Calvert v. Paniagua et al
Filing
63
OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED Plaintiffs Motion for a Preliminary Injunction, [Doc. No. 40 ], is GRANTED in part and denied in part. IT IS FURTHER ORDERED that Defendants shall, within 5 days from the date of this order, arrange for Plaintiff to receive follow-up care by a specialist in hematology and follow-up care by a specialist in neurology. Signed by District Judge Henry Edward Autrey on 5/8/18. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHEASTERN DIVISION
MATTHEW W. CALVERT,
Plaintiff,
vs.
MIGUEL PANIAGUA, M.D., et al.,
Defendants.
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) Case No: 2:17CV2 HEA
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OPINION, MEMORANDUM AND ORDER
This is a civil rights action filed by Plaintiff, pursuant to 42 U.S.C. § 1983.
The matter is before the Court on Plaintiff's Motion for Preliminary Injunction,
[Doc. No. 40]. Defendants have filed a Response in opposition to the motion,
Plaintiff has filed a Reply, Defendants have filed a Sur-Reply and Plaintiff has
filed a Sur-Response. For the reasons set forth below, the Motion is granted in part
and denied in part.
Facts and Background1
Plaintiff is currently incarcerated in the Crossroads Correctional Facility in
Camden, Missouri. Plaintiff claims he has been denied medical care in violation of
the Eighth Amendment. Plaintiff’s Amended Complaint alleges the following:
1
The recitation of facts is taken from Plaintiff’s Amended Complaint, and is set forth for the
purposes of this Motion only. It in no way relieves the parties from the necessary proof thereof
in later proceedings.
Prior to January 2011 and continuing to the present, Corizon, f/k/a/
Correctional Medical Services (“CMS”) was retained under contract with the
Missouri Department of Corrections (“MDOC”) to provide medical services to
inmates in the MDOC penitentiary system, including Plaintiff.
In 2005, the Plaintiff was diagnosed with Celiac Disease (“CD”), which is a
gluten sensitive entizopathy. CD causes a permanent intolerance to ingested
gluten.
In Hemochromatosis, a hereditary disorder, too much iron is absorbed,
resulting in the accumulation of iron in the body. Hemochromatosis is potentially
fatal but usually treatable. The gene associated with Hemochromatosis was
identified and widely published in a myriad of medical journals, including the
Journal of American Medicine (“JAMA”) prior to 2011. The standard of
community care for identifying Hemochromatosis is through specific blood tests
that measure the levels of two substances: (a) Ferritin, a protein that stores iron,
and: (b) the iron in transferrin, the protein that carries iron when it is not inside red
blood cells. If these levels are high, genetic tests are to be immediately performed
to confirm the diagnosis. A liver biopsy should also be performed to determine
whether the liver has been damaged.
CD intersects with Hemochromatosis in two ways: a. Cases have shown the
precipitation of iron overload and diagnosis of hereditary hemochromatosis after
successful treatment for CD. b. An increased frequency in mutations in the
Hemochromatosis susceptibility gene (“HFE”) - suggesting a protective role
against iron deficiency by enhancing iron absorption.
In August 2011, the Plaintiff was delivered to the custody of the MDOC, and
upon his induction he immediately disclosed to the medical staff that he had been
diagnosed with CD. Thereafter, the Corizon medical personnel at the Fulton
Reception and Diagnostic Center further diagnosed Plaintiff as anemic and
deliberately prescribed Ferrous Sulfate (iron pills) for anemia, albeit ingesting iron
pills for anemia of chronic disease is extremely harmful and likely fatal. These
contraindications and the potential fatality rate were not disclosed to the Plaintiff
when Ferrous Sulfate was proscribed by Corizon staff.
Thereafter, the Plaintiff was transferred to the Northeastern Correctional
Center (“NECC”) and the care of that site’s Corizon medical staff, to include Dr.
Archer.
On January 3, 2013, Plaintiff’s labs results indicated that his iron and ferritin
level were extremely low, and he was scheduled for a doctor appointment with the
chronic care clinic physician, Dr. Archer. When examined by Dr. Archer, he
opined that he was “very concerned” about these results and that he was going to
prescribe 200 mg iron infusions twice weekly until the Plaintiff’s iron levels
returned to normal.
Plaintiff advised Defendant Archer at that encounter that he had already
been taking Ferrous Sulfate by mouth for approximately one year, whereupon Dr.
Archer stated that because of the history of CD, Plaintiff was not able to absorb
iron in pill form and would have to take the IV infusions of iron.
Dr. Archer refused to test the Plaintiff for hemochromatosis due to the costs
of the tests, albeit there were clear indicators that Plaintiff had that disease. Dr.
Archer further refused to have Plaintiff’s serum ferritin or C-reactive protein
(“CRP”) tested to differentiate between iron deficiency anemia, where oral iron
can be beneficial and anemia of chronic disease, where oral iron should not be
given, due to the costs of the further testing.
Dr. Archer is not a Hematologist, nor did he possess any specialized training
in hematology or diseases related to that field of medicine and refused to consult
with a specialist of this nature due to the costs of the consult.
