Lawson v. McQuate et al

Filing 55

REPORT AND RECOMMENDATION that the 50 MOTION for Summary Judgment filed by Dino Cardaras and Jessica McQuate be GRANTED Objections to R&R due by 3/7/2014. Signed by Magistrate Judge Mark R. Abel on 2/18/14. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

James Harold Lawson, Jr.,
Plaintiff

:
:
:

Jessica McQuate and Dino Cardaras,
Defendants

Judge Smith

:

v.

Civil Action 2:12-cv-00533

Magistrate Judge Abel

:
Report and Recommendation
This matter is before the Magistrate Judge on defendants Jessica McQuate’s and
Dino Cardaras’ November 13, 2013 motion for summary judgment (doc. 50).
I.

Allegations in the Complaint

The complaint alleges that on July 21, 2010 plaintiff James H. Lawson, Jr. was
seen by defendant nurse Dino Cardaras for complaints of a headache, dizziness, fever
and tightness in his chest. Cardaras dismissed the large reddish spot/mark on Lawson's
left leg as heat rash. He did not take Lawson's temperature because there were no probe
covers, but Cardaras nonetheless recorded his temperature in his notes. Before leaving
the medical office, Lawson asked to see a doctor. That request was denied. Complaint,
¶¶ 5-6. It is the "Culture of Care" at the Chillicothe Correctional Institution (“CCI”) to
deny medical care to inmates. Id., Complaint, ¶ 7.
Within 24 hours, Lawson was admitted to the Ohio State University Medical
Center, where he was placed in the infectious disease unit and given antibiotics. When
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he returned to the Chillicothe Correctional Institution on July 27, he was to continue
taking the prescribed antibiotics. But when he arrived at the prison, no steps were taken
to insure that he received the prescribed medication. Complaint, ¶¶ 2 and 7. Instead,
defendant nurse Jessica McQuate cleared Lawson for return to the general population,
where he did not receive the antibiotics. Complaint, ¶¶ 2-3. Lawson then experienced
increased pain and swelling in his left foot. His request for crutches was denied.
McQuate and Cardaras made no effort to assess or inquire into why Lawson needed
crutches. Lawson was returned to the Ohio State University Medical Center. Complaint,
¶ 3.
II.

Arguments of the Parties
A.

Defendants

To state a claim for relief for a violation of his Eighth Amendment right, plaintiff
must allege acts or omissions sufficiently harmful to show deliberate indifference to
serious medical needs. Deliberate indifference to serious medical needs is the
unnecessary and wanton infliction of pain. Defendants argue that a prisoner’s
complaints about the quality of his medical care does not state a valid claim for an
Eighth Amendment violation even if the treatment amounts to medical malpractice.
Medical malpractice does not become a constitutional violation simply because the
victim is a prisoner.
Defendants concede that plaintiff’s condition of cellulitis was serious. Defendant
Cardaras maintains, however, that at the time he treated Lawson on July 22, 2010, the
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seriousness of the condition was not so obvious that a layperson would have recognized
the need for treatment. Cardaras relies on his July 22, 2010 notes, which indicate that
Lawson had complained of a headache and dizziness since it had gotten hot that day.
Cardaras recorded Lawson’s vital signs as normal. He did not show swelling or redness
on his left lower leg where the cellulitis subsequently exhibited itself after Cardaras
examined Lawson. Cardaras also contends that the OSU medical records from July 23
through July 27 do not show that the failure of Cardaras to detect cellulitis on July 22
led to the worsening of his condition. Defendants also argue that there is no evidence
that Cardaras was subjectively aware of Lawson’s need for immediate treatment and
that he ignored that need. Lawson’s symptoms of swelling and redness did not appear
until after Cardaras’s examination. At most, Lawson’s complaints that Cardaras should
have know that he was suffering from cellulitis on July 22 only amounts to an allegation
of negligence.
Defendants further argue that there is no evidence to prove Lawson’s allegation
that Cardaras ignored plaintiff’s need for antibiotics at the July 27 evening pill call.
Cardaras denies having any knowledge that Lawson need Keflex or that he was having
difficulty walking. Although Lawson claims that Cardaras was aware that Officer Deck
had to intervene to retrieve crutches for Lawson while Cardaras smiled and laughed at
Officer Deck’s persistence, Officer Deck has no recollections of the events that Lawson
describes.

