IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs, August 29, 2011

JAMES W. SHARP, v. GREG WILSON, et al.

Appeal from the Circuit Court for Bledsoe County

No. 2010-CV-4794 Hon. Buddy D. Perry, Judge

No. E2011-00270-COA-R3-CV-FILED-OCTOBER 19, 2011

Essentially, plaintiff's Complaint sets forth numerous refusals by the prison in denying him

appropriate and proper medical treatment for his conditions. In their Answer, defendants

denied the Complaint's allegations and subsequently moved for summary judgment, which

the Trial Court granted. On appeal, we hold there are disputed issues of material facts and

the summary judgment is reversed, as to the health administrator and the nurse practitioner.

The summary judgment granted to the Warden of the Southeastern Tennessee State

Correctional Facility is affirmed.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed in

Part and Reversed in Part.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D.

SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

James W. Sharp, Pikeville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter, Joseph F. Whalen, Associate Solicitor

General, and Lee Pope, Assistant Attorney General, Nashville, Tennessee, for the appellees.
OPINION

Background

Plaintiff is incarcerated, and filed a pro se Complaint against Greg Wilson, Health

Administrator, Helen Redding, Nurse Practitioner, and Jim Morrow, Warden of the

Southeastern Tennessee State Regional Correctional Facility (“STSRCF”). Plaintiff alleged

that his civil rights had been violated, and defendants were guilty of negligence/recklessness.

He averred that in 1990, he had a car accident which caused him to have deep vein

thrombosis, and that he had been required since that time to continuously wear a 40-50 pound

compression stocking for his right leg to prevent ulcers, pain, and possible death. He stated

that his stocking ripped on April 8, 2008, when he was at Charles Bass Correctional Facility,

and that before he could get a new one, he was transferred to STSRCF. He alleged that he

was in severe pain when he arrived at STSRCF, and that he immediately informed them of

his need for the compression stocking and the fact that it had been prescribed for him.

He alleged that he saw the nurse practitioner several times, filed requests and

grievances, and sent letters attempting to get the required stocking, but to no avail. He

averred that he complained to the warden for his lack of medical care, but received no

response. He averred that he finally had to have his family members try to get the stocking,

at a cost of $668.10, but they were not successful due to a lack of medical orders from

STSRCF.

Plaintiff attached copies of his numerous request forms and the responses to the

requests vary from “it has been ordered” to “the prison cannot provide it but your family can”

to “prison can get it but not that exact type”. He also attached an Affidavit of Linda Turner

(who is apparently plaintiff’s girlfriend), wherein she stated that she tried numerous ways to

get the stocking for plaintiff, but to no avail. She stated that she visited plaintiff, and saw

that he was in great pain, and that his leg and foot were in a very bad condition.

Plaintiff also filed an Affidavit, stating that when he arrived at Charles Bass on April

8, 2008, he had a compression stocking, but it ripped. He stated the doctor there said she

would order a new one, but it never came. Plaintiff stated that in the meantime, the ulcer on

his foot came back, and he had to endure having it cleaned, which was very painful, and

when he was sent to STSRCF on September 9, 2008, he was in a lot of pain and very poor

health upon arrival there, due to the problems with his leg. Plaintiff stated that Nurse

Redding told him the only way he could get it was to have his family order it and send it.

Plaintiff said that he tried to do this but was unable to get the right one. Further, that they

refused to change his dressing on the weekends, that he was unable to walk but they would

not provide crutches, and that his ulcer was draining all the time. Plaintiff's affidavit details

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through many pages the suffering that he endured.

Defendants filed an Answer, admitting that when plaintiff came to STSRCF, he had

a venous stasis ulcer on his right ankle and was walking on crutches. Defendants stated that

plaintiff exhibited ongoing, persistent, uncooperative and non-compliant behavior with

regard to his medical treatment, and that he refused to take his prescribed medications, failed

to appear for appointments, and refused to cooperate with the cleaning of the wound, but they

admitted that the Jobst stocking was prescribed, but was not approved by the supervising

medical management company. They stated that plaintiff refused to accept any substitute

stocking that was approved by the management company. Defendants denied that there was

any deliberate indifference, negligence or recklessness, and pled the affirmative defenses of

qualified immunity, sovereign immunity, failure to exhaust administrative remedies, etc.

Defendants then filed a Motion for Summary Judgment, arguing that there could not

be a showing of deliberate indifference where plaintiff simply alleged that he didn’t get the

type of medical care that he requested or expected. They argued that a dispute over the

adequacy of medical treatment did not rise to the level of a constitutional violation, and at

most amounted to a negligence claim. Further, that the Court had no jurisdiction to hear the

negligence claim, because negligence claims against a state employee had to go to the

Tennessee Claims Commission.

