Kelly v. Washington County Detention Center et al
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 27, 2012. (adw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
BRYAN KENNETH KELLY
Civil No. 09-5234
This is a civil rights action brought pursuant to the provisions of 42 U.S.C. § 1983.
Plaintiff proceeds pro se and in forma pauperis. The case is before me on the consent of the
parties (Doc. 11).
Plaintiff is currently incarcerated in the Benton Unit of the Arkansas Department of
Correction (ADC). The events that are the subject of this action occurred while Plaintiff was
incarcerated in the Washington County Detention Center (WCDC) from August to December of
2009. Specifically, Plaintiff maintains Dr. Howard violated his constitutional right to adequate
medical care when he denied treatment for a hernia.
On February 6, 2012, a bench trial was held. The parties were given a period of time to
submit post-trial briefs on the issue of qualified immunity. Defendant filed a post-trial brief
(Doc. 45). Plaintiff did not file a post-trial brief. The case is ready for decision.
1. Evidence Presented
At the trial, the Court heard the testimony of the following witnesses: (1) Bryan Kelly,
the Plaintiff; (2) Officer James Stout; (3) Nurse Rhonda Bradley; and (4) Dr. W.H. Howard, Jr.,
the named Defendant.
Plaintiff testified he was incarcerated at the WCDC from August 25, 2009, to December
17, 2009, when he was transferred to the ADC. He was strip searched as part of the booking
process; this included being asked to squat and crouch. Plaintiff testified he showed Officer
Stout the hernia he had just discovered in his lower abdomen.
On September 11th, Plaintiff submitted his first medical request. Defendant’s Exhibit
(hereinafter Deft’s Ex.) 3(B) at pg. 1. He testified he submitted the request because he believed
he had a hernia that was getting larger. Id. In response, Plaintiff was prescribed Ibuprofen. Id.
He received Ibuprofen from September 12th to September 26th. Id. at pg. 6. He was prescribed
no further medication. Plaintiff testified that the hernia caused pain when he passed stool,
laughed, coughed, sneezed, or climbed up and down from his bunk. The pain was worse when
he was constipated or had indigestion.
On September 15th, Plaintiff was seen by Dr. Howard. Nurse Bradley was present.
Plaintiff testified Dr. Howard informed him that his condition would not be treated but there
would be follow-up on it.
Plaintiff testified he submitted no other medical requests about the hernia or any pain it
was causing. He did not request a lower bunk. He testified he made no further attempts to obtain
treatment because he believed he would be sent to the ADC quickly but it ended up taking
When he arrived at the Diagnostic Unit of the ADC, a medical intake was done.
However, Plaintiff testified the intake examination was not a complete physical. He testified he
has not submitted any medical requests relating to the hernia since he was transferred to the ADC
because the hernia is less painful. He does still experience some pain when he sneezes or
coughs. He indicated he can also feel the hernia moving. He likened the pain to having “gas.”
Plaintiff has been able to get up and down from his bottom bunk, work, and engage in all the
activities of daily living.
Officer James Stout
Officer Stout testified he booked the Plaintiff in on August 25, 2009. Officer Stout
testified that, although he had no independent recall regarding it, the writing on the intake sheet
was his including a notation “hernia” in the area for medical complaints or injuries. Deft’s Ex.
2 at pg. 1. The medical questionnaire also contained the following notation: “states he has a
possible hernia.” Id. at pg. 2. Officer Stout testified that he would not have done a physical
examination but it may have been possible to see the hernia when conducting a strip search.
Nurse Rhonda Bradley
Nurse Bradley testified she is a licensed practical nurse (LPN) and has worked at the
WCDC for nearly ten years. She could not recall if she was present when Dr. Howard examined
the Plaintiff. She did not recall Dr. Howard saying the hernia would not be treated.
