United States District Court, D. Utah
EARL L. BARNES, Plaintiff,
SHAYNE NORTON et al., Defendants.
MEMORANDUM DECISION & ORDER GRANTING MOTION FOR
se plaintiff Earl L. Barnes filed this prisoner
civil-rights action. The Amended Complaint 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
this Court is Defendants' Motion for Summary
Judgment. 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,  which it
dismisses without prejudice.
UNDISPUTED MATERIAL FACTS
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.” Barnes filed separate responses to
Defendants' Martinez report and Motion for
Summary Judgment. 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 . . . .
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.
2. Tramadol is a synthetic opioid narcotic pain medication
with high potential for abuse and diversion.
3. Neurontin is prescribed to treat neuropathic pain
(originating from nerve injuries) and has high potential for
abuse and diversion.
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
5. “Cheeking” occurs when an inmate hides his
medication under his tongue, against his gums, or elsewhere
in his mouth.
6. Cheeking is a primary way to divert medication into the
7. Cheeking is a violation of prison policy and a serious
abuse of prescription medication.
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 . . . .”
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.
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.
11. If the medical review board concludes the cheeking
allegation is unsubstantiated or anomalous the board will
consider reinstating the medication.
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
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.
14. When an inmate opens his mouth for inspection, the inmate
is communicating non-verbally that he has taken his
medication as prescribed.
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.
16. On March 12, 2014, in the pill line, Defendant Norton
gave Barnes a cup of water and his Tramadol and Neurontin
17. Barnes placed both pills in his mouth and
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'
19. After Norton told Barnes that he was cheeking his
medication, Barnes closed his mouth and
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
21. Defendant Norton described his observations of
Barnes' cheeking to Defendant Howard.
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
24. On March 12, 2014 Defendant Dufford reviewed Norton's
chart note and discontinued Barnes' Tramadol and
25. Defendant Dr. Roberts saw Barnes on March 19, 2014 for a
urinary tract issue.
26. Barnes asked that Dr. Roberts reinstate his Tramadol and
27. Barnes did not ask Dr. Roberts to give him non-narcotic
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
29. Between March 19 and June 11, 2014, Barnes did not seek
any medical treatment for pain.
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.
31. Barnes bought 100 aspirin from the commissary on March
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
33. Defendant Howard also drafted an incident report stating
Barnes was caught by medical staff trying to cheek his
34. Defendant Peterson reviewed the MD-1 and Incident reports
for accuracy and grammar.
35. An A-13 violation occurs when an offender possesses a
prescription drug not prescribed to the
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.
37. Defendant Norton does not decide whether an inmate
receives prescription pain medications after the inmate is
38. Defendant Howard does not decide whether an inmate
receives prescription pain medications after an inmate is
39. Defendant Peterson does not decide whether an inmate
receives prescription pain medications after an inmate is
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
41. Barnes did not ask Defendant Dufford for alternative pain
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
43. The medical review committee approved Barnes' request
and Defendant Dufford reinstated Barnes' Tramadol and
Neurontin prescriptions on July 2, 2014.
44. Between March 12, 2014 and July 2, 2014, Barnes regularly
participated in prison activities, including
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
46. Neither of Barnes' conditions was life-threatening or
emergent (i.e., requiring prompt attention).
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 ...