Simmons v. Susan et al
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on May 24, 2011. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
NURSE SUSAN and
Joe A. Simmons (“Simmons” or “Plaintiff” herein), currently an
inmate in the Wrightsville Unit of the Arkansas Department of
Correction in Wrightsville, Arkansas, filed this civil rights
action under 42 U.S.C. § 1983.
Pursuant to the provisions of 28
U.S.C. § 636, this case is before the undersigned upon consent of
A bench trial was held before the undersigned on November 8,
The undersigned issues the following Memorandum Opinion
based upon the evidence presented at that trial.
Background and Evidence Presented
Plaintiff presents a claim for denial of medical care in this
action, naming as defendants Washington County Detention Center
(“WCDC”) nurse, Susan Johnson, and WCDC doctor, Bill Howard.
At the bench trial, testimony was presented from the following
witnesses: (1) Joe A.
Simmons, Plaintiff; (2) Nurse Johnson; (3)
Corporal Schultz; (4) Dr. Howard; (5) Nurse Rhonda Bradley; and (6)
Major Randall Denzer.
In addition to the testimony of witnesses, the following
exhibits were also admitted:
Plaintiff admitted exhibits numbered
numbered one through seventeen into evidence. The Court marked one
Below is a summary of the testimony presented at the trial.
Plaintiff’s Version of Events
Plaintiff was incarcerated in the WCDC on May 1, 2008.
June 25, 20081, Plaintiff was taking a shower, but the shower
drains were stopped up, causing water to pool up to his ankles.
Plaintiff fell in the shower due to the excess water and relied
upon another inmate to help him to his feet.
to notify an officer by alerting the officer that he was in pain,
and the officer told him to fill out a form for medical treatment.
Plaintiff filled out a medical request form on June 26, 2008,
4, stating he had hurt his back on the previous day
during a fall and that his back pain from the fall was increasing.
After Plaintiff had filled out the form, Corporal Robert Schultz2
Plaintiff told Schultz about his fall in the shower, and
that he was in a great deal of pain.
Plaintiff did not see the nurse or doctor, but he was given
Plaintiff’s Statement of Claim, Pltf’s.
1, as well as other
materials previously provided to the Court state that Plaintiff fell on June 21,
2008. However, Plaintiff testified at trial that he was mistaken in those prior
filings, and the correct date is June 25, 2008.
At times throughout the pleadings, Corporal Robert Schultz has been
incorrectly referred to as “Corporal Schitz.”
Ibuprofen the following day. The grievance (id.), was responded to
by Nurse Johnson, who stated there was no report of a fall, and the
prescribed Plaintiff Ibuprofen for fourteen days. (Id.) Plaintiff
states he took Ibuprofen twice out of the four times it was offered
to him on June 27, 2008.
not take it at all.
However, on June 28, 2008, Plaintiff did
On June 29, 2008, he took it
once in the evening, and on June 30, 2009, he refused it at every
Continuing into July, Plaintiff took his medication one time
on July 1, 2008; three times on July 2, 2008; twice on July 3,
2008; and once on July 4, 2008.
Plaintiff did take the medication once each on July 5, 6, 7 and 8,
2008, but he but refused it at every pill call on July 9 and 10,
8; Pltf’s. Ex.
On July 11, 2008, Plaintiff sent in a second medical request,
stating the Ibuprofen was not working to relieve his pain.
Ex. 3; Pltf’s.
Again, Plaintiff was not evaluated by the
Plaintiff testified that Defendants’ Exhibit 8 was not entirely accurate
as to when he took and when he refused medication, and he presented his Exhibit
5, which contained his annotations of when he received medication not otherwise
reflected on Defendants’ chart. However, Plaintiff agreed the medication log was
generally accurate, and the times he did take his medication, but it was not
properly noted, were few. Generally, Plaintiff’s annotations reflected the times
it was already noted on the chart where he did take the medication. Only two
times did he circle what appeared to be a “refusal” of medication, to indicate
he did indeed take the medicine, rather than refuse it. Those dates are on July
2, 2008, and July 6, 2008, at bedtime pill call. The dates stated in the section
above reflect those indicated by the Plaintiff as times he took his medication,
either by his testimony at trial or annotations as reflected in Plaintiff’s
medical staff, but he was switched from Ibuprofen to Aleve.4
July 11, 2008, Nurse Johnson responded to his grievance, noting the
change and also stating he should see the doctor in a week if the
pain had not improved.
