Williams v. Turner et al

Filing 114

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on October 6, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
TRACY BERNARD WILLIAMS
v.

PLAINTIFF

Civil No.4:10-cv-04053

WARDEN TURNER, Miller
County Correctional Facility;
NURSE WILLIAMS; DR. NASH;
KIM VILLANCOURT; and
CORRECTIONAL HEALTH CARE
MANAGEMENT

DEFENDANTS

MEMORANDUM OPINION
Plaintiff, Tracy Bernard Williams (hereinafter Williams), an inmate of the Arkansas
Department of Correction (ADC), filed this civil rights action pursuant to 42 U.S.C. § 1983. He
proceeds pro se and in forma pauperis. This case is before me pursuant to the consent of the parties
(ECF No. 20).
The events at issue in this case occurred while Williams was incarcerated at th Miller County
Correctional Facility (MCCF). Specifically, Williams maintains he was denied adequate medical
care.
A bench trial was held on August 2, 2011. The case is now ready for decision.
I. BACKGROUND
On October 5, 2009, Williams was booked into in the MCCF. Defendants’ Exhibit 1
(hereinafter Defts’ Ex.) Williams remained incarcerated there for thirteen months before his transfer
to the ADC.
The testimony of the following witnesses was taken: (1) Dr. Jayendra D. Patel, by telephone
on June 29, 2011, because of his unavailability for trial; (2) Tracy B. Williams, the Plaintiff; (3)

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Harold Rigsby; (4) J.C. Collins; (5) Golden Adams; (6) Nadia Brown; (7) Major Gary Turner, a
Named Defendant; (8); Eddie White; (9) Nurse Carmalita Williams, a named Defendant; and (10)
Justin Murray. For purposes of discussion, I will summarize the testimony of the witnesses.
Dr. Jayendra D. Patel
Dr. Patel testified that for approximately eight years he treated Williams for Chronic
Myelogenous Leukemia (CML). The condition is diagnosed through blood and bone marrow tests.
In Williams’ case, he was first diagnosed at the Mayo Clinic in Minnesota. The current treatment
for CML is a tablet of Gleevec once a day and monitoring with a complete blood count on a regular
basis. See Defts’ Ex. 2 at pg. 6. Dr. Patel testified Williams had been on Gleevec for seven to eight
years.
Gleevec inhibits or blocks the enzyme that triggers CML. Gleevec is used to treat CML and
to keep CML in remission. Once the leukemia is in remission, the patient has to keep taking Gleevec
for the rest of his life. The current literature suggests no one for whom Gleevec works should stop
taking it.
Dr. Patel testified Williams had been in complete molecular remission for a number of years
and was in remission in 2009. Dr. Patel testified this was the best response you could get from
treatment. Williams had no detectible leukemia.
According to Dr. Patel, it would be difficult to tell whether missing some doses of Gleevec
harmed Williams. Dr. Patel testified you would not be able to tell in one patient the long term affect
of missed doses. Instead, he said a long term study would have to performed. However, he testified
the drug is absolutely crucial in the treatment of CML and it was not recommended that any doses
be missed. The standard dosage for adults is 400 mg. Gleevec can be ordered from almost any drug
store.

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If a patient was off Gleevec, and had a positive reading on a blood test that would mean the
disease had reactivated. It is possible that the patient could take Gleevec again and go into
remission. However, if a re-institution of the Gleevec did not work, the patient might be forced to
change to a different drug. While Dr. Patel treated Williams, he was consistent in taking the
medication.
On December 10th, Williams was brought to the clinic to see Dr. Patel. However, Dr. Patel
was not available. Defts’ Ex. 2 at pg. 7. Williams told the nurse he was out of Gleevec and she had
Dr. Engstrom write Williams a prescription for a thirty day supply of Gleevec. Id.
Dr. Patel last treated Williams on December 31, 2009. The CBC showed Williams’ white
blood count was within normal limits. Dr. Patel testified there was nothing to suggest the CML was
not still in remission.
Williams complained of night sweats and rectal bleeding. See Defts’ Ex. 2 at pg. 6. Dr. Patel
testified he first looked at Williams’ lab work and made sure it was not the CML or medication
causing it. If the lab work eliminated those possibilities, Dr. Patel testified Williams would have to
go to a gastroentologist or a family doctor for further diagnosis and treatment. In fact, Dr. Patel
recommended that Williams contact Dr. Mayo at the AHEC Clinic. Id. Williams was given a
prescription for Gleevec and was told to return to the clinic in four months. Id. at pg. 7. Williams
did not return.
Tracy Williams
When he was booked into the Miller County Correctional Facility (MCCF) on October 5,
2009, Williams testified he brought his medication to the jail with him. Prior to his incarceration,
Williams indicated he was taking medication on a daily basis.
He was taking medication for blood pressure, gout, and CML. Williams indicated that Nurse

