The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Gregory K. Warren, an inmate in the Northeast Correctional Complex ("N. E. C. X."), brings this pro se civil rights complaint for damages under 42 U.S.C. § 1983, claiming that his constitutional rights were violated when his colon cancer was misdiagnosed as hemorrhoids. The defendants are Quenton White, former Commissioner of the Tennessee Department of Correction ("T. D. O. C."); Linnea Nelson, D. O., a physician formerly at N. E. C. X. who treated the plaintiff; and Correctional Medical Services, Inc. ("C. M. S."), a corporation based in St. Louis, Missouri, which has a contract to provide health care for all Tennessee inmates.
Before the Court are two unopposed motions- a motion to dismiss filed by defendant White (Doc. 11) and a motion to dismiss or, alternatively, for summary judgment filed by defendants Nelson and C. M. S. (Doc. 14). In his motion, defendant White argues that the plaintiff has failed to state a claim against him and that, in any event, he is immune from suit. Defendants Nelson and C. M. S. likewise suggest that the plaintiff has failed to state a claim against them and, additionally, that he has failed to exhaust administrative remedies and that Dr. Nelson is entitled to qualified immunity. This motion is supported by a brief and defendant doctor's affidavit. (Docs. 15, 17). The motions are well-taken and, for reasons which appear below, will be GRANTED.
A motion to dismiss tests whether, as a matter of law, the plaintiff is entitled to relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). A motion to dismiss will be granted where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The complaint must be construed in the most favorable light to the plaintiff. Scheuer v. Rhodes, 416 U. S. 232 (1974). If matters outside the pleadings are presented to and not excluded, then a motion to dismiss for failure to state a claim must be treated as a motion for summary judgment. See Fed. R. Civ. P. 12(b). Here matters outside the pleadings have been offered in support of the motion filed by defendants Nelson and C. M. S., and thus, the Court will review their motion under the summary judgment standard. See id.
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court is obliged to view the facts and all inferences to be drawn from them in the light most favorable to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). However, once a motion for summary judgment is made and supported with affidavit testimony, the non-moving party cannot rest upon the mere allegations or denials in his pleadings, but must present specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). Indeed, that party "must present significant probative evidence in support of its complaint to defeat the motion for summary judgment." Expert Masonry, Inc. v. Boone County, Ky., 440 F.3d 336, 341 (6th Cir. 2006). If the non-moving party does not so respond, summary judgment, where appropriate, will be granted. Fed. R. Civ. P. 56(e).
The gravamen of the complaint is that the plaintiff was diagnosed by the N. E. C. X. prison physician as having hemorrhoids and was treated for that condition for some time, although he actually had colon cancer. More specifically, he contends that Dr. Linnea Nelson did not run readily-available tests which would have allowed her to make a correct diagnosis of colon cancer. A correct diagnosis, in turn, would have allowed proper treatment to commence earlier; would have checked the growth of the cancer; and would have improved the plaintiff's prognosis.
He asserts that the defendant doctor, by failing to run those tests and by negligently misdiagnosing him and treating him, exhibited deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. He further asserts that C.M.S. also violated the Eighth Amendment by failing to intervene to ensure that he was given the appropriate tests. Quenton White, according to the plaintiff, is responsible for the care of inmates and control of T. D. O. C. policy and failed to perform the duties of his position.
According to the complaint, the plaintiff visited the N. E. C. X. clinic in February of 2003, complaining of rectal bleeding. He was given a cream to treat hemorrhoids. After several weeks of using the cream, the bleeding subsided, only to return some five months later-accompanied by abdominal and rectal pain. He saw a nurse who supplied him with more hemorrhoid cream, but she did not give him any tests or pain medication. The bleeding and pain escalated. He returned to the clinic and was given more hemorrhoid cream and a referral to a doctor.
In late August of 2003, the plaintiff was seen by defendant doctor, who came to his cell and performed a rectal examination on the plaintiff and prescribed the same over-the-counter hemorrhoid cream he had been using. Over the next two weeks, the pain and bleeding increased, and the plaintiff was prescribed a stronger hemorrhoid cream and suppositories.
Finally, in March of 2004-one year and twelve sick-call requests after the plaintiff first reported rectal bleeding and other symptoms -- he saw a different doctor. This physician gave him a rectal exam and then referred him to the DeBerry Special Needs Facility ("S. N. F.") for further evaluation. At the S. N. F., the plaintiff received a diagnosis of latter-stage colon cancer, as well as a confirmation by his treating physician that Dr. Nelson's diagnosis had been wrong. Thereafter, the plaintiff had to undergo extensive surgery to remove the malignant tumor, the surrounding tissues and nerves, and the rectal sphincter muscle. As a result of the surgery, the plaintiff is now sterile and has a permanent colostomy and permanent urinary problems.
In her affidavit, defendant Nelson avers that she became affiliated with C.M.S. on September 22, 2003 and served as N. E. C. X. 's medical director until the end of January of 2004. Her first awareness of the plaintiff and his medical complaints occurred on November 24, 2003, through information relayed to her by a nurse. Dr. Nelson reviewed the plaintiff's medical records and wrote orders prescribing sitz baths with warm water; directing that he continue to use hemorrhoid cream and suppositories; and ...