Watkins v. Burris et al
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on March 25, 2013. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
EDDIE S. WATKINS
Civil No. 6:10-cv-06092
JAILER LINDA ROWE, Hot Spring
County Detention Center (HSCDC); and D.
ELKIN, HSCDC, Nurse Practitioner
This is a civil rights case filed pursuant to the terms of 42 U.S.C. § 1983. Plaintiff, Eddie
Watkins, proceeds pro se and in forma pauperis. The case is before me on the consent of the parties
Watkins is currently incarcerated in the Arkansas Department of Correction (ADC), Ouachita
River Correctional Unit in Malvern, Arkansas. The events that are the subject of this case occurred
while he was incarcerated at the Hot Spring County Detention Center (HSCDC). On motion for
summary judgment the claims against certain Defendants were dismissed. This left for later
resolution Watkins’ claim that Jailer Rowe and Nurse Practitioner Elkin, in their individual
capacities, were deliberately indifferent to Watkins’ serious medical needs.
A bench trial was held on December 11, 2012. The record was left open following the
hearing for the admission of additional medical documentation. The Court has received Nurse
Practitioner Elkin’s records of his visits with Watkins. These documents have been labeled Court’s
Exhibit 2. The records of the Hot Spring County Medical Center have been labeled Court’s Exhibit
3. Watkins’ ADC records have also been received and labeled Court’s Exhibit 4.
At the trial, the Court heard the testimony of the following witnesses: (1) the Plaintiff, Eddie
Watkins; (2) Dr. Carlos Rivas (via telephone); (3) Sheriff Ryan Burris; (4) Richard Tollerson; (5)
Marcus Hawkins; (6) Rodney Compton; (7) Linda Rowe; and (8) Darrell Elkin. For purposes of
discussion, the witness testimony will be summarized.
The period of incarceration at issue in this case began on August 24, 2010 and ended on
January 18, 2011, when Watkins was transferred to the ADC.
In addition to the incarceration at issue in this case, Watkins testified he had been
incarcerated in the HSCDC on a number of occasions. In January 2010, Watkins maintains he was
booked and because of his medical problems ordered released the same day by the Sheriff. He
testified that Rowe was aware of this situation because she was the one who released him.
In August of 2010, Watkins testified that he was on seizure, high blood pressure, diabetes,
and pain medication. There was a family history of seizure disorders and diabetes. Watkins stated
that when he informed Linda Rowe about his medical problems she “yelled” the medical conditions
were pre-existing. Additionally, the HSCDC’s inmate insurance information form provides that all
medical bills from a pre-existing medical condition are the responsibility of the inmate or his
insurance carrier. Plaintiff’s Exhibit (hereinafter Plff’s Ex.) W. As he had no insurance, Watkins
was listed as the responsible person. Id. With no insurance, Watkins testified that there were a “lot”
of times when he was without medication. I
With respect to Jailer Linda Rowe, Watkins testified that she just did not want the County
to pay for his medication. This is why he believed that she did not look at his old jail files.
Additionally, he points out that Rowe was the one who maintained she called a number of places to
verify his medication.
Watkins testified that in August of 2010 and January of 2011 family members delivered
medication to the jail. However, Watkins reported that he had never received the medication.
As further proof that Rowe was aware of his medical conditions, Watkins points to a letter
Rowe wrote to the ADC Medical Department. Plff’s Ex. X-1. In it, Rowe stated that “Dr. Elkin has
issued a request for immediate transport due to medical.” Id. Rowe indicated she had received a call
from “Joyce in intake stating to send him on 01/18/11.” Id.
On August 27, 2010, a list of medications from September of 2009 was provided by the
Randall Williams Unit of the ADC. Plff’s Ex. C-2 & R. Rowe wrote that the list would be provided
to the doctor who would be at the detention center on August 30, 2010. Plff’s Ex. C-2.
Plaintiff’s Exhibit A is a medication list dated November 7, 2009. The list includes the
following: Enalapril, a high blood pressure medication; Glyburide, a diabetes medication; Dilantin,
a seizure medication; Tegretol, a seizure medication; Beclofen, used to decrease muscle spasms and
to relieve pain; and a multi-vitamin. Plaintiff’s Exhibit B at page three lists the medications Watkins
was on in January of 2007. These records also indicate that Watkins had epilepsy, hypertension,
back pain, and diabetes. Plff’s Ex. B at pg. 2.