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Williams came to booking and advised him that he would need to see “someone over her” before
the medication could be administered.
Williams began receiving the Gleevec and other medications on October 7th. Defts’ Ex. 1
at pg. 112. On November 22nd and December 2nd, Williams submitted grievances because he was
not receiving his Gleevec. He indicates he submitted a number of grievances to Turner about this
issue but did not get any responses. He also states he did not receive copies of his grievances.
According to Williams, Warden Turner would not approve his medication. Williams states
that Nurse Williams told him that she could not order the medication without Warden Turner’s
approval.
On December 10th, Williams was taken to Dr. Patel’s office and he was given a prescription
for Gleevec. The transporting officer was Officer Rigsby. Williams handed the prescription to
Officer Rigsby who turned it over to Nurse Williams when they got back to the jail. However,
Williams testified the prescription was not filled until sometime in January.
In June of 2010, after he filed this lawsuit, Williams states he was called into Warden
Turner’s office. According to Williams, Turner apologized. At that time, Williams stated he was
receiving the Gleevec.
The entire thirteen months he was in the MCCF, Williams testified he had problems
receiving his Gleevec on a daily basis. Williams estimated that the longest period of time he was
without the medication was fifty days. There were occasions where he went without Gleevec for
weeks at a time.
He also maintained that his rectal bleeding was not treated properly. When the bleeding
began, he thought it was associated in some way to his CML. Williams testified he had a
colonoscopy and the bleeding was attributed to small external hemorrhoids. He received no

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treatment for hemorrhoids at the Arkansas Department of Correction because the bleeding had
stopped. Williams indicates he suffers from anemia as a result of the CML and stays cold year
round.
At times, Williams testified he refused his own medication. When he was placed in super
max, Williams stated he was fed “slop” that he couldn’t eat. Williams indicates he could not take
Gleevec on an empty stomach and so refused it. Williams estimated that over the period of his
incarceration at the MCCF, he refused his medication thirty times.
Officer Harold Rigsby
In October of 2009, Officer Rigsby testified he was employed at the MCCF. Inmates turned
grievances into drop boxes located at various places in the detention center. The grievances were
then put into a compartment in the receiving area of the jail or in a box on the warden’s door.
Medical request forms went directly to the medical staff. If a grievance form is turned in dealing
with medical issues, the sergeant determines how the grievance should be handled.
Once the grievance was responded to, it would be given back to the inmate. Now the
procedure is to make a copy of the grievances before they are returned to the inmates.
Officer Rigsby recalled Williams complaining that something was wrong with him and he
was not getting his medication. However, Officer Rigsby denied ever being shown any evidence of
rectal bleeding.
On December 10th, Officer Rigsby testified he transported Williams to Dr. Patel’s office.
Officer Rigsby indicated he was given paperwork to return to the nurse on duty. Officer Rigsby did
not read the paper and could not recall what nurse was on duty when he returned to the detention
center.