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Defendants further argue that Lawson cannot point to any failure on the part of
Nurse McQuate that would show deliberate indifference to plaintiff’s serious medical
need. On July 27, 2010, McQuate examined plaintiff and assessed his vital signs upon
his return to CCI. McQuate found that Lawson’s condition was stable, just as OSU
concluded when Lawson was discharged. Lawson has no evidence that McQuate’s
assessment of him had a detrimental effect in worsening his condition. Defendants
concede that there is some evidence to doubt that the failure to administer Keflex within
the roughly eight-hour period in which Lawson was back at CCI was the precise cause
of Lawson’s relapse of cellulitis. The normal practice at CCI upon receiving a patient
discharged from a hospital is that unless the discharge instructions specify that the
medication is needed immediately, the patient will receive it the following day. Lawson
received IV antibiotics on the morning he was discharged from OSU as well as for
several days prior. According to OSU records, it appears that Lawson was originally
scheduled for a dose of the antibiotic at 2:00 p.m. and 10:00 p.m. on the day of his
discharge. But, plaintiff did not received any antibiotics following his 6:00 a.m. dose
even though he was still at OSU at 2:00 p.m. The discharge instructions McQuate
received did not indicate a time or date when administration of oral antibiotics should
commence.
Dr. William Maher, Lawson’s attending physician at OSU during the second
hospitalization, noted that Lawson went without antibiotic treatment for twelve hours
and had walked on his infected leg at CCI. He attributed plaintiff’s relapse to an
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“interruption of treatment” and slightly premature transition to oral therapy.” Lawson
is required to provide verifying medical evidence to confirm that missing his antibiotic
medication for the eight hours that he was at CCI posed a substantial risk in his relapse
of cellulitis. Defendants maintains that it is unclear whether the premature transition to
oral antibiotics and missing one to two doses of Keflex played a role in his relapse
compared to the eight hours he spent at CCI without his medication.
McQuate’s actions or inaction on July 27, 2010 could not have had any effect on
posing a substantial risk to Lawson’s health because the dispensary closed at 5:00 p.m.
and Lawson was not examined by McQuate until 5:35 p.m. Defendants maintain that
there is no evidence that shows McQuate was subjectively aware that Lawson had an
immediate need for his antibiotics to be administered upon his arrival back at CCI on
July 27, 2010. Although there was some redness and swelling present on Lawson’s
lower left leg, McQuate reasonably believed that these were the residual effects of
Lawson’s prior bout with cellulitis; these findings were also noted in the discharge
instructions when Lawson was released that day from OSU.
McQuate released Lawson back to the general population after assessing him.
ODRC policy would not have permitted McQuate to admit Lawson into the infirmary
under the circumstances present on his return from OSU. McQuate filled out the
necessary paperwork to ensure that Lawson would receive his medication. McQuate
did not have the authority, as a registered nurse, to prescribe medication to Lawson.

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McQuate denies plaintiff’s allegations with respect to the July 27, 2010 evening
pill call. Lawson does not allege that McQuate handled the pill call or that he
communicated to her that he was still missing his antibiotics. Lawson simply alleges
that after he received his other medications, he asked Officer Deck for crutches and that
McQuate and Cardaras were nearby. Plaintiff argues that because McQuate was aware
of his need for crutches, she should have made further inquiry regarding his ailment,
but defendants contend that these allegations amount to negligence rather than
deliberate indifference.
Defendants further argues that they are entitled to qualified immunity because
no constitutional violation occurred. Neither defendant was presented with obvious
indications that Lawson was suffering from a severe infection or relapsing, nor were
they presented with specific evidence that would have definitely revealed that Lawson
required immediate treatment or access to his antibiotic.
B.

Plaintiff

Lawson argues that Cardaras’s assertion that he examined Lawson using the
SOAP (subjective, objective, assessment, plan) format shows that Cardaras did not
provide the required standard of care. A registered nurse, like Cardaras, is required to
employ the nursing process known as A.D.P.I.E., which stands for assessment,
diagnosis, plan, intervention, evaluation/re-evaluation.
Lawson also argues that Cardaras’ statements are inconsistent with the treatment
notes. Cardaras stated that he did not observe any problems with plaintiff’s left leg and
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that plaintiff did not communicate that he was having any problem with his left leg.
Lawson maintains that these two statements are contradictory because if he was not
complaining of problems with his left leg, then why would there be a need to assess his
left leg.
Plaintiff maintains defendants acted outside their professional scope of practice
and that the CCI policy is below the community standards and defendants’ licensing
standards. Plaintiff contends that Cardaras should have taken Lawson’s initial
complaint and then conducted a head to toe assessment. Cardaras improperly focused
on the fact that plaintiff took Lithium. Plaintiff maintains that Cardaras practiced
medicine without a license by stating that Lawson had a headache and dizziness and by
giving him Tylenol.
With respect to the events of July 27, 2010, plaintiff states that although the error
could have originated with OSU, it was more likely the error of the prison transport
officers that caused plaintiff to be returned to CCI. Plaintiff maintains that McQuate was
negligent in advocating for him because the discharge order clearly stated that he was
to be released to an advance care facility for continuation of antibiotics. McQuate failed
to note that Lawson received his last dose of antibiotics at 5:25 a.m. and that the new
schedule for his medication went from every hours to every six hours.
When Lawson returned to medical for the scheduled pill call, there was no
medication available for him other than his psychotropic medications. Lawson went to
Officer Deck and to ask about his antibiotics and informed him that he was having
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trouble walking. Plaintiff maintains that once defendants were aware that he was
having trouble walking, they should have acted. Their inaction was the result of
deliberate indifference to his serious medical need. The need was so obvious that the
corrections officer, a layperson, easily recognized Lawson’s need for medical attention.
Plaintiff further argues that the ODRC policy regarding medical treatment and
assessment is below the standard of care and reflects a culture that denies adequate
medical treatment by beginning with a substandard medical assessment of need. Any
mistake on the part of OSU does not excuse McQuate’s conduct in failing to take action
to ensure that he received the necessary care and treatment for cellulitis.
III.

Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A party asserting the absence or presence of a
genuine dispute must support that assertion by either “(A) citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other materials”; or “(B)
showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).

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A party may object that the cited material “cannot be presented in a form that
would be admissible in evidence,” and “[t]he burden is on the proponent to show that
the material is admissible as presented or to explain the admissible form that is
anticipated.” Fed. R. Civ. P. 56(c)(2); Fed. R. Civ. P. 56 advisory committee’s note. If a
party uses an affidavit or declaration to support or oppose a motion, such affidavit or
declaration “must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is competent to testify on
the matters stated.” Fed. R. Civ. P. 56(c)(4).
While the court must consider the cited materials, it may also consider other
materials in the record. Fed. R. Civ. P. 56(c)(3). However, “[i]n considering a motion for
summary judgment, the district court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.” Revis v. Meldrum, 489 F.3d 273,
279 (6th Cir. 2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). “The central issue is ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.’” Id., 489 F.3d at 279–80 (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251–52 (1986)).
IV.

Discussion

Under the Eighth Amendment, prison officials are forbidden from
“unnecessarily and wantonly inflicting pain” on an inmate by acting with “deliberate
indifference” toward the inmate’s serious medical needs. Estelle v. Gamble, 429 U.S. 97,
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104 (1976). To demonstrate an Eighth Amendment deprivation, a prisoner must show
that a prison official acted with deliberate indifference to his serious medical needs.
Estelle, 429 U.S. at 103-04. Prison officials are liable only if they know of and disregard
“an excessive risk to inmate health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial risk of serious harm exists,
and he must draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Mere
negligence does not constitute deliberate indifference. See, Estelle, 429 U.S. at 106.
Further, a prisoner does not state a claim merely by pleading that he disagrees with the
diagnosis or treatment. Estelle, 429 U.S. at 107-08; Westlake v. Lucas, 537 F.2d 857, 860 n.
5 (6th Cir. 1976).
A prison official does not act with deliberate indifference unless the official both
knows of and disregards an excessive risk to inmate safety or health. The official must
be aware of the facts from which she could draw the inference that a substantial risk of
serious harm exist, and she must also draw the inference. Cairelli v. Vakilian, 80 Fed.
Appx. 979 (6th Cir. 2003). “An official’s failure to alleviate a significant risk that he
should have perceived but did not, while no cause for commendation, cannot under our
cases be condemned as the infliction of punishment.” Estelle, 429 U.S. at 838.
The Sixth Circuit requires verifying medical evidence to demonstrate the
deleterious effect of the lack of treatment when only minor maladies or non-obvious
complaints of a serious need for medical care were present. “[A]n inmate who
complains that delay in medical treatment rose to a constitutional violation must place
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verifying medical evidence in the record to establish the detrimental effect of the delay
in medical treatment to succeed.” Napier v. Madison County, Kentucky, 238 F.3d 739, 742
(6th Cir. 2001)(quoting Hill v. Dekalb Regional Youth Detention Center, 40 F.3d 1176, 1188
(11th Cir. 1994). Verifying medical evidence provides the court with the best available
evidence as to whether the alleged deprivation is sufficiently serious and whether the
inmate was at substantial risk of harm. Id. “Where a prisoner has received some medical
attention and the dispute is over the adequacy of the treatment, federal courts are
generally reluctant to second guess medical judgments.” Graham v. County of Washtenaw,
358 F.3d 377, 385 (6th Cir. 2004). The burden of proof in such cases is fairly substantial,
in that an inmate complaining about his course of treatment, such as receiving one
medication instead of another, must “place verifying medical evidence in the record to
establish the detrimental effect of the delay in medical treatment to succeed.” Napier v.
Madison County, Kentucky, 238 F.3d 739, 742 (6th Cir. 2001).
Defendant Cardaras’s July 22, 2010 treatment notes indicates that plaintiff was
feeling lightheaded, dizzy and had headaches “since it got hot today.” Cardaras
recorded plaintiff’s blood pressure and body temperature. He conducted an
electrocardiogram. Plaintiff’s lungs were clear. Normal sounds were present in
Lawson’s abdomen. Cardaras checked plaintiff’s pulses. He noted that plaintiff took
Lithium. Cardaras treated plaintiff for his headache with Tylenol. The note does not
contain any reference to plaintiff’s leg. See doc. 50-1 at PageID #271.