According to Nurse Bradley, the inmate medical form is completed by the booking
officer. Deft’s Ex. 3(A) at pg. 1. The medical form is reviewed by medical staff. On August 26,
2009, Nurse Bradley saw the Plaintiff and asked if there were any medications or conditions that
she needed to be made aware of. Plaintiff advised her he had been on INH, a tuberculosis
medication, while incarcerated in a different county. Deft’s Ex. 3(B) at pg. 5.
On September 11th, Plaintiff submitted a medical request form that indicated the hernia
was getting larger and hurting. Deft’s Ex. 3(B) at pg. 1. Nurse Bradley responded that she had
put Plaintiff on the list to see the doctor. Id. She also prescribed Ibuprofen three times a day as
needed. Plaintiff was seen by Dr. Howard on September 15th.
On October 8th, Plaintiff submitted a grievance. Deft’s Ex. 3(B) at pg. 3. He wrote that
Dr. Howard had told him that Washington County would not treated the hernia. Id. Since he was
ADC committed, Plaintiff asked that he be transported to the ADC so he could receive medical
On October 9th, in response, Nurse Bradley indicated she would send the ADC the
paperwork. Id. A health services request form was completed and sent to the ADC. Nurse
Bradley testified she never got a response to the request. While she normally followed up on the
requests sent to the ADC, there is no indication she did in this case.
According to Nurse Bradley, once an inmate is convicted and sentenced to a term of
imprisonment, ADC permission is sought for any medical procedures or for any treatment that
is rendered outside the jail. If there is a medical emergency, treatment is rendered without first
seeking ADC permission. Nurse Bradley testified that if the hernia required emergency
treatment, Plaintiff would have received the treatment.
Dr. W.H. Howard, Jr.
Dr. Howard testified he has been a licenced doctor since 1970 and has concentrated
mainly in family practice. He has been employed as the WCDC jail doctor for nearly thirteen
years. In his practice, Dr. Howard testified he has seen many hernias.
Dr. Howard examined the Plaintiff on September 15th and diagnosed him with a left
inguinal hernia.1 Deft’s Ex. 3(B) at pg. 5. He noted the situation should be watched and Plaintiff
was directed to do no lifting. Id.
No pain medication was prescribed because Plaintiff was
A hernia is a condition in which “part of an organ is displaced and protrudes through the wall of the cavity containing it.”
http://englishoxforddictionaries.com/definition/hernia?region=us (accessed on July 26, 2012). Inguinal refers to a hernia in the groin
area. www.medilexicon.com/medicaldictionary.php?t=44570 (accessed on July 26, 2012).
already on Ibuprofen. Additionally, Dr. Howard testified he rarely prescribed medication if he
did not have to.
Dr. Howard noted a small bulge just above the pelvic area. He testified the hernia may
have caused Plaintiff discomfort when getting on or off of the bunk. According to Dr. Howard,
a hernia is reducible if it “can be put back into place.”2 Plaintiff’s was self reducible. A
strangulated hernia is one that swells and cannot be put back into place without surgical
intervention. Dr. Howard testified that if Plaintiff continued to have problems, he would have
been referred to a surgeon.
Dr. Howard testified he did tell the Plaintiff that the County would not pay to treat any
medical condition unless treatment was medically necessary. Dr. Howard stated that small
hernias usually are not treated unless they become strangulated. Strangulation may be indicated
by a sudden onset of discomfort with redness and swelling. At that point, it is an emergency and
surgery must be done.
Dr. Howard testified he did not do routine follow up, but if an inmate continues to have
a problem or continues to have pain, the inmate can ask to see Dr. Howard again. He is on call
24 hours a day, seven days a week. Dr. Howard stated he never heard any more about the hernia,
so he assumed the condition had resolved itself.
At the hearing, Plaintiff specified he was suing Defendant in his individual capacity.
Defendant maintains he is entitled to qualified immunity.
“Standard medical treatment for a reducible hernia would be pain relief, as well as monitoring and . . . safety precautions as far as
lifting goes.” Winslow v. Prison Health Services, 406 Fed. Appx. 671, 675-76, 2011 WL 167280, 4 (3d Cir. 2011).