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J.C. Collins
Collins testified he was in the MCCF in October of 2009. He was incarcerated in the same
cell with Williams from December 2009 to May 2010.
During this time, Collins saw medication dispensed to Williams. Collins recalled seeing
evidence that Williams was bleeding rectally. Specifically, twice during one month, Collins testified
he saw blood on a tissue.
When an inmate wanted or needed medical care, Collins testified the procedure was for him
to submit a sick call slip. Collins stated that Nurse Williams did everything she could to help him.
Officer Golden Adams
Officer Adams testified she began working at the MCCF on November 28, 2009. With
respect to the grievance procedure, she indicated that prisoners complete a grievance form and then
give the grievance to the officer on duty who takes the grievance and puts it in a box up front. She
indicated there were different boxes for grievances and sick call slips. If the grievance is directed
to the warden, Officer Adams testified she would put the grievance in the warden’s box. She was
not sure who returned the grievances and stated she was not a grievance officer.
Officer Adams testified Williams never showed her any blood.
Nurse Nadia Brown
Nurse Brown testified she started working at the MCCF in July of 2010. She recalled that
one day Williams said he was hemorrhaging. She did not see any blood. At the time, she was
distributing medication and did nothing in response to Williams’ statement.
Warden Gary Turner
Warden Turner testified that he was the jail warden from November of 2009 until August of
2010. Warden Turner recalled only having one conversation with Williams. He indicated he called

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Williams down to his office once because he was concerned about him. Warden Turner did not recall
receiving any grievances from Williams regarding his medical care. If he received a grievance
regarding a medical issue, Warden Turner testified he would initial it and walk it down to the
medical department. Grievances regarding medical issues are put in the medical file.
Warden Turner also recalled speaking to Nurse Williams one time about Williams. He could
not recall when the conversation took place but he wanted to know if Williams was well enough to
be in the general population.
According to Warden Turner, the medical staff make all arrangements for outside medical
care for inmates. Warden Turner indicated his approval was not needed for such appointments to
be made. In fact, he testified that he played no role in medical decisions. However, he said if the
medical staff wanted to talk to him they could.
Warden Turner testified Miller County contracts with Correctional Healthcare Management
for the provision of medical staff and medical care and that he defers to them with respect to the
provision of medical care. The medical staff is also responsible for obtaining and dispensing
medication. Warden Turner testified he had nothing to do with the use of an out of state pharmacy
and that no one had discussed with him the cost of Williams’ medication.
Chaplin Eddie White
Chaplin White testified he was employed by the MCCF from October to December of 2009.
He was somewhat familiar with the grievance process. He recognized the grievance form as being
one used at the MCCF in 2009. Court’s Exhibit 1.
Inmates turned the grievance forms into the officers and the officers then put the forms in the
supervisors box. The officers did not sign the form in the space allotted for the receiving officer.
Chaplin White testified he never took a grievance response back to an inmate.

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Chaplin White recalled Williams bringing him two tissues each with a small amount of blood
on them. The blood was bright red and about the size of the bottom of a Styrofoam cup.
Nurse Carmalita Williams
Nurse Williams testified she began working at the MCCF in July of 2009 and was employed
there until February of 2011. On January 1, 2010, Nurse Williams became the Health Services
Administrator. Prior to that, she was an evening shift nurse. In that capacity, her primary duties
were attending to emergencies and dispensing medication.
When an inmate was booked in with medication, the booking officer would call the nurse on
duty. On October 5th, she was called by the booking officer while she was dispensing medication.
She looked at the medication Williams brought with him and explained that she had to go through
the doctor to get his medications. The medication Williams brought with him was placed in his
property. At the time, she was not aware of the purpose of Gleevec but Williams explained why he
was taking it and that his treating doctor was Dr. Patel.
Nurse Williams testified that Dr. Nash usually evaluated inmates unless an emergency
situation was involved. After the evaluation by Dr. Nash, she sent the paper work to the corporate
office to get the medication approved.
Nurse Williams testified Williams began receiving his medication on October 7th. Defts’
Ex. 1 at pg. 112. At the MCCF, Nurse Williams testified that medical staff distributed all
medication.

The medication is dispensed until the prescription runs out.

