unit. Two days later, Dr. Marandet prescribed Ultram at a tapered dosage for seven days, reasoning that Ultram was an addictive controlled substance and that Mr. Davis could switch to another pain medication.
Nurse Practitioner Myers assumed care over Mr. Davis on June 27. She observed that he was healing well but had some areas that still required dressing. She ordered Tylenol for pain and Aquaphor to reduce itching, and she continued his orders for Aquaphor, burn creme, and ear drops. On June 29, Nurse Practitioner Myers responded to Mr. Davis's reported ear pain two days later by ordering antibiotics and scheduling a follow up appointment. On July 11, she observed healing wounds and ordered dressing changes for the next ten days and another round of antibiotics for the ear. Two weeks later, Mr. Davis complained of continued pain and refused Tylenol because he once had an ulcer, and Nurse Practitioner Myers prescribed prednisone.
On September 26, 2017, Mr. Davis reported that he had injured his left hand when his cellmate attacked him and complained of pain. Dr. Marandet ordered X-rays and Ultram for pain relief. The X-rays revealed mild degenerative changes, mild osteoarthritis, mild misalignment of the thumb, but no fractures. Dr. Marandet replaced Ultram with Mobic the following week due to Mr. Davis's complaints of nausea and vomiting. Dr. Marandet discussed the X-ray results with Mr. Davis two weeks later. Based on these results, Dr. Marandet sent Mr. Davis to physical therapy instead of an outside specialist. In the following months, Mr. Davis met with a physical therapist on several occasions, and he received a home exercise plan and a brace for his thumb. On May 10, 2018, Mr. Davis was discharged from physical therapy for lack of improvement. Though he continued to complain of pain, he was able to perform daily functions and work at his job in the kitchen and continued to receive Tylenol.
At his deposition, Mr. Davis testified that he complained in June 2017 to Dr. Marandet about his left hand but Dr. Marandet refused to treat examine it or treat it. He testified that during his time in the disciplinary unit, he told Nurse Practitioner Myers each time he saw her that he hadn't received ear drops, pain medication, or regular wound care despite the standing orders and that he needed X-rays for his left hand. She explained to him that she would look into it, but his treatment from medical staff never improved. He further testified that his burns didn't heal while he was under Nurse Practitioner Myers's care.
Summary judgment must be granted when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Mr. Davis alleges that Counselor Schulz and Officer Kennell acted with deliberate indifference by failing to protect him from an attack by his cellmate. The Eighth Amendment imposes a duty on prison officials "to take reasonable measures to guarantee the safety of inmates."
Mr. Davis argues that Counselor Schulz should have reassigned him from the cell before the attack and that Counselor Schulz and Officer Kennell should have responded to his calls for assistance on the day of the attack. The record indicates that Mr. Davis and Mr. Izquierdo did not get along and that Mr. Izquierdo's behavior was unusual, but it doesn't support a reasonable inference that he posed a substantial risk of serious harm to Mr. Davis's safety during the six months before the attack. As Mr. Davis testified, Mr. Izquierdo had never threatened Mr. Davis with violence or given Mr. Davis any reason to suspect that he would attack him before Mr. Izquierdo grabbed the hotpot. Without any apparent safety concerns over the course of six months, Counselor Schulz couldn't have been aware of a substantial risk of harm to Mr. Davis's safety when he declined to change Mr. Davis's cell assignment. Similarly, even if Counselor Schulz and Officer Kennell heard Mr. Davis's requests for assistance on the day of the attack, these requests didn't convey that Mr. Izquierdo posed a substantial risk of harm to Mr. Davis. Though Mr. Davis argues that these defendants knew of Mr. Izquierdo's history of mental illness and attacking cellmates, the record contains no evidence that Mr. Izquierdo had such a history or that the defendants were aware of it. Counselor Schulz and Officer Kennell are entitled to summary judgment.
Mr. Davis alleges that Dr. Marandet and Nurse Practitioner Myers acted with deliberate indifference to his medical needs by providing inadequate treatment for his burns, ear infection, and left hand. To prevail on this claim, Williams must show: (1) his medical need was objectively serious; and (2) the defendant acted with deliberate indifference to that medical need.
Mr. Davis argues that Dr. Marandet acted with deliberate indifference by offering no medical treatment for the hand injury in June 2017. While Dr. Marandet denies that Mr. Davis complained about his hand injury at that time, Mr. Davis testifies that he reported the injury to Dr. Marandet on June 5, 2017, and June 19, 2017. The defendants suggest that Dr. Marandet decided to focus on treating the burns as the more immediate concern instead of the hand injury. A doctor might make such a decision in accordance with his medical judgment, the record doesn't support that possibility. There is no indication in the medical records that Dr. Marandet gave the hand injury any consideration, and Dr. Marandet simply attests that he did not recall any complaints about the hand injury. Mr. Davis's testimony, if believed, would allow a reasonable jury to conclude that Dr. Marandet acted with deliberate indifference by ignoring the report of the hand injury in June 2017.
Next, Mr. Davis argues that Dr. Marandet acted with deliberate indifference by not seeing him again until September 26, 2017, despite his written requests for treatment for the hand injury. On June 27, 2017, Nurse Practitioner Myers assumed the role as Mr. Davis's primary treatment provider, and it was reasonable for Dr. Marandet rely on Nurse Practitioner Myers to provide adequate treatment to Mr. Davis at this time. It appears that Dr. Marandet resumed his role as the primary treatment provider after Mr. Davis moved out of the disciplinary unit, but the record contains no evidence that Dr. Marandet was aware of this move or the written requests for medical treatment. Mr. Davis further argues that Dr. Marandet should not have prescribed him Ultram for pain in September 2017 because it caused nausea and dizziness. While Dr. Marandet may have been aware of the potential side effects, there was no indication that he should have known that this prescription was medically inappropriate. When Dr. Marandet prescribed the same medication for the same purpose in June 2017, Mr. Davis did not report any side effects. Additionally, Dr. Marandet responded reasonably to Mr. Davis' complaints about Ultram by switching him to Mobic.
Mr. Davis argues that Nurse Practitioner Myers acted with deliberate indifference due to her inadequate efforts to ensure that medical staff followed her orders despite Mr. Davis advising her that her orders weren't followed and her assurances that she would address it. Though the medical records indicate that the orders to provide medication and daily wound care were being followed and that the burns were healing well, Mr. Davis denied this at his deposition, so whether the medical orders were followed is a disputed fact. Moreover, while Nurse Practitioner Myers can't be held liable under Section 1983 for the conduct of other staff members or for not performing the duties of other staff members, she had a duty to respond reasonably to Mr. Davis's concerns, and the record contains no evidence that she took any action after verbally assuring Mr. Davis that she would do so.
Based on this reasoning, the motion for summary judgment is denied with respect to Dr. Marandet and Nurse Practitioner Myers. Mr. Davis may proceed on his claim against Dr. Marandet for offering no treatment for the hand injury in June 2017 and on his claim against Nurse Practitioner Myers for inadequate efforts to ensure that medical staff followed her orders.
For these reasons, the court:
(1) DENIES the motion for summary judgment filed by Dr. Marandet and Nurse Practitioner Myers (ECF 106);
(2) GRANTS the motion for summary judgment filed by Counselor Schulz and Officer Kennell (ECF 109); and
(3) DISMISSES Counselor Schulz and Officer Kennell.
SO ORDERED.