Watkins indicates he did not fill these medications at that time because when he was released
from the ADC he was given “gate medication” of six months. He testified he still had a supply of
the medication but had taken the last of it the day he was arrested and booked into the HSCDC.
From January to July of 2010, Watkins maintained that he was taking old medication that his Mother
had found. This medication lasted until he was booked into the HSCDC. Watkins believed that the
last written prescription he had was in January of 2010. While at the ADC, Watkins states he was
put on seizure medication.
Watkins stated that there were periods of time while he was in the “free world” that he was
without medication because he did not have the money to pay for them. When he did have
medication, he tried to stretch it out by not taking it every day. While he had many seizures, Watkins
testified that he did not have any from September of 2009 until September of 2010. Watkins stated
that he did not take care of himself while in the free world.
While he was in the HSCDC, Watkins testified that his blood sugar level was never tested
and he ate a “regular meal.” Occasionally he would be provided with a snack in the evening. He
testified that he could pretty much tell when his blood sugar level was out of control.
Watkins maintains the Defendants could have easily checked the records from his prior
incarcerations to determine what medications he was on or simply taken him to be evaluated. With
respect to his family bringing his medication, Watkins testified that his Mother did not ordinarily go
into his room and she could not locate the medications. Watkins asserts that he even said he would
pay for the medication. Watkins reported that he had been on medications for fifteen or twenty
Watkins testified he made repeated efforts to obtain his medications. The day he was booked
in, Watkins filed a grievance stating he needed seizure, blood pressure, diabetes, and pain medication
for his back. Plff’s Ex. C-1. Other grievances were submitted on August 28th, August 29th,
September 6th, September 11th, October 7th, October 8th, and November 1st in which he asserted
that he was not being provided his medication. Plff’s Ex. C-2 to C-10. On at least one occasion he
informed them that he was having seizures and coughing up blood. Id. at C-7. In all, Watkins
estimated that he had suffered twenty mild seizures. As a result of falling during one seizure, he
testified that he had scarring on his left upper lip, his mid-upper lip, a scar on his forehead, and a
permanent knot on his forehead as a result of the seizures. Plff’s Ex. Q-1.1 The day he fell, Watkins
testified he had not been feeling well and doesn’t remember much about the fall. He said he was
standing up talking and the next he knew he was on the floor.
Watkins points out that the jail medication ledgers for him do not start until October 19th.
Plff’s Ex. T-2 to T-10. Even then, there is no indication he was given any medication other than
Ibuprofen until November 1st when Watkins also began receiving methylprednisolone, a
corticosteroid. Id. None of the medication logs indicate Watkins received any medications for
epilepsy, diabetes, or high blood pressure. Id.
Watkins testified that he saw Elkin five or six times during his incarceration at the HSCDC.
Watkins asserts that he told Elkin about his medical conditions and his need for medication.
Watkins indicated that he only saw Elkin for very brief periods of time. Watkins maintains that
neither his blood sugar level or his blood pressure were ever checked. He testified that each time
he saw Elkin he asked about the medication.
Additionally, Watkins pointed out that he submitted a number of grievances. The grievances
were given to trustees who took them to Rowe. Watkins testified that the inmates are not provided
with copies of the grievances.
As early as August 28th, Watkins was threatening to file a lawsuit. Defts’ Ex. 3. Watkins
testified he made the threat in hopes that someone would pay attention. Watkins had sued the
HSCDC on two other occasions; one case was “thrown” out; and he settled the other. He filed this
lawsuit on December 8, 2010, and was transferred to the ADC on January 18, 2011.
Watkins maintains that he sent the original color photographs to the Clerk’s Office, Hot Springs Division. The photographs can not
Dr. Carlos Rivas
Dr. Rivas testified he had treated Watkins in the past but could not recall if he prescribed
Dilantin and Tegretol. In January of 2007, he ordered refills of certain medication when Watkins
presented with a history of epilepsy and diabetes. On January 25, 2007, Dr. Rivas’ assessment of
Watkins was that he had epilepsy, diabetes, and high blood pressure. Plff’s Ex. B-2. Dr. Rivas
indicated this conclusion was based on his assessment, the verbal history provided, and the
medications Watkins was taking. Dr. Rivas testified that Watkins needed medication to control these
conditions or the conditions could worsen. February 21, 2007, was the last time Dr. Rivas had
treated the Plaintiff.