Defendants filed a Rule 56 Statement of Undisputed Facts.

Defendants attached an Affidavit of Greg Wilson, who stated that he was Health

Services Administrator fo STSRCF, and that his duties included general oversight and

management of the health services unit, but that he was not a licensed medical provider and

did not diagnose or treat patients. He stated that when plaintiff arrived in September 2008,

the treating physician ordered a Jobst compression stocking to treat plaintiff’s ulcer, and that

plaintiff repeatedly requested same. He stated that the medical management company

declined to cover the cost of the Jobst stocking, but other stockings were offered, which

plaintiff refused. Wilson stated that he told plaintiff he could get the stocking from his

family, and that plaintiff was not denied medical attention, and suffered no harm.

Defendants also filed an Affidavit of Helen Redding, who stated that she was a nurse

practitioner and that she treated plaintiff’s medical issues. She stated that plaintiff was seen

by the doctor shortly after his arrival and the doctor ordered a Jobst compression stocking.

Redding stated the doctor ordered plaintiff to continue the unaboot dressings while waiting

for the stocking to arrive. Redding stated that plaintiff was provided a unaboot leg dressing

to treat his ulcer. She stated that plaintiff was argumentative, uncooperative, and noncompliant, that he had refused to appear for appointments to change his dressing and refused

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to take prescribed medication.

Redding stated plaintiff received proper timely medical care and suffered no harm,

and that his ulcer was now resolved.

The Trial Court, acting on the Motion for Summary Judgment, entered an Order of

Dismissal, stating that defendants had averred that plaintiff was uncooperative with his

medical treatment, that he was offered acceptable and similar compression stockings which

he refused to accept, and that he was permitted to obtain the stocking he wanted from his

family. The Court found that there was no deliberate indifference where plaintiff merely

challenged the adequacy of his treatment, and that Morrow was not involved.

Plaintiff filed a timely Notice of Appeal, and the issue raised on appeal is whether the

Trial Court erred in granting summary judgment to defendants?

Discussion

As our Supreme Court has previously stated:

The granting or denying of summary judgment is a matter of law, and we therefore

review the trial court's grant of summary judgment . . . de novo. Blair v. W. Town

Mall, 130 S.W.3d 761, 763 (Tenn. 2004). The party moving for summary judgment

has the burden of introducing or identifying admissible facts in the record showing

that there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. Mills v. CSX Transp., Inc., 300 S.W.3d 627, 631 (Tenn. 2009); see

Tenn. R. Civ. P. 56.04.

Blue Bell Creameries, LP v. Roberts, 333 S.W.3d 59 (Tenn. 2011). Our Supreme Court has

also stated:

Summary judgment is appropriate when the moving party can show that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law.

Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). In Byrd, this

Court set out the basic principles involved in determining whether a motion for

summary judgment should be granted. The moving party has the ultimate burden of

persuading the court that “there are no disputed, material facts creating a genuine

issue for trial ... and that he is entitled to judgment as a matter of law.” Byrd, 847

S.W.2d at 215. If the moving party makes a properly supported motion, the burden of

production then shifts to the nonmoving party to show that a genuine issue of material

fact exists. Id. To meet its burden of production and shift the burden to the nonmoving

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party, the moving party must either affirmatively negate an essential element of the

nonmoving party's claim or establish an affirmative defense. Id. at 215 n. 5. If the

moving party does not satisfy its initial burden of production, the court should dismiss

the motion for summary judgment. See id. at 215. Summary judgment should be

granted only when, with the facts viewed in favor of the nonmoving party, it is clear

that no genuine issue of material fact exists. Id. at 210–11.

Hannan v. Alltel Publishing Co., 270 S.W.3d 1, 5 (Tenn. 2008). The Court went on to

explain:

The Court explained that a moving party has only two methods to shift its burden: (1)

the moving party may affirmatively negate an essential element of the nonmoving

party's claim; or (2) the moving party may establish an affirmative defense.

Courts must view the evidence and all reasonable inferences to be drawn therefrom

in the light most favorable to the non-moving party. Giggers v. Memphis Housing Authority,

277 S.W.3d 359, 363–64 (Tenn. 2009). A grant of summary judgment is appropriate only

when the facts and the reasonable inferences from those facts would permit a reasonable

person to reach only one conclusion, and in making that assessment, the Court must discard

all countervailing evidence. Id.

