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Tankesly v. Corrections Corp. of America

United States District Court, M.D. Tennessee, Nashville Division

July 18, 2017

CALVIN TANKESLY, JR., Plaintiff,
v.
CORRECTIONS CORPORATION OF AMERICA, Defendants

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge

         At issue are plaintiff Calvin Tankesly, Jr.'s claims under 42 U.S.C. § 1983 and state law against defendants Dr. Robert Coble, Nurse Karen Orton, and Nurse Practitioner Susan Martin, based on their allegedly deliberate indifference to the plaintiffs serious medical needs. Now before the court are the plaintiffs Objections (Doc. No. 297) to the magistrate judge's Report and Recommendation ("R&R") (Doc. No. 284), recommending that the defendants' Motions for Summary Judgment (Doc. Nos. 218 (filed jointly by Coble and Orton), 223 (filed by Martin)) be granted, that all of the plaintiffs claims under federal law be dismissed with prejudice and that his state law claims be dismissed without prejudice. The defendants have filed Responses to the Objections (Doc. Nos. 304, 305), and the plaintiff filed Replies to both (Doc. Nos. 306, 307).

         When a party files objections to a magistrate judge's report and recommendation regarding a dispositive motion, the district court must review de novo any portion of the report and recommendation to which objections are properly lodged. Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1)(B) & (C). In conducting its review, the district court "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

         The court has conducted a de novo review of the defendants' motions and the entire evidentiary record in light of the plaintiffs Objections and finds that the § 1983 claims against Martin and Coble should be dismissed on the basis that the facts viewed in the light most favorable to the plaintiff fail to establish that either of these defendants acted with deliberate indifference to his serious medical needs. The undisputed facts also establish that Orton did not act with deliberate indifference to the plaintiffs needs during the period of time leading up to his cancer diagnosis. However, disputed issues of fact preclude summary judgment in favor of Orton on the § 1983 claim based on her treatment of the plaintiff during his recovery from cancer. Finally, the court rejects the magistrate judge's recommendation that any state law claims be dismissed without prejudice. Instead, the court will grant summary judgment in favor of the defendants as to those claims and dismiss them with prejudice.

         I. PROCEDURAL BACKGROUND

         Tankesly was a state prisoner confined at the South Central Correctional Facility ("SCCF") in Clifton, Tennessee during the time frame relevant to this action. SCCF was operated at the time by Corrections Corporation of America ("CCA"). The plaintiff is currently confined at the Northwest Correctional Complex.

         Proceeding pro se and in forma pauperis, Tankesly filed the Verified Complaint in this action on April 1, 2014, naming eleven defendants, including CCA and various CCA executives and health care workers employed at SCCF. The Complaint asserts claims under 42 U.S.C § 1983; the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12191 et seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a); §§ 504 and 704(a) of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq.; 42 U.S.C. §§ 1981(a), and "1981 2(b)(3)"; it also asserts that the defendants violated the plaintiffs rights under the Tennessee constitution and state law. In December 2015, all claims against all defendants were dismissed, except for the § 1983 and state law claims against defendants Coble, Orton, and Martin. (Doc. No. 192.)

         Defendants Coble and Orton filed their joint Motion for Summary Judgment on May 26, 2016; defendant Martin filed a separate Motion for Summary Judgment on June 1, 2016. In connection with their motions, the defendants filed a complete copy of the plaintiffs prison medical record along with numerous other exhibits, supporting Memoranda of Law, and Statements of Undisputed Facts. The defendant responded by filing his "Objections" to the defendants' motions, Objections to their Statements of Undisputed Facts, and his own exhibits. The R&R recommending entry of judgment in the defendants' favor was filed on March 2, 2017. The court granted the plaintiffs request for an extension of the deadline for filing his Objections to the R&R. The Objections have now been filed and fully briefed.

         II. RELEVANT FACTS

         A. Facts Related to Claims Against Nurse Practitioner Susan Martin

         According to Nurse Practitioner Susan Martin, while Tankesly was incarcerated at SCCF, he was designated as a chronic-care inmate because he suffered from a number of health problems that required regular medical evaluation and treatment. (Martin Decl. ¶ 3, Doc. No. 226.) On July 16, 2012, Martin evaluated Tankesly in the chronic-care clinic and documented, among other things, an enlarged lymph node on his neck, which she described as pea-sized. (Martin Decl. ¶ 4.)

