United States District Court, W.D. Arkansas, Fayetteville Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
MARK E. FORD UNITED STATES MAGISTRATE JUDGE
a civil rights action filed by the Plaintiff pursuant to 42
U.S.C. § 1983. Plaintiff proceeds pro se and
in forma pauperis.
events that are the subject of this case occurred when the
Plaintiff was incarcerated in the Washington County Detention
Center (WCDC). The Washington County Defendants, Sheriff Tim
Helder, Dr. Mullins, Nurse Bradley, and Deputy Stanton, have
filed a motion for summary judgment (Doc. 110). The Southern
Health Partners, Inc. (SHP) Defendants, Nurse Teresa Lee and
Nurse Lilly Harris, have also filed a motion for summary
judgment (Doc. 113).
Wednesday, January 18, 2017, at 10:00 a.m., a hearing was
held to allow the Plaintiff to testify in response to the
summary judgment motions. Plaintiff appeared by video from
the Polunsky Unit of the Texas Department of Criminal Justice
(TDCJ). In addition, the Plaintiff submitted a number of
exhibits to the Court for consideration (Doc. 120). He was
also given an extension of time until January 31, 2017, to
submit affidavits in support of his response.
was extradited from Texas and booked into the WCDC on June 5,
2014. County Exhibit (hereinafter Cty.
Ex.) A-1 at 12-15. Custody was temporarily transferred to
Washington County. Plaintiff's Exhibit
(hereinafter Plff's Ex.) A at 6. He remained
incarcerated there until February 27, 2015, at which time he
was transported back to Texas. Cty. Ex. A-1 at 31.
Order entered on October 16, 2015 (Doc. 100) the following
claims were dismissed: Plaintiff's claim that he could
not be charged for medical care; his claims that he was being
charged excessive and illegal amounts for pre-stamped
envelopes; his claims about sales tax being collected on
commissary sales; all claims against Jennifer Laub (who was
in charge of commissary); and, the official capacity claims
against Nurse Teresa Lee and Nurse Lilly Harris.
claims the Defendants have violated his constitutional rights
by: (1) failing to obtain his medical records from the TDCJ
and the Arkansas Department of Correction (ADC); (2) failing
to provide him chronic care free of charge; (3)
discriminating against out-of-state defendants by charging
them for care for chronic conditions; (4) failing to allow
him to properly utilize the grievance procedure; and, (5) by
not allowing him to be baptized by a Jehovah's witness
rather than a Chaplain of another faith who was already
approved to do baptisms.
November 1, 2014, the WCDC employed nurses and contracted
with two physicians to provide medical services. Cty.
Ex. A at ¶ 9. From November 1, 2014, to December
31, 2015, SHP provided all medical care in the WCDC pursuant
to a contract with Washington County. Id. at ¶
10. After care is provided, medical staff enter information
into the commissary system to charge inmates for the medical
care they receive. Id. at ¶ 11. “An
inmate is not denied care based on their inability to pay. If
an inmate has no money in his/her commissary account, the
amount will be . . . shown as a debit on the commissary
account but is not collected.” Id.; see
also Plff's Ex. H at 130 (Bradley's responses to
interrogatories - “inmates are charged for medical
visits and medications”).
WCDC “employs an electronic kiosk system for the
submission of written grievances and requests.”
Cty. Ex. A at ¶ 12. Inmates receive responses
to their grievances and requests via the kiosk system.
Id. “If an inmate indicates that he/she feel
that his/her constitutional rights have been violated, they
are provided the name of the [United States District] Court
clerk and the address to which they should direct their
request for a form for filing a complaint.”
Texas records show that on June 5, 2014, Plaintiff was on
chronic care for coronary atherosclerotic disease,
hypertension, and Hepatitis C. Plff's Ex. A at
11. Plaintiff also submitted documents indicating he was on
chronic care for Hepatitis A & B and gastroesophageal
reflux disease (GERD) in the ADC as of September of 2004.
Plff's Ex. B at 50 & 55 (chronic care for
Hepatitis B as of 3/8/2005). On one of the ADC documents
Plaintiff submitted, it says “no charges” when he
was seen for GERD and Hepatitis B chronic care. Id.
brought the following medications with him to the WCDC:
Metroprolol 25 mg; Nitrostat 0.4 mg; Aspirin 81 mg;
Pravastatin 20 mg; and, Enalapril 10 mg. Cty Ex. A-1
at 13. The WCDC's policy with respect to inmates who
arrive at the facility with medication requires the
medication to be “verified and approved by the nurse
before it is administered.” Plff's Ex. F
reported having had two heart attacks. Cty Ex. A-1
at 118. He also indicated that he had high cholesterol, high
blood pressure, had tested positive for tuberculosis in the
1980s, had Hepatitis A, B, and C, and had gallstones.
