MEMORANDUM

WILLIAM J. HAYNES, Jr., District Judge.

Plaintiff, Joe McCauley, an inmate at Riverbend Maximum Security Institution ("RMSI") in Nashville, Tennessee, filed this pro se action under 42 U.S.C. § 1983 against the Defendants Innocentes Sator and Desiree Andrews, in their individual and official capacities. Plaintiff's claims are that the Defendants acted with deliberate indifference to Plaintiff's medical needs in violation of the Eighth Amendment of the United States Constitution. Plaintiff's specific claims are that the Defendants failed to consult with his conservator and failed to refer him to a surgeon. Plaintiff alleges that these failures caused him to suffer pain from his alleged injuries. Plaintiff seeks compensatory and punitive damages for his pain.1

Before the Court is Defendants' motion for summary judgment, contending, in essence: (1) that Andrews was not deliberately indifferent to Plaintiff's medical needs because, as a non-medical professional, she could rely on the medical professionals' treatment of Plaintiff; (2) that Plaintiff lacks proof to establish the subjective component of his Eighth Amendment claim because the record shows that Plaintiff received the necessary treatment in a timely manner; and (3) that Plaintiff has failed to state official-capacity claims against Andrews and Sator as Plaintiff has failed to allege that any policies, customs, or practices caused his injuries. Plaintiff has not filed a response to Defendants' motion for summary judgment.

For the reasons set forth below, the Court concludes that Defendants' motion for summary judgment should be granted.

A. Findings of Fact2

Plaintiff, Joe McCauley, an inmate at Riverbend Maximum Security Institution ("RMSI"), has been diagnosed with Schizoaffective Disorder and Personality Disorder, a psychiatric condition, and, as a result, at times engages in self-mutilation. (Docket Entry No. 39-3, Sator Affidavit, at ¶¶ 6, 11-12).

Plaintiff alleges that between March and May 2009, while incarcerated, he underwent surgery to remove paperclips that he had placed in his stomach while under a psychiatric disorder. (Docket Entry No. 1, Complaint, at ¶ 4). After the surgery, Plaintiff believed that his stomach muscles did not heal properly. Id. at ¶ 5. Yet, there is not any mention of a 2009 surgery in his medical records, neither from RMSI nor from Lois Deberry Special Needs Facility. (Docket Entry No. 39-3 at ¶ 7; Docket Entry No. 39-2, Andrews Affidavit at ¶ 12).

On November 2009, the Tennessee Department of Corrections filed a petition in state court for appointment of a conservator for the Plaintiff. (Docket Entry No. 5, Plaintiff Declaration, attachment thereto, Exhibit A). The Department of Corrections submitted the testimony of two physicians who opined that Plaintiff was incapable of "making rational decisions regarding his mental and medical treatment and [was] [unable] to make such decisions in the future." (Docket Entry No. 5, Exhibit B at 8).

On January 26, 2010, the Seventh Circuit Court for Davidson County, Tennessee, granted this petition and entered an order appointing a conservator for Plaintiff, finding that "there is sufficient medical proof in the record . . . that the Respondent [McCauley] is a disabled person within the meaning of Tennessee Code Annotated Section 34-1-101(7) and incapable of managing his own affairs." (Docket Entry No. 5, Exhibit B at 9). The state court further opined that "the nature and extent of the Respondent's disability are such that the Respondent cannot give informed consent to medical and mental examinations and treatment and requires a Conservator to give such consent." (Docket Entry No. 5, Exhibit B at 9-10).

On an unidentified date in 2010, Plaintiff alleges that "while not in his right mental function," he inserted three additional paperclips into his stomach, "thinking this would make them [the Defendants] fix his stomach." (Docket Entry No. 4 at 2). On February 22, 2010, after seeking medical attention for the pain caused by the paperclips, Plaintiff refused a surgical consultation regarding the removal of the paperclips. (Docket Entry No. 5 at 2; Exhibit C at 15; Exhibit D at 16). Plaintiff states that "[b]ecause of [his] psychiatric medical disorder[,] his mental function [wa]s not working right when he refuse[d] medical treatment and [he] doesn't understand the severity of his actions because he does not understand the severity of his mental condition." (Docket Entry No. 1 at ¶ 13). Later, after Plaintiff regained his mental functions and again sought medical attention for the paperclips, Defendant Andrews, a Health Service Administrator at RMSI, advised Plaintiff: "On February 22, 2010[,] you refused your outside surgical consult in regards to the paperclips." (Docket Entry No. 5, Exhibit C at 15).

