                       IN THE COURT OF APPEALS OF TENNESSEE
                                    AT JACKSON



ANTONIO SWEATT,

       Plaintiff/Appellant,
                                       )
                                       )
                                       )
                                                                       FILED
                                             Lake County Circuit No. 97-7683
                                       )
                                                                        February 2, 1999
v.                                     )
                                       )     Appeal No. 02A01-9710-CV-00252
                                                                     Cecil Crowson, Jr.
BILLY COMPTON, ET AL.,                 )                               Appellate C ourt Clerk
                                       )
       Defendants/Appellees.           )




                 APPEAL FROM THE CIRCUIT COURT OF LAKE COUNTY
                           AT TIPTONVILLE, TENNESSEE


                       THE HONORABLE R. LEE MOORE, JR., JUDGE



For the Plaintiff/Appellant:           For the Defendant/Appellee
                                       Dr. Harold Butler:

Antonio Sweatt, Pro Se                 James M. Glasgow
Tiptonville, Tennessee                 Union City, Tennessee

For the Defendant/Appellee
State of Tennessee:

John Knox Walkup
Mark A. Hudson
Nashville, Tennessee

                                       AFFIRMED IN PART, REVERSED IN PART
                                       AND REMANDED



                                       HOLLY KIRBY LILLARD, J.



CONCURS:

W. FRANK CRAWFORD, P.J., W.S.

ALAN E. HIGHERS, J.
                                              OPINION

        This is a medical malpractice case brought by an inmate at a state correctional facility. The

plaintiff brought the lawsuit against various prison officials and the prison doctor alleging federal

constitutional violations as well as medical malpractice. The trial court granted the defendants’

motion for summary judgment. We reverse the trial court’s grant of summary judgment on the

plaintiff’s claims under the Eighth Amendment of the U.S. Constitution, and remand for further

discovery. We affirm the grant of summary judgment on the remainder of the claims.

        Plaintiff/Appellant Antonio Sweatt (“Sweatt”) is an inmate at the Lake County Regional

Correctional Facility (“prison”) in Tiptonville, Tennessee. During his incarceration, Sweatt suffered

from a number of medical maladies, including sinus problems, a breathing disorder, frequent nose

bleeding and severe headaches, as well as structural abnormalities in his nose. In his lawsuit, Sweatt

alleged that the Defendants, Warden Billy Compton, prison employees Steve Dotson, Ben

Lindamood, Edna Freeman and Donna Klutts, and the prison’s physician, Harold Butler, M.D.,

intentionally failed to provide him with appropriate medical care, treatment and correct medication,

and that the medication prescribed to him caused his nose to bleed and caused him great pain. He

asserted that surgery had been recommended for his condition, but had not been performed. Sweatt

complained through letters and grievances, and he alleged in his lawsuit that the Defendants’ acts

were a form of retaliation against him for the grievances he had filed.

        Defendant Butler filed a motion for summary judgment. Subsequently, the remaining

Defendants filed a motion for summary judgment.

        In support of his motion for summary judgment, Dr. Butler filed his own affidavit. Dr.

Butler stated in his affidavit:

                The affiant treated the plaintiff, who was an inmate in the Lake
                County Regional Correctional Facility commencing in March of
                1995. When the plaintiff was seen by the affiant, he treated him in
                the proper manner under all of the circumstances. In performing such
                medical diagnosis, care and treatment, the affiant states he exercised
                that degree of care and skill prevailing in this community by
                physicians in good standing considering the physical conditions and
                needs of the plaintiff, Antonio Sweatt. In addition, when it was
                apparent that the plaintiff required the services of a specialist, the
                affiant referred him to a specialist in Nashville who specialized in ear,
                nose and throat problems.




                                                   1
        Defendant Freeman also filed an affidavit in support of the Defendants’ motion for summary

judgment. In her affidavit, she stated that Sweatt refused sinus medication offered to him at the

prison clinic on March 2, March 6 and March 13, 1995. Freeman stated that, on March 16, 1995,

a physician at the prison clinic gave Sweatt a nasal inhaler and two other medications. Sweatt was

ultimately transferred to the Special Needs prison facility in Nashville on September 7, 1995. His

medication was changed nine times before his return to the Lake County facility on December 19,

1995.

