NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0187n.06
No. 10-2497
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T
ROBERT T. SMI T, Plaintiff-Appellant,

v. PAUL A MEYER, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N and Mc KEAGU E, Circuit J udg es; CAL DWEL L , District J udg e. *

PER CURI AM

. R o b er t T. Smit , a former Michig an state prisoner who is repr esente d by counsel, appea ls a district court orde r dismissing his c ivil rig hts a ction filed pursuant to 42 U.S.C. § 1983. Smit sued Paula Mey er, a nurse prac titioner assig ned to th e prison wher e he was incar cer ated, alleg ing that she was delibera tely indiffer ent to his serious medical needs in violation of the Eig hth Amendment. The complaint alleg ed that Smit inj ured his bac k in the prison weig ht room on May 22, 2008. On J une 6, 10, and 20, 2008, Smit saw Mey er, who alleg edly told him that she would not ref er him for an MRI beca

use his parole was imminent and he could have back surg ery afte r his rele ase. On J une 24, 2008, Smit fell and was unable to g et up. He was taken to the hospital and had surg ery on two hernia ted discs the next day

. The parties consente d to have the case hear d by a magistrate judge

. Mey er testified in her deposition that she diag nosed Smit with inflammat i o n an d m u scle spasms. She trea ted him

The Honora

ble Kar en K. Caldwell, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.No. 10-2497 - 2 -
ag g re s s iv ely with a medical work excuse, ice, heat, pain medications, steroids, and muscle rela x ants. Mey er testified that she saw no war ning signs of nerve injury , but would have refe rre d him for a n MRI if the course of trea tment she provided was not eff ective. When asked what the war ning signs for a nerve injury included, Mey er noted that muscle wea kness in the leg s was one of four such

s y m p t oms. Howeve r, she testified that the trea tment appea red to be working

. Mey er deem ed i t signific ant that Smit had repor ted on J une 20 that the pain had completely resolved. This indicated
to her, in an assessment confirme d by the phy sician she consulted while trea ting Smit , that there was

no signific ant nerve involvement. Otherw ise, the pain would not ha ve g one awa

y . Unfortuna tely , the pain returne d the next day , when Smit resumed working

. The need for surg ery beca me evident within day s therea fter. Mey er filed a motion for summary judgme nt. Smit responde d with an aff idavit in which he stated that he had informed Mey er of muscle wea kness in his leg s during his consultations with her. The mag istrate ju d ge g rante d Mey er’ s motion for summary judgme nt, and this appea l followed. Smit arg ues that there is a question of materia l f act as to whethe r Mey er ha d knowledg e of

a s er i o u s medical condition requiring surg ery beca use she was awa

re that he was suffe ring from muscle weakness in his leg s. He cites to his aff idavit, the fac t that h e wa s t aken to one of his appointments in a wheelcha ir, and a note from a nurse, which Mey er testified she would not have revie wed, stating that Smit ’s leg streng th was slightly decr ease d. Summary judgme nt is proper wher e there is “no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. C i v . P

. 5 6 (a ). We revie w the mag istrate judge ’s decision de novo. Perez v. Oakland County , 466 F.3d 416, 423 (6th Cir. 2006). I n order to establish an Eig hth Amendment violation, Smit was require d to demonstrate that Mey er

was delibera tely indiffer ent to his serious medical needs, amounting to an unnece ssary and wanton infliction of pain. Id. at 423-24. To meet this burden, Smit was require d to show that Mey er actua lly knew of his alleg ed serious medical need. Id

. at 424. Neg ligence in diag nosis or trea tment is insufficient to satisfy

this standard. Farmer v . Brennan , 511 U.S. 825, 835 (1994).No. 10-2497 - 3 - I n ruling on a motion for summary judgme nt, the court must draw all rea sonable infere nces in favor of the nonmoving party

. McLean v. 9 8 8 0 1 1 Ontario, Ltd. , 224 F.3d 797, 800 (6th Cir. 2000). Howe ver, a

n unsupported af

fidavit that is c ontradicte d by other evidenc e does not cre ate a g enuine dispute of materia l fac t s ufficie nt to survive a summary judgme nt motion. See Leahy v. Trans Jones, Inc. , 996 F.2d 136, 139 (6th Cir. 1993). Mey er specific ally testified at her deposition that she found no wea

kness during her examinations of Smit , and that she did not revie w the nurses’
notes. Smit submitt ed no contra ry evidenc e. Nor would Smit ’s use of a whee lchair nece ssar ily indicate muscle wea

kness. There fore , only Smit ’s aff idavit claiming that he complained of muscle

weakness supports his appea l. Howeve r, his unsupported aff idavit is contra dicted b y M ey er ’s testimony and her documentation of trea tment. Although Smit attempts to equate Mey er’ s trea tment to a ref usal to verify a serious medical need that she strong ly suspected exis ted, citing Comstock v. McCrary , 273 F.3d 693, 703 (6th Cir. 2001), the rec ord shows that Mey er can support her diag nosis of inf l am m at ion and muscle spasms as opposed to hernia ted discs. She trea ted the diag nosed condition ag g ressively , and the trea tment appea red to be working until Smit suffe red a rela pse. The fac t that Smit was found to have hernia ted discs afte r his fall does not sug g est that Mey er was awa re of their e x istence. We affir m the district court’s orde r.