United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE.
matter is before the Court on cross motions for summary
judgment filed by Defendant Shannon Oaks (“Oaks”)
(Doc. No. 45) and Plaintiff Jimmy DeWayne Shelby (Doc. No.
52). Also before the Court is Plaintiff's motion for
appointment of counsel. (Doc. No. 55). The motions are fully
briefed and ready for disposition. For the reasons set forth
below, Defendant's motion for summary judgment will be
granted. Plaintiff's motion for summary judgment and
motion for appointment of counsel will be denied.
who is proceeding pro se, brings this action under 42 U.S.C.
§ 1983 against Oaks, a certified nurse practitioner who
was at all relevant times employed by “Corizon
Health” at the Missouri Department of Corrections at
Eastern Reception and Diagnostic Correctional Center
(“ERDCC”). Oaks treated Plaintiff while he was an
inmate at ERDCC, and Plaintiff alleges that Oaks was
deliberately indifferent to his serous medical needs while he
was confined there.
operative complaint contains the following allegations:
Plaintiff claims that that he had been approved for surgery
to correct his cervical spine stenosis, but Oaks disregarded
the recommendation and decided to pursue alternative epidural
treatment. He claims that during his numerous appointments
with Oaks, he requested that MRIs be taken of his back and
that he be approved for surgery. He claims Oaks refused
“every time.” Plaintiff further alleges that Oaks
told him that “Jefferson City is cutting back on having
any surgeries performed.”
also claims that he complained of swollen knees, that he
sought a special mattress and wheelchair for his conditions,
and that those requests were refused. Plaintiff seeks a Court
order mandating that MRIs be taken of his back and that he be
approved for surgical procedures to his cervical, thoracic,
and lumbar spine. He also seeks compensatory and punitive
judgment is appropriate when no genuine issue of material
fact exists in the case and the movant is entitled to
judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The initial burden
is placed on the moving party. City of Mt. Pleasant, Iowa
v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th
Cir. 1988). If the record demonstrates that no genuine issue
of fact is in dispute, the burden then shifts to the
non-moving party, who must set forth affirmative evidence and
specific facts showing a genuine dispute on that issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In determining whether summary judgment is
appropriate in a particular case, the evidence must be viewed
in the light most favorable to the nonmoving party.
Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616,
619 (8th Cir. 1988). Self-serving, conclusory statements
without support are not sufficient to defeat summary
judgment. Armour & Co., Inc. v. Inver Grove
Heights, 2 F.3d 276, 279 (8th Cir. 1993).
suffers from chronic neck and back pain, and he was enrolled
in a chronic care program at the ERDCC. On October 19, 2015,
Plaintiff's then-treating nurse submitted a request for
Plaintiff to see a neurosurgeon due to his cervicalgia with
upper extremity neuropathy. The regional medical director
(“RMD”) approved the request “for
neurosurgery consult.” (Id. at 14).
January 20, 2016, Plaintiff saw Philippe Mercier, M.D., a
neurosurgeon at St. Louis University (“SLU”)
Neurosurgery. Dr. Mercier had not received Plaintiff's
most recent MRI, so he examined Plaintiff and planned to
review the MRI, noting “If there is any possible
findings, we will bring the patient back to clinic for review
of his imaging.” (Id. at 15).
followed up with Oaks on February 2, 2016, at which time he
requested “lay-ins” and a special mattress. The
next day, his MRI disc was received from Vista Imaging and
sent to SLU Neurosurgery to be reviewed.
February 5, 2016, Plaintiff again treated with Oaks, who told
Plaintiff that his MRI discs had been sent out, and she noted
that he had no new complaints. Oaks assessed chronic
neck/back pain and bilateral hand pain. She ordered Capsaicin
cream for his hands after soaking in warm water. Oaks planned
to follow up after she heard from SLU Neurosurgery regarding
February 15, 2016, Plaintiff met with Director of Nursing
Todd Renshaw in response to Plaintiff's informal
resolution request, in which Plaintiff complained that his
neck surgery was being prolonged. Plaintiff in his affidavit
claims that Renshaw told Plaintiff that the neurosurgeon had
already viewed the MRI disc and wanted to perform the
surgery. However, in his written response to Plaintiff's
grievance, Renshaw wrote, “MRI forwarded to surgeon. He
wants to proceed [with] surgery.” Renshaw in his
affidavit asserts that “He wants to proceed [with]
surgery” refers to Plaintiff, not Dr. Mercier. Renshaw
asserts that he never spoke to or heard from Dr. Mercier, and
neither Dr. Mercier nor any other neurosurgeon from SLU
Neurosurgery followed up with the ERDCC medical staff.
(Renshaw Aff., Doc. No. 46-3 at ¶ 5).
March 11, 2016, Oaks submitted a neurosurgery referral
request because she was “unable to get communication
from SLU concerning plans since consultation after several
attempts.” (Id. at 25). Oaks discussed the
matter with the RMD, and he approved the request.
March 23, 2016, Plaintiff saw Jeff Lehmen, M.D., at SSM
Health. Dr. Lehmen diagnosed cervicalgia and noted that a
diagnosis of osteoarthritis of the spine. He recommended a
referral to an Ear, Nose, and Throat (“ENT”)
specialist for a vocal cord analysis prior to a right side
anterior cervical discectomy and fusion (“ACDF”)
procedure at the C4-5 level with removal of the existing
hardware at ¶ 5-6.
March 28, 2016, Oaks submitted referrals for Plaintiff to see
the ENT for a vocal cord analysis before returning to Dr.
Lehmen for surgery. Oaks states in her affidavit that the RMD
responded to the surgery request by asking how the injury
impacted Plaintiff's activities of daily living, to which
Oaks responded that there were no specific reports of the
injury affecting Plaintiff's activities of daily living.
(Oaks Aff., Doc. No. 46-1 at ¶ 17). She did, however,
communicate that Plaintiff suffered from constant numbness
and tingling to his left arm ...