1 Rule 10 (Court of A ppeals). Memorandum Opinion . -- (b) The Court, with the concurrence

of all judges part

icipating in the ca

se, may affirm, r

everse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no pr ecedential value. When a case is decided by mem orandum opinion it shall be designated "MEMORANDUM OPINION," shall not be publishe d, and shall

not be cited or relied on for any reason in a subsequent unrelated case.

2 Luther alleges that the table top was stored approximately ten to fifteen feet above the ground. Defendant/Appellee Ken Foster, a Correctional Facility employee stationed at theVotech shop building, testified that the table top was stored approximately five feet off the ground. Foste rals o testified that the table top was stored there by another inmate, despite repeated instructions prohibiting the storage of table tops in that location. 

# FILED
March 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ HARRY LUTHER, FROM THE LAKE COUNTY CIRCUIT COURT, No. 97-7625 Plaintiff-Appella

nt, THE HONORABLE R. LEE MOORE, JR., JUDGE Vs. C.A. No. 02A01-9710-CV-00253 AFFIRMED IN PART, REVERSED BILLY COMPTON, ET AL, IN PART AND REMANDED Harry Luther, Pr

o Se Defendant-App

ellees. James M. Glasgow; Elam & Glasgow of Union City, For Appellees

______________

_____________________________________________________________ _ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. Plaintiff/Appellant

Harry Luther (“Luther”) is incarcerated at the Lake County Regional Correctional Facility (“Correctional Facility”). On November 12, 1996, Luther was injur e d while working in the Correctional Facility’s Vo-tech shop building. A table top that was stored
on a beam above the groun d fell, striking Luther in the head. 2 Luther was escorted to the Correctional Facility clinic, where hewas treated for a two-inch laceration to his scalp. Luther comp la ined of neck and spinal pain, dizziness, blurred vision, and a concussion. Defen dant/Appellee Donna Klutts (“Nurse Klutts”), a nurse practitioner employed by th e Correctional Facility, testified that the nurses were instructed to keep Luther in the clinic for eight hours and to c

onduct neurologic

al checks ever

y two hours. Luther returned to the clinic the following day. The family nurse practitioner provided Luther with Tylenol and scheduled x-rays to be taken on his skull and spine. The x-rays revealed
no fractures, although degenerative changes in his cervical vertebrae were noted. Luther made3 Klutts testified tha t the Special Nee

ds Facility postpone

d the appointment. 2 several other visits within the following two weeks, complaining of pain. The nurses determined that all neurological signs were normal, but referred Luther to Defendant/Appellee Harol d Butler, M.D. (“Dr. Butler”). Dr. B utle r met with Luther on December 2, 199 6. Dr. Butler diagn osed Luther with degenerativearthritis of the c ervical spine. Me

dication was pre

scribed and Luthe

r was instr ucted to use a rolled up towel when he slept instead of a pillow. The following month Luther returned to Dr. Butler, complaining of head and neck pain. Dr. Butler diagnosed Luther as having degenerativedisease of the cervical spine. Dr. Butler prescr ibed medica tion for Luther, instructedhim to apply moist heatto the neck, and issued him an excuse from work. Luther was also referred to the

Lois DeBerry Special Needs Facility (“Special NeedsFacility”) in Nash ville for a second opinion. Luther was scheduled to v

isit the Special Ne

eds Facility on Febr

uary 24, 1997. This appointment

was postpon e d, however, until March 13, 1997. 3 After performing additional xrays, Lance Weaver, M.D., a physician at the Special Needs Facility, also diagnosed Luther as suffering from degenerative changes in the cervical spine. Dr. Weaver rec ommended that Luther receivea Magnetic Resonance Imaging (“MRI”) exam. Before this was done, however, Luther was returned to the Correctional Facility on March 17. Luther was again transported to the Special Needs Facility on April 9, 1997 and received
an MRI during this visit. While at this facility, Luther again met with Dr. Weaver. Dr. Weaver allegedly told Luther that he may have to undergo surgery to correct his cervical problems. Dr. Weaver also advised Luthe

r to receive physical therapy and provided Luther with a neck collar. Luther returned to the Co

rrectional Faci

l ity on April 15, 1997. Luth er alleges that si

nce his return, he has not been provided with any further medical treatment or physical therapy. Nurse Kl utts’ affida vit states that as of June 17, 1997, Luthe