According to Dr. Rivas, when medication is cut off abruptly, with a patient with a history of
epilepsy, it can cause seizures. Dr. Rivas also testified that every seizure could be life threatening.
Dr. Rivas testified that when an inmate is booked in and indicates he has a medical problem
for which he takes medication, the jail personnel can find out what medication the inmate is on and
obtain a refill. However, this can only be done if the patient signs a release.
Former Sheriff Ryan Burris
Burris testified that he had known Watkins for a number of years. Burris stated that he
recalled that Watkins had been incarcerated several times. One time, Burris testified he authorized
Watkins’ release because of his medical conditions. Burris had been told that Watkins’ medication
costs were about $1,000 a month.
Burris testified that they had a verbal policy regarding pre-existing conditions. If there was
a pre-existing condition, it was up to the inmate or his family to obtain the necessary medication.
Rowe’s responses to Watkins’ requests followed this procedure. Burris testified it was up to the
inmate to obtain his medication.
If an inmate had a heart attack or seizure, Burris testified Pro-Med was called to check the
inmate. Burris recalled they had an inmate escape after faking a seizure.
At that time, Burris stated his medical budget was $10,000. Burris knew that some of the
medication Watkins was taking was seizure medication. This was part of the reason Burris released
Watkins on a signature bond on one occasion. When he was arrested in August of 2010, there was
a mandatory appearance so Watkins could not be released. When Burris found out that the seizure
disorder was pre-existing, he testified it was up to Watkins or his family to pay for the medication.
Burris could not recall what they did if an inmate couldn’t afford to pay for his medication. Burris
testified that if an inmate became sick or injured the jail paid for his medical treatment.
Burris indicated they started using the inmate medical insurance form because it made the
inmate acknowledge his responsibility and seemed to take the liability away from the county. Plff’s
Ex. W. They were looking for ways to get out of having to pay for pre-existing conditions. Burris
testified that incoming inmates may not have been on their prescriptions medication for months but
as soon as they became incarcerated they wanted their medication.
Chief Deputy Richard Tolleson
Tolleson testified he had been employed at the HSCDC since May of 2009. He was a jailer
at all times relevant to this case. When asked about jail policy with regard to pre-existing conditions,
he testified that the policy had always been that the facility would not pay for a pre-existing
condition. Tolleson did not believe that the detention center handbook contained anything on the
distribution of medication. Plff’s Ex. Y. He indicated that the handbook is being updated and
revised. In March of 2010, Tolleson testified they moved to a new fifty man facility.
Tolleson testified that he knew Watkins and could recall the incarceration at issue in this
case. Tolleson could not recall finding any of Watkins’ seizure medication “in back.”
Tolleson remembered Watkins being released in January of 2010 because of his medical
conditions. Tolleson testified that he advised Sheriff Burris that Watkins’ medication would
probably cost $1000. Tolleson also advised Burris that Watkins’ medication was for pre-existing
conditions. As there was no bond on the charge, Tolleson testified that the Sheriff could not release
Watkins on an own recognizance bond.
In August of 2010, there was a bond on the charge. The judge was asked to reconsider the
bond and release Watkins but he refused. During this incarceration, Tolleson testified that Watkins
could not produce any records showing he was still on the medication.
With respect to pre-existing conditions, Tolleson stated the County had to pay for necessary
medication but hoped they could get reimbursed from the inmate. He stated the County could not
refuse inmates necessary medication.
Tolleson recalled Watkins’ Mother bringing in a “wad” of medication bottles. Tolleson
testified he may have called Young’s Pharmacy and asked them about the medication.
Marcus L. Hawkins
Hawkins was incarcerated at the HSCDC in August of 2010. He was housed with Watkins
the entire time Watkins was in the HSCDC.
Hawkins testified that he witnessed Watkins have several seizures. Hawkins also recalled
Watkins falling a couple of times. One of the falls occurred as Watkins was attempting to get down
from his bunk. Watkins passed out and was laying on the floor shaking. There was blood from his
head and lip. The episode lasted five minutes or so. Hawkins offered Watkins the bottom bunk.
Hawkins testified he saw Watkins trying to get his medication and saying that he was having
seizures. Watkins talked to Rowe and tried to get sent to the hospital.
