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Barnes v. Norton

United States District Court, D. Utah

March 29, 2018

EARL L. BARNES, Plaintiff,
v.
SHAYNE NORTON et al., Defendants.

          MEMORANDUM DECISION & ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          Tena Campbell Judge.

         Pro se plaintiff Earl L. Barnes filed this prisoner civil-rights action.[1] The Amended Complaint[2] alleges that Defendants Shayne Norton, Alan Howard, Roger Peterson, Chad Dufford and Sidney Roberts-Utah State Prison (USP) officials-violated Barnes' rights under the Eighth Amendment when, after accusing him of “cheeking” prescription pain medication, they discontinued his prescription. Barnes further alleges that Defendants' behavior constituted medical malpractice under Utah state law.

         Before this Court is Defendants' Motion for Summary Judgment.[3] Defendants assert that (1) they are entitled to qualified immunity on Barnes' Eighth Amendment Claims, and (2) Barnes' medical malpractice claims fail under state law. As discussed below, the Court agrees that the Defendants are entitled to qualified immunity and, accordingly, dismisses the Eighth Amendment claims with prejudice. The court declines to exercise supplemental jurisdiction over the state law claims, [4] which it dismisses without prejudice.

         I. UNDISPUTED MATERIAL FACTS

         Earlier in the case, this Court notified Barnes that, in response to a summary-judgment motion, “Plaintiff cannot rest upon the mere allegations in the Complaint. Instead . . . Plaintiff must allege specific facts, admissible in evidence, showing that there is a genuine issue remaining for trial.”[5] Barnes filed separate responses to Defendants' Martinez report[6] and Motion for Summary Judgment.[7] Neither response follows the requirement that Plaintiff assert specific facts, supported by admissible evidence, showing a genuine issue of fact requiring trial.

If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it . . . .[8]

         Such is the case here. The Court therefore adopts Defendants' statement of undisputed material facts, drawn from their Motion for Summary Judgment, as follows:

