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Stephens v. Lynch

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

December 13, 2017

GARY STEPHENS, Plaintiff,
v.
REGINA LYNCH et al., Defendants.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ROBERT W. SCHROEDER III UNITED STATES DISTRICT JUDGE.

         The 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.

         I. Background

         Plaintiff 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.

         Plaintiff 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.

         II. Nurse Lynch's Motion for Summary Judgment

         Nurse 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.

         A 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.

         On 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, M.D.[1] Id.

         At the 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.

         Plaintiff did not file a response to Defendant's motion for summary judgment.

         III. The Report of ...


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