For more than a year, the Plaintiff endured increasingly painful 200 mg. iron
infusions intravenously twice weekly. Approximately six months into the first
year of these infusions, Plaintiff’s iron levels returned to normal.
During the entire year of 2013 the Plaintiff’s Ferritin level consistently rose
into toxic and deadly ranges. Although the Ferritin levels were consistently rising
into the permanently harmful ranges, Dr. Archer ordered the infusions continued.
Plaintiff inquired of Dr. Archer whether these infusions should be continued in
light of the fact his Ferritin levels had reached the range of 2,000 ng/mL or
toxicity, in that they were more than six times normal - to which he replied he was
going to continue the infusions until Plaintiff’s liver became too damaged to
endure them.
At that same meeting, Dr. Archer admitted that Plaintiff’s liver enzymes,
AST and ALT’s, were elevated into the high levels but he wasn’t too worried about
the levels. Dr. Archer secreted the fact that these levels, as well as the decreased
hemoglobin and glucose levels, indicated onset of severe organ damage by iron
overload and hemochromatosis which had become deadly.
During that period of time, Plaintiff suffered from symptoms that included
extreme and relentless fatigue, weakness of his body, weight loss, severe
abdominal pain, joint aches and joint pain, grey/bronzing of his skin, and chest
pains, which he reported to Dr. Archer repeatedly. Dr. Archer dismissed those
marked symptoms and deliberately continued the iron infusions.
Dr. Archer again refused to send Plaintiff to a hematologist, dismissing his
request for a specialist consult, although among all iron overloading disorders,
hereditary hemochromatosis and transfusion dependent iron overload in hereditary
anemia’s, are central when considering the epidemiological impact, extent of
burden and risk for iron related morbidity and mortality.
Thereafter, Dr. Archer continued the iron infusions for the remainder of
2013.
By August of 2013, Plaintiff’s iron levels were dangerously high, his ferritin
level reaching 651 ng/mL, nearly double the normal level, and his iron saturation
levels had reached 56 - well within the high range and certainly beyond the
treatment parameters originally explained at the onset of the infusions. Plaintiff’s
liver enzymes likewise were severely elevated to 80, almost twice the normal level,
a prime indicator that the liver was beginning to fail due to the iron saturation and
overload.
On September 5, 2013, Dr. Archer requested that Plaintiff be referred to a
hematologist or oncologist. This request was denied by Dr. Bredeman, the regional
Medical Director for Corizon.
Despite the fact that Plaintiff had not seen a specialist and testing for genetic
hemochromatosis had been refused, Dr. Archer deliberately continued these iron
infusions. Dr. Archer persisted with Plaintiff’s iron infusions well into 2014,
during which time his Ferritin levels, ALT’s, AST’s, and iron levels remained
elevated to from 3 to 7 times their normal levels. By early 2014, his Transferrin
Iron Binding Capacity (“TIBC”) and Unsaturated Iron Binding Capacity (“UIBC”)
remained dangerously low. Indeed, in some instances they could not even be
calculated due to the dangerously low UIBC. At this point, Plaintiff’s ferritin level
had risen to over 2,000 ng/mL.
Plaintiff claims that the ultimate result was that the Plaintiff was deliberately
subjected by Dr. Archer to deadly, toxic iron over-load, iron poisoning and iron
saturation, and Dr. Archer’s unconstitutional behavior persisted in the face of the
well-established medical indicators instructing him to cease the painful, invasive
infusions or risk the Plaintiff’s death or permanent damage to his organs.
Subsequent to Defendant Archer leaving his employment with Corizon,
Plaintiff began seeing Dr. Cabrera on a regular basis in 2014. Dr. Cabrera, whom
had been reviewing the Plaintiff’s blood work, noticed the extremely and
dangerously high ferritin levels present in the Plaintiff’s blood and Plaintiff’s
unusual orange yellow skin tinge. Dr. Cabrera asked Plaintiff if Dr. Archer was
trying to kill him by giving him these iron overloading infusions when his ferritin
levels were so high (over 2,000 ng/mL), which indicated Plaintiff’s entire body
was being poisoned by the iron infusions and couldn’t eradicate the iron from his
system in such dangerously high levels. Dr. Cabrera further opined the iron was
building up in Mr. Calvert’s vital organs as a result of Dr. Archer giving him iron
overload and could be stored excessively in Plaintiff’s liver as evidenced by the
high AST and ALT levels, the spleen and bone marrow, or worse, the brain which would be terminal. The iron infusions were halted.
Plaintiff demanded to be referred to a hematologist, a specialist in these
types of diseases, cellular and molecular poisonings. Dr. Cabrera refused to refer
Plaintiff to a hematologist, because Corizon wouldn’t approve the specialist
consult due to the costs involved. At this meeting Plaintiff then requested that Dr.
Cabrera order the genetic testing to confirm that he actually had hemochromatosis
and not some other disease, such as ACER. Again, Dr. Cabrera refused to refer
Plaintiff for genetic testing because Corizon wouldn’t approve this type of testing
because the cost of the genetic testing would be more expensive than a specialist
consult, and they would not approve these types of tests due to the costs involved.
