United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
Plaintiff Gary Stephens, a prisoner of the Arkansas
Department of Corrections who is confined in the Bowie County
Correctional Center, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his
constitutional rights. Docket No. 1. 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. In his Complaint, Plaintiff
names as defendants Nurse Regina Lynch, Dr. Jagdish Shah and
individuals identified as “John Doe, Medical Staff,
” and “Jane Doe, Medical Staff.”
Id. at 1. No other identifying information has been
provided for John Doe and Jane Doe. Id. at 1-2.
complains of deliberate indifference to his serious medical
needs. He stated he broke his hand playing sports on March
29, 2016, but it took over two weeks to be seen at the
hospital on April 14. Docket No. 1 at 2-3. Plaintiff stated
the doctor told him it was too late to put a cast on his hand
but if he had been seen in three or four days, he would have
been alright. Id. at 3. Plaintiff stated “the
bone has already started to heal poking up from my
hand” and for his hand not to be permanently
disfigured, the doctor would have had to re-break his hand
and put pins in it. Id.
filed a Step One grievance concerning the incident on April
15, 2016. Docket No. 1-1 at 3. The response, signed by Nurse
Lynch, traced the timeline and stated there was no denial of
treatment. Id. at 2. He filed a grievance appeal and
the response, signed by Dr. Rory Griffin of the Arkansas
Department of Corrections Medical Department, reads in
pertinent part as follows:
March 30, 2016, Nurse Lynch noted swelling and redness to
your hand, and that [sic] Dr. Shah ordered an X-ray and
Tylenol for pain. March 31, 2016, the X-ray was completed and
showed a fracture in your hand. April 1, 2016, Dr. Shah
reviewed the X-ray results, and submitted a routine ortho
consult, and noted that you needed to be seen ASAP. April 4,
2016, Dr. Floss, Assistant Regional Medical Director,
approved the consult. April 8, 2016, Nurse Lynch updated the
consult with the appointment date. April 14, 2016, you were
seen by ortho. It is the site's medical department's
responsibility to schedule outside appointments.
Due to you not being seen ASAP as per Dr. Shah, this appeal
is with merit. Id. at 1.
Nurse Lynch's Motion for Summary Judgment
Regina Lynch filed a motion for summary judgment (Docket No.
23), which included an affidavit and medical records as
evidence. This evidence showed Plaintiff injured his hand on
March 29 and filed a sick call request which was received on
March 30. Docket No. 23-2 at 6. His hand was X-rayed on March
31 and Dr. Shah signed off on the X-ray to refer Plaintiff to
an orthopedist on April 1. Id. at 4-5.
request for approval to refer Plaintiff to the orthopedist
was sent to the Arkansas Department of Corrections on April
1, 2017. Id. at 3. The Bowie County Correctional
Center medical staff contacted a local multi-specialty
physician group practice called Collom and Carney Clinic.
April 6, Collum and Carney Clinic requested insurance
information and a copy of Plaintiff's X-ray. Docket No.
1-1 at 1. On April 8, the clinic scheduled an appointment for
Plaintiff on April 14 with Dr. Gregory Smolarz,
appointment, Dr. Smolarz observed Plaintiff had previous
X-rays showing a mildly displaced metacarpal head fracture.
Docket No. 23-2 at 20-22. The exam showed Plaintiff was very
tender of the end of the left fifth metacarpal, but had full
range of motion in his fingers. Id. at 20. There was
mild swelling but no effusion and his distal neurovascular
status was intact. Id. Dr. Smolarz recommended no
immobilization, but stated Plaintiff should buddy tape his
fingers for about two weeks. Id. at 22.
did not file a response to Defendant's motion for summary
The Report of ...