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Stewart v. Murphy

United States District Court, W.D. Arkansas, Hot Springs Division

February 20, 2015

PHILLIP DEWAYNE STEWART, Plaintiff,
v.
DR. A. MURPHY, Ouachita River Unit (ORU); RAY HOBBS, Director, Arkansas Department of Correction; DREAM REDIC-YOUNG, Infirmary Manager, ORU; NURSE KIMBERLY KELLOGG, ORU; and NURSE RETA DOUGLAS, ORU, Defendants.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

MARK E. FORD, Magistrate Judge.

This is a civil rights action filed by the Plaintiff pursuant to the terms of 42 U.S.C. ยง 1983. Plaintiff proceeds pro se and in forma pauperis.

Plaintiff is currently incarcerated in the Varner Unit of the Arkansas Department of Correction (ADC). The events that are the subject of this case occurred while Plaintiff was incarcerated in the Ouachita River Unit of the ADC. Plaintiff maintains his constitutional rights were violated when Defendants denied him adequate medical care and when Dr. Murphy made her decision to deny him a prescription based on his race.

The case is presently before me on a Motion to Dismiss (Doc. 16) filed by Dr. Anne Murphy, Dream Redic-Young, Kimberly Kellogg and Reta Douglas (the Medical Defendants). Also before me is a Motion to Dismiss (Doc. 18) filed by Former ADC Director Ray Hobbs. Plaintiff filed a combined Response (Doc. 36) to the Motions. The Motions are ready for decision.

1. Background

According to the allegations of the Complaint (Doc. 2) and the Amended Complaint (Doc. 4), Plaintiff had been given a lower tier and lower rack prescription (the Prescription) by Dr. Ware with an expiration date of October 1, 2013. Plaintiff indicates he has the following medical conditions which necessitate the Prescription: he only has one kidney; he has a bullet in his left thigh; he was shot in the back and also hurt his back during an automobile accident; he has a foot fungus on both big toes; and he has constant headaches from his head being "busted in an incident." Plaintiff maintains these conditions make it difficult for him to walk up and down stairs and to pull himself into a high rack. He believes this also puts unnecessary strain on his remaining kidney.

On September 24th, Plaintiff alleges he went to the infirmary during sick call to make an appointment to obtain a renewal of the Prescription. He was seen by Nurse Kimberly Kellogg who, although authorized to give up to a thirty day extension, refused to give him an extension of the Prescription until he could be seen by a doctor. Further, he alleges she did not schedule an appointment for him to see the doctor until after the Prescription expired.

With respect to Nurse Douglas, Plaintiff alleges she stated in his medical records that he would see the doctor in seventy-two hours after being seen at sick call on September 24th. However, Plaintiff states he did not get to see the doctor until twenty days later. Plaintiff believes Nurse Douglas falsified the medical records.

On October 14, 2013, Plaintiff was seen by Dr. Murphy. Plaintiff, who is African American, requested a renewal of the Prescription. Dr. Murphy did not renew the Prescription.

Plaintiff maintains Dr. Murphy had no problem with giving a Caucasian inmate, identified as T. Hopkins, a lower rack prescription. Hopkins was in the same unit as the Plaintiff, was seen the same day, and was also given a one arm duty prescription. Plaintiff alleges Hopkins did not previously have a lower rack prescription.

Plaintiff submitted a formal grievance, designated OR-13-01328, asserting that Dr. Murphy had failed to treat him equally when she refused to renew the Prescription. Dream Redic-Young responded to the grievance. She stated:

You stated in your complaint Dr. Murphy was violating rule 2A-AR-832, which states inmates are to be treated equal. You were seen last by Dr. Murphy on October 14, 2013, for requesting a lower tier and lower rack. Documentation shows there was no medical basis for a script for lower rack or lower tier base[d] on your exam by the physician on October 14, 2013, or your physical upon intake. As for this grievance, I find [it] without merit.

Plaintiff believes this response was inadequate because it does not say what records were reviewed, whether she spoke with Dr. Murphy, does not mention the Prescription given by Dr. Ware, and does not mention that the Prescription expired while he was waiting to see the doctor.

With respect to Director Hobbs, Plaintiff objects to the fact that Director Hobbs refers to Dr. Murphy's clinical note that says the Plaintiff was not walking with a limp. Plaintiff states he was walking the same way he did when he was seen by Dr. Ware and given the Prescription. Further, Plaintiff states the fact that he was not in pain on the day he was seen by Dr. Murphy establishes that Dr. Ware did his job and the Prescription ...


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