A medication

administration record is kept and the nurse who distributes the medication initials the record. Her
initials are CW and if the initials are circled on the administration record it indicates the drug was
not dispensed either because no medication was available or because the inmate refused the
medication. See e.g., Defts’ Ex. 1 at pg. 112. However, the policy was to note on the back of the log

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whether it was a refusal indicated by a #1 or whether the medication was out of stock indicated by
a #6. See e.g., Defts’ Ex. 1 at pg. 134. Clearly, this was not done with any regularity as there are
many pages of the log that have circles on the front but contain no explanation on the back. See e.g.,
Defts’ Ex. 1 at pg. 112.
The Gleevec was prescribed for ninety days. See e.g, Defts’ Ex. 1 at pg. 116. The record
shows the start date as 10/7/09 and the discontinue date as 1/5/2010. If the medication is to be
administered after this date, the doctor has to continue it.
Williams brought two bottles of pills with him. However, the number of pills in each bottle
is not disclosed. On November 25, 2009, Nurse Williams wrote on a problem oriented record, which
she indicated is a pass along report, that Dr. Patel needed to be contacted regarding Williams’
Gleevec prescription because Williams was running out of medication. Defts’ Ex. 1 at pg. 61. Nurse
Williams testified it would have been the Health Services Administrator at the time, Cheryl Walsh’s
responsibility to make arrangements with Dr. Patel’s office.
According to the medication administration records, Williams did not receive Gleevec on
November 29th or from December 14th to December 31st. At this time, Nurse Williams testified
the Gleevec Williams had brought to the MCCF was gone. Nurse Williams understood that Gleevec
was to be given on a daily basis. However, she states there was no prescription for it in Williams’
file.
Nurse Williams indicated there is no record of who made the arrangements for Williams to
be taken to Dr. Patel on December 10th. Nurse Williams testified she did not know that Williams
had received a written prescription for Gleevec that day and Williams’ medical file did not contain
a December 10th prescription. Typically, when an inmate’s prescription ran out, Nurse Williams
testified she would contact Dr. Stringfellow, the MCCF’s physician at the time.

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If a prescription was written for medication they did not have on hand, before the medication
ran out, Nurse Williams testified they contacted the physician to get the prescription approved and
then sent the order to the corporate office. The corporate office is located in Colorado and they use
Diamond Pharmacy Services in Indiana, Pennsylvania. If Diamond Pharmacy does not have the
medication, Hyde Pharmacy is contacted.
In Williams’ case, the written prescription for Gleevec was obtained on December 31st.
Defts’ Ex. 1 at pg. 76. The medication was ordered and Diamond Pharmacy only had fifteen tablets
to dispense. Id. at pg. 98. On January 26th, Diamond Pharmacy sent another thirty tablets. Id. at
pg. 99. Beginning on January 12th, Gleevec was dispensed to Williams. Id. at pg. 119. While the
administration record appears to indicate Williams received Gleevec on January 2nd and 3rd,
initialed by Nurse Stewart, Nurse Williams testified they did not have Gleevec on those dates so it
could not have been dispensed. No Gleevec was dispensed on January 26th. Williams received
Gleevec each day in February and March. Defts’ Ex. 1 at pgs. 121-125. In April, there are four days
circled indicating he refused the medication and two days on which the record is blank. Id. at pg.
126.
With respect to the alleged blood loss, in November of 2009, Williams had three stool guaiac
tests positive for blood in the stool. Defts’ Ex. 1 at pg. 64. In February, blood tests were done that
came back normal--no significant blood loss. Nevertheless, Williams testified that Dr. Nash made
the decision that a colonoscopy should be arranged. Id. at pg. 73.
In April of 2010 the doctor ordered labs because of the positive quiac. However, Williams
refused the tests. Defts’ Ex. 1 at pg. 37. On April 29, 2010, a colonoscopy was performed. Defts’
Ex. 1 at pg. 18. It was normal except for the presence of small internal hemorrhoids. Id.
Nurse Williams testified she was present on October 1, 2010, when Williams refused to allow

