United States District Court, W.D. Arkansas, El Dorado Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BARRY A. BRYANT, Magistrate Judge.
This is a civil rights action filed pro se by the Plaintiff, Willie Porchia, pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at the Arkansas Department of Correction East Arkansas Regional Unit ("ADC").
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3)(2011), the Honorable Susan O. Hickey, United States District Judge, referred this case to the undersigned for the purpose of making a Report and Recommendation. Currently before the Court is Defendants' Norwood, Strickland, Bolton, Woods, Brian, West, and Lindsey's Motion for Summary Judgment. ECF No. 24. I held a hearing on September 15, 2015, at which time, I heard Plaintiff's sworn testimony in response to the Motion for Summary Judgment. After careful consideration, I enter the following Report and Recommendation.
Plaintiff filed his Amended Complaint on February 26, 2015. ECF No. 21. The claims Plaintiff alleges in his Amended Complaint concern his medical care while incarcerated in the Ouachita County Detention Center ("OCDC"). In his Amended Complaint, Plaintiff names Sheriff David Norwood, Lt. Joe Strickland, James Bolton, Doug Woods, Carmen Brian, Teri West, Chris Lindsey, and 309 Inmate Adrian McFarland as Defendants. ECF No. 21, p. 1. Plaintiff alleges both official and individual capacity claims against all Defendants.
In his Amended Complaint, Plaintiff claims Defendants violated his constitutional rights by denying him medical care and medications. Specifically, Plaintiff claims he suffered a sever burn on his back before being booked into the OCDC. Plaintiff was booked into the OCDC on May 3, 2012 and was denied medical care for this burn until June 5, 2012. Plaintiff also claims he was denied medication for approximately ten (10) to fifteen (15) days in April 2013. Finally, Plaintiff claims that Defendants violated his constitutional rights by allowing a 309 inmate, Defendant McFarland, to book Plaintiff into the OCDC. ECF No. 21.
Defendants' Norwood, Strickland, Bolton, Woods, Brian, West, and Lindsey ("Ouachita Defendants") filed a Motion for Summary Judgment on June 2, 2015. ECF No. 24. In this Motion, the Ouachita Defendants argue (1) Plaintiff failed to state any official capacity claim; (2) Plaintiff failed to show Defendants Norwood and Strickland had any personal involvement in or responsibility for the actions complained of; (3) Plaintiff's allegations are not denial of medical care claims but instead delay of medical care claims; and (4) no Defendant was deliberately indifferent to Plaintiff's medical needs.
The Court held a hearing on this Motion on September 15, 2015. At this hearing, Plaintiff provided sworn testimony as his response to the Ouachita Defendants' Motion. Plaintiff also subsequently submitted to the Court eleven exhibits (Exhibits A-K) in support of his testimony. ECF No. 33.
2. SUMMARY JUDGMENT RECORD
In their Motion for Summary Judgment, Ouachita Defendants assert the following as undisputed facts. Plaintiff was booked into the OCDC on May 3, 2012. ECF No. 26-3, p. 1. Plaintiff was provided with medical request forms. Plaintiff filed a medical request on May 4, 2012 stating he suffered a burn approximately three to four weeks prior to his arrest. ECF No. 26-3, p. 8. Defendant Woods responded to this request on May 14, 2012 noting "[T]ake to ER. Pre-existing condition Bill Inmate[.] [I]nmate declined treatment for pre-existing condition on 5-18-12." ECF No. 26-3, p. 8. On May 15, 2012, Plaintiff filed another medical request noting he had a rash and a serious burn that did not need to be infected by the rash. The response on this request notes: "Have rash checked out at local ER on 5-21-12." ECF No. 26-3, p. 10. Plaintiff had not sought medical attention for the burn prior to incarceration. ECF No. 26-1, p. 37. Plaintiff was taken to the emergency room on June 5, 2012 for the burn and rash. Plaintiff was seen by a doctor at the emergency room and given Benadryl and intravenous fluids but not prescribed any medication. ECF No. 26-3, pp. 12-19. Plaintiff was taken to an appointment with Dr. DeLuca on June 28, 2012 for his burn and rash. At this visit Plaintiff was prescribed medication for both the burn and rash. ECF No. 26-3, pp. Plaintiff again visited Dr. DeLuca on October 28, 2012 and received additional prescriptions. ECF No. 26-3, pp. 45-48. Plaintiff also visited Dr. DeLuca on April 30, 2013. ECF No. 26-3, pp. 60-65. Plaintiff testified at his deposition that when Defendant Norwood was made aware of Plaintiff's complaints he would do something about them. ECF No. 26-1, pp. 71-72. Plaintiff also testified at his deposition that Carmen Brian was not involved in Plaintiff's claims regarding his medical care. ECF No. 26-1, p. 74.
At the summary judgment hearing, I asked Plaintiff to provide a sworn statement detailing how he believes his constitutional rights were violated in response to the Ouachita Defendants' Motion for Summary Judgment. Below is a summary of his sworn testimony:
Plaintiff testified he was booked into the OCDC on May 3, 2012. Defendant McFarland booked Plaintiff into the OCDC and at book-in Plaintiff told Defendant McFarland about his burn. Plaintiff also showed Defendant Brian his burn at book-in and Defendant Brian told Plaintiff he would get Plaintiff medical attention after the book-in process was completed. Instead, Plaintiff was taken to his pod without receiving any medical care.