1. On January 7, 2014, Defendant Dufford refilled Barnes' Tramadol and Neurontin prescriptions.[9]
2. Tramadol is a synthetic opioid narcotic pain medication with high potential for abuse and diversion.[10]
3. Neurontin is prescribed to treat neuropathic pain (originating from nerve injuries) and has high potential for abuse and diversion.[11]
4. Tramadol and Neurontin are highly sought after within the prison population, are distributed through prison black markets, and put inmates who have these prescriptions at risk of being strong-armed or threatened for their medications.[12]
5. “Cheeking” occurs when an inmate hides his medication under his tongue, against his gums, or elsewhere in his mouth.[13]
6. Cheeking is a primary way to divert medication into the prison population.[14]
7. Cheeking is a violation of prison policy and a serious abuse of prescription medication.[15]
8. Prison policy as to abuse or misuse of medications reads, in relevant part, as follows: “Elements: An offender may be charged with this offense if the offender . . . failed to take medication as prescribed . . . .”[16]
9. When an inmate is caught cheeking, prison medical staff members have a policy of discontinuing the inmate's prescription pain medication for six months.[17]
10. When an inmate disputes a cheeking allegation, prison medical staff may submit the matter to an informal group of prison physicians, physician assistants and prison nurse practitioners (medical review board) to determine whether to reinstate the medication.[18]
11. If the medical review board concludes the cheeking allegation is unsubstantiated or anomalous the board will consider reinstating the medication.[19]
12. To prevent hoarding and diversion of prescription pain medication, USP dispenses medication at a pill line where each inmate is provided his medicine and a glass of water. After swallowing the medication, the inmate opens his mouth for a visual inspection to ensure the medication has been swallowed.[20]
13. Inmates are given enough time to swallow their medication and may speak to the medical technician on duty if they are having difficulty swallowing their medication.[21]
14. When an inmate opens his mouth for inspection, the inmate is communicating non-verbally that he has taken his medication as prescribed.[22]
15. Before March 12, 2014, Barnes had been to pill line many times and showed an understanding of the process for taking his prescription pain medication.[23]
16. On March 12, 2014, in the pill line, Defendant Norton gave Barnes a cup of water and his Tramadol and Neurontin medications.[24]
17. Barnes placed both pills in his mouth and swallowed.[25]
18. When Barnes opened his mouth, Norton observed white residue on his tongue and asked Barnes to open his mouth wider. This revealed two pills on the roof of Barnes' mouth.[26]
19. After Norton told Barnes that he was cheeking his medication, Barnes closed his mouth and swallowed.[27]
20. Barnes asked Defendant Norton if he could remove his dentures to show that he did not have pills in his mouth but by then Barnes had already had a second chance to swallow.[28]
21. Defendant Norton described his observations of Barnes' cheeking to Defendant Howard.[29]
22. Defendant Norton entered the following description of Barnes' cheeking as a note in Barnes' medical chart:
23. IM BARNES WAS GIVEN BOTH HIS GABAPENTIN AND TRAMADOL DURING PM PILL LINE ON 3/12/14. IM PUT THE PILLS IN HIS MOUTH AND TOOKE [SIC] A DRINK FROM HIS CUP. MEDICAL ASKED TO SEE THE IM'S MOUTH. IM SHOWED HIS MOUTH. THERE WAS A WHITE MARK ON THE IM'S TONGUE SO MEDICAL ASKED TO SEE THE ROOF OF HIS MOUTH. IM STARTED TO DELAY, IM WAS INSTRUCTED TO STOP AND SHOW THE ROOF OF HIS MOUTH. WHEN IM OPENED HIS MOUTH AND LIFTED HIS HEAD MEDICAL WAS ABLE TO SEE HIS PILLS ON THE ROOF OF HIS MOUTH. OFFICERS WERE INFORMED OF THE SITUATION.[30]
24. On March 12, 2014 Defendant Dufford reviewed Norton's chart note and discontinued Barnes' Tramadol and Neurontin prescriptions.[31]
25. Defendant Dr. Roberts saw Barnes on March 19, 2014 for a urinary tract issue.[32]
26. Barnes asked that Dr. Roberts reinstate his Tramadol and Neurontin medications.[33]
27. Barnes did not ask Dr. Roberts to give him non-narcotic pain medication.[34]
28. Dr. Roberts reviewed Barnes' chart notes, concluded the pills had not been swallowed, and chose not to submit Barnes' request for reinstatement to the medical review board.[35]
29. Between March 19 and June 11, 2014, Barnes did not seek any medical treatment for pain.[36]
30. At all relevant times, Barnes had access to over-the-counter pain medication such as acetaminophen, ibuprofen, aspirin or naproxen sodium either by requesting to be seen by a medical provider or by buying over-the-counter pain medication from the commissary.[37]
31. Barnes bought 100 aspirin from the commissary on March 26, 2014.[38]
32. Defendant Howard drafted a major disciplinary (MD-1) charge against Barnes charging Barnes with an A-13 violation and stating “Inmate Barns (sic) had placed one Tramidol [sic] pill and one Neurontin pill in Fixodent that was attached to the roof of his mouth. Medical Technition [sic] Shayne Norton caught Inmate Barnes with the cheeked medication.”[39]
33. Defendant Howard also drafted an incident report stating Barnes was caught by medical staff trying to cheek his medications.[40]
34. Defendant Peterson reviewed the MD-1 and Incident reports for accuracy and grammar.[41]
35. An A-13 violation occurs when an offender possesses a prescription drug not prescribed to the offender.[42]
36. On May 28, 2014, Hearing Officer Doug Cook found Barnes not guilty of the A-13 violation, and concluded that Barnes should have been charged with a B-13 violation.[43]
37. Defendant Norton does not decide whether an inmate receives prescription pain medications after the inmate is caught cheeking.[44]
38. Defendant Howard does not decide whether an inmate receives prescription pain medications after an inmate is caught cheeking.[45]
39. Defendant Peterson does not decide whether an inmate receives prescription pain medications after an inmate is caught cheeking.[46]
40. On June 11, 2014, Barnes told Defendant Dufford that he had been found not guilty of cheeking and asked to have his Tramadol and Neurontin prescriptions reinstated.[47]
41. Barnes did not ask Defendant Dufford for alternative pain medication.[48]
42. Defendant Dufford agreed to submit Barnes' request to the medical review committee for consideration, and Barnes indicated he was satisfied with this course of action.[49]
43. The medical review committee approved Barnes' request and Defendant Dufford reinstated Barnes' Tramadol and Neurontin prescriptions on July 2, 2014.[50]
44. Between March 12, 2014 and July 2, 2014, Barnes regularly participated in prison activities, including gym.[51]
45. Prison medical staff prescribed Tramadol and Neurontin to treat Barnes' pain associated with calcifying tendonitis in his shoulder and nerve damage from a gunshot wound in Barnes' forearm.[52]
46. Neither of Barnes' conditions was life-threatening or emergent (i.e., requiring prompt attention).[53]
47. Tramadol and Neurontin did not treat Barnes' underlying conditions of calcifying tendonitis and neuropathic injury, but rather were an elective option to give comfort for the ...

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