As his pain had not resolved, Plaintiff had his girlfriend
call the jail on July 17, 2008.
On that same date, Nurse Johnson
spoke to Plaintiff and told him not to have relatives call the
Plaintiff then told Nurse Johnson of his back pain, and he
was placed on the list to see Doctor Howard.
Although Plaintiff explained to Doctor Howard that the medication
previously prescribed by the nurse – Aleve and Ibuprofen – was not
working, Doctor Howard did not examine Plaintiff in any manner, and
placed Plaintiff on a higher dose of medication.
a medical request on the next day, July 23, 2008, stating the
higher dosage was not working, and that he was in “a lot of pain.”
The medication administration
record shows Plaintiff took the medication twice on July 22, 2008,
and not at all on July 23, 2008.
from Nurse Johnson came on July 24, 2008, stating it would “take
time” and that Plaintiff should continue on his medications.
administration record, Defs’.
8, reflects that Plaintiff
Defendants presented no medication administration record for the dates
of the Aleve prescription.
refused medication from July 22, 2008, until August 8, 2008,
Plaintiff stated he did not take the medication each time it was
offered, but he did continue to take it from time to time during
Plaintiff also requested on July 24, 2008, to receive a copy
of all of his medical complaints from June 21, 2008, to the present
Plaintiff stated he did not get all the
copies returned, but could not remember on what date he submitted
requests but did not get copies back.
Plaintiff then began
requesting two grievance forms at a time.
He would place his copy
in his personal property to document the request or grievance, in
the event it was not returned to him.
Plaintiff approximated that
seven grievances were not returned to him.
Plaintiff could not
remember which officer he gave the unanswered grievances to,
although at least one of the seven was given to Officer Pinata, who
is not a party to this case.
Plaintiff sent a medical request on September 1, 2008, and the
response on September 3, 2008, from Nurse Johnson, was that he had
no expressions of pain or difficulty walking or moving about.
5; Pltf’s. Ex. 4.
for fourteen days.
Plaintiff was prescribed Ibuprofen
Plaintiff testified he also sent medical requests on August 5,
September 10, September 25, October 6, October 29, November 9,
2008, all of which went unanswered.
filed a document marked both as a “grievance” and “medical” on
November 11, 2008, stating he still had pain, and was being denied
The response from Nurse Bradley was that
Plaintiff fell in June and was refusing medication, also stating
that Plaintiff was on the doctor list and that his medical papers
would be sent to the Arkansas Department of Corrections (“ADC”).
According to Plaintiff, he only saw the doctor at the WCDC on
July 22, 2008, despite his numerous complaints of pain.
quit taking medication in November, signing for it only a few times
in the evening from November 18, until December 2, 2008, as the
medication was no longer working.
Plaintiff also stated he quit
taking the medication at times before November, because it gave him
On January 9, 2009, Plaintiff was transferred to the ADC. His
back was examined at the ADC and he was diagnosed with a back
strain. The ADC doctors checked his spine, but performed no x-rays
and gave him no medication in pill form.
Plaintiff testified he
was given an ointment, similar to the over-the-counter painrelieving ointment “Icy Hot,” which he was allowed to keep in his
cell and use as needed.
Plaintiff states his pain resolved mid-
January of 2009, although he still suffers a stiff back and some
mornings it is difficult to get out of bed.
Defendants’ Version of Events
Corporal Schultz testified that he had no recollection of
Plaintiff or of pulling Plaintiff into the hallway to discuss a
slip and fall in 2008.