         Martin knew, based on her medical training, that enlarged lymph nodes are most commonly caused by infections, particularly viral infections such as a common cold. (Id.) Martin observed that Tankesly was "well appearing" and that his vital signs were within normal limits, but she ordered a complete-blood-count ("CBC") test to rule out infection. She states that she instructed Tankesly to return in one month for reevaluation and ordered repeat blood work in five months (Martin Decl. ¶ 5; see also Med. Rec. 8, 97, 270.[1])

         Martin received the results from Tankesly's CBC panel on July 25, 2012, and the results were within normal limits. At this point, according to Martin, she did not believe or have any reason to believe that Tankesly was suffering from any serious undiagnosed illness. (Martin Decl. ¶ 6.)

         Tankesly returned for follow-up on August 16, 2012. At that time, Martin examined his pharynx with an otoscope and also performed a gloved-hand examination of his throat. She determined that he still had a palpable pea-sized lymph node on his neck. (Martin Decl. ¶ 7; see also Med. Rec. 8.) She avers that it was her belief that the best course of action at that time was to monitor Tankesly. She alleges that she informed him of the results of the CBC and instructed him to return as needed. (Martin Decl. ¶ 8.) At that time, she claims, she had no reason to be concerned. (Martin Decl. ¶ 9.)

         Martin states that Tankesly had blood drawn on November 21, 2012 for another CBC panel, as Martin had ordered during his July 16, 2012 visit. This CBC panel was normal with two minor exceptions that did not suggest cancer. (Martin Decl. ¶ 11.) Martin examined these results on November 28, 2012 and determined that no medical intervention was necessary. (Martin Decl. ¶ 11.) Martin did not actually see Tankesly at that time.

         Tankesly underwent a chest x-ray on December 12, 2012. (Med. Rec. 9.) Martin was not involved in the decision to send him for an x-ray. The documentation associated with the x-ray indicates that Tankesly was experiencing a questionable cough and tired easily. (Martin Decl. ¶ 12; Med. Rec. 9.) The chest x-ray was related to a tuberculosis diagnosis in 1997 and was ordered for precautionary reasons; it was not related to Tankesly's complaint about his lymph node. (Martin Decl. ¶ 12; Med. Rec. 9-10, 465.)

         According to Martin, she next saw Tankesly on January 8, 2013 for a routine six-month chronic-care evaluation. She maintains that, between August 16, 2012 and January 8, 2013, Tankesly did not submit any written complaints regarding a swelling in his neck and that she did not hear him make any verbal complaints regarding his neck. (Martin Decl. ¶ 10; see also Med. Rec. 271, 10.) At the January 8 appointment, Martin reviewed the chest x-ray results and determined that they were normal. (Martin Decl. ¶ 12; Med. Rec. 10.) She prescribed numerous medications, including Prilosec, Pravastatin, Neurontin, Robaxin, and Clotrimazole, among others. (Med. Rec. 98.) Martin's handwritten notes in the plaintiffs Medical Record do not document a complaint related to the lymph node, and Martin alleges that Tankesly did not complain to her about the swollen lymph node at that appointment. (Martin Decl. ¶ 13.)

         Tankesly did not present to Martin again until April 30, 2013. Between January 8 and April 30, 2013, Tankesly had seen other medical practitioners with complaints regarding the swollen lymph node and other symptoms, as discussed below, but he had not seen Martin. (See Med. Rec. 10.) On April 30, 2013, Tankesly first saw Nurse Karen Orton complaining of a knot on the side of his neck, swelling in his cheek and jaw, and difficulty swallowing. He also informed Orton that the knot had increased in size over the past few weeks. (Med. Rec. 11.) Orton referred him to Martin, who saw him the same day. (Martin Decl. ¶ 16; Med. Rec. 11.)