r visited the clinic

on 32 occasions as

a result of his injury, and did not show up o n four other sche

duled visits. On May 5, 199 7, Luther filed a Complaint against Dr. Butler and numerous prison employees in their individual capacities. Luth er’s Complaint pur

ports to include cl

aims brought3

under the Eighth Amendment to the United States Constitution, the Tennessee Constitution, 42 U.S.C. § 1983 , and commo n law tort. He alleges that the Defendants failed to provide a safe work environment and failed to provide him with p rop er medical care. Luther alleges that certain of the Defendants were liable for the cau se of his injury due to the hazardous work environment. According to Luther, the condition of the Vo-tech shop building did not satisfy standards set forth by the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. §§ 651 et seq., or the Tennessee Occupational Safety and Health Act (“TOSHA”), T.C.A. §§ 50-3-101 et seq.. With regard to his cause of action for improper medical care, Luther’s Complaint alleges that the Defendants

exhibited a “flagrant deliberate indifference” to his medical condition and that Dr. Butler breached the standard of care. After answering the Complaint, Dr. Butler filed a Motion for Summary Judgment. The Motion was supported by an affidavit by Dr. Butler, t estifyi ng that he diagnosed and treated Luther in compliance with the acceptable standard of care. Lu ther f iled a Response to th

is Motion. Luther’s Resp onse included a request that the trial court abstain from ruling on Dr. Butler’s Motion until after Luther had the opportunity to conduct discovery. Luther alleged that he specifically

desired the oppor

tunity to proffer o

pposing expert af

fidavits. The remaining Defendants (hereinafter referred to as “Employee Def endants”) filed a Motion t o Di smiss or, alternat ively, a Motion for

Summary Judgment. T hese Defendan

ts contendthat they are immune from tort liability pursuant to T.C.A. § 9-8-307 (h) (Supp. 1997), since they were acting within thecourse and scope of their employment. They also asserted that the constitutional cla

im s and 42 U.S .C. § 1983 claim should be dismissed since they did not deliberately

deprive Luther of medical care in order to inflict un necessary pa in. In response, Luther filed a Response and a Motion for an extension of time to complete discovery. The Employee Defendants proc eeded to file

a Motion to Stay Discovery, asking the trial court to stay Luther’s discove

ry requests until a

fter the trial co

urt ruled on their

Motion to Dismiss. On July 7, 1997, the trial court granted the Defendants’ Motionto Stay Discovery. On September

15, 1997, the trial court entered an order granting summary j udgment to all of the Defendants. Specifically , the trial court fo und that summary jud

gment was appropr

iate with regard to the claim agains

t Dr. Butler since L

uther failed to fi

le a counter-af

fidavit by an expe

rt.4

With regard to the Empl

oyee Defendan

ts, the trial court held that these Defendants were immune from the tort claims pursua

nt to T.C.A. § 9-8-30

7 (h), since the c

laims were for negligence and since the employees were acting within the course and scope of their employment. With regard to the 42 U.S.C. § 1983 claim, the trial court found that Luther failed to present a genuine issue
o f material fact concerning whether the Employee Defendants demonstrated a “del iberat e indifference” to Luther’s medical condition. The trial court further found that these Defen

dants
were protected by qualified immunity since they were perfor ming discretionary functions as government

employees and that their “conduct did not violate any clearly established statutory [or] constitutional rights of which a reasonable person would have known.” On app eal, Luther contends that the trial court erred in concluding that the Employee Defendants

were immune from suit. Luther also asserts that summary judgment w as inappropriate since he was not given the opportunity to conduct discovery. A trial court should grant a motion for summary judgm ent only if the movant demonstrates that there are no genuine issues o f material fact

and that the moving p

arty is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Dunn v. Hackett , 833 S.W.2d 78, 80 (Tenn. App. 1992). The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd , 847 S.W.2d at 210. On a motion for summary judgment, the court must consider the motion in the same manner as a motion for directed verdict made at the close of the plaintiff’s proof; that is, “the trail court must tak

e the strongest le

gitimate view of the evidence in favor of the nonmo

ving party, allow a

ll reasonabl e inferences in favor of that party, and discardall countervailing evidence.” Id . at 210-11. In Byrd , the Tenness ee Sup reme Court stated: Once it is shown b y the m oving party that there is no genuine

