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Barry Wayne Register v. Helder

United States District Court, W.D. Arkansas, Fayetteville Division

March 2, 2017




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

         The 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).

         On 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.

         1. Background

         Plaintiff was extradited from Texas and booked into the WCDC on June 5, 2014. County Exhibit (hereinafter Cty. Ex.) A-1 at 12-15.[1] Custody was temporarily transferred to Washington County. Plaintiff's Exhibit (hereinafter Plff's Ex.) A at 6.[2] He remained incarcerated there until February 27, 2015, at which time he was transported back to Texas. Cty. Ex. A-1 at 31.

         By 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.

         Plaintiff 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.

         Until 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”).

         The 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.” Id.

         The 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. at 50.

         Plaintiff 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 at 101.

         Plaintiff 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.[3] 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.

         Plaintiff's 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.

         On June 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.

         On June 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. Id.

         Plaintiff 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.

         On June 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 224.

         Plaintiff 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 court.” Id.

         On June 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 call. Id.

         On 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.

         On 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.

         By 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.

         Plaintiff 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.

         On 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.

         On 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).

         On 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.

         On 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.

         On 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.

         Plaintiff 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.

         On 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.

         A 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. Id.

         On 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.

         On 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 request. Id.

         On 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. Id.

         On 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 ...

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