         When she saw him on April 30, 2013, Martin documented Tankesly's complaints of difficulty swallowing, headache, knot on the right side of his neck, and pain in his ear. Her physical examination of Tankesly revealed a mass on his neck of two to three centimeters. Tankesly reported the mass had been that size for approximately a year. (Med. Rec. 11.) Martin noted that "prior documentation does not reveal this." (Med. Rec. 11.) She states in her Declaration that her medical notes of July 2012 establish that his recollection in that regard was inaccurate, since her evaluations during the summer of 2012 indicated that the swelling was the size of a pea. (Martin Decl. ¶ 16.) Tankesly requested to see a doctor, and Martin referred Tankesly to Dr. Robert Coble, to be seen "ASAP per EVI [inmate] request." (Med. Rec. 11.)

         Martin did not oversee Tankesly's treatment after that time, but she did see him or help with his needs a few more times. She states that, on June 20, 2013, she documented, likely on behalf of Dr. Coble, that Tankesly had tonsillar cancer, needed a radiographic scan and a dentist appointment, and was to prepare for radiation. (Martin Decl. ¶ 18.) She saw Tankesly again on July 1, 2013 for his routine, six-month chronic-care evaluation. It appears that she did not actually see or treat Tankesly again after that date. Shortly thereafter, Martin left the employment of CCA and did not treat, evaluate, or interact with Tankesly again. (Martin Decl. ¶ 19.)

         In his Objection to Martin's Statement of Undisputed Facts (Doc. No. 271), Tankesly purports to dispute nearly every one of Martin's statements of fact, referring generally to his response in opposition to Martin's Motion for Summary Judgment and to his Exhibits A, B, and F, which consist of his own Sworn Affidavit, the sworn statements of several witnesses, over 80 pages of letters written to various persons and entities dating from November 2010 through January 2015, and photographs downloaded from the internet showing the mouth sores of people undergoing chemotherapy/radiation therapy for mouth and throat cancer. (Doc. Nos. 258-1, 258-2, 259-3.)

         In objecting to Martin's statement that she first became aware of the swollen lymph node on July 16, 2012, Tankesly points out that Martin purportedly documented the plaintiff as having cancer as early as December 27, 2011. (Doc. No. 271, at 2 (citing Med. Rec. 4-5).)[2] He asserts that this note in his Medical Record is dispositive of Martin's knowledge that he had cancer, but that assertion is contradicted by his claim that he did not begin complaining of swelling in his neck until January 2012. (Doc. No. 271 ¶ 3.) Moreover, he concedes under oath that he did not begin complaining about the swelling until around July 2012. (See Pl. Aff ¶ 1, Doc. No. 258-1, at 10 ("As early as July 16, 2012 maybe a few weeks earlier I started asking about a Suspicious Mass. [lump] in my neck at sick call and was seen by Susan Martin, Nurse Practitioner.").)

         Tankesly generally disputes that Martin's decision to send him for a CBC panel constituted standard procedure or was medically appropriate. He does not dispute that she wrote "RTC" on the treatment note (for "return to clinic"), but states that this notation was never shown to him and that she never actually told him to return to the clinic as needed. (Doc. No. 271 ¶ 2.) He also asserts that, if Martin's allegations were true, he "would not have proceeded with the letters, declarations and affidavits demanding help as early as January 2012." (Doc. No. 271 ¶ 2.) He claims that, if "Martin had acted in her role as a responsible Nurse Practitioner and order[ed] the proper test, she would have known immediately there was a reason to believe that Plaintiff Calvin Tankesly was suffering from an illness . . . that could have Been Prevented." (Doc. No. 271 ¶ 6.)

         In his Sworn Affidavit, Tankesly states that Martin falsely documented the lump as the size of a pea in August 2012 when it "was actually the size of a walnut." ((Pl. Aff ¶ 2, Doc. No. 258-1.) He further claims: "Without access to all the dates of my clinic visits I repeatedly asked about the Suspicious Mass. that continued to grow, between my medical visits." (Pl. Aff. ¶ 3.) Although he asserts, in his "Objections" to Martin's Statement of Facts, that "Martin heard also of Plaintiff s concern from other nurses that Plaintiff complained to at the medication window" (Doc. No. 271 ¶ 3), he does not point to actual evidence in the record to support that statement. In his Affidavit, he further avers that he asked about the "Suspicious Mass" at his chronic care visit with Martin in January 2013, but Martin told him not to worry, that it was "nothing to be concerned about." (Pl. Aff. ¶ 4.) He also alleges that he finally insisted that he see a doctor in May 2013, at which time Martin relented and referred him to Dr. Coble. (Pl. Aff. ¶ 5.) He saw Dr. Coble for the first time on May 3, 2013. (Id.)