Dr. Cabrera instead apparently had a phone call with Dr. Waheed, a hematologist,
and decided to wait and see if Calvert’s numbers would go down on their own.
While Plaintiff continued to suffer from iron toxicity, he was seen by
Defendant Dr. Proctor. Dr. Proctor assessed Plaintiff’s condition as seizure
disorder, celiac, and anemia, failing to address Plaintiff’s iron toxicity.
When Plaintiff returned to Dr. Proctor to discuss his lab results, Dr. Proctor
again did nothing for Plaintiff’s iron toxicity, but merely ordered a recheck in one
month.
When Plaintiff’s numbers remained elevated months later, another
physician, Dr. Rardin, asked that Plaintiff be referred to a hematologist/oncologist
for chelation therapy. Defendants, Drs. Babich and Kosierowski, denied the
request for a consult or for chelation, and instead authorized phlebotomies.
Plaintiff did not receive his first phlebotomy until December 2014.
Throughout the first six months of serial phlebotomies, Plaintiff endured
severe pain, fatigue, excessive loss of blood, tiredness, weakness, weight loss,
severe abdominal pain, joint aches and pains, other arthritic type pain, retained
graying and/or bronzing of his skin, and suffered from severe, excruciating chest
pains, as though he was suffering from heart attacks.
After enduring six months of six hour long, serial phlebotomies twice per
month, with very little drop in the ferritin and iron levels, and his TIBC levels
remaining dangerously low, Plaintiff demanded again to see a hematologist and a
geneticist for genetic testing to determine the origin and extent of the intentional
iron overloading, as well as the cellular damage exacted by iron overloading. The
Plaintiff further requested that he be given treatment within the standard of
community care for iron overload, that being iron chelation.
Iron chelation has been the industry standard prior to 2011. Iron chelation
removes iron from the blood with a chelation agent such as: desferrioxamine
(“Desferal”) or deferasirox (“Exjade”), both of which bind with iron in the blood
and cells to excrete the iron through the patient’s urine.
Dr. Cabrera admitted to Plaintiff that iron chelation is the industry standard
for iron overload albeit this treatment is far too expensive and Corizon would not,
under any circumstances, pay for such costly drugs. Plaintiff literally begged Dr.
Cabrera to place an order for the drug, which he finally agreed to.
Within a couple days Plaintiff was summoned back to medical and advised
by Dr. Cabrera “the iron chelation was denied by Dr. Babich” at Corizon’s
corporate office, because “‘Corizon is not going to pay for this drug because it’s
too expensive.’” He then asked Plaintiff how much more time he had to serve,
implying to get that treatment upon release.
Plaintiff again requested a consult with a hematologist and geneticist for
genetic testing to determine the extent of the damage done by the iron overload on
a cellular level, which Dr. Cabrera refused, reiterating the consult and testing being
cost prohibitive.
In excruciating pain and unable to tolerate further IV based phlebotomies
due to the exhaustion of his veins as direct blood access points, in February 2015,
Plaintiff was referred to a specialist for installation of blood let portal in his chest.
In March 2015, Plaintiff was seen by Dr. Doerhoff of Jefferson City, Missouri,
who installed a very specialized Hickman heart catheter in Plaintiff’s heart which
had barbed endings requiring installation and removal by a surgeon specializing in
these devices. This catheter was to provide Corizon staff direct access to Plaintiff’s
blood through the heart to assist in performing phlebotomies to remove the excess
iron from Mr. Calvert’s blood.
In June 2015, Plaintiff contracted an unknown infection at the catheter site,
which was oozing viscous, green copious infected material, obvious to any laymen
due to the color and putrid odor.
After being seen on a daily basis by Corizon nurses to change bandages at
the infection site for two weeks, with no improvement in the site or infection,
Plaintiff finally coaxed Dr. Cabrera to look at the infection. Dr. Cabrera ordered
the infection cultured, but would not otherwise treat the massive, visible infection.
Nor would he proscribe medications to combat the infection.
Three days later at another dressing change with the Transitional Care Unit
(“TCU”) nursing staff, the Plaintiff expressed that he was not feeling well, was
experiencing chest pains and was running a 101 degree fever, whereupon the
nurses stated that “without the culture being back there is nothing we can do for
you.”
Several hours later, Plaintiff’s fever had risen to 102.4 degrees; he began
convulsing with chills and self-declared a medical emergency. When the nurse
saw Plaintiff’s deteriorating condition she contacted the on-call doctor, Defendant
Thomas Pryor, who was at another institution.
Dr. Pryor, without examining the Plaintiff, his medical file or knowing the
type of Hickman catheter installed in the Plaintiff’s heart, ordered the TCU nurses
to remove the catheter from Plaintiff’s chest. When the nurse relayed Dr. Pryor’s
order to remove the catheter from his chest, Plaintiff vehemently protested and
stated that Dr. Doerhoff, the installing surgeon, instructed him that this device must
only be removed by a heart surgeon or other specialist due the barbed ending used
to attach the catheter to his heart.