Hawkins testified that Watkins was not provided his medication. Hawkins stated there was
another inmate who had seizures and Rowe said the inmate was faking it part of the time. Hawkins
testified that he had a seizure while at the HSCDC and was taken to the hospital. He indicated he
no longer took Dilantin because he had not been experiencing seizures.
According to Hawkins, the intercom did not work. Hawkins could not recall seeing the
guards making rounds.
With respect to grievances, Hawkins testified that you completed a
grievance form, gave it to a 3092 inmate and they would give it to an officer. Copies were received
when the response was given.
Compton was incarcerated at the HSCDC with Watkins the entire time he was in the facility.
He witnessed Watkins have three or four seizures. Compton recalled one occasion when he saw
Watkins shaking and he stumbled and hit his head. Compton believed Watkins was either sitting
or standing when he had this seizure. Watkins was bleeding from the head and mouth. Compton
estimated that the seizure lasted for thirty-five to forty minutes.
Compton could not recall when this seizure happened. Compton reported the seizure to a
guard and he acted like he didn’t believe Watkins had a seizure. Compton testified that the jailers
did not make routine checks.
While the booking sheet for January 17, 2010, indicates Rowe was the booking officer, she
testified she was not and did not work that shift. Plff’s Ex. I-E. According to Rowe, this particular
booking computer only took her name and that of one other officer. As a result, the actual booking
officer used her name to access the booking procedure. Within about thirty minutes of intake, she
Act 309 of 1983 as amended is an inmate program operated by the Arkansas Department of Correction. The Director of the
Department of Correction signs cooperative agreements with county and city officials for the purpose of providing additional space for the care
and custody of State inmates on a temporary basis in detention facilities operated by counties and cities. The inmates may be used to work in
and around governmental property/projects while under supervision of the sheriff or chief of police or designee.
stated the Sheriff and Chief Deputy figured out what Watkins’ medications would cost.
When he was booked in on August 24th, Rowe testified Watkins reported having various
medical conditions. However, she stated she never knew he had seizures and had “no clue” that he
was on seizure medication. According to Rowe, usually a person who has seizures carries
medication with them. When medication is distributed, Rowe indicated she sits in the tower and can
see the whole jail.
According to Rowe, grievances are delivered to her by either the 309's or by officers. She
testified that she signs and dates every grievance she receives. A copy of the grievance goes in the
inmate file and a copy is returned to the inmate.
Rowe testified she signed a medical request dated November 1, 2010, in which Watkins
asked about sinus medication and his seizure medication that was prescribed by the doctor “last
Friday.3” Plff’s Ex. C-10. Her response was “[g]ot them.” Id. Rowe testified that this meant the
prescriptions had been obtained and taken to the control tower. However, Rowe stated she did not
know what medications were obtained.
In general, when a prescription is written, a deputy sends it to the pharmacy and picks it up
later in the day. The medication comes in sealed sacks and are taken to the tower.
With respect to Watkins’ medications, Rowe testified she contacted every medical care
provider mentioned by Watkins but no one had any record that wasn’t over a year old. She did
contact the Hot Spring County Medical Center but she was never provided with any information
about his medications. Watkins did have a statement from the hospital covering the dates of 11-82009 to 11-13-09. Rowe testified she called the emergency room and was told there was no record
of treatment for Watkins. Elkin contacted the medical center itself.
The date of the doctor visit was October 29, 2010.
She stated that she even contacted Watkins’ Mother. Rowe indicated the Mother brought in
empty bottles and old prescriptions. Rowe testified she simply could not verify that Watkins was
currently taking the medications. Further, she stated that she “broke” the rules by trying to help him.
Since the conditions were pre-existing, Rowe testified it was the responsibility of Watkins or his
family to obtain the medication.
She was aware that on prior incarcerations he was taking several medications. While she
could have looked in his jail files to see what medications he was provided when incarcerated on
prior occasions, she did not do so.
Rowe acknowledged that she had received the list of medications from the ADC. Plff’s Ex.
R. She testified this provided verification that Watkins had been on the medications he was
requesting. With respect to the list of medications from Dr. Purifoy, Plff’s Ex. A, Rowe testified she
had never seen this document until after the lawsuit was filed.