Schultz was working on June 25 and June 26,
2008, and if an inmate told Schultz that the inmate was injured,
Schultz would have had the inmate fill out a request, and then
would have given the inmate any medication that was allowed by the
Schultz had no knowledge of a video of the fall existing,
although there is a camera which could show if someone in the
shower suffered a fall.
While Nurse Johnson stated in response to
Plaintiff’s medical request that the video should be reviewed, she
did not perform any follow-up to make certain the review was
Major Denzer testified there was a review to see if a
copy of any video was made pursuant to a filed incident report, but
nothing had been copied, indicating there was no video of the
Plaintiff’s fall in the shower on or about June 26, 2008, when she
received a call from Plaintiff’s girlfriend on that date.
also stated she received Plaintiff’s first written medical request
on that date.
Johnson went to B-Pod, where Plaintiff was housed,
on June 26, 2008, to speak with him about his back, but he would
not speak with her and instead demanded to go to the hospital.
Johnson did not tell Plaintiff he should refrain from having
his family call the WCDC, but she did tell him that she would need
authorization in writing to speak with his family.
her he would not take the medication she prescribed for him.
Johnson testified she did not examine the Plaintiff at that time,
because he walked away from her, refusing any treatment beyond
going to the hospital.
According to Nurse Johnson, Plaintiff was
able to walk without limitations; he was not in any obvious pain,
and he was stomping, ambulating, turning, and moving with no
The Detention Center Logs, Defs’.
confirm that medical call was held on June 26, 2008, in Plaintiff’s
After Johnson was notified of the fall, she checked to see if
there was any report made of a fall, and no such report was
located. Although Johnson never physically examined Plaintiff, she
did observe how he walked to the door of the cellblock and came
into the open area.
Plaintiff never displayed any signs of
limitation or pain to Johnson or any guard or deputy.
Further, Johnson testified that a review of the Medication
Administration Chart shows that Plaintiff did not take 99% of his
medication, and the amount of medication he took was not enough for
it to take effect or work.
Johnson also testified that Dr.
Howard saw Plaintiff on July
22, 2008, and she saw Plaintiff on July 24, 2008.
Detention Center Records confirm medical call was held on those
dates, however those records indicate the July 24, 2008, medical
call was held by Nurse Rhonda, not Nurse Johnson.
Moreover, the medical record, Defs’.
7, shows Dr.
examined Plaintiff three times during his incarceration: July 22,
2008, November 18, 2008, and December 9, 2008.
Howard confirmed by reading his notes that he had
examined Plaintiff on July 22, November 18, and December 9, 2008.
The Detention Center Logs, Defs’.
17, do not show any medical
call for November 18 and December 9, 2008.
Howard had no
recollection of Plaintiff beyond his notes, but stated that due to
During the July 22, 2008 examination, he examined the
way Plaintiff sat down and moved in his chair.
Based upon Dr.
Howard’s thirty-five years of experience, the doctor could not
identify that Plaintiff was hurting as stated in his subjective
complaints of pain.
Regarding the December 9, 2008 medical call,
this was in response to a medical request regarding throat pain,
not back pain.
Although Nurse Johnson saw Plaintiff on July 24, 2008, she did
not see the medical request dated for that same date, and she did
not respond to it.
The other records, marked August 5, September
6, 10, and October 6, 2008, she likewise did not see and they are
not in the medical file.
Regarding the requests
sent on October 29, 2008, and November 9, 2008, Nurse Johnson had
left the employment of the WCDC at that time, and Nurse Bradley
responded to those requests.
On the subsequent examinations November 18, 2008, and December
9, 2008, Dr.
Howard testified Plaintiff’s medications would have
been increased if he continued to complain of pain, or options of
other medications would have been discussed.
December 9, 2008, Plaintiff’s chief complaint was a sore throat,
and so antibiotics were prescribed for tonsilitis.
Howard agreed with Nurse Johnson’s testimony that not
Plaintiff suffered in his back.
Also, neither Nurse Johnson nor
Howard were aware of headaches as a side-effect of Ibuprofen,
and the Plaintiff did not indicate side-effects were occurring on
his medical requests, only that the pain medication “was not
Nurse Bradley testified that she did not remember Plaintiff.