Over Plaintiff’s vehement protests a nurse only identified as “Jeri” stated “I
have removed these types of catheters hundreds of times before.” Nurse Jeri then
proceeded to cut the stitches holding the catheter in place and started pulling
violently on the catheter, causing Plaintiff extreme pain in the heart and causing
him to scream out in pain and protest and telling her to stop.
Due to the material fact this nurse had not actually removed catheters of this
type, nor could she have possibly known what type of barbed end apparatus held
the catheter in place, it only came out about 1/4 of the way and she could not
remove it. Nurse Jeri then called another nurse into the room only identified as
“Jodi,” who next pulled on the catheter with all of her might but she, too, could not
remove the catheter, again causing Plaintiff excruciating pain and causing him to
scream out for the nurse to stop.
One of the nurses then decided to call Dr. Pryor back because they now
opined that Plaintiff should be sent to an outside hospital to have the catheter
removed. While the nurses made the phone call to the doctor, they left the Plaintiff
unattended in a TCU patient room.
Plaintiff immediately began having extreme difficulty breathing and tried to
yell out for help, at which time a correctional officer came to the room and
screamed for help.
When Nurse Jeri finally returned to the room she said “Oh S***!” and then
called for other nurses to respond to the Plaintiff’s room with a bottle of oxygen
Once the oxygen finally arrived, Nurse Jeri affixed the mask to the Plaintiff’s face,
while Plaintiff was obviously experiencing a heart attack.
Nurse Jeri then stated she couldn’t get the oxygen on because she didn’t
have a wrench - at which time someone yelled “where is the wrench to turn it on!”
Minutes later another nurse brought in a different oxygen bottle with another mask
and turned on the oxygen, which was several minutes after the cardiac arrest
began. Plaintiff was then advised that paramedics had been called.
More than thirty minutes later the paramedics were let into the institution,
whereupon they applied heart monitoring equipment and stated that a helicopter
should be called because Plaintiff needed to go to a hospital “now!”
Once in the helicopter, a flight nurse stated “you are having a heart attack”
and he was going to give Plaintiff medication to try to slow the rate of his heart, in
that it was beating 300 bpm.
Once Plaintiff arrived at the hospital and was rushed to the heart catheter lab
he coded four times. Once revived for the fourth time, Plaintiff was taken to the
ICU at the hospital where he remained for the next four days.
Dr. Peterson, a surgeon in the heart catheter lab, while removing the
Hickman catheter, stated to the Plaintiff that under no circumstances should a nurse
have attempted to remove this catheter and their actions, coupled with the iron
overload caused the Plaintiff to go into cardiac arrest and could have killed him.
Dr. Peterson further advised the Plaintiff that the only person who should have
attempted to remove the catheter from the heart was a heart surgeon, and
preferably the one who installed the device due to the fact that he would have
knowledge of the precise type of device installed, and there were hundreds of
different types of barbs available for the devices and without that direct knowledge
of the type, it tears the heart and causes heart failure.
While in the ICU Plaintiff was diagnosed with sepsis due to his infected
chest catheter. He was administered heart medications and antibiotics, which were
to be continued upon his return to Corizon’s care, as well as medication for Gout,
which he likewise developed while in the ICU unit of the hospital.
Once the Plaintiff was discharged from the hospital and returned to the
institution’s TCU medical unit, Dr. Proctor reviewed the hospital medication
orders but did not adhere to them, limiting certain of the medications.
Once sent back to his housing unit, Dr. Cabrera discontinued the antibiotics,
although the infection was still present and obvious to a layman, in that it was still
oozing the same putrid green liquids from the surgery site.
Defendant Cabrera openly admitted that Corizon and Dr. Babich were
denying the medication due to costs issues, in that the medications were too
expensive.
As Plaintiff’s physical, nervous system and mental condition continued to
deteriorate, he was finally seen by Dr. Shahid Waheed in September 2015, whom
was likewise provided with a copy of the Plaintiff’s medical file and history of
blood work. Plaintiff expressed complaints to Dr. Waheed that he was suffering
severe pain, fatigue, excessive loss of blood, tiredness, weakness, weight loss,
severe abdominal pain, joint aches and pains, other arthritic type pain, retained
graying and/or bronzing of his skin, and suffered from severe, excruciating chest
pains, as though he was suffering from heart attacks. Plaintiff further presented
symptoms to Dr. Waheed that he had endured six hour long phlebotomies, twice
per month, with dangerously elevated ferritin and iron levels, and his TIBC and
UIBC levels were dangerously low. Whereupon, Plaintiff requested Dr. Waheed
conduct diagnostic tests to determine the genesis of the iron overloading and
cellular damage done by these infusions, and to confirm whether he had ACER or
hemochromatosis in light of the fact that he was not tolerating the phlebotomies,
and had dangerously low TIBC and UIBC levels, versus the dangerously high
ferritin and iron levels, which were continuing to poison his organs, cells and
central nervous system. Dr. Waheed denied these tests offering that he had never
heard of Corizon approving these tests due to the costs. The Plaintiff further
requested of Dr. Waheed that he be given treatment within the standard of
community care for iron overload, that being iron chelation medications, in that
iron chelation is the standard to remove iron from the blood with a chelation agent
if serial phlebotomies are not being tolerated by the patient. Dr. Waheed admitted
to Plaintiff that this is the only treatment he believed would be effective but
Corizon already advised him they would not approve this treatment due to the
costs. Dr. Waheed then terminated the consultation and returned Plaintiff to the
MDOC for further consult with Dr. Cabrera. Dr. Waheed ordered continued
phlebotomies, but stated that if the phlebotomies could not be tolerated, Plaintiff
should have oral chelation.
