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Nelson v. Griffin

United States District Court, E.D. Texas, Texarkana Division

May 25, 2017

BRIAN NELSON, Plaintiff,
v.
RORY L GRIFFIN, Defendants.

          ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE

         The Plaintiff Brian Nelson, proceeding pro se, filed this civil rights lawsuit under 42 U.S.C. §1983 complaining of alleged violations of his constitutional rights in the Bowie County Correctional Center. Plaintiff named as Defendants Warden Bob Page, Dr. J. Shah, Nurse Regina Lynch, and Rory Griffin, Deputy Director for Health and Correctional Services in the State of Arkansas. This Court referred the case to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

         I. Plaintiff's Claim's

         Plaintiff asserts that he injured his back while being transported from Malvern, Arkansas to the Bowie County Correctional Center on July 31, 2015. Docket No. 2 at 4. According to Plaintiff, he repeatedly sought medical care but was not able to see the physician, Dr. Shah, until September 9, 2015. Id. at 4-9. He states that Dr. Shah was very rude to him and that Dr. Shah told him it was not his backbone but his pelvic bone which was protruding. Id. at 5. Plaintiff further explains that the nurse told him she was ordering pain medication and muscle relaxants but it would be a while before they came in. Id. at 5-6.

         Plaintiff states that two months after not receiving medication except for ibuprofen, Plaintiff filed an emergency grievance. Id. at 5. According to Plaintiff, Nurse Lynch responded by stating his pain medication had not yet come in and that the doctor did not order an MRI. Id. at 6. Plaintiff further states that he appealed Nurse Lynch's response to Rory Griffin and received a note stating he would get a response to the grievance by December 10, 2015. Id. Plaintiff notes that he never received a response to that sick call. Id.

         Plaintiff further alleges that he continued filing sick call requests and saw Dr. Shah for the fourth time on December 11, 2015. Id. at 7. According to Plaintiff, Dr. Shah was rude to him and told him that he would not perform surgery on Plaintiff's back. Id. Plaintiff explains that he told Dr. Shah none of the medications were working but he was told to leave. Id.

         On January 6, 2016, Griffin denied Plaintiff's grievance, stating Plaintiff had been seen numerous times for his complaints of back pain and has been treated as deemed appropriate by the medical providers. Docket No. 5-3 at 16. Plaintiff continued filing grievances and sick call requests, some of which were answered by Nurse Lynch but most of which were ignored. See Docket No. 5-3 at 17-28. Nurse Lynch told him in multiple grievance responses the Arkansas Department of Correction would not approve an MRI for him because the X-rays taken had proven normal. See Docket No. 5-3 at 26. On February 22, 2016, Plaintiff wrote to Warden Page asking for help in getting an MRI but did not receive an answer. Docket No. 2 at 9.

         II. Magistrate Judge's Report

         After review of the pleading, the Magistrate Judge issued a Report recommending dismissal of the claims against Rory Griffin and Warden Page. Docket No. 10. The Magistrate Judge stated the claims against Griffin revolved around the response he received to his grievance appeal and that inmates do not have a constitutionally protected liberty interest in having grievances resolved to their satisfaction. Id. at 3-4. The Magistrate Judge also stated Plaintiff failed to show Griffin had authority to give directives to medical professionals regarding appropriate tests or treatment. Id. at 4.

         While Plaintiff complained he sent a grievance to Warden Page but received no reply, the Magistrate Judge determined Plaintiff has no constitutionally protected liberty interest in having his grievances processed appropriately. Id. at 3-4. The Magistrate Judge further explained that, even assuming Warden Page received the grievance, the failure to answer or take the action Plaintiff believed appropriate did not implicate any constitutionally protected liberty interest. Id. at 4. The Magistrate Judge therefore concluded Plaintiff failed to state a claim upon which relief could be granted against Rory Griffin and Warden Page. Id.

         III. Plaintiff's Objections

         A. Rory Griffin

         In his objections concerning Deputy Director Rory Griffin, Plaintiff asserts Griffin “hasn't been thorough in his checks on all that has actually been done to look into plaintiff's injuries to his back.” Docket No. 32 at 1. He contends Griffin did not get his story straight and lied about Plaintiff's reports. Id. at 2.

         In his objections, Plaintiff then reviews his grievances. Plaintiff states in Grievance No. BOW 15-00266, Griffin violated the policies and procedures of the Arkansas Department of Correction. Id. He complains Griffin made false statements, including allegedly stating that Plaintiff raised more than one issue in the grievance. Id. at 2-4.Plaintiff complains that Griffin did not order MRI when there was documentation allegedly supporting the ordering of an MRI. Id. at 2. Plaintiff also complains that Griffin stated he had reported a ...


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