Rowe testified that she had never seen Watkins have a seizure and that she needed a medical
reason before she would send an inmate to the emergency room. With respect to the grievance dated
September 11, 2010, Plff’s Ex. 7, that mentions seizures, she testified she had never seen this
grievance until the week before the hearing when she was shown it by her attorney.
Rowe testified that Elkin provided medical care to the inmates. Inmates requested medical
treatment by checking medical on a form that could be used to make general requests, medical
requests, and grievances. See e.g, Plff’s Ex. C-1. If it was a medical request, it was placed in a box
for Elkin. He came in at least once a week. If the medical request was for something simple like
a headache, detention personnel could handle it. If the request involved something more serious, it
went to Elkin. Rowe testified that jail personnel cannot make medical decisions. Rowe believed
that Watkins was seen nearly every time Elkin came to the jail.
Elkin testified he is a Nurse Practitioner who contracted with the jail to be a medical care
provider. A Nurse Practitioner has the ability to write prescriptions but must be supervised by a
During Watkins’ incarceration, Elkin indicated he saw Watkins about sixteen times. Watkins
made Elkin aware that he had seizures and needed seizure medication. If Elkin could have verified
that there was a current prescription for these medications, Elkin testified he would have obtained
the medication for Watkins. Elkin stated that he was not involved in medication distribution and
does not have anything to do with completing the inmate medication ledgers.
On August 24th, Elkin testified that Watkins gave him a list of medications. Elkin wrote
them down. When Watkins was asked where he was having his medication filled, Elkin states
Watkins eventually listed the following pharmacies: Wal-Mart Pharmacy; USA; Walgreens; and
Freds. Elkin testified he checked with each of the listed pharmacies and none had a current record
for the medications. With respect to the medical records of Rivas and Purifoy, Elkin testified that
neither had ordered blood tests to monitor the level of the seizure medications. Elkin indicated he
called the labs to see if blood had been drawn every three months on Watkins to check the level of
Dilantin or Tegretol. Elkin did not call the ADC and conceded that he did not know what tests were
With respect to the Malvern Hospital, Elkin testified he checked with the psychiatric unit and
Watkins had not been there. Elkin stated that Watkins had been to the emergency room. See e.g.,
Plff’s Ex. F.
With respect to Purifoy, Elkin states he could have called him but the prescriptions given
would have only been for a couple of weeks and then Watkins was supposed to follow-up with his
primary care physician. Plff’s Ex. A. Elkin conceded that there was a prescription out there.
Elkin testified that he had received the list of medications from the ADC. However, the
records were nine months old. If Watkins had gone without the seizure medication for six months,
it would not have shown up in a blood test. According to Elkin, he never ordered seizure medication
for Watkins because he could not verify that Watkins had a current prescription for the medications.
In Elkin’s opinion, it would be unethical and harmful to give Watkins the medication if he had been
weaned off the medication or had stopped taking it.
On September 9th, Elkin took Watkins’ blood pressure and tested his blood sugar level.
Defts’ Ex. 7. Both were good. Id.
Elkin testified that he checked Watkins blood sugar level eight or nine times during the
relevant time frame. Elkin testified he did not document these tests because the readings were within
the normal range. If the tests had shown either that Watkins had diabetes or was hypoglycemic,
Elkin testified that he would have treated Watkins.
Elkin testified that seizures could constitution a serious medical condition. He was unaware
of the fact that Watkins had been in the jail before. Elkin stated he did not know Watkins had
previously filed lawsuit against individuals employed by the HSCDC. Elkin stated he did not start
contracting with the HSCDC until the new jail opened.
Elkin indicated that the number one side effect of not taking seizure medication is a seizure.
Seizures can be life threatening. Additionally, Elkin testified that going off the medication could
have serious side effects and could even be life threatening.
Elkin testified he was aware of the jail’s policy of not filling medication for pre-existing
conditions. However, he had the authority to override the policy. If an inmate needs his medication,
Elkin would inform the Sheriff and the medication would be obtained.
According to Elkin, Watkins never reported that he was seizures in the jail. Elkin testified
that he did not know that Watkins even had a seizure discover. However, if it had been reported to
him that Watkins was having seizures in the jail, Elkin testified he would have sent Watkins to the
Watkins had chronic conjunctivitis in both eyes and Elkin prescribed various medications
for this condition as well as medications for sinusitis. These prescriptions were paid for by the jail.