         Tankesly also filed with the court copies of letters to various individuals regarding his health care complaints. The earliest letter in which he documents complaints related to his swollen lymph node is dated November 3, 2012. This letter, addressed to Wendy Ashe, Health Administrator of SCCF, states that Tankesly had a swollen gland in his neck and that he had asked Nurse Practitioner Susan Martin about it "for nearly four months, " but she continued to dismiss his concerns as insignificant without providing appropriate testing or access to a doctor. (Doc. No. 258-2, at 7.) He asserted that, as a result, he was being denied medical care as guaranteed by the Tennessee and United States constitutions. The record contains additional letters to Ashe and others, including Donna White, TDOC Health Director, CCA CEO Damon Hiniger [sic], [3] and Lester Lewis, M.D., dating from November 2012 and continuing through March 2013. In these letters, Tankesly continued to complain that Susan Martin was refusing to allow him access to a medical doctor or to refer him for further testing of the swelling on his neck. (Doc. No. 258-2, at 8-11, 13-17.)

         B. Facts Related to Claims Against Nurse Karen Orton and Dr. Robert Coble

         The facts pertaining to Orton and Coble's joint Motion are set forth in their Statement of Undisputed Facts. (Doc. No. 222.) The plaintiff filed "Objections" to the defendants' Statement, objecting to nearly every fact asserted therein on the basis that they are "misplaced, " that they pertain to treatment by outside providers who are not parties to this lawsuit, and that they are generally not relevant to the plaintiffs claims. (See generally Doc. No. 259.) In support of his Objections, Tankesly refers broadly to his Exhibits A and B (Doc. Nos. 258-1, 258-2), which include the plaintiffs Sworn Affidavit and the plaintiffs letters to various CCA and TDOC authorities about his complaints.

         There is no dispute that, after seeing Martin for his chronic care visit on January 8, 2013, the plaintiff did not return to sick call until April 9, 2013. At that visit, he complained again about the swollen lymph node on the right side of his neck and reported that he was coughing up blood four to five times a month, that swallowing was difficult, that the lymph node was tender when touched, and that the swollen lymph node had "been there a year." (Med. Rec. 10.) The chart entry for that day states "refer to MD for lymph node." (Med. Rec. 10.) The signature in the medical chart indicates that the plaintiff saw nurse Treasa Petty at that time, not Martin or Orton. (Id.)

         The plaintiff does not dispute the defendants' assertion that he did not return to sick call between January 8 and April 9, 2013, but he insists that he "registered countless complaints daily when signing for his chronic care Medications at the Medication Window for no less than ten months." (Doc. No. 259 ¶ 5, Pl's Resp. to Coble and Orton's Statement of Undisp. Facts.). The only evidence in the record to support this assertion, as indicated above, is the plaintiffs allegation in his Sworn Affidavit that, "[w]ithout access to all the dates of my clinic visits I repeated asked about the Suspicious Mass. that continued to grow, between my medical visits." (Pl. Aff ¶3.)

         The chart includes an entry from April 22, 2013 that is completely illegible except for the words "will reschedule." (Med. Rec. 10.) According Dr. Coble, Tankesly was scheduled to see him on that date for his complaints about the swollen lymph node. (Coble Decl. ¶ 7, Doc. No. 219-1.) Coble reviewed Tankesly's medical chart, requested more information from nurses, and noted that the visit should be rescheduled due to the facility's being on lockdown. (Coble Decl. ¶ 7.)

         On April 24, 2013, the plaintiff presented again at the clinic and again saw Nurse Petty. He continued to complain of pain in his right ear, neck, and jaw and difficulty swallowing. Petty noted that the swelling to the right side of his neck was visible and that the plaintiff would be referred to the dentist. (Med. Rec. 10.)

         The plaintiff returned to the clinic on April 30, 2013. On that date he was seen by defendant Karen Orton. (Med. Rec. 11.) Orton documented a knot on the right side of the plaintiffs neck with swelling in the cheek and jaw area. According to Orton's note, the plaintiff reported that the knot had "gotten bigger the past few weeks" and that he continued to have difficulty swallowing. (Med. Rec. 11.) Orton referred him immediately to the nurse practitioner. As noted above, Susan Martin also saw him the same day and referred him to Dr. Coble to be seen "ASAP." (Med. Rec. 11.)

