United States Court of Appeals

For the Eighth Circuit

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No. 14-1087

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John Russell Allard

lllllllllllllllllllll Plaintiff - Appellant

v.

Tonia Baldwin, MD; Delores Green; Pamela Alexander

lllllllllllllllllllll Defendants - Appellees

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Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

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 Submitted: December 9, 2014

 Filed: March 5, 2015

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Before LOKEN, BYE, and SMITH, Circuit Judges.

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BYE, Circuit Judge.

Iowa inmate John Russell Allard brought this 42 U.S.C. § 1983 complaint

against prison staff alleging violations of his constitutional rights based on their

alleged failure to treat his serious medical condition. The district court granted

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The Honorable Ronald Longstaff, United States District Judge for the

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Southern District of Iowa.
summary judgment to the prison staff. Allard filed the instant appeal, arguing

material questions of fact exist regarding the appropriateness of the care he received. 

We affirm.

I

Allard was a prisoner at the Clarinda Correctional Facility ("CCF") of the Iowa

Department of Corrections ("IDOC") at the time of the events giving rise to this

lawsuit. All claims arise out of a bowel obstruction and perforation Allard suffered

and the allegedly deficient medical care provided by Tonia Baldwin, M.D., Delores

Green, and Pamela Alexander ("CCF Health Services staff").2

On February 5, 2011, Allard sent a medical complaint to CCF Health Services

to report pain in his abdomen and failure to have a bowel movement for over a week. 

Allard was diagnosed at that time with constipation, and treatment of the condition

began. During the first three days of his treatment for constipation by CCF Health

Services, Allard received Milk of Magnesia, wastold to increase his fluid intake, was

given a Limited Activity Notice for work, wastold to increase his activity levels, was

given a Docusate Sodiumcapsule, was administered an enema, was given magnesium

citrate, and received a complete blood count which indicated Allard had no infection. 

Allard also reported passing some gas and CCF Health Services staff noted

hyperactive bowel sounds.

On February 8, 2011, Allard reported he had still not had a bowel movement

and his bowel sounds were hypoactive and sluggish. Allard was put on a liquid diet

at the time which remained in effect until his bowel perforated. Stool softeners were

During the time period relevant to this suit, medical care was also provided to 2

Allard by other CCF Health Services staff members who have not been named as

defendants in this suit.

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ordered. The next day Allard presented with more active bowel sounds and a slight

fever. On February 10, Allard again presented with a soft abdomen and bowel sounds

in all four quadrants. On that day Allard reported no bowel movement and Allard

wasreferred off-site for an x-ray of his abdomen. The x-ray wastaken at the Clarinda

Regional Health Center ("CRHC") in Clarinda, Iowa, on February 10, and CCF

Health Services staff received a report from CRHC indicating Allard's bowel

contained a large quantity of stool, but there was no obstructive pattern.

On February 11, Allard reported a small bowel movement, but still felt sick. 

Allard presented with a soft abdomen and hypoactive to normal bowel sounds. Allard

continued to be treated for constipation, including another bottle of magnesium

citrate. On February 12, Allard reported a small bowel movement from the prior day,

cramping in his lower abdomen, and nausea. Allard presented with some bowel

sounds and his abdomen was not tender. The next day, Allard reported nausea,

vomiting, and some gas, but no bowel movement. Allard was prescribed the

antibiotic Augmentin. Allard was continued on MiraLAX and stool softeners. A

complete blood count was ordered.

On February 14, Allard reported a small bowel movement had occurred the

night before. The complete blood count performed on February 14 indicated no

infection. Later on February 14, Allard reported three small stools. A soap suds

enema was then ordered, and resulted in liquid stool and a small solid bowel

movement. The soap suds enema was repeated. The laxative GoLytely was then

ordered. On February 15, new laxatives and suppositories were ordered. The

suppositories resulted in gas and a small amount of stool.

On February 16, Allard reported he had a bowel movement the night before and

passed gas all night. Allard reports that on February 16 he was physically unable to

walk because of pain and unable to drink fluids because of vomiting. More laxatives

were ordered. On February 17, Allard made clear his interest in stopping laxatives,

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but was continuing to have pain. Bowel sounds were present in all bowel quadrants

and Allard reported some small results from the treatment ordered the day before. 