Id. He testified he took his cholesterol and high
blood pressure medication until the WCDC started charging him
for it. See Cty. Ex. B at 44-45. Plaintiff
testified he suffered no detrimental health issues as a
result of his treatment at the WCDC. Specifically, he said he
was no worse when he left the jail then when he went in. He
did, however, testify that he lost 22 pounds.
medication administration record (MAR) from June 6, 2014 to
June 30, 2014 indicates he refused Metoprolol, Enalapril, and
Pravastatin prescriptions. Cty. Ex. A-2 at 168-170.
His MAR for July through September also indicates he refused
the medications. Id. at 171-173, 174-176, 177-179.
He refused medications from November 10, 2014 until November
13, 2014. Cty. Ex. A-2 at 131-133. On November 10,
2014, he signed a SHP release form indicating he was refusing
the medication because he was being charged for it.
Id.; A-1 at 130. He refused to sign these forms each
day. Id. at 138-166.
6, 2014, Plaintiff submitted a request stating he had
gallstones. Cty. Ex. A-1 at 186. Nurse Bradley
replied that she was waiting for his medical records
regarding this problem, and that the jail doctor would
determine what treatment was necessary. Id.
7, 2014, Plaintiff advised the County Defendants that his
TDCJ records were under the name of Charlie Ray Starr.
Cty. Ex. at A-1 at 187. Nurse Vickery responded
saying she had put him on the list to see the doctor.
was seen by Dr. Mullins on June 10, 2014, for his complaint
of pain in the right upper quadrant of his abdomen. Cty.
Ex. A-1 at 119. On June 11, 2014, Plaintiff was taken
for abdominal x-rays. Cty. Ex. A-1 at 120-121. No
gallstones were identified. Id. Plaintiff testified
that nothing else was done to determine what was causing his
pain in his right side. Cty. Ex. B at 46-47.
11, 2014, Plaintiff submitted two inmate requests about the
TDCJ paying his medical expenses because he was a chronic
care patient. Cty. Ex. A-1 at 189. Plaintiff's
inmate account shows three deductions were made from his
account: a prescription charge for $15; an other-the-counter
charge for $3; and, a medical charge for $5. Id. at
also requested forms to have the state responsible for his
medical expenses. Cty. Ex. A-1 at 190. The forms he
was referring to were release forms authorizing the WCDC to
obtain his records. Nurse Bradley explained that the TDCJ did
not pay his medical expenses when he was “back for
12, 2014, Plaintiff asked for the results of the x-rays.
Cty. Ex. A-1 at 190. Nurse Bradley informed him they
were negative. Id. Thereafter, Plaintiff submitted a
request asking to speak to the Sheriff because he had been
diagnosed in Texas as having gallstones while he was told by
the WCDC doctor that he had no gallstones. Cty. Ex.
A-2 at 190-191. He also mentioned being charged for medical
care. Id. In response, he was added to nurse's
August 8, 2014, Plaintiff submitted a request stating he was
committed for both the TDCJ and the ADC and should not be
required to pay for medical care. Cty. Ex. A-1 at
197. He asked that the money that had been deducted for
medical care be put back in his commissary account.
Id. That same day, Nurse Vickery faxed a health
service request form to the ADC to obtain his medical
records. Cty. Exs. A-1 at 123-124; A-2 at 122-124.
August 12, 2014, Plaintiff submitted a request stating at
length how he believed his rights were being violated under
both state and federal law. Cty. Ex. A-1 at 199-200.
He requested copies of all his requests and grievances and
for the jail to stop its illegal practices. Id.
Deputy Stanton replied by telling Plaintiff how to request a
§1983 form. Id. Plaintiff, however, believes
Deputy Stanton sent his grievance to the Clerk of this Court,
and that the Clerk replied to the grievance. Cty.
Ex. B at 54-56. Plaintiff believes this denied him the
right to exhaust his grievances at the jail level.
Id. at 56. He also did not think the response was
sufficient. Id. at 56-57.
affidavit, Deputy Stanton indicates that since Plaintiff
indicated he believed his federal rights had been violated,
she responded by telling him to write to the Clerk of Court
to obtain a §1983 form. Cty. Ex. D at ¶ 7.
Deputy Stanton further stated that other than providing basic
aid in emergency situations, she never made any decisions or
recommendations with respect to inmate medical care.
Id. at ¶ 4.
also believed Defendants discriminated against him because he
was a Texas inmate who was brought in on a bench warrant.