“Qualified immunity shields government officials from liability in a § 1983 action unless
the official’s conduct violates a clearly established constitutional or statutory right of which a
reasonable person would have known.” Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th
Cir. 2009). The qualified immunity inquiry consists of two questions: “(1) whether the facts
shown by the plaintiff make out a violation of a constitutional or statutory right, and (2) whether
that right was clearly established at the time of the defendant’s alleged misconduct.” Johnson
v. Carroll, 658 F.3d 819, 825 (8th Cir. 2011). “Unless the answer to both of these questions is
yes, the defendants are entitled to qualified immunity.” Langford v. Norris, 614 F.3d 445, 459
(8th Cir. 2010).
I begin with the question of whether the facts support Plaintiff’s claim that Defendant
violated his Eighth Amendment rights by exhibiting deliberate indifference to his serious
medical needs. “The Eighth Amendment prohibition on cruel and unusual punishment extends
to protect prisoners from deliberate indifference to serious medical needs.” Vaughn v. Greene
Cnty, Arkansas, 438 F.3d 845, 850 (8th Cir. 2006).“Where a prisoner needs medical treatment
prison officials are under a constitutional duty to see that it is furnished.” Crooks v. Nix, 872
F.2d 800, 804 (8th Cir. 1989)(citation omitted); see also Yellow Horse v. Pennington Cnty, 225
F.3d 923, 927 (8th Cir. 2000)(Inmates have a constitutional right to have their serious medical
needs attended to).
“In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently
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 [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 F.3d 1234, 1239 (8th Cir. 1997)).
It is not necessary for the Plaintiff to show a total deprivation of medical care. Langford,
614 F. 3d at 460. “Grossly incompetent or inadequate care can [also] constitute deliberate
indifference, as can a doctor’s decision to take an easier and less efficacious course of treatment.
To state a claim based on inadequate medical treatment the plaintiff 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.” Id. (internal quotation marks and
As noted above, Plaintiff was seen by Dr. Howard on September 15, 2009. Dr. Howard
diagnosed a left inguinal hernia. Dr. Howard concluded the hernia was self-reducible and there
was no need for surgical repair. He indicated that a reducible hernia was one that could be
pushed back into place behind the abdominal wall. A self-reducible hernia was one that would
go back into place itself.
Plaintiff was taking Ibuprofen for pain relief at the time of the visit. Dr. Howard
indicated that follow-up was necessary to see how the hernia progressed. However, he testified
that he did not routinely set follow-up appointments. Instead, he assumed that, if an inmate was
still having a problem, the inmate would submit another medical request. Plaintiff submitted no
other requests for treatment for the hernia and once he was transferred to the ADC sought no
“The inmate must clear a substantial evidentiary threshold to show the prison’s medical
staff deliberately disregarded the inmate’s needs by administering inadequate treatment.” Nelson
v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010). Plaintiff has failed to clear this threshold. I
cannot say that Dr. Howard’s conduct violated Plaintiff’s clearly established constitutional right
to medical care for serious medical needs. Anderson v. Creighton, 483 U.S. 635, 638-39
(1987)(noting that qualified immunity shields government officials from liability for civil
damages “as long as their actions could reasonably have been thought consistent with the rights
they are alleged to have violated”); Langford v. Norris, 614 F.3d 445, 461 (8th Cir. 2010)(“We
must . . . examine the information possessed by the government official accused of wrongdoing
in order to determine whether, given the facts known to the official at the time, a reasonable
government official would have known that his actions violated the law”). Dr. Howard
examined Plaintiff and, in the exercise of his medical judgment, concluded no medical treatment
was necessary other than medication for pain relief and an order not to do any lifting. On the
facts of this case, Dr. Howard is therefore entitled to qualified immunity.
For the reasons stated, judgment will be entered for the Defendant.
DATED this 27thday of July 2012.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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