         Coble saw the plaintiff three days later, on May 3, 2013. Coble noted that the plaintiff reported the development of a hard, two-centimeter nodule over the course of "a year or so, " now associated with dysphagia and a twenty-pound weight loss. He ordered a referral to an Ear, Nose and Throat specialist ("ENT") and a CT scan. He also noted that he was "anticipating onco [oncology] referral." (Coble Decl. ¶ 8; Med. Rec. 12, 99.)

         Consistent with Coble's order, Tankesly was taken to Wayne County Medical Center on May 7, 2013 for a CT scan. (Coble Decl. ¶ 10; Med. Rec. 12, 99, 290.) He was evaluated by Dr. Stephen Parey, an ENT with Middle Tennessee ENT Specialists, on May 15, 2013. (Coble Decl. ¶ 8; Med. Rec. 12, 99, 291-94.) Dr. Parey performed a biopsy of the mass and diagnosed the plaintiff as having a malignant neoplasm of the right tonsil and malignant neoplasm metastasis to the cervical lymph nodes—in other words, metastatic tonsillar cancer. He ordered a referral to an oncologist. (Med. Rec. 294.) Dr. Coble informed Tankesly that he had cancer on May 22, 2013. (Pl. Aff ¶ 5; Med. Rec. 13.)

         Based on Parey's referral, Tankesly was evaluated by an oncologist, Dr. Mark Messenger, on May 30, 2013. (Coble Decl. ¶ 12; Med. Rec. 99, 281-82.) Messenger determined that treatment required a course of combined chemotherapy and radiation and referred the plaintiff for radiation. Messenger's letter to Coble stated: "We will see him back in the next week or so. I will talk to Radiation in the meantime and hopefully get him started in relatively short manner for his chemotherapy and radiation." (Med. Rec. 282.)

         On June 5, 2013, the plaintiff presented at the prison clinic requesting to see Coble to discuss his diagnosis and his increased pain level. Orton noted that she was referring the plaintiff to Dr. Coble. (Med. Rec. 13.) He returned the next day to review his medical records. "R. Littrell" noted that Tankesly was "concerned with the possibility of having cancer." (Med. Rec. 13.)

         Tankesly was transported to Maury Regional Medical Center Cancer Center on June 17, 2013 to see saw Dr. Joel Kochanski, a radiation oncologist. (Coble Decl. 13; Med. Rec. 100, 300-03, 322.) Kochanski, like Messenger, recommended a combined course of chemotherapy and radiation. He noted that Tankesly reported a pain rating of 6 out of 10, but he did not recommend pain intervention. (Med. Rec. 303.) He noted that the plaintiff needed a "treatment planning" PET/CT scan and dental evaluation before radiation therapy could begin. (Coble Decl. ¶ 15; Med. Rec. 303.) He anticipated a start date within "two-three weeks." (Med. Rec. 303.)

         Following the dental evaluation and PET scan, Tankesly saw Messenger again, on Coble's orders, on July 17, 2013. (Coble Decl. ¶ 18; Med. Rec. 16, 102, 308.) Messenger noted that Tankesly was to follow up with him on August 5, 2013 to start chemotherapy and that he would need to continue seeing Messenger "each Monday starting 8/5/13 for at least the next 8 wks." (Med. Rec. 308.)

         Between August 5, 2013 and September 26, 2013, Tankesly was transported to outside medical providers numerous times for radiation and chemotherapy treatments. He finished his last chemotherapy and radiation treatments on September 26, 2013. (Coble Decl. ¶ 19; Med. Rec. 16-32, 106-13, 315-36, 397-98.)