Later, Allard's white blood count indicated infection and he was referred to the

emergency room at CRFC. The emergency room doctor noted abdomen bowel

sounds, no masses or megaly, and a soft abdomen. Flat and upright abdomen films

revealed fairly large amounts of air within the colon, but the CRFC emergency room

doctor did not see any obstruction, and the CRFC radiologist, while not excluding an

obstruction, did not diagnose one. The radiologist at CRFC noted distal colonic

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obstructions were not excluded and recommended a CT scan if distention persisted. 

After his return from the emergency room, Allard was given the gas reliever

Simethicone on the recommendation of the emergency roomdoctor. No CT scan was

ordered.

On February 18 and 19, Allard was instructed to walk between his cell and

CCF Health Services, which he estimates he did approximately twenty times. On

February 18, Allard asked for a change in medical directives; the medical directives

were not changed. On February 19, Allard lied by reporting three stools and

reporting he felt better. Allard was told to continue walking and drinking fluids.

The morning of February 20, Allard suffered a perforated diverticulum. Allard

was sent to a hospital in Council Bluffs, Iowa, where he was treated. Allard had

emergency surgery where a colostomy bag wasinstalled and his bowel wasrepaired. 

The CRHC emergency room physician saw Allard on February 17 and wrote 3

the report on February 18. The CRHC radiologist read the x-ray on February 17 and 

noted a "distal colonic obstruction is not excluded" by the films. The Iowa

Department of Corrections did not receive a copy of the radiologist's report until

September. The failure of the CCF Health Servicesstaff to obtain the report does not

demonstrate deliberate indifference: the results of the x-ray were reported to the CCF

Health Services staff and were recorded on February 17 in Allard's CCF medical

records.

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Allard used the colostomy bag for ten months and now has a scar. In March of 2011,

Allard received a disciplinary notice and was reprimanded for failure to strictly

adhere to medical directives. The reprimand was based on Allard's refusal to walk

as directed as part of his medical treatment.

Allard commenced this lawsuit on March 12, 2012, against Tonia Baldwin,

M.D.; Delores Green; Pamela Alexander; Steve Jenkins; and Mark Lund, claiming

his Eighth Amendment right to be free from cruel and unusual punishment was

violated because CCF Health Services staff failed to treat his serious medical

condition. The district court dismissed Jenkins and Lund from the suit and granted

summary judgment to the remaining defendants.

II

"We review a district court's decision to grant a motion for summary judgment

de novo, applying the same standards for summary judgment as the district court."

Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir. 2011).

Summary judgment is appropriate "if the movant shows that 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). In considering summary judgment motions, the burden

of demonstrating there are no genuine issues of material fact rests on the moving

party, and we review the evidence and the inferences which reasonably may be drawn

from the evidence in the light most favorable to the nonmoving party. Davis v.

Jefferson Hosp. Ass'n, 685 F.3d 675, 680 (8th Cir. 2012). "'Where 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.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1042

(8th Cir. 2011) (quoting Ricci v. DeStefano, 557 U.S. 557, 585 (2009)).

The Eighth Amendment prohibits cruel and unusual punishments. U.S. Const.

amend. VIII. The government has an "obligation to provide medical care for those

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whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 103 (1976). 

"An Eighth Amendment claimthat prison officials were deliberately indifferent to the

medical needs of inmates involves both an objective and a subjective component. 

The plaintiffs must demonstrate (1) that they suffered objectively serious medical

needs and (2) that the prison officials actually knew of but deliberately disregarded

those needs." Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997) (internal

citations omitted). Allard has demonstrated he suffered an objectively serious

medical need when his bowel became obstructed and thereafter perforated, but

Allard's claim the prison officials actually knew of but deliberately disregarded his

medical needs fails as a matter of law.

Allard agrees he was diagnosed with constipation and given extensive

treatment for that diagnoses. However, Allard argues his diagnoses and care were

constitutionally inadequate. To prevail on a deliberate indifference claim, Allard

must show more than even gross negligence. Spann v. Roper, 453 F.3d 1007, 1008

(8th Cir. 2006) (per curiam); see also Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir.

2009) ("In order to demonstrate that a defendant actually knew of, but deliberately

disregarded, a serious medical need, the plaintiff must establish a 'mental state akin

to criminal recklessness: disregarding a known risk to the inmate's health.'" (quoting

Gordon v. Frank, 454 F.3d 858, 862 (8th Cir. 2006))).