Although a few phlebotomies were attempted, they were not tolerated by
Plaintiff, and he was left overloaded with iron. Neither Dr. Cabrera, nor any other
Corizon physician followed even a single recommendation given by Dr. Waheed.
After Plaintiff’s Hickman catheter was removed, bi-weekly phlebotomies were
discontinued for nearly two years because Plaintiff was not fitted with a new
catheter through which phlebotomies could occur.
In the summer of 2016, Plaintiff, himself, had to ask for continuation of
phlebotomies to lower his still toxic iron levels. Nearly a year after the regular
phlebotomies ceased, on June 21, 2016, Dr. Pryor looked into whether
phlebotomies should be restarted. He referred Plaintiff for testing of genetic
hemochromatosis, and the tests came back positive for a heterozygous mutation of
the C282Y Locus. Corizon physicians then diagnosed Plaintiff with genetic or
hereditary hemochromatosis.
In September 2016, after a surgeon refused to place a catheter for resuming
the phlebotomies, Dr. Paniagua requested that Plaintiff be considered for chelation
therapy. Drs. Bredeman and Kosierowski did not approve the chelation, but
delayed, stating they would consider it.
While still without phlebotomies or chelation to treat his iron overload,
Plaintiff’s physical and neurological condition continued to rapidly deteriorate, and
he started experiencing the onset of uncontrollable muscle spasms and tremors of
the body and arms, which were clear indicators of the onset of Parkinson’s disease.
Parkinson’s disease is a progressive degenerative disorder of the nervous
system characterized by tremor when muscles are at rest, slowness of voluntary
movements and increased muscle tone rigidity and the progression of the disease
ultimately causes untimely death of the patient.
Protein aggravation, iron excesses, and oxidative stress have been
demonstrated as important factors leading to the pathogenesis of neurodegenerative
processes linked as the cause of Parkinson’s disease.
As Plaintiff neared his untimely death, he began demanding to be seen by a
neurologist to diagnose these reasons for the central nervous system degeneration.
On October 4, 2016, Plaintiff was finally seen by Dr. Batchu, M.D., a neurologist
commonly utilized by Corizon. During his examination, Mr. Calvert advised the
neurologist that due to serial iron infusions by Dr. Archer, by August of 2013, his
iron levels were dangerously high; his iron saturation levels had reached 56 - well
within the high range. Plaintiff’s liver enzymes likewise were severely elevated to
80, almost twice the normal level, a prime indicator that the liver was beginning to
fail due to the iron saturation and overload.
Plaintiff further advised the neurologist that Dr. Archer deliberately
continued these potentially deadly iron infusions, and by the end of 2013, refused
repeatedly to have genetic testing for Hemochromatosis or ACER to determine the
potential origin of the increasing iron saturation and ferritin ratios which continued
to indicate Hemochromatosis.
Plaintiff further advised Dr. Batchu that Dr. Archer persisted with Plaintiff’s
iron infusions well into 2014, during which time his Ferritin levels, ALT’s, AST’s,
and iron levels remained elevated to from 3 to 7 times their normal levels. While
conversely his Transferrin Iron Binding Capacity (“TIBC”) and Unsaturated Iron
Binding Capacity (“UIBC”) remained dangerously low. In some instances they
could not even be calculated due to the dangerously low UIBC.
Based on Plaintiff’s history of the deliberate and unnecessary iron infusions
and the above history of the blood work, as well as his examination, Dr. Batchu
stated that the Parkinson’s disease was caused by the excessive iron infusions.
Dr. Batchu then ordered a Sinimet MRI Brain and C-Spine scan and to have
the Plaintiff returned for further treatment in 4 weeks. The brain scan was
necessary because changes in the normal iron and antioxidant concentrations in
brain material from patient with Parkinson’s disease has been demonstrated due to
the fact that excess iron from overload accumulates in the Basil Ganglia, Red
Nuclei and Cerebellum dentate nuclei and would be shown by MRI.
Defendant Paniagua changed Dr. Batchu’s brain scan MRI order to only a Cspine MRI order.
Due to the involuntary tremors, patients with Parkinson’s cannot tolerate the
MRI process and it is the industry standard that they be sedated prior to beginning
the MRI because the violent tremors only cease while Parkinson’s patients are
sleeping or heavily sedated. When Defendant Paniagua scheduled the MRI with
St. Mary’s hospital he deliberately failed to order the Plaintiff sedated so he could
not tolerate or complete the MRI - and when Plaintiff was taken to the hospital the
MRI technician was aghast at the proposition the Plaintiff was supposed to
complete the MRI while suffering from Parkinson’s and its resulting violent
tremors, without sedation. The Plaintiff attempted to persevere and endure the
MRI, even though the violent tremors prohibited any type of imaging. The MRI
technician stopped the test and returned Plaintiff to Corizon’s care to be
rescheduled with sedation.