issue of material fact, the nonmoving party must then demonstrate, by affidavits or discovery materials, that the re i s a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05 provides that the nonmoving pa rty cannot simply

rely upon his pleadings butmust set forth specific facts showing that there is a genuine

issue of material

fact for trial. Id . at 211 (citations

omitted) (emphasi

s in original). Wherea genuine dispute exists as to any material fact or as to theconclusions to be drawn from those facts, a court must deny a motion4 The trial court did enter an order granting th

e Employee Defe

ndants’ Motion to Stay Discovery. This motion, however, was filed by the Em ployee Defenda

nts and not by Dr. Butler. Therefore, we find that the trial court’s order did not apply to discovery related to Dr. Butler. 5 for summary judgment. Id. (citing Dunn , 833 S.W.2d at 80). We first consider the trial court’s granting of summary judgment in favor of Dr. Butler. The trial court granted summary judgment to Dr. B utler becaus e Luther failed to proffer a
coun ter-affidavit

by an expert. The

record indicate

s that on two differ

ent occasions,

Luthe r requested that the trial cour

t refrain from r

uling on Dr. Butler’ s motio n unt il he had an opportunity

to file a counter-affidavit by an expert. The trial court did

not respond to Luther’s motion. 4 We find that before summary judgment was entered, Luther should have been giventhe opportunity

to proffer eviden ce to refute Dr. Butler’s affidavit. According to Byrd , the nonmoving party is entitled to the opportunit y to “demonstrate, by affidavits or discovery materials,” the existence of a genuine issue of material facts. Byrd , 847 S.W.2d at 211; Braswell
v. Carothers , 863 S.W.2d 722, 72 8 (T enn. App. 1993); see also Bradfield v. Dotson , No. 02A01-9707-CV-00152, 1998 WL 63521, *3 (Tenn. A pp. Feb. 17, 1998) (

“We find that it

was inappropriate

for the trial cour

t to grant the defe

ndants’ motion for

summary judgment without
c onsidering the plaintiff’s request that the trial court compel the defendants to r espond to hi s discovery requests.”) Therefore the trial court’s granting of summary judgment in

favor of Dr. Butler was premature. The trial court’s gra

ntin g of summary j udgment in favor of the Employee Defendants was also premature. The

trial court corr

ectly found that T .C.A. § 9-8-307 (h) prov ides these Defendants

with immunity with regard to n e gligence that occ urred within the sc

ope of their employment. Luther’s Complaint, however, alleges more than mere negligence. For instance, it alleges a “delib

erate indiffer

ence” to h is medical conditio

n. Therefore he

was entitled to discovery regarding the iss ue of whether the

se Defendants acted willfully or maliciously so that their conduct was outside the scope of their employment. T.C.A. § 9-8-307 (h). The tr ial court did, howeve r, properly dismiss

Luther’s claims u

nder the Eighth Amendment

and 42 U.S.C. § 1983. A plaintiff alleging a claim under 42 U.S.C. § 1983 may not6

relyon “mere conclusory a llegatio ns” in the complaint. Bradfield v. Compton , No. 02A01- 9705-CH-00111, 1997 WL 739535, *4 (Tenn. App. Dec. 2, 1997) (quoting Chapman v. City of Detroit , 808 F.2d 459, 465 (6th Cir. 1986)). Instead, there must be “[s]ome factua l basi s” for the claims alleged. Id. Luther’s feder al claims of delibe

rate deprivatio

n of his individual r

ights qualify as “mere conclusory allegations” and are wholly unsupported by any objective facts. Id.

In sum, we affirm the trial court’s dismissal of the Eighth Amendment and 42 U.S.C. § 1983 claims b rought against the Defendants. We reverse the trial court’s order staying discovery and granting of summary judgment with regard to the other claims. On remand, Luther may conduct discovery as may be deemed appropriate. See Dotson , 1998 WL 63521 at *3 (“A prisoner pursuing a civillawsuit may conduc t discovery, but the

discovery is subje

ct to appropriate limitations imposed by the trial court.”). The order of the trial court is affirmed in part, reversed in part, and remanded as set out above. Costs on app

eal are assesse

d one-half to plai

ntiff and one-ha

lf to defendants.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE