Wilson v. Turner et al

Filing 30

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 20, 2009. (dmc)

IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS H O T SPRINGS DIVISION LA R R Y LENARD WILSON v. D A V ID TURNER, Sheriff, C lark County, Arkansas; and JA C K IE NEWBURN, Jail Administrator, Clark County D e ten tio n Center M E M O R A N D U M OPINION Plaintiff, Larry Lenard Wilson (hereinafter Wilson), who is currently incarcerated in Clark C o u n ty Detention Center, filed this civil rights action pursuant to the provisions of 42 U.S.C. § 1983. H e proceeds pro se and in forma pauperis. He contends his constitutional rights are being violated b eca u se he is being denied adequate medical attention. The Defendants filed a motion for summary ju d gm en t (Doc. 19). Wilson filed a response (Doc. 24) to the motion. However, because I believed additional info rm ation was necessary, I propounded a questionnaire (Doc. 25). Wilson was advised that I would co n sid er both his original response (Doc. 24) and his response to the questionnaire in issuing an opinion on the summary judgment motion. Wilson's response to the questionnaire (Doc. 28) was filed on March 3 1 , 2009. The summary judgment motion is now ready for decision. 1 . Background Wilso n was booked into the Clark County Detention Center (CCDC) on December 8, 2007, a fte r being arrested on several felony offenses. Plaintiff's Response (Doc. 28)(hereinafter Resp.) at ¶ 1. The pending charges were the only reason he was incarcerated. Id. at ¶ 3. D u rin g all times relevant to the complaint, David Turner was the Clark County Sheriff. C iv il No. 6:08-cv-06056 PLAINTIFF

DEFENDANTS

-1-

R e s p . at ¶ 5(A). Jackie Newburn was the jail administrator. Id. at ¶ 5(B). During the booking process, Wilson indicated he had been hospitalized in the last year for c a ta ra c t surgery. Resp. at ¶ 2. On December 10, 2007, Wilson was seen by Dr. Covington, an eye d o c to r, for a follow-up visit for the cataract surgery. Id. at ¶ 4(A)-(C). Dr. Covington checked Wilso n 's left eye and said it was doing well. Id. at ¶ 4(C). Dr. Covington did not make any notation o n Wilson's medical treatment report or tell the deputies that Wilson needed to return for cataract s u rgery on his right eye. Defendants' Exhibit D-1 (hereinafter Defts' Ex.). Wilson states he was not asking for surgery on his right eye at the time he saw Dr. Covington. R e s p . at ¶ 5(C). Further, Wilson states he doesn't even know if Dr. Covington performs laser cataract s u rgery. Id. On February 20, 2008, Wilson submitted a complaint sheet stating he was having problems s e e in g out of his right eye and needed to go to see an eye doctor. Resp. at ¶ 6(A) & (B). This is the firs t complaint he submitted about having problems with his right eye. Id. at ¶ 6(C). The earliest a p p o in tm e n t that the eye doctor, Dr. Teed, had available was on March 6, 2008, at 10:45 a.m. Id . at ¶ 7(A). Wilso n was transported to Dr. Teed's office on March 6th and diagnosed with a cataract on h is right eye. Resp. at ¶ 7(B). Dr. Teed recommended that Wilson have surgery on his right eye. Id . Dr. Teed was informed that the CCDC would get a second opinion. Defts' Ex. D at ¶ 6. O n April 7, 2008, Wilson submitted a complaint form saying that if he was not going to get h is eye taken care of he would like to know before he went blind. Resp. at ¶ 8(A). He stated it was ge t t i n g worse every day. Id. Defendant Jackie Newburn responded that Wilson could have his fa m ily make arrangements for his eye appointments with payment arrangements taken care of. Defts' E x . G at page 1. Wilson states this would involve a high risk of escape and his family didn't have