When Plaintiff was returned to the institution, Dr. Paniagua deliberately
falsified his medical records and stated that the Plaintiff refused the MRI, when in
fact he was unable to complete the MRI due to the Parkinson’s tremors and lack of
sedation.
When Dr. Paniagua finally ordered an MRI with sedation of Plaintiff’s brain,
pituitary gland, and liver, it revealed iron deposits in Plaintiff’s liver.
Despite orders from Dr. Batchu, Corizon has ignored Plaintiff’s needs for
consultations with specialists (including a hematologist/oncologist and follow up
with Dr. Batchu or another neurologist).
On January 24, 2017, Plaintiff again saw Dr. Batchu for the treatment of his
Parkinsonism. After examining Plaintiff, Dr. Batchu ordered that Plaintiff be
referred to a hematologist for further treatment of his elevated iron levels, that he
be provided with an electric wheelchair to treat his Parkinsonism, and that he be
referred back to Dr. Batchu for follow-up care.
As of the filing of this Complaint, Plaintiff has not been provided with any
of the necessary care ordered by Dr. Batchu. Plaintiff attempted multiple times to
schedule a follow-up appointment with Dr. Batchu, but each request has been
denied by Corizon. After Plaintiff’s informal request for specialty care failed to
produce any results, Plaintiff filed a formal grievance requesting the follow-up care
that had been ordered by Dr. Waheed and Dr. Batchu.
Corizon denied Plaintiff’s grievance on August 21, 2017, finding his current
medical care adequate and stating that “you will continue to receive appropriate
care/treatment as determined necessary by your provider.”
Throughout the treatment of his Parkinsonism, plaintiff has consistently
requested that he be allowed to purchase and use an electric wheelchair to allow
him to move about independently. These requests for necessary medical care have
all been pretextually denied by Corizon and its representative, Dr. Bredeman.
Plaintiff first requested an electric wheelchair on November 15, 2016. The medical
need for such a wheelchair was confirmed by both Dr. Batchu and Dr. Paniagua,
who independently prescribed an electric wheelchair in January of 2017. The notes
of another of Plaintiff’s physicians, Dr. Brennan, indicate that she too believed
Plaintiff required an electric wheelchair.
Despite the agreement among his treating physicians, Corizon has refused to
provide Plaintiff with an electric wheelchair. This refusal has had serious
detrimental effects on Plaintiff and has kept him from participating in normal
inmate activities.
On January 23, 2017, Plaintiff filed an administrative grievance requesting
that he be provided with a long-handled toothbrush and an electric wheelchair,
both of which were necessary aids to allow him to live a more normal life.
Defendant Corizon did not respond to Plaintiff’s grievance until July 21,
2017, when it denied his request for an electric wheelchair, claiming that Plaintiff
had not filled out a Request for Reasonable Accommodations. In fact, Plaintiff had
filed a Request for Reasonable Accommodations, and the electric wheelchair had
been approved by Dr. Paniagua on March 3, 2017.
Plaintiff submitted a Grievance Appeal on August 22, 2017, apprising
Corizon officials of his previous approval and again requesting an electric
wheelchair. Corizon again refused to provide Plaintiff with an electric wheelchair.
This time, Dr. Bredeman, who signed the Grievance Response, found that
Plaintiff’s needs were adequately served by a manual wheelchair which he was
incapable of operating himself. This decision directly contradicted the orders of
Plaintiff’s treating physician, Dr. Batchu, who had specifically prescribed an
electric wheelchair as a medical necessity.
Plaintiff filed his Motion for Preliminary Injunction seeking an Order
requiring Defendants Corizon, Bredeman, Babich, and Kosicrowshi to approve his
requests for follow up care with his treating neurologist, a referral to a
hematologist, and an electric wheelchair be provided at his own cost.
Defendants filed a Response to Plaintiff's motion arguing he is not entitled to
a preliminary injunction.
Standard of Review
Rule 65 of the Federal Rules of Civil Procedures governs the issuance of
temporary restraining orders and preliminary injunctions. In deciding a motion for
a temporary restraining order or a preliminary injunction, the courts are instructed
to consider the following factors: (1) the probability of success on the merits; (2)
the threat of irreparable harm to the movant; (3) the balance between this harm and
the injury that granting the injunction will inflict on other interested parties; and (4)
whether the issuance of an injunction is in the public interest. Dataphase Sys., Inc.
v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc); see also Minnesota
Mining and Mfg. Co. v. Rauh Rubber, Inc., 130 F.3d 1305, 1307 (8th Cir. 1997);
Sanborn Mfg. Co., Inc. v. Campbell Hausfeld/Scott Fetzer Co., 997 F.2d 484, 48586 (8th Cir. 1993). While no single factor in itself is dispositive, the Eighth Circuit
Court of Appeals has held “the two most critical factors for a district court to
consider in determining whether to grant a preliminary injunction are (1) the
probability that plaintiff will succeed on the merits, and (2) whether the plaintiff
will suffer irreparable harm if an injunction is not granted.” Chicago Stadium
Corp. v. Scallen, 530 F.2d 204, 206 (8th Cir. 1976).