The following day Plaintiff submitted a sick-call request. Plaintiff was then moved to a different pod. In this new pod, Plaintiff showed his burn to Defendant West. According to Plaintiff, Defendant West told Plaintiff to submit a sick-call request and she gave Plaintiff two packs of cream for his burn.
The following day Defendant Lindsey responded to Plaintiff's request stating he would be taken to the hospital, however, Plaintiff was not taken to the hospital. Plaintiff testified that Defendant Lindsey's supervisor (whom Plaintiff did not name) told Plaintiff he would have to sign something taking responsibility for payment of the hospital visit before the OCDC would transport him to the hospital. Plaintiff referred to Plaintiff's Exhibits K-1 and K-3 in support of this statement. Exhibit K-1 is Plaintiff's May 4, 2012 Medical Request Form. On this form Plaintiff requested treatment of his burn. Defendant Wood responded on May 14, 2012 noting: "Take to ER. Pre-Existing Condition Bill inmate[.] [I]nmate declined treatment for pre-existing condition on 5-18-12." ECF No. 33, p. 71. Exhibit K-3 is Plaintiff's May 15, 2012 Medical Request Form. On this form, Plaintiff requests medical attention for a rash that is spreading quickly on his body. Plaintiff also states he does not want the rash to infect his burn. Defendant Lindsey responded on May 21, 2012 noting "Have rash checked out at local ER on 5-21-12." ECF No. 33, p. 73.
Plaintiff testified he was taken to the emergency room on June 5, 2012 but only after he signed a paper stating he would pay for the medical care. At the emergency room, Plaintiff was only given Benadryl and instructed to see a regular doctor within one or two days. Plaintiff cites to Plaintiff's Exhibit K-6 in support of this statement. Exhibit K-6 is the Ouachita County Medical Center discharge instructions Plaintiff received on June 5, 2012. On these instructions it notes Plaintiff was diagnosed with hypertension, prescribed no medication, and instructed to follow up with a private physician in one to two days. ECF No. 33, p. 76.
Plaintiff testified he was not taken to the doctor again until June 28, 2012. At the June 28, 2012 visit, Plaintiff was diagnosed with scabies, high blood pressure, and a burn. Plaintiff cited to Plaintiff's Exhibit K-10 in support of this statement. Exhibit K-10 is Plaintiff's Patient Plan from Ouachita Valley Family Clinic. The plan notes Plaintiff was diagnosed with scabies, a burn, and hypertension. Plaintiff was prescribed a one-time dose of cream to apply from head to toe, Zyrtec to take daily, Aleve to take as needed, Gabapentin to take three times daily, and Zestoretic to take daily. ECF No. 33, p. 80.
Plaintiff also testified he notified Defendant McFarland at book-in that he suffered from high blood pressure. Plaintiff cited Exhibit I as support for this statement. Exhibit I is Plaintiff's book-in documents. On the documents it notes Plaintiff indicated he did not suffer from high blood pressure. ECF No. 33, p. 48.
Further, Plaintiff testified he did not seek treatment for his burn prior to being arrested because he was hiding from authorities. Plaintiff also testified that the delay in his treatment may have caused his scaring to be worse than it would have been had Defendants secured Plaintiff treatment sooner. Additionally, Plaintiff testified his nerve damage may not be as severe if he had received treatment of his burn sooner. Plaintiff testified he has never been told by a medical professional that his scar or nerve pain is worse due to a delay in treatment. I then specifically asked Plaintiff if he had any verifying medical evidence showing his injury is worse than it would have been without any delay in treatment. In response, Plaintiff testified he suffered pain and nerve damages from Defendants' actions and he assumed the delay caused his nerve damage.
Plaintiff also testified Defendant Norwood and Defendant Strickland are responsible for denying him medical care because they should have known about the situation. According to Plaintiff, Defendant Strickland meets with the jail administrator and jailers weekly to discuss grievances. Therefore, Defendant Strickland should have learned of Plaintiff's requests at these meetings. Plaintiff also testified that Defendants Brian and West were the officers on duty when Plaintiff was booked into the OCDC.
Regarding the policy and procedures at the OCDC, Plaintiff testified it was the OCDC's responsibility to take care of him. Plaintiff testified he did not know what the policy at the OCDC was but he assumes it is to help inmates. Plaintiff also testified it was the policy of the OCDC to ask inmates to pay for care of pre-existing medical conditions.
Regarding the delay in medication in 2013, Plaintiff testified he went to the doctor on April 30, 2013 and the doctor prescribed Plaintiff pain medication at that visit. Plaintiff, however, was unable to get this medication for fifteen (15) days after this visit. Plaintiff wrote a grievance to Defendant Norwood on May 9, 2013 complaining of not receiving his medication. Defendant Lindsey responded on May 10, 2013 noting "... have looked into this matter and resolved the situation. Your medication will arrive shortly..." ...