Cty. Ex. B at 58. He testified he was aware of some
Arkansas inmates who were treated differently, but he could
not recall their names. Id. Plaintiff believed all
of the WCDC inmates except the two Texas inmates were
receiving free medical care. Id. at 59.
August 14, 2014, Plaintiff submitted a request addressed to
the Sheriff again complaining of being charged for medical
care, being forced to violate his medical restrictions, and
the medical staff not obtaining his TDCJ and ADC records.
Cty. Ex. A-1 at 201. That same day, Plaintiff
submitted a bottom bunk request. Id. at 202.
October 3, 2014, Plaintiff submitted a request complaining he
had been moved back upstairs which violated his medical
restrictions. Cty. Ex. A-1 at 205. Nurse Bradley
replied that Plaintiff was on a bottom bunk, bottom floor
restriction. Id.; see also Plff's Ex. B
at 56 (noting bottom bunk/bottom floor for medical reasons).
October 6, 2014, Plaintiff submitted a request asking for his
Nitrostat. He said he had been having chest pains all night
and pain from his right hand up to the back of his neck.
Cty. Ex. A-1 at 206. Plaintiff was taken to
Washington Regional Medical Center because of his complaints
of chest pain. Id. at 127. He was discharged with a
diagnosis of epigastric pain. Cty. Ex. A-1 at
125-126; see also Cty. Ex. B at 39-41.
October 7, 2014, Plaintiff asked to be allowed to keep his
mat and blanket all day. Cty. Ex. A-1 at 206. Nurse
Bradley responded that there was no medical reason he needed
his mat and blanket all day. Id.
October 14, 2014, Plaintiff submitted a request stating he
needed his blood work done. Cty. Ex. A-1 at 207. He
said he had Hepatitis A, B, and C. Id. He indicated
he was concerned because he had lost 24 pounds. Id.
He was seen by Dr. Mullins for his complaint of weight loss
and for blood work. Cty. Ex. A-1 at 128. The results
of the complete blood count (CBC) were within normal limits,
with the exception of the lymphocytes which were slightly
high and the absolute eosinophil and absolute basophils which
were slightly low. Id. at 129.
believed Dr. Mullins should have also checked his liver
enzymes. Cty. Ex. B at 47-48. Plaintiff believed his
liver was shutting down. Id. He concedes, however,
that it was not. Id. at 48. In responses to
interrogatories, Dr. Mullins states: “Plaintiff made no
request to me regarding his heart or liver or any other
chronic complaints.” Plff's Ex. H at 124.
October 19, 2014, Plaintiff submitted a request to see the
Jehovah's Witnesses to have a Bible study. Cty.
Ex. A-1 at 207. Chaplain Trueblood, a volunteer
chaplain, stated he had called Kingdom Hall and got voice
mail. Id.; see also Plff's Ex. H at
136. Chaplain Trueblood left a message for them to call and
set up a visit. Cty. Ex. A-1 at 207.
medical charge of $5 was made on October 24, 2014. Cty.
Ex. A-1 at 224B. Plaintiff requested his money back.
Id. at 209. Nurse Bradley advised him that he was
classified as a “back for court” detainee by
Texas, and they did not pay for his medical expenses while he
was at the WCDC. Id. She also advised him that he
was not considered ADC committed until his parole was
violated, so the ADC would not pay his medical expenses.
October 30, 2014, a $4 charge was made on his commissary
account. Cty. Ex. A-1 at 224B. Plaintiff requested
the return of the funds. Id. at 210-211. He
indicated he would keep refusing the medication because he
was not supposed to have to pay for it. Id. On
October 31, 2014, Plaintiff was advised that the ADC only
paid for doctor's visits and prescriptions and not
nurses' visits. Id. at 211.
November 1, 2014, Plaintiff again complained about being
charged for chronic care medication. Cty. Ex. A-1 at
211. He also noted that he was being overcharged for
nurse's visits. Id. He demanded that all the
money deducted for medical care or prescriptions be refunded.
Id. Nurse Lee responded that this was not a medical
November 3, 2014, Plaintiff submitted a request complaining
that some of his requests and grievances were unanswered.
Cty. Ex. A-1 at 212. In response, he was told
requests could not be deleted and he was receiving answers.
November 13, 2014, he submitted another grievance raising
concerns about being charged for medical care, not being
weighed as the doctor ordered, not receiving the results of
his blood tests, and there being no follow-up care provided
regarding his loss of weight. Cty. Ex. A-1 at 137,
208, 213. Nurse Bradley responded that he kept refusing to
come to pill call. Id. at 215. She also ...