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blood to be drawn for testing. Defts’ Ex. 1 at pg. 7. Nurse Brown initially tried to draw blood from
his left arm but was unsuccessful. She was going to attempt to draw blood from his right arm but
Williams refused.
Officer Justin Murray
Officer Murray testified he has been employed as a detention officer by the MCCF since
April 12, 2010. Detention officers do not pass out medication.
The forms contained in Court’s Exhibit 1 are the grievance forms used at the MCCF. He
testified the grievances are put into a box and the sergeants go through the grievances and take care
of it. He has never signed in the space for the signature for the receiving officer. He indicated
inmates generally put the name of the officer who the grievance is directed to in that line. The
grievances are responded to and given back to the inmates.
Officer Murray recalled Williams showing him a piece of tissue with a little blood on it.
II. DISCUSSION
“[W]hen the State takes a person into its custody and holds him there against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and
general well-being.” County of Sacramento v. Lewis, 523 U.S. 833, 851(1998)(citation omitted).
“Deliberate indifference to an inmate’s serious medical needs violates the Eighth Amendment as
applied to the States by the Fourteenth Amendment.” Hartsfield v. Colburn, 491 F.3d 394, 396 (8th
Cir. 2007). In this circuit it is now settled law that deliberate indifference is the appropriate standard
of culpability for all claims that detention center officials have denied inmates, whether in pretrial
or convicted status, adequate medical care. See Butler v. Fletcher, 465 F.3d 340, 344 (8th Cir.
2006).
“In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently
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harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S.
97, 106 (1976). The deliberate indifference standard includes "both an objective and a subjective
component: 'The [plaintiff] must demonstrate (1) that [she] suffered [from] objectively serious
medical needs and (2) that the prison officials actually knew of but deliberately disregarded those
needs.'" Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000)(quoting Dulany v. Carnahan, 132
F.3d 1234, 1239 (8th Cir. 1997)). "For a claim of deliberate indifference, the prisoner must show
more than negligence, more even than gross negligence, and mere disagreement with treatment
decisions does not rise to the level of a constitutional violation." Popoalii v. Correctional Medical
Services, 512 F.3d 488, 498 (8th Cir. 2008).
Williams’ claims center on two aspects of his medical care. First, he maintains it was
important that he take Gleevec on a daily basis and there were significant periods of time when it
was not available to him. Second, he maintains Defendants unreasonably delayed in performing tests
to determine the cause of his rectal bleeding.
It has been held that an occasional missed dose of medication, without more, does not
constitute a violation of the Eighth Amendment. See Zentmyer v. Kendall County, II., 220 F.3d 805,
811 (7th Cir. 2000)(missed five out of thirty antibiotic pills prescribed over a period of eleven days;
twenty six applications of Otocort out of eighty prescribed over a period of twenty days; and one
dose of two other medications prescribed over a six day period). In this case, it is clear that because
of the procedures used, including requiring corporate approval and then utilizing an out of state
pharmacy, the Gleevec was not always available to Williams on a daily basis. Certainly, the medical
staff could have been more diligent in ensuring there was a continuous supply of Gleevec available
at the facility. However, even when the Gleevec was available, Williams himself refused it on at
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least thirty separate occasions. This suggests Williams was not concerned that refusing doses of the
medication would adversely impact his health. In fact, while Williams missed doses of Gleevec on
multiple occasions either because of the unavailability of the medication or because of his refusal
to take it, all evidence shows that the CML stayed in remission and Williams testified to no other
health consequences he suffered as a result of the misses doses. Under the peculiar circumstances
of this case, I find no deliberate indifference on the part of any of the Defendants to Williams’
serious medical needs in connection with the distribution of his medication.
With respect to Williams’ complaints of rectal bleeding, he was seen by Dr. Patel on
December 31, 2009, who referred him to AHEC Clinic. He was seen by Dr. Nash on March 13th
and prescribed fiber and stool softener. He was referred to the Texarkana Gastroenterology
Consultants, P.A., and underwent a colonoscopy on April 29, 2010.

As noted above, the

colonoscopy was normal except for the presence of small internal hemorrhoids.
The objective seriousness of a delay in the provision of medical care must be measured by
reference to the effect of delay which must be shown by verifying medical evidence. Laughlin v.
Schriro, 430 F.3d 927, 929 (8th Cir. 2005). There is no evidence in this case that Plaintiff was
adversely affected by the delay in treatment.
III. CONCLUSION
For the reasons stated, judgment will be entered in Defendants’ favor.
DATED this 6th day of October 2011.
/s/

J. Marschewski

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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