        In response to the Defendants’ motions for summary judgment, Sweatt filed his own

affidavit. This affidavit stated his conclusory allegations that his medical needs were untreated but

failed to refute the factual assertions in Dr. Butler’s and Freeman’s affidavits. Two affidavits from

other inmates, R. Bradfield (a.k.a. Paul Farnsworth) and Sherron Myers, were also submitted, stating

that their medical needs were not adequately treated. Sweatt also submitted a petition signed by

thirty-seven inmates stating that they were denied medical treatment while incarcerated at the prison.

Sweatt failed to produce any expert testimony that his treatment was inappropriate.

        The trial court granted the Defendants’ motions for summary judgment. In its order, the trial

court reviewed Sweatt’s claims, the affidavits in support of the motions for summary judgment and

the record of pleadings and discovery. It noted that Dr. Butler had filed his own affidavit in support

of his motion for summary judgment, and that Sweatt had filed no countervailing expert affidavit.

Concluding that Sweatt failed to make out a prima facie case for violation of the appropriate standard

of medical care, the trial court granted Dr. Butler’s motion for summary judgment.

        The trial court then examined Sweatt’s claim of inadequate medical care in a 42 U.S.C. §

1983 action, in light of the remaining Defendants’ motion for summary judgment. The trial court

reviewed numerous pleadings filed by Sweatt and the Defendants’ response to Sweatt’s discovery

requests and Freeman’s affidavit. It then noted that a person claiming inadequate medical care under

§ 1983 must establish deliberate indifference to the plaintiff’s serious medical needs. The trial court

observed that Sweatt’s medical condition is a sinus condition and found this not to be a sufficiently

serious condition to warrant relief under § 1983. The trial court also found that Sweatt failed to

allege conduct by the Defendants “with deliberateness tantamount to an intent to punish the

plaintiff.” The trial court then granted the remaining Defendants’ motion for summary judgment.

Sweatt filed a motion to reconsider, which the trial court denied. Sweatt then filed a notice of

                                                  2
appeal.

          On appeal, Sweatt contends that the trial court erred in granting the Defendants’ motions for

summary judgment. He argues that the Defendants were deliberately indifferent to his medical needs

in violation of the Eighth Amendment of the U.S. Constitution, that the Defendants retaliated against

him in violation of the First Amendment of the U.S. Constitution, and that the trial court denied him

adequate discovery and that he was not permitted to obtain expert affidavits.

          A motion for summary judgment should be granted when the movant demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter

of law. See Tenn. R. Civ. P. 56.03. The party moving for summary judgment bears the burden of

demonstrating that no genuine issue of material fact exists. See Byrd v. Hall, 847 S.W.2d 208, 211

(Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view

of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that

party, and discard all countervailing evidence. See id. at 210-11. Summary judgment is only

appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only

one conclusion. See Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of

law are involved, there is no presumption of correctness regarding a trial court's grant of summary

judgment. See id. Therefore, our review of the trial court’s grant of summary judgment is de novo

on the record before this Court. See id.

          On appeal, Sweatt alleges that he was denied adequate discovery and was not permitted to

obtain expert testimony. Sweatt argues that the Defendants did not respond to his discovery

requests, and that the trial court refused to order the Defendants to comply with his requests. Sweatt

asserts that this prevented him from obtaining expert testimony with which to overcome Defendants’

motions for summary judgment and prevented him from obtaining other crucial information, such

as his medical records and information relating to the delay in his surgery. These assertions will be

evaluated in the context of Sweatt’s claims against Defendant Butler and the remaining employee

Defendants.

          Sweat contends that the trial court erred in granting Dr. Butler’s motion for summary

judgment as to the medical malpractice claims against him. In his affidavit, Dr. Butler stated that

he treated Sweatt with the degree of skill and care prevailing in the community. He noted that when

it became apparent that Sweatt needed a specialist for his condition, Dr. Butler referred him to one


                                                   3
in Nashville. Dr. Butler ceased treating Sweatt after he was referred to the specialist.