-2-

th e $2,100 to pay for the surgery. Resp. at ¶ 8(B). O n April 21, 2008, Wilson submitted a grievance complaining that he still needed cataract s u rgery on his right eye. Resp. at ¶ 9(A). He stated he was going blind. Id. He asked Mrs. Newburn to let him know if he was not going to be able to get the surgery done. Id. He asked that the matter b e taken care of as soon as possible. Id. In response, Wilson was told that cataract surgery was not a life threatening condition and that he could have it done as soon as he was released from jail. D e fts ' Ex. G at page 2. Wilson states he was told by Mrs. Newburn that it wasn't a life threatening o r death situation. Resp. at ¶ 9(B). However, Wilson states his "life consist of me seeing." Id. He s ta te s he was facing 20 or 40 years to life in prison and was under $150,000 bond. Id. A c c o r d i n g to Sheriff Turner's affidavit, Wilson requested another appointment with Dr. Teed a n d said he would pay for the surgery on his right eye himself. Defts' Ex. D at ¶ 7. Wilson, however, d is a gree s . Resp. at ¶ 10. He states he didn't have the money yet to pay for the left eye surgery so he w o u ld n 't have said he could pay for the surgery on his right eye. Id. Further, he "thought 'I know' th a t the county would pay" for his medical needs. Id. A n appointment was made with Dr. Teed and Wilson was transported on July 29, 2008, to D r. Teed's office. Resp. at ¶ 11(A). According to Sheriff Turner, when Wilson informed Dr. Teed h e wanted the surgery performed and was going to pay for it himself, Dr. Teed indicated on the d e t a in e e request report that he was unable to schedule the surgery until Wilson's current balance was p a id or payment arrangements were made. Defts' Ex. D at ¶ 9. Further, the detainee request report c o n ta in s these comments. Defts' Ex. D-3. However, Wilson states on the way to the appointment Deputy Daniel mentioned that he th o u g h t the arrangements had been taken care of because he knew Dr. Teed had notified Mrs. N e w b u rn to make an appointment and to send Wilson to the hospital for surgery. Resp. at ¶ 11(B).

-3-

W ils o n stated he didn't agree to pay for the surgery. Id. He states Dr. Teed was willing to perform th e surgery because he knew he was going to get paid by the Clark County Sheriff's Department. Id. A c co rd in g to Sheriff Turner, between July 29, 2008, and February 18, 2009, Wilson did not s u b m it any more requests having to do with problems with his right eye. Defts' Ex. D at ¶ 10. H o w e v e r , Wilson states he turned in a request to see the eye doctor but was told since he had a case p e n d in g against them there was nothing they could do for him. Resp. at ¶ 12. Wilson indicates he w a n te d to see how bad his eye had gotten. Id. He states he knows he will go blind if he doesn't get th e surgery done. Id. On February 18, 2009, Wilson submitted a request for medical treatment for his right eye. O r ig i n a l Response (Doc. 24) at page 4. In response to the request, he was told since he had this case p e n d i n g he could not be sent to the doctor. Id. at ¶ 21. Wilson is still being held in the CCDC p e n d in g trial. Resp. at ¶ 13. He is able to see from his left eye. Resp. at ¶ 14. His vision in his right eye has gotten w o rs e . Id. at ¶ 20. Wilson states he is unable to perform the job of a work crew trustee. Id. Further, h e states he cannot read his Bible and if he covers his left eye he indicates he cannot see out of the righ t eye. Id. He indicates he cannot see the score if he attempts to watch sports on television. Id. H e has an upper bunk and has trouble getting up and down at night because of his eye condition. Id. H e has difficulty playing cards. Id. If he had an eye test, he doesn't believe he would be able to see th e numbers or letters on a chart with his right eye. Id. D r. Teed considers the cataract surgery on Wilson's right eye to be elective. Id. at ¶ 16(A). H o w e v e r , Wilson states Dr. Teed advised him not to let the eye get in as bad as shape as he did his le ft eye before the surgery was done. Id. No second opinion was ever obtained by the CCDC officials as to whether Wilson needed

