Golden v. Potts et al

Filing 72

RECOMMENDED DISPOSITION recommending that 59 Defendants' Motion for Summary Judgment be granted. Objections to R&R due no later than 14 days from the date the Recommended Disposition is received. Signed by Magistrate Judge Beth Deere on 2/2/10. (hph)

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS PINE BLUFF DIVISION L Y N D A L L ANTHONY GOLDEN A D C # 110206 V. S U S A N POTTS, et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: T h e following Recommended Disposition has been sent to United States District C o u rt Judge James M. Moody. Any party may serve and file written objections to this re c o m m e n d a tio n . Objections should be specific and should include the factual or legal b a s is for the objection. If the objection is to a factual finding, specifically identify that f in d in g and the evidence that supports your objection. An original and one copy of your o b je c tio n s must be received in the office of the United States District Court Clerk no later th a n fourteen (14) days from the date you receive the Recommended Disposition. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. M a il your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 CASE NO.: 5:09CV00116 JMM/BD DEFENDANTS P L A IN T IF F

II.

B ackground: P la in tif f , an Arkansas Department of Correction ("ADC") inmate previously

d e ta in e d at the Drew County Detention Facility ("DCDF"), filed this action pro se under 4 2 U.S.C. § 1983. In his Complaint, Plaintiff alleges that while detained at the DCDF, D e f e n d a n ts acted with deliberate indifference to his medical needs. Now pending is Defendants' Motion for Summary Judgment (docket entry #59). Plaintiff has responded (#68, #69, and #70). For the following reasons, Defendants' m o tio n (#59) should be GRANTED. III. A. D is c u s s io n : S u m m a r y Judgment Standard S u m m a ry judgment is appropriate when the evidence, viewed in the light most f a v o ra b le to the nonmoving party, presents no genuine issue of material fact. FED. R. C IV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 246 (1986). Once the moving party has successfully carried its b u rd e n under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the p le a d in g s and by depositions, affidavits, or otherwise, designate "specific facts showing th a t there is a genuine issue for trial." FED. R. CIV. P. 56(e); Mosley v. City of N o r th w o o d s , 415 F.3d 908, 910-11 (8th Cir. 2005) ("The nonmoving party may not rest o n mere allegations or denials, but must demonstrate on the record the existence of

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specific facts which create a genuine issue for trial."). If the opposing party fails to carry th a t burden or fails to establish the existence of an essential element of its case on which th a t party will bear the burden of proof at trial, summary judgment should be granted. See Celotex, 477 U.S. at 322. "Although it is to be construed liberally, a pro se complaint m u s t contain specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1 3 3 4 , 1337 (8th Cir. 1985). B. D e lib e r a te Indifference to Plaintiff's Medical Needs P la in tif f entered the DCDF on September 28, 2009, on charges of residential b u rg la ry and theft of property. On April 14, 2009, he was sentenced to 480 months' im p ris o n m e n t. He remained in the DCDF until his release to the ADC on April 24, 2009 (# 6 1 -2 ). Even though Plaintiff's status went from pretrial detainee to convicted inmate, th e Eighth Amendment's deliberate indifference standard is appropriate when addressing P la in tif f 's claim. See Butler v. Fletcher, 465 F.3d 340 (8th Cir. 2006) (holding that the E ig h th Amendment deliberate indifference standard of culpability is appropriate for all c la im s that prison officials failed to provide pretrial detainees with adequate food, shelter, m e d ic a l care, and reasonable safety). T h e Eighth Amendment to the United States Constitution prohibits the infliction of c ru e l and unusual punishment. Jenson v. Clark, 94 F.3d 1191 (8th Cir. 1996). Deliberate in d if f e re n c e by prison personnel to an inmate's serious medical needs violates the in m a te 's Eighth Amendment right to be free from cruel and unusual punishment. Estelle