The burden of proving a preliminary injunction is warranted rests on the
movant. Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). Further, the Eighth
Circuit has instructed that “in the prison context, a request for injunctive relief
must always be viewed with great caution because judicial restraint is especially
called for in dealing with the complex and intractable problems of prison
administration.” Id. (internal quotations omitted).
Discussion
Specialty Medical Care
Likelihood of Success on the Merits
To state an actionable § 1983 civil rights claim, a plaintiff must allege a set
of historical facts which, if proven true, would show that the named defendant
violated the plaintiff’s federally-protected rights while acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (1988). A plaintiff must plead facts showing
each named defendant’s personal involvement in the alleged constitutional
wrongdoing. Ellis v. Norris, 179 F.3d 1078, 1079 (8th Cir. 1999); see also Beck v.
LaFleur, 257 F.3d 764, 766 (8th Cir. 2001) (upholding summary dismissal of civil
rights claims, because plaintiff’s complaint “failed to allege sufficient personal
involvement by any of defendants to support such a claim”).
The Eighth Amendment requires prison officials to provide humane
conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994). One
condition of confinement is the medical attention a prisoner receives. Weaver v.
Clarke, 45 F.3d 1253, 1255 (8th Cir. 1995). In this context, prison officials violate
the Eighth Amendment if they commit “acts or omissions sufficiently harmful to
evidence deliberate indifference to [an inmate’s] serious medical needs.” Jolly v.
Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (citing Estelle, 429 U.S. at 106).
Allegations amounting to negligence, medical malpractice, or a disagreement with
treatment decisions do not rise to the level of a constitutional violation. Estelle, 429
U.S. at 106; Popoalii, 512 F.3d at 499. Mere disagreement with medical treatment
fails to state a claim of deliberate indifference. See Meuir v. Greene County Jail
Employees, 487 F.3d 1115, 1118-19 (8th Cir. 2007) (an inmate has no
constitutional right to a particular course of treatment, and his mere disagreement
with the medical treatment he receives is not a basis for section 1983 liability);
Pietrafeso v. Lawrence County, S.D., 452 F.3d 978, 983 (8th Cir. 2006) (showing
deliberate indifference is greater than even gross negligence and requires more
than mere disagreement with treatment decisions).
Deliberate indifference may be found when prison officials intentionally
deny or delay access to medical care. Estelle, 429 U.S. at 104–05. When a delay in
treatment is the alleged constitutional violation, however, the objective severity of
the deprivation should also be measured by reference to the effect of the delay in
treatment. Jackson v. Riebold, 815 F.3d 1114, 1120 (8th Cir. 2016) (quoting
Laughlin v. Schriro, 430 F.3d 927, 929 (8th Cir. 2005)).
In this case, Plaintiff is not merely disagreeing with the medical treatment
he has been receiving; rather, he seeks medical treatment that has been determined
by his physicians to be appropriate considering all the attendant circumstances.
Dr. Batchu prescribed follow up neurological care as necessary. Likewise,
Plaintiff has not been seen by a hematologist in two and a half years for the
treatment of his iron toxicity, which condition has caused his Parkinsonism.
Although Plaintiff has presented medical records indicating the need for these
referrals, Defendants have refused them. Plaintiff is not seeking to substitute his
opinion for that of the treating physicians; rather, Plaintiff seeks the medical
treatment that the physicians have determined to be necessary. While Defendants
argue that they are providing appropriate medical care for Plaintiff’s conditions,
Plaintiff’s medical records indicate otherwise in that the treatment Plaintiff is
currently receiving (and in some instances the lack of treatment) is ineffective, and
Plaintiff’s condition appears to be worsening, rather than resolving. Plaintiff has
demonstrated a fair chance of success on his deliberate indifference claim.
Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds 530 F.3d 724,
732 (8th Cir. 2008). Defendants’ decision to provide “some treatment” is
inadequate and, therefore, not constitutional. De’lonta v. Johnson (De’lonta II),
708 F.3d 520, 526 (4th Cir. 2013) (emphasis in original). See also Langford v.
Norris, 614 F.3d 445, 460 (8th Cir. 2010) (internal quotation marks omitted) (“[A]
total deprivation of care is not a necessary condition for finding a constitutional
violation: Grossly incompetent or inadequate care can also constitute deliberate
indifference....”).
Irreparable Harm
“The threshold inquiry is whether the movant has shown the threat of
irreparable injury.” Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871
F.2d 734, 738 (8th Cir. 1989) (en banc). “The failure to show irreparable harm is,
by itself, a sufficient ground upon which to deny a preliminary injunction.” Id.