       Dr. Butler’s affidavit is sufficient to support his motion for summary judgment, even though

he is a party. See Smith v. Graves, 672 S.W.2d 787, 790 (Tenn. App. 1984). Once the moving party

has made and supported a motion for summary judgment by showing that there is no genuine issue

of material fact, the burden shifts to the non-movant to establish the existence of a genuine issue of

material fact. See Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). Rule 56.06 of the Tennessee

Rules of Civil Procedure states:

               When a motion for summary judgment is made and supported as
               provided in this rule, an adverse party may not rest upon the mere
               allegations or denials of the adverse party’s pleading, but his or her
               response, by affidavits or as otherwise provided in this rule, must set
               forth specific facts showing that there is a genuine issue for trial.

       In Bowman v. Henard, 547 S.W.2d 527, 531 (Tenn. 1977), the Tennessee Supreme Court

held that a counter-affidavit from an expert competent to testify must be presented in order to make

a genuine issue of material fact within the meaning of Rule 56.03 of the Tennessee Rules of Civil

Procedure. In this case, the only affidavits filed by the Plaintiff in opposition to Butler’s motion for

summary judgment were his own and those of two fellow inmates at the prison. The affidavits of

lay persons regarding whether the physician’s medical care was below the appropriate standard of

care are wholly insufficient to create a genuine issue of material fact. See id.

        Sweatt argues that the denial of his requests to compel discovery prevented him from

obtaining an expert’s affidavit to rebut Dr. Butler’s affidavit. However, the record indicates that Dr.

Butler responded to Sweatt’s first and second set of interrogatories and to Sweatt’s third request for

admissions. Butler’s responses were acknowledged by Sweatt in his motions to the trial court to

compel discovery. Nothing in the record supports Sweatt’s allegation that he was prevented from

obtaining an expert witness with which to rebut Dr. Butler’s affidavit. Since there is no genuine

issue of fact as to Dr. Butler’s medical care of Sweatt, we affirm the grant of the summary judgment

in favor of Dr. Butler.

        Sweatt also contends that the trial court erred in dismissing his claims against the remaining

Defendants, the prison employees. He first asserts that the employees were negligent in failing to

provide him timely and effective medical treatment. Tennessee Code Annotated § 9-8-307(h),

however, provides immunity for the employees for negligence occurring within the scope of their




                                                   4
employment. See Tenn. Code Ann. § 9-8-307(h) (Supp. 1998).1 Therefore, the trial court correctly

granted summary judgment in favor of the employee Defendants on Sweatt’s claims of negligence.

       Next, Sweatt argues that the employee Defendants were deliberately indifferent to his

medical needs and that this conduct violated his rights under the Eighth Amendment of the U.S.

Constitution. Tennessee Code Annotated § 9-8-307(h) does not grant immunity for allegedly

“deliberately indifferent” conduct because it would be considered willful or malicious, and thus

outside the scope of the Defendants’ employment. See Tenn. Code Ann. § 9-8-307(h) (Supp. 1998).

       In Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976), the

United States Supreme Court articulated the standard for determining whether a prisoner’s

constitutional right to medical care under the Eighth Amendment of the U.S. Constitution has been

violated. The Supreme Court stated:

                          We therefore conclude that deliberate indifference to serious
                 medical needs of prisoners constitutes the “unnecessary and wanton
                 infliction of pain,” proscribed by the Eighth Amendment. This is true
                 whether the indifference is manifested by prison doctors in their
                 response to the prisoner’s needs or by prison guards in intentionally
                 denying or delaying access to medical care or intentionally interfering
                 with the treatment once prescribed. Regardless of how evidenced,
                 deliberate indifference to a prisoner’s serious illness or injury states
                 a cause of action under § 1983.