Plaintiff alleges that the paperclips caused him pain on a daily basis and that he feared injury to his organs. (Docket Entry No. 1 at ¶ 14). Plaintiff alleges that the Defendants refused to allow Plaintiff to receive treatment for the paperclips, thereby causing Plaintiff to suffer. Id. Further, Plaintiff alleges that the Defendants did not contact Plaintiff's conservator regarding his condition. Id. at ¶ 16. According to the Plaintiff, the state court found him incapable of making decisions as to his medical treatment and thus, the Defendants should not be permitted to allow Plaintiff to refuse medical treatment. Id.

Plaintiff's medical records reflect that between January 2010 and August 2011, when Plaintiff was at the Lois DeBerry Special Needs Facility, Plaintiff was seen: (1) 27 times by Sator, who conducted eight chart reviews; (2) eight times by a nurse practitioner; and (3) 142 times at sick call. (Docket Entry No. 39-2, Andrews Affidavit, at ¶ 7, attachment thereto, Exhibit A). During this period, Plaintiff's conservator was contacted 12 times. Id. at ¶ 8, attachment thereto, Exhibit A. Mental Health admitted Plaintiff to the infirmary on January 14, 2011 and April 18, 2011. Id. at ¶ 9. After the second admission, Plaintiff was transferred to Lois Deberry Special Needs Facility, where he remained until returning to RMSI on May 5, 2011. Id. Neither Sator nor Andrews has any authority at the Lois Deberry Special Needs Facility. Id. at ¶ 13.

During his meeting with Plaintiff, Sator ordered x-rays to determine the location of the paperclips to see whether the paperclips posed sufficient danger to the Plaintiff to require surgery. (Docket Entry No. 39-3 at ¶ 9). Sator concluded that the paperclips were trapped in the abdominal wall, not inside the stomach. Id. Because the paperclips did not endanger the other organs, Sator advised against surgery. Id. at ¶ 10. In his affidavit, Sator explains:

Id. Andrews does not have any authority over Sator's decisions regarding Plaintiff's treatment. (Docket Entry No. 39-4, Defendants' Statement of Undisputed Facts, at ¶ B).

On May 19, 2011, Plaintiff underwent an emergency surgery at Vanderbilt's Emergency Department because of continued self-mutilation. (Docket Entry No. 39-3, Sator Affidavit, at ¶¶ 8, 11). During this emergency procedure, the surgeon removed the paperclips from Plaintiff's abdomen. Id. at ¶ 8. On August 27, 2011, Plaintiff underwent yet another emergency surgery after having torn open his previous incision in an attempt to pull out his intestines. (Docket Entry No. 39-4 at ¶ Q). Plaintiff was discharged to the Lois DeBerry Special Needs Facility on August 29, 2011, where he currently remains under psychiatric care. (Docket Entry No. 39-2, Andrews Affidavit, at ¶¶ 10, 11).

B. Conclusions of Law

"The very reason of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Advisory Committee Notes on Rule 56, Federal Civil Judicial Procedure and Rules (West Ed. 1989). Moreover, "district courts are widely acknowledged to possess the power to enter summary judgment sua sponte, so long as the opposing party was on notice that she had to come forward with all of her evidence." Celotex Corp., 477 U.S. 317, 326 (1986). Accord, Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir. 1989).

In Liberty Lobby, 477 U.S. 242 (1986), the United States Supreme Court explained the nature of a motion for summary judgment:

477 U.S. at 247-48 (emphasis in the original and added in part). Earlier the Supreme Court defined a "material fact" for Rule 56 purposes as "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

A motion for summary judgment is to be considered after adequate time for discovery. Celotex Corp., 477 U.S. 317, 326 (1986). Where there has been a reasonable opportunity for discovery, the party opposing the motion must make an affirmative showing of the need for additional discovery after the filing of a motion for summary judgment. Emmons v. McLaughlin, 874 F.2d 351, 355-57 (6th Cir. 1989). But see Routman, 873 F.2d 970, 971 (6th Cir. 1989).