-4-

th e cataract surgery. Resp. at ¶ 17. Wilson contends Dr. Teed was ready to perform the surgery as s o o n as CCDC officials sent him there. Id. at ¶ 18. 2 . Summary Judgment Standard S u m m a r y judgment is appropriate if, after viewing the facts and all reasonable inferences in th e light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 4 7 5 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), the record "show[s] that there is no ge n u in e issue as to any material fact and that the moving party is entitled to a judgment as a matter o f law." Fed. R. Civ. P. 56(c). "Once a party moving for summary judgment has made a sufficient s h o w in g , the burden rests with the non-moving party to set forth specific facts, by affidavit or other e v i d e n c e , showing that a genuine issue of material fact exists." National Bank of Commerce v. Dow C h e m i c a l Co., 165 F.3d 602, 607 (8th Cir. 1999). T h e non-moving party "must do more than simply show that there is some metaphysical doubt a s to the material facts." Matsushita, 475 U.S. at 586. "They must show there is sufficient evidence t o support a . . . verdict in their favor." National Bank, 165 F.3d at 607 (citing Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "A case founded on s p e c u l a t io n or suspicion is insufficient to survive a motion for summary judgment." Id. (citing Metge v . Baehler, 762 F.2d 621, 625 (8th Cir. 1985)). 3 . Arguments of the Parties D e fe n d a n ts have now moved for summary judgment. Defendants deny they engaged in any c o n d u c t that resulted in Wilson's constitutional rights being violated. First, Defendants contend W ils o n was not denied adequate medical care. They maintain they are under no constitutional o b liga tio n to pay for elective surgeries. Second, Defendants maintain the Plaintiff cannot establish th e existence of any custom or policy which resulted in the violation of his constitutional rights.

-5-

T h u s , they maintain there is no basis on which Clark County can be held liable. Wilson argues that the Defendants have an obligation to provide him with adequate medical c a re . He maintains the cataract is affecting his daily living and causing him to be subject to the risk o f falling when getting up to and down from his bunk at night. He maintains the Defendants e x h i b i t e d deliberate indifference when they denied his request for cataract surgery and denied his re q u e s ts to return to the eye doctor for re-examination. 4 . Discussion " [ W ]h e n the State takes a person into its custody and holds him there against his will, the C o n s titu tio n imposes upon it a corresponding duty to assume some responsibility for his safety and ge n e r a l well-being." County of Sacramento v. Lewis, 523 U.S. 833, 118 S. Ct. 1708, 1719, 140 L. E d . 2d 1043 (1998)(citation omitted). "Deliberate indifference to an inmate's serious medical needs v i o l a te s 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 i n d iffe re n c e is the appropriate standard of culpability for all claims that detention center officials h a v e denied inmates, whether in pretrial or convicted status, adequate medical care. See Butler v. F l e tc h e r , 465 F.3d 340, 344 (8th Cir. 2006). " In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently h a r m fu l to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 9 7 , 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). The deliberate indifference standard includes "both a n objective and a subjective component: 'The [plaintiff] must demonstrate (1) that [he] suffered [ fro m ] objectively serious medical needs and (2) that the prison officials actually knew of but d e l i b e r a t e l y disregarded those needs.'" Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir.

2 0 0 0 ) (q u o tin g Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)). "For a claim of

-6-

d e l ib e r a te indifference, the prisoner must show more than negligence, more even than gross n e g l ig e n c e , and mere disagreement with treatment decisions does not rise to the level of a c o n s t i tu t io n a l violation." Popoalii v. Correctional Medical Services, 512 F.3d 488, 498 (8th Cir. 2 0 0 8 ). "Because society does not expect that prisoners will have unqualified access to health care, d e l ib e r a te indifference to medical needs amounts to an Eighth Amendment violation only if those n e e d s are 'serious.'" Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1 9 9 2 ). "A medical need is serious if it is obvious to the layperson or supported by medical e v i d e n c e . " Moore v. Jackson, 123 F.3d 1082, 1086 (8th Cir. 1997) (per curiam) (internal quotation a n d citation omitted). The Defendants' summary judgment motion is premised on the single fact that since the c a t a r a c t surgery could be termed "elective" they had no "legal" obligation to provide the surgery. H ow ever, the question is not whether a given procedure is elective but whether the detainee has a seriou s medical need. See Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1989)(The fact that a s u r ge ry is elective "does not abrogate the prison's duty, or power, to promptly provide necessary m ed ical treatment for prisoners."); Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986)(classification of hern ia as elective surgery did not insulate county from Eighth Amendment duty to provide proper m edical care). As noted above, Defendants have an obligation to provide adequate medical care. Here, Wilson's physician, Dr. Teed recommended that the surgery be performed. Sheriff T u r n e r indicates Dr. Teed was informed that "we would get a second opinion." Defts' Ex. D at ¶ 6. H o w e v er, it appears the second opinion was never obtained. Instead, Wilson was informed that he w o u ld have to pay for the "elective" surgery himself. Wilson was then transported to Dr. Teed's o ffic e for surgery apparently without any payment arrangements having been made. Dr. Teed then

-7-

re fu s e d to perform the surgery until payment arrangements were made.