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v. Gamble, 429 U.S. 97, 104-05 (1976). An Eighth Amendment claim of deliberate in d if f e re n c e to a serious medical need involves both an objective and a subjective c o m p o n e n t. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). Inmates must d e m o n s tra te (1) that they suffered objectively serious medical needs, and (2) that the p riso n officials actually knew of, but deliberately disregarded, those needs. Id. A serious m e d ic a l need is "one that has been diagnosed by a physician as requiring treatment, or o n e that is so obvious that even a layperson would easily recognize the necessity for a d o c to r's attention." Id. at 778. To prove deliberate indifference, "[t]he prisoner must show more than negligence, m o re even than gross negligence, and mere disagreement with treatment decisions does n o t rise to the level of a constitutional violation." Estate of Rosenberg v. Crandell, 56 F .3 d 35, 37 (8th Cir. 1995). "[T]he failure to treat a medical condition does not constitute p u n is h m e n t within the meaning of the Eighth Amendment unless prison officials knew th a t the condition created an excessive risk to the inmate's health and then failed to act on th a t knowledge." Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). As long as this th re s h o ld is not crossed, inmates have no constitutional right to receive a particular or re q u e s te d course of treatment, and prison doctors remain free to exercise their in d e p e n d e n t medical judgment. Id. Plaintiff filed this action on April 20, 2009, alleging that DCDF officials delayed m e d ic a l care for several months for his high blood pressure, lower abdominal pain, and

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urinary problems (#2). Plaintiff claims that he was forced to pay to see his own doctor, a n d then was denied a "prostate cancer test" that his doctor recommended (#2). The re c o rd shows that Plaintiff received constitutionally adequate medical care during his time in the DCDF. On October 19, 2008, Plaintiff requested to have his blood sugar checked. Officer A d a ir removed Plaintiff from his cell, but just before the blood-sugar check, Plaintiff b e g a n to collapse (#61-5). An ambulance was called, and Plaintiff was transported to the D re w Memorial Hospital. At the hospital, Plaintiff received blood work, a CT scan, and a c h e s t x-ray (#61-6). Plaintiff was advised to follow up with his primary care physician. T h e next day, October 20, 2008, DCDF's doctor, Defendant Roloff Turner, M.D., p la c e d Plaintiff on blood pressure medication and advised the jailers to check Plaintiff's b lo o d pressure and to keep a record (#61-5). Dr. Turner noted that it would take several d a ys of medication for Plaintiff's blood pressure to stabilize. DCDF officials continued to monitor and record Plaintiff's blood pressure during his time in the DCDF (#61-12). On October 22, 2008, DCDF officials transported Plaintiff to the Drew Memorial H o s p ita l because he was having chest pain. Plaintiff was diagnosed with an upper re s p ira to ry infection and was given antibiotics (#61-6 and #61-7).1 On October 28, 2008,

Plaintiff smoked three packs of cigarettes per day for twenty years prior to his in c a rc e ra tio n (#61-9, p. 4). 5

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Plaintiff refused to take his medications (#61-5). Plaintiff states that he did not refuse his m e d ic a tio n , but was asleep when medication was offered (#68-20). O n November 5, 2008, Plaintiff filed a medical request stating that he had been h a v in g trouble urinating for about a month.2 Defendant Potts responded by asking P la in tif f whether he had mentioned this problem to the doctor during Plaintiff's last h o s p ita l visit (#61-3). On November 10, 2008, Plaintiff returned to Drew Memorial Hospital c o m p la in in g of high blood pressure. The medical records do not reflect that Plaintiff c o m p la in e d of urinary problems during this hospital visit (#61-7). O n November 14, 2008, Plaintiff submitted a request for dental work. In the re q u e s t, Plaintiff stated, "Since I've been here you have taken real good care of me and m y health. I am very pleased." (#61-3, p. 3)3 O n December 3, 2008, Plaintiff refused to get up to take his medication (#61-5). The next day, Plaintiff complained that he was feeling dehydrated (#61-3). In response, D e f e n d a n t Potts noted that Plaintiff had seen the doctor on December 10, 2008.4

