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Trevor Shope v. Vivi Jones

August 11, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Plaintiff, a state prisoner proceeding without counsel, seeks relief pursuant to 42 U.S.C. § 1983. This case is proceeding on the amended complaint, filed September 15, 2009. Plaintiff alleges that defendant Jones was deliberately indifferent to plaintiff's serious medical needs in connection with plaintiff's illness on June 19, 2009. (Dkt. No. 8.) Pending before the court is defendant Jones' motion for summary judgment. As explained more fully below, the court recommends that the motion for summary judgment be granted.

II. Plaintiff's Allegations

In the unverified amended complaint, plaintiff alleges:

1. On June 19, 2009, at approximately 8:30 p.m., plaintiff allegedly pushed the emergency button in his cell, and informed the Tower 1 officer that plaintiff is an H.I.V. and Hep-C inmate, and was feeling "deathly ill," and "on the verge of falling out." (Dkt. No. 8 at 1.) Plaintiff allegedly asked the Tower 1 officer to let medical staff know about the serious situation.

2. Plaintiff allegedly pushed the emergency button again at 8:50 p.m. to call "man down." (Id.) Plaintiff then allegedly passed out, and when he woke up, he was laying face down with blood on top of his right eye.*fn1 Plaintiff allegedly pushed the button again, and by that time, shift change had occurred.

3. Defendant Jones was the R.N. on duty and she allegedly took the call from the Tower 1 officer. (Id. at 2.) Plaintiff alleges defendant Jones "decided to put the call off to the next shift," even though defendant Jones is familiar with plaintiff's medical condition. (Id.)

4. Plaintiff alleges medical staff was summoned to plaintiff's cell at 11:15 p.m., and despite plaintiff's alleged 104.7 temperature, plaintiff was given two Tylenol and allegedly "left to suffer." (Id.) Through that night, plaintiff allegedly went in and out of consciousness. The next morning, plaintiff allegedly spoke with the floor officer, medical was called again, and plaintiff was admitted to the infirmary with a temperature of 103.6. (Id.)

5. Plaintiff alleges that due to the delay in medical treatment by defendant Jones, plaintiff still suffers from blurred vision, migraine headaches, and seizure-type convulsions that leave plaintiff disoriented and confused. (Id.)

In the grievance appended to the amended complaint, plaintiff stated: On or about 6-19-09 at and between 8:32 pm / 8:55 pm I pushed my cell intercom button and let the officer in the tower know that I was F--- up at that moment and that I was shaking & shivering, at that moment he started yelling don't call up here saying you're F---up. I told him at this time I was H.I.V. positive and yes, I needed medical attention. At 8:55 I again pushed my cell intercom button to let this officer know that the shakes were gone. Now my chest felt like it was going to explode and my eyes felt like they were going to pop out of my skull. I need a man down. When the officer got on the intercom he yelled I already called medical they'll be there and clicked off. At that moment I blacked out and hit the cell door head first. (Dkt. No. 8 at 4.) Plaintiff's grievance was summarized as follows:

Inmate states that on 06-19-09 at about 2023 he informed the tower 1 officer that he had an emergency. He again called the tower at 2055 asking for medical attention. Inmate states that it was not until 2315/2320 that he received any medical attention.

(Dkt. No. 8 at 5.) The response to plaintiff's grievance stated:

In reference to your grievance . . . [dated] 06/21/09 [regarding] the tower officer. The tower officer notified [medical] the first time you called them. They can not do anything more than that. It is up to medical to then [respond]. As you were pressing the . . . call button and talking with the tower, your situation was not life threatening. Medical did respond as soon as possible.

(Dkt. No. 8 at 7.)

On November 15, 2010, plaintiff filed a motion in which he recounted the events of June 19, 2009, as follows:

I informed officer James on 6-19-09 at 8:35 pm after I had pushed the call button in my cell that I was sick. At the same time I also told him I was H.I.V. positive and needed medical attention. At 8:55 pm I pushed the call button again to call a man down. Officer James came over the call box and stated I already called the nurse (he had an attitude and was yelling this at me). I then once again told him man down. That's when I blacked out hitting my head on the door ...

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