Estelle, 429 U.S. at 104-05, 97 S. Ct. at 291 (citation omitted); see also Molton v. City of Cleveland,

839 F.2d 240, 243 (6th Cir. 1988) (deliberate indifference to prisoner’s serious medical needs

amounts to cruel and unusual punishment and violates Eighth Amendment).

       As noted by the Sixth Circuit in Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir. 1992), the

Estelle standard consists of both an objective component--the prisoner’s medical needs must be

sufficiently serious--and a subjective component--the defendants must act in a deliberately

indifferent manner to the prisoner’s serious medical needs. In Farmer v. Brennan, 511 U.S. 825,

834, 114 S. Ct. 1970, 1977, 128 L. Ed. 2d 811, 823 (1994), the U.S. Supreme Court stated:


       1
           This section reads:

                 State officers and employees are absolutely immune from liability for
                 acts or omissions or for acts or omissions within the scope of the
                 officer’s or employee’s office or employment, except for willful,
                 malicious, or criminal acts or omissions or for acts or omissions done
                 for personal gain. For purposes of this chapter, “state officer” or
                 “employee” has the meaning set forth in § 8-42-101(3).

Tenn. Code Ann. § 9-8-307(h) (Supp. 1998).

                                                    5
                       It is not, however, every injury suffered by one prisoner at the
               hands of another that translates into constitutional liability for prison
               officials responsible for the victim’s safety. Our cases have held that
               a prison official violates the Eighth Amendment only when two
               requirements are met. First, the deprivation alleged must be,
               objectively, “sufficiently serious,” a prison official’s act or omission
               must result in the denial of “the minimal civilized measure of life’s
               necessities.” For a claim (like the one here) based on a failure to
               prevent harm, the inmate must show that he is incarcerated under
               conditions posing a substantial risk of serious harm.
                       The second requirement follows from the principle that “only
               the unnecessary and wanton infliction of pain implicates the Eighth
               Amendment.” To violate the Cruel and Unusual Punishments Clause,
               a prison official must have a “sufficiently culpable state of mind.”

Farmer, 114 S.Ct. at 1977 (citations omitted).

       As the Farmer court noted, a plaintiff must prove that his medical needs are serious in order

to show deliberate indifference. A “serious medical need” has been defined as “one that has been

diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.” Laaman v. Helgemoe, 437 F. Supp.

269, 311 (D.N.H. 1977). The objective component of the Estelle standard is not malleable into a

rigid formula because it reflects the contemporary standards of decency within the society. See

Hudson v. McMillian, 503 U.S 1, 10, 112 S. Ct. 995, 1001, 117 L. Ed. 2d 156 (1992). Therefore,

in considering the seriousness of a medical need, courts must determine whether the defendant’s act

or omission resulted in a denial of “the minimal civilized measure of life’s necessities.” Rhodes v.

Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 (1981). Neither negligence

nor gross negligence will support a § 1983 claim:

               [I]n the medical context, an inadvertent failure to provide adequate
               medical care cannot be said to constitute “an unnecessary and wanton
               infliction of pain” or to be “repugnant to the conscience of mankind.”
               Thus, a complaint that a physician has been negligent in diagnosing
               or treating a medical condition does not state a valid claim of medical
               mistreatment under the Eighth Amendment. Medical malpractice
               does not become a constitutional violation merely because the victim
               is a prisoner. In order to state a cognizable claim, a prisoner must
               allege acts or omissions sufficiently harmful to evidence deliberate




                                                  6
                indifference to serious medical needs. It is only such indifference that
                can offend “evolving standards of decency” in violation of the Eighth
                Amendment.

Estelle, 429 U.S. at 105-06, 97 S. Ct. at 292.

        Sweatt alleges that he suffers from “chronic sinusitis allergic rhinitis with conjunctivitis

symptoms and structural abnormalities in the nose, which cause nose bleeding, migraine headaches

and breathing disorder.” He contends that he transferred to the Lake County correctional facility on

March 1, 1995 and was not permitted to see a physician, defendant Butler, until March 16, 1995,

after he complained that his rights were being violated. He complains that he was forced to pay for

medication such as nasal spray. He asserts that he was denied needed surgery for his condition

recommended by the specialist physician. He asserts that he was given treatment for his sinus

condition that caused his nose to bleed.