In this case, the Trial Court did not view the evidence in the light most favorable to

plaintiff and discard all countervailing evidence in making its ruling. The Trial Court stated

that defendants “averred” that plaintiff was argumentative, uncooperative, and noncompliant, that other acceptable and similar compression stockings were provided but

refused by plaintiff. The Court also stated that defendants had “averred” that plaintiff was

permitted to receive the necessary stocking from his family, which formed the basis for the

Court’s grant of summary judgment.

What plaintiff alleged in his Complaint, however, and supported with his own

affidavit and the affidavit of Ms. Turner, is that he was allowed to languish in prison for

months in great pain while awaiting the prison health services unit to get him the necessary

stocking. He was told (and the responses demonstrate) that it had been ordered, that it was

coming, that they couldn’t get it, that alternatives were available, etc., but plaintiff stated that

he never received the correct stocking to treat his medical condition. His affidavit detailed

several violations of his lack of treatment.

While defendants attempted to frame this claim as plaintiff’s disagreement with the

medical treatment he received, plaintiff has alleged a course of conduct by the prison health

services staff when viewed in the light most favorable to him, states a constitutional

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violation. Defendants cite this Court to cases which defendants claim lend support to their

argument that disputes over adequacy of treatment are “attempts to constitutionalize claims

that are, if anything, state law negligence claims”. Westlake v. Lucas, 537 F.2d 857, 860 (6

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Cir. 1976); see also Fitzke v. Shappell, 468 F.2d 1972 (6 Cir. 1972). A review of these

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cases, however, demonstrates that they actually support plaintiff’s position.

In Fitzke, the plaintiff alleged that he was arrested after passing out and striking a

telephone pole with his car due to a bleeding brain lesion. Fitzke v. Shappell, 468 F.2d 1972

(6 Cir. 1972). The arresting officer allegedly expressed no concern for plaintiff’s physical

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condition, even though plaintiff communicated his need for medical attention. Id. Plaintiff

was taken to the county jail at around 1:30 a.m., where he again complained of pain and

numbness and expressed a need for medical attention, but was denied same for 12 hours. Id.

When plaintiff finally did receive medical attention, it was discovered that he was suffering

from a serious brain injury, and plaintiff had to “undergo a craniotomy and have the damaged

portion of his brain removed.” Plaintiff alleged that the extent of his brain damage was due

to defendants’ delay in giving him medical attention. Id.

The defendantsfiled a motion to dismiss and/or forsummary judgment, and supported

same with affidavits from employees of the county jail, as well as a physician who was called

by the jailers. The jail employees stated that they examined plaintiff after coming on shift

the morning after plaintiff was arrested, and that after examining him they called a doctor.

The doctor stated that he examined plaintiff and eventually did send him to the hospital for

treatment. The trial court granted summary judgment on plaintiff’s claims. Id.

The United States Court of Appeals for the Sixth Circuit recognized that claims of

deprivation of/inadequate medical care by a person being held in jail can give rise to a

constitutional violation, stating:

An individual incarcerated, whether for a term of life for the commission of some

heinous crime, or merely for the night to “dry out” in the local drunk tank, becomes

both vulnerable and dependent upon the state to provide certain simple and basic

human needs. Examples are food, shelter, and sanitation. Facilities may be primitive

but they must be adequate. Medical care is another such need. Denial of necessary

medical attention may well result in disabilities beyond that contemplated by the

incarceration itself. The result may be crippling injury, as alleged here, or, as the

Stiltner court pointed out, the very deprivation of life itself, since, restrained by the

authority of the state, the individual cannot himself seek medical aid or provide the

other necessities for sustaining life and health.

Fitzke, at 1076.

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The Court found that plaintiff had alleged in his Complaint that he complained of pain

and numbness, that he requested medical attention, and that he did not receive same for many

hours. Id. The Court held that the Trial Court’s grant of summary judgment was improper,

and noted that cases involving civil rights violations should not be dismissed at the pleading

stage unless it “appears to a certainty that the plaintiff would be entitled to no relief under

any state of facts which could be proved in support of his claim.” Id. at 1077, f.n. 6.

The Court also addressed the fact that defendants had filed affidavits in support of

their motion which were uncontroverted by plaintiff. Id. The Court noted that while the nonmoving party in a summary judgment situation would usually need to file affidavits in

response to show a genuine issue of material fact, the Court stated, “[t]hat affidavits filed in

support of a motion for summary judgment are not controverted does not necessarily require

its being granted, although the statements contained therein must be accepted as true. One

moving for summary judgment has ‘the burden of showing the absence of a genuine issue

of any material fact, and for these purposes the material . . . [which the appellees] lodged

must be viewed in the light most favorable to the opposing party.’” Id. at 1077.