Elkin asserts that Watkins did not request seizure medication during any of their visits. With respect
to the jail forms, Elkin testified those “strictly” marked medication were given to him. Elkin wrote
on the request what action he was going to take.
As mentioned above, the Court received the records kept by Elkin in connection with his
visits with Watkins. See Court Ex. 2. These records include: (1) a medical request from Watkins
dated August 24th in which he states he was a number of medical conditions including diabetes,
seizures and high blood pressure; (2) a form dated September 3rd which states “await meds from
Malvern hospital;” (3) a form dated September 7th that contains Watkins blood pressure reading and
his blood sugar level: (4) a medical request from Watkins dated September 11th in which he states
he has not yet received his medication--Ibuprofen was prescribed; (5) a request dated September 18th
on which Watkins stated he had a bad cold and needed his medication for pain, seizures, and high
blood pressure--response “refused to be seen;” (6) a form dated October 27th regarding sinus
problems and stating he had not received his other medications that the doctor ordered; (7) a form
dated November 5th stating he still had a bad cold; (8) a request dated November 14th to see the
doctor about a bad head cold and was having problems with his eyes; (9) a request dated November
20th complaining of a bad head cold and an infection in his eyes; (10) a request dated November
28th about the eye infection and the medication not working; (11) a request dated December 9th
regarding Watkins’ head cold and two types of medication that did not work; (12) a request dated
December 16th for a refill of eye drops; (13) a request dated December 22nd complaining of the
problems with his eyes and lower back pain; (14) a request dated January 5th about his eye
infection; (15) a request dated January 13th asking to go to the emergency room because his vision
was blurry and his eyes swollen--mentions diabetes and how it could affect his eyes; and (16) a
health services request form dated January 14th asking for Watkins to be transferred to the ADC due
to chronic conjunctivitis. Id.
The ADC records indicate that during a September 2007 incarceration Watkins was noted
to have hypertension, diabetes, and a seizure disorder. Court’s Exhibit 4.4 He was prescribed
medication for each of these conditions and put on a therapeutic diet. Id. Records from 2009, 201113, indicate Watkins was prescribed medication for each of these conditions. Id.
The Eighth Circuit analyzes both a pretrial detainee's and a convicted 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 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)).
"For a claim of deliberate indifference, the prisoner must show more than negligence, more
These records are not numbered. However, the lower right hand corner of many of the records contains a date.
even that 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 omitted).
The evidence established that Watkins had a history of having a seizure disorder, high blood
pressure, and diabetes. It was undisputed that Watkins had been on seizure medication while
incarcerated in the ADC and while hospitalized in November of 2009. Additionally, records from
the Federal Correctional Institute in Forrest City, Arkansas, state that Watkins was unable to work
due to “severe Epilepsy and Seizure disorder. Patient also suffers from severe lower back spasms,
HTN, Diabetes, R. knee arthritis.” Plff’s Ex. D. Dr. Prince, the examining physician noted that
Watkins had been under his care since 2001. Id. The medication he was on is the same medication
he requested while incarcerated at the HSCDC.
"[T]he failure to treat a medical condition does not constitute punishment within the meaning
of the Eighth Amendment unless prison officials knew that the condition created an 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 v. Carnahan, 132 F.3d 1234 (8th Cir. 1997), the Eighth Circuit said:
As 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 care
or intentionally interfere with prescribed treatment, or by prison doctors who fail to
respond to prisoner's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 103,
97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976). Mere negligence or medical
malpractice, however, are insufficient to rise to a constitutional violation. Id. at 106,
97 S. Ct. at 292.
Dulany, 132 F.3d at 1239. See also Tlamka v. Serrell, 244 F.3d 628, 633 (8th Cir. 2001).
Defendants relied on the fact that Watkins’ conditions were pre-existing. No effort was made
to medically evaluate him. Instead, Defendants efforts were focused on requiring Watkins to prove
that he had current prescriptions for the medications. When Watkins was unable to establish that,
he was denied his medications. This is true despite the fact that available medical records indicated
he had the claimed medical conditions and had been on medications for the same at various times.