        We first consider Sweatt’s claims of inadequate medical treatment apart from the alleged

delay in the recommended surgery. On the undisputed facts before the trial court, Sweatt suffered

from a sinus condition which was not treated as quickly as Sweatt desired and was treated in a

manner that necessitated numerous changes in medication.

        In support of the Defendants’ motion for summary judgment, Defendants filed the affidavit

of Edna Freeman. Freeman’s affidavit stated that Sweatt refused sinus medication offered to him

at the prison clinic on March 2, March 6, and March 13, 1995, and that on March 16, 1995, a

physician at the clinic gave Sweatt a Becanase Nasal Inhaler as well as Aller-chlor and Nalfon

medications. Ultimately, Sweatt was transferred to the Special Needs Facility in Nashville on

September 7, 1995, where his medication was changed nine times before his return to the Lake

County facility on December 19, 1995. Dr. Butler’s affidavit discusses his medical treatment of

Sweatt prior to his referral to a specialist.

        In response, Sweatt filed his own affidavit. In his affidavit, he did not refute the factual

assertions in Freeman’s affidavit or Butler’s affidavit detailing his medical treatment. Rather,

Sweatt’s affidavit states only his conclusory allegations that his medical needs were untreated.

Sweatt also submitted the affidavits of two other inmates, R. Bradfield (a.k.a. Paul Farnsworth) and

Sherron Myers, stating that their medical needs were not adequately treated, as well as a petition




                                                   7
signed by thirty-seven other inmates stating that they were denied medical care at the correctional

facility. He submitted no expert testimony indicating that his treatment was inappropriate.

       Sweatt argues that the Defendants did not adequately respond to his discovery requests, and

that, consequently, granting the Defendants’ motion for summary judgment on these claims was in

error. However, Sweatt does not dispute the accuracy of the factual assertions in the Defendants’

supporting affidavits; for example, he does not dispute that he was seen by physicians on the dates

listed or that he was prescribed the medications listed. Rather, Sweatt asserts that this course of

treatment was unsatisfactory. Under these circumstances, the discovery sought by Sweatt would not

have altered the outcome of the motion for summary judgment on these claims. Apart from the issue

of the recommended surgery, Sweatt in essence contends that his course of treatment was not fast

enough, that the medications had unpleasant side effects and he was required to pay for some of

them. Sweatt’s disagreement with the treatment rendered will not itself support an Eighth

Amendment claim under 42 U.S.C. § 1983. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989);

Randall v. Wyrick, 642 F.2d 304, 308 (8th Cir. 1981). He failed to submit evidence sufficient to

create a genuine issue of fact as to whether this medical treatment amounted to a denial of “the

minimal civilized measure of life’s necessities,” or that it posed “a substantial risk of serious harm.”

Farmer, 114 S. Ct. at 1977. Consequently, apart from his claim arising out of the alleged delay in

the recommended surgery, the trial court did not err in granting the Defendants’ motion for summary

judgment as to Sweatt’s claim that prison officials were deliberately indifferent to a serious medical

condition.

        Sweatt also asserts an Eighth Amendment claim based on an alleged two-year delay in the

scheduling of the recommended surgery, arguing that the delay in surgery constitutes deliberate

indifference to his serious medical needs. We must first consider the first component of Sweatt’s

claim, whether Sweatt suffered from a sufficiently serious medical need. “Federal courts have

frequently found that medical needs of prisoners which require surgery constitute serious medical

needs and when combined with deliberate indifference shown by prison officials constitute an Eighth

Amendment violation.” Starbeck v. Linn County Jail, 871 F. Supp. 1129, 1141 (N.D. Iowa 1994);

see also Dace v. Solem, 858 F.2d 385, 387-88 (8th Cir. 1988) (finding that inmate should be allowed

discovery before determining whether a painful nasal condition for which surgery was ordered was

a serious medical need). Sweatt provided a copy of a January 1996 consultation report signed by