         During this time period, Tankesly refused his radiation and chemotherapy treatment at least once. (Med. Rec. 21, 406.) The defendants allege that Tankesly also refused his Ensure or Boost nutritional supplemental drinks on "multiple occasions." (Coble Decl. ¶ 21; see also Med. Rec. 19, 21, 404, 405, 22, 407, 408 (indicating he refused Ensure or Boost seven times from Aug. 24-31, 2013); 25, 30, 409, 410 (skipped four supplements from Sept. 14-17, 2013 (9/14/13); 413-16 (skipped four supplements between Oct. 25, 2013 and Jan. 11, 2014). The plaintiff insists that he only refused the Boost and Ensure in August and September 2013 because he was in severe pain, unable to swallow, and vomiting up his medications. (See Pl. Aff ¶¶ 6, 9, 10.)

         This statement is substantiated by the Medical Record, which shows that his chemotherapy doctor ordered placement of a feeding tube ("PEG tube") on August 28, 2013, because the plaintiff was unable to talk or swallow. (Pl. Aff ¶ 22.) Coble authorized the placement of the PEG tube on September 4, 2013, and the tube was surgically inserted on September 16, 2013.[4] (Coble Decl. ¶ 23; Med. Rec. 28-29, 109, 110.) Tankesly complains that Wendy Ashe entered an order that the PEG tube should not be used and that, in fact, it was never used after it was inserted. (Pl. Aff. ¶ 22.) He also alleges that, by that time the tube was placed, he was able to swallow again (Pl. Aff. ¶¶ 22, 33)[5], suggesting that there was no need for it to be used.[6]

         Tankesly states that he refused the cancer therapies because he was in pain and frustrated that Coble would not see him to evaluate the sores in his mouth and throat or order sufficient pain medication. Specifically, the plaintiff complains that his radiation oncologist prescribed time-released morphine, but Coble would not authorize it. (Pl. Aff. ¶¶ 7-16.) Tankesly alleges that, even at a meeting arranged with Wendy Ashe, other officials, the plaintiff, and Coble on August 26, 2013, Coble refused to speak directly with the plaintiff or acknowledge his condition or pain level. The plaintiff complained at that meeting that he was frustrated that no one was taking his complaints seriously and that he had lost a significant amount of weight as a result of having not eaten anything for five days. (Pl. Aff. ¶ 17.) Coble stated only that he would not prescribe pain medication other than Lortab. (Pl. Aff. ¶ 18.) The plaintiff alleges that he told his radiation oncologist on August 27, 2013 that he wanted to discontinue treatment, not because he wanted to die, but because he could not handle the pain without adequate medication. The doctor talked him into continuing treatment by telling him the pain would continue to get worse even without treatment and that his tumor would return if he did not finish his course of treatment. (Pl. Aff. ¶¶ 19-20.) The plaintiff concedes that Coble increased his Lortab 7.5 to three times a day on August 30, 2013. (Pl. Aff. ¶ 27.)

         The feeding tube was removed on January 3, 2014. Coble asserts that the tube was removed because Tankesly had begun to regain weight, so the tube was no longer necessary. (Coble Decl. ¶ 23; Med. Rec. 35-36.) The plaintiff denies that he had actually gained significant weight. The plaintiff states that he weighed 239 pounds in January 2013. Plaintiffs Exhibit D, titled "Weight Loss/Gain Record, " is sworn under penalty of perjury. It reflects that the plaintiff had lost 25 pounds by July 2013, before beginning chemotherapy and radiation, and weighed 174 by the time his treatments ended on September 23, 2013. ((Pl's Ex. E, Doc. No. 258-4, at 2.) From the end of September through the end of December 2013, his weight fluctuated around 172 pounds. He weighed 168 on December 27, 2013, down from 173 at the beginning of December. (Id. at 3.) In mid-December, it increased to 180 or close thereto for about a week, and then steadily dropped when his Ensure was reduced and then discontinued. (Id.) Regardless, the plaintiff does not allege that there was ever a point that he was unable to swallow at all and therefore needed the PEG tube after it was inserted. His complaint is that Coble refused to provide effective pain control and continuously tinkered with the amount of Ensure he was allowed to receive, without actually monitoring the plaintiffs weight or overall condition.

         The plaintiff submitted as an exhibit his Sick Call Requests dating from June 4, 2013 through November 3, 2013 (Pl's Ex. C, Doc. No. 258-3, at 1-9.) Many of these document complaints about pain relief and nutritional supplementation. His request dated August 23, 2013 notes that this is his "FIFTH REQUEST" to see the doctor, implying that the other four had been denied or ignored. (Doc. No. 258-3, at 4.) The record does not include any sick call requests predating his cancer diagnosis demanding to see the doctor relating to the swelling in his neck.

