Arnold v. Corizon Medical Services et al

Filing 46

MEMORANDUM AND ORDER re: 45 MOTION to Appoint Counsel filed by Plaintiff Michael L. Arnold, 32 MOTION for Summary Judgment Based on Exhaustion filed by Defendant Larry Roussin, Defendant Michael Hakala, Defendant Corizon Medical S ervices, Defendant Dana Degen, Defendant Paul Jones. IT IS HEREBY ORDERED that defendants' motion for summary judgment (#32) is GRANTED. IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (#45) and motion for summary judgment (#41) are DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 11/26/14. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

MICHAEL L. ARNOLD,
Plaintiff,
vs.
CORIZON, INC., et al.,
Defendants.

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Case No. 1:13-cv-121 SNLJ

MEMORANDUM and ORDER
Plaintiff, a prisoner at Southeast Correctional Center (“SECC”) in Charleston, Missouri,
filed this 42 U.S.C. § 1983 lawsuit alleging violations of his constitutional rights against
defendants Corizon, Inc. (now Corizon, LLC), Dr. Michael Hakala, Dana Degan, Dr. Paul Jones,
and Lawrence Roussin, R.N. (“Corizon Defendants”). Plaintiff’s complaints arise from
treatment of a kidney stone and subsequent infection that resulted in a hospital stay. Plaintiff
contends that defendants were deliberately indifferent to his serious medical need in violation of
the Eighth Amendment to the United States Constitution. Defendants have moved for summary
judgment because they contend plaintiff failed to exhaust his administrative remedies in
accordance with the Prison Litigation Reform Act of 1996 (“PLRA”).

Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a
motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
PLRA “requires immediate dismissal of all claims brought by inmates with respect to prison
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conditions . . . under 42 U.S.C. § 1983...until ‘such administrative remedies as are available are
exhausted.” Gibson v. Weber, 431 F.3d 339, 341 (8th Cir. 2005) (citing 42 U.S.C. § 1997e(a)).
The Missouri Department of Corrections (“MDOC”) has developed an administrative grievance
procedure for inmates to internally grieve complaints against MDOC and its staff; the procedure
requires that the inmate file an informal resolution request (“IRR”), an inmate grievance, and,
finally, an inmate grievance appeal. See Foulk v. Charrier, 262 F.3d 687, 694 (8th Cir. 2001);
Dashley v. Corr. Med. Serv., 345 F. Supp. 2d 1018, 1022-23 (E.D. Mo. 2004). Not only is the
inmate required to exhaust the administrative remedies available to him under PLRA, but he is
required to properly exhaust those administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93
(2006).
The events alleged in the complaint begin on January 26, 2013, when plaintiff alleges he
started to pass a kidney stone. He saw Dr. Jones for an endocrinology and cardiovascular
chronic care appointment, during which he reported he was not feeling well and was passing a
kidney stone. Plaintiff says Dr. Jones did nothing. Plaintiff then saw Nurse Dana Degen at
approximately 10:30 p.m.. Plaintiff alleges that Nurse Degen told a corrections officer that the
officer could not call a “Code 16,” so plaintiff was forced to “self-declare” and walked to
medical in extreme pain. Plaintiff contends that Nurse Degen gave him Ibuprofen and told him to
return to his cell. Plaintiff alleges that on the afternoon of January 27, 2013, a “Code 16” was
called and he was seen by medical and sent to the hospital where he was septic with low blood
pressure, a high white blood cell count, and pneumonia. Plaintiff alleges he was discharged from
the hospital on February 4, 2013. He still had not passed the kidney stone, and he had a catheter
and drain tube and a PIC line in his right arm. Plaintiff alleges he saw Dr. Hakala on February
22, 2013 for complaints of pain and requested to be returned to the hospital, but Dr. Hakala