                                                   8
the specialist physician at the Special Needs Facility recommending that Sweatt have surgery on his

sinuses in 1996. Sweatt also provided a copy of a February 1996 letter from the Special Needs

Facility to Lake County Medical Services discussing the recommended surgery. In Dr. Butler’s

responses to Sweatt’s requests for admissions, Dr. Butler indicated that the specialist to whom he

referred Sweatt had recommended surgery. Sweatt did not receive any discovery on this issue;

consequently, we are unable to determine from the record whether his condition is a sufficiently

serious medical need under the Eighth Amendment. Sweatt “should be given a ‘chance to develop

his case to the point at which the courts can determine whether it has merit.’ ” Dace v. Solem, 858

F.2d 385, 388 (8th Cir. 1988) (quoting East v. Lemons, 768 F.2d 1000, 1001 (8th Cir. 1985)).

       The second component of Sweatt’s Eighth Amendment claim is subjective, whether the

Defendants were deliberately indifferent to the inmate’s serious medical needs. Sweatt alleges that

the specialist physician at the Special Needs Facility recommended over two years ago that he have

surgery and that, at the time of order of summary judgment, he had still not had the surgery.

Through discovery, Sweatt requested his medical records from Defendants and repeatedly asked

prison officials for information about the recommended surgery, the delay of that surgery, and the

scheduling of medical appointments.

       In Proffitt v. Prison Health Services, Inc., 1996 Tenn. App. LEXIS 440 (Tenn. App. July

31, 1996), the Tennessee Court of Appeals addressed an inmate’s claim similar to that presented by

Sweatt. Prior to being incarcerated, the inmate in Proffitt had received a recommendation to

surgically remove some screws in her femur. Evidence presented by the plaintiff showed that the

prison officials were aware of the needed surgery and that a specialist the plaintiff saw while in

prison also recommended that the plaintiff have the surgery. The plaintiff was eventually released

on parole six months later without having the surgery. The plaintiff alleged that Prison Health

Services, the company that contracted with the State of Tennessee to provide health care for inmates,

was deliberately indifferent to her medical needs. The trial court granted summary judgment in

favor of the health care provider. On appeal, the grant of summary judgment was reversed:

                       The lack of satisfactory and conclusive evidence explaining
               the long and facially unreasonable delay in providing surgery for
               Plaintiff also prevents a summary judgment in respect to the charge
               of deliberate indifference; for, under the evidence in this record, a




                                                 9
               jury could properly find that the long delay in scheduling surgery
               amounted to deliberate indifference to the prolonged pain of Plaintiff,
               for which Defendant might be liable . . . .

Proffitt, 1996 Tenn. App. LEXIS 440, at *10; see also Hathaway v. Coughlin, 841 F.2d 48, 50-51

(2d Cir. 1988) (holding that plaintiff’s affidavit alleging a delay of over two years in scheduling

surgery to replace broken pins in hip was enough to survive a motion for summary judgment because

the affidavit created a factual dispute). In this case, in the absence of a meaningful response to

Sweatt’s discovery requests pertaining to the recommended surgery, we are unable to determine

whether Sweatt’s medical condition is a “serious medical need” under the Eighth Amendment and,

if so, whether the employee Defendants were deliberately indifferent to his needs. Under these

circumstances, summary judgment on this issue was premature.

       Therefore, we must reverse in part the grant of summary judgment in order to permit

discovery on Sweatt’s Eighth Amendment claim based on the delay in the recommended surgery.

“A prisoner pursuing a civil lawsuit may conduct discovery, but the discovery is subject to

appropriate limitations imposed by the trial court. The scope of discovery is within the ‘sound

discretion of the trial court.’ ” Bradfield v. Dotson, 1988 Tenn. App. LEXIS 117, at *3 (Tenn. App.