There is a certain framework in considering a summary judgment motion as to the required showing of the respective parties as described by the Court in Celotex:

477 U.S. at 323 (emphasis deleted).

As the Court of Appeals explained, "[t]he moving party bears the burden of satisfying Rule 56(c) standards." Martin v. Kelley, 803 F.2d 236, 239, n. 4 (6th Cir. 1986). The moving party's burden is to show "clearly and convincingly" the absence of any genuine issues of material fact. Sims v. Memphis Processors, Inc., 926 F.2d 524, 526 (6th Cir. 1991) (quoting Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986)). "So long as the movant has met its initial burden of `demonstrat[ing] the absence of a genuine issue of material fact,' the nonmoving party then `must set forth specific facts showing that there is a genuine issue for trial.'" Emmons, 874 F.2d at 353 (quoting Celotex and Rule 56(e)).

Once the moving party meets its initial burden, the Court of Appeals warned that "[t]he respondent must adduce more than a scintilla of evidence to overcome the motion [and]. . . must `present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (citations omitted). See also Hutt v. Gibson Fiber Glass Products, 914 F.2d 790, 792 (6th Cir. 1990) ("A court deciding a motion for summary judgment must determine `whether the evidence presents a sufficient disagreement to require a submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.'") (quoting Liberty Lobby).

If both parties make their respective showings, the Court then determines if the material factual dispute is genuine, applying the governing law.

Liberty Lobby, 477 U.S. at 248, 252 (citation omitted and emphasis added).

It is likewise true that:

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962) (citation omitted). As the Court of Appeals stated, "[a]ll facts and inferences to be drawn therefrom must be read in a light most favorable to the party opposing the motion." Duchon, 791 F.2d. 43, 46 (6th Cir. 1986) (citation omitted).

In Street, the Court of Appeals discussed the trilogy of leading Supreme Court decisions, and other authorities on summary judgment and synthesized ten rules in the "new era" on summary judgment motions:

Street, 886 F.2d at 1479-80.

The Court has distilled from these collective holdings four issues that are to be addressed upon a motion for summary judgment: (1) has the moving party "clearly and convincingly" established the absence of material facts?; (2) if so, does the plaintiff present sufficient facts to establish all the elements of the asserted claim or defense?; (3) if factual support is presented by the nonmoving party, are those facts sufficiently plausible to support a jury verdict or judgment under the applicable law?; and (4) are there any genuine factual issues with respect to those material facts under the governing law?

To prove a violation of his Eighth Amendment constitutional rights resulting from a denial of adequate medical care, Plaintiff must submit evidence that Defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Brooks v. Celeste, 39 F.3d 125, 127 (6th Cir. 1994). "Deliberate indifference" is the reckless disregard of a substantial risk of serious harm; mere negligence, or even gross negligence, will not suffice. Farmer v. Brennan, 511 U.S. 825, 835-36 (1994); Estelle, 429 U.S. at 105-06.

An Eighth Amendment claim of denial of medical care has both an objective and a subjective component. The objective component requires that the Plaintiff's medical needs were sufficiently serious. See Wilson v. Seiter, 501 U.S. 294 (1991). The subjective component requires allegations of fact that, "`if true, would show that the [Defendants] being sued subjectively perceived facts from which to infer substantial risk to the prisoner, that [they] did in fact draw the inference, and . . . then disregarded the risk.'" Dotson v. Correctional Medical Services, 584 F.Supp.2d 1063, 1067 (W.D. Tenn. 2008) (quoting Comstock v. McCrary, 273 F.3d 693, 703 (6th Cir. 2001)), aff'd, sub nom Dotson v. Phillips, 385 Fed.Appx. 468 (6th Cir. 2010).

Complaints of malpractice or allegations of negligence are insufficient to entitle a Plaintiff to relief. Estelle, 429 U.S. at 105-106. A prisoner's difference of opinion regarding diagnosis or treatment also does not rise to the level of an Eighth Amendment violation. Id. at 107. Further, where a prisoner has received some medical attention, but disputes the adequacy of that treatment, the federal courts are reluctant to second-guess the medical judgments of prison officials and constitutionalize claims that sound in state tort law. Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976). Finally, for a viable claim for the denial of medical care, Plaintiff must allege that his health suffered as a consequence of such alleged denial. See Thaddeus-X v. Blatter, 175 F.3d 378, 401 (6th Cir. 1999).