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denied Plaintiff’s request and refused to assist him with a dirty catheter or to provide antibiotics.
Plaintiff alleges he tested positive for an infection on March 9, 2013 and was given antibiotics.
Then, he says he saw Dr. West on March 18, and Dr. West removed the kidney stone, drain tube,
and catheter, and he installed a stent between plaintiff’s bladder and left kidney. Plaintiff says
that Dr. West told him that the PIC line would have to be removed by the person who inserted it,
but, instead, Nurse Roussin removed the PIC line. Later, on March 20, plaintiff saw Dr. Hakala
for pain, but Dr. Hakala would give him nothing stronger than Tylenol, which plaintiff said was
insufficient. On March 25, plaintiff attempted to pick up a prescription, but that it was not given
to him for three days, and he suffered painful urination during that time without the medication.
Finally, plaintiff alleged that in May 2013 he was diagnosed with an infection caused by his
kidney stone. The doctor allegedly told plaintiff he had not previously been on antibiotics long
enough to kill the particular strand of bacteria. One week later, plaintiff’s urine test results were
negative for infection. However, on May 23, 2013, plaintiff went to medical after he began to
shake uncontrollably and suffered chest pains, at which time his culture was positive for
infection and he was started on IV antibiotics. Plaintiff alleges there were some issues with the
IV working, but on May 30, Nurse Roussin put in an IV that worked and tested a new sample of
plaintiff’s urine showing no problems. The IV was removed, and plaintiff was returned to his
housing unit.
Plaintiff claims that the defendants’ course of conduct violated his constitutional rights.
However, plaintiff’s complaint ultimately fails because he failed to exhaust his administrative
remedies prior to initiating his lawsuit, as required by 42 U.S.C. § 1997e(a).
Under the plain language of section 1997e(a), an inmate must exhaust
administrative remedies before filing suit in federal court. Thus, in considering
motions to dismiss for failure to exhaust under section 1997e(a), the district court
must look to the time of filing, not the time the district court is rendering its
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decision, to determine if exhaustion has occurred. If exhaustion was not
completed at the time of filing, dismissal is mandatory.
Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003). The record --- which plaintiff here does not
dispute --- shows that plaintiff filed just one grievance at SECC. Plaintiff filed an IRR on March
21, 2013 complaining that he had received inadequate medical treatment from Dana Nix (now
Degen) on January 26, 2013. Pursuant to the MDOC grievance procedure, any offender who
wishes to file an IRR must do so within 15 days from the alleged incident. Plaintiff’s IRR was
denied because it was not timely filed. Plaintiff admits this point in his complaint, but he states
that his failure to file within 15 days should be excused because he was in the hospital “where
grievance was not available.” (#5 at 3.) Plaintiff’s own complaint, however belies his argument
--- plaintiff alleges he was hospitalized January 27 and discharged February 4. The 15-day
deadline to file an IRR for events occurring January 26 would have been February 10 --- plaintiff
had been back at SECC for six days by then, thus he was not in the hospital for the duration of
the 15-day filing period. Plaintiff offers no explanation for his failure to file the IRR within the
15-day period.1 In addition, plaintiff was required to exhaust the prison’s grievance system
before filing his lawsuit. See Jones v. Bock, 549 U.S. 199, 204 (2007). Plaintiff did not do so
here, as his lawsuit was filed August 23, 2013, while his grievance appeal was still pending.
Furthermore, plaintiff failed to file any IRR against any of the other defendants in this case --rather, his one and only IRR focuses solely on the January 26 events and the actions of Nurse
Nix (plaintiff mentions Dr. Jones but does not complain about Dr. Jones’s care).
Defendants have established that there is no disputed issue of material fact, and that they
are entitled to dismissal of plainitff’s claims in accordance with the PLRA’s exhaustion

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The Court notes that the March 21 IRR included an addendum (which was not attached to the complaint) which
explains that “the delay for this IRR report was because of possible retaliation while I was in TCU.” The plaintiff
does not explain that statement at all in his briefing or in the complaint.

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requirement. The defendant’s motion will therefore be granted. Plaintiff’s motion for summary
judgment will be denied. Plaintiff’s motion for appointment of an attorney will also be denied as
moot.
Accordingly,
IT IS HEREBY ORDERED that defendants’ motion for summary judgment (#32) is
GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (#45)
and motion for summary judgment (#41) are DENIED.

Dated this 26th day of November, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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