Irreparable harm must be certain and imminent such that there is a clear and
present need for equitable relief. Iowa Utils. Bd. v. F.C.C., 109 F.3d 418, 425 (8th
Cir. 1996). Possible or speculative harm is not sufficient. Local Union No. 884,
United Rubber, Cork, Linoleum, & Plastic Workers of Am. v. Bridgestone/
Firestone, Inc., 61 F.3d 1347, 1355 (8th Cir. 1995). When there is an adequate
remedy at law, a preliminary injunction is not appropriate. Modern Computer Sys.,
871 F.2d at 738.
The Court finds that Plaintiff has met his burden to show the threat of
irreparable injury. Plaintiff asserts that he has and will continue to suffer
irreparable harm in the absence of a preliminary injunction because of his
Parkinsonism, which he claims occurred because of the iron toxicity he developed
as a result of Defendants’ treatment. The medical records establish that Plaintiff
suffers and will continue to suffer from pain as a result of the phlebotomies.
Furthermore, the deprivation of Plaintiff’s constitutional rights under the
Eighth Amendment is alone sufficient to establish irreparable harm. See Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (“The loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.”); Michigan State A. Philip Randolph Inst. v.
Johnson, 833 F.3d 656, 669 (6th Cir. 2016) (internal quotation marks omitted)
(“When constitutional rights are threatened or impaired, irreparable injury is
presumed.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“The district
court properly relied on the presumption of irreparable injury that flows from a
violation of constitutional rights.”); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.
1984) (“When an alleged deprivation of a constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.”).
Balance of Harms
In considering the equities of a preliminary injunction, courts “must balance
the competing claims of injury and must consider the effect on each party of the
granting or withholding of the requested relief.” Winter, 555 U.S. at 24. “In
exercising their sound discretion, courts of equity should pay particular regard for
the public consequences in employing the extraordinary remedy of injunction.” Id.
The balance of harms substantially weighs in favor of granting injunctive relief to
Plaintiff. Plaintiff has met his burden to establish that he continues to face a
possible deterioration of his health without the appropriate medical care.
Performing ineffective care can clearly rise to the level of deliberate indifference to
Plaintiff’s medical needs.
Conversely, the hardship to Defendants is minimal; it is clearly merely a
matter of payment for the services rendered by the specialists.
The Public Interest
Finally, the public interest weighs strongly in favor of issuing the
preliminary injunction. Plaintiff seeks to protect his constitutional rights. This
court must emphasize that “[i]t is always in the public interest to prevent the
violation of a party’s constitutional rights.” Melendres v. Arpaio, 695 F.3d 990,
1002 (9th Cir. 2012).
Electric Wheelchair
Irreparable Harm and Likelihood of Success on the Merits
A preliminary injunction is meant to “preserve the status quo and prevent
irreparable harm until the court has an opportunity to rule on the lawsuit's merits.”
Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). Here, Plaintiff has simply
expressed disagreement with the wheelchair he is being provided but offers no
facts to support a conclusion that Plaintiff is in immediate danger of irreparable
harm. While Plaintiff’s life might be easier with an electric wheelchair, the record
is completely devoid of any showing of irreparable harm without it. Thus, Plaintiff
has failed to demonstrate he will suffer irreparable harm in the absence of
injunctive relief. See Williams v. Correctional Medical Services, 166 Fed. Appx.
882, (8th Cir. 2006) (Plaintiff's claims concerning Hepatitis C testing and treatment
showed neither threat of irreparable harm or likelihood of success on the merits to
warrant a preliminary injunction); see also Quint v. Lantz, 248 Fed Appx. 218, 219
(2d Cir. 2017) (alleged denial of medical care, including preferred pain medication,
for degenerative, rather than acute, medical condition did not suffice to show
irreparable harm).
Balancing Harm
In balancing the harm and the injury to the Defendants if the injunction is
granted, the balance favors the Defendants. Granting the injunction would amount
to this Court interfering with the exercise of the medical judgment of the
Defendants and the operation and administration of a state prison. As noted above,
the Court should grant injunctive relief only “with great caution because judicial
restraint is especially called for in dealing with the complex and intractable
problems of prison administration.” Goff, 60 F.3d at 520.
Public Interest
Finally, in assessing whether the issuance of an injunction would be in the
public interest, it must be remembered that the “federal courts do not sit to
supervise state prisons, the administration of which is of acute interest to the
States.” Meachum v. Fano, 427 U.S. 215, 229 (1976). Granting injunctive relief at
this point based on Plaintiff's allegations would amount to direct interference by
the Court with the operation and administration of the institution which is harmful
to Defendants and does not serve any public interest.
Conclusion
Plaintiff has established the necessary elements that Defendants are failing
to provide appropriate medical treatment to treat his condition. However, Plaintiff
fails to satisfy the factors needed to order an electric wheelchair.
Accordingly,
IT IS HEREBY ORDERED Plaintiff’s Motion for a Preliminary
Injunction, [Doc. No. 40], is GRANTED in part and denied in part.
IT IS FURTHER ORDERED that Defendants shall, within 5 days from
the date of this order, arrange for Plaintiff to receive follow-up care by a specialist
in hematology and follow-up care by a specialist in neurology.
Dated this 8th day of May, 2018.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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