That Court held that the affidavits did not negate the essential allegations of the

Complaint, and that the affidavits did not demonstrate the absence of any issue of material

fact, and that summary judgment was improperly granted. Id.

Similarly, in Westlake v. Lucas, 537 F.2d 857, 860 (6 Cir. 1976), the plaintiff alleged

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that he was incarcerated at the county jail awaiting trial, and that he informed jail personnel

upon his admission that he suffered from an ulcer and required a special diet and medication.

Plaintiff’s requests were denied, and jail officialsstated that they would not grant hisrequests

until ordered to do so by a doctor. Id. Despite his requests for treatment, plaintiff was not

taken to see a doctor, and began to suffer abdominal pain. Id. Finally, after six days,

plaintiff began to vomit blood, and when this was brought to the jailers’ attention, the

response was to give him a mild antacid.

The United States Court of Appeals for the Sixth Circuit stated, “[w]e believe that a

prisoner states a proper cause of action when he alleges that prison authorities have denied

reasonable requests for medical treatment in the face of an obvious need for such attention

where the inmate is thereby exposed to undue suffering or the threat of tangible residual

injury.” Id. at 860. The Court went on to state, “a prisoner who is needlessly allowed to

suffer pain when relief is readily available does have a cause of action against those whose

deliberate indifference is the cause of his suffering.” Id. The Court thus reversed the trial

court’s dismissal of plaintiff’s Complaint. Id.

As in Fitzke, plaintiff did ultimately receive some medical care, but he has alleged

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that the care he received was insufficient and untimely, and resulted in great pain and

suffering to him. He stated that he was denied the compression stocking he needed, and that

the substitute stockings were insufficient for his medical needs. As a result, he suffered

additional pain and injury. Plaintiff also stated that the blood thinner (Coumadin) he was

given caused him terrible side effects and that he feared he would have a heart attack, but his

requests for another medication were denied, since he had refused to take Coumadin.

Plaintiff's affidavits support his allegations.

Defendants' affidavitsstated that plaintiff was given medical care that wastimely, that

he was offered substitute stockings, but refused, and that he was allowed to get the stocking

from his family. They also stated that plaintiff was uncooperative and argumentative, and

they conclude plaintiff suffered no harm. As in Fitzke, these affidavits do not establish that

there is no genuine issue of material fact in this case. They do not address many of plaintiff’s

factual statements, but instead simply focus on the fact that alternative stockings were

offered, and that plaintiff’s ulcer ultimately healed. They do not address his allegations

regarding lack of pain medication, lack of crutches, lack of proper orders so that his family

could obtain the stocking, the discontinuation of his unaboot dressing, the side effects he had

with the Coumadin, etc. We find defendants have failed to “affirmatively negate an essential

element of the nonmoving party's claim; or show that the nonmoving party cannot prove an

essential element of the claim at trial.”

Defendants argue that summary judgment was properly granted, because it was not

shown that Morrow was involved in any alleged deprivation of plaintiff’s constitutional

rights, which is required for supervisor liability in civil rights actions. Plaintiff alleged that

he sent a letter to Morrow letting him know of his problems, but defendants are correct that

“knowledge of a prisoner’s grievance and subsequent failure to remedy the prisoner’s

complaint is still insufficient to impose supervisory liability under §1983.” Henry v. Pogats,

35 F.3d 565 (6 Cir. 1995). Accordingly, without a showing that Morrow somehow

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participated in any unconstitutional conduct,summary judgment was properly granted to him.

As to plaintiff’s state law claims, defendants argue that these claims were within the

exclusive jurisdiction of the Tennessee Claims Commission pursuant to Tenn. Code Ann. §9-

8-307,since the defendants were state employees, and that the Trial Court properly dismissed

them. Defendants Wilson and Redding have not been shown to be state employees, however,

by affidavit or otherwise. This Court has recognized in previous cases that sometimes prison

personnel, especially health services personnel, are actually employees of contracted agencies

and not of the State, and thus that Tenn. Code Ann. §9-8-307 would not apply. See Younger

v. State, 205 S.W.3d 494 (Tenn. Ct. App. 2006). Essentially, the Trial Court did not

explicitly analyze or rule upon plaintiff’s state law claims in its Order of Dismissal, and upon

remand, this issue will appropriately be addressed by the Trial Court.

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We uphold the summary judgment granted to Jim Morrow, Warden of the

Southeastern Tennessee State Regional Correctional Facility, but reverse the summary

judgment as to the remaining defendants, and remand for further proceedings consistent with

this Opinion.

The cost of the appeal is assessed one-half to plaintiff and one-half to Wilson and

Reading.

 

_________________________________

HERSCHEL PICKENS FRANKS, P.J.

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