The clearly established law is that:
If a prisoner is able to pay for medical care, requiring such payment is not deliberate
indifference to serious medical needs. Helling v. McKinney, 509 U.S. 25, 32, 113
S.Ct. 2475, 2480 (1973). Instead, such a requirement simply represents an insistence
that the prisoner bear a personal expense that he or she can meet and would be
required to meet in the outside world. See, e.g., Shapley v. Nevada Bd. of State
Prison Commissioners, 766 F.2d 404, 408 (9th Cir.1985) (nothing per se
unconstitutional about charging an inmate $3 for every medical visit; such a charge,
by itself, did not constitute deliberate indifference under Estelle ). However, a prison
official who withholds necessary medical care, for want of payment, from an inmate
who could not pay would violate the inmate's constitutional rights if the inmate's
medical needs were serious, because refusal to act pending the impossible is no
different from refusing without qualification.
Moralis v. Flageole 2007 WL 2893652, 18 (C.D. Ill. 2007).
Obviously, a decision made on the basis of whether a condition pre-existed the Plaintiff’s
incarceration is not based on medical judgment. Cf., Rand v. Simonds, 422 F. Supp. 2d 318 (D.N.H.
2006)(question of fact as to whether supervisors acted with the requisite degree of deliberate
indifference when they relied on the fact that the plaintiff’s injury was a pre-existing condition and
as a result facility would not provide treatment unless plaintiff would pay for it–however, summary
judgment granted supervisors because the injury did not amount to a serious medical need as a matter
In this case, Elkin testified that he kept no other records except a few handwritten notations
on the medical requests. Although Elkin testified he saw Watkins sixteen times, his notations do not
indicate whether he personally saw Watkins on each occasion or merely made notations in response
to the medical request. Despite Elkin’s testimony that he checked Watkins’ blood pressure and
blood sugar level on numerous occasions, his records do not reflect that. Instead, Elkin’s records
contain only one blood sugar level on September 7th and only two blood pressure readings,
September 7th and October 27th.
Although both Elkin and Rowe testified that they attempted to verify that Watkins had been
on the medications immediately prior to his incarceration, no efforts were made to determine if
Watkins had a seizure disorder, high blood pressure, or diabetes. Instead, they focused their efforts
entirely on whether he had a current prescription. The records clearly establish that Watkins had
been diagnosed with these serious, and potential life threatening, medical conditions. I believe their
failure amounts to deliberate indifference to Watkins serious medical needs.
I turn to the issue of what damages should be awarded. Compensatory damages under § 1983
are governed by general tort-law compensation theory. See Carey v. Piphus, 435 U.S. 247, 255
(1978). In Carey, the Supreme Court noted that damages are available under § 1983 for actions
“found . . . to have been violative of . . . constitutional rights and to have caused compensable
injury.” Id. (internal quotation marks and citations omitted). The law generally provides that
damages may be awarded for injuries such as mental anguish and suffering, personal humiliation,
and monetary losses.
Memphis Community School Dist. v. Stachura, 477 U.S. 299, 307
(1986)(citations omitted). However, damages may not be awarded for the abstract or subjective
value of the constitutional right at issue. See Stachura, 477 U.S. at 308; Carey, 435 U.S. at 248.
In this case, Watkins asks for damages for seizures he suffered as a result of not receiving
his medications and his physical pain and mental anguish he suffered because he did not have his
medication while in the HSCDC. These types of damages are not subject to accurate measurement.
Hendrickson v. Cooper, 589 F.3d 887, 892 (7th Cir. 2009). The award of damages in cases in which
is has been found that defendants exhibited deliberate indifference to the serious medical needs of
the plaintiff vary greatly. See e.g., Coleman v. Rahija, 114 F.3d 778 (8th Cir. 1997)($1,000
compensatory damage award for two hours of pain and suffering caused by delay in taking the
plaintiff who was in labor to the hospital); Warren v. Fanning, 950 F.2d 1370, 1374 (8th Cir.
1991)(No compensatory damages awarded despite delay of a year in referring plaintiff to an outside
specialist for complaints of pain and infection of the toes of his left foot and pain in his right ankle).
We credit the testimony of Watkins, Hawkins and Compton that Watkins suffered a number
of seizures as a result of the fact he did not have his medication. He fell once causing some minor
scarring. There is no indication in the record that he suffered ill effects as a result of not having his
diabetes or high blood pressure medication. Based on the evidence in the record, I believe an award
of compensatory damages in the amount of $500 would be appropriate. Additionally, Defendants
will be required to pay the filing fee.
For the reasons stated, judgment will be entered in favor of the Plaintiff.
DATED this 25th day of March 2013.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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