Wilson has been

c o n tin u o u s ly incarcerated at the CCDC since December 8, 2007. Resp. at ¶ 1. He first submitted a medical request complaining of problems seeing out of his right eye on February 20, 2008. Id. at ¶ 6(A). Dr. Teed recommended the cataract surgery on March 6, 2008. Id. at ¶ 7(A). More than a ye a r has past since that recommendation was first made. Wilson maintains his vision has

d e te rio ra te d in his right eye since then. Id. This deterioration has affected his activities of daily l iv i n g . Moreover, he states since he filed this lawsuit on June 3, 2008, Wilson alleges Defendants h a v e denied his requests to even be taken to an eye doctor because of the pending lawsuit. Resp. at ¶ 12 & ¶ 19. Under the circumstances of this case, there is a question of fact as to whether the failure of th e Defendants to make arrangements for the surgery constitutes deliberate indifference. See e.g., H a t h a w a y v. Coughlin, 37 F.3d 63, 64-69 (2d Cir. 1994)(upholding a jury verdict on Eighth A m e n d m e n t claim in favor of plaintiff where defendants delayed plaintiff's elective hip surgery for t w o years); Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)(holding eleven-day delay in providing e l e c t i v e surgery not deliberately indifferent); Johnson v. Bowers, 884 F.2d 1053, 1056 (8th Cir. 1 9 8 9 ) (l o n g delay, nine years, in scheduling elective surgery to repair nerve damage in inmate's arm t h a t results in restriction in use of arm constitutes deliberate indifference); Boring v. Kozakiewicz, 8 3 3 F.2d 468, 473 (3d Cir. 1987)(holding brevity of incarceration is a permissible factor in decision t o provide elective surgery); Delker v. Maass, 843 F. Supp. 1390 (D. Ore. 1994)(deliberate i n d i ffe r e n c e evidenced by two year delay in surgery for non-incarcerated inguinal hernia); Green v. M a n n in g , 692 F. Supp. 1283 (S.D. Ala. 1987)(no deprivation of constitutional rights where inmate's e l e c t i v e knee surgery was delayed); West v. Keve, 541 F. Supp. 534, 540 (D. Del. 1982)(seventeenm o n t h delay between recommendation and performance of elective surgery constitutes deliberate

-8-

i n d i ff e r e n c e ) . I also believe there is genuine issue of fact as to whether the policy of Clark County is to deny d e ta in e e s any elective surgery. See e.g., Williams v. Prison Health Services, Inc., 167 Fed. Appx. 5 5 5 , 558-559, 2006 WL 133241, 2 (7th Cir. 2006)(Since Williams alleged that PHS has a "corporate p o lic y that any umbilical hernia is classified as 'elective' surgery, which is routinely denied to prison in m a te s ' he stated a claim against the company."). In this case, there is no evidence that Wilson's n e e d for cataract surgery was evaluated on its own merits. See e.g., Delker v. Maass, 843 F. Supp. 1 3 9 0 , 1400 (D. Or. 1994)("Where surgery is elective, prison officials may properly consider the costs a n d benefits of the treatment in determining whether to authorize that surgery, but the words 'elective s u r ge ry' are not a talisman insulating prison officials from the reach of the Eighth Amendment. Each c a s e must be evaluated on its own merits."). 5. Conclusion F o r the reasons stated, Defendants' motion for summary judgment (Doc. 19) will be denied b y a separate order entered this same date. D A T E D this 20th day of April 2009.

/s/ Barry A. Bryant HON. BARRY A. BRYANT UNITED STATES MAGISTRATE JUDGE

-9-