Feb. 17, 1998). The trial court in this case, therefore, may, in its discretion, limit the scope of

discovery on remand to those issues pertinent to Sweatt’s Eighth Amendment claim regarding the

surgery, including but not limited to: whether the medical condition is sufficiently serious, the

nature of the recommended surgery, and the delay of the surgery. Of course, the trial court may

weigh Sweatt’s interests with those of the prison in its decisions on discovery.

       Sweatt also contends on appeal that the trial court erred in dismissing his claim for retaliation

under the First Amendment to the U. S. Constitution. Under the First Amendment, prison inmates

have the right to petition or to complain for the redress of grievances, and that right is violated when

prison officials retaliate against a prisoner who submits complaints. See Wolfel v. Bates, 707 F.2d

932, 933-34 (6th Cir. 1983). An act of retaliation taken against a prisoner who complains about a

grievance is actionable under 42 U.S.C. § 1983, even though the alleged retaliatory action, if taken

for another reason, would be permissible. See Buise v. Hudkins, 584 F.2d 223, 229 (7th Cir. 1978);

see also Newsom v. Norris, 888 F.2d 371, 376-77 (6th Cir. 1989).




                                                  10
        In order to establish a claim of retaliation, a prisoner must set forth probative evidence

supporting his claim of retaliation. This proof may be either by direct evidence or by indirect

evidence. Indirect evidence may include evidence that the alleged retaliatory acts would not have

taken place “but for” the alleged impermissible motive to retaliate or it may establish a chronology

of events from which retaliation may be inferred or it may show that the assertion of the

constitutional right was a substantial or motivating factor in the defendant’s alleged retaliatory

conduct. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 273, 287, 97 S. Ct. 568,

576, 50 L. Ed. 2d 471 (1977); Ponchik v. Bogan, 929 F.2d 419, 420 (8th Cir. 1991); McDonald v.

Hall, 610 F.2d 16, 18-19 (1st Cir. 1979).

        In this case, Sweatt claims that he was denied adequate, timely medical treatment because

he filed grievances and made complaints. Other than his conclusory allegations, Sweatt submits no

evidence, direct or indirect, indicating that any action of which he complains, including the delay

in surgery, was taken in retaliation. Sweatt argues that the allegedly unfavorable treatment began

after he complained, but the record indicates that Sweatt began complaining and filing grievances

almost immediately after transferring to the Lake County correctional facility. The record reflects

that Sweatt continued to submit numerous grievances. Sweatt has submitted no evidence linking

medical decisions to his grievances or otherwise indicating retaliation. Indeed, apart from the delay

in the recommended surgery, Sweatt submits no evidence indicating that he received unfavorable

medical treatment. The record shows that Sweatt was treated on many occasions at the prison

medical facility and was eventually transferred to the Special Needs Facility in Nashville for three

and one-half months of treatment. Since Sweatt submitted no evidence indicating that any medical

decision was motivated by retaliation, summary judgment was appropriate on Sweatt’s claim of

retaliation. The decision of the trial court is affirmed insofar as it relates to Sweatt’s claim of

retaliation.

        In sum, we affirm the grant of summary judgment in favor of Dr. Butler based on Sweatt’s

failure to provide expert affidavits or show that he was somehow prevented from doing so. We also

affirm the grant of summary judgment as to Sweatt’s negligence claims against the prison

employees, based on their immunity under Tennessee Code Annotated § 9-8-307(h). The trial

court’s grant of summary judgment on Sweatt’s retaliation claim is also affirmed. The trial court’s

grant of summary judgment in favor of Defendants on Sweatt’s Eighth Amendment claim is affirmed


                                                 11
except as to the claim that arises out of the delay in the recommended surgery. The cause is

remanded to permit discovery relating to that claim, within the discretion of the trial court.

       The decision of the trial court is affirmed in part, reversed in part, and remanded for further

proceedings consistent with this Opinion. Costs of appeal are assessed equally against the Appellant

and the Appellees, for which execution may issue if necessary.




                                              HOLLY KIRBY LILLARD, J.
CONCUR:



W. FRANK CRAWFORD, P.J., W.S.



ALAN E. HIGHERS, J.




                                                 12