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On July 23, 2010, defendant McQuate evaluated plaintiff for complaints of chest
pains and arrhythmia. She took his vital signs. Streaking was noted on his left leg. Doc.
50-3 at PageID #276. The doctor examined plaintiff and noted a possible infection. The
noted also indicated that the “onset occurred last night.” Doc. 15-5 at PageID #347.
Plaintiff was then transported to OSU. Id.
In her declaration, Beth Higginbotham, the Health Care Administrator for CCI,
stated that Lawson arrived at CCI around 5:35 p.m. on July 27, 2010, at which time he
was examined by Nurse McQuate. Doc. 50-8 at ¶ 9; PageID 299. The evening pill call
occurred at 6:30 p.m. Because plaintiff returned after 5:00 p.m., no new orders for
prescribed drugs were available at the time of the evening pill call. Id. Lawson was
taken to OSU at midnight on July 28, 2010 according to the emergency assessment. As a
result, plaintiff was only at CCI for seven to eight hours. Id. at ¶ 12.
Corrections Office Terry Deck submitted a declaration stating that although he
worked second shift at the dispensary on July 27, 2010, he has no recollection of the
events as described in plaintiff’s complaint. Doc. 50-18 at ¶¶ 2-3; PageID# 350.
Plaintiff has failed to offer any evidence indicating that defendant Cardaras was
deliberately indifferent to his serious medical needs. The evidence of record shows that
the streaking on plaintiff’s leg was not present at the time he examined plaintiff.
Plaintiff’s argument that Cardaras’s care fell short of the standard of care a registered
nurse is required to provide is at most a claim that Cardaras acted negligently. Medical

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malpractice, however, does not rise to a constitutional violation simply because plaintiff
is incarcerated.
There is also no evidence that defendant McQuate was deliberately indifferent to
plaintiff’s serious medical needs. Plaintiff was examined upon his return to CCI.
McQuate completed the paperwork necessary for plaintiff to receive his antibiotic.
Plaintiff has not offered any evidence to support his allegations that McQuate was
aware that delaying his medication to the following day would place him at risk of
serious harm. Plaintiff has not offered evidence to support his allegation that
defendants were dismissive of Officer Deck when he obtained crutches for plaintiff.
Moreover, plaintiff was returned to OSU within hours of his arrival at CCI. Because
plaintiff has not produced any evidence from which a trier of fact could conclude that
defendants were deliberately indifferent to Lawson’s serious medical needs, I
recommend that defendants’ motion for summary judgment be granted.
V.

Conclusion

For the reasons stated above, the Magistrate Judge RECOMMENDS that
defendants Jessica McQuate and Dino Cardaras’ November 13, 2013 motion for
summary judgment (doc. 50) be GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof

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in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-152 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981);
United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). Even when timely objections are filed, appellate review of issues not
raised in those objections is waived. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991).

s/Mark R. Abel
United States Magistrate Judge

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