This urinary problem comprises the majority of Plaintiff's complaints and appears to be the crux of Plaintiff's medical claim. Plaintiff states that unnamed jailors told him to use "sweet talk" to get the m e d ic a l treatment he wanted (#68-20). Although Plaintiff indeed saw a doctor on December 10, 2008, this appears to be a mistaken reference to Plaintiff's hospital visit on November 10, 2008. 6
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On December 10, 2008, Plaintiff filed a medical request stating that he was unable to urinate. The same day, Plaintiff saw a doctor who noted that Plaintiff had an infection (# 6 1 -3 , p. 6). Documentation from this doctor's visit does not appear in the record. The re c o rd does show, however, that starting on December 12, 2008, Plaintiff began receiving C ip ro f lo x a c in , which is commonly used to treat bacterial infections (#61-8). In addition, P la in tif f states that he received the prostate medication terazosin on December 10, 2008 (# 6 8 , p. 20). Plaintiff received Ciprofloxacin 250mg twice daily until the morning of December 1 7 , 2008 (#61-12, p. 13). Plaintiff complains that the "low dose" Ciprofloxacin should h a v e been in a 500mg dose, twice daily (#68, p. 44). Plaintiff states that Defendant Dr. T u rn e r gave him an extensive physical examination on December 10, 2008, and in a d d itio n to Ciprofloxacin, prescribed terazosin for his prostate (#68, p. 3). Terazosin is c o m m o n ly used to treat benign prostatic hyperplasia, or enlarged prostate. Plaintiff's m e d ic a tio n log shows that he received terazosin from December 10, 2008, until March 1 7 , 2009 (#61-12 and #61-13). At that time, Plaintiff began the medication regiment p re s c rib e d by his family doctor, Dr. Reinhart. On December 17, 2008, Plaintiff filed a medical request stating that he was still h a v in g trouble urinating and that his pain was worsening (#61-3, p. 7). He filed a similar re q u e s t on December 19, 2008 (#61-3, p. 8). The same day, Plaintiff was treated at the D re w Memorial Hospital for abdominal and left flank pain (#61-7, p. 17-27). The

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duration of the pain was 2-3 days, intermittent. Plaintiff also complained of problems u rin a tin g (#61-7, p. 18). The clinical impression was acute abdominal pain and fecal re te n tio n (#61-7, p. 19). Plaintiff was given an injection of toradol and MOM 60ml (#617 , p. 20). In response to Plaintiff's medical request, Defendant Potts noted that Plaintiff w e n t to the hospital, and she informed Plaintiff that she was ordering fiber for him. T h e next day, December 20, 2008, Plaintiff filed a medical request stating that the d o c to r he saw the previous night did not treat his problem urinating.5 Plaintiff also stated th a t he had a swollen prostate and could not urinate. Plaintiff then requested to see a d if f e re n t doctor. Defendant Potts stated that she talked to the doctor and he said Plaintiff d id not have a swollen prostate. She further informed Plaintiff that he would have to pay f o r the visit to see a different doctor (#61-3, p. 9). On December 23, 2008, and again on January 1, 2009, Plaintiff refused his m e d ic a tio n s (#61-5). In a medical request dated December 23, 2008, Plaintiff stated that h e needed a high fiber diet and he was entitled to see a doctor of his choice. Plaintiff w ro te , "[t]he law states a doctor of my choice, not yours. I want to choose." (#61-3, p. 1 1 ) Defendant Potts responded, "You have to pay for your own doctor." (#61-3, p. 11) On January 11, 2009, Plaintiff submitted a medical request stating, "Mrs. Potts, my s ta y here is coming to pass. I am very pleased with the service. Not at any time have I

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At this time, Plaintiff was still taking terazosin. 8

been neglected or mistreated although I hope to never acquire your services again." (#613 , p. 13) In the next medical request, dated March 10, 2009, Plaintiff stated that he needed to see a doctor of his choice and had money to do so. Plaintiff also requested a § 1983 f o rm (#61-3, p. 14). Defendant Potts responded that an appointment was made with Dr. R e in h a rt. Plaintiff refused his medication again on March 8, 2009, and March 11, 2009 (# 6 1 -5 ). O n March 18, 2009, the day Plaintiff was scheduled to see Dr. Reinhart, Plaintiff f ile d a medical request stating, "Mrs. Potts, I'm very disappointed in the service lately. I a m not responsible for my health care, Drew County is. I am requesting to speak to s o m e b o d y from the Arkansas State Troopers Internal Affairs or the FBI!" Defendant P o tts responded, "you requested your own doctor and you have to pay for your own." (#61-3, p. 15) Plaintiff saw Dr. Reinhart for urinary hesitancy, urine trickles, and abdominal pain o n March 18, 2009. The clinical impression was prostatitis. Dr. Reinhart prescribed b a c trim and flomax and advised Plaintiff to have a PSA 6 in two months (#61-11).