Allard first argues his diagnoses was constitutionally inadequate. To show

deliberate indifference in a misdiagnosis, Allard must show defendants were more

than grossly negligent. "Negligent misdiagnosis does not create a cognizable claim

under § 1983." McRaven v. Sanders, 577 F.3d 974, 982 (8th Cir. 2009). Allard has

failed to meet this burden. CCF Health Services staff diagnosed Allard with severe

constipation after hearing Allard's complaints and conducting physical examinations. 

CCF Health Services staff twice referred Allard to the emergency room where the

emergency room physician examined Allard and diagnosed constipation. The

diagnoses by CCF Health Services staff does not arise to a level of criminal

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recklessness. See Vaughn, 557 F.3d at 908. Allard's expert testified that a physician

reviewing the x-rays in light of Allard's symptoms should have diagnosed Allard with

a bowel obstruction. While Allard may have established a question of material fact

sufficient for a negligent malpractice case, such evidence does not show deliberate

indifference. CCF Health Services staff referred Allard to an outside provider who

verified the diagnoses of constipation. Thus, the misdiagnosis does not rise to the

level of deliberate indifference.

Allard next argues the care provided was constitutionally inadequate. A

plaintiff can show deliberate indifference in the level of care provided in different

ways, including showing grossly incompetent or inadequate care, Smith v. Jenkins,

919 F.2d 90, 93 (8th Cir. 1990), showing a defendant's decision to take an easier and

less efficacious course of treatment, id., orshowing a defendant intentionally delayed

or denied access to medical care, Meloy v. Bachmeier, 302 F.3d 845, 849 (8th Cir.

2002). Allard relies on Smith, 919 F.2d at 93, to argue the treatment provided was

constitutionally deficient. In Smith, the Eighth Circuit held "mere proof of medical

care" is insufficient to disprove deliberate indifference. Id. Thus, in cases where

some medical care is provided, a plaintiff "is entitled to prove his case by establishing

[the] course oftreatment, or lack thereof, so deviated fromprofessionalstandards that

it amounted to deliberate indifference." Id.

Smith does not, as Allard contends, mandate a jury trial in this case. In Smith,

the record was not well developed and this Court was "particularly troubled by the

absence of Smith's medical records from the court record." Id. This Court held "a

review of the medical records is required before a determination against Smith is

made." Id. In the instant matter, the medical records are available and Allard has

provided an expert who testified to the standard of care. The record demonstratesthe

CCF Health Servicesstaff did not ignore Allard's complaints or his overall condition. 

Allard's medical records show CCF Health Services staff tried numerous treatments

and constantly responded to Allard's complaints with potential remedies to treat

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constipation. In fact, at various times Allard reported to his health care providers

various treatments were providing some relief. Although Allard reported his

displeasure with the ordered treatments, a healthcare provider need not accept astrue

medical judgments offered by their patients but must make treatment decisions on the

basis of many factors, only one of which is patient's input. Givens v. Jones, 900 F.2d

1229, 1232 (8th Cir.1990); see also Phillips v. Jasper Cnty. Jail, 437 F.3d 791, 795

(8th Cir. 2006) (holding mere disagreement with treatment decisions does not rise to

level of constitutional violation). In total, viewing the evidence in the light most

favorable to Allard, the treatments provided were not so ineffective as to be

criminally reckless and therefore rise to the level of deliberate indifference.

Finally, Allard argues the disciplinary action supports his deliberate

indifference claim. Although a reasonable inference can be made from the

disciplinary actions that the prison health officials did not believe Allard was as sick

as he claimed to be, this does not create a question of material fact which must be sent

to a jury. It is not for this Court to determine whether the disciplinary action should

have been filed. The evidence in favor of the CCF Health Services staff on Allard's

Eighth Amendment claim is strong and Allard has not shown how the CCF requiring

him to walk rises to the level of deliberate indifference.

III

Although Allard demonstrates the medical staff at CCF failed to properly

diagnose his bowel obstruction, and although Allard demonstrates the failure to treat

the bowel obstruction led to a bowel perforation, Allard failsto put forward evidence

to support a finding of deliberate indifference. Accordingly, we affirm the judgment.

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