However, she did testify as to the medical charge sheet, Defs’.
16, stating that inmates were to be charged for visits each
time they saw the nurse or doctor, but it is not always done.
Additionally, the medical staff filled out the charge sheets, but
the actual charges were done by commissary and might not be placed
on the inmate’s account the day they were incurred. Thus, the dates
listed on the charge sheets do not reflect the date the charge was
Major Denzer testified that a $5.00 charge is made for
prescriptions or doctor visits, and a $3.00 charge is made for a
nurse visit or over the counter medication, but agreed the dates
the charges are incurred is somewhat unreliable to establish when
medical services were performed and may not accurately reflect the
date of the medical service.
Plaintiff has alleged he was denied medical care in the WCDC
because his back was not properly examined and the medication he
was prescribed was not adequate to manage his pain.
stated he is suing Defendants in their individual capacities only
21, ¶ 1), and presented no evidence related to any official
capacity claims at trial.
Thus, the Court will only consider
individual capacity liability regarding the Defendants in this
prisoner5 during the time of his claims, however, the Eighth
inmate's claim of inadequate medical care under the deliberate
indifference standard. See Butler v. Fletcher, 465 F .3d 340, 344
(8th Cir. 2006). To prevail on an Eighth Amendment claim, Plaintiff
must prove that Defendants acted with deliberate indifference to
his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106
(1976). The deliberate indifference standard includes “both an
demonstrate (1) that [he] 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
Plaintiff was found guilty after a trial by jury on September 2, 2008.
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 give rise to
the level of a constitutional violation. Deliberate indifference is
akin to criminal recklessness, which demands more than negligent
misconduct.” Popoalii v. Correctional Medical Services, 512 F.3d
488, 499 (8th Cir. 2008)(internal quotation marks and citations
constitute punishment within the meaning of the Eighth Amendment
excessive risk to the inmate's health and then failed to act on
that knowledge.” Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996). In
Dulany, 132 F.3d at 1239, the United States Court of Appeals for
the Eighth Circuit said:
[a]s long as this threshold is not crossed, inmates have
no constitutional right to receive a particular or
requested course of treatment, and prison doctors remain
free to exercise their independent medical judgment.
Deliberate indifference may be demonstrated by prison
guards who intentionally deny or delay access to medical
treatment, or by prison doctors who fail to respond to
prisoner's serious medical needs.
malpractice, however, are insufficient to rise to a constitutional
violation. Id. at 106; Dulany, 132 F.3d at 1239. See also Tlamka v.
Serrell, 244 F.3d 628, 633 (8th Cir. 2001).
Plaintiff has alleged that he fell in the shower of the WCDC,
injuring his back.
His claim of a fall, while never substantiated
by video tape or other evidence, was also never refuted at trial.
Thus, the Court credits Plaintiff’s testimony regarding his fall
and his pain as a result of the fall.
The Court also finds this to
be an objectively serious medical condition.
The Court must then
turn to the main issue in this matter, whether either Defendant
knew of Plaintiff’s injury and then deliberately disregarded that
Nurse Susan Johnson was the first to know of Plaintiff’s
She was alerted by both a phone call and a grievance to
The Court credits her testimony that she
spoke with Plaintiff the same day she was notified of his injury,
and that she assessed his condition by watching him ambulate with
Nurse Johnson immediately prescribed Ibuprofen for Plaintiff.
When she received a grievance stating Plaintiff was not receiving
prescription to Aleve.
When she received a third request, stating
the medication was not working, the Court finds her response, that
he should give more time for the medication to work, was based upon
her medical judgment, and was not deliberately indifferent.
86 F.3d at 765, (holding that nothing in the Eighth Amendment
prevents doctors from exercising independent medical judgment in
diagnoses and treatment.)
The medical administration record,
Plaintiff failed to consistently take the medication long enough
for it to be effective.
The Court also credits Johnson’s testimony that she did not
see any grievances from Plaintiff from July 24, August 5, September
6, 10, or October 6, 2008.