         By February 2014, Tankesly's cancer had resolved. (Coble Decl. ¶ 24.) Coble ordered a follow-up CT scan in October 2014, which indicated that the plaintiff remained cancer-free at that time. (Coble Decl. ¶ 25.) Another follow-up examination with an ENT on March 3, 2015 revealed no evidence of cancer. (Coble Decl. ¶ 26.) The plaintiffs medical record reflects that he continued to complain about difficulty swallowing, eating, and gaining weight throughout that time frame. (See, e.g., Med. Rec. 40-42 (complaining of sores in mouth and inability to eat in March and April, 2014); Med. Rec. 54 (requesting that order for Ensure/Boost be increased, stating he was still not able to gain weight), Med. Rec. 59 (on transfer to NWCX, complaining of continued problem with lack of saliva and difficulty swallowing).) However, the record also shows that he weighed 189 on April 24, 2014 (Med. Rec. 43) and 182 in September and November 2014 (Med. Rec. 50). He weighed 180 when he was transferred to Northwest Correctional Complex ("NWCX") on March 18, 2015. (Med. Rec. 59.)

         Dr. Coble asserts generally that, from the time he first saw the plaintiff for the swelling in his neck on May 3, 2013 through the date he was transferred to NWCX almost two years later, he entered, approved, or reviewed over sixty orders relating to the plaintiffs cancer treatment. These include orders referring him to outside providers; orders for CT and PET scans; transport orders; orders for pain medication, specifically Lortab; orders for Phenergan, Miracle Mouthwash, Boost and Ensure; and orders for the feeding tube placement and removal. (Coble Decl. ¶¶ 29, 30.) Coble alleges that he also "monitored and treated" the plaintiff throughout the process of his cancer treatment, by "reviewing and approving his medical file, examining [him], and counseling [him]." (Coble Decl. ¶ 31.) According to Coble, he never refused or denied Tankesly medical care or treatment. (Coble Decl. ¶ 33.) He attests that he acted in good faith as a reasonably prudent medical professional in all his interactions with the plaintiff and that his treatment of Tankesly at all times met or exceeded the standard of medical care in a corrections setting. (Coble Decl. ¶ 31.)

         Tankesly specifically denies that Coble ever "counseled" him or monitored him and maintains that Coble only rarely examined him. ((Pl. Aff ¶¶ 8, 9, 18; Reply in Supp. of Objs. to R&R, Doc. No. 306, at 2.) He insists that Coble was aware of the sores and blisters on the plaintiffs tongue and throat but refused to order adequate pain relief and nutritional supplements. (Doc. No. 306, at 2 (citing Pl's Ex. C, Doc. No. 258-3, showing sick call requests that Coble purportedly ignored).) He claims that Coble tinkered with the amount of Ensure he was authorized to receive, but the continuous changes did not correlate with substantial weight gain by the plaintiff. (Pl. Aff. ¶¶ 52, 72; Weight Log, Pl's Ex. D, Doc. No. 258-4, at 2-3.)

         Defendant Orton also treated Tankesly after referring him to Martin on April 30, 2013. She referred him to Coble in connection with the plaintiffs complaints about pain on June 5, 2013, as a result of which Coble ordered Lortab on June 10, 2013. (Orton Decl. ¶ 7, Doc. No. 219-2; Med. Rec. 13, 100.) She referred him for pain again on July 18, 2013, and Coble again ordered Lortab. (Orton Decl. ¶ 8; Med. Rec. 16, 104 ("Increase Lortab to 7.5 BID x 180 days").) Orton assisted in preparing the plaintiffs medical packets in connection with his outside appointments. (Orton Decl. ¶ 9.) She also provided him with prescribed medication, dispensed Ensure and Boost, and performed PEG tube flushes. (Orton Decl. ¶¶ 5, 10.) According to Orton, she never refused or denied Tankesly medical care or treatment. (Orton Decl. ¶ 11.)

         Like Coble, Orton attests that she acted in good faith as a reasonably prudent medical professional in all her interactions with the plaintiff and that her treatment of him at all times met or exceeded the standard ...


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