As a health service administrator, Defendant Andrews may rely on the judgment of medical professionals. Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (holding prison officials "were entitled to rely upon the medical treatment of CMS nurses once they obtained medical care for [the prisoner]."); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010) ("As a nonmedical administrator, [the defendant] was entitled to defer to the judgment of jail health professionals as long as he did not ignore the plaintiff."); Johnson v. Doughty, 433 F.3d 1001, 1012 (7th Cir. 2006) ("A nonmedical prison official . . . cannot be held `deliberately indifferent simply because [he] failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.'"); Spruill v. Gillis, 372 F.3d 218, 236 (3rd Cir. 2004) ("If a prisoner is under the care of medical experts . . . a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.").

Here, Andrews manages and administers the clinic, but lacks authority over Sator's decisions regarding medical treatment. Andrews knew Plaintiff was under the care of medical professionals; thus, she relied on the medical professionals to provide adequate medical service and to contact the conservator when medically necessary. Plaintiff was seen 27 times by Sator, eight times by a nurse practitioner, and 112 times at sick call. Based upon the undisputed facts, the Court concludes that Andrews was able to rely on the medical records and medical treatment provided by RMSI's medical staff and that Andrews's position as a nonmedical official precludes the possibility that she was deliberately indifferent to Plaintiff's medical needs.

As to Sator and the other medical professionals' alleged failure to provide adequate and timely medical assistance, Plaintiff's claim lacks evidentiary support. The record shows that Plaintiff was seen 27 times by Sator, who conducted eight chart reviews; eight times by a nurse practitioner; and 142 times at sick call. Mental health providers admitted Plaintiff to the infirmary twice in 2011. Where a prisoner has received some medical attention, but disputes the adequacy of that treatment, the federal courts are reluctant to second-guess the medical judgments of prison officials. Westlake, 537 F.2d at 860 n.5.

As to Plaintiff's claim that Sator and the medical staff failed to refer Plaintiff to a surgeon when Plaintiff believed they should have, Plaintiff's difference of opinion regarding Sator's diagnosis or treatment does not rise to the level of an Eighth Amendment violation. Estelle, 429 U.S. at 107. Here, Sator relied on x-rays showing that the paperclips were trapped in the abdominal wall when concluding that Plaintiff's organs were not endangered and thus that surgery was not medically necessary. When surgery was otherwise medically necessary on May 19, 2011 and August 27, 2011, Plaintiff was referred to a surgeon.

As to the claim that Andrews and Sator failed to consult with Plaintiff's conservator, this allegation also lacks evidentiary support. While Plaintiff asserts that the medical professionals did not communicate with his conservator, Andrews's affidavit reflects that medical personnel contacted Plaintiff's conservator 12 times between January 2010 and the present.

Finally, the Court notes that Plaintiff sued Andrews and Sator in their official capacities, but does not identify their employer. The record is unclear whether Andrews and Sator are employees of the RMSI or if RMSI contracts its medical services with a private entity. "[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 n.55 (1978).

"It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison inmates may be sued under § 1983 as one acting `under color of state law.'" Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir. 1993); Johnson v. Karnes, 398 F.3d 868, 876 (6th Cir. 2004) ("The Supreme Court has explicitly held that § 1983 liability applies to physicians who are not formally employed by a state, but who instead serve prison populations as government contractors.") (citing West v. Atkins, 487 U.S. 42, 54-57 (1988)). Yet, "respondeat superior is not a valid theory of liability for private contractors employed by a state." Savoie v. Martin, 673 F.3d 488, 494 (6th Cir. 2012). Thus, "[l]ike a municipality, a government contractor cannot be held liable on a respondeat superior theory . . . however . . . a private contractor is liable for a policy or custom of that private contractor, rather than a policy or custom of the municipality." Johnson, 398 F.3d at 877 (citation omitted) (emphasis in original).

Here, Plaintiff neither identifies Andrews's or Sator's employer nor alleges that a "policy or custom" of this entity caused his injury. Plaintiff has not presented any evidence that his alleged injury was the result of an actual policy or custom. Id. Moreover, to the extent that Andrews and Sator are RMSI employees, "the Eleventh Amendment bars § 1983 suits seeking money damages against states and against state employees in their official capacities." Rodgers v. Banks, 344 F.3d 587, 594 (6th Cir. 2003) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 65-66 (1989)). Accordingly, the Court concludes that Plaintiff's claims against Andrews and Sator in their official capacities should be dismissed.

For these reasons, the Court concludes that the Defendants' motion for summary judgment should be granted.