Defendants state that "PSA" is a reference to a Prostate-Specific Antigen test. P la in tif f alleges his doctor ordered a full prostate examination. 9

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On March 28, 2009, and March 31, 2009, Plaintiff requested to see Dr. Reinhart. In response to both requests, DCDF officials stated that Plaintiff would have to pay to see D r. Reinhart, or Plaintiff could see the DCDF doctor without payment (#61-3, p. 16-17). P la in tif f refused his medication on April 6, 2009, April 17, 2009, April 20, 2009, and A p ril 21, 2009 (61-5, p. 13-18). The ADC took custody of Plaintiff on April 24, 2009, f o u r days after Plaintiff filed this action. O n July 28, 2009, Plaintiff underwent a prostate examination at the ADC which s h o w e d Plaintiff's prostate was "slightly enlarged." (#61-9, p. 12) The ADC doctor, C h a rle s L. Liggett, M.D., prescribed Plaintiff terazosin, the same medication prescribed b y Defendant Dr. Turner during Plaintiff's time in the DCDF, and scheduled Plaintiff for f o llo w -u p care in four months (#61-9, p. 12). T h e record shows conclusively that DCDF officials did not deny Plaintiff medical tre a tm e n t, through either DCDF policy or individual action. During the seven months P la in tif f was housed in the DCDF, he was treated at Drew Memorial Hospital four times. He was provided additional doctor and dental appointments. DCDF officials regularly p ro v id e d Plaintiff prescription medication. In addition, Plaintiff was allowed to see a d o c to r of his choice, though he had to pay to do so. Viewing the record in a light most favorable to Plaintiff, the record shows that the tre a tm e n t provided to Plaintiff failed to cure his various ailments. The record does not

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show, however, that any of the Defendants were deliberately indifferent to any of P la in tif f 's medical needs. T h e record reflects some short delays in requested treatment. Plaintiff, however, h a s failed to provide any evidence that a delay in treatment affected his prognosis. See S h e r r e r v. Stephens, 50 F.3d 496, 497 (8th Cir. 1994) (delay in treatment claims require e v id e n c e that defendants ignored an acute or escalating situation or that the delays a d v e rs e ly affected the prognosis). In response to Defendants' motion, Plaintiff provides what purports to be a " d ia g n o s is of physical injury" from Plaintiff's physician (#68, p. 7). Based on the w o rd in g alone, this handwritten document is highly dubious. The signature is illegible; th e document is not verified; the opinions expressed are conclusory; and the opinions lack s u p p o rtin g medical documentation. It is implausible that such opinions and diagnoses w e re made without clinical testing or physical examination. This handwritten document d o e s not fulfill Plaintiff's obligation to respond to the medical evidence provided by D e f e n d a n ts . Based on the record, the Court concludes that Plaintiff has failed to show a n y injury resulting from the short delays in treatment. See Irving v. Dormire, 519 F.3d 4 4 1 , 448 (8th Cir. 2008) (citations omitted) (Eighth Amendment claims require more than d e minimis injury). Plaintiff's complaint centers on his disappointment with the results of his m e d ic a tio n s and his desire to see a doctor of his choosing. Plaintiff, however, has no

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constitutional right to receive a particular or requested course of treatment. Long, 86 F.3d a t 765. Under the circumstances presented here, Plaintiff had no right to see a particular d o c to r. The medical care Defendants provided to Plaintiff, even if imperfect, was c o n s titu tio n a lly sufficient. There is no evidence that any of the Defendants were d e lib e ra te ly indifferent to Plaintiff's medical needs. Accordingly, Plaintiff's claims s h o u ld be dismissed with prejudice. IV. C o n c lu s io n : T h e Court recommends Defendants' motion for summary judgment (#59) be G RA N TED . DATED this 2nd day of February, 2010.

____________________________________ U N IT E D STATES MAGISTRATE JUDGE

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