Thus, the Court does not find that
Nurse Johnson was deliberately indifferent to Plaintiff’s medical
needs for failing to respond on those occasions.
it appears that those requests were not forwarded to the medical
staff, there was no evidence that either Defendant was responsible
or knew those documents were not forwarded.
Next, the Court turns to Plaintiff’s claims regarding Doctor
Doctor Howard saw Plaintiff when Plaintiff was scheduled
for doctor call on July 22, 2008.
This doctor call is consistent
with the response to Plaintiff’s July 11, 2008, medical request,
indicated Plaintiff would “see MD” if not improved in a week.
Defs’. Ex. 3.
However, this examination was almost a month after Plaintiff
suffered his injury, and the Court credits Plaintiff’s testimony
that no physical examination was performed. The Court also credits
Plaintiff’s testimony that he did not see the doctor on November
18, 2008, or December 9, 2008, despite the testimony and doctor’s
notes reflecting such an examination did occur.6
The December 9,
2008, medical request appears to be predicated upon Plaintiff’s
complaint of a sore throat, for which he has not claimed he was
denied medical care, and is somewhat irrelevant to this matter.
The Plaintiff made five requests for medical care which were
undisputedly seen by the medical staff.
In response to these
medical requests, Plaintiff was seen twice by the nurse and once by
He was provided medication, and was requested to take
the medication to see if it could resolve his pain.
It is clear from the record before the Court that both Dr.
Plaintiff’s complaints of pain were also dismissively
set aside because there was no corroborating evidence of a fall.
The Court has grave reservations as to whether observation of
Plaintiff, such as described being performed by both Nurse Johnson
Howard, constitutes a sufficient examination to diagnose
a medical concern.
When Plaintiff requested medical treatment and
was seen by one of the Defendants, he was given the same treatment
as the times he was not even given the cursory evaluation by Nurse
Johnson or Dr.
In other words, the response to his
complaints was always the same – to take more medication or a
The Court observes Dr. Howard’s notes attached as an exhibit to the
Defendants’ Motion for Summary Judgment (Doc. 17, Ex. 2 at 5), also do not
reflect the November 18, 2008 and December 9, 2008 examinations. At trial,
Defendants’ counsel suggested this was because the materials were provided to
counsel from the WCDC before these examinations occurred. However, the Motion
for Summary Judgment was filed on August 17, 2009 (Doc. 15), over eight months
after these purported examinations.
However, the Court must also consider the well-established
fact that Plaintiff refused his medications as prescribed.
Courts have found that “any medical observer” would be led to the
significant pain” due to his refusal to take medications.
Noble County Sheriff Dept., 215 F. Supp.2d 1008, 1018-19 (N.D. Ind.
2002) (granting summary judgment where Plaintiff refused to take
medication sixty-nine times in two and a half months).
case, it is clear that after at least one day, Plaintiff refused to
take his medication consistently to have any effect.
minimal examination given to him, it appears that Plaintiff’s
medical issues would have resolved if he had simply followed the
treatment offered him by Defendants.
Once Plaintiff was transferred to the ADC, he was seen by the
ADC medical staff, who gave him a pain relieving ointment – a very
alleviate his pain.
Johnson and Dr.
Clearly, the medication prescribed by Nurse
Howard may have resolved Plaintiff’s complaints.
Thus, it can not be established that Defendants were deliberately
indifferent for offering it to him as a solution to his back
Rather, this case appears to present a disagreement of
treatment decisions, where Plaintiff disagreed that the medication
would manage his pain, without actually attempting to follow the
It is clearly established that a difference of opinion
as to treatment decisions can not state a claim of denial of
Warren v. Fanning, 950 F.2d 1370, 1373 (8th Cir.
1991); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990);
Courtney v. Adams, 528 F.2d 1056 (8th Cir. 1976).
Defendants on the entirety of Plaintiff’s claims.
IT IS SO ORDERED this 24th day of May 2011.
/s/ Erin L. Setser
HON. ERIN L. SETSER
U.S. MAGISTRATE JUDGE
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